Tomescu, R (on the application of) v Lord President of the Council & Ors [2015] EWHC 3293 (Admin)

Case No CO/1776/2015[2015] EWHC 3293 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 20 October 2015
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE DOVE
Between
THE QUEEN ON THE APPLICATION OFClaimantDR TOMMY TOMESCUClaimantv
Between
LORD PRESIDENT OF THE COUNCILDefendantOFFICE OF THE PRIME MINISTERDefendantLORD CHANCELLOR AND SECRETARY OF STATE FOR JUSTICEInterested PartyCAMDEN LONDON BOROUGH COUNCILInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr James Dixon, Mr James Corbet Burcher and Mr James Fraczyk (appearing pro bono under the Direct Access Scheme) appeared for ClaimantMr Ben Lask (instructed by the Government Legal Department) appeared for DefendantsHearing Hearing date: 15 October 2015
J U D G M E N T
[1]MR JUSTICE DOVE: The claimant is a Romanian national who came to the United Kingdom in 2007 temporarily, and who subsequently arrived and settled in the United Kingdom in 2010. Whilst he was present and settled in the United Kingdom he became concerned about the treatment of Eastern Europeans like him who had come to the UK and settled here. As a result, he became politically active. He formed the Europeans Party and stood on their behalf in the European Parliament elections in May 2014.[2]This judicial review concerns his position, and the position of what I have been advised during the course of the hearing is a large number of EU citizens who are present and settled in the UK. These EU citizens do not enjoy the franchise in Parliamentary elections. It is correct to observe that as a result of the provisions to which I shall turn in due course there are some EU citizens who enjoy that franchise, namely those who are from Malta, Cyprus (because of their connection with the Commonwealth) and the Republic of Ireland (also for historic reasons). Apart from those countries, EU citizens who are present and settled in the UK are not entitled to vote in national elections.[3]This matter came on before me as a result of earlier directions as an oral application for permission to apply for judicial review. I heard substantial argument and argument that was greater in length and depth than had probably been anticipated at the time when the hearing was directed. I remind myself that in considering whether or not permission should be granted it is a low threshold of arguability that applies. It is that threshold to which I have had regard in assessing whether or not permission should be granted in this case. Provisions relating to the franchise[4]The franchise in relation to Parliamentary elections is defined by section 1 of the Representation of the People Act 1983. That provides as follows:
"1) A person is entitled to vote as an elector at a parliamentary election in any constituency if on the date of the poll he— (a) is registered in the register of parliamentary electors for that constituency; (b) is not subject to any legal incapacity to vote (age apart); (c) is either a Commonwealth citizen or a citizen of the Republic of Ireland; and (d) is of voting age (that is, 18 years or over)."
[5]Provisions in relation to the entitlement to vote in elections are also provided in the Treaty on European Union. In particular, at Article 22 there are provisions which are set out in relation to the elections in which, by virtue of the Treaty, citizens of the EU must be entitled to vote. Article 22 provides as follows:
"Article 22 1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State. 2. Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State."
[6]Article 22, and indeed the other provisions of the Treaty, are all subject to a number of important qualifications and entitlements which are provided for in the Treaty itself. In particular, Article 18, which features as part of the claimant's case, provides as follows:
"Article 18 Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination."
[7]Further, Article 21 provides a key, if not fundamental, safeguard in relation to the entitlement of citizens of the EU to move and reside freely within the territories of the Member States. Further, Article 6 incorporates by specific reference the Charter of Fundamental Rights of the EU which itself includes by virtue of Article 21 a right to be free from discrimination; by Article 39 a right to vote in an EU Parliament election; by Article 40 the right to vote in municipal elections; and by Article 45 the right to free movement.[8]In addition to reliance upon these provisions of EU law, the claimant also relies upon rights and entitlements conferred by the European Convention on Human Rights (ECHR), in particular Article 3 of the First Protocol. This provides as follows:
"Article 3 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."
[9]Against this background, the claimant pursues two grounds of judicial review. By ground 1 it is contended by the claimant that there is a breach of EU law, in particular by virtue of the discrimination between EU citizens, in the limits upon national Parliamentary franchise in the UK. The claimant contends that EU law entitles the claimant by inference to vote in national elections, and that the discrimination between him and other EU citizens is not capable of being objectively justified.[10]Ground 2 is the contention that the disqualification from voting for EU citizens who do not come within section 1 of the 1983 Act is a breach of the claimant's human rights and in particular a breach of Article 3 of the First Protocol. Analysis and conclusions[11]In my view, it is clear that a right to vote in national elections cannot be directly derived from the Treaty on European Union. The provisions which I have set out above show clearly that the Treaty rights conferred relate exclusively and deliberately to solely municipal and EU Parliament elections.[12]That, however, is not a complete answer to the claim which is made under ground 1. Similar issues to those which are raised by the claimant were explored by this court in R (on the application of Preston) v Wandsworth London Borough Council and Anor [2013] QB 687. That case was concerned with the exclusion from the Parliamentary franchise of the UK of a UK citizen who has lived abroad for more than 15 years. Similar arguments were raised with respect to EU law and the provisions of the Treaty in relation to voting and discrimination, and it was noted that for those provisions to be engaged it was necessary for the matter to be within the scope of EU law.[13]The contention that national elections were caught and part of EU law was specifically rejected by the Divisional Court at first instance as follows. Elias LJ provided:
"46. There was a further argument which was floated by Mr Subiotto but without any great enthusiasm. He submitted that the rule infringed the EU principle of equality not least because some persons, such as those employed by the Crown or members of the armed forces and their spouses, who had lived abroad for more than 15 years remained entitled to vote. Their existence demonstrated that there were more ways of testing commitment than a simple residence rule. 47. I reject this argument for two reasons. First, as Mr Coppel submits, the general principles of European Union law only apply where member states are acting within the scope of the Treaties. This means where the Government is either empowered or obliged by European Union law to adopt the rule in issue. The Court of Justice has no jurisdiction to regulate a state's laws in accordance with these principles in other areas: see the discussion by Laws J in R v Ministry of Agriculture, Fisheries and Food ex p First City Trading Ltd [1997] Eu LR 195, paras 39-45. The rules providing for the scope of the Parliamentary franchise do not fall within the scope of the Treaties; they are purely within the competence of the state. Accordingly, the non-discrimination principle cannot assist the claimant."
