The ‘Brexit’ Referendum: We Need to Talk about the (General Election) Franchise

In its 27 May 2015 Queen’s speech, the Conservative government announced that ‘early legislation will be introduced to provide for an in/out referendum’. The following day, it introduced the European Union Referendum Bill, which passed its third reading in the House of Commons on 7 September 2015 (by 316 votes to 53). The second reading in the House of Lords is scheduled for 13 October 2015. Following the recommendation of the Electoral Commission, the initially proposed question: ‘Should the UK remain a member of the European Union?’ was replaced with an arguably more neutral question: ‘should the UK remain a member of the European Union or leave the European Union’.

Section 2 of the Bill stipulates that the franchise for the referendum will follow eligibility for voting in a UK general election (modified to enfranchise Peers and Gibraltar residents). All proposed amendments were withdrawn or failed to secure a majority. The referendum franchise invites serious reflection on the anomalies of the current general election franchise.

Two anomalies

The first anomaly concerns UK citizens who habitually reside outside the UK. Pursuant to the Representation of the People Act 1985, they are disenfranchised after a period of 15 years of non-residence. There are over 2 million UK citizens living elsewhere in the EU. In 2013, the Fourth Section of the European Court of Human Rights (ECtHR) declined to hold that the legislation violates Article 3 of Protocol 1 (A3P1) of the ECHR (the petitioner, British army veteran Harri Shindler, received an MBE in 2014). Elsewhere, I critiqued the Strasbourg court’s timidity in scrutinising voting eligibility legislation, inter alia, regarding ‘the Shindler question’.

Notably, the 2015 Conservative party manifesto pledged: ‘we will introduce votes for life, scrapping the rule that bars British citizens who have lived abroad for more than 15 years from voting’ (ibid p49) ...

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