The political removal of the 15-year bar followed an unsuccessful legal challenge in the European Court of Human Rights, brought by the late harry Shindler OBE, which I have previously discussed on this blog. In the Department for Levelling up, Housing & Communities Policy Paper of 2 February 2022, the government offered the following rationales:

• First, most British citizens overseas retain deep ties to the UK. Many still have family here, some will return here. Many will have a lifetime of hard work in the UK behind them, and some will have fought for our country.
• Second, advances in technology have enabled high-speed global communications, allowing British citizens to follow domestic affairs in real-time.
• Third, Britons overseas are directly affected by decisions made in Parliament – for example, on foreign policy, defence, immigration, or pensions. It is therefore right that they have a voice in elections to that body.

Yet, in our constituency-based electoral system, overseas constituents’ voices are substantively muted by a weak system of representation in Westminster. They are represented by the MP in an area they may have left decades ago. These MP are likely to have had little experience of dealing with case works concerning citizens abroad. Their concerns are, by definition, dwarfed by those of most constituents who live in the territorial jurisdiction.

An overseas constituency is an electoral district located outside of the state territory borders that is designated as a district for the representation of eligible voters residing there. 17 countries of different sizes and electoral systems have overseas constituencies; in Europe alone, this includes countries as diverse as Croatia, France, Italy, Lithuania, North Macedonia, Portugal, and Romania.

There are three key rationales for establishing overseas constituencies:

• First, aligned concerns and interests: overseas voters’ concerns and interests are more likely to align with electors formerly resident in other UK constituencies who now reside alongside them abroad. In the European/EU context, this is particularly acute given challenges arising from loss of EU citizenship and divergent practices across the EU-27 in respect of the implementation of the Withdrawal Agreement.
• Second, acquired expertise: overseas constituents will have an opportunity to have their voice clearly heard through designated and effective representation, building casework expertise.
• Third, simplification: moving from registering for and voting in 650 Westminster constituencies to registering for and voting in overseas constituencies by dint of being a UK citizen will make registration and voting easier.

The charity I chair, New Europeans UK, has been campaigning for overseas constituencies. At their recent Autumn conference, the Liberal Democrats voted for a policy motion supporting their establishment. Should this policy be adopted by the government, boundary division would need to be established by the Boundary Commission. A possible division might be as follows: North/West Europe; Central/East Europe; South Europe; Australia & New Zealand; the Americas; Africa; the Middle East; and rest of Asia. The exact number would be determined based on the proportion of overseas constituents of the overall electorate. It is likely that the promise of effective representation will lead to a higher number of registered overseas voters; therefore, the creation of overseas constituencies should not necessarily come at the expense of existing constituencies: if the electorate is larger, and the number of electors per seat remains the same, there should be more MPs.

Read more:

• Proposed Voter ID Reforms in the UK: The Dangers of ‘Fraud’ Based Regulation.
• Case C-673/20 EP v Préfet du Gers: The Stripping of the Right to Vote.
• Direct Democracy in Action: Swiss Voters Decide to Augment the Statutory Old Age Pension.
• Stripping a state of its statehood: Disenfranchisement of the people of Jammu and Kashmir.

Citizenship still matters; its absence denotes precarity. As Covid19 travel restrictions reminded us, at its international core lies the right to enter one’s country and reside therein. Domestically, in most jurisdictions, citizenship serves as an eligibility criterion for electoral participation; excluded non-citizens have limited capacity to advance their rights through the political process.

Against this background, last week’s UK Supreme Court (UKSC) judgment in R (O (a minor)) v Secretary of State for the Home Department [2022] UKSC 3 is lamentable and concerning. The claimant, O, was born in the UK in July 2007, acquiring Nigerian citizenship at birth. Since her tenth birthday she had been eligible to apply for registration as a British citizen, pursuant to section 1(4) of the British Nationality Act 1981 (BNA). Alas, her mother, a single parent who was receiving local authority support, could not afford the registration fee set by the Secretary of State (SoS) – £973 at that time (today it is £1012), but was only able to raise £386, just over the official estimated cost of processing the registration.

