In some respects the Brexit referendum itself was a violation of human rights, argues Adrian Low. Three substantial groups were denied the opportunity to vote when inclusion of any two of those groups would almost certainly have reversed the result. Rational democratic decision-making was negated by a campaign of exaggeration and lies and unnecessary poll predictions encouraged complacency in the turnout for Remain.
The connection between human rights and democracy is well known. It is written into many national constitutions, in the UN declaration on human rights and in the EU treaties. Statements typically say that individuals, irrespective of country, culture and context, are equal in dignity and rights and a country’s democratic processes should protect the individual’s opportunity to influence their governance and uphold their human rights.
The European Court of Human Rights, for example, has highlighted the human right to elected representation and has developed case-law guidance on the rights of citizens to vote.
The UK Human Rights Act includes three areas where the Brexit vote has, or potentially will, deny human rights. These are Article 3 of Protocol 1: the right to the free expression of the opinion of the people, (in elections/referenda); Article 14 which makes it illegal to discriminate on a wide range of grounds including … national or social origin, and Article 5: the right to liberty and security.
The Brexit vote potentially affects many EU and UK expats’ ability to retain their current home, the current education of their children, to be able to afford health care, to own property and businesses, to employ others to live securely and to travel freely etc. It is a basic human right for each such individual to have a voice and to have a vote.
Three groups were denied the right to vote at the referendum. They were not offered the opportunity to influence the outcome.
Denial of resident rights
The first group comprises most EU (non-UK) citizens resident in the UK. This is the largest group of about 3.3 million people or 5% of the population of the UK. There are two human rights issues.
Firstly the issue of unequal treatment based on nationality. Essentially the UK has two electoral registers. One is for local and EU elections, the other for Westminster elections. The first register includes all EU residents in the UK. The second register only includes residents from the EU who are citizens of the UK, Eire, Malta and the Republic of Cyprus. On 25th May 2015 the UK government chose to use the second register plus Gibraltar (only 30,000) for the referendum on Britain in the EU. Consequently, although some residents from the EU who are not UK citizens were allowed to vote, most were not. The right to vote depended on which country they came from. Denying the opportunity to vote in such a crucial referendum simply because the UK resident is a citizen of country A (France, for example) rather than country B (Malta, say) is a denial of the human rights of the UK resident who is a citizen of country A, contrary to Article 14 of the UK Human Rights Act where discrimination is not allowed on the basis of national origin.
Citizens of the commonwealth (such as Australia, Canada, New Zealand, Pakistan, India, Bangladesh, but also including Malta (EU) and Republic of Cyprus (EU) etc.) who were resident in the UK were given a vote. Citizens of Eire resident in the UK, Eire being in the EU but not in the Commonwealth, were also given a vote. Citizens of Gibraltar were given a vote in Gibraltar. Other EU citizens resident in the UK were not permitted to vote. Had it been a European election or a local election they would have had a vote. That use of this electoral register, in this case, denied universal and equal suffrage precisely when the issue is crucial to EU residents. It was a major error of judgement that was also contrary to the UN declaration of human rights (Article 21(3)):
The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage…
Secondly the right to a voice. Residents in the UK most likely to be affected by a decision to leave the European Union are precisely those EU citizens who are working in the UK with families in schools, with their own businesses, some employing UK staff, many owning their own homes and most contributing to the tax income of the UK. They are now in no man’s land with respect to their future. This potentially denies them in the future their liberty and security in this country. Denying those most affected any say in their future is denying a basic human right. (Article 5 UKHRA)
EU residents in the UK comprise about 3.3 million people. The referendum majority for Brexit was 1.3million and it is likely that most EU citizens resident in the UK would have voted to remain. With no say in the referendum any eventual removal of the non-UK EU residents from the UK were that to be the result of negotiations, would effectively amount to the UK implementing a nationalistic ethnic cleansing.
Denial of expat rights
The second group is the expats who have lived outside of the UK for 15 years or more. Some of them work abroad because that is what their employer requires of them. Others choose to live there for reasons of health or living standards, some retire there precisely because, embedded in EU legislation, there are reciprocal residency, education, land ownership and healthcare rights. The Conservative Party manifesto in 2015 recognised this 15-year limit to be an anomaly and they have begun to reverse the position enabling all expats to vote in a consultation document ironically entitled A democracy that works for everyone. But that is too late for the Brexit vote. Many countries impose no time limit. The USA, for example, gives the right to vote for life whilst still a US citizen.
There is also a long-standing principle that if you pay tax to a country you have the human right to have your voice heard in the politics of that country. The concept of no taxation without representation came about when America, in 1765 was a colony of the British, who tried to tax the colony without giving them any voice in the UK legislature. The current 15-year limit is arbitrary and therefore neither universal nor equal. Estimates suggest about 700,000 such expats live in the EU. It is likely that most would vote to remain.
