by Allan F. Tatham, Professor at the Faculty of Law of University CEU San Pablo
“Shindler’s Wish” Fulfilled and More? The Possibilities for Re-enfranchisement of UK nationals and EU citizens in a future People’s Vote on Brexit
In the afternoon of 25 February 2019, with just over four weeks to go before the country’s expected withdrawal from the European Union, the UK Labour Party leader, Jeremy Corbyn, finally announced his party’s support for a second referendum on the issue. Having already been passed as a resolution by the Labour Party conference in autumn 2018 and supported by the majority of party members, it no doubt took the recent resignations of MPs from the party finally to persuade the widely-regarded Eurosceptic Corbyn to swallow the bitter pill for a People’s Vote (PV) on the Brexit deal, “secured” by the cabinet of Prime Minister Theresa May.
However, within the furore caused by his change of heart still hanging in the air, even if (and, at this stage, it is still a very big “if”) the UK Parliament were to vote in favour of a second popular vote, several points will need to be addressed anew.
Article 50 TEU and the notification of withdrawal
As regards the process already notified under Article 50 TEU nearly two years ago, the European Council would need to be asked formally to extend the process (by unanimity) in order to allow for the holding of the PV. The UK Parliament would have time to debate and to pass a statute dealing with the details of this specific PV as well as to allow for a campaign period and the vote itself. And if that vote resulted in a majority to remain, the UK would then be in a position to revoke the 2017 notification for withdrawal, unilaterally, in an unequivocally and unconditional manner, by a notice addressed to the European Council in writing as recently determined by the Court of Justice in Wightman..
What a Popular Vote needs to address
What still remains of concern are the “leftovers” from the original Brexit referendum, matters that would again need to be addressed in the PV. The present author, in the lead up to the 2016 referendum, had already noted various aspects that the UK Parliament had considered and rejected in voting on the necessary statute to be able to hold that vote. They included:
(i) Whether the UK alone should be considered as forming the electoral area or a “double-lock” should apply. In the latter case, the four nations – England, Scotland, Wales and Northern Ireland – as well as Gibraltar would be counted individually with the requirement that a majority (one way or the other) should be gained not just in the UK but also by three out of the five entities voting in favour. To the criticisms of holding England to ransom by the other four, England has held at least three of them (Scotland, Northern Ireland and Gibraltar) to ransom since the 2016 referendum because all of them voted by a majority to stay in the EU.
(ii) The need to determine expressly that the PV is advisory or binding in the statute. The 2016 Referendum Act was non-binding and only turned into a binding one when all the parliamentary parties committed to respect the result.
(iii) The need to determine whether a simple or a qualified majority of votes will be needed in order to confirm the decision of the electorate. If a qualified majority had been used in the 2016 referendum, the UK would not have started on the path to EU secession. In the present circumstances, it can now be argued that a simple majority will suffice as that is what had been used three years ago – with all the doubts as to the legitimacy of the result if only a few percentage points are in it.
Setting the voting limits – temporally, ethnically and geographically
But perhaps the most important matter to resolve is: Who will actually vote? The previous referendum used the UK rules on voting in national elections with Gibraltar added on. That meant only those UK nationals could vote who were resident in the UK and Gibraltar on the date of the vote or who had been living not more than 15 years outside the UK. In addition, as at all national elections, Irish citizens and Commonwealth citizens could also vote. As a result:
a) EU citizens living in the UK for years, who had not acquired British nationality, were excluded apart from Irish citizens and those from Malta and Cyprus with the latter two groups qualifying as Commonwealth citizens. This was unlike the Scottish Independence referendum in 2014 where EU citizens had the right to vote;
b) UK nationals living in the EU for more than 15 years, having taken up the right to free movement, were disenfranchised too. Such loss of vote does not occur in many other EU Member States, e.g., the right to vote stays with the citizenship as it does in France and in Spain; and
c) Commonwealth citizens, even if only in the UK for a year’s study, were allowed to vote and they constituted a potential group of one million persons. This anomaly (UK nationals do not have reciprocal rights to vote in most other Commonwealth countries apart from Mauritius and the Caribbean) has been sought to be removed.
In response to the unsuccessful European and later UK litigation, launched by Mr. Harry Shindler, a British national living in Italy for many years, the Conservative Party – under both David Cameron and Theresa May – promised to remove the 15-year time limit for voting in national elections. That promise has not so far been fulfilled.
Shindler II: A Way Forward? Redressing Wrongs
The possibility of giving the electorate a PV on the current Brexit deal gives the UK Parliament the opportunity of righting this wrong and of possibly correcting another that could have positive social consequences.
