Bitesize Guide to 

Brexit and the right to vote in local elections

One of the rights we lose immediately after Brexit day in France, even during the transition period (specific exclusion under Article 127 of the WA), is the right to vote that Britons have hitherto enjoyed as an attribute of our EU citizenship (Directive 94/80/EC, 19 December 1994, see also Charter of Fundamental Rights, Article 40). EU citizens can vote in local and European Parliament elections in their host State. In certain EU States the franchise for local elections is extended to other residents too (third-country nationals “TCNs”), sometimes subject to a residence criterion or other status (e.g. Commonwealth citizens in the UK). This is not the case in France, where the Constitution (Article 88-3) provides that only EU citizens can vote in municipal elections (see also Code électoral Article L.O. 227-1). Over the past few decades the extension of this vote to all residents has been promoted by left-wing politicians – promised by Presidents Mitterrand and Hollande – but the reform has never come about, being a sensitive political issue in France. We can only hope that one day this right will finally be extended to TCNs, but it has always been unlikely that an exception would be made just because of Brexit.

In the negotiations on the Withdrawal Agreement (WA) the EU refused to include the subject of voting rights as it was a matter of national competence (it would have made the WA a “mixed agreement” requiring national ratifications). The issue was nevertheless pushed by the UK Government, which heavily criticised the EU for excluding the right to vote in local elections. However, this right was not in the UK’s original White Paper on citizens’ rights, so it was probably seen as a way of taking the moral high ground after the negotiations began. On 9 August 2017 David Davis wrote to Lord Jay: “We have made it clear that we stand ready to protect the rights of EU nationals living in the UK to stand and vote in municipal elections”. The UK subsequently entered into a small number of “bilateral voting rights agreements” with countries which already allowed for voting by TCNs – Spain, Portugal and Luxembourg – but the Brits in those countries must have lived there for a certain period to be able to vote (and the agreements apply to future migrants too). EU citizens from those States will be able to maintain their voting rights in the UK.

France, by contrast, would have to change its Constitution in order to maintain our rights to vote and to stand in local elections. Those of us who have been registered to vote as britanniques will have been listed on a liste électorale complémentaire annexed to the main electoral roll and local authorities have now received instructions to strike us off the list with effect from 1 February. Anyone who has obtained another EU nationality will be able to remain on the roll by re-registering at the mairie. For those who have become French in 2019 (or since) this registration may be automatic (see the link to verify this). The deadline for registration to vote in the forthcoming municipals is 7 February (with an extension for a few categories, including those who acquire French nationality after that date, until 5 March).

RIFT members often speculate about the chances of bringing legal proceedings to complain of the deprivation of voting rights as a result of Brexit. Some cases have already been brought about the loss of EU citizenship more generally (ECJ, ECtHR, Amsterdam court), of which voting rights is a key issue, but with no success to date. Since the actual loss of these particular rights is being implemented by our host State, France, which theoretically could have amended its laws to remedy this, an administrative-law case would probably have to be brought here, i.e. a case against the deletion of our names from the electoral roll by the INSEE (under Article L16,III-2° of the Code électoral), but it would be a long shot. Once of the obstacles is that the right to vote in municipal elections does not fall within the relevant provision of the European Convention on Human Rights (Article 3 of Protocol No. 1), which refers to the “choice of the legislature”, covering general elections and also European Parliament elections, but excluding other elections.

In conclusion, the loss of voting rights in the French municipals is felt all the more acutely as those elections are coming up (15 and 22 March) shortly after Brexit day. It is particularly infuriating for those many Brits who have been municipal councillors, sometimes for 20 years or more, and who will no longer be able to stand (they will remain in office until the elections). Research by Dr Sue Collard of Sussex University estimated 900 British councillors in France, but a more recent source gives the lower figure of 757 (mainly in Charente, Dordogne, Aude ...). The French press has only now become aware of this issue and there have been a number of articles about British councillors who are forced to stand down (Le Parisien, Le Monde, Le Progrès), including some RIFT members.

James Brannan 31 January 2020

RIFT

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