Brexit - ex-pat votes and human rights

While on the political level, much of the discourse around Brexit in the UK focuses on the economic impact of Brexit and the role of Parliament in deciding the fate of the country outside the EU, very little focus has been given to the profound and personal impact of Brexit on the thousands of people who will lose their status as EU citizens without having had the opportunity to vote last year. These include British nationals living in Europe or beyond who have been outside the UK for more than 15 years as well as British nationals from Crown Dependencies and Overseas Territories who, with the exception of Gibraltar, were excluded from the vote.  Myself and colleagues at Doughty Street, have written and made submissions to Parliament on these issues. This case will likely bring those issues into sharp focus. 

Before the referendum, the UK Supreme Court upheld the Government position that British expats who had been out of the country for more than 15 years should not be able to vote in the referendum. But the validity of any agreement for the UK to leave the EU under Article 50 is not just a matter for the British courts. Any State may decide to leave the EU under Article 50 “in accordance with its constitutional requirements.” As the UK has no written constitution, the detail of what these constitutional requirements are, is still not necessarily clear cut. The EU itself is bound, through the Treaties, by the Charter on Fundamental Rights and Freedoms. This means the opinion of the European Court of Justice may be sought as to whether or not an agreement is compatible with the Treaties and the actions of the EU institutions in negotiations under Article 50 must also be carried out in accordance with the Treaties. If the Court considers the agreement is not compatible with the Charter or that the referendum and subsequent process was not in accordance with our constitutional requirements, the agreement will not enter into force unless it is amended or the Treaties are revised.

In the UK the political focus has shifted to the General Election, but those excluded from voting in the referendum will not have a chance to make their voices heard there either. Even if the political focus has moved, the clock has not stopped under Article 50. Triggering Article 50 was just the beginning of a process that requires respect for the principles of human rights, equality and democracy on which the EU is founded at every stage. Both the European Union and the UK will have to deal with the detail of how a withdrawal agreement will impact the human rights of individuals and it is crucial that those most acutely affected should be heard throughout the process, wherever they may be.