The 3Million Ltd v The Minister for the Cabinet Office
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis |
| Judgment Date | 11 February 2021 |
| Neutral Citation | [2021] EWHC 245 (Admin) |
| Date | 11 February 2021 |
| Docket Number | Case No: CO/3212/2019 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen on the application of
[2021] EWHC 245 (Admin)
Lord Justice Lewis
Sir Michael Supperstone
Case No: CO/3212/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Gerry Facenna Q.C. Anneli Howard and Gayatri Sarathy (instructed by Bindmans LLP) for the Claimants
Clive Sheldon Q.C., Christopher Knight and Daniel Isenberg (instructed by the Government Legal Department) for the Defendant
Hearing dates: 26 and 27 January 2021
APPROVED JUDGMENT
Lord Justice Lewis handed down the following judgment:
INTRODUCTION
This is the judgment of the court.
This claim concerns the arrangements relating to the holding of the European Parliamentary elections on 23 May 2019. The first claimant is a company which campaigns for the rights of European Union nationals in the United Kingdom. The third to seventh claimants are individual European Union nationals resident in the United Kingdom. The second claimant has withdrawn from the proceedings.
The claimants submitted that the relevant domestic regulations and the arrangements governing the registration of EU nationals from Member States (other than Ireland, Cyprus and Malta) who wished to vote in the 2019 European Parliamentary elections violated directly effective rights conferred by EU law and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). They submitted that the arrangements gave rise to unlawful discrimination on grounds of nationality. They also seek a declaration that the defendant failed to comply with the public sector equality duty set out in section 149 of the Equality Act 2010 (“the 2010 Act”) to have due regard to specified equality matters when exercising his functions. The defendant, who is the Minister for the Cabinet Office, submitted that the relevant regulations, and the arrangements adopted in relation to the 2019 European Parliamentary elections, did not involve a breach of European Union law or the Convention and did not involve unlawful discrimination. We set out below the defendant's position in respect of the public sector equality duty.
The claim was brought on 2 August 2019. The United Kingdom ceased to be a Member State of the European Union on 31 January 2020. This claim relates to events before that date. The United Kingdom Parliament has enacted provisions requiring the courts to deal with claims begun before the United Kingdom left the European Union but not completed at that date: see paragraph 39 of Schedule 8 to the European Union (Withdrawal) Act 2018 (“the 2018 Act”). Parliament, therefore, has determined that the courts have power to deal with claims such as the present claim. There is an issue as to whether parts of the claim are now academic or historic in that no purpose would be served by a court hearing those parts of the claim or granting a remedy. We deal with that question below.
This judgment sets out the legal framework governing the right to vote at elections for the European Parliament, the factual background, and then considers the four grounds of claim in turn.
THE LEGAL FRAMEWORK
The EU Legal Framework
Article 10 of the Treaty on European Union (“TEU”) recognises that the European Union is founded on the principle of representative democracy and that citizens are directly represented in the European Parliament. Article 10(3) provides that “Every citizen shall be taken to have the right to participate in the democratic life of the Union.”
The Treaty on the Functioning of the European Union (“the TFEU”) makes further provision in connection with voting. Article 20 TFEU provides that every national of a Member State is a citizen of the European Union and has, amongst other things, the right to vote in local government elections and European Parliamentary elections in the Member State where they reside. Article 20 TFEU provides that these rights “shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder”. Article 22 TFEU also deals with the right to vote. Article 22(1) provides for the right of an EU national resident in another Member State to vote in local elections. Article 22(2) deals with European Parliamentary elections and provides, so far as material, that:
“2. Without prejudice to Article 223 and the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.”
The detailed arrangements are set out in Directive 93/109/EC laying down detailed arrangements on the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens residing in a Member State of which they are not nationals (“the Council Directive”). The recitals note that the right to vote is an instance of the application of the principle of non-discrimination between nationals and non-nationals. They note that the application of the relevant Treaty provisions “does not presuppose the harmonization of Member States' electoral systems”. They note that the purpose is to ensure that persons can vote under the same conditions as nationals while taking care that the freedom is not abused by people voting in more than one country. They note that account must be taken of the fact that in certain Member States residents who are nationals of other Member States have the right to vote in elections to the national parliaments and certain provisions of the Council Directive would accordingly need to be dispensed with.
Chapter 1 of the Council Directive sets out general provisions. Article 3 provides so far as material that any person who is a citizen of the European Union and is not a national of the Member State of residence:
“shall have the right to vote and to stand as a candidate in elections to the European Parliament in the member State of residence unless deprived of those rights pursuant to Article 6 and 7”.
Article 4 of the Council Directive provides, so far as material, that:
“1. Community voters shall exercise their rights to vote either in the Member State of residence or in their home Member State. No person may vote more than once at the same election.”
Article 7 of the Council Directive provides that a Member State may check whether citizens of the EU who have expressed a wish to exercise their right to vote have not been deprived of the right to do so under the civil or criminal law of their home Member State. The Member State of residence may use the information provided in the declaration made by an EU national to obtain information from the home Member State which should normally provide information in good time. Article 8 provides that a voter exercises his right to vote in the Member State of residence if he expresses the wish to do so.
Chapter Two of the Council Directive is headed “Exercise of the Right to Vote and Stand as a Candidate”. Article 9 provides that:
“ Article 9
1. Member States shall take the necessary measures to enable a Community voter who has expressed the wish for such to be entered on the electoral roll sufficiently in advance of polling day.
“2. In order to have his name entered on the electoral roll, a Community voter shall produce the same documents as a voter who is a national. He shall also produce a formal declaration stating:
(a) his nationality and his address in the electoral territory of the Member State of residence;
(b) where applicable, the locality or constituency in his home Member State on the electoral roll of which his name was last entered, and
(c) that he will exercise his right to vote in the Member State of residence only.
3. The Member State of residence may also require a Community voter to:
(a) state in his declaration under paragraph 2 that he has not been deprived of the right to vote in his home Member State;
(b) produce a valid identity document, and
(c) indicate the date from which he has been resident in that State or in another Member State.
4. Community voters who have been entered on the electoral roll shall remain thereon, under the same conditions as voters who are nationals, until such time as they request to be removed or until such time as they are removed automatically because they no longer satisfy the requirements for exercising the right to vote.”
Article 12 of the Council Directive provides that:
“Article 12
The Member State of residence shall inform Community voters and Community nationals entitled to stand as candidates in good time and in an appropriate manner of the conditions and detailed arrangements for the exercise of the right to vote and to stand as a candidate in elections in that State.
There is an obligation on Member States to exchange information to ensure the implementation of the provisions of Article 4 which prohibit a national voting...
To continue reading
Request your trial
-
The King on the application of DM v Secretary of State for the Home Department
...the public sector equality duty imposed by section 149 of the Equality Act 2010, i.e. R (The 3Million Ltd) v Cabinet Office [2021] EWHC 245 (Admin) (“ 3Million”); and R (Badmus) v Secretary of State for the Home Department [2020] 1 WLR 4609 (“ Badmus”). 112 While his primary position was ......