7 Voting rights of EU citizens
| (a)
(35777)
5866/14
COM(14) 33
(b)
(35778)
5867/14
C(14) 391
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Commission Communication: Addressing the consequences of disenfranchisement of Union citizens exercising their right to free movement
Commission Recommendation of 29.01.2014: Addressing the consequences of disenfranchisement of Union citizens exercising their right to free movement
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| Legal base | (a) —
(b) Article 292 TFEU
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| Documents originated | (Both) 29 January 2014
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| Deposited in Parliament | 5 February 2014
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| Department | Cabinet Office
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| Basis of consideration | EM of 18 February 2014
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| Previous Committee Report | None
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| Discussion in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
7.1 The Maastricht Treaty introduced the concept
of EU citizenship in 1993, a status conferred on all nationals
of EU Member States. Subsequent EU Treaties have made clear that
EU citizenship is not intended to replace national citizenship
but to confer additional rights. These include the right, if
resident in another Member State, to vote and stand as a candidate
in local and European elections under the same conditions as nationals
of that State. The EU Treaties do not confer a similar right
to vote in national elections. Entitlement to vote in such cases
is determined solely by reference to the electoral laws of each
Member State.
7.2 EU citizens resident in the UK are entitled to
vote in European and local elections, including elections to the
Welsh Assembly, Scottish Parliament and Northern Ireland Assembly,
but may not vote in UK parliamentary (general) elections. Since
1985, British citizens resident abroad have been able to register
as overseas electors and to vote in UK and European parliamentary
elections (but not in local elections or elections to devolved
bodies). The period in which they are entitled to vote, while
resident abroad, has varied between five and 20 years. Existing
electoral law limits their right to vote to a period of 15 years
from the time they were last registered to vote at an address
in the UK.
7.3 In its EU Citizenship Report 2010, the Commission
noted that some EU citizens (including UK nationals) who move
to another Member State are at risk of being disenfranchised if
electoral law in the Member State of which they are nationals
precludes them from voting in national parliamentary elections
during a period of residence abroad. It said it would:
"launch a discussion to identify political
options to prevent EU citizens from losing their political rights
as a consequence of exercising their right to free movement."[20]
7.4 The Commission returned to the subject in its
EU Citizenship Report 2013. It said it had entered into a political
dialogue with Member States whose nationals are at risk of losing
their right to vote in national elections if they move to another
Member State, and that it would:
"propose constructive ways to enable EU
citizens living in another EU country to fully participate in
the democratic life of the EU by maintaining their right to vote
in national elections in their country of origin."[21]
7.5 The report alluded to increasing social and cultural
interpenetration within the EU, and greater ease of communication,
adding:
"Residing in another EU country no longer
requires a definitive severing of ties with the country of origin,
as may have been the case in the past. EU citizens should now
be able to decide for themselves if they want to continue to participate
in the political life of their country of nationality or invest
in the political life of their host society."[22]
7.6 The Commission suggested that empowering EU citizens
to decide whether they wished to exercise their "key political
rights" in their Member State of origin or residence "would
give a new impetus to their inclusion and participation in the
democratic life of the Union."[23]
The Commission Communication
7.7 The Communication and accompanying Commission
Recommendation fulfil the commitment made in the EU Citizenship
Report 2013 to propose constructive ways to enhance participation
in the democratic life of the Union by "limiting the consequences
of national disenfranchisement policies, measures and administrative
practices".[24]
7.8 The Commission describes the right to vote as
"one of the fundamental political rights of citizenship"
and "part of the very fabric of democracy".[25]
It notes that the Union is required by the EU Treaties to respect
the national identities of Member States, as reflected in their
political and constitutional structures,[26]
and adds:
"Hence, it is a matter for each Member State,
while respecting the value of respect for democracy, common to
all Member States, to decide solely on the composition of the
electorate for its national elections."[27]
7.9 The Commission nevertheless reiterates its concern
that losing the right to vote in national elections as a consequence
of exercising free movement rights within the EU is:
"at odds with the founding premise of EU
citizenship, namely that it is additional to national citizenship
and is designed to give additional rights to EU citizens, whereas
in this case the exercise of the right of free movement may lead
to losing a right of political participation."[28]
7.10 The Commission suggests that there is a global
trend towards extending the franchise to non-resident nationals,
and cites opinion surveys and an online public consultation on
EU citizenship in 2012 which revealed a widespread belief that
EU citizens should not lose the right to vote in national elections
in their country of origin simply by virtue of moving to another
Member State.