That this was a registration process of an eligible applicant; that the application fee was prohibitively high, well in excess of the cost of processing it; and that, absent registration, the applicant would be denied core citizenship rights – none of these were in dispute. For the UKSC, however, the decisive factor was the explicit authorisation granted by Parliament to the SoS pursuant to Section 68(1) of the Immigration Act 2014 to set fees taking into consideration, among other factors, not just ‘the cost of exercising the function in question’ but also ‘benefits that the SoS thinks are likely to accrue to any person in connection with the exercise of the function’ and ‘the promotion of economic growth’. The SoS may therefore levy an unaffordable fee on a child, born in the UK, wishing to register as a British citizen to be able to secure their citizenship rights, so that the Treasury coffers can be filled. Put simply: the SoS may render access to citizenship contingent on financial ability because ‘The appropriateness of imposing the fee on children who apply for British citizenship under section 1(4) of the 1981 Act is a question of policy which is for political determination’ (per Lord Hodge, [51]).

The judgment thus confirms that, despite section 1(4) BNA stating that a child ‘shall be entitled’ to register as a British citizen, that entitlement is qualified by the ability to pay the set fee. There is no statutory right to be registered as a British citizen. Nor is there a common law right to British citizenship. Neither can a right to citizenship be derived from the UK’s international law obligations (including under the Convention on the Reduction of Statelessness, which the UK ratified in 1966), due to a ‘dualist’ approach to international law.

EU citizenship is constitutionally grounded in Article 9 of the Treaty on European Union. Therefore, while the UK was still a member of the EU, the Rottman ratio could have arguably subjected decisions in respect of British citizens that would have an effect on their EU citizenship to a proportionality assessment, weighing the importance of the rights conferred through EU citizenship. By contrast, in its judgment, the UKSC applies ‘normal canons of statutory interpretation’ to the effective denial of access to British citizenship [43].

The precarity of British citizenship, absent constitutional protection, has been laid bare, and not for the first time. Last year, the UKSC refused to require the Home Secretary to allow Shamima Begum to return to the UK to challenge the decision to strip her of her British citizenship, applying to the decision to deny her effective access to the courts a Wednesbury reasonableness test (‘whether the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted’, [119]).

A future Shamima Begum may not even know that she has lost her citizenship: the Kafkaesque stipulation in Clause 9 of the Nationality and Borders Bill, currently going through the House of Lords, would authorise the SoS to deprive a British citizen of their citizenship without giving them notice if they deem it to be ‘in the interests of national security’, in the interests ‘of the relationship between the UK and another country’, or ‘otherwise in the public interest’ (proposed new section 40(5A)(c) of the BNA).

The Bill also authorises the SoS to deprive a person of their citizenship status even if the deprivation would render them stateless, if the person’s British citizenship results from their naturalisation, the SoS is satisfied that it would be ‘conducive to the public good’ because the person has conducted themselves ‘in a manner which is seriously prejudicial to the vital interests of the UK’, and there are ‘reasonable grounds for believing’ that such person is able ‘to become a national’ of another country pursuant to that country’s law. Hence, a British naturalised Jew who holds no other citizenship would, by virtue of being deemed eligible to become an Israeli citizen pursuant to Israel’s Law of Return, now face a risk of deprivation if the SoS judges their conduct to be ‘seriously prejudicial’ to the UK’s (undefined) vital interests – a decision that, as per Clause 9 of the Bill, the SoS may make without giving notice.

In 2022 Britain, the SoS holds the tremendous power to affect access to British citizenship and, indeed, to take it away in increasingly non-transparent ways. For a UKSC committed to what Conor Gearty has recently described as ‘respect for orthodox Parliamentary sovereignty’, this phenomenon unfortunately does not ring alarm bells.

The public calendar in the UK is designed around Christian festivals, as is the case in other countries where the majority population are either practising or nominal Christians. Members of minority faiths are often accommodated when they have religious or cultural festivals, but no other faith has its holidays recognised as part of the collective, public calendar. Indeed, unlike other (Christian) countries, Britain lacks civic public holidays which are imbued with a meaning that can bind together its entire population. In a country where religious influence has arguably waned in recent times, a serious blind-spot has arisen in the public psyche: since only Christian festivals feature in the British public calendar, there is a common misperception that they are universally celebrated by those of other faiths. Anecdotally, yesterday, I was offered Christmas goods at a food shop. Explaining that, as a Jew, I do not celebrate Christmas, the attendant exclaimed: ‘but Christmas is for everyone’. That illusion spans across British society.

