A legally binding commitment to Treaty change: is it humanly possible?

Steve Peers

Prime Minister David Cameron has already achieved some feats that some thought impossible: a cut in the EU budget, and a majority in the House of Commons for the Conservative party. But are his plans for renegotiation of the UK’s EU membership genuinely impossible for any human to achieve?

The context of this is yesterday’s confirmation that his intention in the forthcoming renegotiation is not an immediate Treaty change, but a ‘legally binding’ and ‘irreversible’ text that (apparently) commits to Treaty change. I have blogged before on the content of possible Treaty changes (see here on economic reform, and here on migration of EU citizens), but I will focus today on the form which a deal might take to satisfy Cameron’s demands.  

There is an EU history of promising Treaty amendments to its Member States. Back in 1992, the Member States’ Heads of State and Government adopted a Decision addressing Danish concerns with the Maastricht Treaty. This was later transformed into a Protocol next time the Treaties were amended (in the form of the Treaty of Amsterdam), although this was not formally promised as such when the original decision was adopted.

Then, in 2008, a similar Decisionwas adopted to address Irish concerns about the Treaty of Lisbon. Apart from the Decision itself, look closely at point 5 of the European Council (summit) conclusions on that date, which specify that:

‘(iii) the Decision is legally binding and will take effect on the date of entry into force of the Treaty of Lisbon; (iv) they will, at the time of the conclusion of the next accession Treaty, set out the provisions of the annexed Decision in a Protocol to be attached, in accordance with their respective constitutional requirements, to the Treaty on European Union and the Treaty on the Functioning of the European Union;’

A Protocol amending the Treaties to this effect was indeed later drawn up, and entered into force last year.

In 2009, another promiseof Treaty amendment was made to the Czech Republic. This time it took the form of the full text of an agreed Treaty Protocol, along with the following text:

‘the Heads of State or Government have agreed that they will, at the time of the conclusion of the next Accession Treaty and in accordance with their respective constitutional requirements, attach the Protocol (in Annex I) to the Treaty on European Union and the Treaty on the Functioning of the European Union.’

A Protocol amending the Treaties to this effect was again drawn up, but the ratification of this Protocol did not go ahead because the Czech government withdrew its request for this amendment.

So with these precedents in mind, what would a ‘legally binding’ and ‘irreversible’ commitment to Treaty change as regards the UK look like? There are various ways it could be done, but here’s a suggestion, based on a combination of existing precedents. It would be possible to combine the Irish and the Czech approaches, and have a Decision of Heads of State and Government with an agreed Protocol attached.  The Decision could also address other issues (changes to EU secondary law) besides the planned Treaty amendment. If the Heads of State and Government agreed at the same time that the Decision was legally binding, as they did in the Irish case, that would suffice to meet one of Cameron’s criteria. The legally binding nature of the Decision could also be set out in the main text (although this wouldn’t be necessary as such to make it binding; the intention of the Heads of State and Government to this effect could be expressed separately, in a linked text, as in the Irish case).

What about ‘irreversible’? In fact the irreversibility of the commitment would be enshrined in the very nature of the Decision: a Decision of EU Heads of State and Government could only be amended by the unanimity of the Heads of State and Government which drew it up in the first place. (Note that this does not mean that the same individuals have to agree, since they are acting on behalf of States, not signing a personal contract). This could be explicitly set out in the main text of the Decision, or in a connected text, if that’s deemed to be desirable.

To reassure those who may worry that the UK government would change its mind, the European Union Act 2011 could be amended to state that the UK government could only agree to amend some or all of this particular Decision after a referendum took place. Or it would also (or additionally) be possible, by amending the same Act, to ensure that parliamentary approval (in the form either of an Act of Parliament, or a resolution in favour) would be needed before the UK government changed its position.

So in that way, the agreement would be ‘irreversible’. But would it be necessary also to build in a more specific guarantee that the intended Treaty amendment would take place? Cameron’s statement did not go that far, and a text in the form as described above would meet the criteria of being ‘legally binding’ and ‘irreversible’ from the perspective of international law. Many treaties go no further in providing for their enforceability in practice. It’s unlikely that Cameron meant more than this: he has a habit of opening his mouth before consulting lawyers. And it’s not as if he could get legal advice from the Minister of Justice – who, like his predecessor in that role, has no legal background whatsoever.

Having said that, it would be possible, if it were deemed desirable, to go further to ensure the enforceability of the Decision. It could be provided, for instance, that the EU’s Court of Justice has jurisdiction to give binding rulings as regards all or some of the Decision. Although the Decision would not constitute EU law as such, Article 273 of the Treaty on the Functioning of the European Union specifies that Member States may agree to give the Court dispute settlement powers as regards issues related to EU law. This power has been used several times in recent years, and the CJEU took a flexible approach to using this clause in its judgment in Pringle.

The clause could be used to ensure the enforceability of commitments in the Decision, as seen in the case of the so-called fiscal compact treaty, where the Court can issue binding decisions on whether part of that treaty was breached by a Member State, and then order the imposition of fines to enforce those binding decisions.

To give an idea of what a Decision meeting all these criteria would look like, I have provided a text in the Annex, which is a new version of the text I discussed in the prior blog post on economic reform. The new points are Sections J and K, and the proposed future Protocol.

Annex I

The Heads of State or Government of the 28 Member States of the European Union, whose Governments are signatories of the Treaties,

Taking note of the concerns of the British people identified by the Prime Minister of the United Kingdom,

Desiring to address those concerns in conformity with the Treaties,

Having regard to the Conclusions of the European Council of [xx date 2016],

Have agreed on the following Decision:

Section A

Enlargement and the movement of persons

In every forthcoming enlargement of the European Union, the current Member States agree that the free movement of persons from a new Member State will be dependent on a unanimous decision of the Council, which will be taken at the latest once the income of the new Member State concerned is 75% of that of the other Member States of the European Union.

Section B

Free movement of persons and social benefits

The Heads of State and Government confirm that, in accordance with the jurisprudence of the Court of Justice of the European Union, Member States may deny benefits to nationals of other Member States who are not workers or self-employed persons.

[Further provisions addressing Cameron agenda]

Section C

Powers of national parliaments

The Heads of State and Government take note of the Commission’s firm commitment that, building upon the Protocols on national parliaments and on subsidiarity and proportionality attached to the Treaties, it will withdraw any proposal which is opposed by one-third of Member States’ parliaments.

Section D

Economic reform

The Heads of State and Government [make specific commitments as regards free trade agreements and amendments to EU legislation, or refer to such agreements and treaties which have already been agreed].  

Section E

Policing and criminal law

The Heads of State and Government reaffirm the United Kingdom’s sovereign power not to opt in to proposals for new legislation on criminal law or policing pursuant to the Protocols attached to the Treaties, and the provisions of the Treaties which require respect for the national identity and legal system of every Member State.

They confirm their strong support for the ongoing process of reform of the system established by the European Convention on Human Rights.

Section F

Reduction of EU competences

The Heads of State and Government reaffirm that In accordance with Article 48 TEU, the competences conferred upon the Union can be reduced. In accordance with Articles 2 and 4 TFEU, the European Union can choose to exercise its competences less intensively in those areas where it shares competence with its Member States.

Section G

‘Ever Closer Union’

The Heads of State and Government confirm that the commitment in the Treaties to ‘ever closer union’ has no specific legal effect. It does not require that further competences be conferred upon the Union, or that the Union must exercise its existing competences. Nor, in accordance with Section D, does it constrain the Member States from adopting Treaty amendments which reduce the Union’s competences, or constrain the Union from choosing to exercise its competences less intensively.

The concept of ‘ever closer union’ allows for different paths of integration for different countries, allowing those who want to integrate to move ahead, while respecting the wish of those who do not want to deepen any further.

Section H

Economic and Monetary Union

The Heads of State and Government confirm that the reference to the euro as the single currency in the Treaties only means that the euro is the currency of some, not all, Member States. It does not in any way prejudice the Protocols which give the United Kingdom and Denmark the possibility of not adopting the euro, or alter the rules governing the extension of the euro to other Member States.

Section I

Member States’ voting in Council

In the event that Section 3 of the [decision on voting in Council] is applied, and agreement is not found within six months, the Heads of State and government undertake that they will not vote in favour of the proposed act. They may instead consider requesting the Commission to propose enhanced cooperation as regards the proposed act, in accordance with the Treaties. In that context, they agree that this constitutes a case of ‘last resort’ in accordance Article 20(2) TEU.

Member States undertake not to vote in favour of any amendment to the [decision on voting in Council] unless all Member States are in favour of that amendment.

Member States undertake to support a request by a Member State in accordance with [Article x] of the Council rules of procedure.

Section J

Treaty amendment

Within one year of the notification by the United Kingdom that the electorate of the United Kingdom has voted to remain a member of the European Union, the necessary steps shall be taken, in accordance with the Treaty on the European Union and the Treaty on the Functioning of the European Union, to incorporate the Protocol attached to this Decision into the legal framework of the European Union.

