England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/12/2011

Lord Justice Elias :

1. The claimant is a long term resident of Spain. He lives with his wife in Madrid, having established a business there, and he retains his British passport. He challenges by way of judicial review section 1(3) of the Representation of the People Act 1985 ("the 1985 Act") which he seeks to disapply pursuant to directly effective EU law rights. That provision extended the franchise in a general election. As now amended, it enables a voter to leave the UK and reside overseas and nonetheless retain the right to vote in a general election for a period of 15 years after ceasing to be resident in the UK. After that period of time has elapsed, he is disenfranchised ("the 15 year rule"). The claimant submits that he has a directly effective right under EU law to move to and reside in other member states and that the 15 year rule operates unjustifiably to interfere with the exercise of that right.
2. Section 1(1)(a) of the Representation of the People Act 1983 establishes as the basic rule that for a general election the electorate consists of persons over eighteen, not otherwise disqualified, who are Commonwealth citizens or citizens of the Republic of Ireland and are registered to vote in a constituency. Section 4(1) provides that they are entitled to register in the constituency if they are resident there. Section 1 of the 1985 Act extended the franchise to overseas electors. It provides, so far as material:

"1.— Extension of parliamentary franchise.

(1) A person is entitled to vote as an elector at a parliamentary election in any constituency if–

(a) he qualifies as an overseas elector in respect of that constituency on the date on which he makes a declaration under and in accordance with section 2 of this Act ("the relevant date");

(b) on that date and on the date of the poll–

(i) he is not subject to any legal incapacity to vote, and

(ii) he is a British citizen; and

(c) on the date of the poll he is registered in a register of parliamentary electors for that constituency.

(2) For the purposes of this Act and the principal Act a person qualifies as an overseas elector in respect of a constituency on the relevant date if–

(a) on that date he is not resident in the United Kingdom, and

(b) he satisfies one of the following sets of conditions.

(3) The first set of conditions is that–

(a) he was included in a register of parliamentary electors in respect of an address at a place that is situated within the constituency concerned,

(b) that entry in the register was made on the basis that he was resident, or to be treated for the purposes of registration as resident, at that address,

(c) that entry in the register was in force at any time falling within the period of 15 years ending immediately before the relevant date, and

(d) subsequent to that entry ceasing to have effect no entry was made in any register of parliamentary electors on the basis that he was resident, or to be treated for the purposes of registration as resident, at any other address."

3. A second set of conditions, in Section 1(4) RPA, applies that same principle to persons who were under-age and so could not be registered to vote on the day on which they were last resident in the UK.
4. A person who takes up residence abroad, satisfies the 15 year rule and applies to be registered, will be placed on the "overseas electors list". Once included on this list, he will be entitled to vote in any elections to the UK Parliament or the European Parliament, but not in UK local elections or in elections to the devolved assemblies. He may exercise the right to vote either by appointing a proxy to vote for him or by exercising a postal vote.
5. Section 14 of the Representation of the People Act 1983provided certain exceptions to the 15 year rule. These include members of the armed forces and servants of the Crown and certain family members who have moved with them. The principle linking these exceptions is that they are all persons who have been sent abroad at the behest of the Crown or (as in the case of British Council employees) in order to promote the interests of the United Kingdom.
6. The extension of the Parliamentary franchise to non-residents has been controversial and has been debated in Parliament on a number of occasions. Originally the 1985 Act itself fixed the period at five years. This was later extended to 20 years by the Representation of the People Act 1989, and then reduced to the present period of 15 years with effect from 1 April 2002 by section 141 of the Political Parties, Elections and Referendums Act 2000.
7. A witness statement of Ms Philippa Baker, a senior civil servant working in the Elections and Democracy Division of the Cabinet Office, which has particular responsibility for policy on issues relating to the democratic process, observed that the Government is currently reviewing whether the 15 year limit remains appropriate. The Government's position meanwhile is that the 15 year limit is justifiable for two particular reasons: first, the individual's connection with the UK will generally diminish over time; second, non-residents are necessarily less affected than residents by the laws passed by Parliament and the decisions of the UK government. The Lord President therefore takes the view that it is reasonable that the influence of non-residents on the democratic process should diminish over time. Although there may be legitimate argument about the point at which it is adjudged that voting rights should be lost, he submits that 15 years is a permissible option for the Government to take.

The decision under challenge.

