Ex-pats challenge to the EU referendum voting rules

28 April 2016 by David Hart KC

Schindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 957, Divisional Court 28 April 2016 – read judgment

An interesting, albeit unsuccessful, challenge to the rule which prohibits expatriates who were last registered to vote in the UK more than 15 years ago from voting in the forthcoming referendum on EU membership.

Mr Schindler (now 95) has lived in Italy since 1982, but has remained throughout a UK citizen. So is Ms MacLennan, who has worked in Brussels as an EU lawyer since 1987. Neither has dual nationality. They said that the 15 year rule is an unjustified restriction of the rights of freedom of movement under EU law. They pointed to the fact that if the UK leaves the EU, they would end up without rights of abode in their current countries, and thus they had a particular interest in the outcome of the referendum.

The case raised four issues:

(1) Does section 2 of the EU Referendum Act 2015 fall within the scope of EU law?

(2) Is section 2 of the 2015 Act a restriction on the rights of free movement enjoyed by the claimants as EU citizens?

(3) If section 2 of the 2015 Act is such a restriction is it objectively justified as a proportionate means of achieving a legitimate objective?

(4) Have the claimants delayed in bringing their claim with the result that they should not be entitled to any remedy?

The claimants succeeded on (1). The Government argued that a domestic law provision about domestic voting fell outside the scope of the economic and citizenship rights of free movement under EU law. But existing precedent was against them. They sought to distinguish precedent (Preston on the same rule in Parliamentary elections) on the basis of Article 50(1) TEU which conferred the right on member states to withdraw from the EU. So, the argument went, that is solely a matter for domestic law. In a strange twist to the argument, they said

it would be surprising if EU law were to constrain the decision by the United Kingdom whether it wishes to be bound by EU law. Accordingly, they submit that it is only once a decision has been taken to leave the EU that EU law, in the shape of Article 50(2)-(5) TEU applies in order to determine the procedure and timescale for disengagement.

The Divisional Court was unimpressed. In principle, the manner in which the UK exercises its sovereign competence in this regard is capable of engaging EU law. A member state must have regard to the impact of its exercise of that competence upon fundamental rights under EU law.

The claimants fared less well on (2). They said that their disenfranchisement in the EU referendum was a penalty against citizens of the United Kingdom who have exercised their rights of free movement and so violated their rights as EU citizens. The 15 year rule disadvantaged them for having exercised those rights and discouraged them from continuing to exercise their rights by requiring them to return home to the United Kingdom in order to be able to vote.

The Court thought that the 15 year rule was not liable to restrict free movement. It said that it was totally unrealistic to suggest that the rule (and in particular disenfranchisement in a one-off referendum) could have the effect of deterring or discouraging anyone considering whether to settle or remain in another Member State. On this point, it placed heavy reliance on Preston again which could not be distinguished.

On these grounds, the claim failed.

Under (3), the Court went on to determine that, even if the rule were to be a restriction on the rights of free movement, it could be objectively justified as a proportionate means of achieving a legitimate objective. The claimants’ strongest point was that their rights to live and work in other member states may be directly affected by the outcome of the referendum. But this was outweighed by the fact that the legitimate aim of the law was to test the strength of a citizen’s links with the UK over a significant period of time. The Court also decided that Strasbourg authority on Parliamentary elections (under Article 3 of Protocol 1) supported this, including a claim brought by Mr Schindler (here). The ECtHR in Shindler explained that there was

 no consensus generally within the Council of Europe about non-resident voting rights or the time limits for the exercise of those rights. National rules reflect the need to ensure both citizen participation and knowledge of the particular situation and vary according to the historical and political factors peculiar to each state. Contracting states therefore enjoy a wide margin of appreciation.

Hence, the Divisional Court thought that  liability to be affected by the consequences of an election is only one of a number of factors taken into account;  whatever the outcome of the referendum, the legal, economic and social consequences are likely to be at least as great for those British citizens resident in the United Kingdom as for those resident abroad. In addition, it was particularly important to respect the legislative choices made by the Government on the constitutional procedures bearing on the potential right to withdraw under Article 50(1) TEU.   So the test of closeness of connection contained in the 15 year rule could be objectively justified.

This justification was not affected by recent pronouncements by the Government that the 15 year rule was indeed arbitrary and that the Government was committed to its repeal. As the Court pointed out, it was not arbitrary “in any legally significant sense”, as any bright-line rule could be so criticised, and evaluation of individual cases would be totally impracticable.

Issue (4) was delay. In non-EU cases, one can argue that delay even within the 3 month period laid down in CPR 54.5(1) may disable a claim. But as the Divisional Court pointed out, an additional promptness requirement is incompatible with EU law.

Conclusion

An unsurprising result given authorities such as Preston on the 15 year rule in domestic elections which survived similar challenges. But one cannot help being a bit sorry for Mr Shindler, a World War II veteran who continues to pay taxes to the UK taxman some 35 years after last voting in the UK, and wishes to live out his days in Italy (where he fought during that war).