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Court reject challenge to EU membership referendum franchise and ’15 year rule’

Shindler & Anor v Chancellor of the Duchy of Lancaster [2016] EWHC 957 (Admin)

Related Member(s):
Aidan O’Neill QC (Scot), Anita Davies, Christopher Brown
Related Practice Area(s):
EU Law, Public Law
Court:

The claimants challenged the legality of the European Union Referendum Act 2015, s 2. The impugned provision details the franchise in the forthcoming EU membership referendum. It excludes British citizens resident abroad who were last registered to vote in UK Parliamentary elections more than 15 years ago. The claimants alleged that the 15 year rule impacted their EU law right of freedom of movement in a manner that was not objectively justifiable.

The court rejected the defendant’s argument that s 2 of the 2015 Act was outside the scope of EU law. It concluded that the United Kingdom was bound to adhere to EU law, even when deciding whether to exercise its Art 50(1) TFEU discretion to withdraw from the Union.

The court recognised the CJEU authorities which established that national measures could not dissuade or deter EU citizens from engaging in free movement, unless such measures were objectively justified under EU law. However, the UK courts had previously held that the 15 year rule could not be fairly construed as deterring individuals from exercising their EU rights, in the context of UK parliamentary elections.

The court disagreed that the EU referendum context provided any greater support for the contention that disenfranchisement would deter free movement. It did not accept that the prospect of disenfranchisement in a one-off referendum would influence a decision to settle or remain in another member state.

While the court formed the view that the 15 year rule did not restrict free movement, it held that even if the rule was considered to constitute a restriction, it would be objectively justified. The court considered the claimants’ argument that the referendum ought to be conceived of differently, given its implications for British citizens who relied on their EU citizenship to live in other member states. The claimants argued that for this reason, it was arbitrary, disproportionate and illegitimate to exclude those who failed to qualify due to their period of residence abroad.

The court acknowledged the personal interest that the claimants had in the outcome of the referendum, but held that it was for Parliament to make a legislative choice on voter eligibility. ECHR jurisprudence had accepted residence criteria as a legitimate limitation on the exercise of ECHR, A3P1 voting rights. 15 years was considered to be an acceptable bright line rule in terms of identifying the weakening of ties with the United Kingdom.

The court also noted practical difficulties that would be encountered if a new electoral register including non-British residents had to be produced.

The application for judicial review was refused.

Aidan O’Neill QC, Christopher Brown and Anita Davies were involved in this case