[14]These observations as to the fact that the national Parliamentary franchise in the UK is not within the scope of EU law are further reinforced by the conclusions reached by the Supreme Court, and in particular Lord Mance giving the leading judgment, in R (on the application of Chester) v Justice Secretary [2013] UKSC 63.[15]However, those arguments did not dispose of the case which was brought by the claimant in Preston. The further argument which was made was that, whilst it was for the UK Government to define the Parliamentary franchise, that could not be done in a way which defeated rights conferred by EU law and in particular the right to free movement. This separate argument was addressed by Elias LJ, giving the leading judgment of the Divisional Court, in the following manner:
"35. I do not accept Mr Coppel's submission that the article 21 FEU right to freedom of movement cannot as a matter of principle even be engaged by this rule. It is in my view a misunderstanding of the claimant's argument to suggest that he is seeking to imply a right to vote into article 21 FEU which is inconsistent with its express terms. The claimant is not submitting that he has a right to vote in the United Kingdom general election simply by virtue of being a citizen of the European Union. He accepts that the scope of the franchise in a general election is a matter for each state to determine. Nor does he allege that the scope of the franchise is directly governed by European Union law. His submission is that the state's competence to define who may vote must not be exercised in a way which defeats rights conferred by European Union law, and the right conferred on an European Union citizen to exercise the freedom to move to another member state and reside there is one of the most fundamental rights given by the Treaty. 36. In my judgment, that analysis is correct. It is not a satisfactory response to the free movement argument simply to say that the scope of the franchise is exclusively within the competence of the United Kingdom. That was equally so of the rule in Stewart v Secretary of State for Work and Pensions [2012] PTSR 1 but it did not of itself defeat the claim. In my judgment, if the claimant can show that the 15-year rule does unjustifiably interfere with the freedom of movement conferred by article 21 FEU, the court would have to set it aside. I cannot imagine that the Court of Justice would concede that a national rule could defeat this right. Nor do I accept that this analysis is in any way incompatible with the fact that certain rights to vote, but not in a general election, are expressly given to migrants in the host state. 37. It follows that even if Mr Coppel is right to say that any interference with economic rights would have to be related specifically to their employment in some way, he accepts that the same limitation would not apply where the claimant was seeking to exercise the right of free movement as a citizen of the European Union. 38. However, the claimant needs to show that the obstacle created can fairly be said to deter persons from exercising their rights, whether under article 21FEU, 45FEU or 49FEU. Not every disadvantage to those who move to live in another member state resulting from the discriminatory application of domestic laws on residence grounds amounts to an interference sufficient to require justification. The court has held, for example, that in order to constitute an interference with the freedom of movement of workers, the rule which is said to create the restriction must affect access to the labour market in a way which is not too indirect or uncertain: see Graf v Filzmoser Maschinenbau GmbH (Case C-190/98) [2000] All ER (EC) 170. I see no reason why that principle should not apply where the rights of free movement derived from citizenship are being relied upon. 39. In my judgment, in this case the restriction is too indirect and uncertain and has not been established on the evidence..."
[16]This argument was also raised and considered by the Court of Appeal in Preston. In the lead judgment of Mummery LJ, the Court of Appeal endorsed the approach which had been taken by Elias LJ, namely that there was an argument to be considered relating to the question of freedom of movement. They also endorsed his conclusion that the evidence which was before the court did not substantiate any legitimate claim. Mummery LJ's conclusions can be found in the following paragraph:
"81. Disenfranchisement by reason of 15 years non-residence in the UK is, in my view, both qualitatively and quantitatively different from those more direct, certain and immediate obstacles and barriers to basic day-to-day living that are set up by social benefits rules requiring the claimant to be present in the UK at the date of claiming the benefit and/or resident in the UK for a relatively short period before the date of claiming the benefit. Such rules have been held to amount to restrictions on free movement that must be justified. I agree with the Divisional Court that the 15-year rule differs from those rules and does not create a restriction that has to be objectively justified under EU law."
