(Dis)enfranchisement and the Exercise of EU Free Movement Rights

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• Aidan O'Neill QC
• Wednesday 17 February 2016, 12:45-14:00
• Faculty of Law B16.

If you have a question about this talk, please contact Prof Kenneth Armstrong.

This paper considers the issue of disenfranchisement operating as a possible disincentive to the exercise of free movement rights. It looks at whether and how Member States’ rules of electoral law can fall within the ambit of EU law and, if so, how they might be justified for their compatibility with EU law. The specific situation examined is the disenfranchisement from national elections and constitutional referendums in their Member State of origin for those who have exercised their free movement rights within the EU; with particular focus on the situation in relation to the UK’s Brexit referendum. The paper highlights that the individuals arguably most affected by the result of this referendum are British citizens who have exercised their free movement rights and now live elsewhere in the EU (some 2.2 million people) and separately nationals of other Member states who have exercised their EU free movement rights to move to the UK (some 2.3 million people). But the franchise for the Brexit Referendum denies the vote to British nationals living abroad (if they have been away for more than 15 years) and excludes all and any EU citizens living in the UK from the right to vote, unless they happen to hold Irish, Cypriot or Maltese nationality. Non-EU Commonwealth citizens resident in the UK are given the right to vote, despite the fact that the result of the referendum has no effect on their rights or status, since they have no rights which they can claim directly under EU law. The Brexit referendum franchise, then, seems both over-inclusive (in covering Commonwealth citizens who will be unaffected by it) and under-inclusive (in excluding non-Commonwealth EU citizens and British nationals who are long term resident elsewhere in the EU, whose rights and status will be directly affected). The question raised in this paper is whether the Brexit referendum franchise might be said to be unlawful as a matter of EU law because disproportionate and/or discriminatory.

This talk is part of the Centre for European Legal Studies Lunchtime Seminars series.

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