Departure from Europe throws up yet another fundamental constitutional questionby George Peretz / October 11, 2018 / Leave a comment
Article 3 of the First Protocol to the European Convention on Human Rights (ECHR) proclaims that “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.” In other words, it proclaims the most fundamental aspect of any representative democracy—the right to vote for those who make your laws.
In 1994, Denise Matthews—a UK national living in Gibraltar—asked for the right to vote in elections to the European Parliament. She was refused: UK legislation said that only UK nationals resident (or resident within the previous 15 years) in Great Britain and Northern Ireland had the right to vote for the UK’s MEPs.
But Matthews didn’t take “no” for an answer. She took her complaint to the European Court of Human Rights in Strasbourg (ECtHR), which rules on alleged breaches of the ECHR. She pointed out that (unlike, for example, the Channel Islands) Gibraltar is fully subject to EU law. So, she said, the denial of a vote to Gibraltarians breached their rights under Article 3 of the First Protocol. The EU parliament was their legislature. It made their laws too. But they had no right to vote for its members. (For simplicity I am going to refer to the EU, though, at the time, it was the European Communities.)
Matthews won her case—and forced the UK government to give Gibraltarians the right to vote for UK MEPs. But her victory also, now, raises an important legal question about the withdrawal agreement that the UK may well end up signing with the EU: is it consistent with Article 3 of the First Protocol?
Since the UK’s membership of the ECHR is entirely independent of its EU membership, the UK will remain bound by the ECHR after Brexit, and subject to the rulings of the ECtHR, which is separate from the Court of Justice of the EU in Luxembourg (ECJ).
The provision of the draft withdrawal agreement that deals with the post-Brexit transition lays down this fundamental rule: “Union law shall be applicable to and in the United Kingdom during the transition period.” In other words, EU law will apply in the UK during the transition period more or less exactly as it does now. In…