Over on BondBloke

You will find an initial post on "Two years after Enlargement". More to follow on this blog over the next week or so as the press coverage evolves.

Should expatriates be allowed to vote?

In the light of the role of Italian expatriates in the very narrow victory of Romano Prodi’s centre left coalition, I was going to post on the question of “should expatriates be allowed to vote?” Some interesting discussions are to be found here and here. Expatriate voting is, of course, a global phenomenon. It is especially important in places like Mexico or Latin America. It is very common within Europe.

Obviously there are various principles which could be applied when deciding whether expatriates should be allowed to vote: an ethnic nationalist conception of citizenship, for example, leads to the conclusion that expatriates of the same ethnos automatically have an interest in participating politically in the original home polity. Alternatively, if expatriates are very distant (physically, temporally, perhaps even psychologically) from the original home polity, and are more integrated into the host polity, perhaps to the extent of holding the citizenship of that polity as a dual citizenship, and consequently being able to vote there, then it is hard to argue that their political participation in the home polity is necessary either to secure their democratic rights or to ensure the democratic inclusiveness of a home polity which has seen a great deal of emigration. And there are lots of positions between those two. In reality, as the Italian case shows, many expatriate voting rights are introduced with a view to gaining party political advantage. Equally, as Berlusconi now knows, and Prodi enjoys to his advantage, this can backfire! The law of unintended consequences.

However, rather than focusing on expatriate voting as such, I decided to concentrate on the specific case of voting in national elections by those EU citizens (about 1.5% of population amongst the old EU 15 Member States; perhaps more if one takes into account the new 10 Member States despite the labour market access restrictions, but I have yet to see any convincing figures) who are resident in other Member States, under the EU free movement rules. This is because the Commission itself has said that this group consistently complain about the fact that they are excluded from voting in all national elections a lot of the time. For example, most cannot vote in the host state without taking on citizenship. The exceptions are UK citizens in Ireland, and Irish, Cypriot and Maltese citizens in the UK. Many cannot vote in their home state, if they stay outside the home state for long enough. For example, UK expatriate voting rights expire after fifteen years outside the UK. Furthermore, the EU positively encourages inter Member State migration as part of the single market programme, and since it does not encourage (or indeed discourage) free movers to take on the nationality of the host state because it guarantees them equal treatment based on their home state nationality with those who have the host state nationality. It seems therefore reasonable to argue that as a necessary corollary of the EU’s development, and in particular its claim to offer a form of ‘citizenship’ to all the nationals of the Member States, that there is a case for a comprehensive right to democratic representation amongst EU citizens which should apply irrespective of residence, and should not extend only (as it does at present) to local elections and European Parliament elections. But how should this be achieved? At the moment, the EU does not have the competence to order the Member States to allow resident non-nationals to vote in their national elections. And arguably it should not have such a competence. At this stage, however, I am simply at the stage of canvassing options, which I have narrowed down to the following:

1. Preserve full national choice in this matter as we have at the moment.

2. Member States could be encouraged to give a form of citizenship automatically to resident non-nationals to allow them to vote in national elections. This is rather like the US model for the various states, except that automatic citizenship acquisition in the state of residence was imposed by the Constitution as part of the development of US citizenship and is not a choice of the states. In the EU context, this would probably need to go hand in hand with encouragement to allow dual home/host state nationality, so that home state voting could also be possible.

3. To facilitate home state voting either loosen registration requirements (as in France where it is not hard to register to vote even if you actually really live elsewhere) and/or have generous expatriate voting arrangements with or without specialist expatriate representation (France, and now Italy have such specialist representation arrangements) and/or remove the temporal limitations (e.g. as in the UK). This means a move towards comprehensive expatriate voting for EU citizens resident in other Member States to ensure they don’t fall down a ‘democratic crack’.
It is worth noting that in the context of points 2 and 3, as a matter of principle a position needs to be taken on whether dual voting in the home and the host state in national elections is a problem. It is not permitted in the case of European Parliament elections which all EU citizens can vote for provided they are resident in the Member States or are resident in other states but are covered by their home state’s expatriate voting rules, because it is clearly wrong that any person should have two votes for a European Parliament elected under universal direct suffrage. In contrast it is not so clearly wrong that the individuals may have two votes in separate national elections.

4. The less likely option is that EU measures will be adopted by the Member States to require themselves to adopt such rules allowing resident non-nationals to vote. It would require a formal extension of competence under the treaties first (i.e. all the Member States would have to agree upon that, and there would have to be national ratification of such a Treaty), and this is both unlikely and, perhaps, undesirable.

5. The EU might start trying to persuade the Member States to do this, by pointing to examples where it happens – UK/Ireland – as best practice for democratic inclusiveness.

6. Finally, the Member States could be encouraged to start agreeing with each other to allow non-nationals to vote. This would be quite easy for Ireland. Ireland has the necessary legal provisions in place for a Minister to make an order allowing other categories of EU citizens to vote in its national elections, on condition of reciprocity. So if the Finns were to decide that the Irish could vote in their national elections, then Ireland would necessarily do likewise. However, it is an interesting question whether one could design an institutional format to structure the encouragement amongst the Member States to develop the trust and reciprocity necessary to extend their voting rights to each others’ citizens.

