CA says ex-pats cannot say yes or no to Brexit
23 May 2016
Schindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 469 20 May 2016 – read judgment
Last month, I posted here on this challenge to the rule stopping long-time expatriates from voting on the Brexit proposals. The case went swiftly to the Court of Appeal, who, today, swiftly dismissed the expats’ appeal.
The challengers said that the 15 year rule on voting was an unjustified restriction of the rights of freedom of movement under EU law, not least because if the UK were to leave the EU, they would end up without rights of abode in their current EU countries.
As I pointed out before, 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?
Scope of EU law
The CA decided that s.2 of the 2015 Act did not fall within the scope of EU law; hence the claim fell at hurdle (1), and there was no room for the EU free movement protections to be in play.
The CA differed from the Divisional Court. The CA decided that existing precedent (Preston on the 15 year rule in Parliamentary elections) did not bind the courts on the current point. Preston was to be distinguished because Preston contained no specific provision of EU law making it clear that member states could withdraw from the EU in accordance with their own constitutional rules. By contrast, in the present case, there was Article 50(1) TEU, the Treaty obligation conferring the right on member states to withdraw from the EU. So, the CA concluded, the way in which a state went about deciding to withdraw was a matter solely for domestic law. The CA thought that it was not surprising that such a sovereign decision should not be subject to EU law:
An obvious reason why a Member State might wish to withdraw is that it found such rules unacceptable and was no longer willing to be bound by them. The right of free movement is a plain example of such a rule and one which has particular resonance in the context of the proposed UK referendum. It is one thing for Member States to agree that, while they are members of the EU, they will not infringe EU law and to that extent will accept what might be described as a loss of sovereignty. It is quite a different matter for them to agree that they may only decide to withdraw from the EU if they can do so without infringing EU law. If this had been the intention of the Member States, this would surely have been expressly agreed. But they have not done so. 
And so that was the end of the challenge.
Restriction on free movement
The CA went on to consider issue (2) (was there a restriction anyway?), and it broadly agreed with the Divisional Court’s assessment. The ex-pats had said that their disenfranchisement in the EU referendum was a penalty against UK citizens who have exercised their rights of free movement by living abroad; the 15 year rule disadvantaged them and discouraged them by requiring them to return home to the United Kingdom in order to be able to vote.
Both courts thought that the 15 year rule did not restrict free movement. In this context, they relied on the domestic voting case of Preston, but the CA was not convinced that the present case was a fortiori (the stronger against the claimants), as the court below had decided. In particular the Master of the Rolls thought that the issue on a referendum may be of greater importance than the general election in issue in Preston. Despite that, the CA agreed with the Divisional Court in concluding that the 15 year 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.
The CA also rejected an attempt to mount a common law claim to vote: . This foundered on the principle that any such common law claim could not take precedence over an act of Parliament.
Kompetenz-Kompetenz (fret not, see below)
The concurring judgment of Elias LJ touched on a point, which, as he put it, was logically implicit in the FCO’s argument, but not directly advanced by either party. This was whether, as a matter of domestic law, EU law could take precedence over UK law in relation to the rules adopted by the UK to determine whether or not to leave the EU. As there was no argument about it, Elias LJ’s observations were “provisional” but interesting.
As we have seen, the FCO’s argument founded on Article 50 – a provision of EU law, said to be binding on the UK even as to the rules by which it may seek to leave the EU. The FCO was arguing that the UK had sole jurisdiction over that question, because the EU said so in Article 50. But Elias LJ had “serious doubts” as to whether EU law had precedence on this question. EU law has primacy, but only because the UK Parliament has said that it should have primacy (via the European Communities Act 1972), and not because the EU itself has said so.
I doubt whether, purely as a matter of domestic law, Parliament would have intended section 2(1) to apply so as to give primacy to EU law where the very question in issue is whether the UK should remain bound by EU law. The effect of section 2(1) is to bind the UK to the rules of the club whilst it remains a member; but I do not think it can have been intended to bind the UK to those rules when the very question is whether it should be bound by those rules. Parliament agreed to join the EU by exercising sovereign powers untrammelled by EU law and I think it would expect to be able to leave the EU in the exercise of the same untrammelled sovereign power, whether the later legislation expressly dis-applies section 2(1) or not.
So Elias LJ, with whom King LJ agreed, were doubtful as to the premise on which both parties’ cases depended, namely that EU law was paramount on the critical issue.
And my Kompetenz-Kompetenz heading? Don’t want to scare those who cannot cope with legal ideas from abroad, but it refers to a long running spat between the German Constitutional Court and the EU as to where the ultimate power resides on the question – who decides who decides?
Brexiteers and Remainers might comb this judgment for support for their respective positions. Brexiteers might say that this is a perfect example of a claim that should not have even been thought of, but for the overweening right of free movement. Remainers might counter that the reason that the CA thought that it did not fly was because of the right balance between domestic and EU sovereignty.
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