Shindler & Anor v Chancellor of the Duchy of Lancaster & Anor

A referendum forming an integral part of a member state's process for deciding whether to withdraw from the European Union falls within its own constitutional requirements under article 50(1) of the Treaty on European Union. Its franchise therefore falls outside the scope of EU law.

In any event, a national measure restricts EU free-movement rights only where it both disadvantages a person because that right was exercised and is liable to deter its exercise or continued exercise. Effects which are too uncertain, indirect or insignificant do not suffice. Disenfranchisement after 15 years' residence abroad did not meet that threshold.

The common law supplies no general power to declare primary legislation unconstitutional merely because it limits the right to vote.

Two British citizens who had lived in other EU member states for more than 15 years were ineligible to vote in the referendum on the United Kingdom's membership of the European Union. They challenged section 2 of the European Union Referendum Act 2015, which adopted the parliamentary franchise and its 15-year overseas-residence rule.

The Divisional Court held that the provision fell within EU law but did not restrict free movement. It alternatively held that any restriction was proportionate. It dismissed the claims while rejecting the respondents' delay argument.

The citizens appealed against the findings on restriction and justification. They also sought a common-law declaration that the legislation was unconstitutional. The respondents contested those grounds and argued that the legislation fell outside EU law. The central issues were the scope of article 50(1) of the Treaty on European Union, the test for interference with free movement, and the asserted common-law power to declare legislation unconstitutional.

1. Appeal dismissed unanimously. The Master of the Rolls delivered the leading judgment. Elias LJ agreed on the two issues decided, and King LJ agreed with both judgments.

2. Article 50(1) of the Treaty on European Union reserves to each member state the decision to withdraw in accordance with its own constitutional requirements. Parliament had made the referendum an integral condition of the United Kingdom's withdrawal process. The franchise established by section 2 of the European Union Referendum Act 2015 was consequently outside the scope of EU law. The referendum was not merely an incidental preliminary step, notwithstanding Parliament's continuing legal sovereignty.

3. If EU law nevertheless applied, a restriction of free movement required both a disadvantage imposed because free movement had been exercised and a measure liable to deter or dissuade its exercise or continued exercise. The potential for deterrence was the mischief engaging EU law. A disadvantage whose effect was too uncertain, indirect or insignificant did not amount to a restriction. Martens had not replaced this established two-stage approach with a test based on disadvantage or penalisation alone.

4. The 15-year rule did not satisfy the deterrence requirement. Although loss of the referendum vote was a disadvantage and the referendum might have special importance for citizens living elsewhere in the EU, it was unrealistic to suppose that disenfranchisement would be reasonably likely to cause the relevant class to return to the United Kingdom. Its effect on free movement was too uncertain, indirect or insignificant. The court therefore did not decide whether any restriction would have been objectively justified.

5. The common-law claim was rejected. There was no general common-law right capable of taking precedence over an Act of Parliament or supporting the requested declaration of unconstitutionality. The exceptional possibility mentioned in Moohan, concerning abusive legislative entrenchment through curtailment of the franchise, did not apply because section 2 was not abusive.

6. Elias LJ added provisional observations that section 2(1) of the European Communities Act 1972 might not, as a matter of domestic statutory scope, have been intended to confer primacy on EU law when the question was whether the United Kingdom should remain bound by that law. Those observations were not necessary to the disposition.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court held that section 2 of the European Union Referendum Act 2015 fell outside EU law and, alternatively, did not restrict free movement.
2. High Court, Divisional Court: The court dismissed the claims. It held that section 2 fell within EU law but did not restrict free movement and was, alternatively, objectively justified. It rejected the respondents' delay argument. No citation is stated in the judgment.