The EU Referendum: Who should vote?

 

 

Jo Shaw, University of Edinburgh

Twitter: @joshaw

 

The question of who votes in what elections is usually thought to be a rather nerdy and obscure question, and it doesn’t often capture the public imagination. So it was quite something to see an announcement from Number 10 in advance of the publication of the EU Referendum Bill telling us what the franchise is going to be in the referendum trending as ‘most popular’ and as a ‘top story’ on the BBC News website early in the morning of the late May Bank Holiday 2015. The announcement seems to have been made to forestall further debate on the franchise, which had been gaining quite a lot of traction on the airwaves, in the newspapers and in social media.

 
According to the announcement, the Referendum Bill will use a modified Westminster franchise. So it will largely use the franchise for UK national elections – i.e. resident UK, Irish and Commonwealth citizens, plus UK citizens who have not been resident outside the UK for more than 15 years, but it will import two additional elements from the franchise for European Parliament elections: members of the House of Lords will be able to vote, plus those who are resident in Gibraltar. It would not include three groups of possible voters:

 

·         UK citizens resident abroad for more than 15 years, no matter how long they have been resident outside the UK;

·         EU citizens who are able to vote in the UK in European Parliament and local elections (and in the elections for the devolved assemblies and Parliaments) on the basis of residence; and

·         16-17 year olds (presumably in the above categories as well as those who are resident UK citizens)

 

The issue has become politicised in the UK, in part because the first group felt they had been the recipients of a firm pledge from the Conservative party that the current 15 year bar on expatriate voting would be removed (this was later repeated in the 2015 Conservative Party manifesto: see p 49), and the latter two groups both voted in the September 2015 referendum on Scottish independence, with the third group also set to vote in future Scottish elections (including the one to be held in 2016), pursuant to an anticipated Westminster devolution of power to the Scottish Parliament to set its own franchise.

 

All debates and decisions about the franchise are a mixture of principle and pragmatism – especially in the UK, where the starting point is a rather mixed bag of voting rights. So unlike the vast majority of states worldwide, the UK does not limit its voting rights in national elections to citizens alone. On the contrary, ever since the current boundaries of the UK as we know it were carved out as a result of the end of empire and the dissolution of the union with Ireland, those who had been ‘subjects’ of the Crown found themselves continuing to enjoy the franchise in the modern state, even if this sits uncomfortably with a notion of a national citizenship which draws sharp boundaries between those inside and outside the circle of inclusion.

 

That said, the inclusion of at least some external voters in the UK franchise since 1980 has seen the UK aligning itself with a more general international trend towards allowing non-resident citizens to vote in elections without going as far as most states now do. So in 2014 the European Commission suggested that the UK, along with four other EU Member States, should reconsider its current policies and enact a more generous enfranchisement of external voters, especially those resident elsewhere in the EU. This was to avoid the situation whereby this group of voters might find themselves unable to vote in any national elections (e.g. if they have been abroad more than fifteen years, but yet did not qualify for citizenship in their host state, or for various reasons did not want to acquire that citizenship, e.g. if that meant giving up UK citizenship).

 

The UK also has an unusual approach to the enfranchisement of non-UK EU citizens on the basis of residence, which is only required under EU law for local and European Parliament elections, but which is extended – as a matter of UK law – also to elections to the devolved assemblies. Not only did EU citizens vote in the Scottish independence referendum, but they have also voted in all of the referendums that preceded the enactment of devolution arrangements, with the exception of the referendum in Northern Ireland which was conducted on the basis of the Westminster franchise. No other EU Member State has enfranchised non-national EU citizens in this manner; other states continue to insist that longterm resident EU citizens who want to vote in most regional and national elections must themselves become citizens by naturalisation, with all the difficulties that this may entail (including in some cases the loss of their original citizenship). A wider enfranchisement of EU citizens on the basis of residence has long been debated, but a European Citizens’ Initiative did not achieve much political traction across the EU.

 

And while the initial proposal to enfranchise 16-17 year olds to vote in the Scottish independence referendum was viewed with a degree of scepticism in some quarters, perceptions have changed substantially on this issue in Scotland. The enfranchisement is generally thought not to have changed the result in any substantial way (16-17 year olds seem to have had higher turnout figures than their immediate seniors, the 18-24 year old age group, but probably a slightly greater propensity to vote no). But the principle of enfranchising young adults in this way, and of ensuring that they receive opportunities, within the framework of educational processes in particular, of understanding the significance of the choices they are being asked to make has been part of a ongoing politicisation process in Scotland which receives wide approval, whatever position people take on the question of an independent Scotland.

