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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> XY v The Scottish Ministers & Ors [2007] ScotCS CSIH_45 (27 April 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSIH_45.html Cite as: [2007] ScotCS CSIH_45, [2007] CSIH 45 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord PresidentLord Nimmo SmithLord Eassie |
[2007] CSIH 45P694/07 OPINION OF THE COURT delivered by LORD
PRESIDENT in Reclaiming Motion by XY Reclaimer; against THE SCOTTISH MINISTERS,
THE LORD ADVOCATE AND THE SECRETARY OF STATE FOR SCOTLAND Respondents: _______ |
Act: O'Neill, Q.C., Barne; Balfour &
Manson (Taylor & Kelly,
Alt: Cullen, Q.C., Mure; Solicitor for
the Scottish Ministers.
The Advocate General: Moynihan,
Q.C.; Solicitor to the Advocate General
for
The circumstances
[1] The reclaimer
was in July 1997 convicted of being concerned in the supplying of Class A
drugs, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. He was sentenced to imprisonment for four
years. Following a recommendation by the
Parole Board for
[2] On
"Breach of Condition 6 of your
release licence which requires you 'to be of good behaviour and keep the
peace'. You have been charged with
offences contrary to section 4(1) of the Misuse of Drugs Act. It is alleged that you have been concerned in
the supply of Diamorphine and Cocaine, both Class A drugs. These charges relate to offences allegedly
committed over a period that included the time when you have been on licence in
the community.
Scottish Ministers consider that this
behaviour, when viewed in the context of your offending behaviour, indicates
that you present an unacceptable risk to the safety of the public and that it
is expedient in the public interest that your licence should be revoked and you
should be recalled to custody."
[3] The reclaimer
challenges the decision of the Scottish Ministers, maintaining that it was ultra vires by virtue of
section 57(2) of the Scotland Act 1998.
He seeks production and reduction of it and "an order for [his]
liberation from custody ... under and in terms of section 47(1) of the Court
of Session Act 1988". The basis of that
challenge is an allegation that to revoke the reclaimer's licence and to recall
him to prison was in contravention of his rights under Article 3 of the
First Protocol to the European Convention on Human Rights and Fundamental
Freedoms. That Article 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."
[4] In Hirst v United Kingdom (No.2) (2006) 42 EHRR 41 the European Court of Human
Rights, having noticed that it had previously established that Article 3
of the First Protocol guaranteed individual rights, including the right to vote
and to stand for election, held that an automatic and indiscriminate blanket
restriction on voting, applying to all convicted prisoners, irrespective of the
length of their sentences and irrespective of the nature or gravity of their
offences and their individual circumstances, must be seen as falling outside
any acceptable margin of appreciation.
It accordingly held, regard being had to the terms of section 3(1)
of the Representation of the People Act 1983 (as amended) that, in respect of
the applicant (a British citizen serving a term of imprisonment in
[5] By virtue of
section 2(2) of the Scotland Act 1998 an ordinary general election falls
to be held on the first Thursday in May of the fourth calendar year following
that in which the previous ordinary general election was held. In this year that Thursday fell on
"a convicted person during the time
when he is detained in a penal institution in pursuance of his sentence ... is
legally incapable of voting in any parliamentary or local government election."
The reclaimer is a person to whom that provision applied at
the date of the hearing of this reclaiming motion.
[6] Section 57
of the Scotland Act 1998 provides:
"...
(2) A
member of the Scottish Executive has no power ... to do any ... act, so far as the
... act is incompatible with any of the Convention rights...
(3) Subsection (2)
does not apply to an act of the Lord Advocate -
(a) in prosecuting any offence, or
(b) in his capacity as head of the systems
of criminal prosecution and investigation of deaths in
which, because of subsection (2)
of section 6 of the Human Rights Act 1998, is not unlawful under
subsection (1) of that section."
Subsections (1) and (2) of section 6 of the Human Rights Act
1998 are in these terms:
"(1) It
is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
(2) Subsection
(1) does not apply to an act if-
(a) as
the result of one or more provisions of primary legislation, the
authority could not have acted
differently; or
(b) in
the case of one or more provisions of, or made under, primary
legislation which cannot be read or
given effect in a way which is compatible with the Convention rights, the
authority was acting so as to give effect to or enforce those provisions."