7.11 The Communication identifies five Member States
— Cyprus, Denmark, Ireland, Malta and the UK — in
which a period of residence in another Member State may deprive
their citizens of a right to vote in national elections, although
the length of absence varies significantly, from as little as
six months in Cyprus to 15 years in the UK. In some other Member
States, the right of non-resident citizens to vote in national
elections is subject to the fulfilment of certain conditions.
For example, German citizens living abroad lose the right to
vote after 25 years unless they can demonstrate that they are
familiar with, and affected by, domestic politics. Austrian citizens
resident abroad are required to renew their registration on the
electoral roll every 10 years.
7.12 The Communication notes that the Strasbourg-based
European Court of Human Rights has determined that residence conditions
do not, in principle, constitute an arbitrary restriction of the
right to vote and may be justified on the grounds that:
· non-resident citizens are less directly
concerned with day-to-day problems in their countries of origin,
and have less influence in choosing candidates for election or
in formulating electoral programmes;
· the right to vote in national parliamentary
elections pre-supposes a close connection between the electorate
and the acts of the political bodies elected; and
· the legislature has a legitimate concern
in limiting the influence of citizens living abroad in national
elections, as they are less likely to be affected by the outcome.
7.13 The Court has sought to weigh these factors
against the presumption in favour of inclusion, stating that:
"Any general, automatic and indiscriminate
departure from the principle of universal suffrage risks undermining
the democratic validity of the legislature thus elected and the
laws it promulgates."[29]
7.14 In its recent case law, the Strasbourg Court
has alluded to the emergence of new technologies, and cheaper
means of transport and communication, which have enabled migrants
to maintain a high degree of contact with their country of nationality.[30]
It has nevertheless concluded that the 15-year limit imposed
by the UK on overseas voters strikes a fair balance in allowing
non-resident British citizens to vote in national parliamentary
elections whilst also ensuring that the franchise only extends
to those with a sufficiently close connection to the UK.
7.15 Within the EU context, the Commission recognises
that policies determining who can vote in national elections fall
within Member State competence, but adds:
"Member States must nonetheless exercise
that competence in accordance with EU law, in particular the provisions
of the Treaty concerning the right of every EU citizen to move
and reside freely within the territory of the Member States, and
therefore avoid any overt or covert discrimination on the basis
of nationality."[31]
7.16 Although national laws determining the franchise
for national elections are disparate, no Member State confers
a general right on foreign EU nationals resident within its territory
to vote in national elections. As a consequence, some EU citizens
who have exercised their free movement rights may lose their right
to vote in national elections in their Member State of origin
without acquiring a right to do so in their Member State of residence.
The EU Treaties include provision to strengthen or add to existing
EU citizenship rights, but the procedural requirements are onerous,
involving unanimity within the Council, the consent of the European
Parliament and approval by Member States in accordance with their
constitutional requirements.[32]
In the UK, approval by an Act of Parliament would be required.[33]
7.17 Despite the procedural and political constraints
on EU action, the Commission considers that there is a need to
act for three reasons:
· the loss of voting rights is out of
keeping with the founding premise of EU citizenship:
"The core rights attached to EU citizenship
are to be conferred on EU citizens in addition to those derived
from their national citizenship. One would not expect that the
exercise of the rights attached to Union citizenship results in
the loss of the right to vote in national elections, which is
generally linked to national citizenship."[34]
· national disenfranchisement policies
may influence the way in which EU citizens exercise their free
movement rights: EU citizens may not declare that they have
moved to another Member State in order to preserve their political
rights in their Member State of origin.
