In the aftermath of the Conservative Party’s internal leadership election it is all too easy to forget the events of eight weeks ago when the last public election – of the UK’s Members of the European Parliament – saw shameful scenes of EU citizens turned away from polling stations. This happened notwithstanding each one of them having six separate legal guarantees of the right to vote and being registered to exercise those rights here in the UK.
But does this really matter now? We have a new Prime Minister committed to a ‘do or die’ Brexit policy. The European Parliament elections this May could be the UK’s last for a generation. Aren’t they now old news?
The answer should be a loud and emphatic ‘no’.
That answer ought to have come yesterday from Boris Johnson’s embryonic Cabinet when it was required to respond to a letter threatening legal action sent on behalf of the3million, a campaigning group for EU27 citizens in the UK. There has been a hold up with the reply, however. Perhaps the new Secretary of State for the Cabinet, the Rt Hon Michael Gove MP, has yet to be briefed.
The Government still could do the right thing which would be to accept EU citizens were unlawfully disenfranchised and set out proposals to make amends. In reality, it is far more likely to respond with more bluff and bluster of the kind that came from junior Cabinet Minister, Kevin Foster, when questioned in Parliament. His line was that the UK had to create its now notorious UC1/EC6 declaration form system to comply with EU double-voting prevention rules. In other words, any EU citizen disenfranchisement there might have been was all the fault of EU bureaucrats.
This should immediately ring alarm bells for any democrat. It is also complete rubbish. Of the EU’s 28 states, only the UK expects resident EU citizens not only to register to vote, but to know about its special declaration form, obtain and complete it and ensure their local authority processes it before their votes can be counted. Only the UK demands that this happens before each European Parliament election. Worse still, only the UK automatically disenfranchises all EU citizens who fail to complete this process by a deadline that falls 12 working days before polls open (except for resident Irish, Maltese and Cypriot nationals who, inexplicably, are exempted).
Many may think such a system surprising in a modern democracy. The Government should not be surprised. It was warned the system produced disenfranchisement by the Electoral and European Commissions in 2014 and again by the Law Commission in 2016. It promised to change the law, but then reneged on that promise.
Many are likely to be shocked at the system’s effects. In the ‘best’ UK local authorities identified to date by the3million’s research, well over half of EU citizens who had registered to vote were automatically struck off the electoral roll just before the 23 May poll. In the worst authorities, 90% were struck off. Of course, some of these people may not have wanted to vote, but a great many did – even those who submitted declaration forms late and then tried in vain to vote run into several thousands.
If the UK’s system had not been bad enough already, it was made far worse in this particular European Parliament election by the Government maintaining that the UK would not be participating until 7 May – the very same day as that on which EU citizens had to complete the declaration form process.
All of this made for a democratic train wreck the Government would rather forget about. It has already emphatically refused to commission a public inquiry into what went wrong.
the3million has stepped up to prevent this evasion of responsibility. If the Government maintains its position, it will ask the High Court to hold that there has been a systemic, discriminatory and large-scale rights breach. There have been many successful challenges to systemic and unconstitutional denial of the right to vote in the U.S., but this will be the first case of its kind in the UK.
The ruling the3million plans to seek cannot change the results of the 23 May poll in the UK. But if the Court grants it, that will show that voting rights matter and cannot be taken away unlawfully without serious consequences.
Public support for the3million’s test case has also been remarkable – as its crowdfunding appeal shows. Many still care about the principle of the universal franchise and, when our fellow citizens are stripped of their rights because they happen to be in a minority group, will make sure that our own loud ‘no’ will be heard along with theirs.
John Halford is a solicitor at Bindmans LLP representing the3million.