Professor Colin Harvey is professor of human rights at the school of law in Queens University Belfast. Mark Bassett is a barrister in independent practice. They made a joint presentation to the Oireachtas GFA committee on the 18th May 2017.
1. Non-resident voting rights raise important questions concerning equal citizenship. This includes Irish citizens in Northern Ireland. The relatively modest proposal of an extended franchise for Presidential elections received overwhelming support at the Constitutional Convention in 2013. There also appears to be widespread political support for taking this forward amongst political parties in the Republic. It is important that what is a small and welcome step away from a comparatively restrictive regime is not presented in alarmist terms.
2. Ireland is relatively generous in granting citizenship, but it has one of the more restrictive systems when it comes to an entitlement to vote for citizens, as it generally ties the right closely to current or recent residence (an individual’s entitlement to vote in the general election and Presidential elections is contingent upon being on the register of Dáil electors in a particular constituency).
3. 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. It cannot be said to follow the ‘all-contributing’ or ‘all subjected’ principles, since those resident in the state but who do not hold Irish or British citizenship (or EU citizenship when relevant) are excluded despite their being subject to taxation and state regulation of their behaviour. Neither is it consistent with the ‘stakeholder’ principle, which supposes that those who hold a special connection or allegiance to the state should participate in democratic life, since non-resident citizens are largely excluded.
4. For a state, like Ireland, with so many citizens resident elsewhere, legitimate questions arise over what that citizenship entails and what it should bring with it. Ireland has particular circumstances that make this a pressing question. Much has been done to celebrate and acknowledge the role of the Irish diaspora, and there is oft cited concern expressed for the rights of Irish citizens in or from Northern Ireland (with parity of esteem and mutual respect embedded in the fundamentals of the Good Friday Agreement). But what does it really mean today to be an Irish citizen resident outside of the state? For most it appears to mean very little in terms of democratic entitlements in Ireland. The question is complicated further by the constitutional position of Northern Ireland – where there is a declared right (underpinned by the British-Irish Agreement) to identify and be accepted as Irish or British or both (as an entitlement/birthright and a matter of choice.
5. As one example, Irish citizens born and resident in Northern Ireland (and who may have lived their entire life on the island of Ireland) may never get to vote in any Irish elections Is this a genuine problem of equal citizenship or is it a logical outworking of the division of democratic entitlement on the island and more generally? We believe that giving Irish citizens resident outside the state (including those in Northern Ireland) the constitutional right to vote in Presidential elections is a basic step in recognising the significance of equal citizenship on an inclusive basis.
6. We believe that this is an issue that transcends party politics, and speaks directly to what it means to be an Irish citizen in a context where the Irish community is dispersed throughout the globe and is significantly transnational in nature. It is possible that participation rates might be high in Northern Ireland. This does not seem, to us, to be a convincing basis for either support or rejection of the idea. Ultimately it might encourage all political parties in Ireland to think productively about the position of non-resident Irish citizens.
7. It seems to us that the exclusion of Irish citizens in Northern Ireland from voting in Presidential elections cannot be sustained, and inclusion should not have to wait for a future decision to leave the UK (through the exercise of the self-determination mechanisms of the Good Friday Agreement). We view this as one element only of guaranteeing forms of equal citizenship more aligned with the welcoming spirit so often evident in the language of practical politics.
8. There are many questions raised by debates on voting rights, including the considerable number of people who are routinely excluded precisely because they lack the citizenship of the state they are. We therefore believe that discussion of voting rights in Presidential elections is one part only of a larger conversation about extending democratic inclusion in our increasingly interdependent world. It is a principled reform that can be justified, reflects comparative experience and that can be realised in practice.