Claimant loses JR challenge over 15-year rule stripping him of right to vote

A long-term resident of Spain has lost a High Court bid to overturn the so-called “15 year rule” which has stripped him of the right to vote in a general election in the UK.

In the case of Preston, R v Wandsworth Borough Council & Anor [2011] EWHC 3174 Mr Preston lives in Madrid with his wife and runs a business there. He retains his British passport.

On 2 September 2009 the claimant applied to Wandsworth Council to be registered to vote. But the local authority rejected his application by letter on 15 December 2009, relying on the 15-year rule contained in s. 1(3) of the Representation of the People Act 1985.

The provision in the 1985 Act extended the franchise in a general election. As amended, it enables a voter to leave the UK and reside overseas and still retain the right to vote for a period of 15 years after they have ceased to be a resident in the UK.

Following the rejection letter, the claimant brought judicial review proceedings against Wandsworth and the Lord President of the Council (currently the Deputy Prime Minister, Nick Clegg).

He argued that he had a directly effective right under EU law to move to and reside in other member states and that the 15 year rule operated unjustifiably to interfere with the exercise of what was a fundamental constitutional right.

In a witness statement a Cabinet Office official told the court that the government was currently reviewing the 15-year limit to see whether it remained appropriate.

However, the government’s position was that it could be justified for two particular reasons:

• The individual’s connection with the UK will generally diminish over time
• Non-residents are necessarily less affected than residents by the laws passed by Parliament and the decisions of the UK government.

The Lord President of the Council submitted that it was reasonable for the influence of non-residents on the democratic process to diminish over time. He acknowledged that there was a legitimate argument to make over the point at which rights should be lost, but said 15 years was a permissible option for the government to take.

Giving the lead judgment, Lord Justice Elias rejected the claim. The judge said Mr Preston had to show that the obstacle created by the rule could be fairly said to deter persons from exercising their rights.

“Not every disadvantage to those who move to live in another member state resulting from the discriminatory application of domestic laws on residence grounds amounts to an interference sufficient to require justification,” he said.

Lord Justice Elias said the court had established a principle that in order to constitute an interference with the freedom of movement of workers, the rule which was said to create the restriction must affect access to the labour market in a way which is not too indirect or uncertain.

“In my judgment, in this case the restriction is too indirect and uncertain and has not been established on the evidence,” he said. “There is no evidential basis for saying that the rule does create a barrier of any kind to freedom of movement.”

The judge said that once people have been absent for 15 years, it was “inherently unlikely that the loss of the right to vote would be sufficient to cause them to up sticks and return to the UK”.

Lord Justice Elias said he accepted that the claimant and others who had provided witness statements were “genuinely upset” about the rule and considered it unjust and unnecessary.

“The right to vote is a fundamental constitutional right and the claimant is aggrieved by its removal,” he said. “It does not, however, follow that disenfranchisement constitutes a deterrence to free movement. In my judgment, it does not.”

The judge concluded that the 15-year rule was a proportionate interference with the right of free movement. “The government was entitled to hold that there is a legitimate objective which the rule is designed to achieve, namely to remove the right to vote from those whose links with the UK have diminished and who are not, for the most part at least, directly affected by the laws passed in the UK.”

Lord Justice Elias added that the choice of a “bright line rule” was inevitable, as it would be wholly impracticable to adopt a rule which required consideration of the personal circumstances of all potential expatriate voters.

Mr Justice King agreed. “The critical issue is whether domestic restrictions on the right to vote amount to an unlawful interference with quite separate EU rights, in particular that of free movement under Article 20/22,” he said.

The judge agreed that the domestic provision under challenge did engage Article 20/22 despite the fact that its subject matter was within the exclusive competence of the national state.

However, he said the challenge failed because of lack of evidence of any real interference with the EU right.

“The notion that anyone nearing the end of a 15 year sojourn away from the United Kingdom who would otherwise want to continue their time away in another member state, would feel discouraged from doing so in order to preserve the right to vote in UK national elections, is unreal and unsupported by any evidence of practical examples of this ever having happened.”

Philip Hoult