Self-evidently, for religious Christians, Christmas has spiritual significance. For those from a Christian background who are non-practising, it has become an important time to spend with their loved ones. However, it is not, and indeed cannot, become a festival with universal significance: for members of other faith communities in Britain, Christmas is a public holiday that represents the cultural traditions of the majority of the polity of which they are members and which they deeply respect but with which they do not identify.

Understanding that Christmas is not a universally celebrated festival is critically important in gaining a clear picture of the relative harms of national lockdowns for communal life. British Jews marked Passover, ordinarily characterised by large family gatherings where the exodus story is read and discussed, in the middle of April. British Muslims marked Eid al-Fitr in late May which, similarly, involves large convivial celebrations marking the end of Ramadan. The same is true of Hindus who celebrated Diwali, a festival of lights, in the middle of November. On all three occasions, the UK was in national lockdown: no exemptions were made to allow families to gather in order to mark their religious festivals – and, to their credit, none were demanded by the leaders of the relevant faith communities. No one should fail to recognise the massive curtailment of religious and cultural life that these lockdown measures entailed for these faith communities.

It is also important to recognise that, the smaller the faith community, the lesser any (adverse) effect on national infection rates if they were to be exempt from national lockdown measures. It follows, logically, that it would be far more costly – for the entire society – to relax restrictions for the benefit of the majority than it would have been to do so for the benefit of minority faiths. An interesting comparison can be drawn with Israel, a majority Jewish country where Jewish festivals make up the national calendar: there, conscious of public health implications, far stricter restrictions were imposed nationally during Passover and indeed throughout the Jewish high holidays period than during Eid, which its minority Muslim population celebrates.

The relaxation of restrictions around Christmas will enable a much larger segment of the British population to realise their religious and cultural preferences. Yet it is wrong to suggest that the benefits of doing so are evenly spread across the whole UK population. Understanding that Christmas is a holiday of (and for) the majority allows us to paint a more accurate and honest picture of the decision that leaders of the four nations have made: whereas the costs of three households socialising indoors over Christmas will be borne by the entire population, the benefits will be mostly accrued by the majority.

Crucially, the government plans no changes to section 3 of the Representation of the People Act 1983 (RPA), thereby avoiding a potential backbench revolt. The provision stipulates that ‘a convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election’. Of the 47 members of the Council of Europe only Armenia, Georgia, Russia, Hungary, and Bulgaria have similar policies.

The announcement comes after more than 12 years of non-compliance with the binding judgment of the European Court of Human Rights in Hirst (no. 2) v UK, undermining the UK’s adherence to the rule of law. Elsewhere (full-length paper, blog-post), I set out the normative case for enfranchisement and critiqued Strasbourg’s timid approach. In previous posts (here, here, and here), I have discussed the unfolding of the prisoner voting saga.  This post considers the extent to which the proposal complies with Hirst.

It is noteworthy that, in December 2016, the Committee of Ministers of the Council of Europe (CoM), tasked with supervising the execution of judgments (pursuant to Article 46(3) of the ECHR), decided ‘to resume consideration of [Hirst] in light of the [UK] proposals [to be] submitted, at their 1302^nd meeting (December 2017)…at the latest’. The decision followed strongly worded reprimands in previous years.

It is worth quoting [82] of Hirst (no. 2) in full: ‘….section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1’. Hirst’s ratio was reaffirmed e.g. last year in Kulinski and Sabev v Bulgaria  (Fifth Section Chamber).

The proposal leaves section 3 of the RPA intact: at the time of sentencing, disenfranchisement would still be an automatic consequence of a sentence of imprisonment of any length, regardless of individual circumstances. Post-sentencing, enfranchisement will be discretionary, applying to roughly 1 in every 1000 prisoners. This is a far cry from the recommendation of the Joint Committee on the Draft Voting Eligibility (Prisoners) [239] ‘that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections’ and that all ‘prisoners should be entitled to apply, 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released’.

