No voting rights in Scottish Parliament elections for prisoners who are nationals of the UK under EU law

9 November 2011

McGeoch v Lord President of the Council [2011] CSIH 67

This case is another attempt to secure voting rights for prisoners. The Petitioner is a UK national. He is currently a prisoner and has no right to vote under the Representation of the People Act 1983. He claimed that he had a directly effective right under Article 20(2)(b) of TFEU (which is concerned with elections to the European Parliament and "municipal elections") to vote in elections to the Scottish Parliament. The Inner House decided that it was clear that the right in Article 20(2)(b) was a right which only applied to citizens of the Union who are not nationals of their Member State of residence. The scope of Article 20(2)(b) or 22(1) TFEU did not apply to an "internal situation which has no link with EU law" [28]. Therefore the Inner House held that it was not obliged to make a reference to the European Court of Justice under Article 267 TFEU.

The Inner House then expressed obiter comment on whether elections to the Scottish Parliament were "municipal elections" within the meaning of Article 20(2)(b) or 22(1) TFEU. The Court considered that they were not. Municipal elections should be understood as referring to "local bodies whose responsibilities are primarily of an administrative nature, rather than a regional legislature within a state with federal or devolved arrangements for law-making". It is worth noting that Lord Reed gave the Opinion of the Court. His Lordship's judgement in AXA may form a useful background to these obiter remarks.

Ruth Crawford, QC of Axiom Advocates appeared for the Lord President in Council.
http://www.scotcourts.gov.uk/opinions/2011CSIH67.html