Friday, 29 May 2015

The Referendum Bill: politics and law


 

Steve Peers

Yesterday’s publication of the Referendum Bill fired the starting pistol in the process of renegotiating the UK’s membership of the EU, and holding an ‘in-out’ referendum on the results. I’ll look at two different elements of the Bill: the parliamentary process and its main contents. It inevitably leaves some issues out, since a Referendum Bill is only meant to deal with the basic referendum process, not with the substantive questions like the content of the renegotiation or the consequences of withdrawal.

Parliamentary process

Although some press reports give the impression that the contents of the Bill are already law, this is obviously not the case. Every Bill must be approved by both Houses of Parliament before it becomes law. Even then, it would always be possible to amend the ensuing Act of Parliament.

Will the Referendum Bill become an Act of Parliament? Yes, that’s virtually certain. The principle of a referendum on EU membership is not only supported by the Conservative majority in the House of Commons, but also (following a recent U-turn) by the Labour party. That should ensure that a Referendum Act can get through both the Commons and the Lords.

However, the devil is in the details. It’s still possible that the Bill could be amended, particularly as regards the issues discussed below (the question, the timing and the franchise).  In the last majority Conservative government, the Bill to ratify the Maastricht Treaty ran in to endless trouble at the hands of an alliance of Labour and Eurosceptic Tory MPs. The current Conservative government has a similar slim majority in the House of Commons, and while there are fewer Labour MPs, there are more Eurosceptic Tories. Time will tell whether these two groups (perhaps in conjunction with the big contingent of Scottish National Party MPs?) can find common cause as regards any amendments.

The Bill also has to pass the House of Lords, of course. While it is unlikely to be defeated as such there (in part because of the ‘Salisbury Convention’, which provides that the House of Lords will not oppose the principle of Bills which were set out in the winning party’s manifesto), again there may be attempts to amend the details. The political dynamics are different, since the Conservative party does not have a majority. While the House of Commons can override the House of Lords if need be, by use of the Parliament Acts, this would cause a one-year delay in the entry into force of the law, scuppering any plan to hold the referendum in 2016.  

 

Main contents

Most of the Bill sets out the dry but necessary detail of the mechanics of holding the referendum. But it does address three key issues: the timing, the question and the franchise (ie, who can vote). I will address these issues in turn.

First of all, the timing. As promised by the Conservative party, the Bill sets a deadline of end-2017 for the Referendum to take place. A referendum in the midst of Christmas shopping is highly unlikely, so the latest realistic date would be November 2017. In fact, the real issue is whether the referendum might be held earlier, sometime in 2016. There’s been some speculation that it might be held in May 2016, on the same date as elections in London, Scotland and Wales. Ideally, as recommended by the Electoral Commission, the referendum should not be held the same day as other elections, to ensure that voters are completely focussed on the separate choices facing them.  Furthermore, holding the referendum on the same day as elections in pro-EU areas such as Scotland and London will give rise to suggestions that the poll is biased, which it is better to avoid.

Secondly, the question. The Bill suggests the following question:

“Should the United Kingdom remain a member of the European Union?”

Some have objected to the word ‘remain’, because it allegedly biases the question in favour of staying in. However, I see no problem in referring to an objective fact: the UK is indeed currently a member of the EU. Indeed, the Electoral Commission recommended the word ‘remain’ rather than ‘in’, because apparently some people are unaware that the UK is currently a member of the EU. I am hoping that none of my former students are among them!

It will still be fully open to the ‘Out’ side to try to convince the public that our current EU membership is a bad thing. Indeed, their whole argument will presumably rest on the awful consequences of being (and indeed remaining) an EU member.

Having said that, it would be preferable not to give either side the supposed advantage of being the ‘Yes’ side. A better question would therefore be ‘Should the UK remain a member of the European Union, or leave?’ with the possible answers being ‘remain’ or ‘leave’.

Some have suggested that there should be multiple questions on the ballot paper, namely a chance to vote for the current status quo of EU membership, as well as withdrawal or Cameron’s renegotiated version (see Jon Worth’s blog for how this could work). The argument against this is simply democratic legitimacy: the Conservative party won a majority in the House of Commons on the basis of holding an in/out referendum on the renegotiated terms.

