QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KING
| The Queen on the Application of
JAMES ALISTAIR PRESTON
|- and -
|(1) WANDSWORTH BOROUGH COUNCIL
(2) LORD PRESIDENT OF THE COUNCIL
Mr Jason Coppel (instructed by The Treasury Solicitor) for the Second Defendant
Hearing date: 8 November 2011
Crown Copyright ©
Lord Justice Elias :
"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."
The decision under challenge.
The relevant EU law.
"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."
The grounds of challenge.
"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  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."
"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)."
"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".
"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."
"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."
"…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."
Mr Justice King: