A decision taken today by the UK’s highest court prevents an estimated 2 million British citizens that have lived overseas for 15 years or more from voting in the Referendum on June 23rd, a referendum that will determine Britain’s future within, or divorced from the European Union.
The Supreme Court upheld earlier rulings in the High Court and the Court of Appeal that dismissed the legal action put before them by solicitors acting for WWII veteran Harry Shindler (pictured below) and Solicitor Jacquelyn MacLennan.
The Supreme Court ruling confirms the ruling that the UK’s voting regulations do not unlawfully interfere with the right of freedom of movement within the EU and that the UK government is entitled to set a time limit on overseas residence after which the right to vote in UK elections and referenda is denied.
The Deputy President of the Supreme Court, Lady Hale, delivered the ruling, “The question is not whether this particular voting exclusion is justifiable as a proportionate means of pursuing a legitimate aim. The question is whether EU law applies.
“We have considerable sympathy with the applicants and the situation in which they find themselves. We understand it’s something which concerns them deeply, but we cannot discern a legal basis for challenging this statute.”
Even if EU law did apply, added Lady Hale, there was no interference with the rights of free movement - therefore the case was dismissed.
This decision upholds the government’s right to deny the vote to 2 million UK citizens living overseas from participating in the crucial Referendum in June.
David Cameron pledged to remove the 15-year rule for overseas Britons wishing to vote in UK elections but has put forward excuses to delay the change in legislation until after the Referendum.
The Conservative government's tardiness is counter-intuitive as a majority of expats living outside the UK but within the EU have expressed the opinion in polls that they will vote to remain in the EU which is Cameron’s objective.
“I hope the government will, at least, keep its promise and change the voting laws for the next general election,” said a disappointed MacLennan.
QC Aidan O’Neill acting for Shindler and MacLennan argued that the current disenfranchisement was “disproportionate” and “penalised” his clients and others for exercising their right of free movement within the EU.
O’Neill also pointed out that the European Union Referendum Act excluded 15 year plus British citizens but gave a vote in the Referendum to “an estimated 1 million individuals who do not hold any form of British citizenship, namely Irish nationals and citizens of Commonwealth countries who happen to be lawfully resident in the UK or Gibraltar at the date of the referendum.”
The British former soldier Shindler, 95, has lived in Italy for 35 years and pays tax on his pension to HM Revenue and Customs yet by living in Italy is not allowed to vote.
Ever upbeat, despite hearing his appeal had been dismissed, Shindler commented that when the 2020 election comes, he and others will be able to vote and he hopes the promised legislation will be in place before his 95th birthday.
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(on the application of Shindler and another) (Appellants) v Chancellor of the Duchy of Lancaster and another (Respondents)
UKSC 2016/0105
On appeal from the Court of Appeal Civil Division (England and Wales)
The Supreme Court held an oral hearing of the application for permission to appeal, with the appeal to follow immediately if permission to appeal was granted.
The appellants challenged the lawfulness under EU law of section 2 of the EU Referendum Act 2015 in respect of its exclusion from the EU Referendum franchise British citizens who, in exercise of their EU free movement rights, reside outside the UK and have been resident outside the UK for a period of more than 15 years.
The appellants claim that their disenfranchisement constitutes a unjustified restriction of their EU law rights to move and reside within the territory of the Member States and separately that the common law affords protection to their right to vote as British citizens and full members of the United Kingdom.
The Supreme Court has refused permission to appeal and the Court of Appeal judgement will therefore stand.
Giving the Court's decision, Lady Hale (Deputy President of the Supreme Court) said:
"We should make it clear that the question is not whether this particular voting exclusion is justifiable as a proportionate means of achieving a legitimate aim.
“The question is instead, firstly, whether European Union law applies at all, as only if it does so is there any possibility of attacking an Act of Parliament; and secondly, if so, whether there is any interference with the right of free movement.
“Assuming for the sake of argument that European Union law does apply, we have decided that it is not arguable that there is an interference with right of free movement, for the reasons given by the Divisional Court and the Court of Appeal.
“We do have considerable sympathy for the situation in which the applicants find themselves and we understand that this is something which concerns them deeply. But we cannot discern a legal basis for challenging this statute.
“Accordingly the application for permission to appeal is refused."
