FOURTH SECTION
DECISION
This version was rectified on 26 June 2013
under Rule 81 of the Rules of Court.
Applications nos. 12626/13 and 2522/12
Joseph MCLEAN against the United Kingdom
and Kevin COLE against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on
11 June 2013 as a Chamber composed of:
Ineta Ziemele,
President,
David Thór Björgvinsson,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano,
Paul Mahoney,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section
Registrar,
Having regard to the above applications lodged on 31 January
2013 and 28 October 2011,
Having deliberated, decides as follows:
THE FACTS
The applicant in the first case, Mr Joseph
McLean, is a British national, who was born in 1980. He was represented before
the Court by Taylor & Kelly, a firm of solicitors based in Coatbridge.
The applicant in the second case, Mr Kevin Cole,
is a Jamaican national, who was born in 1974. He was represented before the
Court by Leigh Day & Co, a firm of solicitors based in London.
Both applicants are in detention following their
conviction for various criminal offences.
A. The circumstances of the case
The applicants complained
that, as convicted prisoners, they had been subject to a blanket ban on voting
in elections and had been, or would be, prevented from voting in one or more of
the following: elections to the European Parliament on 4 June 2009; the
parliamentary election on 6 May 2010; elections to the Scottish Parliament on 5
May 2011; a nationwide referendum on the alternative vote on 5 May 2011; local
government elections on various dates; and future elections.
B. Relevant domestic law and practice
1. Voting legislation
(a) General elections and local
government elections
. Pursuant
to sections 1-4 of the Representation of the People Act 1983 a convicted person, during the time that he is detained in a
penal institution in pursuance of his sentence, is legally incapable of voting
at any parliamentary or local election.
(b) Elections to the Scottish Parliament
Section 11 of the Scotland Act 1998 provides that
only persons who, on the day of the poll, would be entitled to vote as electors
at a local government election and are registered in the register of local
government electors are entitled to vote as electors at an election to the
Scottish Parliament.
(c) Elections to the European Parliament
Section 8(1) of the European Parliamentary
Elections Act 2002 provides, in so far as relevant, that a person is entitled
to vote at an election to the European Parliament if, on the day of the poll,
he would be entitled to vote as an elector at a parliamentary election.
(d) The alternative vote referendum
In so far as relevant, section 2 of the Parliamentary
Voting System and Constituencies Act 2011 provided that only those who, on the
date of the alternative vote referendum, were entitled to vote as electors at a
parliamentary election were entitled to vote in the alternative vote referendum
of 5 May 2011.
2. Local governments
Each of the four
jurisdictions of the United Kingdom (England, Scotland, Wales and Northern Ireland) is subdivided into a number of local authorities. The specific system in
place varies depending on the jurisdiction in question.
The system of local government was created by
statute. Local authorities’ internal organisation and competences are regulated
by statutes enacted by the Parliament of the United Kingdom and by the
Parliaments and Assemblies of the three devolved jurisdictions (Scotland, Wales
and Northern Ireland).
The functions and powers of local authorities
are of a predominantly administrative nature and generally cover areas such as
waste management and collection, housing, local planning, council tax
collection, licensing, transport and social services. In respect of these
various areas, local authorities carry out their duties in accordance with
primary legislation governing the area in question and can only act in so far
as they are authorised to do so by statute or by subordinate legislation.
Local authorities have the
power to make by-laws, which are essentially laws of local application. By-laws
usually have to be confirmed by a Government minister or the ministers of the
devolved jurisdictions before they can take effect.
C. Recent developments
On 23 November 2010 the Court (Fourth Section)
adopted a pilot judgment in Greens and M.T. v. the United Kingdom, nos.
60041/08 and 60054/08, ECHR 2010 (extracts). It found a violation of Article 3
of Protocol No. 1 in respect of the blanket ban on voting applicable to
convicted prisoners as regards parliamentary elections and elections to the
European Parliament. It also imposed a deadline for action, indicating that the
United Kingdom had to introduce legislative proposals to amend the
incompatible legislation within six months of the date on which the judgment
became final, with a view to the enactment of the law according to any
time-scale determined by the Committee of Ministers.
