"(i) A Declaration under section 4 of the Human Rights Act 1998, that section 12 of the Political Parties, Elections and Referendums Act 2000 is incompatible with Article 10(1) of the European Convention of Human Rights read in conjunction with Article 14.

(ii) A Declaration under section 4 of the Human Rights Act 1998, that section 12 of the Political Parties, Elections and Referendums Act 2000 is incompatible with Article 3 of protocol 1 to the European Convention of Human Rights read in conjunction with Article 14."

Mr Seamus Treacy QC and Ms Karen Quinlivan, appeared on behalf of the applicant while Mr Declan Morgan QC and Mr Paul Maguire were instructed on behalf of the respondent, the Lord Chancellor's Department. I am grateful to both sets of counsel for their well prepared skeleton arguments as well as for their oral submissions which were both carefully reasoned and succinct.

The relevant statutory provisions

"12-(1) For the purposes of this section –

(a) 'A policy development grant' is a grant to a represented registered party to assist the party with the development of policies for inclusion in any manifesto on the basis of which –

(1) candidates authorised to stand by the party will seek to be elected to an election which is a relevant election for the purposes of Part 2, or

(2) the party itself will seek to be so elected (in the case of such an election for which the party itself maybe nominated); and

(b) a registered party is 'represented' if there are at least two Members of the House of Commons belonging to the party who –

(1) have made and subscribed the Oath required by the Parliamentary Oaths Act 1866 (or the corresponding affirmation), and

(2) are not disqualified from sitting or voting in that House."

The remainder of section 12 provides for recommendations to be made to the Secretary of State by the Electoral Commission for the terms of a scheme for the making of policy development grants, which would include specifying the parties eligible for such grants and the basis upon which any such grants are to be allocated between the eligible parties.

Eligible Expenditure

Parties must use the grants solely for necessary expenditure incurred by them in meeting the costs incurred through developing policies for inclusion in any manifesto on the basis of which candidates for the represented registered party or the party itself seek election at the following elections:

• Elections to the Westminster, Scottish or European Parliament;

• Elections to the Welsh or Northern Ireland Assemblies;

• Local Government elections in England, Wales and Scotland;

• Local elections in Northern Ireland."

"I [name] do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law. So help me God."

It is this Oath that is referred to at section 12(1)(b)(i) of the Act of 2000.

"4. Declaration of Incompatibility

(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention Right.

(2) If the court is satisfied that the provision is incompatible with a Convention Right, it may make a declaration of that incompatibility."

Article 10, Freedom of Expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent the State from acquiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are proscribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 14, Prohibition of Discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Protocol 1, Article 3, Right to Free Elections

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 background to the passage of section 12 of the Act of 2000

"All that said, there is, however, a problem. It is evident that the political parties, hard pressed to meet the mounting costs of election campaigns and also the mounting cost of their day-to-day activities, are driven to concentrate their resources on campaigning and routine administration at the expense of long-term policy development. Perhaps surprisingly, this applies almost as much to the governing party as to the opposition. Ministers become pre-occupied with current crises and the sheer volume of Government business. They, and the party to which they belong, find it hard to 'think long'. The opposition parties, for their part, are also in continuous danger of being deflected from one of their principle tasks, which is to prepare for government and policy terms. The political parties themselves should be one of the major sources of ideas in British politics. They are not always so at present."

Sinn Fein

"Moreover, the Government was aware that in those circumstances Sinn Fein would be the only party, who, although eligible as a result of the number of their MPs, would be disqualified from any policy grant funding if taking an oath to the Queen was an additional requirement. The Government was also aware that Sinn Fein would be uniquely disadvantaged in those circumstances. In those circumstances I believe that this requirement to take an oath to the Queen was specifically designed to exclude Sinn Fein from eligibility for a Policy Development Grant, and as such is discriminatory and unlawful."

The submissions

Breach of Article 10

"Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system. The two rights are inter-related and operate to reinforce each other: for example, as the Court has observed in the past, freedom of expression is one of the 'conditions' necessary to 'ensure that free expression of the opinion of the people in the choice of the legislature'. For this reason it is particularly important in the period preceding an election, that opinion and information of all kinds are permitted to circulate freely."

"The Court recalls that the freedom of expression, enshrined in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress. Subject to paragraph 2 of Article 10, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'."

Breach of Article 3 of Protocol 1

"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."

