Mark Bassett is a barrister in independent practice In Northern Ireland. He has taught EU law at the Queen s University Belfast School of Law.

Transcription

1 1

2 2 Mark Bassett is a barrister in independent practice In Northern Ireland. He has taught EU law at the Queen s University Belfast School of Law. He was commissioned to write this piece to assist submissions to the Constituency Commission.

3 Right to Vote in European Parliament Elections for Irish Citizens Resident in Northern Ireland 3

4 4 A. INSTRUCTIONS 1. I have been asked to consider how Irish citizens resident in Northern Ireland can continue to exercise their right to vote in future elections to the European Parliament after the withdrawal of the United Kingdom from the European Union. 2. This opinion was sought to assist submissions to the Constituency Commission. The current Chair is Mr. Eoghan Murphy TD (Minister for Housing, Planning and Local Government). The additional members are the Secretary General of the Department of Housing, Planning and Local Government (Mr. John McCarthy), the Ombudsman, (Mr. Peter Tyndall), the Clerk of the Dáil (Mr. Peter Finnegan), and the Clerk of the Seanad (Mr. Martin Groves). 3. The Constituency Commission is established by part II of the Electoral Act (1997). Pursuant to section 6(1) it shall be the function of the Commission to make a report in relation to the constituencies for (a) the election of members of the Dail; and (b) the election of representatives to the European Parliament. 4. In preparing a report under section 6(1)(b) the Commission is required to have regard to the following: The total number of representatives to be elected in the State to the European Parliament There shall be reasonable equality of representation as between constituencies Each constituency returning three, four or five members Breaching of county boundaries shall be avoided as far as practicable Each constituency shall be composed of contiguous areas Geographical considerations such as physical features and density of population The desirability of maintaining continuity in the arrangement of constituencies 5. At the outset it is important to note that while the Commission is obliged to have regard to these matters, it can consider other legally and politically relevant matters. Also, the power to determine the constituencies does not lie with the Commission but rather with the Oireachtas. 6. The Constituency Commission is a body established by law for the purpose of ensuring representation in the Dail and the European Parliament. As well as an obligation to have regard to the statutory factors set up above, it should be viewed as a body whose responsibilities include the promotion of the values contained in Bunreacht na heireann and the EU Treaties. It is a necessary implication of the 1997 Act that the Commission will also have regard to the principles of equality, democracy and unity in the Constitution, the citizenship regime in Irish law, international human rights law and values of the equality of citizens and representative democracy in the EU Treaties. 7. The possibility of Northern Ireland retaining representation in the EP has been raised by a number of elected politicians both in the Republic 1 and 1

5 5 in the north 2. It has also been discussed in the European Parliament itself The most recent elections to the EP took place in May of A total of 751 MEPs were elected. This included 11 members from the jurisdiction of the Republic of Ireland and 73 members from the United Kingdom. The composition of the current Parliament was decided by a decision of the Council As a result of UK withdrawal from the European Union, the number of MEPs is to be reduced from the current total of 751 to of the UK seats are to be reallocated to 14 member states which have been judged to be underrepresented. Ireland is to receive an additional 2 members. 46 seats will not be allocated so as to allow for future enlargement. At the time of writing the Council decision has not yet been published in the Official Journal The economic risks presented by Brexit for the entire island of Ireland have been the subject of much discussion. The benefits of the EU internal market and customs union have assumed a prominence in public debate which was lamentably absent from the referendum campaign. Also, the population of Northern Ireland has become increasingly conscious to the potential loss of many economic and social rights to which they have grown accustomed 6. In particular, the stated intention of the current British government to end the application of the Charter of Fundamental Rights for the European Rights in domestic UK law can only be interpreted as an attempt to permit the State to do things that EU law currently prohibits The focus of this opinion, however, is on the retention of one particular civil right to a large section of the population of Northern Ireland the right of Irish citizens to vote in European Parliament elections. 12. It is an unfortunate but inevitable consequence of UK withdrawal from the Union that the region most exposed to the adverse effects of Brexit will lose representation in the European Parliament. While the British government has been the subject of legitimate and sustained criticism for its failure to adequately prepare for the consequences of Brexit, it is also the case that the Irish government can, and should, be doing more to ensure the continued protection of the rights of EU citizens OJ 2013 L181/57 5 Available at 6 For example see the publication by Human Rights Consortium Rights at Risk: Brexit, Human Rights & Northern Ireland 7 For example see the legal opinion prepared for the Equality and Human Rights Commission by Jason Coppell QC on 5 th January 2018.

6 6 B. BACKGROUND 13. On the 23 rd June 2016 the United Kingdom held an advisory referendum on its membership of the European Union. A simple majority of those voting supported leaving the EU. Within the jurisdiction of Northern Ireland, however, there was a majority in favor of remaining. 14. The manner of departure from the European Union is governed by article 50 TEU. On the 29 th March 2017 the British Prime Minister, acting pursuant to powers conferred under the European Union (Notification of Withdrawal) Act (2017), gave formal notice to the Council of the European Union of the UK s decision to withdraw from membership of the Union. The consequence of that notification was that the Treaties will cease to apply within the UK legal order from the date of entry into force of any Withdrawal Agreement or failing that two years after the notification date. 15. On the 8 th December 2017 a joint report from the negotiators of the European Union and the United Kingdom government was published. The joint commitments set out therein are to be reflected in the Withdrawal Agreement. Paragraphs of which provides as follows: 52. Both Parties acknowledge that the 1998 Agreement recognises the birth right of all the people of Northern Ireland to choose to be Irish or British or both and be accepted as such. The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland. Both Parties therefore agree that the Withdrawal Agreement should respect and be without prejudice to the rights, opportunities and identity that come with European Union citizenship for such people and, in the next phase of negotiations, will examine arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits. 53. The 1998 Agreement also includes important provisions on Rights, Safeguards and Equality of Opportunity for which EU law and practice has provided a supporting framework in Northern Ireland and across the island of Ireland. The United Kingdom commits to ensuring that no diminution of rights is caused by its departure from the European Union, including in the area of protection against forms of discrimination enshrined in EU law. The United Kingdom commits to facilitating the related work of the institutions and bodies, established by the 1998 Agreement, in upholding human rights and equality standards. 16. Following the publication of the joint report Taoiseach Varadkar set out the Irish government s promise to citizens in the north 8 : 8 s_press_releases/statement_by_the_taoiseach_leo_varadkar_t_d_ Friday_08_December_2017_Government_Press_Centre_.html

7 7 I want to assure you that we have protected your interests throughout these negotiations. Your birth right as Irish citizens, and therefore as EU citizens, will be protected. There will be no hard border on our island. You will never again be left behind by an Irish government. 17. On the 19 th March 2018 the European Commission published a draft Withdrawal Agreement. Chapter I to the Protocol on Ireland/Northern Ireland addresses the commitments made in the December document on individual rights. It states: 1. The United Kingdom shall ensure that no diminution of rights, safeguards and equality of opportunity as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms. 2. The United Kingdom shall continue to facilitate the related work of the institutions and bodies set up pursuant to the 1998 Agreement, including the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland, in upholding human rights and equality standards. 18. While there has been much criticism of the draft agreement in the UK media, including by members of the current British government, the safer view is that the Commission s draft remains the most likely blueprint for the Withdrawal Agreement. This assumption is based on the fact that the European Union s published positions have, to date at least, been accepted by the parties with minimal amendments and also on the fact that in trade negotiations the EU has consistently been able to secure its priorities. The draft agreement remains the most likely outcome but is far from certain. 19. Recently, Martina Anderson MEP submitted the following parliamentary question to the Commission on the 20 th April : In relation to the commitment in paragraph 52 of Phase 1 Agreement providing for continued exercise of EU rights by Irish citizens in the North, can the Commission Confirm that this refers to all EU rights and opportunities normally associated with residency in a Member State, including the right to vote and stand in EU elections Provide a list of those rights we should expect to see included and the legal mechanisms required to vindicate those rights Confirm whether this commitment will apply to both Irish and British nationals born in the North? 9

8 8 20. The response was provided by President Juncker on the 22 nd June : Following the United Kingdom s withdrawal from the European Union, Irish citizens in Northern Ireland will no longer reside in a Member State. They will nevertheless continue to enjoy their rights as Union citizens under the Treaties. However, Irish citizens in Northern Ireland will no longer benefit from United Kingdom s participation in Union programmes, policies and activities when this participation ends. Eligibility to vote and stand as candidates in elections to the European Parliament is determined by Irish law which requires Irish citizens to be ordinarily resident in Ireland. 21. As can be seen from the above response the onus on securing the right to participate in future EP elections for Irish citizens in the north will not fall to the United Kingdom government since it will not be a member state. It has forfeited the right to representation in that institution. Nor would this be a matter for which the European Union could legislate on its own to remedy. The draft agreement is silent on the question of continued representation for Irish citizens Northern Ireland. The franchise and organisation of electoral districts are primarily a national competence. It has to be expected that all national governments, represented in the Council, would be reluctant to see the Union assume any greater role in that task. 22. Instead, the responsibility to ensure continued representation for EU citizens resident in the north will fall to the member states. Brexit is the obvious cause of the disenfranchisement of Irish citizens resident in the north but the remedy lies with Ireland and not with Britain. It has the ability and the tools to provide a solution to this particular challenge. 10

