EU referendum - Court of Appeal upholds restrictions on expat voters

As we have highlighted in a previous alert, one of the most controversial issues during the passage through Parliament of the European Union Referendum Act 2015 (the EU Referendum Act) was the issue of the franchise. Although much of the focus was on whether 16 and 17 year olds should be allowed to vote in the referendum, the position of British citizens overseas was also debated.

On 16 March 2016, a challenge was brought to the exclusion from the franchise of British citizens who are resident abroad and have not been enrolled on the electoral register for the past 15 years. In Shindler and Anor v Chancellor of the Duchy of Lancaster and Anor two expat British citizens, who have lived in Italy and Brussels respectively for more than 15 years, argued that this restriction breached their right to free movement within the EU.

The Divisional Court dismissed the claim on 28 April. The claimants appealed to the Court of Appeal which has now also found against them.

Background

The appeal was brought by Harry Shindler MBE and Jacquelyn MacLennan.

Mr Shindler is a British national born in London in 1921. On his retirement from the British armed forces, in exercise of his free movement rights, he moved to live in Italy where he fought during World War II and has resided there ever since. His name last appeared on the electoral register in 1982.

Ms MacLennan was born in Inverness in 1961 and is also a British national. A qualified solicitor, she joined a legal firm based in Brussels in November 1987 and has lived and worked there ever since, specialising in EU competition and environmental law. Her name last appeared on the electoral register in 1987.

The respondents were the Chancellor of the Duchy of Lancaster and the Secretary of State for Foreign and Commonwealth Affairs, being the ministers with ultimate responsibility for constitutional reform and European affairs respectively.

The appellants sought to challenge the legality of section 2 of the EU Referendum Act. Section 2 sets out the franchise for the referendum on the UK's continued membership of the EU, due to be held on 23 June and, in doing so, adopts as a starting point the rules governing the franchise for UK Parliamentary elections. One of these rules is to exclude from the franchise British citizens who are resident abroad and who were last registered to vote in UK Parliamentary elections more than 15 years ago (the 15 year rule).

The claim

The appellants argued that the 15 year rule restricts their directly effective EU law right of freedom of movement in a manner that is not objectively justified as a proportionate means of achieving a legitimate objective.

They asked the court to grant a declaration to that effect with the aim of securing new legislation amending the EU Referendum Act so as to remove the 15 year rule prior to the date of the referendum.

The case raised three main issues for determination by the Divisional Court -

1. Does section 2 of the EU Referendum Act fall within the scope of EU law?
2. Is section 2 of the EU Referendum Act a restriction on the rights of free movement enjoyed by the claimants as EU citizens?
3. If section 2 of the EU Referendum Act is such a restriction is it objectively justified as a proportionate means of achieving a legitimate objective?

The Divisional Court held that section 2 of the EU Referendum Act did fall within the scope of EU law but that it did not impose a restriction on free movement rights. Even if it did, the Divisional Court held that such a restriction would be justified.

The claimants appealed to the Court of Appeal with respect to the Divisional Court's findings on issues two and three. The defendants cross-appealed the finding that the question of the franchise fell within the scope of EU law.

The Court of Appeal's decision

Does the franchise for the referendum fall within the scope of EU law?

The government's first line of defence was to argue that the franchise for the EU referendum falls entirely outside of EU law and, accordingly, the rights of free movement conferred by the EU cannot be engaged. This is because Article 50(1) of the Treaty on European Union (the TEU) - which contains the mechanism by which a Member State may withdraw from the EU - states that a Member State may withdraw 'in accordance with its own constitutional arrangements'. Those arrangements, it was argued, are those set out in the EU Referendum Act.

The Divisional Court disagreed, stating that although the UK undoubtedly has a sovereign right to determine for itself whether it wishes to remain a party to the EU treaties, and to determine for that purpose the constitutional procedures to be followed in determining that question, it does not follow that the manner in which those procedures are exercised is incapable of engaging EU law. It held that the referendum franchise did fall within the scope of EU law.

