R (on the application of James Alistair Preston) v The Lord President of the Council

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLord Justice Mummery,Lord Justice Sullivan,Sir David Keene
Judgment Date25 Oct 2012
Neutral Citation[2012] EWCA Civ 1378
Docket NumberCase No: C1/2011/3329

[2012] EWCA Civ 1378

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

LORD JUSTICE ELIAS & MR JUSTICE KING

Royal Courts of Justice

Strand, London, WC2A 2LL

CO/3344/2010

Before:

Lord Justice Mummery

Lord Justice Sullivan

and

Sir David Keene

Case No: C1/2011/3329

Between:
R (on the application of James Alistair Preston)
Appellant
and
The Lord President of the Council
Respondent

MR ROMANO SUBIOTTO QC and MR PAUL STUART (instructed by Cleary Gottlieb Steen & Hamilton LLP) for the Appellant

MR JASON COPPEL (instructed by The Treasury Solicitor) for the Respondent

Hearing date: 10 th July 2012

Lord Justice Mummery

The issue

1

These are judicial review proceedings about whether a provision in the Representation of the People Act 1985, as amended, (the 1985 Act) affecting the right of a non-resident British citizen to vote in UK parliamentary elections is compatible with the Treaty on the Functioning of the European Union (the TFEU). The challenged sub-subsection renders a British citizen ineligible to be an "overseas elector" in UK parliamentary elections in the case of prolonged residence outside the UK. The claimant, who has lived for a long time in a Member State (Spain) of the European Union (the EU), invokes the fundamental right of free movement conferred by the TFEU. His case is that statutory disenfranchisement is an unjustified restriction of the EU right.

2

The 1985 Act lays down the conditions on which, on the date of making a declaration required by the Act (the relevant date), a citizen may be eligible to be an "overseas elector" in respect of a constituency in the UK. An entry is made in the register of parliamentary electors on the basis that the citizen was resident, or to be treated for registration purposes as resident, at an address at a place situated within the constituency concerned. Section 1(3)(c) requires that the entry was in force at any time falling within the period of 15 years ending immediately before the relevant date. In consequence of residence in Madrid for more than 15 years the claimant has become ineligible to be an overseas elector. He is not entitled to vote in a UK parliamentary election.

3

This appeal is from the order of the Divisional Court dated 1 December 2011 ( [2011] EWHC 3174 (Admin)) dismissing the claim for declaratory relief on the interpretation and disapplication of s.1(3)(c) of the 1985 Act. The Divisional Court refused permission to appeal.

Background

4

The claimant's name was originally on the register of parliamentary electors as resident at an address at a place situated in a constituency in the London Borough of Wandsworth (Wandsworth). He exercised his right to free movement and residence in a Member State of the EU by establishing his business in Madrid where he and his wife have lived since May 1995. The claimant, who retains his British passport, is the managing director of his business with a 35% shareholding. He claims to be both an employee and a self-employed person.

5

On 2 September 2009 he applied to Wandsworth to be registered as an overseas elector in UK parliamentary elections intending to vote in the next general election expected in the spring of 2010. By letter dated 15 December 2009 Wandsworth rejected his application. Its decision was based on s.1(3)(c). The claimant's name last appeared in the register of electors in 1992 at the Wandsworth address. The claimant had been resident outside the UK longer than 15 years from that year.

6

The position before the 1985 Act was that there was an absolute legal requirement that, apart from the special case of "service voters", parliamentary electors had to be resident in the UK. Section 1 of the 1985 Act extended the parliamentary franchise to British citizens overseas (overseas electors), provided that they satisfy specified conditions at the relevant date and on the date of the poll. As to an entry in the parliamentary register, s.1(3), as amended, required that:—

"(c) that entry in the register was in force at any time falling within the period of 15 years immediately before the relevant date."