9 9 C. EUROPEAN UNION LAW Relevant Law 23. The Treaties identify democratic principles such as equality and accountability as essential to the functioning of the European Union. Article 9 and 10 TEU provide as follows: Article 9 In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. Article The functioning of the Union shall be founded on representative democracy. 2. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens. 3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen. 24. Within the institutional architecture of the European Union, it is the European Parliament which most directly assumes the task of representing the citizens. It exercises legislative, budgetary and supervisory powers over the Commission in accordance with articles 14 TEU and articles TFEU. The story of the European Parliament has been described as one of gradual transformation from a relatively powerless Assembly to the considerably strengthened institution it is today 11. The institution can claim to be the voice of European Union citizens in a way that the other institutions cannot. That role is likely to be strengthened in the years ahead At the present time, the principal features of elections to the European Parliament include: Members shall be elected by direct universal suffrage in a free and secret ballot 13 Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State 14 Representation of citizens shall be degressively proportional 15.The effect of this model is that member states with smaller populations benefit from greater 11 Craig & de Burca; EU Law: Text, Cases and Materials; 6 th ed, pg Future of Europe: European Parliament sets out its vision available at library/media/ res86651/ res86651.pdf 13 Article 14(3) TEU 14 Article 20(2)(b) TFEU 15 Article 14(2) TEU

10 10 representation. The system represents a compromise between the equality of citizens and the equality of member states. The European Parliament is required to draw up a proposal for a uniform electoral procedure in all Member States. The Council, acting unanimously, and after obtaining the consent of the EP, must lay down the necessary provisions 16 Member States have a discretion to allow for voting by citizens of third countries 17 Members shall be elected by direct universal suffrage in accordance with a uniform procedure in all member states or in accordance with principles common to all member states 18 No member state can have more than 96 or fewer than 6 seats 19 Members shall be elected for a period of 5 years 20 In each member state members shall be elected on the basis of proportional representation system using the list system or the single transferable vote 21 In accordance with its specific national situation, each Member may establish constituencies for elections or subdivide its electoral area in a different manner, without generally affecting the proportional nature of the voting system 22 The electoral procedure shall be governed in each Member State by its national provisions and may, if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system 23 A member state which makes provision in its national legislation for excluding Union citizens from entitlement to vote must be considered to be implementing EU law and consequently is required to respect the protections contained in the Charter. Any limitations to the right to vote must be in accordance with law, respect the essence of the right, be necessary and genuinely meet objectives of general interest and be proportionate Due to the degressive proportionality model there is often a significant diversion between the number of citizens each MEP can claim to represent. For example, Germany has a population of around 82 million residents and elects 96 MEPs. This is a ratio of one member per 855,000 residents. Malta has a population of 436,000 and elects 6 MEPs. This is a ratio of one member per 72,000 residents. 27. Many member states do not divide their territory into separate constituencies but instead operate a single national list from which all members are elected 25. Other member states divide their territory in separate seats which often record a significant variation in the number of constituents per MEP. Examples include the German speaking college within the Kingdom of Belgium 26 and the Ile-de-France region 16 Article 223(1) TFEU 17 Case C-145/04 Spain v. UK (2006) ECR I Article 223(1) TFEU 19 Article 14(2) TEU 20 Article 14(3) TEU 21 Article 1(1) of Council Decision 2002/772/EC amending Decision 76/787/ECSC, EEC, Euratom 22 Art 2 above 23 Article 7 24 Delvingne v. Commune de Lesparre-Medoc (2016) 2 CMLR 1 25 This is the system used in Austria, Bulgaria, Cyprus, Croatia, Czech Republic, Denmark, Estonia, Finland, Germany, Greece, Hungary, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Romania, Spain, Slovenia, Sweden and Spain. 26 This constituency has a population of around 75,000 and elects 1 MEP. The other Belgian constituencies of the Flemish College and the French speaking College receive an MEP for around every 550,000+ constituents.

11 11 and overseas citizens constituency in France 27. The ratio in Polish constituencies varies from a high of million per seat 28 to a low of 559,000 per seat The current UK constituencies also reveal variations. Greater London is allocated seats at the rate of 980,000 per MEP compared with Northern Ireland at the rate of 600,000 per MEP. 29. The Grand Chamber s approach to residency conditions in Eman & Servinger 30 should also be considered. The decision concerned the right of a Union citizen resident or living in overseas countries or territories (OCT) to vote or stand as a candidate in elections to the EP. The appellants were Dutch citizens resident in Aruba who, pursuant to Dutch electoral law, were deprived of those rights. Dutch citizens residing outside of the territory of the Union were, however, granted the right to vote and stand for election. The government of the Netherlands made the argument such an approach was justified on the basis that the latter category of citizens were assumed to still have links with Dutch society. 30. The Court addressed the issue of residence in the following manner: in the current state of Community law, the definition of the persons entitled to vote and to stand for election falls within the competence of each Member State in compliance with Community law. It must, however, be ascertained whether that law precludes a situation such as that in the main proceedings, in which Netherlands nationals residing in Aruba do not have the right to vote and to stand as a candidate in elections to the European Parliament. 60. In that regard, the objective pursued by the Netherlands legislature consisting in the conferment of the right to vote and stand for election on Netherlands nationals who have or have had links with the Netherlands falls within that legislature s discretion as regards the holding of the elections. However, the Netherlands Government has not sufficiently demonstrated that the difference in treatment observed between Netherlands nationals resident in a non-member country and those resident in the Netherlands Antilles or Aruba is objectively justified and does not therefore constitute an infringement of the principle of equal treatment. 61. Having regard to those matters, the answer to the third question must be that while, in the current state of Community law, there is nothing which precludes the Member States from defining, in compliance with Community law, the conditions of the right to vote and to stand as a candidate in elections to the European Parliament by reference to the criterion of residence in the territory in which the elections are held, the principle of equal treatment prevents, however, the criteria chosen from resulting in different treatment of nationals who are in comparable situations, unless that difference in treatment is objectively justified. 27 This constituency is allocated 1 MEP for around every 800,000 constituents whereas the other constituencies are allocated 1 MEP for around every 900,000+ constituents. 28 Podlaskie & Warmian-Masurian Voivodeship 29 City of Warsaw 30 Eman and Servinger v. College van Burgemeester en Wethouders van Deng (2007) 1 CMLR 4, C-300/04,

12 The case was ultimately decided in favour of the appellants on the basis of that their exclusion could not be objectively justified when others in a materially similar position were included. Of greater significance, perhaps, was the Court s apparent approval of member states including residency conditions in national legislation. 32. This position was repeated by the Grand Chamber in the Delvigne case in the following terms: 31. Admittedly, as regards the beneficiaries of the right to vote in elections to the European Parliament, the court has held... that articles 1(3) and 8 of the 1976 Act do not define expressly and precisely who are to be entitled to that right, and that therefore, as EU law currently stands, the definition of the persons entitled to exercise that right falls within the competence of each member state in compliance with EU law. 32. However, as the German Government, the Parliament and the European Commission submitted in their observations, the member states are bound, when exercising that competence, by the obligation set out in article 1(3) of the 1976 Act, read in conjunction with article 14(3) EU of the EU Treaty, to ensure that the election of Members of the European Parliament is by direct universal suffrage and free and secret. 33. Also of potential relevance to the issue of the right to vote in European Parliament elections are the Treaties provisions on the free movement of citizens. Articles 20(2)(a) and 21(1) TFEU guarantee the right to Union citizens to move reside freely within the territory of the member states. This right is replicated in article 45 of the Charter. It has been recognised as having direct effect 31. In the case of Grzelczyk 32 the Court said the following: Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for. 34. Similar to its long-standing case law in the traditional economic freedoms 33, the CJEU has moved beyond a discrimination approach to articles TFEU. Instead it applies a market access or restrictions based approach in determining what constitutes an interference with these rights In the case of Martens 35 the Court said the following: Indeed, the opportunities offered by the Treaty in relation to freedom of movement for citizens of the Union cannot be fully effective if a national of a Member State could be dissuaded from using them by obstacles resulting 31 Baumbast, para (2002) 1 CMLR 19, para The formula is most often expressed as measures liable to hinder - For the free movement of goods under article TFEU see Dassonville (1974) 2 CMLR 436, para 5 and more recently Italian Trailers (2009) 2 CMLR 34, para 58; For free movement of services under art 56 TFEU see Sager; For free movement of workers under article 45 TFEU see Bosman (1996) 1 CMLR 645; For freedom of establishment under article 49 TFEU see Gebhard (1996) 1 CMLR 603, para 37 ; For freedom of capital and payments under articles TFEU see Golden Share cases of Comm v Spain (2003) ECR I-4581 & Comm v. UK (2003) ECR I De Cuyper (2006) 3 CMLR 44, para 39-40; Tas Hegen (2007) 1 CMLR 23, para (2015) 3 CMLR 3, para 26

