FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Nimmo Smith Lord Eassie	[2007] CSIH 45 P694/07   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, Coatbridge)

Alt: Cullen, Q.C., Mure; Solicitor for the Scottish Ministers.

The Advocate General: Moynihan, Q.C.; Solicitor to the Advocate General for Scotland

 

27 April 2007

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 Scotland he was released from custody on licence in June 1999. In January 2003 he pled guilty to a further contravention of section 4(3)(b) of the 1971 Act, namely, being concerned in the supplying of cocaine, another Class A drug. For this offence he was sentenced in February 2003 to six and a half years imprisonment. As a long-term prisoner he was eligible for consideration by the Parole Board for Scotland for release on licence at the halfway point of his sentence. Following a recommendation by the Board, to which the Scottish Ministers were obliged to give effect, the reclaimer was released on licence with effect from a date in May 2006, under section 1(3) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. The licence contained several conditions with which the reclaimer was required to comply. One such condition required that he "be of good behaviour and shall keep the peace". In February 2007 the reclaimer appeared at a sheriff court on a petition which specified two charges against him, namely, further contraventions of section 4(3)(b) of the 1971 Act, involving cocaine and diamorphine. The dates of the alleged contraventions included the period between May 2006 and February 2007 when the petitioner was on licence in the community. It had been estimated by the Scottish Crime and Drug Enforcement Agency in respect of these charges that the reclaimer had been concerned in the supplying of Class A drugs with a "street" value of more than £2 million. The reclaimer denies these charges.

[2] On 27 February 2007 the Scottish Ministers served on the reclaimer a decision revoking his licence and recalling him to prison. Since then the reclaimer has been detained as a convicted prisoner in pursuance of that recall. The decision to revoke the licence and to recall the reclaimer to prison was taken at the instance of the Scottish Ministers purportedly in pursuance of their power under section 17(1)(b)(ii) of the 1993 Act to take such action where revocation and recall are, in their opinion, "expedient in the public interest and it is not practicable to await [a recommendation by the Parole Board to do so]". The reasons given by the Scottish Ministers in the relative revocation of licence were:

"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 England), there had been a violation of Article 3 of the First Protocol. In Smith v Scott 2007 SLT 137 the Registration Appeal Court gave effect as a matter of domestic law to Hirst v United Kingdom (No.2). It held, having regard to section 3(1) and to the decision in Hirst, that no election in the United Kingdom to any legislature would be compatible with the Convention; the Scottish Parliament was, it held, such a legislature. The court made a declaration that the terms of section 3(1) of the Representation of the People Act 1983 were incompatible with the appellant's rights under Article 3 of the First Protocol.

[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 3 May 2007. The reclaimer appears in the Register of Electors for a constituency in Glasgow. Section 3(1) of the Representation of the People Act 1983 (as amended) provides that:

"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 Scotland,

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 3 April 2007. Argument was heard over that and the succeeding day when the Lord Ordinary refused the petition. The reclaiming motion was heard before us on 24 and 25 April. At the conclusion of the discussion we adjourned until 27 April to consider our decision. On that date we refused the reclaiming motion and adhered to the Lord Ordinary's interlocutor, intimating that we would subsequently give our reasons in writing for that decision. That we now do.

 

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 Montgomery v H.M. Advocate 2001 SC (PC) 1, especially per Lord Hope at page 18 and to Millar v Dickson 2002 SC (PC) 30. The views expressed by Lord Bingham of Cornhill at paras.[29]-[30] of the latter case (on the argument based on section 57(3) of the Scotland Act) were, it seemed, without reference to section 6(2)(b) of the Human Rights Act and accordingly questionable. The observations made by Lord Hope at paras.[48]-[51] were in point. Reference was also made to Brown v Stott 2001 SC (PC) 43, per Lord Bingham at page 47C, per Lord Steyn at page 68A-B, per Lord Hope at pages 68-70, per Lord Clyde at page 79G-H and per Lord Kirkwood at page 83B. These were endorsements of Lord Hope's (as against Lord Hoffmann's) approach in Montgomery v H.M. Advocate. Given the interpretative requirements of section 3 of the Human Rights Act (see Ghaidan v Godin-Mendoza [2004] A.C. 557) a broad interpretation of "incompatible" should be adopted. The inconsistency here with the Convention right was that the revocation produced the result of imprisonment upon which a disenfranchisement immediately had effect. European authorities supported the proposition that a foreseeable consequence of an act might render the act incompatible. Reference was made to Soering v United Kingdom [1989] 11 EHRR 439 at para.86 - see also Montgomery v H.M. Advocate per Lord Hope at page 18 and Millar v H.M. Advocate per Lord Hope at para.[51]. The Lord Ordinary had failed to give effect to that proposition. He had also misdirected himself in failing to recognise and give effect to the brocard ubi ius, ibi remedium. It was irrelevant that any Convention-compatible restriction of the franchise might disenfranchise a person such as the reclaimer - see the history of the applicant in Hirst. It mattered not that success for the reclaimer might give rise to public consternation. In this case, if there were a concern about public safety, the reclaimer could have been remanded in custody in respect of the outstanding charges where, as an untried prisoner, he would be entitled to vote.

