This article was written in May 2015 by a lawyer friend of mine and is as relevant today.
The result of the UK election was meant to be much closer. If it had been closer, the rule which prevents British expats who have been abroad for more than 15 years from voting in Parliamentary elections may have come under renewed scrutiny.
The size of the British community abroad is estimated at 5.6 million. Most expats leave the UK for work-related reasons, taking their families with them. Mixed-nationality marriages are also a factor in emigration decisions, as well as the wish of many British pensioners to retire abroad. Thanks to exchange programs, the number of students travelling around the world to experience life abroad has increased significantly in recent years. In our ever more globalized world, borders are disappearing.
These “British Expats” are unofficial but precious ambassadors, promoting British values to their host countries. They make an invaluable contribution to the diffusion of their culture, disseminating the “British Way of Life” by projecting an image of their “Britishness” around them. In the view of the Institute for Public Policy Research, “British abroad are not a burden or an embarrassment: they are in many ways the best of the UK and we should be proud and supportive of them”.
However, their political situation is overshadowed by the fact that they lose their right to vote in the United Kingdom after they have been living abroad for more than 15 years, no matter how frequently they return to visit their home country. Exceptions exist for the military, civil servants and British Council employees, but all other British expats cannot vote under the current UK law. While most developed countries such as France, Spain, Switzerland or the USA have recognized their own expat population by giving them an unrestricted right to vote in national elections, the United Kingdom seems to be one of the few countries with this type of restrictive rule.
How the law changed
Before 1985, British citizens living outside the United Kingdom were unable to vote in UK Parliamentary elections. Following intensive pressure, the Representation of the People Act 1985 finally gave them the right to vote. They could register as “overseas voters” in the constituency where they last lived in the UK. But, 1985 also marked the beginning of a ‘time limit’ during which British expats would be able to remain on the electoral register. This period was shortened and extended, but has never been unlimited.
The Representation of the People Act 1985 made provision for British citizens residing outside the United Kingdom to remain on the electoral register in the UK for a period of 5 years. In 1989, this period was extended to 20 years. In 2000, it was decided to reduce it to 15 years, with effect from 1 April 2002, leading to the rule that applies today.
A discriminatory and arbitrary rule, according to most British expats
Due to this, pressure groups have been created to plead for the abolition of the 15-year rule. They claim that the legislation is discriminatory, arbitrary and serves no useful purpose.
They consider it to be discriminatory because not all British expats are concerned by the legislation. As indicated previously, members of the armed forces, Crown servants and employees of the British Council are exempted from the rule. Besides, in accordance with European Union Treaties, all European citizens have the right to live and work in another state of the EU. These fundamental rights should not be subject to any restrictions or penalties. They accuse the UK of acting in a discriminatory fashion by penalising the right of free movement of its citizens, whilst most other developed countries do not.
They also consider it an arbitrary treatment because the cut-off point has been fixed without a concrete objective or justified basis on which to determine who should have the right to vote. The Government used to claim that people who have lived abroad for over 15 years are likely to lose links with the UK. However, in today’s world of increasing global communication, this argument does not seem appropriate any more.
Comparison with other countries
Unlike the UK, most advanced democracies have granted their expat population an unrestricted right to vote in national elections.
In June 2012, French people abroad were able to vote for their MPs for the first time. Around the world, 11 constituencies were created.
Spanish expats’ rights are guaranteed by article 68 of the Constitution. In Portugal, according to the Constitution, the single-chamber Assembly of the Republic is “the representative assembly of all Portuguese citizens”. Thus, expats have the same right to vote in elections for the Assembly as citizens living in Portugal. Italian expats are represented in both chambers of the parliament and elect 65 representatives to the ‘Consiglio Generale degli Italiani all’Estero’. The United States also guarantee their expat population’s political rights.
Efforts to reform
Faced with this situation, some national and European politicians have asked for the law to be reviewed or, at least, debated.
“The exercise of the freedom of movement should not result in losing an important democratic right” says Viviane Reding, European Commissioner for electoral rights, in her factsheet “Promoting your electoral rights”. “Although EU law grants EU citizens the right to participate in municipal and European elections in the Member State where they reside, it provides no such right with regard to national elections. (…) Given that EU citizens of those Member States are not able to participate in any national elections (neither in the Member State of origin not in the Member State of residence), they are deprived of one of their most important political rights just because they exercise their right to free movement. (…) The Commission will launch a discussion to identify political options to prevent EU citizens from losing their political rights when they exercise their right to free movement.”