This brings me to the vexed question of the franchise. The Bill proposes to use the franchise for general elections: citizens of the UK, Ireland and Commonwealth countries over 18 years old living in the UK, and UK citizens living abroad for less than 15 years. But it proposes to add members of the House of Lords and residents of Gibraltar. I have already blogged on the reasons why the general election franchise should be used, due to concerns about legitimacy as well as tactics. (See also the analysis by Jo Shaw here). But some have suggested that it may be illegal to ban EU citizens in the UK from voting in the referendum: see the arguments by Richard Edwards here and by Albert Sanchez Graells here

Let’s examine these legal arguments in more detail. The obvious argument against the right of EU citizens to vote in the referendum is the list of EU citizens’ rights in Article 20 TFEU. That list includes the right to vote in local and European Parliament (EP) elections, but does not mention other elections. Article 25 TFEU then says that for EU citizens to have more rights, a further Council Decision has to be agreed and ratified. In the absence of such a decision, they surely do not have further electoral rights. The general references to democracy in the Treaties aren’t very specific, and mostly (for instance in Article 10 TEU) refer to the EU institutions only. It can’t be seriously argued that the ‘general principles’ of EU law require all EU citizens to vote in referenda, in the absence of any widespread practice to that effect (even Ireland does not allow UK citizens to vote in referenda).

The EU Charter of Rights doesn’t help either. It only mentions the rights to vote in local and EP elections, and Article 52(2) of the Charter makes clear that these provisions of the Charter do not add anything to the citizenship provisions of the Treaties. Anyway, the Charter only applies where there is a link to EU law, and although the process of withdrawal from the EU is referred to in Article 50, Article 50(1) in turn refers to the national law of individual Member States as regards the decision on whether to withdraw. It couldn’t be any clearer that it’s entirely up to each Member State to decide who votes in a withdrawal referendum. And for those contemplating litigation on this issue: do you seriously think that the prospects of an ‘In’ vote (and British citizens’ regard for the EU more generally) could possibly be helped by a EU or ECHR court (or a UK court doing their bidding) ordering Parliament to allow EU citizens to vote in the referendum?

 

Barnard & Peers: chapter 2

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Thursday, 28 May 2015

The new EU Migration Agenda takes shape: analysis of the first new measures




Steve Peers

This week the European Commission took its first steps towards implementing its new EU Migration Agenda (previously discussed here). A number of the items in the agenda have already been addressed (for instance, the military mission against smugglers on the Libyan coast, as discussed here). Others will be addressed later: a broader reform of legal migration law and changes to the rules on asylum procedures and the ‘Dublin’ rules on responsibility for asylum-seekers.

The first batch of measures contained five different elements. First of all, the Commission launched a public consultation on the reform of the existing EU law providing for a ‘Blue Card’ for the admission of highly-skilled non-EU migrants. I have commented previously here on the implementation of this law and the reforms to it which should be adopted.

Secondly, the Commission released an Action Plan against migrant smuggling. This mainly elaborates upon several ideas mentioned already in the main agenda. This includes: a revision of EU anti-smuggling law, planned for 2016, to increase smugglers’ penalties and clarify humanitarian exceptions from the rules; possible new rules on immigration liaison officers in 2016; a Handbook on expulsion in 2015; a possible revision of the rules on trafficking victims, in 2016, to include ‘victims’ of smuggling; a revision of the legislation on Frontex (the EU border agency), to give it more powers relating to expulsion; changes to the rules on the Schengen Information System in 2015-16, so that all Schengen Member States’ entry bans are applicable across the Schengen area; a handbook on prevention of migrant smuggling in 2017; readmission agreements with sub-Saharan countries; and stronger enforcement of the rules prohibiting employment of irregular migrants. Most of these measures concern all irregular migrants, not just those who were smuggled to the EU.

Thirdly, the Commission adopted a Recommendation on the resettlement of refugees directly from outside the EU to EU Member States. As a Recommendation it is non-binding, and as an act of the Commission, it does not need the approval of the Council or the European Parliament. According to the new Immigration Agenda, there will be EU funds attached to each resettled refugee, so Member States are encouraged to resettle people. It is a useful measure to ensure that a bigger number of persons are rescued without having to risk their lives or pay smugglers to cross the Mediterranean, although the overall numbers are likely to be modest.  In the event that Member States do not make use of the Recommendation to resettle refugees, the Migration Agenda promises a proposal for a binding measure, although it might be hard to find sufficient support in Council for its adoption.

Fourthly, the Commission issued guidance on the fingerprinting of asylum-seekers, as provided for in the EU’s Eurodac legislation, which sets up a database of such fingerprints in order to apply the ‘Dublin’ rules more effectively. In the Commission’s view, any irregular border-crosser who refuses to give fingerprints ought to be detained, expelled and subjected to an entry ban, in accordance with EU asylum law and the Returns Directive. Alternatively, Member States could force them to take fingerprints, with a possible exception for pregnant women and minors. Frankly, the correct application of the EU’s Dublin system is not worth the health of life of a single unborn child.