However, the Court of Appeal preferred the government's approach. It held that through Article 50(1) TEU the EU had carved out a space within which member states may adopt their own requirements in relation to taking a decision to leave the EU. It would be contrary to Article 50(1) if the provisions of another EU Treaty, such as those in relation to free movement, were able to impinge upon the constitutional requirements set by a member state in deciding whether to leave the EU. Section 2 of the EU Referendum Act does not, therefore, engage EU law.

Is the 15 year rule a restriction on EU rights of free movement?

Although the Court of Appeal held that the procedures set for the referendum were not capable of engaging EU law, it went on to consider whether - if, contrary to its finding, EU law did apply - there was any basis on which it could be maintained that the franchise was capable of interfering with any fundamental EU rights.

The right of free movement in EU law is found in the Treaty on the Functioning of the European Union which states that, subject to the conditions and limitations defined in the EU treaties -

• citizens of the EU shall have the right to move and reside freely within the territory of the Member States (Articles 20(2)(a) and 21(1)), and
• restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited (Article 49).

The appellants submitted that their exclusion from the franchise disadvantaged them for having exercised their freedom of movement rights in EU law and discouraged them from continuing to exercise those rights by requiring them to return to the UK in order to be able to vote in the EU referendum.

The Court of Justice of the EU (CJEU) has previously held that a national measure which dissuades or deters an EU citizen from exercising his or her free movement rights is a restriction which will need to be justified (Tas-Hagen). However, the main problem faced by the appellants was that the Court of Appeal had already rejected an argument that the 15 year rule - as it applied in UK Parliamentary elections - restricted rights of free movement (R (Preston) v Wandsworth London Borough Council).

In Preston, the Court of Appeal held that the assertion that the 15 year rule had a deterrent effect on the exercise of free movement rights was very difficult to demonstrate as - given the length of time involved and the vicissitudes of human life - any such assertion would be too speculative, remote and indefinite to establish a case.

The Divisional Court in Shindler had held itself bound by this authority (which it agreed with in any event) and was not persuaded by the appellants' attempts to distinguish it. Giving the judgment of the court, Lloyd Jones LJ had stated that -

'In our view it is totally unrealistic to suggest that this rule could have the effect of deterring or discouraging anyone considering whether to settle or remain in another Member State... We are unable to accept that the prospect of disenfranchisement in a one-off referendum is a factor which could influence a decision whether to settle or remain in another Member State. We conclude, therefore, that it is not a measure which requires to be objectively justified under EU law.'

The Court of Appeal agreed holding that the test in Preston was whether a restriction was liable to deter an individual from exercising his or her right of free movement, that - despite submissions from the appellants to the contrary - this test was the correct one, supported by a strong line of CJEU jurisprudence, and that it could not be said that the Divisional Court's assessment, following Preston, that the 15 year rule could not be said to have a deterrent effect was wrong.

Would the 15 year rule be objectively justifiable were it a restriction on free movement?

Given its conclusion that the 15 year rule did not restrict free movement - and in the face of the need to deliver its judgment quickly - the Court of Appeal did not consider the Divisional Court's findings as to whether or not it would be objectively justifiable were it a restriction.

The background is that a national measure restricting free movement must be objectively justified in that it must be proportionate and not unjustifiably discriminatory. To be proportionate a measure must seek to achieve a legitimate objective in a consistent and systematic manner and not go beyond what is necessary in order to attain it (Caves Krier Frères Sarl v Directeur de l'Administration de l'emploi).

Before the Divisional Court the appellants had again faced the problem that the Court of Appeal had previously considered the issue in Preston and concluded that if, contrary to its view, the 15 year rule did restrict free movement rights it was objectively justified in doing so.

A similar decision had been made by the European Court of Human Rights ('the ECrtHR') in Strasbourg in a previous challenge brought by Mr Shindler himself on the basis that the 15 year rule as applied during Parliamentary elections breached Article 3 of Protocol 1 of the European Convention on Human Rights which has been held to encompass a qualified right to vote (Shindler v United Kingdom - which itself referenced the findings on justification in Preston).

