Our Reference No. 12851/05
; David R. Burrage Alicante, SPAIN
Appeal by a British subject to the European Court of Human Rights - namely, violation of my most basic
human right to vote in a Parliamentary Election, called from time-to-time in the United Kingdom.
Statement of Facts: -
This document contains statement of facts 11. 14, relevant arguments 111. 15, statement of the object of the application V. 19, as these matters are, closely inter-related (inter alia), and should be read in relation to the application form, given under my hand on 25th September 2005.
Whilst I lodge this application in my own name and use my personal circumstances in this my application to appeal, I have to declare that I am the co-founder of the British Expatriates Association (Spain). Therefore any decision rendered by the Court will also affect thousands of our members.
In summary I appeal against the repugnant United Kingdom Law – Political Parties and Referendums Act 2000, which entered into effect on 1st April 2002, as under this act, British citizens are discriminated against by being disenfranchised of their birth right of a vote at national level in the United Kingdom after 15 years of absence from the United Kingdom.
This court will be aware that of the fifteen countries of the European Union only two other countries disenfranchised
their citizens in a similar manner. They are Denmark, after five years and Germany, after twenty-five years. I submit that this too is a clear breach of their Human Rights. I do not include the newly joined Member States, as they are embryonic and we have yet to hear more about them. In particular their national laws and democratic systems, for the protection of their citizens which accord with the Treaties of the European Union.
I appeal to you at this time as my fifteen-year period of absence expires on 31st December 2005. I do not appeal this matter upon the realisation that I am about to be so disenfranchised, as indeed whilst this Bill was in it’s proposal form in the Upper Chamber of the Palace of Westminster. On 24th June 2000, I appealed to the Right Honourable, The Lord Mackay, who was championing our cause against the introduction of this present repugnant and unlawful ‘Bill’.
I have enclosed a copy of my letter forwarded to him, which clearly corroborates my feelings in this matter and further, how precious I consider my right to a national vote.
During the reading of this ‘Bill’ in the House of Lords, one noble Lord declared that “Citizens who absent themselves from the United Kingdom”,(albeit they have exercised their lawful right to move with ‘freedom’ and ‘dignity’, within the Member States of the European Union.) “Can have no further interest in the United kingdom.” This was a very foolish and ‘ill conceived’ statement, as the noble Lord had failed to take into account many factors that I will shortly deal with. Not least, that although in my case I am an invalid, I devote my entire life to freely assisting other British expatriates with all their problems, which are mostly concerned with problems on a U.K. national level. However, I will say at this time that, many of their Lordships in the Upper House are aged, out of touch with reality and failed to take into account all aspects of the equation when making such foolish statements. Further, it is regrettable that the protection of our democracy should be entrusted to people who hold such archaic views. Also, it may be pointed out that none of these Members of this chamber are elected representatives of the people.
In my case I was born in England of British parents. Indeed my name is of English Celtic origin, Berg П Ric and I am proud of being a British citizen, albeit I reside in Spain and as such observe it’s national laws traditions and regulations.
Throughout most of my working life I have devoted myself in the service of the crown, both as a regular soldier and later as a police officer.
My present position
My present position is that, I reside in Spain on medical advice, as a certified invalid. However, I am also inextricably linked to the United Kingdom, because, as a former Crown Servant my police pension comes within the meaning of Article 19 of the Double Taxation Treaty Spain/U.K. of 1975. The result of which is that all my United Kingdom income, which now includes my ‘State retirement pension’ and in addition any other income derived in the U.K. is also subject to United Kingdom income tax. However, albeit I pay substantial income tax in the United Kingdom, which in effect wipes out my personal State pension, I will have no say in how my income tax is spent, or have any lobby over any of my pension rights.
I acknowledge that the United Kingdom Parliament has never associated taxation with the right to representation, but I submit that this is merely an adopted position and not founded upon logic or justice, as was declared by one most eminent member of the ‘founding fathers’of the Americas, Benjamin Franklin. Also i is known that it was with a heavy heart that he signed the ‘Declaration of Independence’ in 1776.