Moreover, the Commission appears to be confused about the details of the relevant legislation. It would be necessary to prove that refusal to take fingerprints ‘avoids or hampers the preparation of return or the removal process’ to justify detention under the Returns Directive; but the purpose of the fingerprinting is mainly to apply the Dublin asylum rules, not to ‘prepare the return and/or carry out the removal process’, which is the legal basis for detention of irregular migrants under the Returns Directive. Furthermore, the rules on entry bans in that Directive make no reference to the issue of fingerprinting. As for asylum-seekers, the paper is correct to say that they can be detained in order to ‘verify their identity and/or nationality’ in the EU’s Reception Conditions Directive. However, for asylum-seekers who have been fingerprinted already by a Member State and then apply for asylum in a second Member State, the Commission fails to mention that the Dublin rules apply. They permit detention only where there is a ‘significant risk of absconding’, which does not automatically follow from a refusal to be fingerprinted.

Fifthly, the Commission proposed a Decision on relocation of asylum-seekers between Member States. This is the only one of this week’s proposals which would (if adopted) be legally binding. Like most Commission proposals, this needs a qualified majority of Member States to support it in the Council; unlike most EU law, the European Parliament need only be consulted. It seems from press reports that there will be a ‘blocking minority’ of Member States preventing its adoption, unless some of them change their position. It’s also possible that it will be agreed, but with major changes. But for now, let’s look at what the proposal would do if adopted.

The main thrust of the proposal is to derogate from the usual ‘Dublin’ rules as regards Italy and Greece, and distribute about 40% of the asylum-seekers which would normally be the responsibility of those Member States under the Dublin rules to other Member States. Due to opt-outs, the other Member States will not include Denmark or the UK, although it seems possible that Ireland will opt in. The proposal also will not apply to the non-Member States bound by the Dublin rules (Norway, Switzerland, Iceland and Liechtenstein). It would effectively be a regime within a regime, with only 25 or 26 of the 32 Dublin States applying it.

The relocated asylum-seekers will be split 60/40 between Italy and Greece, and will be allocated to other Member States on the basis of the criteria set out in the Annexes to the proposal. Relocation will be selective, applying only to those nationalities whose applications have over a 75% success rate in applications for international protection. It’s clear from the proposal that the Commission believes that only Syrians and Eritreans will qualify. The Member State of relocation will be responsible for considering the application, and asylum-seekers and refugees will not be able to move between Member States, in accordance with the normal Dublin rules. (After five years’ residence, refugees can move between Member States, according to the EU’s long-term residence Directive).

Besides the nationality criterion, who will be relocated? Asylum-seekers must be fingerprinted in order to qualify. The selection of asylum-seekers will be made by Italy and Greece, who must give ‘priority’ to those who are considered ‘vulnerable’ as defined by the EU reception conditions Directive. This refers to a long list of people:

‘such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation’

Implicitly, the other Member States must accept the asylum-seekers nominated by Italy and Greece, except that they can refuse relocation if it’s ‘likely that there are national security or public order concerns’.

What about the asylum-seekers themselves? There is no requirement that they consent to their relocation or have the power to request it. The proposed Decision only requires Italy and Greece to inform and notify the asylum-seekers about the relocation, and the Commission suggests that they could only appeal against the decision if there are major human rights problems in the country to which they would be relocated. So neither the relocation itself, nor the choice of Member State that a person will be relocated to, is voluntary. This is problematic, since forcing asylum-seekers to a country that they don’t want to be in is one of the key problems facing the Dublin system already.

Of course, it’s possible that like children left in an orphanage who weren’t picked by new parents, there will be rather more asylum-seekers disappointed that they were not selected for relocation.  Do they have the right to a legal challenge? Arguably yes, to the extent that Italy and Greece select people who are not vulnerable for relocation, in light of their legal obligation to select vulnerable persons as a priority.  

Asylum-seekers do have the right to insist that their core family members (spouse or partner, unmarried minor children, or parents of minors) who are already on EU territory come with them to the relocated Member State. It’s not clear if Member States could count the transfer of family members towards their overall quota. If the asylum-seekers obtain refugee status in the State of relocation, they could also apply for family reunion under the EU’s family reunion Directive.

Similarly, it’s not clear if Member States can count towards their overall quota asylum-seekers who would normally be the responsibility of Italy and Greece, but who have already found their way on to another Member State’s territory. This might be termed relocation sur place. According to the rules in the Decision, this would in any event depend upon the willingness of Italy and Greece to designate such asylum-seekers for relocation. And as the Commission notes, persons who would already be the responsibility of Greece cannot be sent back there anyway due to the collapse of the asylum system in Greece, according to the CJEU ruling in NS (the position regarding Italy is more qualified: see the discussion of last year’s Tarakhel judgment). Of course, it is possible that the relocation of significant numbers of asylum-seekers away from Greece will contribute to solving the systemic problems with that country’s asylum system in the foreseeable future.