13 13 from his stay in another Member State because of legislation of his State of origin penalising the mere fact that he has used those opportunities. 36. Restrictions on the free movement rights of Union citizens must be justified by reference to express Treaty provisions or recognised public interest requirements. Any restrictions must also respect the principle of proportionality and the Charter. Free movement is undoubtedly one context in which the protections of EU law go beyond those contained in the European Convention of Human Rights. In the case of Schlinder v. UK 36 the Strasbourg Court held that the 15 year time limit to remaining on the Westminster voting lists in the Representation of the People Act (1983) was a proportionate restriction on the right to vote. It is uncertain if the CJEU would follow this authority in similar circumstances. 37. A claim by a Union citizen against his or her own state cannot be assumed to be a wholly internal matter outside the scope of the Treaties. Instead, the application of EU law will depend on the particular circumstances of the case and, in particular, the relevant rights at stake 37. The CJEU has, on occasion, been prepared to declare unlawful national measures which would have the effect of depriving EU citizens of the effective enjoyment of rights. 38. In the recent past the Commission published a recommendation on addressing the consequences of disenfranchisement of Union citizens exercising their rights to free movement 38. Such an instrument has no binding legal effect but is indicative of the importance placed by the Union and its institutions on ensuring those who exercise their free movement rights under the Treaties are not disadvantaged. Article 1 recommends: Where Member States policies limit the rights of nationals to vote in national elections based exclusively on a residence condition, Member States should enable their nationals who make use of their right to free movement and residence in the Union to demonstrate a continuing interest in the political life in the Member State of which they are nationals, including through an application to remain registered on the electoral roll, and by doing so, to retain their right to vote Ruiz Zambrano (2012) QB 265; Garcia Avello (2004) 1 CMLR 1; Rottman (2010) QB Commission recommendation of 29 January 2014 ; 2014/53/EU

14 14 D. CONSIDERATION OF THE PROPOSAL UNDER EU LAW 39. The principles of representative democracy and equality of citizens are fundamental to the European Union. These values are most clearly given effect in the direct election of members to the European Parliament from constituencies in the member states. It is those members who represent and are accountable to EU citizens. 40. EU law contains a number of important minimum safeguards to ensure effective democratic representation but it is also clear that Member states retain a large degree of discretion in how they construct their electoral systems. External voting is certainly permitted and more recently encouraged by the Commission. 41. Proportionate restrictions in the form of residency conditions are tolerated however. That said, state practice across the Union is generally supportive of external voting. In this context Ireland appears markedly out of step in operating such a restrictive franchise both its national elections and for the elections to the European Parliament. 42. A successful challenge to the residency rules in Irish electoral law, if not a probability, is at least possible. This is most likely to emerge, it is submitted, in the case of an Irish citizen who has exercised his or her free movement rights under the Treaty but subsequently suffers the loss of voting rights in national elections. 43. A challenge to the loss of voting rights for the EP by an Irish citizen should not arise where that person moves to another member state since the host member is required to provide such a right. A move outside the territory of the Union by an Irish citizen would probably not attract the protection of EU law since such a person could not claim that disenfranchisement was undermining the effective use of fundamental freedoms under EU law. The position is less certain however when an Irish citizen moves to a member state, such as the UK, which withdraws from the European Union. That individual will have availed of their free movement rights but subsequently find themselves unable to vote in either Irish national elections or EP elections. 44. A successful challenge to the Irish residency rules from an Irish citizen in Northern Ireland who cannot demonstrate previous residence in the State or the exercise of free movement rights is less likely. However, as set out above the CJEU has, in specific circumstances, shown itself ready to ensure EU citizens are not deprived of the effective enjoyment of the substance of that status by national measures. The most striking examples from the case law have occurred when an EU citizen is set to suffer the loss of a right. This has included the right of family members to reside in Carpenter 39, the right to one s own name in Garcia Avello and the loss of national citizenship (and Union) citizenship in Rottman. 39 (2003) QB 416

15 The loss of voting rights in the EP by Irish citizens, coupled with their exclusion from national elections, could conceivably be impugned as disproportionate. The loss of all voting rights in a relatively short period of time following departure from the territory of the Republic appears a more vulnerable target than the 15 year rule in Shindler. 46. The removal of political rights, in the words of Fishkin, sends a powerful message of exclusion and second-class citizenship. 40 The loss of all voting rights undoubtedly devalues or hollows out Union citizenship. 47. The best view of the current position is that the proposal to extend the EP franchise to Irish citizens in the north is open to the State, is consistent with state practice across the Union and is in harmony with the democratic principles set out in the Treaties. 40 J Fishkin, Equal Citizenship (2011) 86 INdLJ 1289, 1337

16 16 E. INTERNATIONAL AND COMPARATIVE PRACTICE 48. The right to vote has been described as without doubt the most important political right in international human rights law 41. It is recognised in a number of international and regional instruments 42. Limitations based on age and citizenship are generally permissible although residency based restrictions are not expressly recognised. 49. There is also clear evidence of an international consensus in favour of extending voting rights to non-resident citizens. This trend has accelerated since the 1990s and is recognised in the Institute for Democracy and Electoral Assistance (IDEA) handbook which notes that over 100 states worldwide provide for such a right In article for International and Comparative Law Quarterly, Richard Lappin records that while the method of voting varies 62% of European States, and 74% of EU member states provide for voting from abroad for their citizens 44. This finding is consistent in the Out of Country Voting Report adopted by the Venice Commission in June of Non-resident voting in European Parliament elections is permitted in Belgium, Croatia, France, Germany, Hungary, Lithuania, Luxembourg, Netherlands, Portugal, Romania, Sweden and the United Kingdom The creation of dedicated districts to represent nonresident citizens in national institutions has been adopted in Croatia, France, Italy, Portugal, Romania and Switzerland By way of example France provides constituencies for overseas citizens (i) Canada & United States; (ii) Central America, Caribbean & South America; (iii) Northern Europe; (iv) Benelux; (v) Andorra, Monaco, Portugal & Spain; (vi) Liechtenstein & Switzerland; (vii) Central & Eastern Europe; (viii) Southern Europe, Israel & occupied Palestine and Turkey; (ix) Northwest Africa; (x) Central, Eastern and Southern Africa and Middle East; (xi) Belarus, Ukraine, Moldova, Russia, Oceania & Asia. Italy also provides constituencies for its citizens (i) Europe including Russia and Turkey; (ii) South America; (iii) Central and North America; and (iv) Africa, Asia and Oceania. 54. Further afield Australia, Canada and New Zealand also accommodate external voting although eligibility to vote is linked to prior residence in the State 48. The United 41 M Nowak; UN Convention on Civil and Political Rights: CCPR Commentary (2 nd edition, NP Engel, 2005) Article 21 of the Universal Declaration of Human Rights; Article 25 of the International Convention on Civil and Political Rights; Article 7(a) of the UN Convention on the Elimination of Discrimination against Women (1979); Article 41 of the Migrant Workers Convention (1990); Article 29 of the UN Convention on the Rights of Persons with Disabilities (2006); Article 23 of the American Convention on Human Rights (1969); Article 13 of the African Convention on Human and Peoples Rights (1981); Article 24 of the Arab Charter of Human Rights (2004); Article 3 of protocol 1 to the European Convention on Human Rights (1950); Article 39 of the EU Charter of Fundamental Rights Lappin, Richard, (2016) International & Comparative Law Quarterly, 859, The Right to Vote for non-resident citizens in Europe 45 Council of Europe European Commission for Democracy Through Law (Venice Commission): Study no.580/2010 of 24 th June Lappin, appendix 2 47 Annex 1 48 For general discussion see Irish Government Options Paper of 22 nd March 2017, pg 25