Note: This text is adapted from Article 16 of the fiscal compact treaty.

Section K

General provisions

This Decision is legally binding and will take effect on the date of its adoption, except where it provides otherwise.

It can be amended only by consensus of the Heads of State and Government.

Where a Member State considers that another Member State has failed to comply with any provision of this Decision, it may bring the matter to the Court of Justice. The judgment of the Court of Justice shall be binding on the parties to the proceedings, which shall take the necessary measures to comply with the judgment within a period to be decided by the Court of Justice.

Note: the final sub-paragraph is based on Article 8(1) of the fiscal compact treaty. It would be possible to limit the Court’s jurisdiction to certain provisions of the Decision only, as is the case in that treaty. It would also be possible to provide for fining Member States which breach a court order, as Article 8(2) of that treaty provides.

PROTOCOL ON [INSERT TITLE]

The Heads of State or Government of the 28 Member States of the European Union,

Having regard to the Conclusions of the European Council,

Have agreed on the following Protocol:

Article 1

Notwithstanding Article 45 of the Treaty on the Functioning of the European Union or any other provision of the Treaties, Member States may provide for a waiting period of up to four years for workers from another Member State to have access to work-related benefits.

Note: Cameron’s requests relating to the free movement of EU citizens might also require other Treaty amendments, as discussed here. So this is just by way of example.

Article 2

1. The Protocol on national parliaments is amended as follows:

2. The Protocol on subsidiarity and proportionality is amended as follows:

Note: Text to be inserted. This would enshrine in the Treaties the agreed changes relating to powers of national parliaments.

Article 3

The provisions of the Treaties referring to ‘ever closer union’ have no legal effect upon the United Kingdom.

Article 4

The following text shall be attached as a Protocol to the Treaty on European Union and the Treaty on the Functioning of the European Union:

“Protocol on voting in the Council of the European Union

Article 1

If members of the Council, representing (a) at least 55% of the population; or (b) at least 55% of the number of Member States necessary to constitute a blocking minority resulting from the application of the application of Article 17(4), first subparagraph of the Treaty on European Union or Article 238(2) of the Treaty on the Functioning of the European Union indicate their opposition to the Council adopting an act by qualified majority, the Council shall discuss the issue.

Article 2

If Members of the Council representing a qualified majority of Members not applying the euro as their currency, defined in accordance with Article 238(3)(b) TFEU, indicate their opposition to the Council adopting an act by qualified majority, on the grounds that it will discriminate against the financial services industry of those Member States, or create an obstacle to free movement of financial services from those Member States, the Council shall discuss the issue.

Article 3

If any Member of the Council indicates its opposition to the Council adopting an act by qualified majority, on one or more of the following grounds:

(a)    the national parliament of that Member State has expressed serious concern that the proposed act would breach the principle of subsidiarity, in accordance with the Protocol on subsidiarity and proportionality;

(b)   the proposed act would not respect Member States’ national identity, in accordance with Article 4(2) TEU;

(c)    the proposed act would severely impact, in that Member State, upon the Union’s aims of creating a highly competitive social market economy, aiming at full employment and social progress, a high level of protection of the environment, or the promotion of scientific and technological advance, as set out in Article 3(2) TEU; or

(d)   the proposed act, in the field of social policy, would not take account, in that Member State, of the diversity of national practices, or the need to maintain economic competitiveness, set out in Article 151 TFEU, or would impose a constraint that would hold back the creation and development of small and medium-sized undertakings, or affect the fundamental principles or financial equilibrium of social security systems, as set out in Article 153 TFEU,

the Council shall discuss the issue.

Article 4

The Council shall, in the course of the discussions referred to in Articles 1 to 3, do all in its power to reach, within a reasonable time and without prejudicing obligatory time limits laid down by Union law, a satisfactory solution to address concerns raised by the members of the Council referred to in Article 1.

Article 5

To this end, the President of the Council, with the assistance of the Commission and in compliance with the Rules of Procedure of the Council, shall undertake any initiative necessary to facilitate a wider basis of agreement in the Council. The members of the Council shall lend him or her their assistance.

Article 6

In the event agreement is not found within six months of discussions held pursuant to Article 4, the Council shall not hold a vote on the proposed measure. A group of Member States may instead consider requesting the Commission to propose enhanced cooperation as regards the proposed act, in accordance with the Treaties. The application of this Article shall constitute a case of ‘last resort’ in accordance with Article 20(2) TEU.”

Note: this would enshrine in the Treaties the suggested changes to the rules on Council voting, discussed in the previous blog post, which would give a form of opt-out to Member States with major objections to EU proposals. These suggestions also address relations between the Eurozone and non-Eurozone countries.