In Mathieu - Mohin and Clerfayt v Belgium [1987] 10 EHRR 1 the European Court of Human Rights confirmed that, despite the use of the phrase "the High Contracting Parties", Article 3 of Protocol 1 did give rise to individual rights but that these rights are not absolute and there was room for implied limitations. The court recognised that the Contracting States have a wide margin of appreciation, given that their legislation on these matters varies from place to place and from time to time and stated, at paragraph 54:

"Electoral systems seek to fulfil objectives which are sometimes scarcely compatible with each other; on the one hand to reflect fairly faithfully the opinions of the people, and on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will. In these circumstances, the phrase 'conditions which will ensure the free expression of the opinion of the people in the choice of the legislature', implies essentially – apart from freedom of expression (already protected under Article 10 of the Convention) – the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election."

"Political parties should receive financial contributions from the State budget in order to prevent dependence on private donors and to guarantee equality of chances between political parties. State financial contributions should, on the one hand, be calculated in ratio to the political support which the parties enjoy, evaluated on objective criteria, such as the number of votes cast or the number of Parliamentary seats won, and on the other hand enable new parties to enter the political arena and to compete under fair conditions with the more well-established parties."

Article 14

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

As the learned authors of "Human Rights Law and Practice" (Lester and Pannick Butterworths 1999) point out, at page 226, para 4.14.4:

"The application of the Article does not, however, pre-suppose a breach of any of the substantive provisions of the Convention: such an interpretation would leave no practical function for Article 14. A measure which in itself conforms with the substantive Article of the Convention may violate Article 14 because it is discriminatory in nature."

Thus, even if no breach of either Article 10 or Article 3 of Protocol 1 has been established by the applicant, in consequence of the agreement between the parties that the facts of the case fall within the "ambit" of Article 3 of Protocol 1, it is necessary to consider the application of Article 14 in conjunction with Article 3 of Protocol 1. Article 5 of Protocol 1 specifically provides that:

"As between the High Contracting Parties, the provisions of Article 1, 2, 3 and 4 of this Protocol shall be regarded as additional Articles to the Convention and all the provisions of the Convention shall apply accordingly."

"29. As to the scope of the guarantee provided under Article 14, the court recalls that according to its established case law, a difference in treatment is discriminatory if 'it has no objective and reasonable justification', that is if it does not pursue a 'legitimate aim' or if there is not a 'reasonable relationship or proportionality between the means employed and aims sought to be realised'. Moreover, the contracting states enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference treatment (see eg Gaygusuz v Austria [1996] 23 EHRr 364 at 381 (para 42))".

Provided a difference of treatment upon one of the prohibited grounds is established, it is not necessary for the applicant to prove that any particular injury has resulted from that difference in treatment, if the different treatment cannot subsequently be found to be justified and while the burden is on the applicant to establish a relevant difference in treatment, if that is achieved, the burden then shifts to the public authority to justify the difference (Darby v Sweden [1990] 13 EHRR 774).

(1) Do the facts fall within the ambit of one or more of the substantive Convention provisions?

(2) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison (`the chosen comparators') on the other?

(3) Were the chosen comparators in an analogous situation to the complainant's situation?

(4) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved? The learned Lord Justice suggested that, should the answer to any of the four questions be No, the claim would be likely to fail and it would, in general, be unnecessary to proceed to the next question. This approach has been subsequently cited with approval by Lord Woolf CJ in A, X and Y and others v Secretary of State for Home Department [2002] UK HRR 1141 at 1163.

Conclusions

"Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic Government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national Court, it will give weight to the decisions of a representative legislature and a democratic Government within the discretionary area of judgment accorded to those bodies (see Lester & Pannick Human Rights Law and Practice (1999) pp 73-76 (paras 3.20 – 3.26)."

"And it is a basic premise of the Convention system that only an entirely neutral, impartial and independent judiciary can carry out the primary task of securing and enforcing Convention rights."

The independence of the courts is a fundamental component in the maintenance of the rule of law and it is to those independent courts that Parliament, in passing the HRA, has chosen to entrust the task of deciding whether a breach of any Convention right has been established. In relation to primary legislation, the constitutional balance has been specifically safeguarded by section 4 of the HRA which limits the court to making a declaration of incompatibility. In cases other than those which involve primary legislation, Parliament remains free to pass legislation nullifying or altering the effect of judicial decisions with which it does not agree.

"The aim must be established by the State, but the onus is on the applicant to disprove proportionality."

On the other hand in his work "European Human Rights Law" (Legal Action Group 1999) Mr Kier Starmer, at page 687, para 9.10, expresses the view that:

"The burden is on the applicant to establish a difference in treatment; it then shifts to the State Authority in question to justify that difference."