17 17 States allows most citizens, aged 18 years or older, who reside outside the United States to vote absentee for federal office candidate in US primary and general elections. Practice varies for state and local office elections and referendums The practice of external voting is also widespread amongst Latin American states. Argentina, Bolivia, Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, Honduras, Mexico, Panama, Peru, Paraguay and Venezuela all facilitate citizens to vote from abroad The manner of voter registration, districting and method of external voting differs from state to state. International human rights law does not specify the form to be adopted. However, the recent example of Cypriot citizens resident in the north of the island should be considered. Voters crossed the island s dividing line and cast their votes in person in special election centres. However, the election was marked by low registration and turn out rates Despite state practice being overwhelmingly supportive of the right to external voting the international treaty monitoring bodies have, to date at least, allowed states a wide margin of appreciation in the construction of their electoral systems. This is particularly true of the European Court of Human Rights as recently evidence in the case of Schlinder v. United Kingdom In his article Lappin criticises the decision in the following terms: The Shindler judgment represents a milestone for non-resident citizen voting rights. It endorses a view that voting rights may be conditioned on residency on the grounds of an individual s normative bond to their country-of-origin and the extent to which laws passed by that government would affect them. Yet, as this article has shown, the ECtHR judgment has no credible grounding in other aspects of IHRL. No universal or European treaty provides for residence as a permissible restriction on the right, while treaty bodies and European State practice overwhelmingly endorse the right to vote for non-resident citizens. Despite changes in local voting rights, the right to vote at national elections remains exclusively bound to citizenship and a number of instruments safeguard the principle of equal citizenship. Treaty bodies have further held that blanket restrictions of rights challenge proportionality and are discriminatory. Moreover, the ECtHR s judgment fails its own test that any limitation must not impair the essence and effectiveness of the right, be in pursuit of a legitimate aim, and be proportionate. The presumption in any democratic State must be in favour of inclusion, citizenship should have a unitary value, and States cannot be permitted to derogate from the most central of political rights. In the EU, the removal of non-resident citizen voting rights is also fundamentally at odds with free movement rights within the Union. Furthermore, the ECtHR s endorsement of blanket restrictions lacks proportionality, contradicts its decisions on voting Shindler v UK App No /09 (ECtHR 7 th May 2013)

18 18 rights for prisoners and persons with disabilities, and is contrary to broader IHRL It remains to be seen whether the Strasbourg Court will modify its approach in future cases or whether it will be left to the CJEU (or other International Treaty bodies) to ensure that overlying European states, such as Ireland, are required to revisit restrictive residency conditions. What can be said with some confidence, however, is that the Irish rules on residency appear to be among the most restrictive. 53 Lappin, pg 16

19 19 F. IRISH CITIZENSHIP AND ELECTORAL LAW Relevant Law on Citizenship 60. A citizenship regime is the clearest expression of the political philosophy of a state 54. It is the right to have rights in the words of Chief Justice Warren of the United States Supreme Court 55. In the Irish context it can be seen to have been influenced by notions of compromise, sovereignty and post conflict identity. 61. The legal status of Irish citizenship was first created by article 3 of the 1922 Constitution. In its original incarnation it was granted to those domiciled in the area of the Irish Free State at the time of the coming into operation of the Constitution or whose parents were born on the island of Ireland or had been ordinarily resident in the Irish Free State. 62. Thereafter, the Irish Nationality and Citizenship Act (1935) provided for the acquisition of citizenship by birth, descent, naturalisation and marriage. It also removed any ambiguity as to whether Irish citizenship was a category of British subject 56. The legislation did not specifically address the availability of Irish citizenship to residents in Northern Ireland. Instead, citizenship continued to be available but on the basis of domicile on the date of the constitution coming into force or to a child born outside the jurisdiction of the State to a citizen father One of the underlying principles of Bunreacht na heireann was the firm belief of the drafters, and the bulk of the citizenry, that the reunification of the island was desired, justified and inevitable. Articles 2 and 3 as originally drafted have been described as seeking to formalise in law the nationalist position on partition In legal terms the goal of reunification was a constitutional imperative. However, it was the Irish Nationality and Citizenship Act (1956), rather than the constitution, which was the clearest expression of the citizenship regime 59. Section 6(1) of the 1956 Act elucidated that every person born in Ireland is an Irish citizen from birth. 65. The right to Irish citizenship, as constructed in the 1956, was given further constitutional protection following the Good Friday Agreement of The amended articles provide: Article 2 It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also 54 This phrase is borrowed from Adrian Favell, Philosophies of Integration (2001) 55 Perez v Brownell, 356 US 44 (US Supreme Court, 31 March 1958) section Section 33 of the 1935 Act repealed the British Nationality and Status of Aliens Act (1914), the British Nationality and Status of Aliens Act (1918) and the common law relating to British nationality. 57 Section 2 of the 1935 Act 58 Chubb, Basil: The Politics of the Irish Constitution, pg Article as originally drafted provided that any person who was a citizen of Saorstat Eireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland. 60 The relevant section of the GFA was section 1(vi) of the Constitutional Issues. It read that (vi) recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.

20 20 the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage. Article 3 1. It is the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution. 2. Institutions with executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authorities for stated purposes and may exercise powers and functions in respect of all or any part of the island. 66. The Irish Citizenship Act (2004) followed the 27 th amendment to the constitution 61. That legislation amounted to a significant statutory modification of the jus soli principle which hitherto had been the principal basis for Irish citizenship law. It did, however, retain the all island approach. Nonetheless, access to Irish citizenship remains relatively generous when compared with many other nation states. 67. In short, citizenship can be gained through a parent s right to citizenship or by birth on the island of Ireland to a parent who had 3 years of legal residence With respect to residents of Northern Ireland, Irish citizenship has always been and remains a birthright for those born on the island and eligible for British citizenship. It is a matter of individual choice rather than compulsion though. Irish citizenship is now best seen as transcending the border rather than subverting it The legitimacy of this citizenship option was endorsed by the government of the United Kingdom in the Good Friday Agreement. However, within the UK legal order certain provisions of the British Nationality Act (1981) seem to run counter to this Agreement. In particular, section 1(1) states that a person born in the United Kingdom after 1982, either of whose parents were British citizens or settled in the UK, shall be a British citizen. Renunciation of such citizenship is possible in accordance with section 12 but this requires completion of an administrative process and the payment of not insubstantial fees. I understand that this conflict arose recently in an immigration appeal by the American husband of an Irish citizen born and always residing in 61 The relevant part of article 9 now reads: Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law. 62 Section 6A of the Irish Nationality and Citizenship Act (1956) as amended by section 4 of the Irish Citizenship Act (2004) 63 O Caoindealbhain, Brian: Citizenship and Borders: Irish Nationality Law and Northern Ireland, IBIS working paper no. 68 (2006)

21 21 Northern Ireland. The appellant s central contention that renunciation was not required by residents of Northern Ireland was accepted by the Tribunal As well as conferring rights, the constitution also imposes duties on Irish citizens. No distinction is made as to place of residence. Article 9 states: Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens. 71. It should also be noted that the constitution permits the State to claim extraterritorial jurisdiction for certain criminal offences committed by Irish citizens regardless of whether or not such persons have ever resided within the Republic 65. Irish Electoral Law 72. The democratic nature of the State 66 and the basic rules of the electoral system are set out in Bunreacht na heireann. The State is a parliamentary democracy with a separation of powers between executive, legislature and judiciary. 73. The Oireachtas is the legislature and comprises of Dail Eireann, Seanad Eireann and the President. The government exercises executive power with the Taoiseach and cabinet drawn from the membership of the legislature. The office of President combines the role of ceremonial Head of State with that of guardian of the constitution. Administering justice is reserved to the independent courts In the case of Melling v. O Mathghhamhna 68 Chief Justice O Dalaigh said: If our constitution and the Constitution of Saorstat Eireann both have adopted the theory of tripartite separation of the powers of government with express limitations on the power alike of legislature and executive over the citizen, the reason is not unconnected with our previous experience under an alien government whose parliament was omnipotent and in whose executive lay wide reserves of prerogative power. 75. Irish electoral law operates separate franchises for distinct elections which are in some respects inter-related. There are different voting categories which reflect considerations of citizenship, residency and education. They are (i) Dail electors, (ii) Presidential and Constitutional Referendum electors; (iii) European Parliament electors; (iv) local electors; and (v) Seanad electors. 76. Each electoral franchise has a separate legal basis, a distinct character and seeks to achieve different objectives. The franchise does not align completely or neatly with any of the predominant principles of granting political rights in a democracy 69. In summary, it cannot be said to follow the all-contributing or all subjected principles since many of those resident in the State but who do not hold Irish or British citizenship (or EU citizenship where relevant) are excluded despite their being subject to taxation and state regulation 64 De Souza v SoS Home Dept; Appeal PA/000/2016; 31 st October 2017; IJ Gillespie 65 Article of Bunreacht na heireann 66 Articles 5 and 6 of Bunreacht na heireann 67 Articles 34.1 and art (1962) IR 1, Should Irish Emigrants have votes? External voting in Ireland; Iseult Honohan; (2011) Irish Political Studies 26 4: The author considers a number of different bases for democratic voting rights.