[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 Clyde at paras.[16]-[17] and per Lord Rodger at para.[35]). Reference was also made to Flynn v H.M. Advocate per Lord Rodger at para.[89]. The question was whether the applicable Convention right had been violated by the act of the Scottish Ministers. This was how the Lord Ordinary had approached the matter. That approach was correct. The legal responsibility for the state of affairs complained of did not lie with the Scottish Ministers. The franchise was a reserved matter (Scotland Act 1998, Schedule 5, Part IIB3); the conduct of elections was also reserved; the date of the election was set by a statute passed by the United Kingdom Parliament (Scotland Act 1998, section 2(2)); only the United Kingdom Parliament could alter section 3 of the Representation of the People Act 1983. The issue was not the same as if a complaint had been made to the European Court of Human Rights. There the respondent would be the United Kingdom Government and the Court would not be concerned with internal governmental responsibilities. Thus, cases such as Soering v United Kingdom were irrelevant. The Lord Ordinary had correctly distinguished "the foreign cases" referred to and explained in R (Ullah) v Special Adjudicator [2004] 2 AC 323. The practical result of the reclaimer's argument, if correct, would be that the public interest would be elided when consideration was being given by the Scottish Ministers to exercising their power of recall under section 17 of the 1993 Act or their implementation of recall recommended by the Parole Board under that section. Further, the Lord Advocate would be unable to address bail applications on their true merits. Similar distortions would arise in relation to the making by a prosecutor of a motion for sentence following a conviction. The argument advanced by the reclaimer based on section 57(3) of the Scotland Act 1998 (as read with section 6 of the Human Rights Act 1998) had been negatived by the Privy Council (Millar v Dickson, per Lord Bingham at paras.[29] - [30], per Lord Hope at para.[69] and per Lord Clyde at para.[84]). In R v Kansal (No.2) "given effect to" was held to be applicable where the prosecutor was doing something which he had been authorised to do. It was necessary to strike a fair balance between the general interest of the community and the personal rights of the individual (Attorney General's Ref. (No.2 of 2001) [2004] 2 AC 72, per Lord Bingham at para.9). The reclaimer's argument acknowledged no such balance. Rather, it gave rise to absurd results. It would also tend to undermine Parliamentary democracy rather than to give effect to it. There was no "nexus" between the act complained of and the right said to be infringed. Reference was made to R v Secretary of State, ex partibus Toner and Walsh [2007] NIQB 18, per Gillen J. at para.9(viii)(c). An appeal against that decision had been refused by the Court of Appeal without a written opinion being issued. The remedy sought by the reclaimer was liberation (apparently without restriction). The grant of such a remedy would be wholly against the public interest. In matters of judicial review the court always had a discretion as to remedy (Clyde and Edwards - Judicial Review, para.23.31). The petitioner's complaint about disenfranchisement had been satisfactorily addressed by the decisions in Hirst and Smith v Scott.

[10] The Advocate General, on behalf of the Secretary of State for Scotland, submitted that the reclaimer's approach was misconceived. It failed to recognise the sharp distinction between devolved and reserved competencies. The powers of the Scottish Ministers did not extend into reserved matters. Their acts were not to be tested by reference to reserved issues over which they had no control. The Scottish Ministers had, for the reasons given in their decision letter, exercised the power conferred on them by section 17 of the 1993 Act. The exercise of that power might in appropriate circumstances engage Articles 5 or 8 but that did not mean that other Convention rights, such as that under Article 3 of the First Protocol, were also engaged. Issues such as those raised in R v H.M. Advocate or in Brown v Stott were concerned with matters lying exclusively within devolved competency. The reclaimer's approach ignored the distinctions recognised in Somerville v Scottish Ministers 2007 SC 140 at para.42. Reference was also made to McIntosh, Petitioner 2001 SC (PC) 89, per Lord Bingham at para.[12]. Although the line between reserved and devolved competencies might on occasion be difficult to draw, there were no shared competencies. What the reclaimer was seeking to do was to circumvent the protection given by section 4(6) of the Human Rights Act to United Kingdom legislation in the reserved area by having regard to section 57(2) of the Scotland Act. His true complaint was of the incompatibility of section 3 of the Representation of the People Act 1983 with his Convention right. That had already been appropriately addressed. The reclaiming motion should be refused.

