In R (the3Million Ltd & others) v Minister for the Cabinet Office [2021] EWHC 245 (Admin) the Divisional Court (Lewis LJ and Sir Michael Supperstone) dismissed a wide-ranging challenge to the lawfulness of the operation of the UK’s final elections to the European Parliament in May 2019.
By Article 20 TFEU, as part of their free movement rights, EU nationals are entitled to vote in European Parliamentary elections in their state of residence. More detailed provisions regarding this right and how it operates are set out in Directive 93/109/EC (“the Voting Rights Directive”). Article 9(1) of the Voting Rights Directive requires Member States to 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”. More particularly. Article 9(2) provides that in order to be added to the electoral register, the EU citizen “shall produce the same documents as a voter who is a national”, but that “he shall also produce a formal declaration” stating (amongst other things) “that he will exercise his right to vote in the Member State of residence only”.
That declaration is given in the UK by ‘EU24’ citizens (i.e. EU citizens, save, for historical reasons, for those of Ireland, Cyprus and Malta) by means of a UC1 form. Its period of validity is one year, after which EU24 citizens are automatically removed from the electoral register for European Parliamentary elections. In other words, in order to vote in the United Kingdom, EU24 citizens are required to submit a UC1 form and registration application within the year before the relevant European Parliamentary election.
The May 2019 European Parliamentary election arose in a unique context: after the referendum in June 2016, it was government policy that the UK would have left the EU before May 2019 and so would not be participating in the election; indeed, from 29 March 2017, when the UK formally notified the EU of its intention to withdraw under Article 50(2) TEU, the election could not, without some further positive steps or legal change, lawfully have occurred in May 2019. That only changed when the EU and UK agreed an extension to the UK’s membership on 10 April 2019; and when the election date was formally set for 23 May.
The Claimants’ EU law challenge was both an in-principle challenge to the operation of the Parliamentary Elections (Franchise of Relevant Citizens of the Union) Regulations 2001 (“the 2001 Regulations”), which implemented domestically the Voting Rights Directive; as well as a complaint about the lawfulness of the particular arrangements in May 2019, including in relation to the deadline for submission of the UC1 form; the date that the election was confirmed; the inability to submit the form online; and the dissemination of information about the need to submit the UC1.
Both elements of the challenge failed:
- The Court held that the Voting Rights Directive was silent as to the duration of validity of the declaration required by Article 9(2), and the UK’s 12-month period of validity “contributed to ensuring that there was no double-voting and did not, of itself, impose any undue or disproportionate burden on the individual who wished to vote in the United Kingdom”.
- Neither did the individual complaints regarding the alleged lack of ‘flexibility’ or the particular challenges to the circumstances as they unfolded in 2019 succeed: the 2001 Regulations properly and appropriately implemented the requirement under Article 9(1) of the Voting Rights Directive to take the “necessary measures” to ensure that an EU24 national who has registered the wish to vote to be entered on the electoral roll sufficiently in advance of the polling day. Further, the steps taken by central government, the Electoral Commission and local electoral registration officers (including the distribution of 2,423,563 UC1 forms by post) met the requirement under Article 12 that requires Member States to inform voters in good time and in an appropriate manner of the conditions and detailed arrangements for the exercise of the right to vote.
The Court also dismissed an equivalent challenge under Article 3 of the First Protocol to the European Convention on Human Rights: the 2001 Regulations do not impair the very essence of the right to vote (and are a far cry from the facts of cases like Hirst No.2).
Similarly, it dismissed the Claimants’ contention that the 2001 Regulations were discriminatory (as a matter of EU law, the ECHR and the Equality Act 2010) on grounds of nationality. That was not least because Claimants’ chosen comparators were not in materially similar circumstances to them: the fact that the Voting Rights Directive required only EU nationals in their states of residence to make a declaration under Article 9(2) meant that they were in a materially similar position to, e.g., UK nationals in the UK; nor to Irish, Cypriot and Maltese nationals, given the historical ties the UK has with those nations. In any event, any differential treatment was objectively justified.
Clive Sheldon KC, Christopher Knight and Daniel Isenberg acted for the Minister of the Cabinet Office.