22 22 of their behaviour. Neither is it consistent with the stakeholder principle, which supposes that those who hold a special allegiance to the state should participate in democratic life, since non-resident citizens are largely excluded. 77. The national-resident electorate approach that typifies the Irish system can best be described as the result of political evolution rather than working through of any principled model. Each electoral list is a response to a particular concern at a particular time. It can legitimately be criticised as under-inclusive. 78. The first category identified above is Dail electors. Elections to Dail Eireann are governed by article 16 of the constitution. The principal features of this area of the Irish electoral system are that the Dail is to be composed of members who represent constituencies determined by law, that such TDs will be elected by way of proportional representation by the single transferrable vote and that voting shall be by secret ballot. The right to vote is set out in article i All citizens, and ii such other persons in the State as may be determined by law, without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dáil Éireann, shall have the right to vote at an election for members of Dáil Éireann. 79. While on a first reading of article 16.2 it may appear that the franchise consists of all Irish citizens and some residents who do not hold Irish citizenship, a review of the Electoral Acts reveals that not to be the case. The provision is really a constitutional code and merely sets out the underlying principles of the right to vote to the legislature in the Republic of Ireland. 80. There are, in fact, a significant number of citizens who are not included on the franchise. Persons who have not reached the age of are excluded as are persons who have been disqualified by law 71. Of greatest import, however, is section 111 of the Electoral Act (1992). An individual s entitlement to vote in the general election is contingent upon being on the register of Dail electors in a particular constituency. 81. This requires that an elector be an Irish or British citizen and ordinarily resident in the State. The right has not been extended to nationals of any other nation state to date. The privileged position of British citizens resident in the Republic of Ireland followed the approval of the 9 th amendment to the constitution in Until that point only Irish citizens could vote in Dail elections. 82. The 1992 Act also makes special provision for Irish diplomats and their spouses while serving abroad 72. Such persons are deemed to be ordinarily resident in the State on the qualifying date and consequently can cast a postal vote. Members of Garda Siochana and the Defence Forces have also been granted the right to a postal vote th amendment to the constitution, Disqualification is no longer a feature of Irish law. Section 3 and Schedule 1 to the Electoral Act (1963) abolished the existing rules on disqualification for corrupt or illegal practices. 72 Section 12 read together with sec 15(2) of the Electoral Act (1992) 73 Section 14

23 Section 5(4) of the Electoral Act (1963) permits a limited number of persons the right to cast a vote although they are not currently residing within the State. It provides as follows: (4) For the purposes of this section (a) A person shall be deemed not to have given up ordinary residence if he intends to resume residence within eighteen months after giving it up, (b) A written statement by a person that he intends to resume residence within eighteen months after giving it up shall, in the absence of evidence to the contrary, be conclusive evidence of that fact. 84. Therefore, Dail electors are Irish and British citizens resident in the Republic with very few exceptions. Non resident citizens are excluded. Residents without citizenship are excluded. 85. The second category of voters, Presidential electors, is the most restrictive list. An understanding of the system must begin with article It provides that the President will be elected by what it calls a direct vote of the People 74. Article states that: Every citizen who has the right to vote at an election for members of Dail Eireann shall have the right to vote at an election for President. 86. The effect of the article is to limit the franchise for the Presidential election to Irish citizens currently resident within the jurisdiction of the State, those to whom special consideration has been given and to those who have left recently left and intend to return 75. Those British citizens who are resident in the Republic and who are Dail electors are not permitted to participate. The large number of Irish citizens who are not Dail electors, including those resident in Northern Ireland, are excluded. 87. Section 7(1) of the Electoral Act (1992) governs who may register as a presidential elector: 7.-(1) A person shall be entitled to be registered as a presidential elector in a constituency if he has reached the age of eighteen years and if he was, on the qualifying date (a) A citizen of Ireland, and (b) Ordinarily resident in that constituency 88. The franchise is the same for a referendum. Article 47(3) provides that Every citizen who has the right to vote at an election for members of Dail Eireann shall have the right to vote at a Referendum. 89. The Referendum Acts ( ) create a franchise limited to Irish citizens that are resident in the State 76. They are permitted to take part in the plebiscite but those who live elsewhere may not. Dail electors who are solely British citizens are excluded. 74 Article Article read together with Electoral Act (1963), section 5 76 Elector is defined in section 2(1) of the Referendum Act (1994) as a presidential elector. Pursuant to section 7(1) of the Electoral Act (1992) a person shall be entitled to register as a presidential elector in a constituency if he or she has reached 18, is an Irish citizen and is ordinarily resident in that constituency

24 Elections to the European Parliament are governed by the European Parliament Elections Act (1997) (as amended). Article 29 of the constitution empowers the State to comply with its obligations under the Treaties but does not prescribe the manner in which MEPS are elected. In particular, there is no replication of the requirement in article 16.3 for the ratio between the number of members and the population of each constituency, so far as practicable, to be the same throughout the country. That constitutional obligation is limited to TDs. 91. The right to vote in such elections is provided to those persons who are registered as European electors within the meaning of section 6. That list includes all Irish citizens ordinarily resident in the relevant constituency together with those who hold citizenship of the European Union The European Parliament Election Act (1997) has been amended in a number of important respects. The principal features of the legislation are The right to vote is conferred on those registered as European electors 78 A person shall be entitled to be registered as a European elector if he has reached the age of 18 years, is ordinarily resident in a constituency, holds either Irish citizenship or the nationality of a member State and has applies to the registration authority 79 Method of electing representatives to the EP shall be by way of proportional representation with each elector having one transferable vote in a secret ballot 80 The (ordinary) manner of voting is in person at allotted polling stations 81 Irish citizens, aged at least 21 years, are eligible for election regardless of their place of residence 82 Nationals of the other member states, aged at least 21 years, are eligible for election provided they are ordinarily resident in the jurisdiction of the Republic of Ireland 83 Conduct of elections to the EP is governed by the provisions of Schedule 2 to the Act 84. Candidates shall be elected from specified constituencies 85 A specified number of representatives will be elected for each constituency 86 The most recent revision of the constituencies occurred in February of seats were allocated to 3 constituencies Dublin, South and Midlands- Northwest The rules set out above represent the State s response to the obligations placed on it by membership of the European Union. It is open to the Ireland to adopt more generous provisions however including extending the franchise to non-eu citizens residing in the jurisdiction 77 Pursuant to section 9 of the Electoral Act Citizenship of the European Union is conferred on all nationals of a member state by virtue of article 20(1) TFEU 78 Section 8 of the European Parliament Elections Act (1997) 79 Section 9(1) Electoral Act (1992) read together with section 6 of the European Parliament 80 Section 7, 1997 Act 81 Section 9(1) 82 Section 11(1)(a) of Section 11(1)(b) of Section 14 of the 1997 Act 85 Section 15 read together with Schedule 3 to the 1997 Act 86 Section 15 read together with schedule 3 to the 1997 Act 87 Section 3 of the European Parliament Elections Act (2014) by substituting 3 rd schedule to the Act

25 25 of the 26 counties and making greater provision for external voting. 94. The fourth category is local government electors. In this context the franchise is considerably wider. While the wording of article 28A(2) of the constitution echoes the provisions of article , secondary legislation has been enacted to ensure the State acts consistently with the requirements of Irish membership of the European Union. Section 24 of the Local Government Act (2001) provides that the right to vote in local elections has been granted to all Irish citizens who are eligible to vote in Dail elections and to all foreign nationals resident in the State unless disqualified by law The final category is those qualified to vote for the Seanad. It is the second legislative chamber with quite limited powers. Its members can be appointed by the Taoiseach, elected by politicians using a complex panel system and 6 are elected by certain university graduates. Those graduates of NUI and Trinity College Dublin who have registered in accordance with the provisions of the Seanad Electoral (University Members) Acts (1937) may exercise their vote regardless of place of residence. All such voting is conducted by postal votes There is no evidence in any of the documents republished in Gerard Hogan s masterly account of the origins of the constitution that Irish citizens beyond the State would make a direct contribution to the election of any State or supranational institution 90. The position of the population of Northern Ireland, whether they had formally registered their Irish citizenship or not, was assumed to be an electorate in waiting. Residents would be granted the right to vote but only when partition came to an end. 97. The issue of voting rights for non-resident Irish citizens has arisen from time to time but it would be incorrect to suggest that it ever gained sufficient prominence as to amount to a political priority for either the government of the day or the Oireachtas. 98. As stated above each franchise list is a response to a particular political or legal issue rather than based on any overarching theory. The original limitation of voting rights to Irish citizens was, like much else at the time, an attempt to demonstrate Irish sovereignty and separateness from Britain. This was particularly true of a constitution that was republican in character if not in name. Decades later the expansion of right to vote in Dail elections was an attempt to protect the position of Irish citizens in Britain on the Westminster franchise. Their exclusion from the referendum and presidential lists was a reaction to a Supreme Court decision 91. The expansion of voting rights in local and EP elections is a largely reaction to Irish membership of the EU. 88 Section 10 of the Electoral Act (1992) 89 Section Hogan, Gerard: The Origins of the Irish Constitution ( ) 91 The Electoral (Amendment) Bill (1983) had made provision for British citizens to vote in Presidential elections and referenda. However, when the Supreme Court held that the expansion was constitutionally impermissible the amendment was limited to article 16.

