No vote for you if you’re from the EU!

Photo by Element5 Digital on Unsplash

On 23 June 2016, the British electorate voted to leave the European Union. Almost 3 years later, the UK remains a member state of this organisation – despite the fact that 31 March 2019 was supposed to be “Brexit Day” as laid down in the European Union (Withdrawal) Act 2018.

This date has now been pushed back to 31 October 2019 by agreement with the other 27 member states.

As I have stated in previous blogs, while the UK remains an EU member state it must continue to comply with its membership obligations.

This has meant that the UK had to hold European Parliamentary elections on Thursday 23 May 2019 – something which the British Government had hoped to avoid.

This was not the only controversy which dogged this election: a large number of European citizens reported that they had been denied the right to vote last Thursday. Was this a case of the conspiracy or cock-up theory? Probably the latter, but it has meant that a lot of people who should have been allowed to exercise their democratic right were prevented from doing so last Thursday. A number of reasons for this chaos have been suggested: lack of preparation by electoral officials; incomplete paperwork; and a lack of clarity from the UK Government.

The Maastricht Treaty 1992 (official title: the Treaty on European Union) established the concept of a common European citizenship. Part of this would entail the right of European citizens living in another member state to participate in certain elections.

EU citizens ordinarily resident in the UK, and in Scotland particularly, are entitled to vote in council, Scottish Parliament and European Parliament elections. In 2014, the Scottish Government also permitted EU citizens to participate in the Scottish Independence Referendum.

In order for these rights to be implemented, the Representation of the People Act 1983 had to be amended by the Westminster Parliament in order to comply with our European legal obligations. As a point of interest, all the other member states would have had to amend their domestic legislation governing elections to implement the rights given to European citizens by the Maastricht Treaty.

Extending the right to vote in national, general elections was opposed by many member state governments at the time of the negotiations which led to the Maastricht Treaty. It has always been the case that EU citizens living in the UK have not been allowed to cast a vote in a British General Election. This was taking the concept of shared European citizenship just a little too far – even back in the heady days of the Maastricht Treaty when Brexit seemed unthinkable.

Admittedly, the UK and the Republic of Ireland have, for a very long time, permitted their citizens to vote in each state’s elections. Ironically, this arrangement will continue to function even after Brexit has been achieved.

The failure to ensure that European citizens were able to vote in last Thursday’s elections might also represent a potential breach of Article 18 of the Treaty on the Functioning of the European Union i.e. no discrimination on the grounds of a person’s nationality. If this is the case, expect the European Commission to initiate enforcement proceedings, in terms of Article 267 TFEU, against the UK for failure to uphold the civil and political rights of European citizens living in this country.

A link to a report about EU citizens being denied their right to vote in the European Parliamentary elections can be found below:

EU citizens in UK complain of being denied vote in European elections

Copyright Seán J Crossan, 25 May 2019

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A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. I am a graduate and postgraduate of the Universities of Dundee, London and Strathclyde. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult a suitably qualified Scottish solicitor who will be able to provide you with the support that you require.

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