Teshome v The Lord President of the Council

An EU citizen residing in the United Kingdom has no greater voting rights than a United Kingdom national in the same position. Articles 20 and 22 TFEU and Articles 39 and 40 of the EU Charter of Fundamental Rights require equal treatment, not a freestanding right to vote immune from lawful restrictions imposed on nationals. The Supreme Court’s conclusions in the joined prisoner-voting litigation were binding on the essential points and, in any event, were to be followed. Where the Supreme Court has concluded that no reference to the CJEU is required, a lower court should not make such a reference absent a proper basis. A claim which could produce no practical benefit was dismissed.

The claimant, a Dutch national originally from Somalia, had been convicted of murder in the United Kingdom and sentenced to life imprisonment. He challenged the denial of voting rights in local elections and elections to the European Parliament, relying on EU law and seeking voting rights, legislative action and damages.

Permission had been granted while related prisoner-voting challenges by British citizens were pending before the Supreme Court. Those challenges were determined before the claim was heard. The central issues were whether EU law conferred a voting right beyond that available to United Kingdom nationals and whether a reference to the CJEU was required.

1. Disposition. The claim was dismissed. By the time of the hearing it was academic because the claimant had been deported, and the Supreme Court’s decision made the claim unarguable and incapable of producing any benefit.
2. Equal voting rights. Articles 20(2) and 22 TFEU, together with Articles 39 and 40 of the EU Charter of Fundamental Rights, required an EU citizen resident in another Member State to have voting rights under the same conditions as nationals of that State. They did not confer a greater right. Since United Kingdom nationals in the claimant’s position could lawfully be disenfranchised, an EU citizen in the same position could also be disenfranchised.
3. Supreme Court authority. The court followed the conclusions reached by the Supreme Court in the joined prisoner-voting litigation. European law did not incorporate a right to vote parallel to that recognised by Strasbourg, nor another individual voting right on which the appellants could rely. The essential reasoning was that Strasbourg jurisprudence was the primary control and that the Treaty provisions were concerned with equality. There was no inequality between an EU citizen serving a life sentence and a United Kingdom citizen in the same position.
4. Reference to the CJEU. The Supreme Court had considered the relevant European-law questions to be acte clair and had concluded that no reference was required. The Administrative Court had no reasonable doubt about that conclusion. It would therefore have been wrong to make a reference, notwithstanding the general power to do so under section 3(1) of the European Communities Act 1972.
5. The court also observed that legal aid should not have been extended after the Supreme Court’s decision, since the claim was plainly bound to fail.

There was no appeal from a lower court decision described in the judgment. Permission for judicial review had been granted by Lang J on the papers on 7 February 2013, with the substantive hearing deferred pending the Supreme Court’s decision in related litigation.