Article 5

This Protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.

Barnard & Peers: chapter 3

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An EU Neverendum: Should the UK keep voting on its EU membership?

 

Steve Peers

A recent press storysuggested that supporters of the ‘Out’ side in the upcoming referendum are already planning to argue, in the event of an ‘In’ vote, that a further referendum must be held again within a few years. At first sight, it looks as if at least these ‘Out’ supporters expect to lose the referendum, and are planning to be sore losers at that. I wonder if that is a helpful message for them to send – but then it’s not my role to advise the ‘Out’ side on strategy.

But is it intrinsically outrageous to suggest that there should be a further referendum on the issue? The ‘Out’ side can reasonably argue that they are only copying the strategy of pro-EU politicians, who pushed for fresh votes in Denmark and Ireland after three referenda in those states voted down the Treaties of Maastricht, Nice and Lisbon, and repackaged the Constitutional Treaty after it was defeated in the French and Dutch referenda. In principle, that’s a fair point to make: but if the ‘Out’ side are going to make it, they can no longer criticise the pro-EU side for being ‘undemocratic’ when it pushed for repeat referenda. In fact, the anti-EU side already have form on this issue themselves – since they went back to the Czech Constitutional Court to challenge the Lisbon Treaty a second time, when they didn’t like the first court ruling. The judges weren’t impressed.

Repeated referenda are not unheard of in other contexts or countries: Ireland has had several referenda on divorce and abortion, and Quebec has twice voted on separation. Many Scottish nationalists also aspire to a second independence referendum in the foreseeable future. So I don’t think one can simply argue that referenda should never be repeated. But I do think that they should only be held in certain circumstances.

What circumstances are these? In my view, there are two: a significant change in circumstances, and the conditional nature of the vote. These two criteria may well be present at the same time. The first of these criteria justifies having a new vote on the UK’s membership now, given the changes that have occurred since the last vote in 1975: five major Treaty amendments and five enlargements of the EU, leading to much greater ‘immigration’ of EU citizens to the UK. The second Quebec separation vote was justified on the basis of the second criterion: Quebeckers voted ‘no’ to independence in 1980 on the premise that the Canadian constitution would be amended to address their grievances. Two attempts to agree such amendments then failed, and that was the rationale for having another independence vote in 1995. Some Scots argue similarly that promises of greater devolution to Scotland made in the 2014 independence referendum are being broken; and many Scots believe that if the UK votes to leave the EU while Scotland votes to stay, the first criterion would be satisfied.

How do we apply these criteria to the EU referenda? In all the cases where a second referendum was held, there were intervening changes in circumstances. There were Decisions and Declarations by the EU which directly addressed those concerns of the Irish and Danish voters who had voted ‘No’. The Constitutional Treaty was scrapped as such, and replaced by the Lisbon Treaty, which contained most of the same substantive text, but without the ‘constitutional’ trappings of the failed treaty which had outraged the anti-EU side so much at the time.

Applying these rules to the UK’s planned EU referendum, there would be a case for a new vote if there were intervening changes in circumstances, which directly refuted the basis for voting ‘In’.  Equally there would be a case for a fresh vote, if most or all of the case for the ‘In’ side was based on conditional promises of EU reform which then did not take place.

Of course, two can play this game. It must equally follow that in the event of an Out vote, there would be an argument for holding a fresh referendum on the basis of the same two criteria. Article 50 TEU, the ‘withdrawal’ clause, expressly provides that a State can apply to rejoin the EU if it leaves. It’s also arguable that a State can cancel its withdrawal request, although Article 50 is not clear on this point either way. Certainly it’s possible to suspend a withdrawal request de facto, by delaying the withdrawal date indefinitely. (See further my discussion of Article 50 here).

What would this mean in practice? Applying the first criterion, it’s possible that the remaining EU would be upset at the prospect of UK withdrawal so much that it offered a new renegotiation package before it happened. Or imagine that in the longer term, the EU changed profoundly, allowing for more restrictions on the movement of people and a greater number of vetoes for national governments and parliaments. There would then be a good case for holding a vote on rejoining. Applying the second criterion, there would be a case for a second referendum if the conditions set by the Out side were not satisfied in practice: for instance, if there were no satisfactory trade deals with the remaining EU and many third States, or if the UK still had to pay a price in return for trade access (contributions to the EU budget, acceptance of EU regulation, the full free movement of people) which the Out side had claimed that it would not have to pay.

 

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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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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’ Initiativedid 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

 

 

 

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