Court Challenge Against Voting Law That Disenfranchises Britons Abroad
- Written by Romano Subiotto, QC
LONDON – Yesterday, lawyers acting on behalf of James Preston applied for judicial review of the British law that strips British citizens living overseas for more than 15 years of the right to vote in Parliamentary elections.
Mr. Preston’s lawyers argue that the law penalizes British citizens as a result of their exercise of free movement and establishment rights guaranteed by the European Union, in violation of European Law.
The Government says that restricting the right of British citizens to vote in Parliamentaryelections is justified, but Mr. Preston disagrees. “I’m a British citizen and only a Britishcitizen, married to a British wife and both of us work for British firms. I read British papers,my children attend a British school and my estate taxes are owed to the British governmentwhen I die.
This law penalizes me for taking advantage of the opportunities that the Britishgovernment promised to all citizens when Britain joined the EU.
The spirit of this law isentirely inconsistent with British democratic traditions as well as our foreign policy, wherewe work to bring democracy to far off corners of the world.”
Mr. Preston, born in Leicester,now lives and works in Madrid, Spain after posting by his British employer 15 years ago. Unlike the United States or other major countries in the European Union, such as France, Germany, Italy, and Spain, the United Kingdom strips citizens of the right to vote in Parliamentary elections for the mere fact of having resided abroad for more than 15 years.Though exceptions exist for the military, civil servants and British Council employees, allother citizens, including Church of England missionaries and English teachers at British schools around the corner from the British Council, lose the right to vote after 15 years abroad.
In addition to British citizens like Mr. Preston, the only other citizens who do notenjoy the right to vote are children, individuals who suffer from mental illness, and criminals.Mr. Preston’s counsel, Romano Subiotto QC, noted that, “The British voting law penalizesBritish citizens who exercise their fundamental rights to move freely between EuropeanUnion countries. It prevents British citizens from enjoying the same free movement rights guaranteed to the citizens of other EU countries. This law is an anachronism in this day and age of easy, quick, and reliable communications.
”Mr Preston is represented by Romano Subiotto QC of Cleary Gottlieb Steen & Hamilton LLPand Daniel Jowell of Brick Court Chambers, both of whom are acting on a pro bono basis inview of the important constitutional issue raised by this case.
Questions and Answers
Q. Does the law prevent all citizens resident abroad from voting?
A. No. Only those citizens, who have been absent from the Registrar of Electors for 15years or longer are prevented from voting. Citizens who have been resident abroad for lessthan 15 years are still able to vote, either in person in their constituency in Britain, or byproxy or mail-in ballot. In addition, members of the British military, civil servants, andemployees of the British Council, a registered charity, as well as their spouses and civilpartners, retain their right to vote, regardless of the length of their absence from Britain.
Q. Is European law relevant to British voting laws?
A. Yes. When Britain entered the European Union, it obtained free movement rights forits citizens across the Union. At the same time, Britain opened its borders to workers fromother European countries. Workers from other major European countries have come toBritain to prosper, all the while enjoying the full rights of citizenship in their home countries,including the right to vote. But British citizens wishing to pursue similar ventures in Europelose the right to vote, a penalty that goes to the heart of British culture and traditions. By penalizing its own citizens for the exercise of free movement rights, Britain infringes theguarantees of the European treaties. Mr. Preston takes the position that the 15-year rule is a penalty that results directly from hisexercise of his fundamental rights to move and establish himself freely throughout the European Union. The Treaty on the Functioning of the European Union protects thesefundamental rights, and the Court of Justice of the European Union has consistently held thatany penalty, however minor, arising from the exercise of these fundamental rights violates the relevant provisions of the Treaty on the Functioning of the European Union.
Q. How is the law discriminatory?
A. Members of the armed forces, Crown servants, and employees of the British Councilare exempted from disenfranchisement after 15 years abroad, leading to the curious resultthat, for example, a Briton employed by the European Commission will lose the right to voteafter living in Brussels for more than 15 years, whereas a Briton working on the other side ofthe road for the UK embassy to the European Union will not, however long he/she hasresided in Brussels, now a mere 2 hour train ride from London, i.e., closer to London thanmany towns in the UK.
Mr. Preston’s view is that the law is therefore discriminatory. What is more, because of its arbitrariness, the 15-year rule is inherently incapable ofproviding an objective and justified basis to determine who should have the right to vote. Why should Britons, who have lived in, say, Brussels, for 16 years lose the right to votewhile those, who have lived there for 14 years still enjoy that right? Indeed, why should Britons, who live in another state of the European Union because they have been requested todo so by UK companies, or because they represent the UK in international organizations,such as the European institutions in Brussels, or work for NGOs representing UK interests, bepenalized by losing the right to vote?
Q. Are citizens abroad less affected by the actions of Parliament and less interested inBritish matters? If so, would this justify excluding them from voting?