Overall, if the Council is willing to agree to the proposed Decision, it is likely to make a significant contribution to solving the problems with the asylum systems of some Member States, although only the more significant review of the Dublin rules promised for 2016 (or a profound improvement in the situation of countries of origin or transit) could provide a long-term solution. It is very striking that while this proposal effectively admits that the Dublin system is profoundly dysfunctional, the separate set of fingerprinting guidelines issued on the same day adopts a tone of head-banging savagery to try and get that system to work.
A final question arising is the impact of the proposed asylum measures on the UK. While the UK has an opt out, some suggest that all asylum-seekers who reach the EU could ultimately obtain EU citizenship and then move to the UK. However, the proposed Decision only relocates asylum-seekers who have already reached the EU, rather than increase the total number of asylum-seekers. Furthermore, a recent fact check suggests that only a modest number of non-EU citizens get Italian nationality each year, and that Italy only grants refugee status to a handful of people. Indeed, the only prominent Italian citizen with an African background currently in the UK is Mario Balotelli - but I don't want to intrude into the private grief of Liverpool football fans.


Barnard & Peers: chapter 26
Photo: GlobalNation.Inquirer.net

Tuesday, 26 May 2015

Open letter to UK MPs: Ensuring democratic scrutiny of UK surveillance law changes




Steve Peers

Due to my concern about inadequate democratic scrutiny of changes to UK law (often linked to EU law) affecting privacy rights, I am one of the signatories to today's letter to MPs on this issue, published in the Guardian and elsewhere. Thanks to Andrew Murray and Paul Bernal for taking this initiative.


An open letter to all members of the House of Commons,

 

Dear Parliamentarian,

 

Ensuring the Rule of Law and the democratic process is respected as UK surveillance law is revised

 

Actions Taken Under the Previous Government

 

During the past two years, the United Kingdom’s surveillance laws and policies have come under scrutiny as the increasingly expansive and intrusive powers of the state have been revealed and questioned in the media. Such introspection is healthy for any democracy. However, despite a need for transparency in all areas of lawmaking, and in particular in areas of controversy, the previous Government repeatedly resisted calls for an open and transparent assessment and critique of UK surveillance powers. Instead, in response to legal challenges, it extended the powers of the state in the guise of draft Codes of Practice and “clarifying amendments.” As we welcome a new Government we expect another round of revisions to UK surveillance laws, with the likelihood that the Queen’s Speech will signal a revival of the Communications Data Bill. At this time we call on the new Government, and the members of the House, to ensure that any changes in the law, and especially any expansions of power, are fully and transparently vetted by Parliament, and open to consultation from the public and all relevant stakeholders.

 

Last year, in response to the introduction of the Data Retention and Investigatory Powers Bill (“DRIP”), a number of leading academics in the field – including many of the signatories to this letter – called for full and proper parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled as to what powers it truly contained. Our concern emanated from the Home Secretary’s attempt to characterize the Bill, which substantially expanded investigatory powers, as merely a re-affirmation of the pre-existing data retention regime.[1]

 

Since that letter was written, it has become apparent that the introduction of the DRIP Bill was not the only time an expansion of surveillance powers was presented in a way seemingly designed to stifle robust democratic consideration. In February 2015, the Home Office published the draft Equipment Interference Code of Practice.[2] The draft Code was the first time the intelligence services openly sought specific authorisation to hack computers both within and outside the UK. Hacking is a much more intrusive form of surveillance than any previously authorised by Parliament. It also threatens the security of all internet services as the tools intelligence services use to hack can create or maintain security vulnerabilities that may be used by criminals to commit criminal acts and other governments to invade our privacy. The Government, though, sought to authorise its hacking, not through primary legislation and full Parliamentary consideration, but via a Code of Practice.

 

The previous Government also introduced an amendment via the Serious Crimes Act 2015, described in the explanatory notes to the Bill as a ‘clarifying amendment’.[3] The amendment effectively exempts the police and intelligence services from criminal liability for hacking. This has had an immediate impact on the ongoing litigation of several organisations who are suing the Government based in part on the law amended, the Computer Misuse Act 1990.[4]

 

The Way Ahead

 

The new Conservative Government has announced its intention to propose new surveillance powers through a resurrection of the Communications Data Bill. This will require internet and mobile phone companies to keep records of customers’ browsing activity, social media use, emails, voice calls, online gaming and text messages for a year, and to make that information available to the government and security services. We also anticipate this Parliament will see a review of the Regulation of Investigatory Powers Act 2000, which currently regulates much of the Government’s surveillance powers. The Independent Reviewer of Terrorism Legislation, David Anderson QC, has conducted an independent review of the operation and regulation of investigatory powers, with specific reference to the interception of communications and communications data. The report of that review has been submitted to the Prime Minister, but has yet to be made public: when it is made public, parliamentary scrutiny of the report and any recommendations made following it will be essential.

