Expatriates Lose Supreme Court Bid for Right to Vote in EU Referendum

In this post Dr. Heather Green, Senior Lecturer, considers the law setting the franchise for the referendum on the UK’s membership of the European Union, which takes place on 23 June 2016.

Mrs Thatcher’s government was the first to legislate for expatriate voting rights, creating rules in the Representation of the People Act 1985 that permitted citizens overseas to continue to rely on their last UK electoral registration for up to 5 years after leaving for the purposes of voting in Parliamentary and European Parliamentary elections. The time period has since been varied: to 20 years in 1989; and then to 15 years in 2000. The European Union Referendum Act 2015, section 2 adopts this scheme. This was challenged in the courts by expatriates disenfranchised by the rule.

Harry Shindler, a 94 year old Second World War veteran, has lived in Italy since the 1980s. Jacquelyn MacLennan, a partner in a law firm in Brussels, has lived there since 1987. Both are British nationals, and neither holds another nationality. Their challenge was based on EU law, arguing that section 2 of the EU Referendum Act 2015 interfered with their rights to freedom of movement under EU law by effectively punishing them for choosing to exercise those rights for longer than the 15 years during which voting rights are enjoyed. The European Convention on Human Rights could not help their claim in this case, as the Convention right to free elections (found in Article 3, Protocol 1) does not extend to referendums. The Supreme Court confirmed this reading of Strasbourg doctrine in 2014, rejecting attempts to deploy it by prisoners disenfranchised in the Scottish independence referendum. (Strasbourg is where the European Court of Human Rights sits, so it is the decisions of that court that make up Strasbourg doctrine.)

Mr Shindler has conducted a long-running legal campaign to acquire the right to vote in UK elections. In 2013, he lost an earlier case before the European Court of Human Rights arguing that the 15 year time bar breached A3P1. The Court considered that it was within the margin of appreciation enjoyed by the UK to set this cut-off point as an approximate means of measuring the likely strength of the bond between expatriates and the UK. Case by case assessments of individuals’ links to the UK were not feasible. The Convention permits states to employ “bright-line” rules such as the 15 year time bar.

The EU Referendum Challenge

The first hurdle in this case relating to the impending EU referendum was to establish that EU law is engaged by the franchise law in the 2015 Act. In the Court of Appeal the government succeeded in its argument that it is not so engaged. Article 50 of the Treaty on European Union provides that “Any Member may decide to withdraw from the EU in accordance with its own constitutional requirements.” The Court of Appeal took the view that the 2015 Act forms part of those constitutional requirements, and as such the government was free to design the electorate for the referendum without considering the constraints imposed by EU law guarantees.

That would have been enough, but the court went on to consider the position if EU law was assumed to be engaged. the Court of Appeal endorsed the reasoning of the Divisional Court that the 15 year time bar did not interfere with free movement rights: the court did not accept that disenfranchisement in a one-off referendum was a factor likely to influence the decision to settle or remain in another EU state.

Aware of the difficulties of establishing the EU law argument, counsel for the expatriates included in the case put to the Court of Appeal the additional claim that voting is a common law constitutional right which judges have a duty to protect against statutory restrictions of the sort included in the 2015 Act. The Master of the Rolls dismissed this argument as ‘hopeless’ [para. 50], considering that the Supreme Court’s dicta on common law protections of the franchise in Moohan v Lord Advocate were confined to hypothesising about political abuses by a Parliament intent passing a statute effecting mass disenfranchisements. There was nothing so contrary to principles of democracy in section 2 of the 2015 Act.

The UK Supreme Court

The case, reported as R (on the application of Shindler and another) (Appellants) v Chancellor of the Duchy of Lancaster and another (Respondents) UKSC 2016/0105, reached the Supreme Court last week. The Court held an oral hearing for application for permission to appeal. This failed. Lady Hale expressed sympathy for Shindler and MacLennan, but announced the Court’s decision that, assuming EU law to apply, it is not arguable that the 2015 Act interferes with free movement rights. As the hearing was confined to seeking leave to appeal, the Supreme Court did not engage in review of the Court of Appeal’s stance on Art 50, TEU. Nor did it accept the bold invitation of counsel for the appellants, put during the oral hearing, to declare the 15 year time bar unconstitutional on common law grounds. Aidan O’Neill QC drew the Court’s attention to the government’s plans, announced in the May 2015 Queen’s Speech, to abolish the 15 year time bar, which it has conceded to be arbitrary. The planned Votes for Life Bill has not materialised.

