The European Court of Human Rights. Photo: Rainer Jensen/DPA/PA Images

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 w…

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