Part 2: Overseas Electors and EU Citizens Voting and Candidacy Rights of EU citizens Schedule 8: Voting and Candidacy Rights of EU citizens Part 1 - Amendments to the Representation of the People Act 1983
Paragraph 1(1) amends the franchise for local government electors as set out in section 2 of the RPA 1983, but only for England. New sub-paragraphs (i) & (ii) are inserted into section 2(1)(c) which relate, respectively, to the local franchises in England and Wales. The impact of this is that the local franchise in England is amended, whilst the local franchise in Wales is not. The new sub-paragraph (c)(i), which relates to England only, substitutes the term ‘relevant citizen of the Union’ with two new terms: ‘qualifying EU citizen’ and ‘EU citizen with retained rights’. The effect of the amendments will be that only those EU citizens captured by the new terms will be able to vote in local government elections in England. EU citizens who are not captured by the new definitions will no longer be able to vote in those elections and referendums.
	Paragraph 1(2) amends section 4(3) of the RPA 1983 which sets out the entitlement of a person to register as a local government elector in England and Wales. The effect of these amendments will be that only those EU citizens captured by the new definitions of EU citizens will be entitled to register as local government electors in England. EU citizens who are not captured by the new definitions will no longer be entitled to do so.
	This paragraph extends to Northern Ireland as provided for in section 66(4)(b). Section 4(3) of the RPA 1983 is applied to local elections in Northern Ireland by Part 1 of Schedule 1 to the Elected Authorities (Northern Ireland) Act 1989. The effect of this is that the substitution of the terms described above will apply to local elections in Northern Ireland and only the newly defined groups will be entitled to register to vote.
	This change will flow through to all elections and referendums that use the local government register and are reserved to the UK Government, including: all levels of local election in England and Northern Ireland, including parish elections; London mayoral and London Assembly elections; Northern Ireland Assembly elections; local authority mayoral and combined authority mayoral; Police and Crime Commissioner (PCC) elections (note that the local government franchise is only used for PCC elections in England, and that particular amendments are made to the Police Reform and Social Responsibility Act 2011 to give effect to the franchise change in respect of PCC elections in Wales); as well as local authority governance referendums, local council tax referendums, neighbourhood planning referendums and parish polls. As a result of amendments made by paragraph 2 of Schedule 8, these changes will also be applied to ward elections for common councillors in the City of London.
	Paragraph 1(3) to (7) makes a number of amendments, as a result of the changes to sections 2 and 4, to sections 7B, and 15 to 17 of the RPA 1983 which allow persons, who would not otherwise be able, to register to vote either by way of a ‘declaration of local connection’, or by virtue of a relevant service qualification (by way of a ‘service declaration’). The effect of these amendments is to change the availability of these methods of registration, so that the only EU citizens who can use them are ‘qualifying EU citizens’ and ‘EU citizens with retained rights’. The effect of these changes is limited to England and Northern Ireland (see below on Part 3 of Schedule 8 for explanation of how these changes extend to Northern Ireland).
	Paragraph 1(8) amends section 49(5) of the RPA 1983 which provides that if a person is registered in the parliamentary or local government register of electors, or entered in the list of proxies, they will not be prevented from voting on specified grounds, including that they are not a ‘relevant citizen of the Union’. Sub-paragraph (8)(a) amends this section to replace references to "a relevant citizen of the Union" with references to "qualifying EU citizen or an EU citizen with retained rights" in relation to local government electors in England; and also limits relevance of the term "relevant citizen of the Union" to local government electors in Wales. This amendment will also extend to local elections in Northern Ireland as provided in section 66(4)(b) of the Act.
	Paragraph 1(9) amends section 201 of the RPA 1983, which makes general provision about regulations made under the Act. The effect is that regulations made under the new power in section 203A(2) (inserted by paragraph 1(11) and discussed below) are to be subject to the negative resolution procedure.
	Paragraph 1(10) inserts the new definitions of ‘EU citizen with retained rights’ and ‘qualifying EU citizen’ into section 203 of the RPA 1983 (which contains general definitions for that Act). The existing definition of ‘relevant citizen of the union’ at section 202(1) of the Representation of the People Act has been left intact. This will avoid any impact on any legislation that continues to use the term ‘relevant citizen of the union’ after this Act comes into effect.