[7] The
reclaimer's petition for judicial review of the Scottish Ministers' decision
came before the Lord Ordinary (Lord Malcolm) on
Submissions of
counsel
[8] Mr O'Neill
for the reclaimer submitted that, standing the declarator of incompatibility
made in Smith v Scott and the fact that the Scottish Ministers had no defence such
as that provided to public bodies by section 6(2) of the Human Rights Act
1998, their decision was ultra vires
under section 57(2) of the Scotland Act 1998 and fell to be reduced
accordingly. The Lord Ordinary had taken
an unduly narrow view of what was, under section 57(2), "incompatible"
with Convention rights. He had also
erroneously rejected the "but for" test of causal relationship between the act
complained of and the Convention right relied on. But for the Scottish Ministers' decision to
revoke the reclaimer's licence and recall him to prison his Convention right
under Article 3 of the First Protocol would not have been violated. As to remedy, reduction of the Scottish
Ministers' decision and the consequential order for his liberation were
inevitable. The Lord Ordinary had been
wrong to accept the proposition that, if the reclaimer was correct, serious
questions would arise as to the power of a court to impose a discretionary
sentence of imprisonment - notwithstanding the concession to that effect made
by counsel then appearing for the reclaimer.
The prosecutor in moving for sentence and the court in passing such
sentence were, it was submitted, protected by section 57(3) of the
Scotland Act 1998, as read with section 6(2)(b) of the Human Rights Act
1998. In moving for sentence (where
imprisonment was a competent sentence) the prosecutor was "giving effect" to
section 3 of the Representation of the People Act 1983. Section 6(2)(b) was to be read broadly
and purposively. The Scottish Ministers,
however, in the exercise of their powers, had no such defence. Reference was made to R v Kansal (No.2) [2002] 2 AC 69, per Lord Hope of Craighead
at paras.85-88; Aston Cantlow PCC v Wallbank
[2004] 1 AC 546, per Lord Nicholls
of Birkenhead at paras.17-19, per Lord
Hobhouse of Woodborough at para.93, per Lord
Scott of Foscote at para.137 and per Lord
Rodger of Earlsferry at para.172; R (Hooper) v Work and Pensions Secretary [2005] 1 WLR 1681, per Lord Nicholls at paras.3-6, per Lord Hoffmann at paras.41-52, per Lord Hope at paras.70-82, per Lord Brown of Eaton-under-Heywood at
para.120. Having regard to the immediate
and unavoidable effect of the revocation of the licence on the reclaimer's
Convention right under Article 3 of the First Protocol, that right was
necessarily infringed by that revocation.
It was inappropriate to read "incompatible" in section 57(2)
narrowly. That word was used elsewhere
in the Scotland Act and in the Human Rights Act where a broad interpretation
was appropriate. It was irrelevant that
the matter of franchise was within a reserved competency. It was unnecessary that the public authority
in question should have an obligation correlative to the Convention right. Reference was made in that respect to
[9] Mr Cullen,
for the Scottish Ministers and the Lord Advocate, submitted that a fundamental
aspect of the background to this case was that the statutory provision which
had been declared (in Hirst and in Smith v Scott) to be incompatible with Article 3 of the First Protocol
was a provision of the United Kingdom Parliament in a reserved area. The act of the Scottish Ministers complained
of in these proceedings was, however, a decision made in furtherance of
legislation in the devolved area. It was
the exercise of a power conferred on the Scottish Ministers by section 17
of the 1993 Act to revoke the licence of a long-term prisoner and to recall him
to prison where, in their opinion, it was expedient in the public interest to
do so and it was not practicable to await a recommendation to that effect by
the Parole Board. It was a decision
taken in the interest of public safety.
The history and circumstances of the reclaimer demonstrated the
appropriateness of prompt revocation of his licence. In addressing the question of incompatibility
it was necessary before looking at any question of breach, to identify what
Convention right or rights were truly "in play". That was the issue of relevancy (or
applicability) identified by Lord Hope in Harrow
London Borough Council v Qazi
[2004] 1 AC 983 at para.47. Put otherwise,
was Article 3 of the First Protocol "engaged" by the Scottish Ministers'
act of revoking the reclaimer's licence?
In Mr Cullen's submission it was not. Reference was also made to Clayton
and Tomlinson - Law of Human Rights,
para.5.120 and to Flynn v H.M. Advocate 2004 SC (PC) 1 per Lord Rodger at para.[89]. Any complaint which the reclaimer had in
respect of a violation of his right under Article 3 of the First Protocol
had been satisfied by the declarator of incompatibility made in Smith v Scott. Whatever might be
said about Articles 5 and 8 of the Convention, it was highly artificial to
suggest that Article 3 of the First Protocol was engaged by the act of the
Scottish Ministers. The reclaimer's
complaint was not within the "ambit" or scope of the latter Article. Reference was made to M v Secretary of State for
Work and Pensions [2006] 2 AC 91, per
Lord Bingham at paras.3-4, per Lord
Nicholls at paras.13-14 and per Lord
Walker of Gestingthorpe at paras.56-7.
