Permission to appeal application refused in EU Referendum case
24 May 2016
R (on the application of Shindler and another) (Appellants) v Chancellor of the Duchy of Lancaster and another (Respondents) - UKSC 2016/0105.
On appeal from the Court of Appeal Civil Division (England and Wales)
The Supreme Court held an oral hearing of the application for permission to appeal, with the appeal to follow immediately if permission to appeal was granted.
The appellants challenged the lawfulness under EU law of section 2 of the EU Referendum Act 2015 in respect of its exclusion from the EU Referendum franchise British citizens who, in exercise of their EU free movement rights, reside outside the UK and have been resident outside the UK for a period of more than 15 years. The appellants claim that their disenfranchisement constitutes a unjustified restriction of their EU law rights to move and reside within the territory of the Member States and separately that the common law affords protection to their right to vote as British citizens and full members of the United Kingdom.
The Supreme Court has refused permission to appeal and the Court of Appeal judgment will therefore stand.
Giving the Court's decision, Lady Hale (Deputy President of the Supreme Court) said:
"We should make it clear that the question is not whether this particular voting exclusion is justifiable as a proportionate means of achieving a legitimate aim.
The question is instead, firstly, whether European Union law applies at all, as only if it does so is there any possibility of attacking an Act of Parliament; and secondly, if so, whether there is any interference with the right of free movement.
Assuming for the sake of argument that European Union law does apply, we have decided that it is not arguable that there is an interference with right of free movement, for the reasons given by the Divisional Court and the Court of Appeal.
We do have considerable sympathy for the situation in which the applicants find themselves and we understand that this is something which concerns them deeply. But we cannot discern a legal basis for challenging this statute.
Accordingly the application for permission to appeal is refused."