[17]Advancing the case on behalf of the claimant, Mr James Dixon relies upon evidence provided to the court which argues that the disenfranchisement from Parliamentary elections affects free movement. Concern is expressed in the evidence about hostility which has been articulated towards EU citizens verbally in the cut and thrust of political debate, and also episodes of unlawful violence towards Eastern European migrants, which are obviously to be wholly deprecated.[18]Accepting that evidence, I was nevertheless unconvinced that there was any proven nexus between that evidence and any infringement of free-movement rights for those entitled to move within and between Member States as EU citizens. The evidence does not, in my view, begin to demonstrate that disenfranchisement from national Parliamentary elections in the UK in any way affects, prejudices or curtails the right to free movement under the Treaty on European Union.[19]At its height, all that could be said is that extending the franchise would raise the profile of the concerns of those disenfranchised EU nationals with Parliamentary candidates canvassing for their potential votes; it could also be said to potentially enhance the status of EU citizens presently without the vote. That said, I am wholly unpersuaded that the evidence before the court, even when couched in those terms, creates any necessary link between those propositions and prejudice to the right to free movement. The evidence is too indirect, too uncertain and too speculative to found any proper claim in this case on this basis. Thus, in my view, there are serious difficulties for the claimant to demonstrate that he is entitled to claim his disenfranchisement is a breach of EU law.[20]However, Mr Dixon, on behalf of the claimant, contends that this is not an end of the analysis. He submits that there are other cases of the European Court of Justice (dealing not with issues associated with voting but with other subject matter) which demonstrate that the European Court of Justice considers it is open to it to extend the scope of EU law. By analogy with these cases the Parliamentary franchise can be understood, he submits, to be within the scope of EU law bearing in mind the scope and purpose of the Treaty and the approach of the ECJ in the cases relied upon to broaden the scope of and obligations created by EU law. It is therefore necessary for me to address the cases upon which Mr Dixon has relied.[21]Mr Dixon featured in particular at the forefront of his argument the case of Rottmann v Freistaat Bayern (Case C-135/08). This was a case concerning an applicant to the European Court of Justice who had been an Austrian national, and who, following criminal investigations into his personal affairs, moved from Austria to Germany. Whilst in Germany he was naturalised as a German citizen. Upon naturalisation he lost his Austrian nationality as a result of the operation of German law. The Austrian authorities, as a result of the investigations, issued an arrest warrant against him and advised the German authorities that he was wanted in Austria. As a result of that notification, the German authorities withdrew his naturalisation as he had concealed the fact that he was being investigated when he had made his application and therefore they determined he had obtained naturalisation by fraud. As a result of this chain of events he lost his EU citizenship.[22]The European Court of Justice concluded that, whilst a Member State had power to lay down conditions for the acquisition and loss of nationality, they could only exercise that power with due regard to EU law. It was not contrary to EU law to remove naturalisation if it had been obtained by deception, but decisions in relation to the withdrawal of naturalisation would need to observe and accord with the principle of proportionality. In the course of their judgment, court observed as follows:
"42. It is clear that the situation of a citizen of the Union who, like the applicant in the main proceedings, is faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by article 17EC and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law. 43. As the Court has several times stated, citizenship of the Union is intended to be the fundamental status of nationals of the Member States (Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve (Case C-184/99) [2002] ICR 566, para 31; Baumbast v Secretary of State for the Home Department (Case C-413/99) [2003] ICR 1347, para 82). 44. Article 17(2)EC attaches to that status the rights and duties laid down by the Treaty, including the right to rely on Article 12EC in all situations falling within the scope ratione materiae of Union law: see Martínez Sala v Freistaat Bayern (Case C-85/96) [1998] ECR I-2691, para 62, and Schempp v Finanzamt München V (Case C-403/03) [2005] IECR I-6421 para 17. 45. Thus, the member states must, when exercising their powers in the sphere of nationality, have due regard to European Union law: see Micheletti (Case C-369/90) [1992] ECR I-4239, para 10; Belgian State v Mesbah (Case C-179/98) [1999] ECR I-7955 para 29; R v Secretary of State for the Home Department, Ex p Manjit Kaur (Case C-192/99) [2001] ECR I-1237, para 19; and Chen v Secretary of State for the Home Department (Case C-200/02) [2005] QB 325, para 37." 46. In those circumstances, it is for the Court to rule on the questions referred by the national court which concern the conditions in which a citizen of the Union may, because he loses his nationality, lose his status of citizen of the Union and thereby be deprived of the rights attaching to that status."
[23]In my view, this passage from the judgment makes plain that in this case EU law was clearly engaged and was engaged on the basis of the loss of status as an EU citizen. It was therefore (contrary to Mr Dixon's submissions) a case which was brought and determined within the scope of EU law.[24]In the course of argument Mr Dixon focussed in particular on the phrase "its nature and its consequences" from paragraph 42, and contended that disenfranchisement from Parliamentary elections was, given its nature and consequences, necessarily to be regarded as being within the scope of EU law. I am unpersuaded that that phrase is capable of bearing the burden which Mr Dixon places upon it. I am equally unpersuaded that it could have the broad consequences which flow from his submission. The nature and consequences which are referred to in paragraph 42, in my judgment, are those directly engaged with EU law, namely the loss of EU citizenship and its consequential loss of rights under EU law.[25]The second case upon which reliance was placed was Garcia Avello v Belgium (Case C-148/02). This case concerned the naming of children of a Spanish father and Belgian mother, the children having dual nationality, and dwelling within Belgium. Belgian law required them to take their father's surname; Spanish custom was for children to take both names from their parents, firstly their father's and secondly their mother's. The Belgian authorities refused to name the children in accordance with Spanish custom as requested by their parents. Because of this, the court accepted that there would be difficulties which would be caused for the children in both their private and professional lives if they moved to Spain as a result of confusions which could arise as to their parentage and as to their proper identification. The court, therefore, concluded that there was an infringement of EU law which required justification. It is important, however, to note that, in my judgment, that infringement was directly related to the right to free movement, and therefore, in so far as it was discriminatory, the law required justification. Thus I am unable to accept that this was a case of the European Court of Justice extending the boundaries of EU law. They were operating directly within it and in particular in respect of the right to free movement.