 

The predictable result of all of this is confusion, as there is no coherent ‘membership model’ to which the UK adheres in the matter of elections or referendums. The Scottish referendum franchise, which included a wide range of persons resident in Scotland but excluded persons born in Scotland but now resident elsewhere in the UK or outside the UK is a case in point. The latter group would have become Scottish citizens in the event of a Yes vote (as well as remaining, we can assume, UK citizens). The choice was widely defended as a reasonable compromise on which to conduct the vote. Despite rumblings from ‘expat Scots’, threatened litigation to challenge the franchise did not ensue – and for good reason. For that referendum, as for the EU referendum, the setting of the franchise is a matter for the legislation enacted to allow the referendum to take place. There are no formal constitutional provisions on referendums in the UK. And there are, in my view, no provisions of EU law or international human rights law that would preclude the legislature having a free choice across the range of existing electoral rolls, including those for local, devolved, Westminster and European Parliament elections. This means that the franchise can be the subject of political horse-trading.

 

Those proposing any particular franchise for any given electoral or referendum event will be aware of the fact that the roll chosen might be very likely to affect the outcome. In excluding EU citizens, Prime Minister David Cameron is said to be bowing to eurosceptics in his own party. Equally, those who are campaigning for the inclusion of EU citizens may be doing so not just because of the principle that they have been resident and paying taxes for a long time, and that they will be profoundly affected as regards issues of personal status by the effects of the decision, but also because they may have an inkling that this group would vote in favour of the UK staying in if given the chance. That said, it is worth pointing out that registration and participation levels amongst non-national EU citizens resident in the UK in the elections they can vote in is lower than amongst UK citizens, even though there are clearly some groups to whom these rights to vote – and the possibility of participating in the EU referendum – matter intensely, for obvious reasons. Even if they participated at the same rate as UK citizens, they would be likely to account for less than 5% of the overall voting roll. In any event, as has been pointed out, they retain the option of acquiring UK citizenship (between now and the date of the referendum, indeed) if they want to vote. External voters also continue to prove a stubbornly hard to reach group, with much lower levels of participation during the years when they are enfranchised. It seems likely that they too, if resident in the EU at least, might be inclined to vote in favour of continued membership, in order to protect their own status, although no one can be sure about that point. Resident 16-17 year olds are, by contrast, not so hard to reach, but some people continue to harbour doubts about whether it is appropriate that they should vote, even though there is a modest international trend to lower the age of franchise, as well as the positive experience of the Scotland experiment on which to draw. Moreover, the Scotland experience seemed to indicate that their overall voting choice might not differ so greatly from that of the ‘mainstream’ voting population.

 

There are no right or wrong answers on the question of the scope of the franchise. The uncertainties around this question are, however, accentuated by the uncertainties about exactly what we might be voting on, and when. At the time when the Scottish referendum franchise was set, the terms of the vote were pretty plain, although obviously there were certain clarifications (e.g. on currency matters most particularly) during the course of the campaign. The EU vote is quite different, because of the uncertainties (and secrecy) of the diplomacy effort that the UK government is now purporting to lead, in order to seek those adjustments to the terms of the UK’s membership that the government claims it has an electoral mandate to negotiate, given the terms of its General Election victory in May 2015. The possible ‘adjustments’ are profoundly unclear, especially as regards the legal form that they might take, and of course there are quite a few people in the UK who are sceptical about whether these negotiations matter at all. Plenty will vote “in”, regardless of the Cameron ‘deal’. Plenty will vote “out”. The ‘deal’, for many observers, is simply a process of political choreography to allow David Cameron and George Osborne to avoid the Conservative Party falling apart over its divisions on the European Union. It certainly isn’t about something which many EU citizens, right across the EU might want to participate in if given a chance, namely a thorough transnational reconsideration of whether the legal and political framework for economic integration across Europe is now fit for purpose as we approach the middle decades of the twenty first century. To that extent, non-UK EU citizens resident in the UK might end up feeling doubly excluded if they do not have the vote: namely not only can they not participate in whatever referendum there is, but also they may well feel that the referendum that is taking place does not itself really get to the nub of the issues as far as they are concerned.

 

 

See also Steve Peers’ comments on this issue

 

This blog previously appeared on the British Influence site

 

Image credit: Daily Telegraph

 

Barnard & Peers: chapter 2

 

 

 

Should EU citizens who move retain the right to vote in their Member State of origin?

