Following the UK’s exit from the EU, the UK Government stated that “there should not be a continued, automatic right to vote and stand in local elections solely by virtue of being an EU citizen”.
The Government has now laid the draft regulations in Parliament to change the voting rights of EU citizens and their right to stand for some local elections.
This analysis outlines the forthcoming modifications in detail.
Why can EU citizens vote and stand in local elections?
In the mid-1990s the European Union passed a directive, a type of EU law, on voting rights, which came into effect in 1996. This allowed citizens of an EU member state to vote and stand as a candidate in local elections in another EU member state if they were resident there.
This only applied to local elections, and member states continued to determine who could vote in their own national elections.
The main piece of UK legislation setting out who can vote in the UK is the Representation of the People Act 1983. This was amended to reflect the new eligibility after the EU directive.
What happened when the UK left the EU?
When the UK left the EU, citizens of all EU countries who were resident in the UK initially retained their existing voting rights, which were set out in the amended 1983 Act. Until the Act was amended again, nothing changed.
The UK Government had wanted to make reciprocal voting rights part of the negotiations for the UK’s exit from the EU. This did not happen. Instead, the UK said it would negotiate agreements with individual EU countries.
As of July 2023, four agreements have been reached with Spain, Portugal, Luxembourg and Poland. These agreements will become important now that the rules are changing (see below).
Elections Act 2022
The Elections Act was passed in April 2022. Section 15 of the Act allowed the necessary amendments to the 1983 Act to change the voting and candidacy rights of EU citizens. As explained below, the changes only apply in England and Northern Ireland.
However, the provisions were not brought into force straight away. To activate the changes, additional regulations were required (these were contained in secondary legislation, also known as a statutory instrument). These were laid in Parliament in draft form in July 2023.
Both Houses of Parliament must approve the draft legislation before it can be implemented. This likely to be by the end of 2023 and the draft legislation states the intention that the changes will take effect after local elections in May 2024.
What will change?
England and Northern Ireland
From 7 May 2024 EU citizens’ voting and candidacy rights will depend on when they moved to the UK and which country they are from. The cut-off date is 1 January 2021. This was the end of the implementation period of the Withdrawal Agreement, after the UK left the EU but when EU law still applied in the UK. It formally ended at 11pm on 31 December 2020 UK time.
Electoral registration officers will be required to check whether an EU citizen currently registered can remain registered to vote.
Registration officers will also have the right to check the immigration status of EU citizens to determine their eligibility to register to vote.
EU citizens resident in the UK before 1 January 2021
These EU citizens will retain their voting and candidacy rights for local elections in England and Northern Ireland and elections to the Northern Ireland Assembly if they retain a lawful immigration status.
EU citizens resident in the UK from 1 January 2021
EU citizens who are resident in England and Northern Ireland and arrived in the UK from 1 January 2021 will only get local election voting rights if there is a bilateral agreement between the UK and their home country.
Scotland and Wales
Responsibility for local and devolved elections in Scotland and Wales lies with the governments and parliaments in those parts of the UK. It includes deciding who can vote in those elections.
Both Scotland and Wales have already changed the rules on who can vote in their local and devolved elections.
Any foreign nationals who are legally resident can now vote in or stand for elections for their local council or the Scottish Parliament or Senedd Cymru. This includes all EU citizens who move to Scotland or Wales regardless of when they arrived in the UK.
What about British citizens living in EU countries?
British citizens resident in EU countries will only get local election voting and candidacy rights according to the law in the country they are living in.
UK nationals can already vote in local elections in Belgium, Denmark, Estonia, Finland, Ireland, Lithuania, the Netherlands, Slovakia, Slovenia, and Sweden. Domestic legislation in these countries already allows all non-EU citizens to register to vote in local elections (subject to varying residency and registration requirements).
In the countries where the UK has signed a post-Brexit reciprocal voting rights agreement (Spain, Portugal, Luxembourg and Poland), British citizens resident in those countries will retain voting rights (subject to local residency and registration requirements).
In EU countries where there is no domestic right for non-EU citizens to vote in local elections, and no reciprocal agreement with the UK, British citizens will not be able to vote. In these places, such as France and Germany, British citizens lost their local election voting rights at the end of the implementation period when the UK left the EU.