The appellants had argued, however, that the issue of justification is context specific and that the potential repercussions of the result in the EU referendum on expats residing in the EU will be of a different nature to the effect on them of a particular result in a Parliamentary election.

The respondents countered that the difference in context could not place the 15 year rule outside of the range of solutions which were within Parliament's broad margin of appreciation. The legitimate aim pursued by the 15 year rule is that of testing the strength of a citizen's links with the UK over a significant period of time. Furthermore, residence is a rational and practicable criterion for assessing the closeness of such links (and has been held to be so by the ECrtHR), the 15 year period represents a substantial opportunity for continued voting - whether in Parliamentary elections or in ad hoc referendums - and it would be impracticable to adopt a more nuanced rule which assesses closeness of links in each individual case.

The Divisional Court held that the primary judgement on a matter of such constitutional significance as the franchise for the EU referendum lies with Parliament and considerable respect must be given to the legislative choices it makes on the issue. This is particularly the case where the issue of the franchise has been kept under constant and recent review and the court outlined the various ways in which the franchise for various elections has been amended over the course of previous years. In the view of the Divisional Court, Parliament could legitimately adopt the position that electors who satisfy the test of closeness of connection set by the 15 year rule form an appropriate group to vote on the question of whether or not the UK should remain a member of the EU.

Commentary

Incompatibility with EU law is the only ground on which a UK court may hold that primary legislation should be set aside, so it is always interesting when someone seeks to mount a challenge on that basis. This is particularly so in this case, which revolves around the issue of the UK's continued membership of the EU and whether those who are exercising EU rights abroad should have a say in a decision which potentially affects the continuing availability of those rights.

It was also interesting to see the government in this case seeking to defend the principle behind the 15 year rule which it has described as arbitrary disenfranchisement in the Prime Minister's Office briefing notes which accompanied last year's Queen's speech and has pledged to scrap through a future Votes for Life Bill.

Before the Court of Appeal the appellants' case fell at the first hurdle in that it was held that the referendum franchise does not engage EU law. The Court of Appeal's interpretation and application of Article 50(1) TEU is greatly preferable to the Divisional Court's view that although the determination of the franchise is the sovereign right of the UK - and hence outside EU law by virtue of Article 50(1) - the way in which that right is exercised must comply with EU law. Such an interpretation would serve to render Article 50(1) ineffective and cannot be correct.

Even had they made it over this hurdle, the appellants would then have faced a second in the form of previous authority from the Court of Appeal that the 15 year rule does not restrict free movement. In the face of their submission that all that is required is for a measure to penalise a person for exercising the right to free movement - whether or not that actually deters the person from exercising that right - the Court of Appeal was clearly correct in finding that the test has to be deterrence. As the Divisional Court stated, it is deterrence that is the mischief which the rule seeks to prevent and which provides the justification for it.

The appellants have now appealed to the Supreme Court which will hear the issue of permission, together with the appeal if permission is granted, on Tuesday 24 May. We should expect a quick determination given that following the hearing it will be less than a month to polling day.

One of the most interesting aspects of the Supreme Court's determination will be the extent to which it deals with the comments of Elias LJ who supplemented the main judgment delivered by the Master of the Rolls with some short observations on whether, as a matter of domestic law EU law could take precedence over UK law in relation to the rules adopted to determine whether or not we leave the EU.

Put simply, EU law only has effect in the UK because section 2(1) of the European Communities Act 1972 says that it does. Elias LJ stated that the purpose of section 2(1) was 'to bind the UK to the rules of the club whilst it remains a member'. He doubted whether Parliament could have intended EU rules to be binding in relation to the question of the UK's continued membership of the club. As such, the referendum franchise is not subject to EU law because it falls outside the intended scope of section 2(1) - an issue which would become important if the Supreme Court preferred the Divisional Court's interpretation of Article 50(1) TEU. On its face it seems hard to disagree with that proposition.