the3million Ltd & Ors, R (On the Application Of) v The Minister for the Cabinet Office

Domestic arrangements requiring non-national EU citizens to make a time-limited declaration before voting in European Parliamentary elections were compatible with the applicable EU framework. A 12-month declaration period and a deadline 12 working days before polling were proportionate means of preventing double voting and preparing electoral registers. EU law did not require online declarations, combined registration forms, late registration at polling stations, or discretionary extensions. The information provided by the responsible statutory bodies was adequate in the circumstances and did not disclose a systemic failure. The arrangements did not breach Article 3 of the First Protocol, the prohibitions on nationality discrimination, or the Equality Act 2010. No declaration was granted on the public sector equality duty because the issues were historic and academic.

The claimants challenged the statutory arrangements and administrative steps used for EU24 nationals resident in the United Kingdom to register for the 2019 European Parliamentary elections. They alleged breaches of directly effective EU rights, Article 3 of the First Protocol to the Convention, prohibitions on nationality discrimination, and the public sector equality duty under the Equality Act 2010.

The challenge concerned the 12-month validity of declarations, the requirement to submit registration material 12 working days before polling, the separate declaration process, the absence of online or late registration, the information provided to voters, and the timing of contingency arrangements. The court also considered whether any declaration should be refused because the issues had become academic.

1. EU law. Articles 3, 8, 9 and 12 of the Council Directive permitted a Member State to require a non-national EU voter to make a formal declaration stating where the voter would vote. The Directive did not require the declaration to remain valid for more than one election or for any specified period. Regulation 10(2) of the 2001 Regulations was therefore compatible with Article 9(4).
2. The 12-month validity period pursued the legitimate aim of preventing voting in more than one Member State. It was suitable and reasonably necessary for that purpose and did not impose a disproportionate burden. The requirement that registration material be received 12 working days before polling was also compatible and proportionate, enabling the register to be finalised and information to be exchanged.
3. The absence of a power to accept declarations after the deadline, or at polling stations, was lawful. Such arrangements were not required by the Directive and could hinder the checks and information exchange contemplated by Articles 8 and 13. EU law did not require online forms or a single combined registration document.
4. The Electoral Commission and electoral registration officers took adequate steps to inform voters, given the late confirmation that the United Kingdom would participate in the election. Individual failures did not establish a systemic or general breach of Article 12.
5. Convention rights and discrimination. The requirements were rational and proportionate measures regulating elections, preventing double voting and preparing electoral registers. They did not impair the essence of the right to vote. EU24 nationals were not in materially analogous circumstances to UK nationals, or to Irish, Maltese and Cypriot nationals who enjoyed voting rights by reason of historical domestic arrangements. The discrimination claims therefore failed, as did the claim under the Equality Act 2010.
6. Public sector equality duty and remedy. The court declined to make an unparticularised declaration. The alleged breaches, even if established, concerned historic matters with no current or future legal relevance. Any declaration would serve no practical purpose.
7. The judicial review claims and the third to seventh claimants’ damages claims were dismissed. The claimants were ordered to pay costs of £65,099.35. Permission to appeal was refused.

First-instance judicial review in the High Court (Administrative Court). The claims were dismissed.