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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Andrews, R (On the Application Of) v Minister for the Cabinet Office [2021] EWHC 2233 (Admin) (05 August 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/2233.html Cite as: [2021] EWHC 2233 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the application of RACHAEL ANDREWS |
Claimant |
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-and- |
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MINISTER FOR THE CABINET OFFICE |
Defendant |
____________________
HANIF MUSSA & DANIEL CASHMAN (instructed by Government Legal Department) for the Defendant
Hearing dates: 15 & 16 June 2021
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:00 am 5 August 2021.
MR JUSTICE SWIFT:
A. Introduction
"Regulation 12 of the Representation of the People (England and Wales) Regulations 2001 is ultra vires, being an unlawful exercise of the power in Rule 29(3A)(b) of Schedule 1 to the Representation of the People Act 1983 … "
Regulation 12 of the Representation of the People (England and Wales) Regulation 2001 ("the 2001 Regulations") had prescribed a device known as the Tactile Voting Device (or TVD) as the device to be available at polling stations to enable blind and partially sighted persons to vote without assistance.
B. The 1983 Act, the 2001 Regulations, and the relevant Convention rights
"3. Schedule 1 to the [1983 Act] contains the parliamentary election rules ('the [Election] Rules'), which govern the conduct of parliamentary elections in the United Kingdom. By section 23(2) of the 1983 Act, it is the "general duty" of the Returning Officer for each constituency
"… to do all such acts and things as may be necessary for effectively conducting the election in the manner provided by [the Election Rules]".
4. If more than one candidate is nominated for election in a constituency, the [Election] Rules require that the election take the form of a poll (Rule 17); that votes at the poll are given by ballot (Rule 18); and that the ballot of every voter must comprise a ballot paper printed with the name and particulars of each candidate (Rule 19). The order of names on the ballot paper must be the same as in the statement of persons nominated (Rule 19(3)), namely an alphabetical order by surname (Rule 14(3)).
5. Rule 37 requires a ballot paper be provided for every voter who applies for one. Rule 37(5) and (6) then prescribe the process of voting as follows:
"(5) The voter, on receiving the ballot paper, shall forthwith proceed into one of the compartments in the polling station and there secretly mark his paper and fold it up so as to conceal his vote, and shall then show to the presiding officer the back of the paper, so as to disclose the number and other unique identifying mark, and put the ballot paper so folded up into the ballot box in the presiding officer's presence.
(6) The voter shall vote without undue delay and shall leave the polling station as soon as he has put his ballot paper into the ballot box".
6. The equipment that a Returning Officer must provide to the Presiding Officer at each polling station is specified at Rule 29. In addition to ballot boxes, ballot papers, and other paraphernalia, Rule 29(3A) provides that
"(3A) The returning officer shall also provide each polling station with –
(a) at least one large version of the ballot paper which shall be displayed inside the polling station for the assistance of voters who are partially sighted; and
(b) a device of such description which may be prescribed for enabling voters who are blind or partially-sighted to vote without any need for assistance from the presiding officer or any companion (within the meaning rule 39 (1))."
The reference to "blind or partially sighted" is, as I see it, intended to cover all persons who because of a defect of sight are unable to complete a ballot paper without assistance. The words "partially sighted" are apt to cover a range of persons, including those who like the Claimant, have very little ability to see at all.
7. The Rules make express provision for assistance of blind and other disabled voters either from the Presiding Officer or from so-called companions. As to Presiding Officers, Rule 38(1) is as follows:
"(1) The presiding officer, on the application of a voter –
(a) who is incapacitated by blindness or other disability from voting in manner directed by these rules, or
(b) who declares orally that he is unable to read,
shall in the presence of the polling agents, cause the voter's vote to be marked on a ballot paper in manner directed by the voter, and the ballot paper to be placed in the ballot box."
By Rule 39, if on application by (among others) a blind person to vote with the assistance of someone at the polling station with him (a companion), a Presiding Officer is satisfied that the voter is blind, the Presiding Officer may permit the companion to assist the blind voter if: (a) the companion has made the required declaration (Rule 39(5)); (b) the companion is "qualified" (Rule 39(3)); and (c) the companion has not previously assisted more than one voter at the election (Rule 39(2)(b)(ii)). Rule 39(2) then provides that once the permission of the Presiding Officer has been obtained,
"… then anything which is by these rules required to be done to or by that voter in connection with the giving of his vote may be done to, or with the assistance of, the companion""
"9. … is made from a sheet of transparent plastic which is as long as the ballot paper and is placed on top of the ballot paper. On the right-hand side of the TVD are flaps, numbered from 1 at the top and so on down the page, so that the number of flaps corresponds to the number of candidates standing in the constituency. The number printed on each flap is raised so that it can be felt by touch, and adjacent to each flap, the flap number is printed in Braille, to assist those who are blind and Braillists. But no other information is present on the TVD. In particular there is no way using the TVD alone, that a blind person can know the name of the candidate, or the name of the party the candidate represents. The TVD will only permit a blind person to vote without assistance, if she memorised the order of candidates on the ballot paper either before she went to the polling station or while she was there."