Denial of youth rights
The third group only emerged as a group in 2014. When the Scottish independence vote was taken, UK law allowed regional votes to included young people aged between 16 and 18. The argument made for their inclusion was that they would live long with the consequence. They are not allowed to vote in national votes, but only in regional votes. That is neither universal nor equal.
The Scottish referendum was a national vote for Scotland, the nation. Many feel that the UK Brexit referendum is at least as important as the Scottish independence referendum. According to the National Union of Students, 76% of the 16-18 age group wanted to vote. It is a broken system that allows the young people to be heard in referendum A, a referendum key to their future but not in referendum B, equally, key to their future. That is a denial of their human rights. There are about 1.5 million 16-18 year olds and those in the 18-24 age group who voted did so 75% for remain.
Denial of the proper factual basis of a right of free choice
Democracy requires truthful campaigns and the quality of both Brexit campaigns was very poor. When campaigners tell lies and some elements of the media exaggerate them, somehow the electorate is expected to discover the lies and make a rational decision on truth. That is not always possible. If some hear the lie and do not hear the counter argument then they may vote accordingly. Both campaigns exaggerated. The Leave campaign had a battle bus suggesting that the UK paid £350million per week to the EU without pointing out that the EU pays £283million per week back to the UK. The net outflow is £67million per week. Further posters displayed the suggestion that the same £350million every week could, instead, be given to the NHS if the UK were to leave the EU. That was a gross lie and the country would be bankrupting itself if it attempted to do so.
Deciding which way to vote based on exaggerations or on lies is not democracy. Democracy depends on people voting after some forethought based on a truthful debate. The Brexit campaign and heavily biased media corrupted the democratic process. Hearing the truth is a human right which should not be denied for political ends.
Late Polls – a problem in themselves
Compelling arguments about the influence of last-minute polls have been made in both the Brexit referendum and the US presidential vote. Where polls indicated one outcome was likely it meant some voters who would have voted for that outcome, did not bother to vote because they believed the outcome was already in the bag. Indirectly, therefore, last-minute polls undermine the proper democratic process. It is no coincidence that the vast majority of polls both before and since the referendum have shown that the country favours staying in the EU.
The proper democratic response
There are four alternatives
- Unpalatable it may be, but the preferable way forward is to re-run the referendum, recognising the previous referendum as (a) a failure to engage with all those who should fairly have had a voice and (b) that truth was badly compromised in much of the campaign. A second referendum should be called when the original referendum bill has been amended to include all the groups that should fairly be allowed to vote and when the (local/EU) electoral register has been duly updated. That will not happen overnight. The campaign should be re-run with proper legal safeguards on advertising and rhetoric, without any published polling in the final two weeks of the campaign.
- Alternatively, any final negotiations should be put to the UK public, with due care for human rights in the use of the right electoral register. As in 1. above, facts should be clear and not driven by newspaper headlines or political rhetoric, but by the truth.
- The Supreme Court now expects parliament to vote on whether Article 50 should be invoked. Given the significant abuse of human rights argued in this article, the answer should be that it is not invoked. Then alternative 1. should be implemented to be sure of a proper way forward.
- If none of these is possible then there should be an appeal to law in the UK, or the EU Court of Human Rights, brought by some EU (non-UK/Malta/Eire/RU Cyprus) residents of the UK claiming the denial of their human rights and the opportunity to vote on a critical life issue for many of them.
Doing one of these will begin restoring faith in the democratic process and only then will the country become less divided, recognising the proper fairness of the democratic systems and respecting the human rights of all affected by any subsequent decision.
Please read our comments policy before commenting.
Note: This article was first published at LSE’s Brexit blog. It gives the views of the author, and not the position of EUROPP – European Politics and Policy, nor of the London School of Economics. It is based on a recent talk by the author at South East European Studies at Oxford (SEESOX).
Adrian Low – Staffordshire University
Revd. Adrian Low is Emeritus Professor of Computing Education at Staffordshire University and Church of England priest for the Costa del Sol West Chaplaincy in Spain.
If only every one agreed with him and voted accordingly, the world would be a beautiful place.
Sorry chump, you’re wrong and dressing up irrational arguments as LSE ‘expertise’ shows once again that ‘experts’ can be as stupid as anyone else.
What a surprisingly biased article….
Poor Brian Tomlinson and JcL, (whoever you are), poor you… You are both wrong as well as biased and Adrian is absolutely right, spot on…!!! [Just like these two, I can point the finger and that’s it….!!! No need to explain or evidence my statements: I could, but there is no need, is there…?]
I agree totally with this article. However if the arguments presented here are valid, then why has there been no high court case brought?
Nice try but you are not on, this was a unique vote for natives of our lands that is it!