Moreover, despite the Lord Chancellor’s claim that the proposal complies with the UK’s ‘international legal obligations’, the Human Rights Committee (interpreting the ICCPR) noted that ‘general deprivation of the right [to] vote for persons who have received a felony conviction…do not [sic] meet the requirements of Articles 25 [and] 26…nor [does it] serve…the rehabilitation goals of Article 10(3)’ (see also my full-length paper).

Will the CoM bite the bullet? Before the 2016 EU referendum, the then Home Secretary Theresa May intimated that the UK should (stay in the EU but) leave the ECHR. While Brexit put such plans on a low burner, the Conservative 2017 Manifesto (only) committed to ECHR membership ‘in this Parliament’. Even though denunciation of the ECHR would not release the UK from its existing obligations it would be an undesirable outcome which the CoM will seek to avoid.

Only three Conservative MPs  voted for the amendment, after the Home Secretary had sent a letter to select MPs  assuring them that ‘nothing will change for EU citizens, whether already resident in the UK or moving from the EU, without Parliament’s approval’. The Government was joined by the DUP, UKIP, and six Labour MPs, including Gisela Stuart.  Stuart, former Chair of ‘Vote Leave’, chaired a British Future Inquiry into ‘Securing the status of EEA+ nationals in the UK’. The Inquiry’s December 2016 report concluded that ‘retrospective changes to [EEA+ nationals’] status are unfair as [those] who have settled in the UK could legitimately expect their status to remain secure when they moved here…The Inquiry recommends, as a cut-off date, the day that Article 50 is triggered’. Notably, this is a later ‘cut-off’ date than Harman’s amendment.

The follies of the Government’s reciprocity argument

There are substantive difficulties with the Government’s insistence on reciprocity, as reflected in Section 6 of its White Paper. The Commons debate revealed little zeal among MPs for making non-UK EU citizens’ status conditional upon reciprocity, let alone desire for en masse expulsion, should negotiations fail.

First, the claim that, the Government is protecting UK citizens residing in the EU-27 by refusing to unilaterally and unconditionally give non-UK EU citizens the reassurance they seek  is fanciful (I have written about their future status). Organisations representing UK citizens resident in Germany, Gibraltar, France, Spain, Finland, and Belgium signed a joint letter to the PM  urging her to unilaterally offer  guarantees to non-UK EU citizens. There is no evidence of hostility against UK citizens in the EU-27, and assigning blame to Union institutions for supposedly refusing to reach a reciprocal agreement before the UK serves its Article 50 notification is a red herring.

 Second, the Government cannot have it both ways: if the fate of non-UK EU citizens will not depend on the outcome of the negotiations, the refusal to remove the uncertainty and to clarify the ‘cut-off’ date before negotiations commence is puzzling. The Government’s insistence on reciprocity logically implies that, if negotiations fail, rights of non-UK EU citizens may be curtailed. In 2017, such a ‘bargaining chips’ approach is morally indefensible.

Third, whereas it is within the unilateral gift of Westminster to secure the status and rights of non-UK EU citizens irrespective of the withdrawal agreement, reciprocity ipso facto requires agreement, and it is far from certain that it will be reached at an early stage of the negotiations.

It bears mentioning that non-UK EU citizens (except Maltese, Cypriot, and Irish citizens), and UK citizens who have been residing abroad for more than 15 years, were not eligible to vote in the 23^rd June 2016 referendum, despite being (among) those most directly and adversely affected by its outcome (analysis).

The road ahead

The Bill now moves to the House of Lords. A #RightToStay Mass Lobby of Parliament, co-organised by the 3 Million and New Europeans, will take place on 20^th February, coinciding with the ‘One Day without Us’ National Day of Action and, intriguingly, with the Bill’s Second Reading in the Lords.