26 26 Postal Voting in Irish Electoral Law 99. There is a very strong presumption in Irish electoral law in favour of in person voting. The principal motivation behind such an approach is to protect the integrity of the vote Electors are typically required to attend at their designated polling station to cast their vote. This is not the case with special voters or postal voters however. The description of Kavanagh is helpful: Special voters are those who are permitted to vote outside of the polling station due to illness or disability. In this instance, the polling station will, in a way, travel to them so that they can cast their vote. Postal voting is available to those who cannot attend their designated polling place due to travelling for work or education. Special provisions are included in the legislation for those living on the islands of Ireland to cast their votes earlier than the mainland to ensure that their ballot boxes reach the count centre due to weather or other logistical problems To benefit from the special voter procedure persons must satisfy the registration authority of their eligibility 93. The person must demonstrate that they are unable to attend at their designated polling place due to their physical illness or physical disability and that this condition is likely to continue for the period of registration 94. More recently, the Electoral (Amendment) Act (2006) made special provision for prisoners to participate in Dail, Seanad, local, European and Presidential elections Postal voting is available to Irish diplomats and their spouses who are serving abroad 95. Members of the Gardai, the Defence Forces and members of the Irish diplomatic missions abroad are also permitted to be entered onto the postal voters list 96. Disabled voters may also apply for a postal vote 97. Eligibility for postal voting was also extended to persons who are absent from their place of residence due to occupation, service of employment 98. Full-time students attending an educational institution in the State are also included The method of postal voting in EP elections is regulated by section 14 of the Electoral Act (1992) in so far as it relates to European electors and also by part IV of Schedule 2 to the European Parliament Act (1997) 100. In substance it mimics the manner in which postal voters are granted for elections other than Seanad electors The principal features of postal voting in European Parliament elections are set out below: The local returning officer in each constituency must send by post to each European elector a ballot paper and form of receipt 101 The elector must return a signed receipt and ballot paper for it to be treated in the same manner as a ballot paper placed in a ballot box in the ordinary way at 92 Electoral Law sec Section 17 of the Electoral Act (1992) 94 Electoral Act, schedule 2, Pt III, rule 19(a)-19(d) 95 Section 12 of the Electoral Act (1992) 96 Section 14 of Electoral Act (1992) 97 Draper v. Attorney General (1984) 1 IR Section 63(1) of Electoral Act (1997) 99 Section 63(2) of the Electoral Act (1997) 100 Rules Rule 28

27 27 the taking of a poll 102 The elector must attend a Garda station in the presence of a member of An Garda Siochana to vote 103 or where relevant a person appointed by the Secretary of the Department of Foreign Affairs 104 In order to cast his or her vote, an elector must, in the presence of an authorised person must produce an envelope addressed to the elector, an unmarked ballot paper and a form of declaration of identity; complete and sign the declaration of identity; hand the declaration to the authorised person who shall, on being satisfied as to the identity of the elector, witness the signature; the elector must then mark, in secret, the ballot paper; place such ballot paper in the ballot paper envelope and effectually seal such envelope; place such ballot paper envelope and the completed declaration of identity in the covering envelope and effectually seal that envelope; and finally send that envelope by post to the local returning officer 105 Candidates agents may attend and observe the opening of the postal ballots 106 Ballot papers may then be placed in an empty ballot box 107 Additional Considerations 105. The Constitutional Convention of 2013 overwhelmingly endorsed a proposal to extend the franchise for future Presidential elections to all Irish citizens regardless of place of residence. This will require amendment of Bunreacht na heireann by referendum and the Electoral Acts by the Oireachtas On the 22 nd March 2017 an options paper was published by the Departments of Housing, Local Government and Foreign Affairs. The paper expresses a preference for the right to vote to be conferred on all Irish citizens regardless of residence and for this to be achieved by way of postal voting. The contents of that paper are helpful in considering the practical and logistic consequences which would flow from a decision to modify the European Parliament elections. The following facts are included in the paper: At the time of publication, the State has a population of 4.76 million of which 3.2 million are registered as Presidential voters 108. The number of European electors at the last EP election was million 109. At the time of publication, the population of Northern Ireland was 1.87 million of which the vast majority hold, or would be entitled to, Irish citizenship 110. The electorate for the last EP elections was million 111. The registration of voters imposes the single largest cost on the State 112 In accordance with the Electoral Act (1992), the current system of voter registration is the responsibility of local authorities in the State. An extension of the franchise would require considerable modernisation of the voter 102 Rule Section 69 of the Electoral Act (1997) 104 Rule 29(2) 105 Rule Rule Rule Option Paper, Pg Appendix 3, pg Options Paper, Pg Options Paper, pg41

28 28 registration arrangements 113 Voter registration is best managed domestically in the State rather than engaging embassies or consular offices in that role. A central registration authority offered more benefits than continuing with 31 separate databases. This was particularly true of voters in Northern Ireland. It was estimated that the development of such registration arrangements could take a period of up to 3 years 114 Four options are generally put forward for external voting (i) voting in person at a dedicated polling station; (ii) voting by post; (iii) proxy voting; and (iv) electronic or internet voting. The key criteria by which such options should be assessed are the degrees to which they are workable and the degree to which they maintain the integrity of the ballot Postal voting may prove less costly than in person voting and may be the best model for Ireland in the short to medium term. Should postal voting be the preferred method consideration will need to be given to giving all voters the option of voting by post Each additional registered voter represents an additional cost in terms of issuing, processing and counting their ballot papers and in issuing freepost literature from candidates. 113 Options Paper, pg Options Paper, pg 29

29 29 G. APPLICATION TO THE PROPOSAL 107. A former president of the Supreme Court of Israel, Professor Barak, provides an excellent description of constitutions. He said the following: It shapes the character of society and its aspirations throughout history. It establishes a nation s basic political points of view. It lays the foundation for social values, setting goals, obligations, and trends... It reflects the events of the past, lays a foundation for the present, and shapes the future. It is at once philosophy, politics, sociology, and law And so it is with Bunreacht na heireann the Constitution of Ireland. Parts of the document speak exclusively of the Irish State. Some parts speak of the Irish Nation, the Irish People and other parts speak to the outside world. It reflects elements of the struggle for independence; it acknowledges partition while calling for unity; governs the contemporary administration of the State; it has shaped Irish political and legal culture; but also contains promises of a future Ireland Like other democratic constitutions it contains many complexities, contradictions and clichés. To that is added the subtleties and ambiguities that have come to be the mark of any document that touches upon Irish-British relations Of critical importance to the present proposal is the citizenship regime. It is the clearest expression of the political philosophy of a State 116. As set out above Ireland operates a relatively generous citizenship regime. Within the jurisdiction of Northern Ireland the Good Friday Agreement operates as a constitutional bridge between Ireland and Britain. A fundamental part of the Agreement was the recognition by the parties and by the two governments that the population here could be British, Irish, Northern Irish or any combination thereof The right to be Irish in the Agreement goes beyond identity however. The core of that right is the entitlement to the legal status of Irish citizenship. There is nothing in British citizenship law which seeks to undermine that in any way. Irish citizenship is not imposed on anybody in Northern Ireland who would not wish to have it Bunreacht na heireann speaks of and to Irish citizens beyond the State s current borders in the most warm and generous terms. It expects their loyalty and fidelity to the State. It claims jurisdiction to prosecute citizens when they have infringed Irish criminal law outside the borders of the State. It is an undesirable paradox that it continues to operate one of the most restrictive systems when it comes to an entitlement to vote The proposal to retain the right of representation in the EP for Irish citizens resident in Northern Ireland is an attempt to hold the State to the values its 115 Barak, Purposive Interpretation of Law, Ch 15, pg This phrase is burrowed from Adrian Favell, Philosophies of Integration (2001). 117 GFA, Constitutional Issues, Section 2 (vi) states recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.