"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."
Ms Andrews' claim in these proceedings is focused on the obligation to conduct elections by secret ballot. The premise of much of her case is that to the extent that she is not able to vote without assistance, the secrecy of the ballot (so far as concerns her vote) is impaired.
"66. — Requirement of secrecy.
(1) The following persons—
(a) every returning officer and every presiding officer or clerk attending at a polling station,
(b) every candidate or election agent or polling agent so attending,
…
shall maintain and aid in maintaining the secrecy of voting and shall not, except for some purpose authorised by law, communicate to any person before the poll is closed any information as to—
(i) the name of any elector or proxy for an elector who has or has not applied for a ballot paper or voted at a polling station;
(ii) the number on the register of electors of any elector who, or whose proxy, has or has not applied for a ballot paper or voted at a polling station; or
(iii) the official mark.
(2) Every person attending at the counting of the votes shall maintain and aid in maintaining the secrecy of voting and shall not—
(a) ascertain or attempt to ascertain at the counting of the votes the number or other unique identifying mark on the back on any ballot paper;
(b) communicate any information obtained at the counting of the votes as to the candidate for whom any vote is given on any particular ballot paper.
(3) No person shall—
(a) interfere with or attempt to interfere with a voter when recording his vote;
(b) otherwise obtain or attempt to obtain in a polling station information as to the candidate for whom a voter in that station is about to vote or has voted;
(c) communicate at any time to any person any information obtained in a polling station as to the candidate for whom a voter in that station is about to vote or has voted, or as to the number or other unique identifying mark on the back of the ballot paper given to a voter at that station;
(d) directly or indirectly induce a voter to display his ballot paper after he has marked it so as to make known to any person the name of the candidate for whom he has or has not voted.
(4) Every person attending the proceedings in connection with the issue or the receipt of ballot papers for persons voting by post shall maintain and aid in maintaining the secrecy of the voting and shall not—
(a) except for some purpose authorised by law, communicate, before the poll is closed, to any person any information obtained at those proceedings as to the official mark; or
(b) except for some purpose authorised by law, communicate to any person at any time any information obtained at those proceedings as to the number or other unique identifying mark on the back of the ballot paper sent to any person; or
(c) except for some purpose authorised by law, attempt to ascertain at the proceedings in connection with the receipt of ballot papers the number or other unique identifying mark on the back of any ballot paper; or
(d) attempt to ascertain at the proceedings in connection with the receipt of the ballot papers the candidate for whom any vote is given in any particular ballot paper or communicate any information with respect thereto obtained at those proceedings.
(5) No person having undertaken to assist a blind voter to vote shall communicate at any time to any person any information as to the candidate for whom that voter intends to vote or has voted, or as to the number or other unique identifying mark on the back of the ballot paper given for the use of that voter.
(6) If a person acts in contravention of this section he shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 6 months.
… "
Section 66 has been carefully formulated. It does not prevent any person revealing whether they have voted or for which candidate they have voted. Rather, a series of obligations of secrecy are placed on others who may have come to know information about who has voted, or for whom votes have been cast. Thus, obligations are imposed on presiding and returning officers while the poll is open (see section 66(1)), and on all persons who attend the count (see section 66(2)). Most importantly for present purposes are section 66(3)(c) and section 66(5). The former is a prohibition on any person at any time against communicating to anyone else any information obtained in a polling station which concerns how a vote has been cast. The latter applies to any person who assists a blind voter. That person may not tell any other person any information about how the blind voter voted or intended to vote.
C. Decision
(1) Ground 1: the arrangements in place for the general election in December 2019
"9. I had hoped that the Government would finally act to introduce new arrangements that would allow me to vote independently and in secret, but by the time of the 2019 General Election had been called, it became apparent that nothing seemed to have changed. It is therefore with great sadness that I am bringing this new challenge.
10. It is almost worse now than before the judgment [in Andrews No.1] because at least then the Government thought they were acting lawfully. Now they know they are acting unlawfully and are aware of the enormous impact it has on people through the evidence filed with my first challenge but have still made no real efforts to address it.
11. I am disappointed that despite the Court's judgment, I was again left in a position where I was unable to vote without assistance in the December 2019 General Election. Frankly, I was more disappointed than before because I thought that following the judgment in May 2019 the Government would have to have done something.