[26]The third case was D'Hoop v Office National de l'emploi (Case C-224/98). This case concerned the deprivation of a post-study social security benefit from a Belgian citizen who had completed her secondary education in France, whilst exercising her right to free movement, and then undertaken her degree back in Belgium. The legislation which based entitlement to the benefit upon completion of secondary education in Belgium placed citizens at a disadvantage simply because of exercising their free movement rights. The European Court of Justice therefore concluded that it was contrary to the principles underpinning the status of a person as an EU citizen and required objective justification because it discriminated between individuals based upon where they had completed their secondary education.[27]Again, I am unable to regard this as a case which expands the scope of EU law it was rather a case which was firmly embedded within the established principles of EU law, applying them in the particular context of this post-study benefit.[28]The final case upon which reliance was placed was Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve (Case C-184/99). This case concerned a non-contributory benefit which was not paid by the Belgian authorities to a French citizen because he was a student studying in Belgium and not a worker within the terms of EU law. If he had been a Belgian citizen he would have been entitled as a student to claim the noncontributory benefit. Again, in my view, paragraph 32 of the judgment in that case makes clear that the right not to be discriminated against on grounds of nationality within the treaty applies to all situations "which fall within the scope of the ratione materiae of community law". Thus again, on a proper analysis and understanding, this case is concerned with an issue firmly within the scope of EU law and does not represent an extension of it by the European Court of Justice.[29]Ultimately, therefore, I have reached the view that the claimant's case is unarguable on ground 1. Firstly, the franchise for Parliamentary elections is not a matter which is directly within the scope of EU law. Secondly, in so far as it may be contended that the prescription of the franchise determined by the UK might infringe the principle of freedom of movement, that case is not even arguably demonstrated on the evidence which has been placed before the court. Thus the issues which were raised in relation to discrimination or the need for objective justification and proportionality in respect of the definition of the Parliamentary franchise do not arise in this case and there is no need for me to determine whether those contentions have been made out.[30]I turn to ground 2, which was not strongly pressed by Mr Dixon during the course of his submissions, and in my view rightly so. The question of whether or not Article 3 of the First Protocol is infringed by a law which restricts the franchise to citizens only was directly considered by the Supreme Court in R (on the application of Barclay) v Lord Chancellor and Ors [2009] UKSC 9; [2010] 1 AC 464. That case concerned new constitutional arrangements for the island of Sark, one of the Channel Islands, which included a prohibition on persons defined as aliens under UK law standing for election. Giving the leading judgment in the Supreme Court, Lord Collins provided as follows:
"87. The principal answer to the appellants' case is that there are many decisions of the Strasbourg Court which proceed on the basis that the rights under Article 3 belong to citizens, and therefore not to aliens. In a passage in Mathieu-Mohin's case 10 EHRR I, para 54 repeated or referred to in many subsequent judgments, the court referred to the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election. For example, in Kovach v Ukraine (Application No 39424/02) (unreported) given 7 February 2008, para 49, the Court said in the same context: 'In this field, contracting states enjoy a wide margin of appreciation, provided that they ensure the equality of treatment for all citizens.' In Makuc v Slovenia (Application No 39424/02) (unreported) given 7 February 2008, para 206, the court said 'The court recalls that this provision guarantees individual rights, including the right to vote and to stand for election. However, these rights are not absolute but rather subject to limitations, such as citizenship …', citing Hirst v United Kingdom (No 2) 42 EHRR 849. ... 91. On the hearing of this appeal the parties did not provide any comparative material on the practice of the contracting states, but the website of the Inter-Parliamentary Union has a table of the conditions for voting and for standing for election, which confirms what was said in Melnychenko v Ukraine. There does not appear to be a single member of the Council of Europe which does not impose a citizenship requirement (in some cases coupled with a residence requirement). ... 93. Consequently both in international law, as reflected in the International Covenant and in the practice of States, and under the European Convention, as reflected in the decisions of the Strasbourg Court and in the practice of the members of the Council of Europe, it is citizens, and not non-resident aliens, who have the right to vote and stand for election. There may be some exceptional cases, for example where citizenship is withheld on, for example, linguistic grounds from communities who have been settled on the territory of a State for several generations: see Venice Commission Explanatory Report, para 6b. But the general rule is clear."
The Supreme Court went on to conclude, in particular in Lord Collins' judgment, that there was no separate point arising under the rights in Articles 14 and 16 in relation to nondiscrimination: see paragraphs 96-99.[31]Against this background it is in my view unarguable to contend that there is any breach of rights enjoyed under Article 3 of the First Protocol by the exclusion of the claimant from the national franchise in relation to Parliamentary elections. As such, therefore, the issues raised in relation to proportionality again simply do not arise.[32]In this case, the claimant asked for permission to be granted in any event because case raises important issues. I accept that the question which is raised in this case may engage the interests of many who are now present and settled in the UK and who are EU citizens. However, in my view, for the reasons which I have given, the legal issues in this case are entirely clear-cut and therefore that wider interest in the issues raised does not, in my view, amount to any compelling reason to grant permission to allow this case to proceed.