11. With regard to the above situation alone, I have found it necessary to twice ‘appeal’ to our Parliamentary ‘Ombudsman’. Once in relation to the unlawful denial of National Insurance contributions and secondly, as I have two children ages 12 and 14 years, the refusal by the Inland revenue to pay me ‘Child tax credit’, as a State pensioner under the provisions of United Kingdom taxation laws, and also as most specifically provided by Chapter 8, Article 77, EU. Regulations 1408/71. In the first instance my ‘appeal’ was upheld and certain compensation award. In the second matter my appeal was, not only fully upheld I was, in addition, awarded substantial compensation. This was due to the aggravated nature of the refusal. I attach a letter from the U.K. Inland Revenue, dated 10th October 2003,which clearly recognises this when I received an unreserved apology. You will note that the response refers to the request by the Parliamentary ‘Ombudsman’, to investigate my appeal. I emphasise this point, as up until that time I had made no less than 6 complaints. All of which went unheeded by the Inland Revenue. Indeed it was in each case, that they denied I had a lawful right to this certain credit. Again you can determine this as the grave situation I will find myself in, once my voting rights are removed from me. As I will then no longer also have the right to make any appeal to the English Parliamentary ‘Ombudsman’. I shall in fact be left out in the cold as a second class citizen of the European Union.
12. However, under United Kingdom regulations, one has to make any such appeal to
The Parliamentary ‘Ombudsman’ through a Member of Parliament, but once disenfranchised of my right to vote, I will not have a Member of Parliament and indeed, no one to go to for any lawful redress in respect of any wrongful withholding of my pensions or other legal benefits. Indeed I will, unlike most other ‘European citizens, have no say in my national destiny in any ‘Referendum’ that may be called from time-to-time over matters affecting the European Union, neither in my country of birth or my host State.
I5. I shall be a politically Stateless person within the European Union, albeit that the Maastricht Treaty 1992 determines me to be a ‘European Citizen’. However, there is no lawful redress open to me on a national basis.
16. Also I remain inextricably linked to the United Kingdom, as I have signed the Official Secrets Act and I am bound by it for life. Further, there are many offences Under English Law, where even resident abroad, I can be returned to England and ‘Indicted’ and lawfully tried, because I am a British citizen, the offence of murder, being one such example. I cite this linking as it was recently used in the House of Lords – Regina v. The Secretary of State for works and Pensions (Respondent) ex parte Carson and Reynolds (FC) (Appellant) [2005]UKHL 37 – June 2005. This appeal was rejected upon a decision of four to one. It was Lord Carswell, who unhesitatingly upheld the appeal upon the basis, “It is clear from Laws LJ’S exposition of the legislation that as far as domestic law is concerned that difference of treatment is in accordance with the law and has to be endured by Mrs Carson and other pensioners similarly affected, who can hope that their appeals to logic and a sense of fair play will eventually prevail, contrary to their experience to date. The issue in this appeal, however, is whether the impact of the European Convention for the prevention of Human Rights and Fundamental Freedoms (“the convention”), as brought into play by the Human Rights Act 1998 has made it unlawful for the government to operate legislation which has such an effect.” In upholding the appeal, quite clearly the noble Lord Carswell thought so.
Case concerned mainly an appeal by Carson in particular, who had fully contributed towards her State pension rights up to her required age of 60 years, but because she had relocated to South Africa, albeit her pension was paid to her at the correct level when she attained the age of 60years. Her pension was then frozen at that level whilst absent from the United Kingdom. She therefore sought to appeal upon the basis that she had been discriminated against under Article 14 of the Convention of Human Rights. Namely that she was being discriminated because she had re-located to a country with whom the United Kingdom had no Treaty obligations. Whereas I submit that in my case there is such a Treaty within the Union of those member states within Europe under articles 4 and 10 of EU. regulations 1408/71. However, it is my submission that a nexus can be drawn with regard to both the matters of pension and voting rights in relation to discrimination, as set out in the views of Lord Carswell at paragraph 16 above.18. Firstly when delivering their judgement Lord Nicholls of Birkenhead stated, “I prefer to keep formulation of the relevant issues in these cases as simple and non-technical as possible. Article 14 does not apply unless the alleged discrimination is in connection with a Convention right on a ground stated in article 14.”
Here I submitthat not all grounds of discrimination are listed. Although, as the appellant I accept that such grounds would not be without limit. The grounds stipulated are merely examples of such grounds for discrimination and therefore any adjudicating authority has a right to determine, as to what represents proper grounds. Particularly where Article 14 refers to ‘any’ ground. The noble Lord continues “If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain as there may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regard as analogous. Sometimes where the position is not so clear, a different approach is called for. Then the Court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.
19. I would ask this Court when considering my application, that if you come to the conclusion that my situation does come within the meaning of ‘discrimination’, as Set out in Article 14. of the convention, or the Human Rights Act of 1998 I would then ask you to go on to consider the affects of this discrimination, where my rights under the Maastricht Treaty are seriously affected, as set out in my arguments below at my paragraph 22.
