Some are More Equal than Others – Restricting the Right of EU Citizens to Vote in Britain’s Referendum on the EU

The reported decision of the UK government to restrict the franchise to British and Commonwealth/Irish citizens in forthcoming EU referendum was utterly predictable. But it is also arguably unlawful for two reasons. “Why?” you might wonder, as there is no express right for EU citizens to vote in such a poll, and it would be a stretch to find one in the rights associated with free movement of workers.

The EU Charter of Fundamental Rights of the European Union guarantees in chapter 5 certain democratic rights (Chapter 5 is entitled ‘Citizens’ Rights’). For instance,  EU citizens are guaranteed the right to vote for the European Parliament and local elections, both by the EU Charter and the TFEU (Article 20). No mention is made of referenda. And this is also true of Article 3 of Protocol 1 to the ECHR, which informs the interpretation and application of the EU Charter. The ECHR’s guarantee extends to legislative elections only.

However, bills of rights do not guarantee express rights alone. Sometimes rights can be implied into the text by courts in order to facilitate the purpose of the guarantees. The European Court of Human Rights has done this on numerous occasions. (Artico v Italy [1980] ECHR 6694/74, Funke v France [1983] ECHR 10828/84 etc) It is not alone (see for example the High Court of Australia – Nationwide News v Wills (1992) 177 CLR 1, Supreme Court of Canada – Ref Re Alberta Legislation [1938] SCR 100, the Supreme Court of Ireland  – Ryan v Attorney General [1965] IESC 1 and the US Supreme Court – Griswold v Connecticut 381 U.S. 479 (1965)).

How could we establish that such a right exists in this context? We might begin by noting that the preambles to the EU Charter, the TEU and the TFEU all mention the importance of democracy. Moreover, the TEU and the TFEU are shot through with references to the importance of democracy. Democracy is one the EU’s foundational values (Article 2, TEU). Indeed, the TEU makes very detailed and specific provision about democracy in the Union. Most notably it requires that ‘every citizen shall have the right to participate in the democratic life of the Union.’ (Article 10(3) TEU). Of course these rights are already frustrated by the restricted franchise in Parliamentary elections which deny EU citizens a voice in choosing representatives for the European Council and the Council. (Article 10(2) TEU). Clearly, values and principles of democracy, and democratic participation, are core constitutional provisions and values of the EU. Thus it would be possible to find an implied right of democratic participation for all EU citizens in decisions of constitutional importance. Both the framework and spirit of the EU treaties would support such an implied right.

Such an implied right would serve the important purpose of protecting the participation of EU citizens in decisions that affect that very status for if the UK leaves the EU they will cease in British law to enjoy that citizenship and its associated rights. Conversely the decision applies to non-resident  British citizens, including those disenfranchised. The stakes could not be higher. Moreover, the limitation of the voice of those with much to loose from a British withdrawal would undoubtedly have a chilling effect on the exercise of the fundamental freedoms of the EU. Furthermore, as the ECJ has repeated in many occasions citizenship ‘is intended to be the fundamental status of nationals of the Member States … Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.’ (Case C‑34/09 Zambrano v Office National de l’Emploi, paras [41]-[43]). Depriving EU citizens of their right to democratic participation has such an effect.

One further point. The British proposal creates two classes of EU citizens. Those who by a happy historical accident were once subjects of the British Crown, and are thus privileged with enfranchisement, and those that were not and consequently enjoy no such benefit. Whatever historical reason for such generosity the plain fact is that it no longer carries much, if any, significance. Citizens of Ireland, Malta and Cyprus live under republican constitutions that have long since severed the constitutional link with the Crown. In this context there is no longer any valid reason for this distinction. Discrimination on the basis of nationality is of course prohibited by EU law. As the ECJ put it in ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.’ (Case C-184/99 Grzelczyk v Belgium, [35])

As long ago as 1975 the Commission noted that the “[c]omplete assimilation with nationals as regards political rights is desirable in the long term from the point of view of a European Union.” (Commission of the European Communities, Towards European Citizenship, point 3.1, COM (75) 321 final (July 2, 1975)   Hat tip: Noelle Quenivet) In this area the Member States have been dilatory despite the work of the Commission. Yet here, as with the provisions of free movement, is another opportunity for that motor of integration the ECJ to push the integration process further by recognising an implied right for all EU citizens to participate in the forthcoming British referendum.

  • Steve Peers

    Sorry, but I don’t agree with the legal analysis. The Treaties give voting rights to EU citizens in local and EP elections, then provide for the possible extension of those rights. The obvious implication is that any further voting rights are dependent on a decision to extend citizenship rights. No such decisions have been made.

    • JevJango

      I would suggest that there is room for Article 20(b) to be extended as the referendum directly affects EU citizens and is within the spirit of being able to vote in EP elections. It is in effect akin to voting in EP elections. I concede that this would not apply if the issue was non-EU. Article 22(2) of TFEU allows for derogation on this point. If the UK are going to rely on this as justification for prohibiting the right to vote, then by implication these rights musts exist in the first place. Or do the UK Government say that this right does not exist. ‘Restrict the franchise’ does not suggest this is the case.

  • baloopa

    If the electorate announced for the referendum is illegal, why was there no outcry or legal challenge when the same electorate were the only people entitled to vote in the general election three weeks ago? Possibly because the UK is merely one of a host of EU countries who do not allow citizens of other EU countries to vote in national elections. This suggests that there is no self-evident entitlement to vote in anything other than the elections specified in EU law (local and EU parliament). For what it’s worth, referenda in the EU’s biggest referendum-loving nation, Ireland, are only open to Irish citizens; not to the British citizens who are allowed to vote in Dail elections, let alone other EU citizens.

  • Albert Sanchez Graells

    Excellent post. I have some complementary views in the same direction: http://howtocrackanut.blogspot.co.uk/2015/05/my-preliminary-thoughts-on-why-uks.html

  • JevJango

    I agree with the analysis and I like the implied right argument. I don’t think it would be difficult to win such a claim. I am sure the ECJ would be more than happy to oblige. However, how do you think the referendum would go after a European court ruling or even a letter from the Commission. Imagine the headlines. ‘EU Court Gives Poles Permission to vote in UK referendum’ or perhaps another headline post voting. ‘Poles vote to keep UK in EU’ I think Cameron has made a good decision here. Illegal, but politically calming. Remember, he has to think laterally if he is going to keep the UK in. Or put it another way, any whisper of a legal challenge would tip the balance the wrong way.

    (If it is not obvious, I use Poles in my illustration as they are the largest EU minority in the UK and clearly it would be in their best interest to vote to keep the UK in the EU, but if they were allowed to vote it would give UKip an excuse to jump up and down and attract too much attention).