By Ruvi Ziegler (University of Reading), GLOBALCIT Collaborator
On 23 February 2018, the Overseas Electoral Bill (the Bill’), which abolishes a 15 year limit to the franchise for non-resident citizens, passed second reading with a clear majority in the UK House of Commons and will now proceed for scrutiny by a Public Bill Committee.
It was presented as a private member’s bill by Glyn Davies MP (Conservative) and sponsored, inter alia, by Mike Gapes MP (Labour) and Layla Moran MP (Liberal Democrats).
The Bill, which amends sections 1 and 2 of the Representation of the People Act 1985, concerns the franchise in General Elections. It enfranchises non-resident UK citizens irrespective of the length of their absence or whether they were previously registered to vote in the UK, provided they had a fixed address in the UK at some point in their lives or, absent a fixed address, make a “declaration of local connection” in respect of such an address. The electoral register is updated annually, and overseas electors will be able to renew their registration, by filing a declaration.
At present, a 15-year non-residence bar applies (except in respect of servicepersons in the armed forces and Crown servants) as well as a requirement of having been previously registered with a UK address, the latter being waived for those who had left prior to the eligibility age (18 at present). Overseas voters can vote by post or proxy, or in person at their allotted polling station if they are in the UK at the time of the election.
Elsewhere, Sue Collard considers the effect of the introduction in 2014 of online registration that led to a dramatic rise from under 27,000 in December 2014 to over 285,000 by the time of the 2017 General Elections. Nonetheless, the latter figure represents (only) roughly 20% of eligible voters under the existing criteria. In response to a Parliamentary Question in February 2017, Chris Skidmore MP (on behalf of the government) ‘estimated that a further 3 million British citizens resident overseas will be enfranchised under the ‘votes for life’ proposals’ (see the House of Commons briefing paper).
The Bill does not enfranchise UK citizens born abroad who have never resided in the UK; nor does it affect the differently constituted Local Government franchise, which requires residence, and extends eligibility to EU27 citizens qua the UK’s EU membership (see my submission to the House of Lords EU (Justice) sub-committee).
The franchise for referendums is determined on an ad hoc basis. The EU (Referendum) Act which set the franchise for the 23rd June 2016 referendum on the UK’s EU membership generally followed the parliamentary franchise with two ‘tweaks’ (extending eligibility to Gibraltarians and to Members of the House of Lords who cannot vote in Parliamentary elections). Prior to the referendum, I critiqued (here and here) the arguably over- as well as under-inclusive nature of the EU referendum franchise. A legal challenge brought by 96-year-old Second World War veteran Harry Shindler (an Italian resident) based on EU law and Common Law grounds failed. In 2013, Shindler challenged the Parliamentary franchise before the European Court of Human Rights (ECtHR). I contended that the ECtHR’s upholding of the 15-year ban, relying on ‘the margin of appreciation available to the UK in regulating its parliamentary elections’ was misconceived.
Notably, even though the Conservative manifesto in both the 2015 and 2017 General Elections committed to introduce a ‘Votes for Life’ bill, it was not introduced by the party but as a private member’s bill. Indeed, despite its inclusion in the May 2015 Queen’s speech (the government’s legislative agenda), the government chose not to introduce ‘Votes for Life’ prior to the EU referendum, possibly for party political reasons. Nevertheless, Cabinet Office minister Chloe Smith MP set out the UK Government’s firm support for the bill, and its intention for the new system to apply in the 2022 General Election. In her statement, the Minister notes that ‘British citizens who live overseas find themselves abruptly disenfranchised after they have lived abroad for 15 years, even where they still feel closely connected to our country and want to take part in elections that can affect them like any other citizen’.
She further notes that non-resident citizens ‘retain strong links with the UK: they may have family here, and indeed they may plan to return here in the future. Modern technology and cheaper air travel has transformed the ability of expats to keep in touch with their home country. Crucially, decisions taken by the UK government still affect them, such as pensions policy or foreign affairs choices. These are our fellow citizens and they have every right to be involved in our country and its choice of government.’ It is noteworthy that, the governments of the day (the Conservative-LibDem coalition and Conservative government, respectively) rejected these arguments when they were put forward by Mr Shindler in legal proceedings before the ECtHR and UK courts.
Intriguingly, the Government invokes the EU referendum outcome as a reason to ‘strengthen ties with countries around the world and show the UK is an outward-facing nation’. Similar arguments were raised in the parliamentary debate, including the notion of enfranchisement as an exercise of UK ‘soft power’ in ‘an increasingly interdependent world’. The Minister suggested that extending the franchise can help ‘Britain expand international trade, especially given two-thirds of expats live outside the EU.’
Notwithstanding the Bill’s passage without division (i.e. separate counting in case of close results in a vote by verbal expression), several Labour MPs expressed varying degrees of opposition. Cat Smith (Labour), Shadow Deputy Leader of the Commons, warned about the resource implications of the change, contending that ‘[a]bolishing the 15-year rule, and therefore presumably increasing the number of British citizens overseas who can register to vote, would completely overstretch electoral administrators, who are already being pushed to the limit’. Other Labour MPs, including Jo Stevens, questioned the singularity of the Bill in light of other desirable franchise reforms which the government opposes, such as the extension of the franchise to 16 and 17 year olds. However, the only MP opposing the Bill of substantive grounds was Sandy Martin (Labour). He contended that ‘a sensible move would be towards people voting, at every level, for the polity in which they live’, while clarifying that he does not propose to exclude currently eligible voters.
Should the Bill pass, overseas voters will be voting for an MP representing a constituency in the UK, even if they have only lived in that constituency briefly, a long time ago. In the debate, Layla Moran MP (Liberal Democrat) queried ‘why we have not really considered having a constituency of overseas electors in the way that France does’. A petition attracting over 10,000 signatories (and therefore due to receive an official government response after the deadline for signatures passes on 13th March) ‘proposes to introduce votes for life and to add overseas constituencies with a dedicated MP for each constituency to better represent British Citizens living abroad’.