20. My ties with the United Kingdom can be corroborated, if necessary, by a former
Member of the English Parliament, Geraint Davies, with whom I exchanged hundreds of letters and held a meeting with him in the House. Indeed his secretary once declared that my file was the largest held in his office. Further, I was in London on 7th July 2005 during the London bombing outrages when some 55, plus citizens lost their lives. I was there, having arranged a meeting with the Rt.Hon. Andrew Pelling MP. Further, I have many family members resident in the U.K., including a son and I visit them regularly.
My Arguments.
21. With regard to “suspect” grounds of discrimination, the United States Supreme Court described the concept of a “suspect class” in San Antonio School District v Rodriguez (1973) 411 US 1,29 as a class:
“saddled with such disabilities, or subjected to such history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”
22. In its Article 8(b) The Maastricht Treaty 1992, signed by the then Prime Minister of the United Kingdom, John Major, gives me the right to vote in local Municipal Elections at my place of ‘residence. It also gives me the right to vote in either my place of nationality, or my place of residence in European Parliamentary voting. This Treaty therefore clearly recognises my additional right of national voting in my country of nationality. However I shall also be denied the right to vote at European Parliamentary elections in the UK. Contrary to the treaty. This renders the Treaty artificial and non-effective in certain of its aspects.
23. Under Article 8(a) of the same Treaty my right of ‘free’ movement is enshrined without ‘Obstacle’. Indeed these rights are now further enshrined in the Official Journal of the European Union of EU. Regulations 2004/38/EC, which became Law upon the publication of the Journal on 29th April 2004 (Article 41), albeit Member States have by the latest 30th April 2006 to transpose this legislation into their own national Laws.
24. In it’s pre-amble at item (1) the Journal declares that, “Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States. (2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without frontiers, in which freedom is ensured in accordance with the provisions of the Treaty. If it please the Court I will remind you that to remove my right to vote in European Elections in the United Kingdom, as well as the disenfranchisement of my right to vote in national elections, makes a mockery of this last statement. Further reference to the right of free movement is mentioned in paragraph numbered (3), wherein it is stated Union citizenship should be a fundamental status of nationals of the Member States when they exercise their right of free movement and residence.
25. How can this last right be exercised when thousands of such citizens have their right to vote nationally removed? In it’s paragraph (18) of the Official Journal to 2004/38/EC it is stated that, “In order to be a genuine vehicle for integration into society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions. There is no reference in either the Official Journal or EU. Regulation 2004/38/C. about the matter of national voting rights. I submit that there is good reason for this as it is concluded, that at this time, any right to vote nationally would be erroneous to those citizens who come from another Member State to obtain a right to a national vote in the host State, which in any event Spain, like most states does not allow. Further expatriate citizens are normally linked to their State of nationality as they are mostly dependant upon their own State of nationality for their incomes. There host State would therefore have no control over the domestic laws of the State of one’s individual nationality. Also it can be concluded that in any event they will have a vote in their country of nationality.
26. Article 19 of the EC treaty [ex-Article 8(b)] sets out the right for a Union citizen residing in another Member State to vote and stand as a candidate in European Parliament and municipal elections, but while it does not pre-suppose harmonisation of Member States electoral systems, Council Directive 93/109/EC lays down detailed arrangements for the exercise of the right to vote in European Parliament elections and Directive 94/80/EC covers the right to vote in municipal elections. However, whilst it is accepted that the terms of both directives do not affect a Member State’s provisions governing the conditions under which it’s own nationals may exercise the right to vote or stand as a candidate, even if the persons concerned reside outside the electoral territory of the country in question.
27. However, it is my submission that since both the country of my nationality and my host country, Spain, have the combined effect, by their national rules, they in fact create a significant disincentive to exercise my right of free movement rights – in the sense that as a U.K. citizen living in another EU. Member State, after fifteen years, I am, both disenfranchised in my country of origin and my country of residence does not allow me to take part in national elections. The latter option being of little consequence to me, as for the reasons set out above.
28. I also submit that as a pensioner living in Spain I have “triggered my European Union rights”. Consequently I argue that the affect of the U.K. legislation in this area is no longer wholly internal, as the effect of the U.K. legislation is to counter my European rights, so as to discourage me, as a State pensioner, from making use of those rights to move freely within the European Union. When making this submission I rely upon the recent judgement in the European Court of Justice in the case of Mary Carpenter v. Secretary of State for the Home Department (Case C-60/00).