And Cyprus… and Ireland….. Skim reading is a useful skill, but not always.
You can morally agree with this article, however, the reason this did not go to Court on the basis of this articles points is that there are no cases to answer for as no wrongdoing was done!
It did go to court, The High Court and the Court of Appeal both declared that if the referendum had been binding in law it would have been illegal but that,as it had no force in law they could not make a ruling.
For one, certainly for British citizens living outside the UK in member states, the ECHR ruled in 2013 that the 15 year rule (introduced by Labour in the Political Parties Elections and Referendums Act 2000) did not breach the human rights of British citizens living outside the UK.The
I am amazed the author appeared not to know that.
Also, in 2016, the UK supreme court ruled that the PPERA 2000 15 year rule did not breach the EU citizens rights of British citizens living in other member states.
With regard to member state citizens living in the EU, as far as I can see no member state allows the citizens of other member states to vote in their own national elections and referendums.
The position of Irish, Maltese and Cypriot citiZens is super to their status as commonwealth countries and predates the EC, let alone the EU, by years.
If the author believes the position in the UK is a breach of human rights, then the position in those other member states is also a breach of human rights.
None of those states have held referendums where a fundamental change in the rights of citizens was on the ballot paper. You can’t claim other states are breaching human rights when they haven’t made that decision.
Clutching at straws, ludicrous that a non domicile should have a right to vote to protect their status this is typical of all that is wrong with the EU convention on human rights and also typical of the remain grab
The author seems to be confused over the difference between ‘national origin’ and ‘citizenship’.
Soros will love this guy. It’s one world order and to heck with sovereign countries and its citizens’ rights. So let’s assume this guy has a point. We can break his argument into 2 parts:
1) So by his logic, British expats should be able to vote in their country of Residency , similarly to his claim EU citizens, residending in UK, should have a voting say in UK. In other words, one’s residency status in any EU country should give you the right to vote in that country.
2) The second point is that he believes the same expats, who can vote in their country of residency, should also be allowed to vote back home.
So while the expats and foreign UK residents should be allowed to vote in both their home countries as well as in their countries of Residence, Those poor slepps that stayed in their own country only get to vote in one country
Ouch, my brain hurts ?
It’s not as simple as a blank statement of everyone should get one vote.
British citizens are nationals and the fundamental democratic right should not abritarily removed because they happen to be out of their own country at that moment in time. Chances are they contributed a lifetime of tax ect to the UK, they may still do so in fact. They might return to the UK. They might have family in the UK they care for. It’s their national right to vote in their own country and that cannot be taken from citizens.
Equally they have a stake in their country of residence. They may be paying taxes there. They may be raising their children there. Working there…. national policies will also affect them, they are contributing to the country in one way or another and part of that community also. So yes if full residents they could be allowed to vote.
A Brit living in Britain has got no stake in another country so there is neither need or claim for voting in additional countries.
I get to vote in three because those are my rights and policies in those three countries directly affect me.
What I dont get to do is vote 3 times in the same election ie EU elections. I know my legal obligations. No need to be policed by randoms.
When it comes to the referendum, this vote directly affects British citizens abroad existing rights to live work and study across the EU. Those existing rights, upon which life plans have been made, are currently being taken away from them.
And they were not allowed to vote (anyone 15+ years abroad).
So basically the rules should be those that best favour us staying in the EU, that if we fail to achieve that first time around, then we should alter the rules and hold subsequent referenda until such times as the right result occurs. In his mind it is regrettable that the Remoaners lost because pimply youths, EU citizens with a vested interest in us remaining in, and British citizens who have not lived in the UK for over 15 years were not allowed to vote.
Low also says it should be rerun because in his opinion there were untruths told by the Brexit camp during the campaign, whereas the Remain camp of course was squeaky clean and there was no Project Fear, no Government sponsored advice to vote for Remain costing the tax payers £9 million, no support from the Prime Minister or the Chancellor of the Exchequer, the Governor of the Bank of England or the President of the United States.Perhaps Low would like to quantify the increase in the votes to Leave had these factors been taken into account.
If he believes that these excuses are breaches of law, and feels so strongly about it, then instead of bleating about it, why doesn’t he do a Gina Miller and take it to court?
I have no doubt in my mind that had the result been a vote to remain in the EU, Low would have been telling everybody who questioned it to accept the verdict with good grace. If he is such a strong advocate of democracy, then perhaps he will give us his thoughts on why the British electorate were not given the chance to have voted on the Treaties of Maastricht, Amsterdam, Nice and Lisbon.
“In his mind it is regrettable that the Remoaners lost because pimply youths, EU citizens with a vested interest in us remaining in, and British citizens who have not lived in the UK for over 15 years were not allowed to vote.”