	Paragraph 1(11) inserts new sections 203A and 203B into the RPA 1983. These set out the new definitions of ‘qualifying EU citizen’ (203A) and ‘EU citizen with retained rights’ (203B). In the case of ‘qualifying EU citizens’, where the grant of voting and candidacy rights is dependent upon the UK entering into a treaty with another country, the provisions within section 203A also prescribe the process by which a country is added to or removed from the list of countries at Schedule 6A with the effect of granting or removing voting and candidacy rights from the relevant citizens.
	New section 203A sets out the eligibility criteria that a person must meet in order to be a ‘qualifying EU citizen’. It describes the group of people who will be granted voting and candidacy rights as a consequence of the UK having a relevant treaty with another country.
	Section 203A(2) requires the Secretary of State to make regulations adding a country to the list in Schedule 6A where certain conditions are met, as follows:
Section 203A(2)(a) requires that a country must be a ‘qualifying country’. ‘Qualifying country’ is defined at Section 203A(5) and essentially relates to countries which were EU Member States immediately before the IP completion day.
Section 203A(2)(b) requires that the United Kingdom and the country intend to become parties to a relevant treaty. ‘Relevant treaty’ is defined at section 203A(5), see below. This section has the effect of requiring that a country has entered into an agreement with the UK on voting and candidacy rights, with the effect that each side will be guaranteeing to confer voting and candidacy rights for local elections respectively.
Section 203A(2)(c) provides that only treaties which are subject to Parliamentary scrutiny under Part 2 of the Constitutional Reform and Governance Act 2010 (CRAG), can be added to the list at Schedule 6A. Section 20 of CRAG requires treaties to be laid before Parliament before ratification. It provides an opportunity for both Houses to scrutinise the contents of a treaty and, potentially, to object to ratification. A treaty must have completed the process required by section 20 of CRAG before the Secretary of State can act to add a country to Schedule 6A.
	Regulations adding a country to Schedule 6A will be subject to the negative resolution procedure, so can be annulled by either House of Parliament. The effect of adding a country to the Schedule will be to grant voting and candidacy rights to citizens of that country, provided they meet the additional criteria set out in the relevant immigration and electoral legislation.
	Section 203A(3) provides a power for the Secretary of State by regulations to remove a country from the list in Schedule 6A where that country ceases to be a party to the treaty which led to it being included on the list. Removing a country will have the effect of removing voting and candidacy rights from the citizens of that country. The power to make such regulations enables, but does not require, the Secretary of State to remove a country. Regulations made under section 203A(3) will be subject to the affirmative resolution procedure and therefore must be laid before and approved by a resolution of each House of Parliament.
	Section 203A(4) requires the Secretary of State to inform electoral administrators and the Electoral Commission when a country is added to, or removed from, Schedule 6A as soon as is reasonably practicable.
	Section 203A(5) provides definitions of the terms used in this section.
	Section 203B sets out the eligibility criteria for an individual to be an ‘EU citizen with retained rights’. The policy intention is to provide continuity in relation to the voting and candidacy rights of EU citizens who have been living in the UK since before Implementation Period Completion Day (IPCD) (11pm on 31 December 2020) and who hold lawful immigration status.
	Section 203B(1) sets out that to be an ‘EU citizen with retained rights’ a person must meet all of the following criteria:
A person must be a citizen of a ‘country’ as defined in s.203B(8). See below for that definition.
A person must have been an EU citizen immediately before IPCD.
A person must have been resident in either the UK or any of the Crown Dependencies - that is the Bailiwick of Jersey, the Bailiwick of Guernsey, or the Isle of Man - immediately before IPCD.
A person must also fall within any of subsections (2) to (4) of sections 203B, which are explained below.
A person must not be a ‘qualifying EU citizen’. The definition of a qualifying EU citizen is set out in section 203A as explained above.
	Section 203B(2) to (4) set out the various alternative ways in which an individual may satisfy section 203B(1)(d).
	Section 203B(2) requires that an individual has settled or pre-settled status (forms of ‘leave to enter or remain’) under the UK EU Settlement Scheme (EUSS), or under one of the EUSS of the Crown Dependencies (the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man), except where such leave has been granted to an individual on the basis that they are a ‘joining family member’. Section 203B(12) identifies the relevant provisions of the UK’s and Crown Dependencies’ Immigration Rules that currently apply to joining family members, and provides for the possibility that either or both of the relevant provisions of the Immigration Rules may be replaced.
	Section 203B(3) requires that an individual currently holds non-EUSS leave to remain in the UK or Crown Dependencies (with the exception of those persons who hold EUSS leave as ‘joining family members’), and that they satisfy the conditions set out in subsection (5), as discussed below.