A short debate in the House of Lords on voting arrangements for British citizens living overseas and members of the armed forces serving abroad was held on 2nd March 2011. Viscount Astor, arduous defender of the overseas voters’ electoral rights (“This 15-year rule is unfair and excludes perhaps half the expatriates living overseas. There is no credible reason for that.”), asked whether the Government would consider changing the voting arrangements that were currently in place. He called on the Government to look again at the 15-year rule. Lord Lester of Herne Hill agreed with him and has previously asked the Government to legislate to change the rules.
More recently, calls have been made for the Government to reconsider this rule. The issue was raised during the passage of the Electoral Registration and Administration Bill 2012-2013 in the House of Commons. Conservative Geoffrey Clifton-Brown proposed that a new clause should be added to the Bill to remove the 15-year limit rule: “the new clause would remove this qualifying period altogether, so that all British citizens could qualify as overseas voters, regardless of when they were last resident in the UK”.
The Parliamentary Secretary, David Health, replied that the Government would give the issue “serious consideration” but that it would not rush into a decision, “not because of any wish to obstruct, but simply because the question of extending the franchise is a fundamental one and both the Government and the House would have to feel comfortable with doing that”. The amendment was subsequently withdrawn.
The Bill received its second reading in the Lords on the 24th July 2012 and Lord Norton of Louth raised the issue of overseas voters during the debate. Lord Lexen also called for the 15-year rule to be abolished: (…) I urge strongly that the scope of the Bill be extended, as my noble friend Lord Norton of Louth argued, by adding to it provision to enable all our fellow subjects of Her Majesty who live abroad to vote in our parliamentary elections. This would end the 15-year limit rule, for which no clear rationale has ever been offered (…)”.
Lord Wallace of Saltaire responded for the Government and said there were no plans to extend the 15-year limit rule: “The Government does not have any plans at the present moment to lengthen the period from leaving the country beyond 15 years, nor do we have any really ambitious plans to do what is done in some other countries, which is to allow voting in embassies and consulates. However, the electoral period will help”.
The entrenched position of the Courts
The feeling of not being understood and being prejudiced in the execution of one of their fundamental rights has encouraged some expats to challenge the rules before the courts.
Two cases were brought recently.
The first case concerned James Preston, a British citizen living with his family in Spain and working for UK companies since 1995. In 2009 he was denied the right to vote in Parliamentary elections, having lived outside the UK for 15 years. He went to the High Court in 2011, asking for judicial review of the legislation but his case was dismissed. His application to take his case to the Court of Appeal was denied in 2012. Lord Justice Elias said he appreciated Mr. Preston and other expats were “genuinely upset about the rule”, but that there was no real evidence that “it does create a barrier of any kind to freedom of movement”. “It is inherently unlikely that the loss of the right to vote would be sufficient to cause expats to up sticks and return to the UK”, he added.
The second case was brought by Harry Shindler, a World War II veteran who retired to Italy in the early 1980’s. He took his case to the European Court of Human Rights in Strasbourg, alleging a violation of Article 3 of Protocol No. 1, which provides that: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”.
He claimed that no time-limit should be imposed on expats’ voting rights. He considered he should have the right to choose his place of residence without being disenfranchised. “Universal suffrage is set out in the Universal Declaration of Human Rights. Universal to my mind, and in every dictionary I’ve seen, means ‘everybody’”. “Expats abroad pay their taxes at home. There are those who have property and haven’t sold it because they believe they’ll be coming back. They pay taxes on that property. They pay council tax. The pensions we get, government and private, come from the UK and those pensions, when they reach a certain limit, are taxed in the UK. So here we have expats who pay their taxes and are not allowed to vote. It’s unacceptable.”
However, the court in Strasbourg rejected his case, ruling that the 15-year limit was “not an insubstantial period of time” and it was up to the British Government whether to choose a cut-off point. Therefore, in the court’s view, the 15-year rule does not violate the right to free elections.
In view of the positions of both the courts and the Government, it seems British expats are stuck in a situation where, after 15 years abroad, they may still pay taxes in the UK, still feel British and strongly linked to their home country, but cannot vote in British elections; nor in their host country’s national elections either.
In November 2011, the Government said Mr. Shindler is not a ‘victim’, since “it was open to him to take Italian citizenship and acquire a right to vote in elections to the Italian national parliament”.
David Burrage, an ex-soldier and policeman who co-founded the British Expats Association of Spain, commented: “When I consider that Harry had jumped ashore and onto the beaches at Anzio and offered up his life, like so many of our brave servicemen, during World War II, when viewed alongside the conduct of our Government, by way of that most recent response on their behalf, it not only makes me feel ashamed, I also feel utterly disgusted”.
Although this statement dates from 2011, it still expresses the feelings of many British expats.
Neil Robertson
Solicitor, England & Wales
Avocat au Barreau de Paris
May 2015