Q and A with our solicitor, John Halford
The support for the3million’s planned legal challenge so far has been remarkable.
Over 900 people responded to the first survey seeking details of what happened. Over 200 have responded to the second survey (and if you were denied your vote, but have not completed it yet, please do so).
There were 1,573 pledges to the crowdfunding campaign for the first phase of work and, as I write this 1,720 people have pledged towards the phase 2 crowdfunding campaign.
There has been great coverage from the Guardian and Politics.co.uk. The £65,000 fundraising target is in sight. With your and others’ continuing support, that target will be reached and the judicial review claim can be issued. the 3million research team and legal teams are working hard to build the case in the meantime.
So, what next? Now is a good time to break that question down a little and say more about the legal process and strategy.
There’s one other point to make before I do that though, which is that there is no doubt this is an important case. It is not only about the systemic stripping away of rights by a flawed system the Government promised to change – a promise it then reneged on. It is not only about seeking an authoritative ruling from the Courts that such a system is as unlawful as it is outrageous, and that voting rights are to be cherished and protected. It is also about demonstrating that a group in society cannot lawfully be treated as second class citizens who need to seek official permission to enjoy the same rights as everyone else. It is a case about everyone’s rights being equally valued and equally capable of being exercised.
These are basic democratic principles. They should not need to be defended, but what happened on 23 May shows that they do.
Thank you for your help in making that possible.
Q1: Now the letter before claim has gone to the Government, what happens next?
A: Under the judicial review pre action protocol, the Government has until 26 July 2019 to respond to the arguments set out in that letter (also summarised here). We have asked it to acknowledge what happened, accept it was unlawful and consider taking remedial steps.
Q2: What will the Government say?
A: It ought to accept the system operated unlawfully and disenfranchised large numbers of people. But the position it has taken so far (for instance, in Parliament) is that no inquiry into the scandal is needed, it has done nothing wrong and the system was actually required by EU law. It may well maintain that line, even though it is very difficult to reconcile with the undertaking it gave to change the system after people were disenfranchised in 2014. Taking the legal challenge forward will then be the only way to secure accountability, which is why your support is so important.
Q3: What will the legal challenge involve, then?
A: The legal challenge will be a judicial review. This is the process for challenging public body decision-making that cannot be appealed. A judicial review claim can be brought by an organisation - like the3million – with a special interest in the issued being litigated, or affected individuals.
Many people have let the3million know that they are interested in being part of the legal challenge. We are in the process of contacting those whose circumstances best represent others falling into the four categories of disenfranchised people identified in the letter before claim as, ideally, the case will be brought both by the3million and a handful of representative individuals so the Court can get a sense of how people were directly affected. We may want to put in evidence from others too as the case progresses.
Q4: How will you build and argue the case?
A: The evidence will be combined with witness statements about the research the3million has done and describing how the UC1/EC6 Declaration Form system works and the history of the problems it has caused. The legal arguments will set out in another document, called the ‘Grounds of Claim’.
All of this will be sent to the Government and to the Court, which will be asked for permission for the case to proceed. If the Court agrees, it will then decide whether to cap costs. Further evidence and written arguments will be exchanged and then there will be a hearing towards the end of the year or early next year.
Q5: What happens after the hearing?
A: After the hearing, the Court will give a judgement and, if the case succeeds, decide what remedies to grant to the 3million and any individual claimants. The loss of rights by large numbers of people would be marked by the Court making a declaration and giving a judgment exposing the Declaration Form system as one that unlawfully takes away fundamental rights, that had that effect on a large scale and asking the Court to rule that to have been unlawful. That could have implications for other elections in the UK, but perhaps more importantly for other rights that UK-resident EU nationals currently have.
The law also allows compensation to be claimed by individuals for the consequences of their voting rights being rendered ineffective, including serious injury to feelings, but the UK courts have not set a figure on this in past cases. If the Court decides modest compensation is appropriate, that is likely to be dealt with at a separate hearing, or settled.
Q6: My vote was denied, so can I bring a legal case myself?
A: In principle, yes. We will prepare and publish some guidance on this. We are likely to recommend that anyone who wants to do this issues a claim and then asks the Court to put it on hold while the 3million’s test case is dealt with.
Q7: Will the Government re-run the 2019 European Parliamentary Elections if it accepts what happened was unlawful?
A: No. To challenge the results of the poll, there would have needed to be enough evidence to file electoral petitions shortly after the poll on the basis the result in every region would have been different had disenfranchised people been permitted to vote. That was not realistic.
Q8: What is the EU doing about all this?
A: The Guardian has reported that the European Commission is looking into what happened, but we don’t have details of this and the investigation would not be public. If the UK leaves the EU, any such investigation will come to an end. We don’t presently see this as a meaningful alternative to the legal action we hope to take.
Q9: What about the Electoral Commission?
A: The Electoral Commission has publicly criticised the Government’s actions - up to a point. But it has not taken a position on whether denial of the right to vote was unlawful and it has no powers to hold a public inquiry, so is likely to produce a short report on the 2019 European Parliamentary Elections which identifies some problems, as it did in 2014. We think people should complain to the Electoral Commission using the form the3million has created so it has a sense of the nature and scale of the problem, but its report will not be a substitute for an authoritative Court ruling.
Q10: Can I do more to help?