It was fundamentally undemocratic that a person such as the reclaimer,
who had committed serious crimes and who under a Convention-compliant franchise
might well be disenfranchised, should on a complaint based on Article 3 of
the First Protocol be liberated, apparently without restriction. The concept of incompatibility had been
likened to inconsistency (R v H.M. Advocate 2003 SC (PC) 21, per Lord Steyn at para.[7], per Lord Hope at para.]50], per Lord
[10] The Advocate
General, on behalf of the Secretary of State for
Discussion
[12] In Hirst v
[13] In the present
case the reclaimer is a convicted prisoner who has not completed the sentence
of six and a half years imprisonment imposed on him in February 2003 in respect
of serious drugs offences. He had
previously been convicted of other serious drugs offences for which he had
served a sentence of four years imprisonment.
The reclaimer having been released on licence in May 2006, the Scottish
Ministers, on the basis of information that he had allegedly committed yet further
serious drugs offences, revoked the reclaimer's licence and recalled him to
prison. The act of revocation and recall
was purportedly made in exercise of the powers conferred by section 17 of
the Prisoners and Criminal Proceedings (
[14] There is no
specialty about the reclaimer's position.
If the argument advanced on his behalf is correct, the Scottish
Ministers, so long as section 3(1) of the Representation of the People Act
1983 remains in its present terms, would be disabled from recalling to prison any
long-term prisoner who had been released on licence but in respect of whom
circumstances had arisen which demanded his immediate recall to prison. Some reliance was placed by Mr O'Neill
on the circumstance that the reclaimer, who had been charged with certain offences,
might have been remanded in custody and, as a remand prisoner, have continued
to enjoy voting rights. But, for the
public prosecutor to use his power to oppose the granting of bail for the
separate purposes of the Scottish Executive would seem to be an abuse of that
power; and it would further seem
improper for a court, when considering whether or not to remand an accused
person in custody pending trial, to be influenced by any perceived embarrassment
on the part of the public authorities that incarceration by the alternative
mechanism might involve a violation of Article 3 of the First Protocol In any event, not all prisoners whose
licences are revoked are the subject of separate criminal proceedings. Non-criminal behaviour may present a clamant
basis for recall. Prisoners may also be
recalled on the recommendation of the Parole Board made under section 17
of the 1993 Act. Any implementation by
the Scottish Ministers of such a recommendation would, on the reclaimer's
argument, be ultra vires, standing
section 3(1) of the 1983 Act. These
alarming consequences require that the reclaimer's argument be given anxious
scrutiny.
[15] The
consequences may not end there. The Lord
Advocate is a Scottish Minister and his acts are, subject to certain
provisions, also subject to the vires
control provided by section 57(2) of the Scotland Act 1998. By virtue of section 57(3) that
subsection -
"does not apply to an act of the Lord
Advocate -
(a) in prosecuting any offence ...
which because of subsection (2)
of section 6 of the Human Rights Act 1998, is not unlawful under
subsection (1) of that section."
In
[16] Mr O'Neill
sought to meet this alarming prospect by relying on section 6(2) of the
Human Rights Act 1998. The prosecutor,
he argued, would in so moving for sentence be acting "so as to give effect to"
a provision of primary legislation (namely, section 3 of the 1983 Act); accordingly, section 6(1) would not
apply and, by virtue of section 57(3) of the Scotland Act 1998,
section 57(2) of that statute would not apply. We reject that argument. A contention to the same or to similar effect
was advanced in Millar v Dickson and given short shrift - see Lord
Bingham at paras.[29] - [30], Lord Hope at para.[69] and Lord Clyde at
para.[84]. Although acting so as to give
effect to a provision of primary legislation is no doubt different from acting
to enforce that provision, it involves an excessively strained interpretation
of section 6(2) to conclude that, when moving for sentence in the
circumstances figured, the prosecutor is acting "to give effect to"
section 3 of the 1983 Act.
Mr O'Neill's reliance on Lord Hope's observations at para.88 in R v Kansal
(No.2) does not, in our view, assist his argument. There, "giving effect" to the primary
legislation applied where that legislation authorised the prosecutor to do the
act in question; section 3(1) of the
1983 Act does not authorise any action on the part of a prosecutor. Although it is unnecessary for us to reach a
concluded view on this issue (and we do not do so), there is a strong argument
that the logic of the reclaimer's argument leads to the disablement, standing
section 3 of the 1983 Act, of a prosecutor moving for sentence in the
circumstances figured. This is an
additional reason for giving anxious scrutiny to the reclaimer's contention.
[17] We also
observe that the reclaimer's argument would appear to have the logical
consequence that the Scottish Ministers would be disabled from using
section 17 of the 1993 Act in any circumstances where the recall of a
convicted prisoner to custody might (or at least would be likely to) infringe
his other Convention rights (say, by reason of breach of his Article 8
right in respect of correspondence).