[33]For all of these reasons, I refuse the application for permission to apply for judicial review. MR LASK: My Lord, I am grateful. MR JUSTICE DOVE: Albeit I did not ask for anybody to come, I am very grateful for you all coming to see me this morning and I should place on record obviously my thanks to you all for your assistance and indeed Mr Palmer's too. Your colleague, Mr Dixon, who was with you on Thursday should not escape mention as I am sure he was also actively involved in the preparation of the case, for which I am very grateful. MR DIXON: Mr Fraczyk. Yes, thank you. MR JUSTICE DOVE: Thank you. Do pass that back to him. Yes, Mr Lask? MR LASK: Thank you, my Lord. We anticipate there being three consequential items on the agenda. The first is the issue of the defendant's costs; the second is permission to appeal, if indeed my friend intends to seek it; and the third was the matter foreshadowed by Mr Palmer last week, which was permission to cite the judgment you have just given. MR JUSTICE DOVE: Yes, right. Let us do the last one, because it is the easiest, first. I grant permission for the case to be cited on the basis that I heard relatively substantial argument and I have given a relatively full reasoned judgment. MR LASK: Thank you, my Lord. On the first two issues, you may have seen a set of draft directions provided by my friend yesterday. MR JUSTICE DOVE: Yes, I did. MR LASK: We received those at 6 pm yesterday evening. We had anticipated, following some discussions we had after the hearing last week, that the consensus was that the most efficient and cost-effective way to proceed would be to deal with the issue of costs and any application for a PCO at today's hearing. We say those issues can and should be dealt with today, rather than being put off for further written submissions. MR JUSTICE DOVE: Mr Dixon, any view about that? MR DIXON: Well, the only thing I would say is that this case may well go further, at least the question of permission. MR JUSTICE DOVE: Yes. Well, you can ask. MR DIXON: I am not sure I need to. MR JUSTICE DOVE: I do not think you do. Check the rules by all means, but my understanding is that there used to be, in days of yore, a requirement that you had to ask the judge at first instance, and if you did not then you were hamstrung when you got to the Court of Appeal. But my understanding is that part 52 does not require you to make the application to me. Indeed, in other cases I have said, because of the need to perfect the judgment and getting it back from the shorthand writer -- who I am sure will be exceedingly efficient and get it back very quickly -- but nevertheless, because of the timescales, you have to get your application in. So you do not need to make that application to me. If you need to take instructions you can do it and then you can do it straight to the Court of Appeal. MR DIXON: The reason I raise that though is because there is a fundamental question here as to -- I submit, actually leaving aside your Lordship's conclusions, the matter of a protective costs order stands actually as well as a free-standing issue. My submission actually is really quite simple: that if ever there was an exceptional case for which that jurisdiction was tailored, then this is such a case. MR JUSTICE DOVE: The issue that I have to decide -- and I anticipated you would make that point, "We are renewing our PCO application" -- the issue which I have to decide is whether I hear argument now orally and make a decision or whether you want to reflect upon the conclusions I have reached and make your submissions in writing; or reflect on it and say, "I have already made my submissions in writing," which you both have, "and there is nothing to add in the light of the judgment," and leave it to me to make a decision. MR LASK: My Lord, for our part we say that the claimant has already made the PCO application in writing in some detail with evidence; we have responded in writing; and in my submission the court is now well placed to decide the point. I can outline our position very, very briefly in case it assists, but we do say it can and should be decided today. MR DIXON: That may well be the most proportionate approach. MR JUSTICE DOVE: Yes, okay. MR DIXON: Objectively speaking. MR JUSTICE DOVE: Good. Right, then, I am not sure who wants to go first? MR DIXON: Perhaps if my learned friend goes first. MR JUSTICE DOVE: And then you can respond. MR DIXON: It saves me speaking twice. MR LASK: My Lord, I am grateful. MR JUSTICE DOVE: Let us just locate, shall we, where people's submissions are in relation to this issue. MR LASK: Yes. The claimant's application for the PCO is in the claimant's supplementary bundle at tab 2. That should be a slim bundle that was provided to you shortly before the hearing last week. The defendant responds in its skeleton argument which is contained in the defendant's supplementary bundle, which was provided shortly before the hearing last week. In particular our position is set out at paragraphs 36 to 44 of the skeleton argument. MR JUSTICE DOVE: Yes. 36. MR LASK: Page 9. MR JUSTICE DOVE: Yes, I have those. MR LASK: Our position in a nutshell is that the application should be dismissed. I will outline the reasons for our position very briefly. We say the Corner House guidelines are intended to set a demanding standard, as I understood, so that the PCO may only be made in exceptional circumstances, which I understand is common ground. Taking those guidelines in turn, the first and second guidelines, the issues raised, in my submission, are not of general public importance and the public interest does not require that they be resolved. Indeed, this is implicit in the judgment your Lordship has just delivered. You found the issues to be unarguable, and moreover you had been urged, even if you found that the issues were unarguable, to grant permission on general public interest grounds; you did not consider it appropriate to do so, and in my submission those conclusions carry over into the PCO analysis. It is not sufficient that the issues raised are of importance to a section of the public; they must be of general public importance. One sees that from the Compton case at paragraph 59. The claimant's evidence establishes at best that the issues are of importance to those he represents, as your Lordship suggested. Given the unarguability of the arguments raised, that really is not sufficient for present purposes. So those are the first two Corner House guidelines. As to the third guideline, as Lang J found when dealing initially with the claimant's application, the claimant does have a private interest in this claim because he wishes to pursue a career as a Member of Parliament. One sees that from paragraph 25 of (Inaudible) statement. MR JUSTICE DOVE: It is an interesting point as to whether or not it is a private interest to seek public office. MR LASK: We say it is in this case, and indeed Lang J found it. MR JUSTICE DOVE: I know she did, but that is a conclusion which has been reopened before me. How can it be a private interest to seek public office? MR LASK: In my submission there is at least an element of private interest in any career decision that an individual takes, whether it be a career that is in the public sector or in the private sector. It necessarily involves at least an element of private interest, and if one chooses to pursue a career as an MP, whilst that career may involve serving the public -- MR JUSTICE DOVE: It is hardly a career. You have absolutely no security, do you, as an MP? I have children leaving university, and being an MP is not something that they would regard, I do not think, as being a career. MR LASK: My Lord, the lack of job security could be said, I suppose, of a number of "careers". MR JUSTICE DOVE: Anyway, there we are. You say Lang J was right. MR LASK: We say she was