8. On September 2, 2009, the claimant applied to Wandsworth Borough Council, the first defendant, to be registered to vote in UK elections. By letter received on December 15, 2009, the first defendant rejected the claimant's application, by reason of the application of the 15 year rule. The claimant submits that this decision was unlawful because it unlawfully restricts his right to free movement within the EU as guaranteed by Articles 21, 45, and 49 the Treaty on the Functioning of the European Union ("TFEU"). Since the rule is not under the control of Wandsworth, only the second defendant has been represented in this application.

The relevant EU law.

9. The right to citizenship of the EU is conferred by Article 20 TFEU on everyone who is a national of a member state. The rights of citizens are then spelt out in Article 20.2 as follows:

"Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely within the territory of the Member States;

(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

…

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder."

10. The right to move and reside is re-stated in Article 21. The right to vote in European Parliament and municipal (local) elections is re-stated in Article 22. The latter allows for a member state to derogate from the right where problems specific to that state warrant it.
11. Article 45 confers a right to freedom of movement on workers which includes a right to stay in a member state for the purposes of employment and seeking employment. Article 49 provides for the right to freedom of establishment. This confers the right to move freely for the purpose of setting up as a self-employed person or to set up and manage an undertaking.
12. In this case the claimant relies upon the freedom of movement provisions in each of Articles 22, 45 and 49. The Lord President does not accept that the claimant falls within the scope of Article 45 because he is managing director of and has a 35% shareholding in his own business. He contends that he therefore falls outside the definition of worker because he is not pursuing his activities in a relationship of subordination. However, he agrees that the claimant falls within the scope of Article 49 as a self-employed person and that in view of that nothing turns on whether Article 45 is also engaged or not. Accordingly, it is unnecessary in this appeal to determine that question and we heard no argument about it.

The grounds of challenge.

13. Mr Subiotto QC, in an attractive argument for the claimant, submitted that the 15 year rule is unlawful because it is liable to interfere with the freedom of movement. He submits that a rule which treats nationals who are resident abroad less favourably than they would have been treated had they remained in the UK potentially penalises them for exercising their right to freedom of movement. This is so whether they exercise the right for the purposes of work or for other reasons. That is the effect of the 15 year rule: those who have exercised their free movement rights are penalised after 15 years by being deprived of a fundamental constitutional right. It necessarily follows, he submits, that the exercise of the right to freedom of movement is rendered less attractive than it would otherwise have been. The rule is likely to act as a deterrent to those who wish to exercise the right.
14. To make good this proposition, Mr Subiotto relies upon a number of cases in which a benefit or other advantage has been conferred on a national of a particular state only on condition that he resides in, or has recently resided in, or been otherwise present in, the state at the time of claiming the benefit. These cases include Tas-Hagen v Raadsmaker WUBO van der Pensioen-en UItkeringsraad [2006] ECR I-10451 where the relevant rule for the payment of a civilian war benefit in the Netherlands required the applicant to be resident in the Netherlands on the date of the application; Stewart v Secretary of State for Work and Pensions Case C-503/09; 21 July 2011, which I discuss more fully below, which concerned a similar rule imposed as a condition of receiving incapacity benefit; and Morgan v Bezirksregierung Koln [2007] ECR I-916 where the claimant, a German national, complained about a rule under which she had to have attended an education course in Germany for a year as a condition of obtaining a student grant to study abroad. In each of these cases the CJEU (or, as it was previously known, the ECJ) held that the rule in question was unlawful. The Court held that whilst it may be a legitimate objective for a member state to require a degree of commitment before benefits can be granted out of the public funds of that state, it was disproportionate to link those benefits to residence or presence in the manner adopted in those cases. The effect in each case was unjustifiably to interfere with the freedom of movement, a fundamental EU right.
15. Mr Subiotto took by way of example the Stewart case recently heard by the CJEU. The claimant was a 16 year old girl with Downs' Syndrome. She applied through her mother for incapacity benefit. One of the conditions for receiving that benefit was that she was present in Great Britain on the date of the claim and had been present for an aggregate of at least 26 weeks in the 52 week period immediately preceding the date of claim. She did not satisfy either requirement because she was living in Spain with her parents. The CJEU accepted that it was for the state to determine the conditions under which benefits could be claimed from the social security fund. Moreover, it was legitimate for the state to require a genuine link between the claimant and the state. However, the particular rule went beyond what was necessary to establish the link; it could have been identified in a number of other ways less intrusive on the right to freedom of movement.
16. In the course of its judgment the CJEU first concluded that there had been an interference with the right to freedom of movement (paras 83-85):

"83 Inasmuch as a citizen of the Union must be granted, in all Member States, the same treatment in law as that accorded to nationals of those Member States who find themselves in the same situation, it would be incompatible with the right to freedom of movement were citizens to receive, in the Member State of which they are nationals, treatment less favourable than that which they would enjoy if they had not availed themselves of the opportunities offered by the Treaty in relation to freedom of movement (D'Hoop, paragraph 30, and Pusa, paragraph 18).