Such a result seems absurd, as well as dangerous.
[18] An act of the
Scottish Ministers is, by virtue of section 57(2) of the Scotland Act 1998,
beyond competence so far as that act is "incompatible" with any Convention
right. The term "incompatible" has been
likened to "inconsistent" - see R v H.M. Advocate, passim. That involves a
comparison between the act complained of and the Convention right said to be
violated. In R v H.M. Advocate, for
example, the prosecutor was acting by seeking to proceed with a prosecution in
circumstances in which, it was held, his doing so would violate the accused
person's right to trial within a reasonable time. In
[18] In the present
case the act of revocation and recall under section 17 of the 1993 Act
falls well within the ambit of the devolved competency of the Scottish
Ministers; the scope of the franchise
falls well within the reserved competency of the United Kingdom
Parliament. This is not a case where
either comes close to the boundary between the respective competencies. As Gillen J. said in R v Secretary of State, ex
partibus Toner and Walsh at para.9(viii)(c) -
"The real mischief is [the
Convention's] nexus with the 1983 Act.
It is section 3 of the 1983 legislation which is flawed and
exclusive."
The Scottish Ministers have no power to secure amendment of
that legislation. Their power under
section 17 of the 1993 Act is to act to protect the public against dangers
presented by the inappropriate continued liberty of convicted persons. In Attorney
General's Ref. (No.2 of 2001) Lord Bingham said at para.9:
"The listed rights [in the
Convention] were singled out for protection because they were recognised to be
of overriding importance. But the
Convention also recognised, implicitly and often explicitly, that 'No man is an
island'. In the exercise of individual
human rights due regard must be paid to the rights of others, and the society
of which each individual forms part itself has interests deserving of respect."
He then quoted a passage from Brown v Stott at
page 60 where he had said:
"The [European] court has also
recognised the need for a fair balance between the general interest of the
community and the personal rights of the individual, the search for which
balance has been described as inherent in the whole of the Convention."
[19] Bearing in
mind, among other considerations, the need to keep that balance, we are
satisfied that, as a matter of relevancy or applicability, Article 3 of
the First Protocol is not "engaged" by the act of the Scottish Ministers in
revoking the reclaimer's licence and recalling him to prison; thus, this act is not incompatible, within
the meaning of section 57(2) of the Scotland Act, with that Convention
right.
[20] Mr O'Neill
placed substantial reliance on the decision of the European Court in Soering v United Kingdom - in particular for the proposition that it was
necessary to have regard to the foreseeable consequences of the act, as
respects infringement of Convention rights.
But the observations made in that case must be read in context. The Convention right there under discussion
was Article 3 (the prohibition of torture) which was described as
enshrining one of the fundamental values of the democratic societies making up
the Council of Europe (para.88). At
para.90 the court said:
"It is not normally for the
Convention institutions to pronounce on the existence or otherwise of potential
violations of the Convention. However,
where an applicant claims that a decision to extradite him would, if
implemented, be contrary to Article 3 by reason of its foreseeable
consequences in the requesting country, a departure from this principle is
necessary, in view of the serious and irreparable nature of the alleged
suffering risked, in order to ensure the effectiveness of the safeguard
provided by that Article."
At para.91 the court added:
"In sum, the decision by a
Contracting State to extradite a fugitive may give rise to an issue under
Article 3, and hence engage the responsibility of the State under the
Convention, where substantial grounds have been shown for believing that the
person concerned, if extradited, faces a real risk of being subjected to
torture or to inhuman or degrading treatment or punishment in the requesting
country ..."
[21] An
individual's Convention right under Article 3 of the First Protocol (as
interpreted in Hirst) to vote and to
stand for election, while important, cannot be regarded as being of so
fundamental a character as the right not to be subjected to torture or to
inhuman or degrading treatment or punishment.
Observations made in the context of the latter cannot readily be applied
to the former. In any event, we do not
regard any test based on causation to be appropriate, in the circumstances of
this case, to the issue of compatibility.
Mr O'Neill did not specifically rely, as his predecessor in the
Outer House had done, on R (Ullah) v Special Adjudicator. It is sufficient for us to say that we agree
with the Lord Ordinary's treatment of that authority. It is not in point.
[22] Having come to
the conclusions narrated above it is unnecessary for us to express any view on
the question of remedy. Mr O'Neill
contended that, if the court was in favour of his argument as to
incompatibility, it had no alternative but to grant the remedies sought,
including an order for immediate liberation of the reclaimer. We should not be taken as acceding to that
proposition; but, if it is sound, it points to the need to examine with special
care the contentions otherwise advanced by Mr O'Neill.
Disposal
[23] For these
reasons we refused the reclaiming motion.