Gibraltar, Commonwealth Citizens and the European Parliament elections

News comes today of an opinion issued by Advocate General Tizzano in the European Court of Justice in a couple of cases which I know more about than is probably healthy for me. The essence of the questions - which are somewhat niche, and BondBloke will probably "do for me" for blogging about this - is this:

1. Is it OK for the UK, when it decided that it had to include Gibraltar in the South West of England constituency for the 2004 European Parliament elections, at the same time to extend its normal suffrage rules under the Representation of the People Act? That means that all Commonwealth Citizens could vote as part of the Gibraltar electorate in EP elections, just as they do when they are resident in the UK (well, so long as they are lawfully resident).

2. Is it OK for the Netherlands not to allow Netherlands citizens who are resident in Aruba (which is part of the Kingdom of the Netherlands, but not part of the European part of the Netherlands, and which is not part of the European Union, but an associated overseas territory) to vote in the European Parliament elections, when it lets all Netherlands citizens resident in the Netherlands vote in those elections, *and* it lets Netherlands citizens (including those formerly resident in Aruba, who have never lived in the European part of the Netherlands) vote in those elections even when they are resident in third countries which are completely unrelated to the Netherlands?

The answers given by the Advocate General (AG) were no, to question 1, and no to question 2. By the way, an AG's opinion is merely advisory, and the Court of Justice which should soon rule on these cases (which have already been long delayed) may adopt a different view. But it is interesting to see the way it has been argued by the AG as it surely gives some clues as to how the Court might well rule.

I won't look more at the second case, because it would seem that the Netherlands have got themselves in a pickle by having very inconsistent rules. The last scenario referred to in my summary of the question before the Court - expatraiate voting - should be intended to protect the interests of Netherlands citizens who have a connection with the Netherlands even when they settle abroad. It is reasonably fair not to include Netherlands citizens resident in Aruba in EP elections, because nothing the EP actually does, such as passing legislation, actually affects Aruba. Aruba has its own democratically (mini-)legislature. But it seems arbitrary suddenly to include them in the EP franchise, and to let them vote for the EP, when they leave Aruba and travel to another unrelated country. This applies even where they have never actually been to, or been settled in, the European part of the Netherlands. After all, they have no more stake once they have left in what the EP does, surely, than they do when they are still in Aruba. Consistently, they ought to have expatriate voting rights letting them voting in the Aruba elections.

Anyway, the point of the little excursus is to point out that the key issue in that case appears to be that of consistency of the relevant legislation.

So...what of Gibraltar? Gibraltar was included in the South West of England constituency after the exclusion of its citizens (who are mostly UK citizens) was successfully contested before the European Court of Human Rights. Gibraltar's status remains very contested between Spain and the United Kingdom, and Spain made it as difficult as it possibly could for the UK to comply with the ruling of the ECtHR by making the UK implement all the necessary arrangements by means of unilateral legislative acts. It challenged various aspects of the UK's inclusion of Gibraltar into the EP elections, as it said this amounted to a further annexation of the territory of the colony into the territory of the UK. Spain conceded the right of the Gibraltar electorate to be included in the elections (since this was clearly the logical effect of the ECtHR ruling which it could hardly contest even if it has been obstructionist), but it wanted this to be done without actually holding the elections in Gibraltar. The only part of the steps which the UK took to implement the ECtHR's ruling which the AG has recommended to the Court of Justice that it should strike down is the part about Commonwealth Citizens resident in Gibraltar voting. He did at least accept that it would be unreasonable, and basically undemocratic, to give Gibraltarians the opportunity to vote in EP elections, but only if they registered by post and voted by post, and if none of the essentially paraphernalia of elections was actually located on the territory of Gibraltar.

But unfortunately he has not extended that view to the consistent application of the UK's albeit peculiar, but none the less historically coherent, franchise rules which allow Commonwealth Citizens to vote in all UK elections, including European Parliament elections. Now there does not seem to be anything in the AG's opinion which really challenges the rights of the 1m Commonwealth Citizens resident in the UK to carry on voting in European Parliament elections. I'm relieved about that. I am generally very sympathetic to the argument that so far as is reasonably possible the electorate in all elections should be as wide as possible, both because it enhances the democratic properties of such elections (with more of the people affected by the decisions being able to vote) and also because it enhances the human rights of those who are able to vote, as so far as is possible everyone should have as full a right as possible to political participation in relation to the institutions which take the decisions which affect them. If the underlying basis for creating a privileged category of foreigners in the UK (i.e. Commonwealth Citizens) who can vote in European Parliament elections is that this group with strong historical connections to the UK should have their right to participate in political institutions which affect their interests fully protected, then the same argument must apply to the (very small) group of people who are Commonwealth Citizens resident in Gibraltar. The point is not that this is a small group of people, about 100 only, though. The point from my perspective is that the AG has shown himself very unsympathetic to an argument about political inclusion, which has long, ans consistently, been enshrined in UK legislation. Why should the UK, therefore, have to be inconsistent when it applies its electoral rules to Gibraltar, and exclude Commonwealth Citizens. After all, the Netherlands appears to be about to be penalised for being inconsistent!
My summary here is only rather short. The overall Opinion is nearly 200 paragraphs, with 50 footnotes. But there is nothing, in my view, which provides an overwhelming argument as to why a national choice like that made in the UK to be more inclusive with voting rights should be cut down in a case like that of Gibraltar voting in the EP elections.

I hope the Court doesn't follow the AG. Watch this space!

New Blog

My lengthy excursus on Gibraltar, European Parliament elections and Commonwealth Citizens on the blog I share with a number of others (Thoughts of BondBloke), which I suspect will try the patience of both my fellow bloggers and our faithful readership, has persuaded me that I should set up a separate blog, which may not be updated that often, for the "meatier" (maybe even "veggier") posts on EU law and politics. Hence the title of this blog. Welcome!