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

Hearing date: 09/05/2016

In these proceedings, the claimants seek to challenge section 2 of the EU Referendum Act 2105 ("the 2015 Act") which, by virtue of adopting certain franchise rules for UK Parliamentary elections, excludes from the franchise for the EU Referendum UK citizens who have moved abroad and were last registered to vote in the UK more than 15 years ago ("the 15 year rule"). They claim that their exclusion from the franchise constitutes an unjustified restriction of their EU law rights of free movement.

The Divisional Court (Lloyd-Jones LJ and Blake J) held that (i) section 2 of the 2015 Act falls within the scope of EU law, so that the rights of free movement conferred by EU law are, in principle, engaged; but (ii) section 2 is not a restriction on their rights of free movement; however, (iii) if section 2 is such a restriction, it is objectively justified as a proportionate means of achieving a legitimate objective, namely of testing the strength of a British citizen's links with the UK over a significant period of time. The court, therefore, dismissed the claims. Finally, (iv) it rejected the defendants' submission that the claimants have delayed in bringing their claim so as to disentitle them to a remedy on that account.

In this appeal, Mr O'Neill QC submits that the Divisional Court erred in reaching the conclusions in (ii) and (iii) above. In addition, he raises the new point that we should grant a declaration that the 2015 Act is unconstitutional in so far as it conflicts with the fundamental common law constitutional right of British citizens to vote. For the defendants, Mr Coppel QC submits that the Divisional Court reached the right conclusions on (ii) and (iii), contests the new common law claim but says that the Divisional Court erred in its conclusion in relation to (i) and (iv).

The claimants

The claimants are both British nationals. They are described more fully at paras 3 and 4 of the Divisional Court's judgment. Mr Shindler was born in London in 1921. On his retirement, in exercise of his right of free movement, he moved to Italy where he has resided ever since. His name last appeared in the UK register of electors in 1982. Ms MacLennan was born in Inverness in 1961. In 1987, in exercise of her right of free movement, she moved to Belgium where she has resided ever since. Her name last appeared in the UK register of electors in 1987.

The legislation

The relevant legislation is set out in full by the Divisional Court at paras 10 to 14 of its judgment. It is sufficient to refer to section 2 of the 2015 Act which, so far as material provides:

"(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."

DOES SECTION 2 OF THE 2015 ACT FALL WITHIN THE SCOPE OF EU LAW?

In support of their case that section 2 does not fall within the scope of EU law, the defendants rely on Article 50 of the Treaty on European Union ("TEU") which lays down the procedure whereby a Member State may withdraw from the EU. So far as material, it provides:

"1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

The meaning of the phrase "in accordance with its own constitutional requirements" is not subject to elucidation in the travaux préparatoires to the Treaty of Lisbon which introduced Article 50 TEU. Article 50 has not been considered previously by the domestic courts or by the CJEU. It has, however, been analysed by the German Constitutional Court in Re Ratification of the Treaty of Lisbon [2010] 3 CMLR 13. The principal issue in that case was whether the Treaty of Lisbon represented an unacceptable infringement of Member State sovereignty. In arguing that it did not, the German Government submitted that the "free right of withdrawal" conferred by Article 50 TEU confirmed the "continued existence of state sovereignty" and that Member States "would remain the 'masters of the Treaties' and would not have granted the European Union Kompetenz-Kompetenz": see para 126(2). The court accepted this submission. It stated:

"305. The Treaty system covered by the Act approving the Treaty of Lisbon clearly shows the existing principle of association…in the system of the responsible transfer of sovereign powers and thus satisfies constitutional requirements. The Treaty makes explicit for the first time the right of each Member State to withdraw from the European Union (Art.50 Lisbon TEU). The right to withdraw underlines the Member State's sovereignty…

306. Any Member State may withdraw from the European Union even against the will of the other Member States…There is no obligation for the decision to withdraw to be implemented by a withdrawal agreement between the European Union and the Member State concerned. In the case of an agreement failing to be concluded, the withdrawal takes effect two years after the notification of the decision to withdraw (Article 50.3 Lisbon TEU). The right to withdraw can be exercised without further obligations because the Member State that wishes to withdraw does not need to state reasons for its decision. Article 50.1 Lisbon TEU merely sets out that the withdrawal of the Member State must take place "in accordance with its own constitutional requirements". Whether these requirements have been complied with in the individual case can, however, only be verified by the Member State itself, not by the European Union or the other Member States".

It is clear from this analysis that the German Court did not accept that the domestic constitutional requirements applicable to a decision to withdraw were themselves subject to validation under EU law and could be overturned on grounds of incompatibility with the EU Treaties.

The Divisional Court said at para 24:

"The United Kingdom undoubtedly has a sovereign right to determine for itself whether it wishes to remain a party to the EU treaties and to determine the constitutional procedures which shall be followed in determining this question. These are, both in EU law and in domestic law, pre-eminently matters within the competence of the United Kingdom. A natural reading of Article 50(1) TEU confirms this."

But it continued:

"However, it does not follow that the manner in which such a competence of a Member State is exercised is incapable of engaging EU law. On the contrary, Preston, Rottmann and Tas-Hagen among other authorities demonstrate that a Member State when acting within a field of national sovereign competence must nevertheless have regard to the impact of the manner of exercise of that competence on fundamental rights in EU law. In this way, EU law may be engaged in principle. This is the case even where the most fundamental issues of national competence are concerned, such as the grant or withdrawal of nationality or determining the franchise for a national Parliamentary election. Contrary to the submission on behalf of the defendants, we do not consider that Article 50(1) goes further and...