The difficulty for litigants invoking the common law in such cases lies in persuading a court to build on the acknowledged constitutional foundations of the franchise as a political liberty to articulate a concrete – actionable – common law right to vote. The constitutional principle the Supreme Court articulated in Moohan v Lord Advocate, echoed in the Court of Appeal in this case, indicates the potential readiness of the courts to step in to block attempts by Parliament to retract voting rights in some dramatic, discriminatory or blanket way: stripping the franchise from certain racial or religious groups for example, or setting the voting age at 45. There is little trace in the dicta on the nature of the common law right to vote indicating any willingness on the part of the judiciary to deploy the common law to police other sorts of disenfranchisements (of prisoners; of long-term expatriates) which appear less blatantly unacceptable on constitutional grounds. The common law protects a right to vote in the sense that it offers a broader constitutional assurance that judges would oppose political attempts to retreat significantly from the law’s commitment to universal suffrage. Judges are unlikely ever to be persuaded to regard the common law as a sound basis for claims seeking to recalibrate franchise laws that respect in broad terms the constitutional commitment to universal suffrage. This poses a structural obstacle for groups like prisoners and expatriates who find themselves currently situated beyond prevailing political understandings of the limits of the idea of universal suffrage. And a sceptic might think that a common law right to vote that merely tracks the statutory expressions of it which Parliament chooses to offer is not much of a legal right at all.

Another dimension of the issue that this litigation highlights (as does ongoing constitutional litigation in Canada) is the zeal with which constitutional law and politics remain committed to the idea that national citizenship is relevant to the distribution of voting rights. There is another group disenfranchised in the EU referendum: EU citizens lawfully resident in the UK. Though they enjoyed the right to vote in the Scottish referendum, they have no say in this momentous political choice concerning their rights to remain settled in their homes, jobs and lives here. Yet Commonwealth citizens residing here have the right to vote. This group includes those from Malta, who are also EU citizens. Cypriots might find themselves in a similar position. Separately, Irish citizens are in the privileged position of enjoying full UK voting rights, so they too can vote in the referendum by virtue of those laws if not in consequence of their EU citizenship.

Comment

We should consider reforming election law to endorse the principle that lawful residence, not the happenstance of the particular passport we possess, generates the right to vote. And though we may share Lady Hale’s sympathy with the expatriates who feel left out by their disenfranchisement, there are powerful arguments against including any expatriates in the electorate. Voting is not, after all, an act concerned with a person’s emotional attachments to a place they may never return to live in. It is a right related to the stake a person has presently in the polity. We should not allow respect for feelings of Britishness to dictate something as fundamental as the terms of our laws governing the franchise.

Instead of a Votes for Life Bill, how about a Votes for All Lawful Residents Bill, extending the franchise to resident non-citizens (perhaps after a one year settlement period) and retracting it from all non-resident citizens? The claims of the former to the right to vote are at least as strong as those of expatriates. New Zealand has led the way with reforms granting all permanent residents full voting rights. We should follow this model. The franchise ought not to be characterised as a lifelong free gift to privileged groups of people holding favoured passports. Perhaps one day norms will evolve that will condemn our present day willingness to disenfranchise large tracts of the population on the basis of their passport status as we now reject the historic denial of votes to women. Identity, whether tied to gender or nationality, ought not to be used to distribute or deny the right to vote. Those expatriates who have a legal right to vote on June 23rd are the beneficiaries of policies and election laws that seek to universalize suffrage extra-territorially while fencing out of the electorate many deserving domestic residents. This sort of practice is an injustice politics is unlikely to remedy soon, and one our courts are not equipped to cure.

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How election courts work: The Alistair Carmichael case & other trials

A post Dr. Heather Green, Senior Lecturer.

Four voters from Orkney and Shetland raised a court challenge after May’s general election, claiming that their MP, Alistair Carmichael, had breached election law by falsely denying complicity in the leak of a memo that suggested Nicola Sturgeon was secretly hoping for a Conservative victory. I wrote on the Scottish Constitutional Futures Forum blog in May about the background and legal arguments. Last week the election court ruled that Carmichael had not committed the election offence of making a false statement about his personal character or conduct, because his denial (made to Channel 4 news) was of the straightforward ‘I knew nothing about it’ variety, and not of the ‘I am the sort of fine upstanding person who would never indulge in those sort of dirty tricks’ kind. In the words of Lady Paton, he told ‘a blatant but simple lie’, though stopped himself from adorning that with a potentially criminal and false comment about his moral goodness. Only by this small act of self-restraint was his defence established, and his Parliamentary seat saved. This was the first election court to sit in Scotland since 1964, when poet and defeated Communist candidate Hugh McDiarmid tried and failed to unseat the Tory PM Alec Douglas-Home by arguing that he had breached election campaign spending rules: Grieve v Douglas-Home 1965 SC 315.