A. The Government is likely to argue that the law is justified because, among otherthings, it achieves what they consider to be the indispensable public interest objective ofpreventing residents abroad who are not proximate to Britain from voting.But this justification is not legally sufficient and factually incorrect. It is clear that citizensabroad demonstrate a range of engagement with Britain and the British Government, and thatmodern day communications have given Britons abroad more ability than ever before toremain close to their homeland. Mr. Preston is a case in point – his identity remains British, preserved in part through strong ties to British life through family, business and cultural connections, as well as by an enduring commitment to the shared ideals and beliefs thatcharacterize the United Kingdom. Like many other Britons abroad, Mr. Preston alsocontinues to be affected by many decisions of Parliament much in the same way as citizensresident within Britain – he remains liable for estate taxes in Britain and his children arelikely to attend British schools and universities, as well as being affected (like all otherBritish citizens) by the British Government’s international actions, such as the decisions tosend troops into Iraq or Afghanistan. The British Electoral Commission recently recognizedthe continuing connection that citizens overseas maintain with Britain. When launching acampaign to encourage overseas voting, the Chair of the Electoral Commission, JennyWatson, confirmed that: “British citizens living abroad come from a wide variety ofbackgrounds, but we know that most maintain strong links with the UK. It is easier than everbefore for British citizens abroad to keep in touch with friends, family and colleagues backhome and many will also want to have their say in elections.”The 15-year rule has no bearing on the degree to which a British citizen will be affected by the election of the next Government. If disenfranchising citizens without a connection to Britain is indeed the law’s purpose, it goes much too far. At the same time, the law makes noeffort to determine the level of connection to Britain and the British government of citizens athome or resident abroad less than 15 years. Disproportionate laws are not consistent withBritish constitutional traditions.
Q. Would it be too complex for the Electoral Commission to organize voting for peoplein Mr. Preston’s circumstances?
A. No. The Electoral Commission already maintains an active service intended toregister and facilitate voting by British citizens resident abroad who remain eligible to vote(i.e., whose absence has yet to exceed 15 years). Mr. Preston requests only the same servicesthat are already available, namely the opportunity to return home to Britain to vote, to vote byproxy, or by mail-in ballot.
Q. Would it be too complex for candidates for Parliament to campaign overseas?
A. Candidates for Parliament are entitled to promote their candidacy in any way they seefit. Most candidates today use a range of modern means to communicate their candidacy tovoters, including websites and telephone solicitation. It is a truism that communication and4political debate no longer depend on physical proximity. There is no evidence that citizensabroad who retain the right to vote are not sufficiently well informed to cast their ballots, orthat the information made available by candidates for Parliament is not reaching them. Moreover, candidates for Parliament have access to the Electoral Register, a list that directs them to their constituency’s voters, whether at home or across the European Union or theworld. Finally, recent campaign visits by French and other foreign politicians to London, where many of their potential voters live, have demonstrated the feasibility ofcommunicating, even in person, with voters abroad.These arguments aside, the convenience of campaigning for politicians is not a relevant factorupon which the government may disenfranchise British citizens, and more fundamentally,there is no suggestion that the free expression of opinion would be jeopardized, or indicationhow it would be jeopardized, if Parliamentary candidates decided to campaign among expatriates abroad or decided not to campaign among them, but communicate in some otherway.
Q. Rather than bringing proceedings before the High Court, would it not be simplerfor interested citizens like Mr. Preston to simply return to Britain for a short periodof time, and then leave, re-starting the 15 year grace period in the process?
A. Yes. The effect of the law can be easily defeated if Mr. Preston simply returned toBritain for a very short period of time to re-establish residency, and then returned to Spain.In those circumstances he would be permitted to vote for a further 15 years. That the law isineffective at accomplishing its purpose shows just how unjust the law really is. There is noreason why British citizens abroad with sufficient means to return home temporarily shouldcontinue to have the right to vote, while those citizens without such means lose the right tovote. Though Mr. Preston could defeat the law’s operation, he challenges it because here cognizes that it represents a violation of fundamental principles of fairness and the rights ofcitizens to participate in the political process.
Q. Who is James Preston?
A. James Preston was born in Leicester in 1968 and grew up in Lancashire. He readhistory at the University of London and following graduation found work as a commercialsurveyor with, among others, Jones Lang Wootton, the British commercial propertyconsultancy firm. In 1995 Jones Lang Wootton assigned Mr. Preston to a posting in Madrid. He has lived in Madrid ever since, and is currently an employee and part owner of theSpanish subsidiary of a British property investment management firm. Mr. Preston is andremains exclusively a British citizen.Mr. Preston and his British wife Nicola have two children, aged 4 and 6, both of whom are British citizens and both of whom attend a British school in Madrid.
FOR IMMEDIATE RELEASE: 11 March 2010
Contact: Romano Subiotto QC
Email: rsubiotto@cgsh.com
Tel: (0)20 7614 2296 or +32 475 319 223
