Thursday, April 06, 2006

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!

2 Comments:

Blogger xtremest said...

Thank you foк this meaningful post. I'm working on the thesis about electoral law of EU and it's very interesting.

8:37 am  
Blogger BondWoman said...

thanks for your comment. Most kind. I will try to blog on some other issues related to EU law and policy soon. Maybe on the subject of "should expatriates vote?" (cf Italy) and the impact of this on EU citizenship.

5:41 pm  

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