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

A domestic court should ordinarily follow a clear and settled line of Grand Chamber authority on Convention rights. Departure requires an exceptional misunderstanding or oversight, or conflict with a fundamental feature of domestic law.

A general, automatic and indiscriminate prohibition on voting by convicted prisoners is incompatible with article 3 of Protocol No 1. Nevertheless, a declaration of incompatibility is discretionary. A further declaration may serve no purpose where incompatibility has already been declared and Parliament is actively considering reform.

European Union law does not confer a general individual right to vote which imports Strasbourg principles. Its electoral rights principally secure equal treatment for Union citizens residing in a Member State other than their state of nationality. The general EU principle of non-discrimination applies only within the scope of EU law and requires genuinely comparable situations.

Two serving life prisoners challenged their statutory disenfranchisement. Peter Chester sought judicial review concerning United Kingdom and European Parliamentary elections under article 3 of Protocol No 1, the Human Rights Act 1998 and European Union law. Burton J and the Court of Appeal dismissed his claim: [2009] EWHC 2923 (Admin); [2010] EWCA Civ 1439.

George McGeoch challenged his exclusion from local, Scottish Parliamentary and European Parliamentary elections solely under European Union law. The Extra Division dismissed his petition in [2011] CSIH 67.

The central questions were whether the Supreme Court should apply the Strasbourg authorities on prisoner voting; whether another declaration of incompatibility should be made; whether EU law supplied an independent voting or non-discrimination right; and what remedies could follow from any breach.

1. Both appeals were dismissed unanimously. Lord Mance delivered the principal judgment, with which Lord Hope, Lord Hughes and Lord Kerr agreed. Lady Hale, Lord Clarke and Lord Sumption gave concurring judgments.

2. The court declined to depart from Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663. Section 2(1) of the Human Rights Act 1998 requires Strasbourg decisions to be taken into account rather than treated as formally binding. A settled Grand Chamber position should nevertheless ordinarily be applied. Departure after repeated Grand Chamber consideration would require a fundamental domestic principle or an egregious misunderstanding. Neither existed here (Lord Mance, paras 25–35; Lord Sumption, paras 119–138).

3. The general prohibition imposed by section 3 of the Representation of the People Act 1983, and extended to European Parliamentary elections by section 8 of the European Parliamentary Elections Act 2002, remained incompatible with article 3 of Protocol No 1. Chester was a victim for section 7 purposes, but victim status was only a threshold for bringing proceedings. It did not entitle him to a remedy (paras 36–38).

4. No further declaration of incompatibility was appropriate. A declaration had already been made in Smith v Scott, the incompatibility was accepted, and Parliament was actively considering reform. A declaration is discretionary. In addition, Parliament could legitimately retain disenfranchisement for prisoners in Chester’s and McGeoch’s positions under a Convention-compliant scheme (paras 39–42, 72–74). Lady Hale emphasised that courts should be extremely slow to grant an abstract declaration at the instance of a person whose own rights could lawfully be restricted (paras 99–102).

5. European Union law did not import the Strasbourg prisoner-voting jurisprudence or confer a general individual right to vote. Articles 20 and 22 TFEU and articles 39 and 40 of the Charter secure equal electoral treatment for Union citizens residing in a Member State other than their state of nationality. They did not assist nationals voting in their own state. Scottish Parliamentary elections were neither European Parliamentary nor municipal elections for this purpose (paras 43–59).

6. The general EU principle of non-discrimination applies only within the scope of EU law. It requires an appropriate comparator before justification is examined. Convicted serving prisoners were not comparably situated to free persons or remand prisoners, so the principle did not assist the appellants (paras 60–68).

7. Even on assumptions favourable to the appellants, the court could neither disapply the whole voting prohibition nor rewrite the legislation or devise a replacement franchise. Those matters belonged to Parliament. Damages also failed because neither appellant could show that EU law required him personally to have the vote or that any loss was directly caused by breach (paras 69–83). No reference to the Court of Justice was required because the dispositive EU issues were acte clair (para 84).

1. United Kingdom Supreme Court: Both appeals were dismissed in [2013] UKSC 63.
2. Court of Appeal of England and Wales: Chester’s appeal from Burton J was dismissed in [2010] EWCA Civ 1439, reported at [2011] 1 WLR 1436.
3. High Court, Administrative Court: Burton J dismissed Chester’s judicial review claim in [2009] EWHC 2923 (Admin).
4. Extra Division of the Court of Session: McGeoch’s petition was dismissed in [2011] CSIH 67. The Supreme Court later permitted an amendment concerning European Parliamentary elections.