30 30 constitution proclaims. Effective citizenship requires more than the right to think of oneself as Irish or to be regarded by others as Irish. The right to citizenship was not intended to be a placebo or a token acknowledgement. It cannot be limited to an entry into a census form or the receipt of a passport in the post. Citizenship is a community of equals. It is the right to have rights. The most basic element of citizenship is participation The right of Irish citizens in Northern Ireland to continue to contribute to the development of European Union law is to be extinguished. Equally, the institutions of the EU are set to lose the experience, concerns, understanding and general outlook of such persons. They will no longer be able to participate in elections to any institutions of the State (other than the very few who qualify as a Seanad elector) or to institutions of the European Union. Citizenship of Ireland and of the European Union without any effective representation must be considered democratically suspect. It is surely anathema to any concept of republican democracy to leave fellow citizens without a voice in the decisions that affect them As set out above the Constitution does not impose any impediments on external voting or the creation of a new constituency of Northern Ireland for the next European Parliament elections. Rather the principles and values of the Constitution, as reflected in articles 2, 3 and 9 in particular, must be considered to be supportive of such an initiative The 2019 EP election provides an important opportunity for Ireland to reinforce the connection between all Irish citizens on the island on the basis of equal standing. The extension of the franchise and the creation of an additional constituency of Northern Ireland would demonstrate the democratic values of the State and the European Union are taken seriously. Such persons are aware of the practical benefits of citizenship and equally aware of the disadvantages of losing representation While the proposal would be consistent with the spirit of the constitution and the citizenship regime, a number of important amendments to Irish electoral law will be necessary. Foremost among these changes are an expansion of external voting and modification of the current system of postal voting. They will likely be seen to mark a significant development in Irish electoral law but one which is surely overdue As set out above the substantive right to vote in EP elections is contained in European Union law but the mechanism by which this is given effect is contained in Irish electoral law. At the present time the right to vote is conferred on those registered as European electors in accordance with the European Parliament Elections Act (1997) (as amended). Such persons are Irish citizens resident in a constituency in the State who have registered as Dail electors in accordance with section 9 of the Electoral Act (1992) Citizens of the remaining 27 member states of the European Union who have registered as European electors in accordance with section 9(1) of the 1997 Act 119. The State will have to continue to ensure the right to vote of all EU citizens within the territory of the Republic following Brexit. Consequently the above

31 31 legislative provisions can, and should remain, unaltered in substance The democratic right to vote in EP elections currently enjoyed by Irish citizens resident in Northern Ireland is based on EU law and given effect through UK legislation - namely the European Elections Act (2002) (as amended). Irish citizens participate in the election of 3 MEPs for the constituency of Northern Ireland under the UK allocation of seats. It must be assumed that this right will cease with the UK s withdrawal from the European Union in March of next year The substantive right to vote for those Irish citizens can, however, subsist although in a different form. It can be secured through the introduction of primary legislation in the Republic of Ireland. This can be achieved through a widening of the definition of European electors. In addition to the categories set out in paragraph 119 should be added a new qualifying route: Irish citizens resident in Northern Ireland who have registered as European electors in accordance with the new legislation 122. On occasion Ireland has shown itself to be pragmatic in making important alterations to its electoral system in changed circumstances. The risks associated with Brexit for the population of Ireland north and south can provide a much needed spur to the development of a more modern approach to non-resident voting. This occurs at a time when the Irish government is already committed to extending the franchise for the Presidential elections. The amendment suggested above would mark a significant departure from the current restrictive system which ties voting rights very closely to current residence. It is one which is overdue however As set out above Ireland currently elects 11 MEPs from 3 constituencies covering the 26 counties. Any external voting which does occur is allocated to these constituencies. It is suggested that the creation of a new EP constituency for Irish citizens in Northern Ireland is to be preferred to the creation of a single national list as utilised by a large number of EU member states. This is because such a national list would be an alien concept to Irish electoral law. Also, while it is a cliché to say that all politics is local it cannot be denied that an important feature of Irish politics is regional. The interests and concerns of rural voters do not always match those residing in Dublin. This, it is submitted, applies equally to elections to the European Parliament Also, the creation of a new constituency should be preferred to a system which allocates the votes of Northern Ireland residents to the existing Irish constituencies. The dominant purpose of the extended franchise is to ensure the rights of northern citizens post Brexit. It will be important that there are voices in the EP who can legitimately claim to speak for Irish citizens in Northern Ireland. Direct rather than indirect accountability is essential This can be achieved through the amendment of the current constituencies list found in schedule 3 to the Electoral Act (1997)(as amended). A new constituency of Northern Ireland can be created and allocated 2 seats.

32 At the present time each Dublin MEP represents approximately 424,000 constituents, each Midlands-Northwest MEP represents approximately 409,000 constituents while each South MEP represents approximately 419,000 constituents. The allocation of 2 MEP seats to a potential Northern Ireland population of around 1.7million residents could be seen to amount to an MEP for approximately 850,000 constituents However, it is extremely unlikely that all residents of Northern Ireland would seek to avail of the right to Irish citizenship and thereafter register to vote as European electors under Irish electoral law. Turn out for EP elections is lower than that for national elections and the international experience for external voting has, to date, been disappointing with very low participation rates recorded As seen above, EU law permits significant divergences in the notional ratio of constituents to MEPs as between member states and even within member states. Given the discretion available to member states and the special circumstances of this external voting constituency is submitted that it is unlikely to be inconsistent with the Treaties Neither Bunreacht na heireann nor the European Parliament Act (1997) imposes exacting requirements on the State to ensure approximate equality between all constituencies in all circumstances. The Constituency Commission is required to have regard to such a consideration but this should not prevent it from considering the unique circumstances of Brexit for Northern Ireland and member state practice. It would also be remiss of the Commission not to address the proposal given the widespread political support for protecting the right to vote for Irish citizens in the north. The Commission is not limited to observing the letter of the 1997 Act but should also consider the fundamental values and principles contained in the Constitution and the Treaties The system of voter registration set out in the Electoral Acts also presents difficulties. Currently it is the responsibility of each local authority in the State to prepare and publish a register of European electors. Such an arrangement would not be practicable for the proposal to extend the franchise for EP elections to Irish citizens resident in the north. While the system of voter registration should continue to be managed (or at least supervised) domestically in the State it is suggested that the creation of a registration body dictated to European electors in Northern Ireland may be necessary In the 2017 Presidential Options paper it was estimated that the establishment of a new central voter registration body could take up to 3 years. However, it seems that this time period was necessary as the body would assume the functions of the current 31 local registration authorities and would be tasked with registering Irish citizens around the world This would not be the case with the current proposal as the number of Irish citizens in Northern Ireland is estimated to be considerably less than amongst the Diaspora. Also, there already exists a register of persons eligible to vote in EP elections in Northern Ireland.

33 A new method of registration for European electors in the EP constituency of Northern Ireland would have to be provided for in primary legislation. Without being prescriptive in this course of this opinion the onus could be placed on the individual to apply rather than on the registration body to seek applications. Applicants would presumably have to demonstrate Irish citizenship. This could perhaps be most efficiently achieved by the requirement to possess a current and valid Irish passport. Such an approach was favoured in the 2017 Options paper but it was not the option considered viable. Birth certificate numbers or foreign birth registration numbers could also be employed Residence in Northern Ireland could be demonstrated through presence on the electoral registers in the jurisdiction and/or proof of employment or full-time education or receipt of social security benefits The method of voting in EP elections for Irish citizens resident in Northern Ireland will also require careful consideration. The 2017 Options doubted the practicality of in person voting at Irish embassy and consulate premises across the globe. It also opined that such an operation would not be possible in Northern Ireland given the absence of such premises. Little detailed consideration was given to the possibility of using existing voting premises in the jurisdiction however. This may have been the result of a desire to have consistency for external voters In the case of the proposal to extend voting rights in the EP elections to Irish citizens in the north the use of UK voting centres may be feasible. This would require the co-operation of public authorities in Northern Ireland but such an approach is not without precedent Recent memorable examples include EU citizens voting in their respective national elections in Northern Ireland. The Chinese Welfare Association offices in south Belfast were used for Polish elections in June of The Latvian Consulate Office in Drumalane Mill, the Quays, Newry was used for Latvian elections in July of In May of 2017 tens of thousands of French citizens were reported as casting their votes in the United Kingdom 121. A total of 100,000 citizens were registered to vote with some 93,500 casting a vote 122. The Lycee Francais Charles De Gaulle in Kensington, London was the scene of perhaps the largest queues to vote. The operation was facilitated by the Metropolitan Police Force in the city Therefore, it can be said that the British authorities have, in the recent past, displayed a level of acceptance and admirable co-operation in assisting external voting. This has extended to a relatively large operation in London. 118 Option Paper, pg