The addition of the word ‘pimply’ does not make this statement untrue. You’ve just repeated his article back to him, with some added snark. I also enjoy the use of ‘vested interest’ for the EU citizens, as if having a vested interest (as in, something to lose, like human rights and the country you fucking live in) is somehow a bad thing. Compared to say, some fucking cunt voting Leave despite it having no discernible effect on his life beyond being able to yell at the Poles without feeling guilty.
And then to round it off an attack on your own fucking countrymen, who, despite living outside the UK for over 15 years, may have to come home if our government decides to play Freedom of Movement chicken with the EU. Just another ‘vested interest’ for you to sneer at, though.
Heaven for fucking bid people with a stake in the outcome play a part in it.
Whether you agree or not with the outcome, the referendum was not well set up. Voting no was an obvious vote for the status quo, but voting yes was a vote for…. not even the organisers seem to agree on what Brexit means, apart from Brexit. Ah, but is it a hard Brexit, soft Brexit, deal, no deal….
Don’t agree that the polls are a problem, If you don’t bother to vote because the polls show your side ahead, and your side go on to lose, quite frankly you deserve everything you get !
Agree Brits living abroad Should of had a vote and so should of EU nationals living in UK. Not so sure about 16-17 year olds as you have to draw the lower age limit somewhere.
The main difference between who got to vote and who did not, is that those countries included were all former colonies or dependencies of the UK, when it was still Great Britain. I can see that there would be a reason for letting them have their say about Brexit, and can see that as they would once again be able to work in the UK after Brexit, they would possibly vote stay (except Gibraltar, but that is because Gib has a problem with Spain) and I can equally see that not allowing EU citizens a vote makes sense, because logically Turkeys do not vote for Christmas or Thanksgiving.
you advocate giving the right to vote based on outcome : if someone is likely to vote the government’s way, he/she should have it.
do you realise how anti-democratic and autocratic such a pattern is ?
voting rights is not about pattern, it’s about basic UNIVERSAL human freedom and enfranchisement. or by your standard, who gets to have access to NHS ? those who voted for the government ?
who gets to buy a house ? those who are tall ?
Oh dear, I did not know that you vote -every year? – for Christmas and Thanksgiving?
In which planet do you leave?
Excellent article. Thank you
Regardless of the propaganda on either sides of the referendum vote I would have voted to leave. Have looked for the opportunity to undo my previous vote to join EU for several years. What it has become is not what I voted for all those years ago.
Is any individual, political party or any other organisation testing this in court?
As one of those British citizens who have been out of the country for over 15 years for residential purposes and yet a very frequent visitor to the UK, firstly I am incensed not to have been given the right to vote as I feel British, have never applied for foreign citizenship and am yet potentially highly affected by the vote to leave the EU. As the article says, I am effectively unable to vote in either UK or national elections where I live. Secondly, I am appalled that one of the main reasons for calling the vote in the first place seems to bave had more to do with internal conservative politics than with any resounding dissatisfaction with the EU. Thirdly, the general opinion seems to be that the UK will emerge as a poorer nation and a smaller player on the world stage, giving up its chance to influence a stronger and healthier Europe. What a mess!
Beyond all of the various reasons given in the article, taking away EU citizenship of UK citizens should require a process that ensures not a single citizen is disenfranchised (for example, polling could be conducted post-negotiation on the agreed day for leaving and taking the citizenship away). It should not be constitutional to take away my citizenship without ever having given me a vote (much as with those who were youths in 2016, I am also an adult UK (and EU) citizen who has not been given an opportunity to vote at all on the issue of Brexit.
Furthermore, for any democratic process that involves taking away citizenship rights, a simple majority should not be enough. Stripping an entire people of their citizenship and all of the rights that are afforded by that citizenship is a very serious matter that should be protected by international and constitutional law and only taken away following a very deliberate and carefully conducted process. It is possible that nothing short of unanimous consent would be enough to make it legal to strip people of their citizenship rights. It is hard to argue that anyone should have the right to take away the citizenship rights of anyone else unless they have done something wrong. In that content, Brexit could be legal if it included the provision of continued full EU citizenship for all those currently enjoying them – this would be consistent with historical precedent such as the Irish having the right to UK citizenship. A Brexit that takes place over the course over a transition period lasting for about a century might be acceptable.
We need to take the UK government to court to ask for an injunction against any form of Brexit that denies EU citizens of their rights without due process. Article 50 requires that we leave according to our constitutional principles. We don’t have a written constitution so we must argue in court to defend our rights. I would argue that our rights to continue being recognised as EU citizens are more important than any other arguments, and any Brexit that does not respect our rights should be considered illegal.
I totally agree with Adrians comments.
Irrespective of which camp you fall into remain or leave, democracy as not been served.
I wonder how these arguments will translate into voting rights for the next referendum on Scottish independence?