In a section headed "Objective and Reasonable Justification for Differential Treatment" Lester and Pannick in "Human Rights Law and Practice" (Butterworth 1999) state, at para, 4.14.15, page 230;

"A difference in treatment will held to be discriminatory (contrary to Article 14) if it has 'no objective and reasonable justification'. In order to prove such justification, the respondent Government must show that the difference in treatment pursues a 'legitimate aim', and that there is a 'reasonable relationship of proportionality between the means employed and the aim sought to be realised."

At paragraph 4.14.17, the learned authors of this work point out that a claim of justification by a State may well fail if it is based upon generalisations without objective evidence in support. In the circumstances, it seems to me that, where a prima facie breach of a Convention right, in this case discrimination contrary to Article 14, has been established it is a matter for the State in question to provide the appropriate justification of the means by which it seeks to obtain its chosen end.

(i) Are the means suitable? – Are the means rationally connected with the legitimate aim in that they are not arbitrary, unfair or based on irrational considerations.

(ii) Are the means chosen necessary to accomplish the legitimate aim or is there a less restrictive alternative?

(iii) Has the State advanced "relevant and sufficient" reasons in support of the particular means chosen?

(iv) Do the means chosen impose an excessive degree of disadvantage upon the individual concerned?

(a) The legitimate aim sought to be achieved by section 12 of the Political Parties, Elections and Referendums Act 2000, is the allocation of proportional funds to assist with the development of long-term political policies by those political parties with at least two members elected as representatives to the House of Commons and restricted in their ability to develop such policies because of the demands made upon their time and resources by their activities at Westminster. The four elected representatives of Sinn Fein do not take their seats in the House of Commons or participate in the daily debate and business there but they do attend the Palace of Westminster and avail themselves of the facilities afforded to MPs including office accommodation, staff allowances, research facilities, travel allowances, broadcasting services and the facility of making informal contact and communication with other MPs in the interests of their constituents. No attempt whatever has been made by the respondent to ascertain whether involvement to this extent in the "day-to-day, hurly-burly of the political agenda" may restrict the party's ability to develop policies.

(b) Instead of attempting to measure in some way the actual degree of commitment to and involvement in political activity at Westminster by the parties represented there, the respondent has chosen to apply the criterion of taking the Oath required by the Parliamentary Oaths Act 1866, presumably, because failure to take the Oath ultimately prevents a Member from taking his or her seat. However, a party might well have two or more members who are prepared to swear the Oath but who spend relatively little time in the "hurly-burly" of daily political life in the House of Commons. No evidence was placed before the court to establish that such an exercise was impossible or impracticable and no discussion or consideration of this issue is contained in the Hansard excerpt or the affidavit of the respondent the sponsor of the legislation. Neither document contains any explanation as to how the Oath came to be chosen as the relevant criterion.

(c) In short, in relation to Section 12, there was no equivalent of the extensive parliamentary scrutiny which was referred to by Lord Woolf CJ in R(S) v Chief Constable of South Yorkshire Police [2002] 1 WLR 3223 at 3236.

(d) It seems clear from the excerpt from Hansard, that the decision of Parliament to impose the requirement to take the Oath was taken in the knowledge that Sinn Fein was the only party whose members would not comply with such a requirement as a matter of principle while it appears that at least some Members of the House of Commons, with republican, as distinct from Irish republican, beliefs, resent the requirement to take the Oath but are prepared to "tell a lie" to Parliament and take an Oath that they regard as "meaningless".

(e) Parliament itself appears to have recently reconsidered the significance of the Oath. On 14^th May 1997, the Speaker of the House of Commons extended the requirement of taking the Oath to the services and facilities of the House, thereby excluding the Sinn Fein Members. However this decision has subsequently been reversed.

(f) The Neill Committee neither required nor suggested that PDGs should be restricted to those parties whose elected members were required to take the Oath.

(g) Apart from the fact that its outcome has subsequently been voluntarily reversed by Parliament itself, there seems to me to be many distinctions between this case and the case of McGuinness v UK. For example, McGuinness concerned the personal use of the services and facilities by the Sinn Fein representatives as opposed to the availability of funds to the political party for long-term policy development, McGuinness was concerned with Article 10 rather than Article 3 of the First Protocol and Article 14, in McGuinness the domestic court had found that the impugned action had been taken by the Speaker in exercise of his power to regulate the internal arrangements of the House of Commons, whereas this case concerns a piece of primary legislation, and, while the case was decided subsequent to the signing of the document in April 1998, there does not appear to have been any reference in McGuinness to the legitimacy accorded to the differing political aspirations in Northern Ireland by the signatories to the Belfast Agreement.

None of the above factors has persuaded me that this is a decision to which the court should extend any significant degree of deference in the circumstances.