On 22 November 2012
the Government published a draft bill on prisoners’ voting eligibility. The
draft bill includes three proposals: (1) ban from voting those sentenced to
four years or more; (2) ban from voting those sentenced to more than six
months; or (3) ban from voting all prisoners. The proposals cover both local
and parliamentary elections. Although the draft bill is currently drafted to
extend to England and Wales only, the introduction and explanatory notes make
it clear that the final bill would extend to the whole of the United Kingdom. The devolved jurisdictions are therefore involved in the pre-legislative process.
On 6 December 2012 the
Committee of Ministers, responsible for supervising the execution of the
judgment, adopted a decision in which it noted the range of options proposed in
the draft bill; endorsed the view that the third option aimed at retaining the
blanket ban was not compatible with the Convention; invited the Government to
keep it regularly informed of the proposed time-scale; and decided to resume
consideration of the case at the latest at its September 2013 meeting.
On 16 April 2013 a motion
to nominate the six members of the House of Commons to serve on a joint
committee which will conduct pre-legislative scrutiny of the draft bill
was agreed. On 14 May 2013 a motion to nominate the six members of the House of
Lords to serve on the committee was agreed. The committee held its first
meeting on 15 May 2013 and will report by 31 October 2013.
On 10 June 2013, there was a hearing before the
Supreme Court in the case of McGeoch v. The Lord President of the Council
and another. The claimant is a serving prisoner who claims that the
prohibition on prisoners voting is incompatible with European Union law.
COMPLAINTS
The first applicant complained under Article 3
of Protocol No. 1 of the Convention of a violation of his right to vote in
respect of elections to the Scottish Parliament on 3 May
2007 and 5 May 2011; the European Parliament on 4 June 2009; the United Kingdom
Parliament on 6 May 2010; and local government bodies; and in respect of the
continuing refusal to allow him to exercise his right to vote. He also
complained of a violation of Articles 6 and 13 because he was refused legal aid
to pursue domestic proceedings in respect of his complaints.
The second applicant complained under Article 3
of Protocol No. 1 of the Convention of a violation of his right to vote in
respect of local government elections in May 2011 and May
2012; in respect of the alternative vote referendum in May 2011; and in respect
of the continuing refusal to allow him to exercise his right to vote. He also
complained under Article 13 that he was denied an effective remedy in respect
of his complaints.
THE LAW
A. Joinder of the applications
Given their similar factual and legal
background, the Court decides that the two applications should be joined
pursuant to Rule 42 § 1 of the Rules of Court.
B. Complaints regarding the elections
to the Scottish Parliament on 3 May 2007 and 5 May 2011; the European
Parliament on 4 June 2009; and the United Kingdom Parliament on 6 May 2010
. It
is not known whether the first applicant was in detention following a
conviction on the date of the elections in 2007, 2009, 2010 and 2011. As the
legislation precluding the participation of prisoners in the franchise applies
only to prisoners in detention following conviction, any
applicant not in post-conviction detention on the date of the relevant election
suffered no adverse effect as a result of the legislation. If the first
applicant was not in post-conviction detention on the dates of the impugned
elections, his complaints are inadmissible pursuant to Article 34 on the basis
that he cannot claim to be a victim of any violation of Article 3 of Protocol
No. 1.
Even if the applicant was in post-conviction
detention at the time of the impugned elections, the Court must assess whether
he has complied with Article 35 § 1 of the Convention. Pursuant to that Article,
the Court may only deal with a matter where it has been introduced within six
months from the date of the final decision in the process of exhaustion of
domestic remedies (see generally Tucka (No. 1) v. the United Kingdom (dec.), no. 34586/10, 18 January 2011). Where no effective remedy is
available to the applicant, the time-limit expires six months after the date of
the acts or measures complained of, or after the date of knowledge of that act
or its effect or prejudice on the applicant (see Younger v. the United
Kingdom (dec.), no. 57420/00, ECHR 2003-I; and Toner v. the United
Kingdom (dec.), no. 8195/08, § 27, 15 February 2011).
As the Court made clear
in its judgment in Greens and M.T. v. the United Kingdom, nos.
