The fight that shames Priti Patel’s pledge to treat all migrants equally and fairly

Just over one year ago this month, over one million people were denied their fundamental right to vote. Britain’s last set of European elections, held on May 23rd, 2019, may not seem of particular importance now that the United Kingdom has left the European Union. But an important democratic principle and civil rights issue is at stake.

This is the finding of the Electoral Commission, the independent institution that regulates party and election finances and sets standards for how elections should be run. The Commission formally investigated the conduct of this election, producing a special report in November last year that concluded ‘people who were entitled to vote and wanted to vote in the European Parliament elections in the UK were unable to do so.’ The report adds: ‘This is unacceptable in a modern democracy. Many of them rightly felt frustrated, disappointed, and angry that they were unable to vote.’

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The Commission further found that significant numbers of British citizens resident abroad were unable to exercise their democratic rights.

Following the Commission’s report, the High Court ruled in January that a court case addressing this denial of voting rights should proceed because of the obvious public interest in the outcome. The case asks the court to rule that last year’s disenfranchisement was unlawful, and establish a precedent that discrimination against EU nationals as a group is as unlawful as it is unacceptable in a democracy.

On polling day, EU citizens legally resident in the UK were turned away from polling stations unable to exercise their voting rights—having the right to choose whether to do so in their country of origin or the UK, where they are resident. A requirement for EU nationals to fill in an additional declaration form to register to vote, resulted in many being turned away despite being on the electoral register. It soon became clear that many electoral registration officers had not sent the form out to resident EU citizens on their register, or sent it out late. This failure resulted in a huge drop in the number of EU citizens eligible to vote, from over one million to some 300,000.

A new court case is crowdfunded by the3million, a grassroots group which defends the rights of EU27 nationals in the UK and also is supported by British in Europe, which campaigns for the rights of British citizens in Europe post-Brexit. The court case isn’t merely about righting a wrong but also establishing the principle that the government has a legal duty to ensure that all those who have a right to vote are able to do so going forward

As the local and mayoral elections that were due to take place this month were postponed by a year due to coronavirus, many supporters of the group now fear it is the last time they were able to vote in any election.

While most rights to live and remain are being secured through agreements with the EU, the UK’s request that this include retaining local election rights was rejected by the EU, which argued that they are a sovereign national matter, not an EU competence.

The government subsequently pledged to retain the legislation that allows EU citizens to vote and stand in the local and mayoral elections that were due to take place on May 5th, the postponement of those elections has not been matched by a commitment to retain that pledge for a further year, let alone to commitments beyond.

On the contrary, to the alarm of many EU citizens, the government has also announced a strategy since, of pursuing reciprocal bilateral agreements on local voting rights with each individual EU nation, which threaten to disenfranchise some but not others. This has only led to positive responses from 3 countries so far — Spain, Portugal and Luxembourg, not for lack of goodwill from others.

France and Germany have constitutional prohibitions on voting rights for non-EU nationals, but British migrants will still be able to vote locally in Denmark, Finland, Sweden, the Netherlands while their citizens in the UK merely have that verbal commitment to being allowed to vote in the local elections which didn’t take place on May 5th. These countries use the principle of universally granting local voting rights to all residents regardless of nationality, which is also applied by Australia, New Zealand, Jersey and most recently Scotland and Wales.

It doesn’t have to be this way. As Britain moves to an immigration system that is supposedly ‘more fair and equal,’ it should bear in mind that Commonwealth and Irish citizens enjoy voting rights at all elections in the UK and that the government granted these rights without being asked to do so and without regard to whether they were reciprocated. More than 100 years after the Representation of the People Act 1918, which enshrined these rights, we surely should consider whether it’s acceptable to treat other immigrants as less deserving?

The vision presented in the speech on the Immigration Bill, Priti Patel suggested that she wants a future under which all immigrants are treated equally and fairly.

During the 2016 referendum, Boris Johnson, now Prime Minister, pledged that post-Brexit ‘[t]here will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and be treated no less favourably than they are at present.’

This pledge Johnson reaffirmed in his first House of Commons statement as prime minister, saying that he wished to ‘repeat unequivocally our guarantee to the 3.2 million EU nationals now living and working among us.’ He added: ‘I thank them for their contribution to our society and for their patience, and I can assure them that, under this Government, they will have the absolute certainty for the right to live and remain.’

The concept of ‘no change’ must include retaining the franchise to vote in local elections, and if Patel’s words are to be taken at value, then any change should actually be a levelling up of electoral rights to make all immigrants more equal.

It is unacceptable in the home of the mother of Parliaments, that people who were entitled to vote in the UK were unable to do so. The High Court should now rule last year’s disenfranchisement unlawful, and establish a precedent that discrimination against EU nationals as a group indeed is, in a democracy, as unlawful as it is unacceptable, the government would do well to make a clear legal commitment to protecting the franchise of these people to vote in future.

• Barnaby Towns is a former Conservative Party special adviser