R (The 3Million Ltd) v Cabinet Office

The Divisional Court dismissed the claim for judicial review arising from arrangements for registration of EU24 nationals to vote in the May 2019 European Parliamentary elections. The court held that the Parliamentary Elections (Franchise of Relevant Citizens of the Union) Regulations 2001 (and related domestic measures) were compatible with the Council Directive 93/109/EC and relevant Treaty and Charter provisions, and that time-limited declarations (12 months) and the 12 working day registration cut-off were, in principle, proportionate and lawful.

The court found no systemic failure to inform or register EU24 nationals amounting to a breach of EU law or Article 3 of Protocol 1 ECHR, and rejected the discrimination claims under EU law, Article 14 ECHR read with Protocol 1, and the Equality Act 2010 (including section 29). The court further concluded that the public sector equality duty point was either not established in sufficient, particularised terms against the defendant or, even if a breach could be shown, declaratory relief would be inappropriate because the issues were academic (the 2001 Regulations have been repealed and the United Kingdom has left the EU).

Background and parties: the claim concerned arrangements for the 23 May 2019 European Parliamentary elections. The first claimant is an organisation campaigning for rights of EU nationals in the UK; the remaining individual claimants are EU24 nationals resident in the UK. The second claimant withdrew. Proceedings were issued 2 August 2019. Permission for judicial review was granted.

Nature of the claim / relief sought: the claimants sought declarations that the domestic implementing regulations and the arrangements for registration (notably the requirement to make a signed declaration valid for 12 months and the deadline 12 working days before polling day) breached directly effective EU rights (Treaty provisions, Article 39 Charter and Council Directive 93/109/EC), violated Article 3 of Protocol 1 ECHR for the individual claimants, amounted to unlawful discrimination (under EU law, Article 14 ECHR and the Equality Act 2010), and that the defendant breached the public sector equality duty in section 149 Equality Act 2010. Francovich damages and damages under the Human Rights Act and Equality Act were also pleaded.

Issues framed:

• Ground 1: Compatibility of the 2001 Regulations and arrangements with EU law and the Council Directive (Articles 3, 8, 9, 12 and related provisions).
• Ground 2: Alleged breach of Article 3 of Protocol 1 ECHR as to effective exercise of voting rights.
• Ground 3: Unlawful discrimination on grounds of nationality under EU law, Article 14 ECHR and the Equality Act 2010.
• Ground 4: Failure to comply with the public sector equality duty (section 149 Equality Act 2010) in planning and arrangements for the election.

Court’s reasoning (concise): the court analysed the Council Directive and concluded that Article 9 permits Member States to specify documentary formalities (including declarations) and leaves the duration of a declaration to national law. The 12-month validity and automatic removal under regulation 10(2) were compatible with Article 9(4) because expiry of a validly-limited declaration means the voter no longer satisfies the requirements to remain on the roll. The 12 working day cut-off was consistent with the Directive's requirement to enter voters sufficiently in advance and to exchange information. The court applied a proportionality analysis and concluded the measures pursued legitimate aims (avoiding double-voting, timely preparation of registers), were suitable and not disproportionate. The court rejected complaints about absence of an online form, the separate declaration form, or discretionary late acceptance at polling stations as not required by the Directive and inconsistent with Article 13 exchange/checking obligations.

The Convention claim failed because the measures did not impair the essence of the right to vote and were proportionate. Discrimination claims failed because the alleged comparators (Irish, Cypriot, Maltese nationals; or dual nationals/dual residents) were not in materially comparable positions, and, in any event, differential treatment was objectively justified. On the public sector equality duty the court noted uncertainty as to scope of any admitted concession, would not make a broad unparticularised declaration, and in any event declined declaratory relief as the issue was academic (repeal of the 2001 Regulations and UK withdrawal from the EU meant no practical purpose in granting declarations).

Other points: the court emphasised that even if a breach were arguable, declaratory relief is discretionary and would not be granted where the issue is historic and serves no practical purpose. The claimants’ claims for judicial review and the third to seventh claimants’ claims for damages were dismissed; permission to appeal refused.

The claim is dismissed. The court held that the 2001 Regulations and the arrangements for registration for the May 2019 European Parliamentary elections were compatible with the Council Directive and EU law, the time-limited declaration and the 12-working-day deadline were proportionate and lawful, there was no breach of Article 3 of the First Protocol ECHR, no unlawful discrimination under EU law, the Convention or the Equality Act 2010, and no appropriate basis for declaratory relief on the public sector equality duty (the matters are academic following repeal of the 2001 Regulations and UK withdrawal from the EU). The court therefore dismissed the judicial review claims and the claims for damages by the individual claimants and refused permission to appeal.