R (Preston) v Wandsworth London Borough Council

JurisdictionEngland & Wales
JudgeLord Justice Mummery
Judgment Date25 October 2012
Neutral Citation[2012] EWCA Civ 614
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2011/3329
Date25 October 2012

[2012] EWCA Civ 614

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(LORD JUSTICE ELIAS AND MR JUSTICE KING)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Mummery

Case No: C1/2011/3329

The Queen on the Application of Preston
Applicant/ Claimant
and
(1) Wandsworth Council
(2) the Lord President of the Council
Respondents/Defendants

Mr Daniel Jowell QC and Mr Paul Stuart (instructed by Cleary Gottlieb Steen & Hamilton) appeared on behalf of the Applicant.

The Respondents did not appear and were not represented.

Lord Justice Mummery
1

This is a renewed application for permission to appeal. The application is made by Mr Daniel Jowell QC on behalf of the applicant, Mr James Preston.

2

Two paragraphs from the judgment of the Administrative Court will explain what this case is about. It is a judicial review application which is directed at two defendants, the Wandsworth Borough Council, and the Lord President of the Council. Elias LJ said this in the principal judgment refusing the application for judicial review at paragraph 1:

"The claimant is a long term resident of Spain. He lives with his wife in Madrid, having established a business there, and he retains his British passport. He challenges by way of judicial review section 1(3) of the Representation of the People Act 1985 ("the 1985 Act") which he seeks to disapply pursuant to directly effective EU law rights. That provision extended the franchise in a general election. As now amended, it enables a voter to leave the UK and reside overseas and nonetheless retain the right to vote in a general election for a period of 15 years after ceasing to be resident in the UK. After that period of time has elapsed, he is disenfranchised ('the 15 year rule'). The claimant submits that he has a directly effective right under EU law to move to and reside in other member states and that the 15 year rule operates unjustifiably to interfere with the exercise of that right."

Then, having set out the Representation of the People Act, Elias LJ said this of the decision under challenge:

"On September 2, 2009, the claimant applied to Wandsworth Borough Council, the first defendant, to be registered to vote in UK elections. By letter received on December 15, 2009, the first defendant rejected the claimant's application, by reason of the application of the 15 year rule. The claimant submits that this decision was unlawful because it unlawfully restricts his right to free movement within the EU as guaranteed by Articles 21, 45, and 49 the Treaty on the Functioning of the European Union (' TFEU'). Since the rule is not under the control of Wandsworth, only the second defendant has been represented in this application."

The Administrative Court judgments of Elias LJ and Keene J then go on to give reasons for refusing the application for judicial review. They refused permission to appeal.

3

An application was then made to this court. That was dealt with on paper by Sir Richard Buxton, who gave some detailed reasons for refusing permission. The renewal today has been accompanied by a change of leading counsel, and a fresh document by way of a written statement setting out points made in relation to the reasons given by Sir Richard Buxton for refusing permission. At the outset of the hearing, I...

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