White & Case partner Jacquelyn MacLennan and WWII veteran Harry Shindler have had their bid for the right to vote in the EU referendum rejected by the Court of Appeal.
Both are UK citizens but ineligible to vote on 23 June under UK electoral law as they have lived overseas for more than 15 years. MacLennan has lived in Brussels since 1987 while Shindler has lived in Italy for 35 years.
They claimed the 15-year rule was an unjustified restriction on their rights of free movement in that it penalised them for exercising their right to move and reside in another member state. They argued that it was contrary to their common law constitutional right to vote and prevented them voting on an issue which might bring to an end the very EU law rights on which they rely and base their working and private lives every day.
The Divisional Court held that it was bound by R (Preston) v Wandsworth London Borough Council [2013] QB 687, which meant the claimants must show the rule was liable to dissuade them from continuing to exercise their right of free movement.
Ruling in Shindler & Anor v Duchy of Lancaster [2016] EWCA Civ this week, Lord Dyson, the Master of the Rolls said he regarded as “hopeless” the argument that the court has “a discretionary power at common law to declare legislation unconstitutional where it conflicts with fundamental constitutional rights such as the right to vote”. He further held that s 2 of the EU Referendum Act 2015 did not fall within the scope of EU Law and, even if it did, “the effect on the class as a whole is too uncertain, indirect and/or insignificant to amount to a restriction on their rights of free movement”.
However, the Supreme Court will hear the case at an emergency hearing next week. Up to two million British citizens living in EU member states fall under the 15-year rule. The deadline to register to vote is 7 June.
MacLennan says: “Brexit would have a huge impact on my personal and professional life. Excluding 2 million citizens like me from voting—as the government recognises—is unjust and unfair.”
Leigh Day solicitors, who acted for the pair, pointed out that the Conservative 2015 manifesto and the 2015 and 2016 Queen’s Speeches included the pledge to introduce votes for life, scrapping the rule that bars British citizens who have lived abroad for more than 15 years from voting.
Shindler says: “The government had agreed to scrap the 15 year rule before the Referendum Bill was passed agreeing it was arbitrary and undemocratic.”