7

The provision disenfranchising a British citizen after 15 years of non-residence in the UK is referred to in this judgment (as it is in the judgment under appeal) as "the 15 year rule." The rule does not, of course, apply when a British citizen resumes residence in the UK, either during or after the end of the 15 year period. In those circumstances the citizen would be eligible to vote as a resident and would not have to qualify as an "overseas elector" in order to cast a vote. The present period of 15 years, which is under review, was fixed with effect from 1 April 2002, having originally been a 5 year period between 1986 and 1989 and then a 20 period between 1989 and 2002.

8

The claimant began judicial review proceedings against Wandsworth and the Secretary of State for Justice challenging the application of the 15 year rule. The grounds of challenge are that it is an unjustified and discriminatory restriction on the exercise of the fundamental right to move and reside freely within the EU. The claimant says that the 15 year rule is plainly incompatible with and violates EU law. By stripping him of his fundamental constitutional right to vote in a parliamentary election in the UK the rule penalizes him for having exercised his directly effective fundamental right under EU law to move to and to reside and work in another Member State for as long as he likes. The offending provision restricts free movement to an extent that cannot be justified in the public interest as a proportionate means of achieving a legitimate objective.

9

In those circumstances the claimant says that the UK courts are under an obligation to interpret s.1(3)(c) of the 1985 Act, so far as it is possible to do so, so that it does not restrict the fundamental citizenship and economic rights of free movement to and residence in the territory of Member States conferred by the TFEU. Alternatively, if a conforming interpretation is impossible, the UK courts must disapply the 15 year rule as incompatible with EU law.

10

Wandsworth had no responsibility for the existence of the 15 year rule and has no say in its continuance. The Lord President of the Council was joined in the proceedings, was the only respondent represented in the Divisional Court and is the sole respondent to this appeal.

11

On 25 January 2012 the Rt Hon Sir Richard Buxton refused permission to appeal on a paper application. He did so on the basis that, even if the 15 year rule has a potentially restrictive effect on the EU right of free movement and there is no de minimis exception in EU law in respect of such a potential restriction, the restriction issue is academic, because the claim rightly failed on the issue of justification. The legitimate objective of the restriction is to limit the right to vote in national elections and their influence on national policy to citizens who are engaged in the life of that country, contribute to its government and in turn are affected by the government's decisions in their daily lives. The 15 year rule is proportionate to that objective, the terms of the 1985 Act being a matter for the consideration and judgment of the UK Parliament.

12

In recognition of those powerful reasons for refusing permission to appeal, I did not grant permission on the renewed application on 19 April 2012. I was, however, concerned about some EU aspects of the appeal and the future course of the proceedings, including a possible need or requirement for a reference to the Luxembourg Court under Article 267 of the TFEU. I adjourned the application for permission to the full court with the appeal to follow immediately, if permission is given.

The relief claimed

13

The claim is for the following relief :—

"1. A declaration that section 1(3)(c) of the Representation of the People Act 1985 cannot be applied to deprive UK citizens of the right to vote insofar as their residence for fifteen years or more has been in another Member State of the European Union.

2. A declaration that section 1(3)(c) of the Representation of the People Act 1985 is to be interpreted such that UK citizens cannot be deprived of their right to vote on the grounds of their residence in another EU Member State regardless of the length of such residence."

14

The respondent's counsel, Mr Jason Coppel, criticises the wording of the declarations. He says that, as framed, they purport to decide that the claimant (and others in like circumstances) actually have the right to vote in the UK constituency in which they were previously registered. He submits that, if the claimant establishes on this appeal that the 15 year rule is in breach of EU law, the proper remedy would be to grant a declaration saying just that. The declarations claimed appear to cast the remedial net wider than success on the substantive claim would justify.

15

The claimant's counsel supplied, at the request of this court, the first draft of a question on the interpretation of the TFEU, in case the court considers it necessary, in order to decide this appeal, to request a ruling from the Court of Justice:—

"Does EU law, in particular Article 21 TFEU, preclude national legislation under which, in circumstances such as those in the main proceedings, the right to vote in national elections is refused solely on the ground that the person concerned, who holds the nationality of the relevant Member State, was not registered as an elector in the territory of the Member State of which they are a national at any time in the...

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