84 Those opportunities could not be fully effective if a national of a Member State could be deterred from availing himself of them by obstacles placed in the way of his freedom to move and to stay in another Member State by national legislation penalising the fact that he has used them (see, to that effect, D'Hoop, paragraph 31; Pusa, paragraph 19; Tas-Hagen and Tas, paragraph 30; and Case C-221/07 Zablocka-Weyhermüller [2008] ECR I-9029, paragraph 34; and Rüffler, paragraph 65).

85 Legislation, such as that at issue in the main proceedings, which makes acquisition of the right to short-term incapacity benefit in youth subject to a condition of past presence is likely, by its very nature, to deter claimants such as the appellant from exercising their right to freedom of movement and residence by leaving the Member State of which they are nationals to take up residence in another Member State. Indeed, while claimants who have not made use of the opportunities offered by the Treaty in relation to freedom of movement and residence can easily satisfy the abovementioned condition, that is not the case for claimants who have taken advantage of them. It is actually very probable that the latter, because they have taken up residence in another Member State, do not satisfy that condition."

17. The court then went on to consider whether the rule was justified and concluded that it was not. The court accepted that it was legitimate for a state to require a genuine link between the state and the person claiming from public funds and continued (para 95):

"While the rules for applying that condition do not, in themselves, appear to be unreasonable, none the less that condition is too exclusive in nature. Indeed, by requiring specific periods of past presence in the competent Member State, the condition of past presence unduly favours an element which is not necessarily representative of the real and effective degree of connection between the claimant to short-term incapacity benefit in youth and that Member State, to the exclusion of all other representative elements. It therefore goes beyond what is necessary to attain the objective pursued (see, by analogy, D'Hoop, paragraph 39)."

18. Mr Subiotto submits that the same principle applies here. British subjects who value the right to vote and will feel sufficiently aggrieved at its removal may be tempted to return to the UK as the fifteen year deadline approaches. This is not, as the UK Government claimed, simply a limited detriment impinging in a minor way on persons exercising free movement rights. That is to diminish the importance of the democratic right to vote. It is a significant denial of a substantial and important right whose removal might dissuade persons from exercising their free movement rights.
19. Furthermore, Mr Subiotto contends that there is no proper justification for the interference. First, the legitimate objective relied upon by the Government rested on the premise that connections with the UK had diminished over time. However, this was merely asserted, without any proper evidential basis to support it. The claimant had put before the court statements from a range of people, each of whom had lived abroad for more than 15 years for work or other reasons and each of whom was deeply aggrieved at the removal of the right to vote. They all emphasised that they greatly valued and sought to maintain their close connections with the UK.
20. Moreover, Mr Subiotto submitted that even if this lessening of the link could be said to constitute a legitimate objective, the 15 year rule itself was a disproportionate way of seeking to achieve it. As in the Stewart case, it went beyond what was necessary to achieve that objective. It was not necessary to adopt a residence rule in order to assess the degree of commitment. Some other test for identifying any dilution of the connection could be established. For example, it would be more proportionate to disentitle someone to vote if he or she had obtained nationality elsewhere and were therefore eligible to vote in their host country. Other mechanisms for establishing that connection could be whether someone has a family in the UK, or assets or investments. This would at least focus on individual circumstances in order to assess the requisite degree of connection.
21. In any event the need to register itself was capable of operating as an effective filter. Those who had lost interest in maintaining close connections with the UK would simply not take the trouble to register. The statistics provided by the Secretary of State show that in fact only some 35,000 overseas residents with the right to vote actually choose to register so as to preserve that right. This suggests that removing the barrier and allowing everyone to vote would not be likely to lead to any significant additional take-up of the right to vote.
22. It is also an arbitrary rule in many respects. There is no logic in fixing the rule at 15 years rather than any other period of time; nor in denying the right to vote to non-residents when many of them display more interest in politics in the UK than some who are resident; nor in discriminating in favour of those employed by the Crown so as to allow them the right to vote when similarly placed exiles employed by other bodies cannot.
23. Mr Coppel, counsel for the second defendant, contends that the application falls at the first hurdle. There are two limbs to this argument. First, with respect to the right to freedom of movement conferred on citizens of the EU, he contends that the structure of the legislation makes it plain that the question of who should be accorded the right to vote in a general election is a purely domestic matter over which the EU has no influence or interest. The EU has expressly identified which voting rights may be exercised by virtue of EU citizenship and no further rights can be implied. It would impermissibly extend the scope of EU law to rely on a citizen's free movement rights in order to expand his voting rights.
24. Mr Coppel accepts that the position is in principle different where economic rights are being exercised under Articles 45 and 49. If a rule placed obstacles in the way of a person so as to deter them from exercising the right to freedom of movement in the economic sphere, Mr Coppel accepts that this would be a restriction which would need justification. However, he says that in order to be an interference with economic rights, any such restriction must be related in some way to the claimant's employment or remuneration or other conditions of work. This restriction does not fall into that category. Moreover, he submits that there is no proper evidential basis for contending that this was the position here. None of the evidence advanced by or on behalf of the claimant begins to suggest that the 15 year rule has in practice caused anyone to cease working or running a business abroad so that they can return to the UK and thereby preserve the right to vote.
25. Mr Coppel further submits that even if an interference with the right to freedom of movement can be established, it is justified. There is plainly a legitimate objective in adopting this rule, as set out in the witness statement of Ms Baker. There will inevitably be some loosening of the link with the UK over fifteen years even if in some cases it may remain strong. It is impossible to identify a specific period of time after which it might be said that the removal of the vote is justified, but the Government was entitled to adopt a "bright line" rule to achieve that purpose.
26. Mr Coppel relies in particular upon two decisions of the European Court of Human Rights ("ECtHR") which have upheld the right of states to impose residence requirements when determining the scope of the franchise. Article 3 of the First Protocol (A3P1) of the Convention provides that contracting states shall:

"hold free elections at reasonable intervals by a secret ballot under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature".

27. In Melnychenko v Ukraine (2006) 42 EHRR 39 the ECtHR considered the legality under A3P1 of a residence restriction on the right to stand in elections. It did so by reference to its case-law on residence requirements for the right to vote. The court held (para 56):

"As to the condition of residence in relation to the right to stand for elections, as such, the Court has never expressed its opinion on this point. However, in relation to the separate right to vote, the Court has held that it was not per se an unreasonable or arbitrary requirement. The Court considers that a residence requirement for voting may be justified on the grounds of (1) the assumption that a non-resident citizen is less directly or continuously concerned with, and has less knowledge of, a country's day-to-day problems; (2) the impracticability for and sometimes undesirability of parliamentary candidates presenting the different electoral issues to citizens living abroad so as to secure the free expression of opinion; (3) the influence of resident citizens on the selection of candidates and on the formulation of their electoral programmes, and (4) the correlation between one's right to vote in parliamentary elections and being directly affected by the acts of the political bodies so elected."

28. The Lord President does not rely on the second or third of these reasons, but submits that the other two remain valid.
29. Melynchenko referred to the earlier decision in Hilbe v Lichtenstein ...App. No. 31981/96) which had first identified the four factors reproduced above. Hilbe also provided the justification for the adoption of a general or bright line rule notwithstanding that the circumstances of individual cases will vary when the court observed that "the law cannot take account of every individual case but must lay down a general rule". Hilbe itself was based on a line of decisions of the European Commission on Human Rights, which were cited in the court ruling.
30. Finally in this context Mr Coppel relied upon the decision of the ECtHR in Doyle v UK (Appl. 30158/06), decision of 6 February 2007, in which a specific challenge to the 15 year rule brought against the UK was considered and rejected. The court stated:

"Imposing a period of fifteen years as the cut-off point for eligibility to vote from overseas does not appear to be either disproportionate or irreconcilable with the underlying purposes of Article 3 of Protocol No. 1 (Hirst (No. 2), cited above, § 62). Over such a time period, the applicant may reasonably be regarded as having weakened the link between himself and the United Kingdom (Matthews, § 64) and he cannot argue that he is affected by the acts of political institutions to the same extent as resident citizens. It may be noted that in European Union countries, persons in the position of the applicant may generally vote in European Parliament elections. It is also open to the applicant, whether or not he so wishes, to seek to obtain the vote in the country of residence, if necessary by applying for citizenship. Furthermore, if he returns to live in the United Kingdom, his eligibility to vote as a British citizen will revive."

