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  ECHR 6694/74, Funke v France  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  SCR 100, the Supreme Court of Ireland – Ryan v Attorney General  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 -). 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, )
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.