R (on the application of Chester) v Secretary of State for Justice

This appeal concerned challenges by two life-sentenced prisoners to their disenfranchisement under domestic electoral legislation. The court applied the European Court of Human Rights jurisprudence (notably Hirst (No 2) and Scoppola) and considered whether European Union law supplies any parallel individual right to vote. The court concluded that (i) under the Human Rights Act the general incompatibility of the blanket ban on prisoner voting has already been established and further declarations of incompatibility in these particular cases were not appropriate in light of ongoing Parliamentary processes; (ii) European Union law does not itself confer an individual right to vote in terms that would assist the appellants or import Strasbourg standards into EU law; and (iii) even assuming arguendo that EU law did confer such rights, relief in the nature of disapplication or judicially constructed schemes would not be appropriate and damages claims would fail. Accordingly both appeals were dismissed.

Background and parties

• The appellants are prisoners serving life sentences (Chester and McGeoch). They sought judicial review of refusals to register them to vote, arguing infringements of the right to vote under Article 3 of Protocol No 1 (A3P1) as incorporated by the Human Rights Act 1998 and under European Union law.
• Chester's claim (issued December 2008) relied on A3P1 and on EU law relating to European Parliamentary elections. McGeoch's claim (issued February 2011) relied solely on EU law and concerned municipal and Scottish Parliamentary elections (and later was permitted to be amended to include European Parliamentary elections).

Relief sought

• Declarations of incompatibility under the Human Rights Act and remedies under European Union law, including potential damages or disapplication of domestic provisions affecting eligibility to vote.

Procedural history

• Appeals to this Court came from the Court of Appeal ([2010] EWCA Civ 1439) in Chester and from Scottish courts ([2011] CSIH 67) in McGeoch.

Issues for decision

• Whether the domestic ban infringed A3P1 in respect of these appellants and whether further declarations of incompatibility or other remedies should be made;
• whether European Union law (including TFEU Articles 20 and 22 and related Charter provisions) confers an individual right to vote that parallels or imports Strasbourg standards; and
• whether damages or other remedies were available under EU law for any breach.

Court's reasoning

• The court accepted the Strasbourg Grand Chamber line in Hirst (No 2) and Scoppola as binding in substance and declined the Attorney General's invitation to depart from that jurisprudence. It nevertheless declined to make further declarations of incompatibility in these specific cases because the matter was the subject of active Parliamentary consideration and a declaration would not be a useful or appropriate remedy in the particular circumstances.
• On EU law the court held that the Treaties and Court of Justice jurisprudence (including Spain v United Kingdom and Eman & Sevinger) do not establish an autonomous individual right to vote in the broad terms required by the appellants and do not incorporate the Strasbourg approach wholesale into EU law. Article 20.2(b) TFEU does not change that conclusion.
• Even if EU law had conferred the asserted individual rights, appropriate relief would have been limited to a general declaration of inconsistency to be addressed by Parliament; the court could not itself disapply the whole prohibitory legislation or devise a legislative scheme; and claims for damages would not succeed because Parliament enjoyed a wide legislative margin and the appellants could not show a sufficiently serious breach or the necessary causal link.

Disposition

• Both appeals were dismissed for the reasons above.

These appeals were dismissed. The court applied Strasbourg authority (Hirst (No 2) and Scoppola) but declined to make further declarations of incompatibility in these specific cases because remedial measures were the proper business of Parliament given ongoing legislative processes. It also held that European Union law does not, on the facts and as it stands, furnish an individual right to vote that would assist the appellants, and that neither disapplication of the domestic ban nor awards of damages would have been appropriate.

On appeal from the Court of Appeal ([2010] EWCA Civ 1439) and the Scottish courts ([2011] CSIH 67). Earlier decisions included Burton J at first instance in the Administrative Court and the Extra Division in Scotland; the matter proceeded to the Supreme Court where the present judgment was given on 16 October 2013.