Harry Shindler MBE and Another v Chancellor of the Duchy of Lancaster and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Lloyd Jones
Judgment Date28 Apr 2016
Neutral Citation[2016] EWHC 957 (Admin)
Docket NumberCase No: CO/1431/2016

[2016] EWHC 957 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lloyd Jones

Mr. Justice Blake

Case No: CO/1431/2016

Between:
(1) Harry Shindler MBE
(2) Jacquelyn MaClennan
Claimants
and
(1) Chancellor of the Duchy of Lancaster
(2) Secretary of State for Foreign and Commonwealth Affairs
Defendants

Aidan O'Neill QC, Christopher Brown and Anita Davies (instructed by Leigh Day) for the Claimants

James Eadie QC and Jason Coppel QC (instructed by the Government Legal Department) for the Defendants

Hearing date: 20 April 2016

Lord Justice Lloyd Jones
1

This is the judgment of the court to which both members of the court have contributed.

2

In these proceedings the claimants, Harry Shindler MBE and Jacquelyn MacLennan, seek permission to challenge the legality under EU law of section 2, European Union Referendum Act 2015 ("the 2015 Act") which makes provision for the franchise in the forthcoming referendum on whether the United Kingdom should remain a member of the European Union ("the EU referendum"). Section 2 adopts certain rules from those governing the franchise for UK Parliamentary elections. In particular it excludes from the franchise for the EU referendum British citizens who are resident abroad and who were last registered to vote in Parliamentary elections in the United Kingdom more than 15 years ago ("the 15 year rule"). The claimants, whose names have not appeared on a United Kingdom register of electors for more than 15 years, submit that the 2015 Act restricts their directly effective EU law rights of freedom of movement in a manner that is not objectively justifiable.

The Parties

3

The first claimant, Mr. Shindler, was born in London in 1921. He is a British national, holds a United Kingdom passport and is not a national of any other State. He spent much of his working life as a member of the British armed forces and is a veteran of the Allied landings at Anzio during World War II. On his retirement, in exercise of his free movement rights, he moved to live in Italy and has resided there ever since. Mr Shindler pays taxes to Her Majesty's Revenue and Customs on his pension. In 2014, Mr Shindler was awarded an MBE for his services to Anglo-Italian relations. His name last appeared in the United Kingdom register of electors in 1982.

4

The second claimant, Ms. MacLennan, was born in Inverness in 1961. She is also a British national with a United Kingdom passport, and is not a national of any other State. After her graduation from the University of Edinburgh she qualified as a solicitor and notary public in Scotland. In November 1987, in exercise of her free movement rights, she joined a legal firm based in Brussels. Ms MacLennan has lived and worked in Brussels ever since, specialising in EU competition and environmental law, and is now a partner in the Brussels office of a global law firm. Her name last appeared in the United Kingdom register of electors in 1987.

5

The defendants are the Chancellor of the Duchy of Lancaster (who acts in this matter with the Minister for Constitutional Reform) and the Secretary of State for Foreign and Commonwealth Affairs (who acts in this matter with the Minister for Europe). They are the relevant government ministers with responsibility for electoral matters, so far as the EU referendum is concerned.

The Claim

6

The 2015 Act received royal assent on 17 December 2015. On 16 March 2016 the claimants filed a claim form applying for permission to apply for judicial review seeking declaratory relief. The claimants' case is that the 15 year rule as applied to eligibility to vote in the EU referendum constitutes a restriction on their rights of free movement, and that this restriction is not, and cannot be, objectively justified as a proportionate means of achieving a legitimate objective. The claimants seek a declaration that section 2 of the 2015 Act is incompatible with their directly effective EU law rights. They state that their objective in bringing these proceedings is to secure new legislation amending the 2015 Act so as to remove the 15 year rule prior to the date of the EU referendum.

7

On 8 April 2016, Cranston J. ordered that the application for permission to proceed with a claim for judicial review be heard by a Divisional Court with the substantive application to follow immediately thereafter if leave is granted. That rolled up hearing took place before us on 20 April 2016.

