EU citizens in the UK are rightly concerned about many aspects of the future in the UK – their right to remain, their jobs, and much else. I can well imagine that for many people in that situation, the question of their continued ability to participate in certain UK elections might not be high up on their agenda.
Nevertheless, I would suggest it is an important question to consider. That is because a person’s ability to take part in the local democratic process is an essential feature of full participation in the community. If that right currently enjoyed by many EU citizens in the UK were to be removed, it would be another indicator that the UK wishes to drive EU citizens out of the heart of society – and eventually the UK altogether.
The current ability of EU citizens in the UK to vote in certain elections is governed by the rights they are given by Article 22 of the Treaty on the Functioning of the European Union (TFEU).
The relevant part of that article is in the following terms:
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.)
In the UK, that requirement of EU law has been put into effect in domestic UK law by section 4 of the Representation of the People Act 1983. The relevant subsection is in the following terms:
- 4 (3). A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he–
(c) is a qualifying Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union.
That Act further states that the term “citizen of the Union” shall be construed in accordance with the relevant European Treaty. There is therefore no doubt that the term means an EU citizen.
Because of these legal provisions, EU citizens in the UK can vote in local elections anywhere in the UK. That includes a right to vote in mayoral elections like that in London.
Their righting votes extend further than that, however. The Scotland Act 1998, which established the Scottish Parliament, specified (section 11) that persons entitled to vote in elections to the Scottish Parliament are those entitled to vote and be registered in the register of local government electors. As the Representation of the People Act 1983 allows EU citizens in the UK to register to vote in local government elections in Scotland, they then automatically obtain a right to vote in elections to the Scottish Parliament. Similar provisions allow EU citizens to vote for the Northern Ireland and Welsh Assemblies.
(EU citizens can also vote for elections for Members of the European Parliament elected in a member state in which they currently reside. That right will, of course, become redundant in the UK after ‘Brexit’, if the UK succeeds in its aim of removing the UK from the EU by March 2019, which is before the date of the next European elections).
So, what happens after Brexit to those voting rights for EU citizens in local and devolved elections? The answer is nothing will change automatically, unless those rights are changed by the UK Parliament. That is because those rights, although originating from rights under the EU treaties, have now been made part of the UK’s own domestic law.
Are those voting rights under threat? Has anyone suggested those rights should be taken away? Is there a danger that if the question is raised, the matter is put on the political agenda when it might not have been otherwise?
Possibly, but it seems to me that in an atmosphere where some seem to want to push us in the UK away from the EU and its citizens, it would be unwise to assume that someone won’t raise this question. Perhaps we might find such a measure slipped quietly through in some statutory instrument made possible by the UK government’s proposed ‘Great Repeal Act’.
And there are already some people who have started raising questions about the future rights of EU citizens to vote. That question has been raised in the context of a possible second referendum on an independent in Scotland. EU citizens were able to vote in the 2014 independence referendum, but some voices on the pro-Union side in the revived debate about Scottish independence following the ‘Brexit’ referendum have suggested that EU citizens should not be allowed to vote in a second independence referendum.
So, it seems only sensible to become alert to the possibility that the current voting rights of EU citizens in the UK might be taken away if and when ‘Brexit’ finally takes place.
There is a further point which needs to be made concerning the voting rights of EU citizens residing in Scotland specifically. That relates to the provision (section 3) of the Scotland Act 2016 which devolves the power to decide on the franchise for local government elections in Scotland, and for the Scottish Parliament itself. When that is in force, it will be up to the Scottish Parliament to decide whether or not EU citizens are able to register and vote in those elections.
However, that particular provision in the Scotland Act 2016 has not yet been brought into force. Therefore, if the UK Parliament was to legislate to remove EU citizens’ rights before that section was put into effect, the Scottish Parliament would thereafter only be able to legislate to restore them after those powers over the franchise had been devolved to it. Moreover, because the Scotland Act 2016 provides that the matter of the franchise for the Scottish Parliament is one of those which requires a two-thirds majority for legislation to be approved (section 11), those rights could then only be restored if at least two-thirds of MSPs voted for that.
On the other hand, if that power over the franchise were to be devolved to Scotland before any voting rights were taken away from EU citizens in the UK, any attempt to take them away in Scotland would then require legislation in Scottish Parliament, with a two-thirds majority backing that removal.
So, depending on the progress of implementation of legislation, two Parliaments and two governments may have a role in legislating in this area. Those who are concerned on the issue would therefore be well advised to ask both the UK and Scottish governments to make clear their intentions on the issue.
Of course, some may ask whether it is right that EU citizens should maintain these voting rights after Brexit. It might be argued that if the UK leaves the EU, then there would be no basis for EU citizens to enjoy the rights to vote, given they derive from rights given under a Treaty of which the UK would no longer be a signatory.
That argument might have some validity if it were not for the fact that the UK also allows voting rights to citizens of Irish Republic, and all Commonwealth citizens legally resident in the UK. (For that reason, EU citizens from Ireland, but also Malta & Cyprus, will retain voting rights in the UK, whatever happens with voting rights for EU citizens more generally). And that right to vote enjoyed by Irish and Commonwealth citizens does not apply just for local elections, and devolved legislatures, but also to elections for the UK Parliament.
That right given to Irish and Commonwealth citizens is, of course, a relic from the days of Empire. But I welcome the fact that right exists, as it has allowed hundreds of thousands – maybe more -, of those citizens to play a full part in the civic life of the UK. It has probably been a factor in the UK having more ethnic minority elected representatives, from an earlier date, that most, probably all, other European countries.
But if we are going to allow Commonwealth nationals across the world a right to vote in UK elections, as a result of the UK’s imperial past, then surely we should make sure that EU citizens in the UK, from our nearest neighbours, at least keep their existing voting rights in the UK. Indeed, maybe they should be given the same rights as those Commonwealth citizens to participate and stand in all elections in the UK.
A declaration by our political leaders that EU citizens in the UK will retain their rights to vote even after the UK leaves the EU will be a message to those citizens that, at a time when they feel insecure about their future in the UK, they are wanted here and that the UK wishes them to play a full part in the civic life of our country.
(This is the text of a speech delivered at a meeting of the All Party Parliamentary Group on Freedom of Movement, in the House of Commons on 20th February 2017).