	Section 203B(4) requires that an individual meets the following three criteria: first, that they do not, at the relevant time, require leave to remain in the UK or Crown Dependencies; second, that they are resident at the relevant time in the UK or Crown Dependencies; and third, that they must satisfy the criteria set out in subsection (5), as discussed below.
	Section 203B(5) sets out the necessary conditions that individuals must satisfy in order to meet the requirements of either 203B(3) or 203B(4) in full. Section 203B(5)(a) requires that, excepting those scenarios set out in 203B(7) (pursuant to section 203B(6)), a person must have continuously held UK or Islands leave, or not required such leave, since 30 June 2021 (see definition of "the relevant date" at section 203B(10)). Section 203B(5)(b) requires that, during any period in which a person did not require such leave under the Immigration Act 1971 (i.e., they are exempted from the requirement), they must have been resident in the UK or Crown Dependencies.
	Section 203B(6) and (7) provide for periods of time when a person may not have held UK or Islands leave, but which can be disregarded for purposes of section 203B(5)(a). Section 203B(6) requires that, in order for a period of time to be disregarded under these provisions, the individual must have been resident in the UK or Crown Dependencies for that period of time. Both provisions in subsection (7) describe potential gaps in legal immigration status that may have been experienced by an individual - and tolerated by Home Office - as a consequence of operation of the ‘grace period’ regulations (the Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (2020/1209)) and the EUSS. Therefore:
Subsection (7)(a) allows for a period of time to be disregarded where an individual did not have leave but was awaiting the outcome of an application for leave made before 30 June 2021 (provided that the application was ultimately successful).
Subsection (7)(b) allows for a period of time to be disregarded when an individual did not have leave but was subsequently granted EUSS leave (although not as a ‘joining family member’) by virtue of a late application, made after 30 June 2021, under the ‘reasonable excuse’ proviso to the EU Settlement Scheme. Note that such persons are expressly provided for in 203B(2); however, 203B(7) allows for the possibility that such a person may subsequently go on to hold another form of leave, and therefore no longer be captured by 203B(2).
	Section 203B(8) defines which countries are, or may be, relevant to this section.
	203B(8)(a) stipulates that an EU citizen with retained rights may be from a country that was a member state immediately before IPCD, other than the Republic of Ireland.
	Section 203B(8)(b) stipulates that the section would apply to a country that was part of an EU Member State immediately before IPCD, other than the Republic of Ireland. This allows for the possibility that a part of a country that was an EU Member State at IPCD may, in future, secede to form a new independent nation state. Citizens of that country may be eligible to qualify for retained rights, provided they meet the other eligibility requirements set out elsewhere.
	Section 203B(8)(c) stipulates that the section would apply to a country that is formed of two or more former countries, at least one of which was an EU Member State immediately before IPCD, other than the Republic of Ireland’. This allows for the possibility that a country that was an EU Member State at IPCD may merge with one or more countries that may or may not have been an EU Member State or States at IPCD, to form a new country. The effect is to enable citizens of such a new country to qualify as EU citizens with retained rights, subject to those persons meeting additional eligibility requirements set out elsewhere (including, as per 203B(1)(b), that they were a citizen of an EU Member State immediately before IPCD).
	The exclusion of the Republic of Ireland from 203B(8)(a), (b), and (c) reflects the fact that Irish citizens’ voting and candidacy rights are long-standing and pre-date the UK’s membership of the EU.
	Section 203B(9) indicates that references throughout section 203B to individuals who have leave to enter or remain under the Immigration Act 1971 should be taken to include individuals who are treated as having such leave (as a result of other legislation).
	Sections 203B(10) and 203B(11) provide definitions for the terms used in section 203B. Most of these are self-explanatory. ‘Residence scheme immigration rules’ refers to the EU Settlement Schemes. There are four such schemes: one for the UK, and one for each of the Crown Dependencies.
	Paragraph 1(12) creates new Schedule 6A to the RPA 1983 listing the countries the citizens of which are eligible (subject to the other eligibility requirements) to be considered ‘qualifying EU citizens’ as set out at section 203A(1). Currently, this list includes Luxembourg, Poland, Portugal, and Spain, as these countries have already reached bilateral treaties with the UK regarding voting and candidacy rights, and each of these agreements has completed the CRAG process in Parliament.
	Paragraphs 1(9) to (12) extend to Northern Ireland and therefore local elections in Northern Ireland as provided for by section 66(4)(b).