Several Peers have already tabled amendments to the Bill, including in relation to non-UK EU citizens. One replicates the JCHR stipulation, whereas another extends beyond ‘rights of residence’ also to ‘other rights enjoyed by EU citizens’. The Government, which does not have a majority in the Lords, issued thinly veiled threats  that the future of the upper house is at risk were Peers to scupper Brexit; since securing the rights of non-UK EU nationals does not stand in the way of triggering Article 50, one remains hopeful that an amended Bill will be sent back to the Commons.

On 8 December 2014, hours before dissolving itself in preparation for early elections arranged for 17 March 2015, the Israeli Parliament, the Knesset enacted (by a 47 to 23 majority, with 3 abstentions) the ‘Law for Prevention of Infiltration and Ensuring the Departure of Infiltrators from Israel’ (full text in Hebrew). Under the new legislation, ‘infiltrators’ who enter Israel and cannot be deported will be automatically detained for three months at the Saharonim prison in the Negev desert (reduced from one year under the quashed legislation). ‘Infiltrators’ already in Israel, as well as new arrivals (following their three months’ detention) can be detained at the Holot detention centre for 20 months (as opposed to indefinite detention under the quashed legislation).Over 2,200 persons are currently held in Holot pursuant to the quashed legislation; they are expected to remain for what is now fixed-term detention.

The detainees will be required to report for a headcount between 8 and 10pm every night, and the detention centre will be locked shut at night. While the length of detention was shortened, its prison-like characteristics (managed by the Israel Prison Service, which conducts searches on persons entering and leaving the facility), the fact that detainees are barred from working, and the facility’s remote location in the Negev desert are likely to render the possibility to leave the facility at daytime rather futile. Moreover, violation of the sign-in conditions can lead to up to four months’ detention in the closed facility, at the discretion of the Population, Immigration and Borders Authority.

In the two previous ‘rounds’ of litigation, the HCJ unveiled the unsoundness of the overall state policy. On one hand, Israel recognises the fact that Eritrean and Sudanese nationals cannot be deported. On the other hand, it detains them in an effort, now explicitly manifested in the legislation’s title, to entice them to leave. It is worth reiterating Justice Uzi Vogelman’s main opinion in the above HCJ judgment, stressing [193] that ‘the question is not only quantitative – what is the maximum constitutional length of time for detention in custody – but also (and perhaps primarily) qualitative – whether it is permissible to detain a person not subject to effective deportation proceedings. To this question I respond…absolutely not.’

Since the legislation applies to ‘infiltrators’ who according to the state’s determination cannot be deported, persons detained will be released after 20 months without any plan for regularisation of their precarious legal status (see my post). Indeed, the legislation also amends the ‘migrant workers law 1991’, imposing financial sanctions on the (majority of) non-detained ‘infiltrators’ who are in un-regularised employment: they will not receive severance pay or pensions to which other Israeli workers are entitled. Instead, their employers will have to deposit 16% of the salary in a separate account, and to deposit further 20% of their salary on behalf of their employees. This money will be ‘released’ only upon the employees’ departure. Hefty fines are imposed for breaches. The legislative aim is two-fold: encourage asylum seekers to leave, and discourage employers from employing them. The immediate outcome will be further destitution, especially as ‘infiltrators’ do not receive benefits or state assistance.

A petition to the HCJ challenging the constitutionality of the legislation is imminent. The HCJ, faced with detention legislation premised on the same tenets found to be unconstitutional less than three months ago, will be forced into an making an unsavoury choice: quash the legislation for the third time, an unprecedented move in the state’s history, and face real risk of legislative attempts in the next parliament to limit its judicial review power; or uphold it based on a proportionality analysis, permitting arbitrary detention of persons in need of international protection. Stay tuned-it will be a hot winter.

The amendment enacted two schemes: first, section 30A, authorising the detention for one year of any ‘infiltrator’ (the term was introduced by the above law, and shall be used in quotation marks in this discussion) entering Israel after the amendment’s coming into force. Second, Chapter D, authorising the holding in an ‘open’ residency centre of ‘infiltrators’ whose removal from Israel (according to the State’s official determination) proves to be ‘difficult’. ‘Infiltrators’ are to be held indefinitely unless they ‘voluntarily’ agree to return their state of origin, or to be transferred to a third state (see my critique of the legislation on this blog, and my discussion of the proceedings before the HCJ).  Almost a year to the day, on 16 September 2013, the same panel quashed Amendment no. 3 that authorized the detention of “infiltrators” for three years (see my analysis on this blog). This is the first time that the Supreme Court has re-annulled primary legislation.