12. My experience of the 2019 General Election was a rather bizarre one. The first thing was that when my husband and I entered the polling station, the Presiding Officer approached us and invited us into a sperate room. He obviously knew who I was, not least because my solicitors had contacted the Council a couple of days before. This was intended to give us some privacy, but I felt self-conscious about being singled out from everybody else. Second, the Presiding Officer had an audio recording of the candidates on his person mobile phone. He fitted the TVD to my ballot paper and offered to play the recording and then leave the room, however, I felt uncomfortable being left with someone else's mobile phone and would not have been able to operate it should I have needed to replay the list or the phone had locked; I therefore asked him to stay. I recall that there were five candidates and that the recording listed their names, their parties and their addresses. It was not much different to the Presiding Officer just reading out the candidates himself as I would not have been able to independently navigate the list.
13. While I did appreciate the lengths the Presiding Officer went to, there was nothing independent or secret about my experience – the bottom line was that I still could not vote without assistance. I just wanted to vote in the same way as everyone else without sticking out or feeling like a nuisance. My husband did not want to go through the same palaver and therefore just asked the Presiding Officer to mark the ballot paper for him – I imagine many other people feel the same. I am not aware of any other blind voters who were given the same treatment as me."
"Finally, we remain dissatisfied with the Cabinet Office's response and anticipate commencing judicial review proceedings against the Minister shortly. In light of the pre-action correspondence, particularly the government's reference to the responsibilities of Returning Officers we propose making you an Interested Party in any proceedings."
If this letter was intended to assist the returning officer to help Ms Andrews on polling day, it missed its mark by the clearest of margins. I can only suppose that the returning officer put the presiding officer on notice, and the presiding officer then did his best to help on the day. In these circumstances it is unfair to describe what happened on the day of the election as "bizarre" or as an exercise that was designed to single out Ms Andrews. If the situation at the polling station was awkward that was the result of the letter from Leigh Day.
"The Tactile Voting Device provided at polling stations at the general election on 12 December 2019 failed to fulfil the statutory purpose of enabling blind or partially sighted voters to "vote without any need for assistance" within the meaning of rule 29(3A)(b) of the Election Rules in Schedule 1 to the Representation of the People Act 1983"
Making a declaration in this form would not serve any purpose distinct from the one already achieved by the declaration made in May 2019. The only difference between the declaration now requested and the declaration made in May 2019 is that the new declaration is formulated specifically by reference to the December 2019 general election. But that is not material. The May 2019 declaration addressed matters generally and for all purposes, unless and until either further Regulations are made in exercise of the Rule 29(3A)(b) power or (as might in future happen) Rule 29(3A)(b) is itself amended. A further declaration recording only that the same state of affairs recognised in the May 2019 declaration continued to exist on 12 December 2019, the date of the general election, would add nothing. On this point, it must also be noted that when the judgment in Andrews No. 1 was handed down, Ms Andrews did not seek an order quashing regulation 12 of the 2001 Regulations. For entirely understandable pragmatic reasons she only requested declaratory relief. This underlines that the declaration now requested would not recognise any new or different event; it is no more than a form of facsimile of the relief already granted in 2019. For these reasons Ground 1 of the challenge fails.
(2) The Convention rights challenges
"108. … that being said, the Court observes that Article 3 of Protocol No. 1 was not conceived as a code on electoral matters, designed to regulate all aspects of the electoral process. There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development cultural diversity and political thought within Europe, which it is for each Contracting State to mould into its own democratic vision."
Instead, recognising such matters must primarily be ones of national choice, the Court has limited itself to applying boundary standards: for example, that contracting states should not act in any way that shows lack of genuine concern for protecting the integrity of elections. All this is significant for present purposes.
"(1) It is unlawful for a public authority to act in a way that is incompatible with a Convention right."
Section 6(6) defines "an act" as including an omission, but (at section 6(6)(a)) there is a proviso; a failure to "… introduce in, or lay before, Parliament a proposal for legislation …" is not an act for section 6 purposes. Section 6 of the 1998 Act is not a provision that concerns the remedies that a court might grant. Rather, it identifies what does and what does not count as an unlawful act which is capable of founding a claim that there has been a breach of Convention rights. Hence for present purposes, the proviso at section 6(6)(a) of the 1998 Act is important.
"… The Claimant does not argue that the Defendant's failure to introduce secondary legislation since the judgment breaches Article 14 ECHR (or indeed A3P1). She argues simply that there is a breach of Article 14 ECHR because the Defendant has failed to make provision to address the objective needs of blind voters. That breach has subsisted since before the judgment, and continues thereafter. It does not arise from the Defendant's failure to take remedial action since the judgment, by laying further legislation, but by the fact that no provision is made (whether in primary or secondary legislation, or otherwise) to address the Claimant's needs."