I have written about the wider context of the Carmichael case in an article for Democratic Audit-Scotland. Anyone interested in issues about the costs of the case, Carmichael’s reaction to the ruling, and claims that the case was ‘politically motivated’ can read that here. In terms of legal doctrine, the case is important because it establishes that the offence of making false statements – in the Representation of the People Act 1983, s106 – applies to candidates talking themselves up (so-called laudatory self-talk) as well as to the more common allegation of maligning the character of an opponent. The latter type arose in Watkins v Woolas [2010] EWHC 2702 (QB), a rare example of an MP (and former Labour minister) losing his seat over false claims in his campaign leaflets that the Lib Dem candidate had been courting votes from Muslim extremists.

Election courts have exclusive jurisdiction to hear challenges to the outcomes of elections, which must be raised by a so-called election petition. Petitioners must be electors or defeated candidates. Election courts do not have a continuing existence, but are constituted afresh for each petition and cease to exist when the case is decided. Regular judges (two for challenges involving MPs; one for local election cases) are picked from a rota to sit; usually this is in the constituency in which the election is challenged. The Carmichael court, unusually, sat in Edinburgh rather than Lerwick or Kirkwall to avoid inconvenience for parties and witnesses.

Election courts hear claims that the election result in a constituency (or local authority ward) is unsafe because there was some form of wrongdoing, civil or criminal, in the course of the election. Administrative errors by polling staff – such as forgetting to count ballot papers – could be challenged. Another civil issue involves the alleged disqualification of candidates. This arose in the case of the late Tony Benn MP, who in the 1960s inherited a peerage that barred him from standing for the House of Commons. Despite this being well publicized, the electors picked him in a by-election. His win was then contested successfully in an election court by a losing candidate. Parliament subsequently passed the Peerage Act 1963 to allow reluctant Lords to disclaim peerages.

Election courts are unusual in terms of the procedure they employ. They have special investigative powers, using processes that are inquisitorial as well as adversarial. They have the power to order up ballot papers from secure storage and to scrutinize them to determine if votes were validly or fraudulently cast. In some respects election courts are like criminal courts: they hear allegations of election fraud, and use the criminal standard of proof to determine if the crimes were committed. In other respects they are like civil courts: the disputes are set up like private law contests between petitioner and respondent. A successful petitioner, like the one in the Tony Benn case, may secure a personal victory by being declared the election winner by the court. In that case it held that electors who cast ballots for Benn knowing him to be barred from sitting in the Commons could be deemed to have thrown away their votes. When those were discounted, the runner-up could be identified as the winner. More usually, the court will exercise its power to void the election if the petition succeeds. A person found to have committed election crimes is barred from standing in the by-election held to rerun the contest voided by the court; and loses voting and candidacy rights for a period of between 3 and 5 years, depending on the nature of the crime. Election courts cannot fine or imprison culprits: their judgments to do not amount to formal criminal convictions; separate prosecutions may be initiated following the court’s resolution of the petition.

There has been a marked increase in the number of election petitions in the last two decades, due mainly to the rise in fraud surrounding the increased use of postal voting. An infamous example happened in Birmingham in 2005, a local election case in which the judge remarked that the scale of the fraud ‘would disgrace a banana republic’. He uncovered a menu of 14 types of postal voting fraud conducted by the disgraced councillors, such as stealing postal voting papers protruding from letter boxes, and registering non-existent ‘ghost’ voters to cast postal votes in their names. This was done on an industrial scale, some of it in a disused warehouse where there was plenty space to doctor stolen and fraudulently acquired ballot papers. The same judge sat to hear a case in Tower Hamlets earlier this year, in which a locally elected mayor was found to have committed an old statutory offence of using ‘undue spiritual influence’ to persuade voters. This crime originates in 19th century instances of Irish bishops threatening the Catholic faithful with God’s displeasure should they fail to vote for the Church’s preferred candidate. The Tower Hamlets mayor, a prominent member of the local Bangladeshi community, had used a letter signed by 101 imams insisting it was every good Muslim’s duty to vote for him. This was an offence (among many others perpetrated at the polls); the mayor’s election was voided by the court and another was held to pick a new one.