Justice Uzi Vogelman authored the main judgment, which holds both legislative schemes to be in violation of the constitutional rights to liberty (section 5 of Basic Law: Human Dignity and Liberty) and to human dignity (sections 2 and 4 thereof) by failing to satisfy the proportionality requirement in section 8 (the ‘limitation’ clause); the latter provision stipulates that ‘[t]here shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.’ Justice Vogelman emphatically stated that ‘infiltrators are people too. And if this merits explanation, let it be said explicitly: infiltrators do not shed any part of their dignity due to their method of arrival [or] by entering a detention or residency facility, and their right to human dignity remains intact even if they have arrived irregularly’ [123].

Six of the nine justices (Uzi Vogelman, Miriam Naor, Edna Arbel, Yoram Danziger, Salim Joubran, Esther Hayut) annulled section 30A (Chief Justice Asher Grunis and Justices Neal Hendel and Yitzhak Amit dissenting).A close reading of the previous judgment (HCJ 7146/12) reveals that Justice’s Hendel’s dissent should have been anticipated, as he dissented from the operative part of the otherwise unanimous judgment. Similarly, Chief Justice Grunis asserted in his concurrence that a re-enacted law authorising a significantly shorter detention period could pass constitutional muster. In contradistinction, Justice Amit’s dissent rests on distinguishing between section 30A and the quashed Amendment no. 3: while the former applies prospectively, and is hence directed towards a non-specific group of persons who have not yet transgressed the state’s borders, the latter applied retrospectively to ‘infiltrators’ who entered prior to its passage [7]. However, as Justice Arbel noted, newcomers subject to the state’s jurisdiction enjoy constitutional rights to liberty and dignity [9]; moreover, a nulla poena sine lege principle seems out of context.

Seven justices (including Justice Amit) annulled Chapter D in its entirety. Chief Justice Grunis and Justice Hendel considered only the provision authorising three daily counts to be unconstitutional, and would have removed the second (midday) count requirement, leaving intact the morning and evening counts as well as the rest of Chapter D. The main judgment cautioned against letting ‘the name “open facility” to lead us astray’: it is “a facility similar in essence to a closed facility” which violates part of the minimum dignified life to which every person is entitled’ [126]. Notingthat ‘the requirement to be present for the three daily counts, alongside the great distance from settlements in the region, negates nearly any possibility to leave the centre on a routine basis’, justice Vogelman rhetorically asks: ‘is it, therefore, an ‘open’ centre’? [Id]. Indeed, even the dissenting justices observed that the scheme as it currently operates is akin to aclosed facility: the significant difference between the majority and dissenting judgment pertains to the (in)ability to mitigate the harm caused by the scheme, and the consequent divergent remedies.

This is a truncated version of a post previously published on the European Society of International Law Interest Group on Migration and Refugee Law blog.

The case concerned prisoners in Scottish prisons denied the right to vote in elections to the European Parliament (EP) held on 4 June 2009. Indeed, this outcome was to be expected in view of the Grand Chamber judgments in Hirst (no. 2) and Scoppola (no. 3). Notably, in EP elections, the UK’s disenfranchisement practices also affect the right to vote of EU nationals serving sentences in UK prisons (an issue which deserves jurisprudential attention).

I have previously critiqued the casual approach to the disenfranchisement of prisoners in the UK, manifested in the scant public attention given to the rejection of a legal challenge to the blanket disenfranchisement of prisoners in the 18 September Scottish Independence Referendum (by the outer and inner houses of the Scottish Court of Session and, on 24 July 2014, by the UK Supreme Court, with reasons to be given at a later date). In this instance, the Scottish government has not even attempted to justify the disenfranchisement of all prisoners, including prisoners that will be released before 24 March 2016, when an independent Scotland is to be declared following a YES vote (according to the ‘Scotland’s Future’ White Paper), relying instead on a literal (rather than purposive) reading of the A3P1 stipulation which refers to the ‘choice of the legislature’ to rule out its applicability to referendums (see the explanatory notes of the Scottish Independence Referendum (Franchise) Act). This is both disappointing and revealing, because it manifests an unprincipled approach to determining the franchise for the most fundamental of choices in an independence referendum (further discussion).

