Tomescu, R (on the application of) v Lord President of the Council & Ors

The Treaty on European Union does not confer a right for EU citizens to vote in national parliamentary elections. The national parliamentary franchise remains principally within domestic competence. EU law may nevertheless be engaged if a franchise rule sufficiently interferes with free movement, but an indirect, uncertain or speculative connection is insufficient. Rights under Article 3 of the First Protocol belong generally to citizens, and excluding non-citizens from the national franchise does not, without more, breach that provision. Where the proposed grounds are unarguable, wider public interest in the issue does not justify permission for judicial review.

The claimant, a Romanian national settled in the United Kingdom, sought permission to challenge the exclusion of most EU citizens from the United Kingdom parliamentary franchise. He alleged that the exclusion breached EU law, including the principles of free movement and non-discrimination, and Article 3 of the First Protocol to the European Convention on Human Rights. The defendants opposed permission. The court considered the statutory franchise, relevant Treaty provisions, authorities concerning EU citizenship and free movement, and the Supreme Court’s treatment of voting rights under the Convention.

1. Permission refused. The claim was unarguable on both grounds.
2. Section 1 of the Representation of the People Act 1983 limits entitlement to vote at parliamentary elections to registered electors who are Commonwealth citizens or citizens of the Republic of Ireland and of voting age. Article 22 of the Treaty on European Union expressly addresses municipal and European Parliament elections. It does not create a right to vote in national parliamentary elections.
3. The national franchise is not directly within the scope of EU law. The court accepted, consistently with R (on the application of Preston) v Wandsworth London Borough Council and Anor [2013] QB 687, that a domestic franchise rule might in principle be unlawful if it unjustifiably interfered with free movement. The evidence here showed no sufficiently direct or certain interference. Any suggested effect on political status or the profile of EU citizens’ concerns was too indirect, uncertain and speculative.
4. The decisions relied on concerning EU citizenship and nationality, including Rottmann v Freistaat Bayern, Garcia Avello v Belgium, D’Hoop v Office National de l’emploi and Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, concerned matters directly connected with EU citizenship or free movement. They did not extend the scope of EU law to the national parliamentary franchise. R (on the application of Barclay) v Lord Chancellor and Ors [2009] UKSC 9; [2010] 1 AC 464 supported the conclusion that Article 3 of the First Protocol generally protects citizens’ voting rights and permits citizenship requirements.
5. Since neither ground was arguable, issues of objective justification and proportionality did not arise. Wider public interest in the issue was not a compelling reason to grant permission.
6. A protective costs order was refused. The claimant was not impecunious, the costs were not shown to have a prohibitive or chilling effect, and he had continued despite an earlier refusal. Costs were summarily assessed at £10,000.