29. My situation as of 31st December 2005 will be intolerable. To whom should I owe
my loyalty when I have no national representation?
30. I note the recent favourable outcome by persons serving terms of imprisonment
31. In the United Kingdom, when appealing before the European Court of Human Rights. Their appeal was upheld and I do not quarrel with that decision, but say, “Am I a lesser person than a serving prisoner?” I am also aware that the United Kingdom is appealing your decision in this matter
32. I also make this application to this Court upon the basis that because I have exercised my right of free movement under European Regulations I am now about to be discriminated for having done so. It is therefore that I also say that my human rights will be breached contrary to Article 14. (Prohibition of Discrimination) of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No.11. In my argument I rely upon the expression in that article, “On any ground”. Whilst the article also provides examples I recognise that the term, “Any ground” would not be limitless. However in this matter I contest that the right to vote, is a fundamental right in almost every democracy in the world and should amount to ‘any ground’ within the meaning of Article 14.
33. Whilst it would not be possible to list all such precedence’s, I can refer to France, who value the loyalty of their expatriate nationals to the extent that they even elect a ‘High Council’ to protect their interests. Clearly France is a nation from whom all of us as European citizens can draw upon as an example. They not only gave the unfettered right by its citizens absent abroad as early as 1948, they also especially created parliamentary seats for this purpose. I now quote from the Association Americans Abroad, “A precious Right: Americans abroad are proud of their citizenship and vigilant in guarding their ‘Constitutional’ right to help elect their President and Members of Congress. Their right to vote is the primary means available to them to participate in the American democratic progress.” Their most recent Act is enshrined in the American ‘Overseas Citizens Voting Rights Act, 1975.
Further, countries such as Colombia, the Dominican Republic, Mexico. The Philippines, all similarly accord such absentee voting rights (Voting Act 2003) Trinidad and Tobago accord similar rights. This is but to refer to only a few, lest I double the length of this my application to appeal’
34. Was it not the eminent American Scientist and ‘founding father, Benjamin Franklin, who as unofficial American Ambassador to England, 1765 - 1775 attended the English Parliament and secured the repeal of the then evil ‘Stamp Duty Act’. He is on record as saying, “There Should be no taxation without representation.” Indeed the refusal to recognise this fact was a contributory factor which led to the American war of Independence. The declaration of Independence was signed By Benjamin Franklin. It should also be added for completeness that Benjamin Franklin was most concerned about the break from England, as he was also a most loyal servant of the Crown. How far has the English Parliament travelled and what have they learned from this war. Very little I would suggest, as the English Parliament will still not recognise that taxation affords any citizen a right, other than an obligation to pay. A fact that is very difficult for a citizen who as worked throughout his working life in the service of the Crown, to accept and where in retirement still does so, by helping other British citizens less fortunate.
35. It is also worthy of mention that under the relevant Representation of the Peoples Act 2000 a discrimination has been made to allow for Civil Servants to vote beyond the period of 15 years.
36. I also offer up a copy of the very supporting and persuasive views of Sir. Dick Pantlin (filed on 27/02/2001) as set out in the Expat. Telegraph of 9th September 2006, under the heading, “We want to cast our votes, too.” In particular his statements on page 2. of the Expats telegraph at paragraphs 8. and 9.
37. In his paragraph 8. under the heading In Parliament. He states, “According to the opening statements in the Lords’ debate: “This is the first law since universal franchise which seeks to disenfranchise those who are eligible to vote at present,” And “This deals with the very fabric of our democratic society.”
38. In paragraph 9. Sir Dick states, “In the Commons it was stated that “once granted a right is difficult to remove and by depriving a small number of people of the right to vote we shall make completely unnecessary enemies.”
39. I submit that by disenfranchising me of my democratic right to vote as a citizen of the United Kingdom, The United Kingdom removes from me certain rights of protection afforded to a British national not absent from the United Kingdom.
I offer up this my application to appeal and will place myself in the trust of the Court when seeking what I consider to my right in full accordance with the law
and natural justice.
Respectfully,
David R Burrage
Dated.26th September 2005
His application was posted to the ECHR on the 27th September 2005
Mr. Burrage hasreceived a reply, dated 7th October 2005, granting him “Leave to Appeal”. He is advised that his case - listed as Burrage v. the United Kingdom will be dealt with as soon as is practicable.