The Court of Justice in Wightman underlined “the importance of the values of liberty and democracy” as being among the common values of the Union in Article 2 TEU and in the preamble to the Charter on Fundamental Rights, thereby forming part of the very foundations of the Union. The Member States have freely and voluntarily committed themselves to those values and EU law is thus based on the fundamental premise that each state shares with all the others, and recognizes that they share with it, those same values. Moreover, the Court noted:
[S]ince citizenship of the Union is intended to be the fundamental status of nationals of the Member States […], any withdrawal of a Member State from the European Union is liable to have a considerable impact on the rights of all Union citizens, including, inter alia, their right to free movement, as regards both nationals of the Member State concerned and nationals of other Member States.
Now that the Withdrawal Agreement has been concluded, it is clear how serious that loss of rights will be: UK nationals, in particular, will lose their onward right to free movement in EU Member States other than the one in which they reside; and EU citizens will be offered a (putative) “settled status” in the UK.
In this way, it can be argued that as UK nationals in the EU-27 are going to be in no better position than their compatriots in the UK are (and will, in fact, be in a worse position than EU citizens in the UK who will at least retain the right to move among the EU-27). In such situation, as they are indistinguishable from one another in their loss of rights linked to EU citizenship and membership, they should be treated in the same way and be allowed to vote in any future PV.
As regards EU citizens resident in the UK, it might well be argued that the Scottish referendum electorate was a great deal more inclusive than that in the Brexit referendum of 2016. Such citizens will clearly also lose much on UK withdrawal from the EU and should not be discriminated against, then in the interest of the EU’s values of liberty and democracy (as well as equality), they too should be given the right to participate in a PV. After all, they have voted in local and European parliamentary elections since 1979 without a problem. Indeed, by treating EU-27 citizens on a level with UK nationals, the UK would go some way to addressing officially the unequal treatment and rise of xenophobia that EU citizens have experienced since June 2016, whether institutional or otherwise.
Evidently, these thoughts are based optimistically on what might occur in the coming weeks in the UK. The chances are still stacked in favour of Brexit, whether hard or soft, at the end of March 2019.
 Jessica Elgot, “Jeremy Corbyn: we’ll back a second referendum to stop Tory no-deal Brexit,” The Guardian website, 25 February 2019: <https://www.theguardian.com/politics/2019/feb/25/labour-to-back-moves-for-second-brexit-referendum>, retrieved 26 February 2019.
 “Labour conference: Members vote to keep referendum option open,” BBC News website, 25 September 2018: <https://www.bbc.com/news/uk-politics-45631792>, retrieved 26 February 2019.
 Paul Mason, “Brexit: Labour must let its members decide its next step,” New Statesman website, 9 January 2019: <https://www.newstatesman.com/politics/uk/2019/01/brexit-labour-must-let-its-members-decide-its-next-step>, retrieved 26 February 2019.
 Jo Watts, “Labour MPs quit party in disgust at antisemitism, Jeremy Corbyn’s leadership and Brexit stance,” The Independent website, 18 February 2019: <https://www.independent.co.uk/news/uk/politics/labour-mp-resign-leave-party-corbyn-luciana-berger-brexit-chuka-umunna-a8784186.html>, retrieved 26 February 2019.
 Council of the European Union, Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community: 2018 OJEU C66 I/01, page 1.
 While the general rules governing referendums in the UK are contained in the Political Parties, Elections and Referendums Act 20002, the details of the EU referendum itself were legislated into life by a separate statute, the EU Referendum Act 2015: Allan F. Tatham, “The constitutional challenges that the Brexit negotiations have created in the United Kingdom: An overview” (2018) 59 Revista de Derecho Comunitario Europeo 263, at 266.
 Case C-621/18, Wightman v. Secretary of State for Exiting the European Union, ECLI:EU:C:2018:999, at paragraph 75.
 Allan F. Tatham, ““‘The Art of Falling Apart?’: Constitutional conundrums surrounding a potential Brexit,” CSF-SSSUP Working Paper Series, No. 2/2015, Centre for Studies on Federalism, Turin and Scuola Superiore Sant’Anna, Pisa (2015): <http://nuovo.csfederalismo.it/it/pubblicazioni/csf-sssp-wp-series/1128-the-art-of-falling-apart-constitutional-conundrums-surrounding-a-potential-brexit>.
 Ibid., at 7-9.
 In fact, the 2015 European Referendum Act contained no provision requiring the British government to implement its results or indicating a time limit for implementing a vote to leave the EU and thus amounted to an advisory as opposed to a mandatory referendum. This may be compared to the referendum on the introduction of the alternative voting system for British parliamentary elections, the statute for which expressly provided that such a system would have come into force if there had been a majority of “Yes” votes cast in the referendum (Parliamentary Voting System and Constituencies Act 2011, section 8).
