Preston, R (on the application of) v The Lord President of the Council

A national condition governing the parliamentary franchise remains subject to EU free-movement law where it is capable of restricting the exercise of a Treaty right. A disadvantage arising from residence abroad is not, however, a restriction unless its practical effect can credibly deter free movement; a consequence dependent on fifteen years of overseas residence and numerous future contingencies was too indirect and uncertain.

In any event, the fifteen-year overseas-elector rule in Representation of the People Act 1985 pursued the legitimate aim of confining the franchise to citizens with a close, continuing and objectively ascertainable connection with the United Kingdom. Residence was a rational and practicable criterion, and the bright-line rule was proportionate.

The claimant, a British citizen who had lived and worked in Spain since 1995, was refused registration as an overseas elector because he had not appeared on a United Kingdom electoral register within the preceding fifteen years. He sought judicial review of the rule in section 1(3)(c) of the Representation of the People Act 1985, contending that it unjustifiably restricted his EU right to move and reside freely in another Member State.

The Divisional Court dismissed the claim: [2011] EWHC 3174 (Admin). It held that the rule did not create a sufficient obstacle to free movement and, alternatively, that it was justified and proportionate. The claimant appealed; the respondent’s notice contended that the parliamentary franchise lay outside the scope of the Treaty on the Functioning of the European Union.

1. Appeal dismissed. The court granted permission to appeal to both parties, but upheld the dismissal of the judicial-review claim. It rejected the respondent’s contention that the issue was wholly outside the scope of EU law.

2. The parliamentary franchise is created by domestic law, not by the Treaty on the Functioning of the European Union. Nevertheless, a Member State exercising its competence to prescribe the franchise must have regard to fundamental Treaty rights. If a domestic electoral condition restricts free movement and residence, its objective justification must be examined.

3. The fifteen-year rule was neither an express nor an inherent restriction on free movement. Disenfranchisement after fifteen years of voluntary residence abroad was a disadvantage, but not every disadvantage of non-residence is a restriction. The claimant had not shown a credible potential deterrent: over such a period, future events and personal circumstances were too uncertain for the prospect of losing an overseas vote to deter a citizen from moving, working or remaining in another Member State.

4. Alternatively, the rule was justified. The United Kingdom had a wide margin of appreciation when setting conditions for its parliamentary franchise. The rule legitimately measured whether a citizen’s connection with the United Kingdom had become sufficiently weakened to justify exclusion from a national election. Residence was a rational, objective and practicable measure of that connection. A fifteen-year period, covering three parliamentary terms, allowed a substantial period of continued overseas voting. Individual assessments of every non-resident’s connection with the United Kingdom would be unworkable.

5. The exceptions for Crown employees, service personnel and comparable categories did not make the rule objectionably inconsistent. Their overseas residence was ordinarily at the request of, or in the interests of, the United Kingdom and was objectively distinguishable from voluntary residence abroad. The social-benefit authorities concerning immediate presence or short-term residence requirements did not govern this materially different electoral rule.

6. No reference under Article 267 of the Treaty was necessary. The domestic court could decide justification by applying well-established EU principles.

• Court of Appeal (Civil Division) — granted permission to appeal, dismissed the claimant’s appeal and rejected the respondent’s scope-of-application argument: [2012] EWCA Civ 1378.
• High Court of Justice, Queen’s Bench Division, Administrative Court (Divisional Court) — dismissed the judicial-review claim challenging section 1(3)(c) of the Representation of the People Act 1985: [2011] EWHC 3174 (Admin).