60041/08 and 60054/08, §§ 68-71, 111-115, 118 and 120-122, ECHR 2010 (extracts),
legislative amendment of section 3 of the 1983 Act is required in order to
prevent further violations of Article 3 of Protocol No. 1 arising in the
context of general elections. The blanket restriction
imposed by section 3 of the Representation of the People Act 1983 has been
extended to elections to the Scottish Parliament by section 11 of the
Scotland Act 1998 and to elections to the European Parliament by section 8(1)
of the European Parliamentary Elections Act 2002, both of which are parasitic upon the section 3 of the 1983 Act.
In its decision in Toner, cited above, §
29, the Court found that as there was no remedy for the alleged violation of
the applicant’s right to vote, the six-month deadline in
that case for lodging an application at this Court began to run on the date of
the elections to the Northern Ireland Assembly in which the applicant, a
convicted prisoner, was unable to participate. Similarly, in the case of the
first applicant, the Court is satisfied that the six-month deadline for lodging
an application at this Court began to run on the dates of the elections in
question.
. However,
although the most recent election about which the first applicant complains
took place on 6 May 2011, he did not lodge his application until 31 January
2013. His complaints concerning the refusal to allow him to vote in the
specified elections were lodged more than six months after the date of the
elections about which he complains. The first applicant’s complaints about the
elections to the Scottish Parliament, the European Parliament and the
United Kingdom Parliament have therefore been lodged outside the time-period allowed by
Article 35 § 1 of the Convention and must be declared inadmissible pursuant to
Article 35 § 4.
C. Complaints concerning local government elections
The applicants complained that they were not
permitted to vote in local elections on various dates. The Court must decide
whether elections to local government bodies can be considered to fall within
the scope of Article 3 of Protocol No. 1, which provides:
“The High Contracting Parties undertake to hold free elections
at reasonable intervals by secret ballot, under conditions which will ensure
the free expression of the opinion of the people in the choice of the
legislature.”
. The
Court recalls that the word “legislature” in Article 3 of Protocol No. 1 does
not necessarily mean the national parliament: the word has to be interpreted in
the light of the constitutional structure of the State in question (see Mathieu-Mohin
and Clerfayt v. Belgium, 2 March 1987, § 53, Series A no. 113; and Matthews v. the United Kingdom [GC], no. 24833/94,
§ 40, ECHR 1999-I). It has therefore found the term
to encompass the Flemish Council in Belgium, on the basis that constitutional
reform had vested in it sufficient competence and powers to make it, alongside
the French Community Council and the Walloon Regional Council, a constituent
part of the Belgian “legislature”, in addition to the House of Representatives
and the Senate (Mathieu-Mohin and Clerfayt, cited above, § 53).
Similarly, regional councils were held to form a constituent part of the legislature
in Italy (Vito Sante Santoro v. Italy, no. 36681/97, §§
52-53, ECHR 2004-VI).
However, local government organs have generally
been found not to form part of the legislature of the State in question. Thus,
highlighting the absence of any legislative power and the nature of the
delegated powers exercised by them under the ultimate control of Parliament,
the former Commission held that local authorities in Northern Ireland;
municipal councils in Belgium; and metropolitan county councils in England
could not be considered as part of the “legislature” (see, respectively, X.
v. the United Kingdom, no. 5155/71, Commission decision of 12 July 1976, DR
6, p. 13; Clerfayt, Legros and Others v. Belgium, no. 10650/83,
Commission decision of 17 May 1985, DR 42, p. 212; and Booth-Clibborn and
Others v. the United Kingdom, no. 11391/85, Commission decision of 5
July 1985, DR 43, p. 236). More recently, adopting the same approach, the Court
has found Article 3 of Protocol No. 1 to be inapplicable to local and mayoral
elections in Russia; regional elections in France; elections to the Provincial
Council in Italy; and elections to municipal and district councils and regional
assemblies in Poland (see, respectively, Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000-I; Malarde v. France (dec.), no. 46813/99,
5 September 2000; Santoro v. Italy, no. 36681/97, 16 January 2003;
and Mółka v. Poland (dec.), no. 56550/00, ECHR 2006-IV).
Turning to examine the relevant local
authorities in the United Kingdom (see paragraphs 9-12 above), it is noteworthy
that their legislative function is restricted to the making of by-laws, which
are applicable only in their local authority area, and that the scope of this
function is rigidly limited by statute (see paragraph 12 above). The Court reiterates that the power to make regulations and
by-laws which is conferred on the local authorities in many countries is to be
distinguished from legislative power, which is referred to in Article 3 of
Protocol No. 1 to the Convention, even though legislative power may not be
restricted to the national parliament alone (see Cherepkov and Mółka,
both cited above). It is further of relevance that local authorities in the United Kingdom are the repositories of powers which are essentially
of an administrative nature and concern the organisation and provision of local
services. These powers are granted by statute or other subordinate legislation
which defines closely and restrictively their field of application.
The Court therefore finds that local government
bodies in the United Kingdom do not form part of the “legislature”. These
complaints are accordingly inadmissible as incompatible ratione materiae
with the provisions of the Convention and its Protocols under Article 35 §§ 3
(a) and 4.
D. Complaint concerning the alternative vote referendum
The second applicant complained that he was not
permitted to vote in the alternative vote referendum.
The Convention organs have emphasised on a
number of occasions that Article 3 of Protocol No. 1 is limited to elections
concerning the choice of the legislature and does not apply to referendums (see
X. v. the United Kingdom, no. 7096/75, Commission decision of 3 October
1975, Decisions and Reports (DR) 3, p. 165; Bader v. Germany,
no. 26633/95, Commission decision of 15 May 1996, unreported; Castelli
and Others v. Italy, nos. 35790/97 and 38438/97, Commission decision
of 14 September 1998, DR 94, p. 102; Hilbe v. Liechtenstein (dec.), no.
31981/96, ECHR 1999-VI; and Borghi v. Italy (dec.), no. 54767/00, ECHR
2002-V (extracts)).
There is nothing in the nature of the referendum
at issue in the present case which would lead the Court to reach a different
conclusion here. It follows that complaint concerning the alternative vote
referendum is incompatible ratione materiae with the provisions of the
Convention and its Protocols within the meaning of Article 35 § 3 (a) and must
be rejected pursuant to Article 35 § 4.
E. Complaint concerning future elections
The applicants complained of a continuing
situation, making reference to their ineligibility to vote at future
unspecified elections.
There is no doubt that for as long as the
legislation remains unchanged, those who remain in post-conviction detention
will continue potentially to be victims of a violation of Article 3 of Protocol
No. 1. However, the effect of the voting prohibition will only be felt if a
further election to a “legislature” occurs before amended legislation has been
enacted.
Following the adoption of the Court’s pilot
judgment in Greens and M.T., cited above, a draft bill has been
published and a joint committee has been charged with carrying out pre-legislative
scrutiny of the bill. The committee will report by 31 October 2013 (see
paragraphs 14-16 above). Further, the Committee of Ministers is actively
supervising the steps taken by the United Kingdom authorities to implement the
Court’s rulings in Hirst and Greens and M.T. It will next assess
the position in September 2013 (see paragraph 15 above).
In light of these developments and given that
the Court has already delivered two rulings finding the respondent State to be
in violation of Article 3 of Protocol No. 1 (Hirst and Greens and
M.T.), there is nothing to be gained from examining applications concerning
future elections at this time. If amending legislation is not brought into
force prior to any future elections to the “legislature”, it will be open to
applicants to lodge, within six months of the date of the election, a new
application with the Court.
. In
these circumstances, the Court concludes that the applicants’ complaints are
premature and must be rejected pursuant to Article
35 § 4 of the Convention.
F. Other complaints
The applicants also complained under Articles 6
and 13 of the Convention about their access to legal aid and the availability
of effective remedies. Having regard to its findings in Greens and M.T.,
cited above, §§ 90-92, and in the light of all the material in its
possession, the Court finds that these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the Convention
or its Protocols.
It follows that the complaints are manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Françoise Elens-Passos Ineta
Ziemele
Registrar President