right on that. Then the fourth guideline, we say the claimant's financial resources are not such as to make it fair and just to grant a PCO. Again, Lang J found he is not impecunious. That is common ground. But on the contrary, if one looks at the witness statement produced in support of the renewed application, one sees, for example, that his gross income for the year ending September 2015 was around £39,000. In addition, his wife earns around £21,000 annually; that is net. So the claimant and his wife have a combined gross income of over £60,000. One sees that at paragraphs 5 to 7 of his witness statement. The claimant has also spent substantial sums already on his political activities. As we draw attention in the skeleton argument, he spent £5,000 on -- MR JUSTICE DOVE: Well, his party will have spent £5,000, presumably? Oh no, paragraph 20 he says he paid it. Yes. MR LASK: Yes. So he is prepared to make significant outlay in pursuit of his objectives. He also makes the point that he is bringing the claim on a representative basis: that is paragraph 27 of his statement. We say that in those circumstances, if that is right, those he represents can be expected to assist, and frankly the evidence he gives as to their financial means we say is wholly inadequate. Turning to the final guideline, Lang J found that the claimant would continue with his claim whether or not a PCO was made and she was proven right. He could have withdrawn at the stage that she refused the application, but he chose not to, knowing that further costs would be incurred. It is notable also, in my submission, that in his most recent witness statement he does not say that he would have discontinued his claim if a PCO were not granted. So for all those reasons we do say -- MR JUSTICE DOVE: While you are on your feet, I have had an updated statement of costs put before me. Have you seen this, Mr Dixon? MR DIXON: I have, my Lord, yes. MR JUSTICE DOVE: Just to deal with costs synoptically, what do you say about the nearly £17,000 that is now claimed? I am not sure what was updated from last time? MR LASK: As I understand it, you were provided with a costs schedule last week. You were then provided with an update yesterday, and the material changes were, I think, costs of the hearing and the costs of preparing the costs schedules. Those were the two material changes. But can I say before I continue, there is a further revision. This time the total has come down, because, in error, both mine and Mr Palmer's costs of attending today were included in the version that was filed and served yesterday. We have amended that. We have handed out copies this morning. I have a copy here. MR JUSTICE DOVE: Perhaps that can be handed forward. (Handed). Thank you. MR LASK: I will obviously have to hear what, if any, objections Mr Dixon raises as regards to the sum set out in the schedule. MR JUSTICE DOVE: Do you want to leave it there then? MR LASK: I am in your hands, my Lord. MR JUSTICE DOVE: Let us leave it there. You say you are entitled to it all and there should be no PCO. Mr Dixon? MR DIXON: My Lord, the factors in relation to the PCO have to be looked at in the round, and I emphasise that and I urge upon you to stand back and look at this case, as it were, globally first of all. Clearly on any view this engages the public interest. Your Lordship has already made observations about being an MP, but this claimant's activity goes beyond that. You can see from his witness statement his involvement in a variety of civic duties. I urge upon you to accept that the reason why he got politicised, it was in the United Kingdom and it was because of what he perceived was going on with regard particularly to his people. I took your Lordship at the start of the hearing to 1 January 2014 when he took it upon himself to help a fellow national. So this case clearly on any view engages fully and squarely the public interest element of a protective costs order. The idea that it really only relates to a section of the public, well, that really underscores the claimant's concern here, because of course, yes, on one view you could say this only concerns EU citizens, but this is actually a question as to citizenship, the extent of the Parliamentary franchise and, as Ouseley J pointed out in an earlier order, one of the consequences of the discrimination problem could be -- and it still could be depending on what may happen in this case -- that a significant section of the public loses the Parliamentary franchise. That is something one has to consider. But I made that point because it illustrates the overwhelming public importance dimension to this case. It would be quite wrong, in my submission, to narrow this down to something which only affects, in terms of the public interest issues, EU citizens. All the more so -- and this is something which your Lordship, with respect, should not ignore, because this could be, depending on what happens, part of this case -- all the more so if the issue of the referendum, which raises analogous issues -- MR JUSTICE DOVE: Well, the franchise for the referendum has not been settled yet, has it? MR DIXON: No, but it seems to be pretty clear that it will reflect what is called the Westminster franchise. MR JUSTICE DOVE: That is a decision for another day, Mr Dixon. MR DIXON: Well -- yes. MR JUSTICE DOVE: No doubt those making that decision will bear in mind what was said in Preston. MR DIXON: Yes, but it supports the proposition that the clear character of this case is that it is a public interest case. So that aspect is plainly satisfied, I would submit. If your Lordship is more concerned about the financial position, first of all impecuniosity is a factor; and yes, I cannot advance to this court that Dr Tomescu is impecunious. However, when you factor in what the burden of this kind of litigation means in reality, for him to bear that burden, given his relatively limited financial means, when looked at in that perspective, then I would submit it would be wholly just and proportionate to make a protective costs order. Of course, this is not a zero-sum analysis; there is a spectrum, and your Lordship can take a view as to where a cap might justifiably fall or be set. Your Lordship can see that given, I submit, the fairly momentous matters here, that not to impose a protective costs order of any type would really run counter, in my respectful submission, to the underlying rationale of what such an order is supposed to achieve. My learned friend makes the point that other citizens, other EU citizens, other members of Dr Tomescu's party, can be expected to contribute. Well, with respect, that is a proposition surely, my Lord, that could always apply, or very often, where an individual brings a claim for public interest motives from a non-Governmental organisation, that is a point that could always be made. But it is artificial, with respect, because the reality is that he has brought this claim, he has taken on his shoulders the burden of the risk, and he has brought what is an important point. That ought, when one balances everything out, to be reflected in a measure, I submit, of protection, and I reiterate this is not an all-or-nothing. MR JUSTICE DOVE: I have your submission. MR DIXON: So I would urge your Lordship to take the view that this is such a case, such an exceptional case, as to merit such a order. MR JUSTICE DOVE: What do you say about the costs claimed? MR DIXON: Well, the costs claimed, first of all we are at permission