relation to the unlawful act only if he is, or would be, a victim of that
act.
(4) If the proceedings are made by way of a petition for judicial
review in Scotland, the applicant shall be taken to have title and
interest to sue in relation to the unlawful act only if he is, or would
be, a victim of that act.
….
(7) For the purposes of this section, a person is a victim of an
unlawful act only if he would be a victim for the purposes of Article
34 of the Convention if proceedings were brought in the European
Court of Human Rights in respect of that act.”
37.
In Hirst (No 2), the majority rejected a submission by the United Kingdom
Government that the Chamber “had assessed the compatibility of the legislation
with the Convention in the abstract without consideration of whether removal of
the vote from the applicant as a person convicted of a serious offence and
sentenced to life imprisonment disclosed a violation.” It said (para 72) that Hirst’s
complaint was
“in no sense an actio popularis. He was directly and immediately
affected by the legislative provision of which complaint is made and
in these circumstances the Chamber was justified in examining the
compatibility with the Convention of such a measure, without regard
to the question whether if the measure had been framed otherwise
and in a way which was compatible with the Convention, the
applicant might still have been deprived of the vote. …. It would not
in any event be right for the Court to assume that, if Parliament were
to amend the current law, restrictions on the right to vote would
necessarily still apply to post-tariff life prisoners or to conclude that
such an amendment would necessarily be compatible with Article 3
of Protocol No 1.”
This was another point on which the minority disagreed, observing the Court’s
task was “not normally to review the relevant law and practice in abstracto” and
that it was “in our opinion, difficult to see in what circumstances restrictions on
voting rights would be acceptable, if not in the case of persons sentenced to life
imprisonment” (para O-III8).
Page 22