 

As the law requires that surveillance powers must be employed proportionate to any harm to privacy caused (as required by Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights) we believe that any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and clearly and accurately described in the explanatory notes of any Bill. The Bill and its consequences must then be fully and frankly debated in Parliament. When reaching an assessment of the proportionality, of any measure that restricts rights, both our domestic courts and the European Court of Human Rights place great stock on the degree and quality of Parliamentary involvement prior to any measure being adopted. If the matter ever came to before the courts one issue examined would be the nature of any “exacting review” undertaken by MPs into the necessity of extending these powers. The Government should not be permitted to surreptitiously change the law whenever it so desires, especially where such changes put our privacy and security at risk.

 

This letter has been prepared and signed by 35 academic researchers. We are comprised of people from both sides of this issue - those who believe that increased powers are a reasonable response to an emerging threat, and those who think them an unjustified extension of state interference. Our common goal is to see the Rule of Law applied and Parliamentary oversight reasserted. We are calling on all members of the House of Commons, new and returning, and of all political persuasions to support us in this by ensuring Parliamentary scrutiny is applied to all developments in UK surveillance laws and powers as proposed by the current Government.  

 

Signatories

 

Andrew Murray (contact signatory)
Paul Bernal (contact signatory)
Professor of Law
London School of Economics
Lecturer in Information Technology, Intellectual Property and Media Law University of East Anglia
 
Subhajit Basu
Associate Professor
University of Leeds
 
Sally Broughton Micova
Deputy Director LSE Media Policy Project, Department of Media and Communications
London School of Economics and Political Science
 
Abbe E.L. Brown
Senior Lecturer
School of Law
University of Aberdeen
 
Ian Brown
Professor of Information Security and Privacy
Oxford Internet Institute
Ray Corrigan
Senior Lecturer in Maths, Computing and Technology
Open University
 
Angela Daly
Postdoctoral Research Fellow
Swinburne Institute for Social Research
Swinburne University of Technology
Richard Danbury
Postdoctoral Research Fellow
Faculty of Law
University of Cambridge
 
Catherine Easton
Lancaster University School of Law
 
Lilian Edwards
Professor of E-Governance
Strathclyde University
Andres Guadamuz
Senior Lecturer in Intellectual Property Law
University of Sussex
 
Edina Harbinja
Lecturer in Law
University of Hertfordshire
 
Julia H├Ârnle
Professor in Internet Law
Queen Mary University of London
Theodore Konstadinides
Senior Lecturer in Law
University of Surrey
 
Douwe Korff
Professor of International Law
London Metropolitan University
 
Mark Leiser
Postgraduate Researcher
Strathclyde University
 
Orla Lynskey
Assistant Professor of Law
London School of Economics
 
 
 
David Mead
Professor of UK Human Rights Law
UEA Law School
University of East Anglia
 
Robin Mansell
Professor, Department of Media and Communication
London School of Economics
 
Chris Marsden
Professor of Law
University of Sussex
 
Steve Peers
Professor of Law
University of Essex
 
Gavin Phillipson
Professor, Law School
University of Durham
Julia Powels
Researcher
Faculty of Law
University of Cambridge
 
Andrew Puddephatt
Executive Director
Global Partners Digital
Judith Rauhofer
Lecturer in IT Law
University of Edinburgh
 
Chris Reed
Professor of Electronic Commerce Law
Queen Mary University of London
 
Burkhard Schafer
Professor of Computational Legal Theory
University of Edinburgh
 
Joseph Savirimuthu
Senior Lecturer in Law
University of Liverpool
 
Andrew Scott
Associate Professor of Law
London School of Economics
 
Peter Sommer
Visiting Professor
Cyber Security Centre, De Montfort University
 
Gavin Sutter
Senior Lecturer in Media Law
Queen Mary University of London
 
Judith Townend
Director of the Centre for Law and Information Policy
Institute of Advanced Legal Studies
University of London
 
Asma Vranaki
Post-Doctoral Researcher in Cloud Computing
Queen Mary University of London
 
Lorna Woods
Professor of Law
University of Essex
 
 

 

Monday, 25 May 2015

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