 The vote was 51.9% in favour of leaving and 48.1% against: The Electoral Commission, EU referendum results, June 2016: < https://www.electoralcommission.org.uk/find-information-by-subject/elections-and-referendums/past-elections-and-referendums/eu-referendum/electorate-and-count-information>, retrieved 26 February 2019.
 Allan F. Tatham, “The Legitimacy of Discriminatory Disenfranchisement? The Impact of the Rules on the Right to Vote in the Bremain/Brexit Referendum” (2016) 8/1 Perspectives on Federalism, Editorial, I-XI: <http://www.on-federalism.eu/attachments/234_download.pdf>, retrieved 26 February 2019.
 Sections 1(1),(2) of the 1985 Representation of the People Act, as amended by the Representation of the People Act 2000. The relevant period was 5 years in the 1985 Act as originally enacted, was increased to 20 years by the Representation Act 1989, and then reduced again to 15 years by the Political Parties, Elections and Referendums Act 2000.
 Tatham, note 13 above, at III-IV.
 Out of the 53 states currently in the Commonwealth, only the following (largely Caribbean) states grant such reciprocal voting rights to British citizens: such citizens can vote in Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Mauritius, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, and Trinidad and Tobago. New Zealand gives the right to vote to foreign citizens only if they are granted permanent residence status while in Malawi foreign citizens who have been resident for seven years can vote.
 In 2007 the then Prime Minister, Gordon Brown, commissioned Lord Goldsmith to review British citizenship laws which are complex and incoherent. The terms of reference included a review of the role of citizens and residents in civil society as well as voting rights. In his report, Lord Goldsmith concluded that current British citizenship laws were the result of a succession of changes introduced to deal with the former Empire as those countries gained independence after the Second World War. The result was a confusing set of citizenship laws with various anomalies and he proposed, inter alia, the phasing out the right of Commonwealth citizens to vote in general elections: Lord Goldsmith, Citizenship: Our Common Bond, Citizenship Review (2008), at 74-76: <http://image.guardian.co.uk/sys-files/Politics/documents/2008/03/11/citizenship-report-full.pdf>, retrieved 26 February 2019.
 Shindler v. United Kingdom (2013) 58 European Human Rights Reports 9.
 Shindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs  England & Wales High Court 957 (Administrative Court).
 Elizabeth Roberts, “Tories pledge to give vote back to all expats,” The Daily Telegraph website, 1 September 2014: <https://www.telegraph.co.uk/expat/expatnews/11068438/Tories-pledge-to-give-vote-back-to-all-expats.html>; and Matt Dathan, “Expats will be given a ‘vote for life’ as Tories unveil plan to lift the 15-year limit that has barred 3million Britons from voting in general elections,” The Daily Mail website, 7 October 2016: < https://www.dailymail.co.uk/news/article-3827249/Expats-given-vote-life-Tories-unveil-plan-lift-15-year-limit-barred-3million-Britons-voting-general-elections.html>, both retrieved 26 February 2019.
 Steven Wilson, “May Promises To Lift Expat Vote Ban Before Next Election,” Money International, 28 September 2016: <http://www.moneyinternational.com/news/may-promises-lift-expat-vote-ban-next-election/>, retrieved 26 February 2019.
 Vincent Wood, “Brits abroad for longer than 15 years WILL NOT get a vote in election despite Tory pledge,” The Express website, 22 April 2017, updated 15 May 2017: <https://www.express.co.uk/news/uk/795003/Can-I-vote-from-abroad-UK-general-election-2017-British-expat-national-citizen>, retrieved 26 February 2019.
 Wightman, note 7 above, at paragraphs 62-63.
 Ibid., at paragraph 64. This had also been noted by the UK Supreme Court in R. (on the application of Miller) v. Secretary of State for Exiting the European Union  United Kingdom Supreme Court 5, at paragraphs 69-70. See also Tatham, Note 6 above, at 275-276.
 United Kingdom Government, “The United Kingdom’s exit from the European Union: safeguarding the position of EU citizens living in the UK and UK nationals living in the EU,” Policy Paper, 26 June 2017, at paragraphs 17-22: <https://www.gov.uk/government/publications/safeguarding-the-position-of-eu-citizens-in-the-uk-and-uk-nationals-in-the-eu/the-united-kingdoms-exit-from-the-european-union-safeguarding-the-position-of-eu-citizens-living-in-the-uk-and-uk-nationals-living-in-the-eu>, accessed 26 February 2019.
Pictures credits: London… by David Holt.