stage, although it may not in some respects feel like that, and costs by no means follow. MR JUSTICE DOVE: I think they do follow to the extent certainly of the acknowledgement of service, and also it would be said I think against you that the hearing having been directed by Ouseley J there was an inevitability that costs of a hearing were going to be incurred in dealing with it. MR DIXON: Well, that may be the case, but it could also be said that the claimant has lost the benefit of being able to see -- and this of course is one of the rationales of the jurisdiction -- whether a court found there was an arguable case on the papers. He has been equally, if one is even-handed about it, he too has been brought into a situation of what has turned out to be a much longer hearing than any usual permission hearing is. That is an important factor. But I can see that your Lordship is not going to accept the proposition that the claimant, if you are against me on the protective costs order -- MR JUSTICE DOVE: If I am against you on the PCO, the question which then arises -- and Mr Lask says every last penny of this costs schedule is justified -- and what I am trying to see is, bearing in mind I am engaged in a rough-and-ready exercise, not a line-by-line detailed scrutiny of every last moment of the defendants' lawyers' work, but in a rough-and-ready assessment exercise, are there any submissions you want to make in relation to the current claim which now stands at £16,688? MR DIXON: Yes. You of course have the Practice Direction and CPR 44. Any doubt you have should be resolved in the paying party's favour. Looking down the schedule, there are matters that stand out: letters and emails, 3 hours 10; personal attendances seem excessive; the time in relation to pre-action matters, 7.1 hours; and also I do question with the greatest of respect, particularly given the stage the case is at, on an inter partes costs basis whether two counsel were justified. If the defendant's solicitors wanted to use two counsel then that is a matter for them, but that is not something that should be laid at the claimant's door. If it is counted against me, well, there were three counsel on this side, well first of all they were all pro bono -- hugely important in this respect -- one of our number was a pupil as well, and we had no solicitor. So balanced there I submit, not to denigrate in any way my learned friend's presence in this case, but it is an inter partes costs question and it is not reasonable for Dr Tomescu to bear that cost. So I would submit that firstly this is permission; the claimant has been brought into this case in the sense of a hearing as it has panned out, not through any fault of his own; it is an exceptional case; he has borne the cost of the burden of the litigation; and even if you are against me on the protective costs order I urge you to factor that in as a principle when it comes to the assessment of these costs. The costs themselves, I submit respectfully, are excessive. MR JUSTICE DOVE: Thank you very much. Anything by way of reply, Mr Lask? MR LASK: My Lord, may I make some general points and then respond to the specific objections raised by my learned friend? MR JUSTICE DOVE: I am only asking for your submissions on the costs schedule, because you have already made your case on the PCO. MR LASK: Indeed. That is all I was intending to address you on. On cost, whilst this claim has failed at the permission stage, in my submission its impact on the defendant in terms of resource implication and indeed the benefits enjoyed by the claimant have closely resembled a substantive claim. To make that point good, the defendants were ordered to file detailed grounds and evidence at the outset and under considerable time pressure. That is Lang J's order of 16 April 2015. The claimant's grounds were detailed and the work required to respond to them was significant. The defendants were also required to consider and respond to the claimant's interim application, which included an application to postpone the general election or a rolled-up hearing. Finally, the claimant has in effect had the benefit of something akin to a substantive hearing. The hearing lasted several hours last week, there was full argument, and he has had a fully and carefully reasoned judgment from your Lordship this morning. So in terms of the costs of the permission hearing, the Mount Cook criteria are clearly engaged. The Mount Cook criteria which determine when it is appropriate to award the defendant its costs of attending the permission hearing indicate that if the defendant is required to attend, which we effectively were, that warrants a costs award. But also they say that if the claimant has effectively had the advantage of a substantive hearing, that warrants a costs award in the defendant's favour. MR JUSTICE DOVE: I think that is pushing it a bit, because if you remember, although I allowed you a lot of latitude, Ouseley J had set a fairly rigorous timescale, which I did not hold you all to but I could have done. So at its height what happened was a hybrid, frankly. MR LASK: I accept that, my Lord, I do not say it was identical to a full substantive hearing, but I do say it was closer to a substantive hearing than the ordinary permission hearing. So, my Lord, those are the general points. Dealing now with the specific points raised by my friend on the costs schedule, he referred firstly, I think under the heading "attendances on clients" to the 3 hours and 10 minutes spent. I find it very difficult to see, in a case that has lasted since the claim was issued in April, how 3 hours on letters and emails to the client can be seen to be excessive. Those letters and emails had to cover all the issues I have just mentioned: the detailed grounds, the evidence, the interim application, and of course the preparation for the hearing. Attendances on others. We have 5 hours, and again I make the same point: given everything that has needed to be covered over a number of months it is very difficult to see how 5 hours can be objected to. My understanding is that 5 hours included a conference with counsel at the outset of the claim. Turning then to -- I think this was a reference to the schedule of work done on documents -- Mr Dixon referred to 7.1 hours, which is the first row in that schedule. What I would draw your Lordship's attention to is the difference between 7.1 hours in row 1 and the 3 hours in row 2. What one infers from that is that, because of the work done on pre-action correspondence by the solicitors, less work had to be done when the formal claim was issued. That is why the second row is so low. Finally, on the question of two counsel, I do say that it is very difficult for the claimant to make that submission in circumstances where on his side it was considered necessary, given the scope of the case and the work involved to instruct three counsel; very difficult for him then to say that two counsel on the defendant's side is excessive. I would also say this: there was no duplication of work between myself and Mr Palmer, and what one sees in the totals under counsel's fees are, in my submission, what are very reasonable sums. One has to bear in mind that the first sum there, £3,750, included detailed grounds, advice on merits, advice on evidence and I think I am right in saying a skeleton argument for the permission hearing. So in my submission it is clear from that sum that there was no duplication. If there had been, the sum would