Over last few hours, EU nationals and representative groups like the3million have used social media to report widespread denial of EU nationals’ rights to vote here in the UK for candidates in the European Parliament Elections. Completion of additional, ‘special’ forms – not required in other Member States has been demanded of some would-be voters. Those forms have not been made available to all. Some have been told that it is now too late to complete them. Other EU citizens have arrived at polling stations in person, only to be turned away. Perhaps most insultingly of all, others still have been told they should immediately return to their ‘home’ member states to vote.
All of this is shocking. It is also unlawful. Article 9 of the Lisbon Treaty and Art 20(2)(b) and 22(1) of the Treaty on the Functioning of the EU give EU citizens the unambiguous right to vote in European Parliament elections “under the same conditions as nationals of that State”. The constitutional right of universal suffrage is also (unsurprisingly) characterised as “an essential right” in Article 39 of the EU Charter of Fundamental Rights. This package of rights guarantees not only the franchise to participate in democracy as part of in the EU constitution, but also the means of exercising it on a non-discriminatory basis. Such discrimination will be unlawful unless justified to an exacting EU proportionality standard.
Domestic equality law backs this up and in some ways goes further. Sections 1, 2 and 29 of the Equality Act 2010 requires all public authorities to make their services accessible without direct discrimination on nationality grounds. And this form of direct discrimination cannot be justified in our courts on any basis. Section 149 of the Act obliges such authorities to think proactively about policies and practices so as to avoid unlawful discrimination.
EU citizens who have to fill in special forms, are deprived of ballot slips or are turned away at the polling station are not being treated equally and that, in itself, is actionable. Individuals can invoke those rights directly before national courts and seek damages from the Government for breach of the Treaties. National courts are required to protect those Treaty rights and provide effective relief if they are transgressed. Although it might be hard to quantify financial loss as such, the damages for breach of constitutional rights, loss of opportunity, the resulting injury to feelings and out of pocket expenses could well be significant.
It should also not be forgotten that UK nationals resident in other EU states enjoy precisely the same EU rights. Those who have not received their ballot papers or received them so late that they cannot return them in time are likewise discriminated against. This is reverse discrimination where UK citizens are challenging their own government but EU citizenship rights transcend domestic nationality.
The EU’s Court of Justice has held that citizenship “is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality”. Whilst the UK remains an EU member state, these words remain the law here. If the Electoral Commission and local returning officers do not take urgent action now to ensure citizens’ rights are respected, including UK citizens, then are likely to turn to the Courts for vindication and redress.
By Anneli Howard, Monckton Chambers, and John Halford, Bindmans LLP