Steve Peers

The European Commission has recently produced a communication and a recommendation on the loss of EU citizens' right to vote when they move between Member States. According to the Commission, while Member States' national identity entails the right to decide who makes up a national electorate, Member States must consider whether their policies of disenfranchisement lead to a loss of the right to political participation. Many such citizens retain an interest in the politics of their country of origin, it is no longer difficult to keep in touch with political developments at home, and there is an ongoing trend toward allowing expatriates to retain their voting rights.

Five Member States disenfranchise their citizens who move abroad. Denmark, Ireland, Malta and Cyprus disenfranchise their citizens if they leave the country between 6 months and 2 years, while the UK disenfranchises its citizens after 15 years abroad. The European Court of Human Rights has recently upheld the British restrictions as compatible with the right to free elections, as set out in the First Protocol to the ECHR (Shindler v UK, 2013). Moreover, those who move to another Member State do not obtain the right to vote there in general elections (except in the UK, for Irish and Commonwealth citizens). They only have the right to vote (pursuant to EU law) in local and European Parliament elections.

The Commission believes that this disenfranchisement is: out of keeping with the premise of EU citizenship (ie, adding to national citizenship rights, not taking them away); could lead to complications regarding the exercise of free movement rights; and leads to a gap in political participation. In particular, the Commission points out that while all EU citizens resident in the EU qualifying to vote have the opportunity to vote for the European Parliament, those who move and are disenfranchised cannot influence the composition of the Council.  (One could add that they cannot influence the make-up of the European Council either).

Two possible options for solving this problem are rejected: obtaining the host State's citizenship would be at odds with the transnational and complex nature of EU citizenship, and mutual recognition of voting rights.

Therefore the Commission suggests a number of short-term solutions within the EU framework. In particular, Member States should allow citizens to remain enfranchised if they move between Member States, at least if they express an interest in doing so. And in the longer term, the idea of enfranchisement in the host country (including for regional elections) should be further encouraged.

These principles and suggestions (except for the longer-term ideas) are then set out in the preamble and main text of the Commission Recommendation. 

Comments

The Commission hints that Member States' disenfranchisement policies might infringe EU free movement and citizenship law. While the jurisprudence of the Court of Justice of the EU in this area can be hard to predict (I did not expect either of the Rottmann or Ruiz Zambrano rulings, for instance), at first sight it appears that this interpretation cannot be correct.  The Treaties lay out the rights of EU citizens, including the right to vote and stand for election in another Member State's local elections, or in voting for the European Parliament. Then Article 25 TFEU sets out the possibility for adding new rights for EU citizens, subject to a unanimous vote in the Council and national ratification.  The obvious implication is that further political rights for EU citizens are subject to the adoption of such further measures by the Council.

Would it be a good idea to adopt such a measure? While political citizenship is obviously a key element of citizenship as traditionally defined, and the particular context of the EU suggests that voting rights should not be lost due to exercising free movement rights, and as regards the make-up of the Council (as co-legislator), it does not necessarily follow that those rights should be retained in the country of origin. It seems more sensible that they be transferred to the country of residence, given that the citizen has voting rights for the European Parliament there, along with local voting rights. Moreover, the main thrust of EU citizenship for those who move between Member States is about their equal treatment and integration into the host State, not the retention of links with their home State. EU citizens who have moved between Member States have the right to return to their home State without being prejudiced by their time away: but it is a different matter to say that they should be treated as if they had never left while they are still abroad. While it is true to say (as the Commission does) that expatriates retain some interest in taxation decisions in their country of origin, they are nonetheless likely to be paying most or all of their taxes in their host State.

Having said that, Member States obviously prefer retaining voting rights for their own citizens who move away, instead of extending them to foreigners who move to that country. The Commission's suggestion is therefore going with the flow, rather than spitting in the wind. So it has more chance of being successful than the more logical alternative.

Oddly, the Commission only briefly mentions the issue of regional elections, and does not mention referendums at all. On the first point, it would make even less sense to allow expatriates to continue voting in such elections, since those elections are more inherently territorial. On the second point (and there are of course regional and local referendums too), both expatriates and the citizens of other EU Member States who have exercised free movement rights have an obvious special interest in voting in national referendums on EU Treaty amendments, and (possibly soon in the UK) on whether the relevant Member State should remain part of the EU. One might expect that British expatriates living in other EU Member States, and citizens of other Member States living in the UK, would be particularly likely to vote to stay in the EU. Indeed, perhaps their votes could swing a close election - although there will always be some turkeys who vote for Christmas.

Barnard & Peers: chapter 13