How absolute is your right to vote? Considering the legality of non-resident voting restrictions

Summary The European Court of Human Rights has considered whether the United Kingdom's law denying voting rights to those non-resident citizens living overseas for 15 years or more is a contravention of article 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court found that the UK laws denying voting rights to persons living abroad for more than 15 years fell within the margin of appreciation afforded to States and did not violate the article 3 right to free elections.

Facts

The applicant was a UK citizen who resided in Italy. He had left the UK upon retirement in 1982. Under the Representation of the People Act 1958 (UK), British citizens residing overseas for less than 15 years are permitted to vote in parliamentary elections in the United Kingdom, but those resident abroad for any longer lose that permission. The complaint arose after the applicant attempted to vote in the general election of 5 May 2010 but was unable to do so because he fell well outside the 15 year time period.

The applicant contended that his ineligibility to vote constituted a violation of article 3 of Protocol No. 1 to the Convention, which states:

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

Decision

Jurisprudence to date confirms that the right of an individual to vote in an election is implicit in article 3 but is not absolute. Further, within this rule there exists a margin of appreciation for contracting States to impose limitations on the implied right. The central issue for the Court in this case was whether the UK’s non-resident voting restriction fell within this margin of appreciation and thus constituted an acceptable limitation under article 3 of Protocol No. 1.

The issue of non-resident restrictions is not a novel one. The Court identified a number of authorities which considered that complaints concerning restrictions on the right to vote based on residence are ill-founded. The justification for upholding the restriction in these cases relied on a number of factors. Most importantly was the presumption that non-residents are less directly affected or continually concerned with their country's current issues and have less knowledge of them. Non-residents are also unlikely to be affected by changes in policy, particularly in relation to financial policy.

These points were raised by the UK, which argued that imposing a 15 year time limit for non-residents was an acceptable limitation because after such a lengthy period of absence, an individual's connection with the country was likely to diminish.  This contention was supported by the number of registered non-resident voters. In 2012, of the 4.4 million potential overseas voters, only some 233,888 were registered to vote. Furthermore, it was 'undeniable', in the view of the Government, that a non-resident who was absent for more than 15 years would be affected to a lesser extent by a decision of a government.

In response, the applicant contended that with the emergence of new technologies and cheaper transport, the justification of the non-resident disconnect was no longer relevant. A non-resident could now easily stay up to date with current affairs in their State of nationality and maintain more frequent contact. As was noted by the Court, quoting from a House of Lords Committee bill proposal:

Britons overseas can listen to our radio via their computer, they can watch British television and read British newspapers just as rapidly as anyone living here … [there are] many British overseas residents who are as well, if not better, informed about British political affairs than the average voter here. So the old argument about expatriates' inability to make an informed judgment about the great issues in our political life no longer holds.

This was particularly relevant in the applicant's case because he had retained very strong ties with the United Kingdom, despite the fact he had lived abroad for 30 years. He received a military pension from the State, he paid tax, he had family members in the United Kingdom and was also a member of a number of clubs and organisations based there. He pointed out that as a tax paying member of the State, he was entitled to return to United Kingdom to receive treatment from the National Health Service. Moreover, policy decisions relating to pensions, finance, taxation and health would also directly affect him.

Despite the applicant's submissions, the Court did not consider that the non-resident voting restriction fell outside the state party’s margin of appreciation in fulfilling its obligations under article 3 of Protocol No. 1. The Court also agreed with the Government's submission that the existing 15-year time limit was an acceptable one. Whilst in individual cases, such as the applicant's, the rule may be unfair, most non-residents living abroad for this length of time would be sufficiently disconnected so as to not be affected. A general rule also promoted legal certainty. The Court stated that it would not be feasible to have a State ascertain on a case-by-case basis whether a non-resident displayed a sufficient connection to the country to warrant a vote. This approach would also lead to problems of arbitrariness and inconsistency.

Commentary

The relevance and contentiousness of non-resident voting restrictions is likely to continue to increase, particularly in the European context as freedom of movement between States within the European Union increases. As the Court recognised, there is growing awareness within Europe of the problems posed by migration in terms of political participation in the countries of origin and residence. It may well be that as international migration increases, so does the pressure on States with non-resident voting restrictions to review their legislation. For now, however, this case continues the line of authority that upholds the legitimacy of non-resident voting restrictions falling within the broad margin of appreciation afforded to States in the context of their article 3 obligations.

This decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-119229

Rohan Phelps is a lawyer at DLA Piper.