The UK Supreme Court in Chester and McGeoch refrained from addressing the ramifications of the UK’s continuous breach of the rule of law (note my critique). In contrast, the Parliamentary Committee on the Draft Voting Eligibility (Prisoners) Bill, unequivocally asserted in its 18 December 2013 report, at [229], that ‘the United Kingdom is under a binding international law obligation to comply with the Hirst judgment…it would be completely unprecedented for any state that has ratified the European Convention on Human Rights to enact legislation in defiance of a binding ruling of the European Court of Human Rights.’

Since no amending legislation was included in the June 2014 Queen’s speech, it now looks highly likely that the May 2015 general election will be held in continuous and defiant breach of the UK’s international obligations. While, as the parliamentary committee submitted, the UK has a ‘long tradition of respect for and attachment to the rule of law’, the almost 9-year refusal to comply with the 2005 ruling of the Grand Chamber in Hirst (no. 2) has tarnished its record. It is a sad testament to the current standing of the ECHR in the UK public discourse that none of the main political parties (or indeed none of the main figures in any party) seem to mind.

All democratic states set eligibility criteria for participation in elections of their institutions of government. Broadly speaking, these criteria fall into two categories: individual competence and membership of the state’s political community. The latter criterion is manifested by ubiquitous exclusion of non-citizen residents from national (and oftentimes also sub- or supra-national) elections. Concurrently, some states impose residency requirements which disqualify their expatriates during part or all of their period of absence.

Elsewhere, Icritiqued the reasoning employed by the European Court of Human Rights in its Shindler judgment regarding the disqualification of UK expatriates from participation in UK parliamentary elections after fifteen years of residence abroad, pursuant to the Representation of the People Act 1985. Crucially, eligibility for participation in the forthcoming referendum does not mirror these criteria but, rather, those employed to determine eligibility for local government elections. Hence, Scottish expatriates who have left Scotland in the last fifteen years are eligible to vote in UK parliamentary elections wherever they currently reside, but will be excluded from the referendum.

The EU Commission is justifiably concerned about the effective disenfranchisement of EU citizens who exercise their treaty right to freedom of movement and of residence. In its 29 January recommendations to member states, the Commission noted that ‘[EU] citizens residing in another Member State can maintain lifelong and close ties with their country of origin and may continue to be directly affected by acts adopted by the legislature elected there’, and advised that ‘the rationale of policies that disenfranchise citizens should be re-assessed in the light of current socio-economic and technological realities’.

The ECtHR jurisprudence and the EU Commission’s recommendation address, in the main, electoral processes that affect the governance of an existing political unit to which expatriates qua citizens retain the internationally recognised right to return. In such circumstances, it is assumed that most of the state’s citizens reside therein, and that the geographical boundaries of the state are not affected. Independence referenda are different: they may lead to the creation of successor State(s), with ensuing ramifications for citizenship-contingent privileges of expatriates. In a talk for the Public Law Discussion Group at the Oxford Law Faculty on 14 March 2014, I shall argue that putative ab initio citizens of a putative State (pursuant to internationally accepted criteria) are significant stakeholders in a transformative referendum that may bring that putative State into being. Hence, the rationales for external voting in routine electoral processes apply a fortiori to a transformative referendum in light of its fundamental nature and its long-term impact.

]]> https://ohrh.law.ox.ac.uk/where-have-all-the-expatriates-gone/feed/ 0 4615 https://ohrh.law.ox.ac.uk/the-worrisome-casual-approach-to-disenfranchisement/ https://ohrh.law.ox.ac.uk/the-worrisome-casual-approach-to-disenfranchisement/#respond Mon, 24 Feb 2014 16:00:56 +0000 http://humanrights.dev3.oneltd.eu/?p=4649 Lord Phillips’ recent lecture at Oxford (entitled ‘The Elastic Jurisdiction of the European Court of Human Rights’) critiqued, inter alia, the application by the Strasbourg court of its long-standing ‘living instrument’ (Tyrer) ECHR interpretation to the treaty’s jurisdiction clause, Article 1 (Al Skeini, contra Bankovic).