34 The Croatian experience is also worthy of mention. The State places no restrictions on the right to vote for non-resident citizens 123. Persons may vote in person on the national territory or in person abroad. Non-resident voters are allocated to dedicated districts. The facilitation of that right was reported in the following manner 124 : In addition to polling stations in Croatia, Croatia voters will be able to vote in the forthcoming Presidential election on 28 December at 90 polling stations in 50 other countries, the State Electoral Commission (DIP) said on Wednesday. Croatian nationals eligible to vote in the presidential election will be able to vote at 15 polling stations in Bosnia and Herzegovina: two at the Croatian Embassy in Sarajevo and ten polling stations at the Croatian consulate in Mostar, two in Tuzla and one in Banja Luka, also to be set up at the premises of Croatia s consulates. Thirteen polling stations will be available in Germany: one in Berlin, Dusseldorf and Hamburg each, two in Frankfurt, three in Munich and five in Stuttgart. Croatian voters will be able to cast their ballots at the Croatian Embassy in Austria and at two locations in Switzerland - Bern and Zurich. Two polling stations are allocated in Serbia Belgrade and Subotica. The Croatian Embassy in Rome and consulates in Milan and Trieste will set up voting booths for Croatians in that country. Four polling stations have been allocated in Australia in Canberra, Melbourne, Perth and Sydney. Four polling stations will also be available in the United States in Washington, Chicago, Los Angeles and New York It is somewhat disappointing that the otherwise impressive 2017 Options paper did not give greater consideration to the benefits and risks of the use of the Croatian system. Such in-person voting in the jurisdiction of residence offers the greatest protection against electoral fraud and would serve to stimulate higher turn-out rates amongst non-resident citizens This omission is particularly unfortunate given the similarity between article 10 of the Croatian Constitution and articles 2 and 3 of Bunreacht na heireann. It provides as follows: The Republic of Croatia shall safeguard the rights and interests of its citizens living or residing abroad, and shall promote their ties to their homeland. The Republic of Croatia shall guarantee particular care and protection to those portions of the Croatian nation in other countries Croatia has made provision for external voting in EP elections also. This is governed by the Republic of Croatia European Parliamentary Elections Act of 15 th July The principal relevant features of that legislation are set out 123 Article 45 of the Constitution of Croatia Described on the file:///c:/users/user/downloads/european_parliamentary_elections_act.pdf

35 35 below: The right to vote is guaranteed to all Croatian citizens regardless of place of residence save for those who are voting in another member state 126 Elections shall be conducted at polling stations in Croatia and in the seats of diplomatic missions and consulates 127 The National Elections Commission has the obligation to establish the polling stations and appoint the poll committees in the seats of diplomatic missions and consulates of the Republic of Croatia 128 Voting for non-resident citizens shall be conducted over 2 days outside the state The provision of voting centres in the Republic of Ireland to cater for Irish citizens resident in the north was not examined in sufficient detail in the 2017 Options paper. However, the Cypriot experience demonstrates it can be implemented in situations where the electorate is geographically close If the preferred option is to be postal voting then the current regime governed by schedule 2 to the European Parliament Act (1997) will require substantial modification. The requirement to vote in the presence of Garda within the confines of a station in the state (or where appropriate in the presence of a person authorised by the DFA) is highly restrictive and could not be described as fit for purpose for a large electorate Northern Ireland However, the long standing reluctance of Ireland to modernise and liberalise its postal voting regime should not be overlooked. The protection of the integrity of the poll is understandably accorded critical importance and concerns about voter fraud should not be underestimated. However, the fact that other western democracies have for many years successfully operated systems of postal votes for non-resident citizens can serve as reassurance If the preferred option is to be in person voting then the Croatian approach should be considered. The task of securing suitable venues in Northern Ireland could be entrusted to a government department. Legislation could then make special arrangements for Irish citizens to vote. Amendment of section 9 and schedule 2 of the European Parliament Elections Act (1997) and its presumption in favour of in person voting at allocated polling stations in the State would be necessary The more accommodating postal voting arrangements in the UK may serve as a model. A postal ballot is available on request in England, Scotland and Wales. Ballots are sent to such voters. While there is a requirement to vote in secret there is no need for any public officials to witness the act. In the most recent EP elections over 7.23 million postal votes were issued amounting to 15.6% of the total UK electorate 130. In none of its reports on UK elections has the Electoral Commission concluded that the integrity of the result was undermined by the use of postal votes. 126 Article Article Article 29(4) 129 Article data/assets/pdf_file/0020/175061/european-parliament-elections Electoral-data-report.pdf

36 36 H. SUMMARY OF CONCLUSIONS The extension of voting rights in EP elections to EU citizens in Northern Ireland will have to be limited to Irish citizens as opposed to all residents of the jurisdiction In producing its report the Constituency Commission should not consider itself limited to the factors listed in section 6(1)(b) of the Electoral Act (1997). Instead it is a body whose responsibilities include the promotion of the values contained in Bunreacht na heireann and the EU Treaties Member states are granted a wide measure of discretion, albeit subject to the Treaty and secondary EU legislation, in how they organise their electoral systems including elections to the European Parliament In its current state of development European Union law does not require that member states provide for external voting for non-resident citizens European Union law imposes no restrictions on the ability of a member State to extend the franchise for EP elections to non-resident citizens The extension of the franchise to non-resident citizens is consistent with the democratic principles on which the European Union is founded The extension of the franchise to non-resident citizens is consistent with widespread state practice in the European Union The extension of the franchise could be said to complement the requirement on the UK government to ensure no diminution of rights of citizens in Northern Ireland occurs as a result of Brexit Ireland appears to operate an almost uniquely restrictive system of external voting A challenge by an Irish citizen deprived of his or her voting rights is at least a real possibility in certain circumstances The extension of voting rights to Irish citizens resident in Northern Ireland would be consistent with EU law The creation of a new constituency of Northern Ireland is primarily a matter of national choice but could not be said to be inconsistent with EU law Any divergence between the ratio of constituents to MEPs in such a new constituency compared with the ratio of constituents to MEPs in the existing constituencies is unlikely to infringe EU law The extension of the franchise for EP elections to Irish citizens resident in Northern Ireland would be entirely consistent with international human rights law and comparative practice across the globe

37 37 The creation of an extra-territorial constituency of Northern Ireland in the EP elections would be consistent with international and comparative practice across the globe In international terms Ireland operates an almost uniquely restrictive system of external voting The Constitution imposes no restrictions on the ability of the State to extend the franchise for EP election to Irish citizens resident in Northern Ireland Such a move would be consistent with the principles of Bunreacht na heireann Such a move would be consistent with the current citizenship regime Such a move would be consistent with the pragmatic approach that has characterised the development of Irish electoral law since the foundation of the State The creation of a EP constituency of Northern Ireland could not be said to constitutionally impermissible The extension of the franchise for EP elections to Irish citizens resident in Northern Ireland would require significant legislative amendments This would include a widening of the current definition of European electors in section 9 of the Electoral Act (1992) and the relevant provisions of the European Parliament Act (1997) (as amended) The creation of a new EP constituency of Northern Ireland can be achieved through amendment of schedule 3 to the European Parliament Act (1997) Any divergence between the ratio of constituents to MEPs in such a new constituency compared with the ratio of constituents to MEPs in the existing constituencies would not be repugnant to the Constitution as the requirements of article 16 do not apply to EP constituencies Any divergence between the ratio of constituents to MEPs in such a new constituency compared with the ratio of constituents to MEPs in the existing constituencies would not contravene any existing legislative provisions The registration of European electors resident in Northern Ireland presents logistical challenges and may require the creation of a new registration body in the State There exist a number of methods by which voting by European electors in Northern Ireland could be effected. None are without difficulties but the provision of postal voting appears to be the most appropriate. This would require significant amendments to the current regime as contained in schedule 2 to the European Parliament Postal voting is not an entirely new prospect in Irish electoral law. The exclusive means by which votes are cast for the University panels in the Seanad.

38 38 If the preferred option is to be in person voting in Northern Ireland it would require the enactment of primary legislation by the Oireachtas. This would also require amendment of section 9 of the European Parliament Elections Act (1997) which provides that the ordinary manner of voting is in person at allotted polling stations in the State The Croatian approach could serve as a model. Its constitutional values echo our own, the task of establishing and operating voting centres is provided for in law and it has successfully operated this system in a wide number of countries In the recent past the UK has allowed and provided practical assistance to in-person voting by citizens of other member states of the European Union in various national elections. The provision of such facilities for Irish citizens in the north should also be considered

39 39

40 40