31. Mr Coppel submits that although these cases were not directly concerned with the question of justification in the context of the EU right to freedom of movement, they were essentially engaged with the same issue. They were concerned to determine whether a restriction on the right to vote was justified. The reasoning applied equally to the justification for any interference with the freedom of movement. These authorities accept that there is a legitimate objective in imposing a restriction on the right to vote and they also confirm that the 15 year rule itself is a proper and proportionate bright line rule to adopt.
32. Moreover, in Eman and Sevinger v College van burgmeester en wethouders van Den Haag [2006] ECR I-8055 the ECJ itself followed the observations of the ECtHR in the Melynchenko case. Eman was a case where Dutch nationals in the overseas Dutch territory of Aruba were not allowed to vote in elections to the European Parliament even though other overseas Dutch nationals were. The issue before the court was whether this discrimination was lawful. The court held that it was not since it distinguished between these two categories of overseas residents without justifiable grounds. However, in the course of giving judgment the ECJ expressly noted that Melynchenko had found that a residence requirement was not in itself unreasonable or arbitrary, and concluded that:

"…the criterion linked to residence does not appear, in principle, to be inappropriate to determine who has the right to vote and to stand as a candidate in elections to the European Parliament."

33. Mr Coppel submits that the court would not have made these observations had it thought that the rules might be challenged on free movement grounds.
34. The Lord President relied upon a number of supplementary factors in support of a defence of justification: the fact that the competence lies solely within the sphere of the UK and that accordingly a wide margin of appreciation is appropriate; that the rule as it stands already permits the right to vote over three Parliaments to those who have exercised free movement rights; and that the claimant has a right as an EU citizen to vote in EU Parliament and local elections in the host State.

Discussion.