The Legislation

8

We have been referred by the parties to a helpful summary of legislative initiatives contained in a briefing paper for the House of Commons Library by Isobel White 'Overseas Voters' (No 5923 March 2016) from which we note the following:

(1) Until the coming into force of the Representation of the People Act 1985, eligibility to vote in elections for local government, the United Kingdom Parliament and the European Union depended on qualifying residence in the United Kingdom at the relevant time for inclusion in the electoral list.

(2) Proposals to extend the franchise to British citizens abroad were discussed in the 1970s but no specific recommendations were made by the Speaker's Conference in 1973–4.

(3) The Home Affairs Select Committee recommended in 1983 that the right to vote in UK Parliamentary elections be extended to British citizens resident in what was then the European Economic Community. The government of the day did not accept the recommendation but proposed that British citizens resident outside the United Kingdom anywhere in the world should have the right to vote for a limited period after leaving the place where they were formerly resident unless posted abroad on qualifying military or civil service.

(4) The Representation of the People Act 1985 provided for British citizens resident abroad to be able to remain on the electoral register for a period of five years.

(5) The Representation of the People Act 1989 extended the period to 20 years.

(6) The Political Parties Elections and Referendums Act 2000 reduced the period to 15 years.

(7) In 2015 an Overseas Voters Bill was presented to Parliament as a private member's bill, proposing the removal of the 15 year limit to the ability to register. The legislation did not proceed but the government expressed sympathy with the aim.

9

This active scrutiny by Parliament has been noted by the European Court of Human Rights when it has considered whether the 15 year rule in its application to the Parliamentary franchise is consistent with such individual rights to vote as are afforded by Article 3 of Protocol No. 1 to the European Convention on Human Rights. (See Doyle v UK (2007) 45 EHHR SE3; Shindler v United Kingdom (2013) 58 EHHR 9.)

10

Section 2 of the 2015 Act provides in relevant part:

"(1) Those entitled to vote in the referendum are—

(a) the persons who, on the date of the referendum, would be entitled to vote as electors at a parliamentary election in any constituency,

(b) the persons who, on that date, are disqualified by reason of being peers from voting as electors at parliamentary elections but—

(i) would be entitled to vote as electors at a local government election in any electoral area in Great Britain,

(ii) would be entitled to vote as electors at a local election in any district electoral area in Northern Ireland, or

(iii) would be entitled to vote as electors at a European Parliamentary election in any electoral region by virtue of section 3 of the Representation of the People Act 1985 (peers resident outside the United Kingdom), and

(c) the persons who, on the date of the referendum—

(i) would be entitled to vote in Gibraltar as electors at a European Parliamentary election in the combined electoral region in which Gibraltar is comprised, and

(ii) fall within subsection (2).

(2) A person falls within this subsection if the person is either—

(a) a Commonwealth citizen, or

(b) a citizen of the Republic of Ireland."

11

Section 2(1)(a) adopts as a starting point for the EU referendum the franchise for UK Parliamentary elections. Sections 2(1)(b) and 2(1)(c) then provide for limited extensions of this franchise. The franchise for UK Parliamentary elections is established by a range of legislative provisions, the most relevant of which are sections 1 and 4 of the Representation of the People Act 1983 ("the 1983 Act") and section 1 of the Representation of the People Act 1985 ("the 1985 Act").

12

Section 1 of the 1983 Act provides in relevant part:

"(1) A person is entitled to vote as an elector at a parliamentary election in any constituency if on the date of the poll he—

(a) is registered in the register of parliamentary electors for that constituency;

(b) is not subject to any legal incapacity to vote (age apart);

(c) is either a Commonwealth citizen or a citizen of the Republic of Ireland; and

(d) is of voting age (that is, 18 years or over). …"

13

Section 4 of the same Act provides in relevant part:

"(1) A person is entitled to be registered in the register of parliamentary electors for any constituency or part of a constituency if on the relevant date he–

(a) is resident in the constituency or that part of it;

(b) is not subject to any legal incapacity to vote (age apart);

(c) is either a qualifying Commonwealth citizen or a citizen of the Republic of Ireland; and

(d) is of voting age. …"

14

Section 1 of the 1985 Act extends the Parliamentary franchise beyond those who are resident in a constituency to specified "overseas electors". To qualify as an overseas elector a person must show that he was, or but for his age could have been, registered to vote in a constituency...

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