Brexit will trigger electoral reform for expat voters - Fenella Morris QC

(Featured in The Times' "The Brief" on Wednesday 13th July 2016).

Into the Brexit maelstrom comes another threatened legal challenge: expat voters say their right to a postal vote was denied, and in such numbers that there should be a second referendum to ensure electoral fairness.

A second referendum is unlikely, but Brexit should give a boost to electoral legislation reform.

The expats voters claim they registered for a postal vote but did not receive their papers in time to vote or in some cases at all. The numbers affected are said to be in the thousands.

The response of the Electoral Commission to the claims is that it is preparing a report covering the issues arising out of the referendum, which will address those affecting overseas voters. It does not promise anything as dramatic as setting aside the result of the referendum or recommending a second one.

However, there are reports that disgruntled expat voters will bring a class action to challenge the denial of their fundamental right to vote. If such a claim were successfully pursued, it could result in the making of a declaration for a breach of that right. It might also lead to a declaration that the referendum process was deficient. That could well pave the way for a second referendum, particularly if article 50 had not been triggered by then.

All this is in the realm of speculation, and it is doubtful that, as the realities of Brexit develop, there will be sufficient momentum to pursue such a claim to such a decisive conclusion.

Another possibility might be an attempt to hitch a claim for damages to the action for breach of the right to vote, but that would require the expat voters to show that the declaration was not sufficient to afford them just satisfaction, and also to demonstrate their loss, perhaps from the value of their pensions or other savings as a result of Brexit.

Even if the complaints of disenfranchised postal voters to the Electoral Commission or their legal claim are not enough to change things now, in the longer term the Overseas Voters Bill does offer some hope for the future.

Its aim is to facilitate an increase in the registration of resident overseas voters who are eligible to participate in elections, to extend the criteria for eligibility and to enable those registered as overseas voters to cast their votes through the use of the internet.

The government has indicated that it will bring forward the passage of the Bill in the light of the events of the referendum and the decision of the Supreme Court in the challenge to the 15 year rule.

If there were to be a second referendum, the Overseas Voters Bill might make a significant difference to the result.

Although some might be sceptical about the chances of the bill making its way quickly and decisively through parliament, the pressure on the government to demonstrate integrity and reliability are likely to ensure it is on the statute book sooner rather than later.