[11] In further submissions Mr O'Neill emphasised that the Scotland Act was a constitutional statute based on judicial supremacy. This was made plain by the vires control. Convention rights, like Community rights, had primacy. Parliamentary sovereignty was not preserved where the act complained of was that of the Scottish Ministers and the right infringed was a Convention right. The present proceedings were the legal cost of the failure of the Government to act expeditiously following the decision in Hirst. Imprisonment might engage a number of rights. The mere fact that the reclaimer was, by way of remedy, seeking liberation did not mean that it was Article 5 which was engaged. The act of the Scottish Ministers (in recalling him to prison) had deprived the reclaimer of his vote. If the respondents were correct, there was created a "black hole" of legal irresponsibility. The reclaimer was a victim of the act of the Scottish Ministers. Reference was made to Ghaidan v Godin-Mendoza. The control being one of vires, the remedy was reduction of the ultra vires act, with the relative ancillary orders. Reference was made to R v H.M. Advocate, per Lord Hope at paras.[47] and [62]. A declarator was not enough.

 

Discussion

[12] In Hirst v United Kingdom (No.2) the European Court of Human Rights held that Article 3 of the First Protocol to the Convention guaranteed individual rights and that an automatic blanket ban on convicted prisoners voting constituted a violation of the rights of the applicant, a person serving life imprisonment for manslaughter. As to remedy, the court held that a finding of a violation itself constituted just satisfaction for the applicant; no monetary award was made. In Smith v Scott the Registration Appeal Court, having found, in an appeal by stated case from the sheriff court, that section 3(1) of the Representation of the People Act 1983 could not be "read down" so as to render it Convention-compliant, made a declaration of incompatibility, in terms of section 4(2) of the Human Rights Act 1998, between section 3(1) of the 1983 Act and Article 3 of the First Protocol to the Convention. The appellant in Smith had by the date of the hearing of the appeal completed his sentence. No question of any further remedy arose.

[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 (Scotland) Act 1993. The reasons given for taking that course of action have been set out in paragraph [2] above. Subject to the issue of compatibility with Article 3 of the First Protocol, it is not suggested that that action was otherwise than lawful and appropriate in the circumstances. On the narrative given the reclaimer's liberty would give rise to a significant risk to the public.

[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 Scotland a court may not, on the conviction of an accused person, proceed to sentence unless the Lord Advocate (or the prosecutor acting on his behalf) moves the court, expressly or implicitly, to do so. A possible consequence of the reclaimer's argument is that a prosecutor would be disabled from moving for sentence, in any circumstances where a determinate term of imprisonment was a competent outcome, so long as section 3(1) of the 1983 Act remained unamended - since to do so would be to do an act which in the result violated the convicted person's rights under Article 3 of the First Protocol.

[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 Montgomery v H.M. Advocate the issue was whether the prosecutor's act in indicting the several accused and in continuing with the proceedings would involve a breach of their rights to a fair trial; Lord Hope at page 18 speaks of "a correlative obligation on the State". In each of these examples there was a close connection between the act complained of and the identified Convention right. Here, in our view, there is no such close connection. The act of the Scottish Ministers in recalling on otherwise proper grounds a convicted person to prison is far removed from the right to vote in free elections. It is also not insignificant, in our view, that, in the examples cited, the agent of the State who was the alleged violator of the Convention right (the prosecutor) had a responsibility in the area of the Convention right in question (the right to a fair trial within a reasonable time). Whereas in a question before the European Court of Human Rights it may be immaterial which agent of the State is the violator, in a question of incompatibility under section 57(2) one would not, at least ordinarily, expect that the incompatible result was in an area over which the actor had no power or influence. The suggestion in Clayton and Tomlinson - Law of Human Rights at para.5.120 that a two-stage process, first of relevancy (or applicability - see Harrow London Borough Council v Qazi, per Lord Hope at para.[47]) and secondly of breach, is necessary in order to assess whether the actions of the public authority are unlawful, seems sound, and pertinent also to acts of the Scottish Ministers said to be incompatible, under section 57(2), with Convention rights. On the first aspect the court must, as the authors say, make its own assessment.

[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.