· disenfranchisement creates "a
gap" in the political rights of EU citizens that is inconsistent
with efforts to promote participation in the democratic life of
the Union: whilst able to elect Members of the European Parliament,
migrant EU citizens may lose the right to influence the composition
of the EU's other co-legislature, the Council, by virtue of their
exclusion from national elections.
7.18 The Commission proposes four "short-term"
solutions in its Recommendation accompanying the Communication
(see below). In doing so, it rejects as inappropriate two options
advocated by some as a means of addressing the loss of political
rights. The first — naturalisation in the country of residence
— would, it suggests, be inconsistent with the role of EU
citizenship as "the primary vehicle for promoting respect
for national identity and diversity, and ensuring equality of
treatment irrespective of nationality".[35]
It would also be impracticable, as individuals may choose to
live in a a number of different Member States and cannot be expected
to "acquire multiple or successive nationalities solely to
maintain political rights".[36]
The second option mooted would be based on some form of structured
dialogue or open method of coordination between Member States
to ensure mutual recognition of voting rights (particularly between
close neighbours with strong ties). The Commission considers
that such an approach would result in "fragmentation and
asymmetrical voting rights for EU citizens across the EU".[37]
7.19 In its concluding comments, the Commission acknowledges
that the mobility of EU citizens raises important questions about
political participation and forms part of a broader debate on
where voting rights should be exercised — in the Member
State of nationality or the Member State of residence. It suggests
that this issue should be examined "in the context of the
up-coming broader reflections on the future of the EU".[38]
The Commission Recommendation
7.20 The Commission Recommendation is based on the
premise that EU citizens exercising free movement rights:
"should be empowered to determine for themselves
whether they maintain a strong interest in the political life
of their home country".[39]
7.21 It suggests that policies which have the effect
of disenfranchising nationals of a Member State who exercise free
movement rights under the EU Treaties should be re-assessed in
light of "current socio-economic and technological realities"
and makes four recommendations. The first is addressed to Member
States (such as the UK) whose laws limit the right of non-resident
nationals to vote in national elections. It recommends that nationals
resident in another Member State, who would otherwise lose their
right to vote in national elections, should retain their voting
rights if they are able to demonstrate a continuing interest in
the political life of their Member State of nationality —
an application to remain on the electoral register would constitute
proof of a continuing political interest.
7.22 The second and third recommendations concern
Member States whose non-resident nationals retain their right
to vote in national elections. In such cases, Member States may
require their nationals to renew their application to be included
on the electoral register, at appropriate intervals, as a means
of demonstrating their continuing interest in, and connection
with, their Member State of nationality. Non-resident nationals
should be able to submit their applications to register or remain
on the electoral roll by electronic means. The fourth and final
recommendation seeks to ensure that Member States provide adequate
information to their citizens on the conditions under which they
may retain the right to vote in national elections, should they
decide to move to another Member State.
The Government's view
7.23 The Minister for Cities and the Constitution
(Greg Clark) notes that the current 15-year limit on the eligibility
of overseas electors to vote in UK Parliamentary elections has
been considered by successive Governments and Parliaments as a
"necessary and justified" restriction. He continues:
"There are a range of different approaches
taken internationally regarding the issue of overseas voting rights.
Some apply a time limit on their citizens' overseas voting rights,
whilst others do not have any restrictions in place. Some countries
do not allow overseas voting at all. What is appropriate in one
country is not necessarily appropriate in all.
"The issue of who votes in domestic elections
is clearly a matter for national governments and not the European
Commission. The European Commission partially acknowledges this
important point in their documents. The Government will keep
the 15 year time limit under consideration, but is not minded
to change its position which has been debated in Parliament and
backed by both the domestic courts and European Courts of Human
Rights.
"The UK Government encourages all those
eligible to vote overseas to register, and has made changes as
part of the move to Individual Electoral Registration to make
it easier for them to do so. The general requirement for an initial
application to register as an overseas elector to be witnessed
by another British citizen resident abroad is being removed, and
eligible electors will be able to register online. The Government
is also extending the elections timetable to give overseas electors
more time to cast their votes.