have been much higher, and taken in the round we do say the sum is entirely reasonable. As for the second sum, which on the revised schedule is £1,745, that covers obviously the time spent at the hearing last week and a small amount of preparation. So overall it will not surprise your Lordship to hear that my submission is that the sum claimed is entirely reasonable and proportionate and should be awarded. MR JUSTICE DOVE: Thank you. I have before me as ancillary matters two issues related to costs. The first is the question of whether or not a protective costs order should be made in the claimant's favour. This application starts with something of an uphill battle on the basis that Lang J considered the issues and in a short reasoned written decision concluded that a protective costs order was not required. Nevertheless, I am asked to look at the matter in the round, having had a more detailed involvement with the case, to consider whether a protective costs order should properly have been made in the claimant's favour. Whilst undoubtedly there is a broader public interest in the issues, the question which arises under the protective costs order is whether they are of general public importance (and in my view Lang J was correct to conclude that they were not generally of public importance) and whether or not public interest requires that they should be resolved. That second question is perhaps subtly different, and it may be argued, bearing in mind the extent of the individuals in the UK who may be affected by the decision, that there is some public interest which requires the issue to be resolved, and I might well have taken a different view on that second question to the one which was taken by Lang J. Equally, I do not consider that the claimant, who is active in civic society and has taken a keen interest in political issues in the community, is somebody who is bringing this case because of a private interest simply because he would wish to stand for election. People stand for election out of a sense of public service; not for the salary or for the other ancillary benefits, but in order to serve the community; and therefore, again with respect to Lang J, I may well have reached a different conclusion on that third issue. I, however, consider that the claimant faces real difficulties in relation to the fourth and fifth aspects of the PCO test. Firstly, whether or not his financial resources are insufficient so as to make it fair and just to make the order. As has been pointed out on behalf of the defendant, and is fairly conceded by Mr Dixon on behalf of the claimant that the claimant is not impecunious and therefore I am not prepared to conclude, given the stage of the proceedings that we are at (namely simply at the stage of permission), that the costs are prohibitive and have a chilling effect given the financial resources available to the claimant. So far as the fifth test is concerned, it is pointed out fairly by Mr Lask on behalf of the defendant that the claimant continued undeterred by Lang J's refusal of his PCO. Overall, I am not satisfied in this case that the tests for making a protective costs order have been met and I do not make one. That brings me to the question of costs. There is a revised schedule before me from the defendant claiming costs in a grand total of £16,688. I have to assess costs summarily. That means I have to step back from the minutiae. I have to consider the case which was made to me and the documents which it was necessary for me to peruse and to make a broad assessment of what would be a reasonable bill of costs on an inter partes basis for the claimant to pay. I say at the outset, stepping back and as a matter of impression, in my view nearly £17,000 is excessive for the stage which these proceedings had reached. Although Mr Lask on behalf of the defendant seeks to individually justify various elements which were criticised by Mr Dixon, it needs to be borne in mind in relation to litigation and in particular litigants who are seeking summary assessment, that they are responsible for taking a proportionate approach to the incurring of costs and cannot assume that in a summary assessment each and every item of the costs they have claimed, or indeed their global bill, is going to be automatically accepted as appropriate. Of course, I do not have the ability of a Master to look at each of these individual items. But I have sympathy with the submissions made on behalf of the claimant by Mr Dixon that in certain respects the hours which have been claimed in relation to work on documents in terms of responding to pre-action correspondence, attendances, and letters out, do appear high. That is not to say that they were not done, but simply that a sense of proportion has to be brought to bear in making this assessment. Mr Dixon also fairly observes that two counsel have been retained (no doubt for good reason) by the defendant in resisting this claim, but the question which arises as to whether or not as an item of inter partes costs it is then appropriate for all of those costs to be awarded; in particular the costs of the hearing, bearing in mind as I do that it is said that the costs of other advice and documentation have not been duplicated but incurred by each of the individual counsel involved in the case. It is no answer for Mr Lask to say, "Well, there were three counsel on behalf of the claimant"; all three counsel were acting pro bono, doing the task not only of the advocate and advisor but also the task of the solicitor. I can well understand, bearing in mind they were shouldering that burden, why the team of three were fielded by the claimant. It does not in any way affect the conclusion that I reach that the award that I make must be tempered by both the overall impression of the costs which ought properly to be incurred in resisting a claim to the stage of an oral permission hearing, bearing in mind also that, in effect, there was no necessity to engage two counsel. Doing the best that I can on the basis of the material before me, and bearing in mind the need to make a summary assessment, standing back from the minutiae I propose to order costs in this case in the sum of £10,000. Is there anything else, or are you going to go away and think about permission to appeal and deal with it separately? MR DIXON: Well, my Lord, it matters not in the sense whether I ask for permission to appeal, unless your Lordship is minded to grant it. MR JUSTICE DOVE: I have another case in the wings, and it just seems to me in terms of efficient use of court time, whilst you can do what you like, if I was given the choice I would rather get on with the next case. MR DIXON: Of course. MR JUSTICE DOVE: But that is not in any way to discourage you, Mr Dixon. MR DIXON: Well, it is often said, for a variety of reasons, that if the court above thinks that there is a point then it will grant permission. MR JUSTICE DOVE: That is what they are there for. When I get it wrong, they are there to put me right and mark my homework accordingly. MR DIXON: What I do ask for is an expedited judgment. MR JUSTICE DOVE: Yes, I am happy. I am looking at the shorthand writer -- yes, the shorthand writer is nodding. All good. MR DIXON: That would assist, and I think my learned friend has already reminded you about what Mr Palmer asked for. MR JUSTICE DOVE: Permission to report. Yes, good. Anything else from your side? MR LASK: My Lord, nothing further. MR JUSTICE DOVE: Thank you both very much indeed.