Lord Phillips highlighted the UK’s 8.5 year breach of its binding  international obligation to abide by the Grand Chamber’s Hirst (No. 2) judgment and amend section 3 of the Representation of the People Act 1983 which currently disenfranchises all serving prisoners in all types of elections, including this May’s European Parliament and local elections.

Reflecting on his tenure as a member of the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, Lord Philips contended that, in the course of deliberations, it became apparent (to him) that ‘the question of whether some prisoners should get to vote was of comparatively minor significance’. Describing the Committee’s recommendations to amend UK legislation so that all prisoners serving sentences of 12 months or less should be entitled to vote, he opined: ‘would it really be earth shaking to give some short term prisoners the right to vote, which most of them would not bother to exercise?’ This blog addresses this seemingly causal approach to (dis)enfranchisement.

In a speech delivered at Georgetown University the day before Lord Phillips’ lecture, U.S. Attorney General Eric Holder stressed the fundamentality of the right to vote in the light of vestiges of racially motivated disenfranchisement legislation in some American States. Holder’s call was echoed by a New York Times editorial, which noted that over 6 million Americans, more than 2 percent of the otherwise eligible voting population, is currently disenfranchised. Fortunately, the number of disenfranchised persons in England and Wales is far lower (65,963 on 30 September 2013); nonetheless, ‘the vote of each and every citizen is a badge of dignity and of personhood’.

The fundamental nature of an individual prisoner’s right to vote does not depend on its exercise by all right-holders; its significance lies in the knowledge and awareness that one is a right-holder. Indeed, the claim that prisoners are not interested in voting is reminiscent of arguments made in the nineteenth century against the extension of suffrage to women. In Sauvé (no. 2) v Canada, the Canadian Supreme Court quashed legislation disenfranchising prisoners serving sentences of over 2 years. While justifying disenfranchisement, Justice Gonthier’s powerful dissent acknowledged that ‘being temporarily disenfranchised is clearly a significant measure, which is part of the reason why it carries such great symbolic weight’.

Even if serving prisoners are indeed less likely to vote than the general population (data from Israel [Hebrew] suggests otherwise), prisoners will have probably developed their disinterest or disillusionment with the political system before entering prison. Rather than lead one to dismiss the significance of voting for prisoners, low turnout should mobilise political elites to assume responsibility for furthering civic engagement. Indeed, ‘the right to elect legislators in a free and unimpaired fashion is a bedrock of the political system’.

The Scottish Independence Referendum (Franchise) Act gives rise to several franchise-based legal challenges, inter alia the exclusion in section 3 of all serving prisoners from participation in the 18 September 2014 referendum. The provision has recently withstood judicial review in the Court of Session Outer House’s judgment in Moohan, Gibson, and Gillon. Lord Glennie’s judgment relied, inter alia, on the ECtHR ruling in McLean and Cole v. UK, which interpreted Article 3 of Protocol 1 to the ECHR (A3PI) to be inapplicable to the exclusion of UK prisoners from participation in the ‘Alternative Vote’ referendum. A3PI refers to ‘free elections… which will ensure the free expression of the opinion of the people in the choice of the legislature’. Notably, however, the ECtHR has never considered a claim about denial of voting rights in an independence referendum, which arguably concerns ‘the choice of the legislature’ in the sense of which parliament is to enjoy sovereign authority in Scotland in the post-referendum era. If and when the Court of Session judgment reaches Strasbourg, a ‘living instrument’ interpretation of A3P1 may plausibly ensue.

Elsewhere, I have made the case for letting prisoners vote; I have also lamented the flimsy protection that the recent Supreme Court judgment in Chester and McGeoch provides for the right to vote in the UK constitutional order. It is high time to start taking the right to vote seriously.

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