"Regarding the voting rights of EU citizens
resident in the UK, the Government believe that it is appropriate
that they should be entitled to vote in European and local Government
elections as provided for under EU law. The UK goes beyond
the bare minimum required by EU law in terms of the 'local' elections
it permits EU citizens to participate in. Citizenship of the
country of residence is the normal prerequisite for the right
to vote at Parliamentary elections in most democracies, including
other EU States."[40]
7.24 The Minister notes that the Commission has not
put forward any legislative proposals and that the Recommendation
has no binding force. He considers that neither document has
any direct policy implications for the UK.
Conclusion
7.25 The choice of legal instrument in this case
— a Commission Recommendation — is telling. It suggests
that there is little appetite within the Council for an initiative
of this nature, and little prospect of securing the unanimous
support of Member States that would be required under the relevant
Treaty Articles.[41]
Whilst, as the Commission observes, there may be a clear trend
towards allowing voting by non-resident nationals in Council of
Europe countries, we note that the Strasbourg Court concluded
in the recent Shindler case that:
"It [..] cannot be said that the laws and
practices of member States have reached the stage where a common
approach or consensus in favour of recognising an unlimited right
to vote for non-residents can be identified. Although the matter
may need to be kept under review in so far as attitudes in European
democratic society evolve, the margin of appreciation enjoyed
by the State in this area still remains a wide one."[42]
7.26 The Communication suggests that different
factors are in play within the EU context because the exercise
of EU citizenship rights is not intended to diminish the rights
associated with national citizenship, in particular the right
to vote in national elections. We do not agree with the Commission's
analysis. The limitation on the right of overseas electors to
vote in national parliamentary elections in the UK stems from
a perceived loosening of their ties with the UK and should not,
in our view, be attributed to the exercise of free movement rights,
not least because the 15-year rule applies to all British overseas
electors, regardless of their place of residence.
7.27 As the Minister makes clear, the Commission
Recommendation has no binding force and is unlikely to have any
bearing on UK electoral law on overseas voters. It is nevertheless
indicative of attempts to push the boundaries of EU competence
by reference to obstacles impeding the full enjoyment of EU citizenship
rights. We question whether the loss of voting rights after 15
years' residence abroad can be considered a genuine, rather than
hypothetical, impediment to the exercise of free movement rights
within the European Union. We consider, moreover, that the factors
determining who should be entitled to vote in national Parliamentary
elections are complex, and agree with the Minister that it is
primarily a matter for the Government — and, we would add,
Parliament.
7.28 We are drawing the Communication and Recommendation
to the attention of the Political and Constitutional Reform Committee,
but are content to clear both documents from scrutiny.
20 See (32139) 15936/10, reported in HC 428-xiii (2010-11),
chapter 1 (19 January 2011). Back
21
See (34935) 9590/13, reported in HC 83-vi (2013-14), chapter 5
(19 June 2013). Back
22
Ibid. Back
23
Ibid. Back
24
See p.3 of the Communication. Back
25
See p.2 of the Communication. Back
26
Article 4(2) of the Treaty on European Union. Back
27
See p.2 of the Communication. Back
28
See p.2 of the Communication. Back
29
See p.6 of the Communication. Back
30
See the case of Shindler v. the United Kingdom, judgment
of the European Court of Human Rights of 7 May 2013. Back
31
See p.6 of the Communication. Back
32
Article 25 of the Treaty on the Functioning of the European Union. Back
33
Section 7(1) and (2) of the European Union Act 2011. Back
34
See p.7 of the Communication. Back
35
See pp.7-8 of the Communication. Back
36
See p.8 of the Communication. Back
37
Ibid. Back
38
See p.9 of the Communication. Back
39
See p.10 of the Communication. Back
40
See paras 19-22 of the Minister's Explanatory Memorandum. Back
41
Articles 25 and 292 of the Treaty on the Functioning of the European
Union. Back
42
Para 115 of the judgment in Shindler v. the United Kingdom,
7 May 2013. Back
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