35. I do not accept Mr Coppel's submission that the Article 21 right to freedom of movement cannot as a matter of principle even be engaged by this rule. It is in my view a misunderstanding of the claimant's argument to suggest that he is seeking to imply a right to vote into Article 21 which is inconsistent with its express terms. The claimant is not submitting that he has a right to vote in the UK general election simply by virtue of being a citizen of the EU. He accepts that the scope of the franchise in a general election is a matter for each state to determine. Nor does he allege that the scope of the franchise is directly governed by EU law. His submission is that the State's competence to define who may vote must not be exercised in a way which defeats rights conferred by EU law, and the right conferred on an EU citizen to exercise the freedom to move to another member state and reside there is one of the most fundamental rights given by the Treaty.
36. In my judgment, that analysis is correct. It is not a satisfactory response to the free movement argument simply to say that the scope of the franchise is exclusively within the competence of the UK. That was equally so of the rule in Stewart but it did not of itself defeat the claim. In my judgment, if the claimant can show that the 15 year rule does unjustifiably interfere with the freedom of movement conferred by Article 21, the court would have to set it aside. I cannot imagine that the CJEU would concede that a national rule could defeat this right. Nor do I accept that this analysis is in any way incompatible with the fact that certain rights to vote, but not in a general election, are expressly given to migrants in the host state.
37. It follows that even if Mr Coppel is right to say that any interference with economic rights would have to be related specifically to their employment in some way, he accepts that the same limitation would not apply where the claimant was seeking to exercise the right of free movement as a citizen of the EU.
38. However, the claimant needs to show that the obstacle created can fairly be said to deter persons from exercising their rights, whether under Article 21, 45 or 49. 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. The court has held, for example, that in order to constitute an interference with the freedom of movement of workers, the rule which is said to create the restriction must affect access to the labour market in a way which is not too indirect or uncertain: see Graf [2000] ECR I - 493. I see no reason why that principle should not apply where the rights of free movement derived from citizenship are being relied upon.
39. In my judgment, in this case the restriction is too indirect and uncertain and has not been established on the evidence. There is no evidential basis for saying that the rule does create a barrier of any kind to freedom of movement. Mr Subiotto accepted that it was unrealistic to suggest that the possibility of being denied the right to vote 15 years down the line would in practice deter anyone from leaving the UK to live in another member state. It would not carry sufficient weight. So at the time the right is first exercised it is wholly uncertain whether the rule will bite at all. That depends on future events. For good forensic reasons Mr Subiotto focused on the position of someone who had been away for almost 15 years and claimed that the rule might discourage such a person from staying abroad in another member state. I do not think that is at all likely or, to use the language employed by the CJEU in Stewart, that the rule would "by its very nature" have that effect. Moreover, the lack of any evidence to demonstrate that it has in practice done so simply reinforces that conclusion. Once persons have been absent for 15 years, particularly if they are engaged in economic activity of a kind falling within Articles 45 and 49 - but even if they are not and have simply built up a social and cultural life abroad - it is inherently unlikely that the loss of the right to vote would be sufficient to cause them to up sticks and return to the UK.
40. I accept that the claimant and others who have provided witness statements are genuinely upset about the rule and consider it to be unjust and unnecessary. The right to vote is a fundamental constitutional right and the claimant is aggrieved by its removal. It does not, however, follow that disenfranchisement constitutes a deterrence to free movement. For reasons I have given, in my judgment, it does not.
41. Strictly therefore the issue of justification does not arise. However, I shall deal with it briefly in case I am wrong on the first point.
42. In my view, the 15 year rule is 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.
43. The cases relied on by Mr Subiotto to show that a residence rule is not warranted, such as the Stewart decision, do not in my judgment bear on the issue here. They deny the legitimacy of a rule requiring a presence or residence in the UK at the time of claiming a benefit as a proportionate means of assessing the strength of a person's past commitment to the UK. But past periods of residence will in principle be a legitimate method of measuring commitment provided the rule is a proportionate one. Eman and Sevinger holds that this is true specifically in the context of the right to vote.
44. Similarly, the 15 year rule is designed to establish a test to identify when the absence of residence can fairly be said to have diluted the link with the UK sufficient to justify the removal of the right to vote. The fact that some residence tests do not properly or proportionately measure the strength of commitment does not mean that the adoption of a non-residence test cannot legitimately measure the weakening of commitment. This rule does not fix on non-residence at some particular point in time; it requires a consistent period of non-residence. In my judgment that is a justified way to measure the dilution of commitment. Thereafter the choice of a bright line rule is inevitable. It would in my view be wholly impracticable to adopt a rule which required consideration of the personal circumstances of all potential expatriate voters as Mr Subiotto suggests. Furthermore, on a matter of policy of this nature falling within the competence of the member state, a significant degree of discretion must be given to the policy maker: see Arthur Gottwald v Bezirkshauptmannschaft Bregenz, Case C-103/08 para 34.
45. I also agree with Mr Coppel that the ECtHR decisions upholding residence rules in this context are highly material. Mr Subiotto is plainly right to say that they do not consider the compatibility of the 15 year rule with the freedom of movement provisions. Even the CJEU case of Eman and Sevinger was focusing on a discrimination argument rather than on free movement rights when it referred approvingly to the decision in Melnychenko. However, if it is in principle legitimate and proportionate to remove the right to vote for non-residence after this length of time, then it is difficult to see how it can be said unjustifiably to interfere with the freedom of movement. Putting the claimant's case at its highest, any interference with free movement resulting from the application of the 15 year rule is marginal. Once a legitimate and rational basis for the rule is established, I do not believe that any interference can properly be characterised as unjustified.

Discriminatory provision.

46. There was a further argument which was floated by Mr Subiotto but without any great enthusiasm. He submitted that the rule infringed the EU principle of equality not least because some persons, such as those employed by the Crown or members of the armed forces and their spouses, who had lived abroad for more than 15 years remained entitled to vote. Their existence demonstrated that there were more ways of testing commitment than a simple residence rule.
47. I reject this argument for two reasons. First, as Mr Coppel submits, the general principles of EU law only apply where member states are acting within the scope of the Treaties. This means where the Government is either empowered or obliged by EU law to adopt the rule in issue. The CJEU has no jurisdiction to regulate a state's laws in accordance with these principles in other areas: see the discussion by Laws J, as he was, in R v Ministry of Agriculture, Fisheries and Food ex parte First City Trading [1997] 1 CMLR 250 paras 39-45. The rules providing for the scope of the Parliamentary franchise do not fall within the scope of the Treaties; they are purely within the competence of the state. Accordingly, the non-discrimination principle cannot assist the claimant.
48. In any event, a discriminatory act is only unlawful if it is unjustified. I accept the submission that the exemptions can be justified in this case. The exempted categories are resident abroad at the request of the State or otherwise in order to pursue the national interests of the United Kingdom. They are in a different category to those who choose for personal reasons to live in another EU state.

Disposal.

49. For these reasons, I would dismiss this application.

Mr Justice King:

50. I agree. This case does not in terms raise any constitutional issue concerning  the right to vote. 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. I agree that the domestic provision under challenge does engage Article 20/22 notwithstanding its subject matter is within the exclusive competence of the national state, but that the challenge fails 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.