Who is eligible to vote in the EU Referendum?

Jo Shaw, University of Edinburgh

Determining who can vote in specific elections is usually a dull topic that doesn’t garner much attention. Yet, the UK government’s announcement regarding voting eligibility for the EU Referendum unexpectedly became a hot topic in May 2015. This announcement aimed to quell the growing debate on the issue.

The announcement declared that the referendum would utilize a modified Westminster franchise, resembling the UK’s national election system. This meant eligible voters included residents of the UK, Ireland, and Commonwealth citizens, along with UK citizens residing abroad for less than 15 years. Additionally, members of the House of Lords and Gibraltar residents were granted voting rights, adopting elements from the European Parliament election model. However, three groups were excluded: UK citizens living abroad for over 15 years, EU citizens residing in the UK who are eligible to vote in European Parliament and local elections, and residents aged 16-17.

This decision sparked political controversy in the UK. The first excluded group felt betrayed by a Conservative party promise to eliminate the 15-year expatriate voting ban. The latter two groups, allowed to vote in the Scottish independence referendum, felt unjustly sidelined, especially with 16-17 year olds gaining voting rights in future Scottish elections.

Decisions regarding voting rights often blend principle and practicality. Unlike many countries, the UK grants voting rights in national elections to non-citizens. Historically, individuals considered “subjects” of the Crown retained their voting rights even as the UK’s boundaries changed with the end of the empire and Ireland’s independence. This practice clashes with the concept of national citizenship that draws a clear line between those included and excluded.

Since 1980, allowing some non-resident citizens to vote aligns the UK with a global trend of granting voting rights to citizens abroad. However, most countries offer more expansive voting rights to this group. The European Commission recommended in 2014 that the UK and four other EU members reconsider their policies and grant more generous voting rights to external voters, particularly those residing within the EU. This aimed to prevent situations where individuals residing abroad for over fifteen years, who haven’t obtained citizenship in their host country, would be unable to vote in any national elections.

The UK also adopts a distinct approach to granting voting rights to non-UK EU citizens residing in the country. While EU law mandates this only for local and European Parliament elections, UK law extends these rights to elections for devolved assemblies. This means EU citizens have voted not only in the Scottish independence referendum, but also in previous referendums leading to devolution, with the exception of the Northern Ireland referendum which used the Westminster franchise. No other EU member state provides this level of enfranchisement to non-national EU citizens; they require long-term resident EU citizens seeking to vote in most regional and national elections to obtain citizenship through naturalization, a process that can be complex and may even lead to forfeiting their original citizenship. Expanding voting rights for EU citizens based on residency has been a topic of debate, but a European Citizens’ Initiative failed to generate significant political momentum across the EU.

While the initial proposal to grant voting rights to 16-17 year olds in the Scottish independence referendum was met with skepticism, perspectives on this issue have shifted significantly within Scotland. It’s generally believed that their inclusion didn’t considerably alter the referendum’s outcome. Although their turnout was likely higher than the 18-24 age group, their inclination to vote ’no’ was probably marginally higher. However, the concept of empowering young adults in this manner and ensuring they comprehend the significance of their choices, particularly within educational contexts, has become an accepted aspect of Scotland’s ongoing political evolution.

The lack of a consistent “membership model” for elections and referendums in the UK results in confusion. The Scottish referendum franchise, which included various residents of Scotland but excluded those born in Scotland residing elsewhere in the UK or abroad, exemplifies this. The latter group would have gained Scottish citizenship if the ‘Yes’ vote had prevailed, alongside retaining their UK citizenship. This approach was widely considered a necessary compromise for conducting the vote. Despite complaints from “expat Scots,” no legal challenges materialized – for good reason. Similar to the EU referendum, the Scottish referendum’s franchise was determined by the legislation enabling it. The UK lacks formal constitutional provisions for referendums. Moreover, there are no EU or international human rights laws that would prevent the legislature from freely selecting from existing electoral rolls, including those used for local, devolved, Westminster, and European Parliament elections. This opens the door for political bargaining regarding the franchise.

Those advocating for a specific franchise in any election or referendum are aware that their choice could significantly impact the outcome. By excluding EU citizens, Prime Minister David Cameron was seen as appeasing Euroskeptics within his own party. Conversely, those advocating for the inclusion of EU citizens may be motivated not only by the principle that these individuals have been residents and taxpayers for an extended period and will be significantly affected by the decision, particularly regarding their personal status, but also by the belief that this group might favor remaining in the EU. It’s worth noting that registration and participation rates among non-national EU citizens residing in the UK are lower than UK citizens, although certain groups clearly value their voting rights and the opportunity to participate in the EU referendum. Even with participation rates matching those of UK citizens, they would likely represent less than 5% of the total electorate. As highlighted previously, they have the option of acquiring UK citizenship before the referendum if they wish to vote. External voters also remain a challenging group to engage, consistently demonstrating lower participation rates. While those residing within the EU might be inclined to support continued membership to safeguard their own status, this remains uncertain. Engaging resident 16-17 year olds proves less difficult, but some question their eligibility to vote despite a growing international trend of lowering the voting age and Scotland’s positive experience in this regard. The experience in Scotland suggested that their voting preferences may not differ significantly from the broader voting population.

There are no definitive right or wrong answers regarding the scope of the franchise. However, the uncertainties surrounding this issue are compounded by uncertainties about the referendum’s subject and timing. Unlike the Scottish referendum, where the terms of the vote were relatively clear despite clarifications during the campaign, the EU referendum is more ambiguous. This ambiguity stems from the uncertainty and secrecy surrounding the UK government’s diplomatic efforts to negotiate adjustments to the UK’s EU membership terms. These potential “adjustments” are unclear, especially their legal form, and skepticism exists about the significance of these negotiations. Many individuals in the UK have already decided their stance on EU membership, regardless of Cameron’s “deal.” This “deal” appears to be a political strategy for David Cameron and George Osborne to prevent their Conservative Party from fracturing over internal divisions on the European Union. It doesn’t address a desire held by many EU citizens across the EU—a comprehensive, transnational reassessment of whether the current legal and political framework for European economic integration remains suitable as we enter the mid-21st century. In this context, non-UK EU citizens residing in the UK may feel doubly excluded if they are denied voting rights. Not only can they not participate in the referendum, but they may also perceive it as failing to address the core issues that concern them.

See also Steve Peers’ comments on this issue

This blog previously appeared on the British Influence site

Image credit: Daily Telegraph

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