The hint at a case that might rest on a section 6 unlawful act is in the words "or otherwise" in the parenthesis at the end of the final sentence. Yet even this faint reference is at odds with what had been said earlier in the pleading. At paragraph 34 of the Statement of Facts and Grounds a footnote expressly doubts the existence of any power available to the Defendant to act other than Election Rules.
"… the Election Rules leave little room for practices which are not permitted or prescribed by the Rules themselves."
"The decision the Claimant challenges is stated to be "The arrangement made by the Defendant to enable blind people and partially-sighted voters to vote without assistance at polling stations" dated 12 December 2019 (Claim Form, section 3). This formulation obscures the act or failure to act which is impugned. The only public function of the Minister which the Claimant expressly identifies in her Statement of Facts and Grounds is the function under Rule 29(3A)(b) of prescribing a device, in the exercise of a power to make regulations subject to an affirmative resolution procedure. The act or failure to act which is challenged must therefore consist of either (1) original exercise of the power under Rule 29(3A)(b) in 2001 to prescribe regulation 12 of the 2001 Regulations (in respect of which the Claimant has already obtained the relief that she sought in the previous JR); or (2) the omission to exercise the power under Rule 29 (3A)(b) to prescribe new regulations specifying a device of a different description."
A footnote at the end of this passage continued
"The Minister is concerned about the ambiguity in the Claimant's pleaded case as to the relevant act of the Minister that is challenged. In the event that the Claimant chooses to advance a challenge to any currently unspecified act she would require permission of the Court to do so. Should such permission be obtained, the Minister will in any event require proper opportunity to respond, including by adducing further evidence if necessary."
"47. The court considers that as a matter of principle, States have a legitimate interest to exclude some offenders from the profession of chartered accountant. However, the Court also considers that, unlike other convictions for serious criminal offences, a conviction for refusing on religious or philosophical grounds to wear the military uniform cannot imply any dishonestly or moral turpitude likely to undermine the offender's ability to exercise this profession. Excluding the applicant on the ground he was an unfit person was not, therefore, justified. The Court takes note of the Government's argument that persons who refuse to serve their country must be appropriately punished. However, it also notes the applicant did serve a prison sentence for his refusal to wear the military uniform. In these circumstances, the Court considers that imposing a further sanction of the applicant was disproportionate and it follows that the applicant's exclusion from the profession of chartered accountants did not pursue a legitimate aim. As a result, the Court finds there existed no objective and reasonable justification for not treating the applicant differently from other persons convicted of a felony.
48 … In the present case the Court considers it was the State having enacting the relevant legislation which violated the applicant's right not to be discriminated against in the enjoyment of his right under Article 9. That State did so by failing to introduce appropriate exceptions to the rule barring persons convicted of a felony from the profession of chartered accountants."
"The voter, on receiving the ballot paper, shall forthwith proceed into the one of the compartments in the polling station and secretly mark his paper and fold it up so as to conceal his vote, and shall then show to the presiding officer the back of the paper, so as to disclose the number and other unique identifying mark and put the ballot paper so folded up into the ballot box in the presiding officer's presence."
The requirements on voters are modified for persons who by reason of disability, require assistance to vote. First, Rule 39 allows a voter to seek permission of the presiding officer to vote with the assistance of another person. When such permission is granted, Rule 39(2) provides "anything which is by these rules required to be done to or by that voter in connection with the giving of his vote may be done to or with the assistance of, the companion." Alternatively, by Rule 38, the presiding officer may, on request, assist a disabled person to vote. The different arrangements made by Rules 38 and 39 is addressed in section 66 of the 1983 Act, the provision ensuring the secret ballot: see section 66(5) which prohibits any person (presiding officer or otherwise) who has assisted a person to vote from revealing any information about how that person voted or intended to vote. The cumulative effect of these points is that the present claim does not sit naturally within the Thlimmenos category of discrimination claims. No single rule or set of rules is being applied to persons in materially different positions.
"102. … in the absence of accessibility of the physical environment prior to the integration of children with a disability in mainstream schools, the authorities have an obligation to provide reasonable accommodation from the moment it is requested … However, this obligation may not impose a disproportionate or undue burden on the authorities … Moreover, it is not for the Court to define the "reasonable accommodation" – which can take on different material and non-material forms – to be implemented in the educational sphere in response to the educational needs of persons with disabilities …"
Thus, the Court accepted that the notion of reasonable adjustment or accommodation included a margin of appreciation.
D. Disposal