I have a piece in today’s Guardian, arguing that a combination of demographic changes and the political interests of the right risk creating a growing democratic deficit, in which more and more people on the territory of states have no democratic voice despite living, working and paying taxes there. I didn’t write the headline, which refers to Britain only, but in the text I also discuss cases like the DREAMers in the US.
{ 28 comments }
George 10.06.20 at 9:10 am
Got any numbers to support this hypothesis? I note that in the UK the ONS said that last year’s electoral role was the highest ever ( I guess the populationwas too though).
J-D 10.06.20 at 10:18 am
The entitlement to democratic participation in government derives from living under that government:
Gareth Wilson 10.06.20 at 10:19 pm
“The entitlement to democratic participation in government derives from living under that government.”
Then we have to be very careful about who we allow to live under our governments.
Moz in Oz 10.07.20 at 5:04 am
The stat that comes to mind is that about 40% of the US population vote in presidential elections. Here in Australia we manage a whopping 64%.
Both those are biased slightly low but I spent 2 minutes on wikipedia because give or take as few percent doesn’t affect the horror of “universal suffrage means half the population is denied the vote”.
USA: 330,052,960 pop in Sept 2020, 136,669,276 total votes in 2016 = 41%
Australia: 16,419,543 votes in federal house of representatives 2019, of 25,672,500 in Sept 2020 = 63.9%
I think Aotearoa is unique in allowing permanent residents the vote, a few countries allow 16 year olds the vote and no country I know of has an upper age cut-off. Those countries that have a mental competence test use it to exclude otherwise-eligible voters who are grossly incompetent (that measure could be used to permit youth to vote and similarly disallow those not competent to do so… but no-one does).
Hidari 10.07.20 at 8:49 am
There are very strong anti-democratic trends in the UK of course, and these trends have intensified since the pro-democracy Corbyn insurgency was (effortlessly) crushed. But I’m not sure that apartheid is the right word to describe these trends. Apartheid has strong connotations of a minority ‘lording it over’ a majority, who are conceptualised as being racially or culturally inferior (cf South Africa, Israel, Jim Crow).
What is going on in the UK is much closer to oligarchy as classically defined, and these anti-democratic trends ‘piggy back’ on already existing trends: the ‘First Past the Post’ electoral system, the unelected 2nd chamber, the unelected Head of State, the large (and increasing, and baleful) influence of the United States on British politics, the increasing trend towards political centralisation post-Brexit (after the trend towards decentralisation under Blair), increasing inequality etc.
This is not of course to minimise the influence of anti-immigrant sentiment and actions: as Tony Benn, I believe, pointed out, one should always look at how a Govt. treats immigrants, as that’s how they would treat the rest of us, if they thought they could get away with it.
J-D 10.07.20 at 10:17 am
What kind of pre-birth screening would you recommend?
Tim H. 10.07.20 at 11:21 am
The reality now is troubling enough, but consider that humans tend to do the old ideas harder & faster, rather than work at thinking through their implications in contemporary society, so what new Hell is in store for us? What eighteenth century nugget of misconception is even now having it’s verdigris knocked off at some unnamed think tank? Potentially, this could eventually roll right through the working class. Stability and tolerance are worth a lot to me.
Tm 10.07.20 at 11:58 am
It’s worth mentioning that EU nationals living in another EU country are granted the right to vote in municipal elections. This deserves recognition as perhaps the biggest expansion of voting rights (if incomplete) in postwar Europe!
The concern over large populations of non-citizens being deprived of democratic rights is not new. I once read that Lenin in his Zurich exile recommended that non-citizens should be given the right to vote after two years of residence (don’t have a reference sorry). Before the first World War, labor migration was as important a part of economic life as it is today.
Lenin’s generous rule didn’t get implemented but at least I had the impression that naturalization procedures have tended to become easier in many countries. That is the case in Germany, where it used to be second and even third generation immigrants still had the status as foreigners. Has the UK made naturalization more difficult and are there numbers how many people are affected?
Moz in Oz 10.07.20 at 9:27 pm
Also, surely in the UK the existence of the House of Lords is blatantly anti-democratic? Even the US hasn’t managed to install an unelected House with veto power, despite their best efforts to gerrymander and suppress their way to that result. Arguably their Supreme Court fills that role, but oh boy what an argument :)
J-D 10.08.20 at 6:25 am
True, but the UK and the US are not the only two countries in the world. Both Canada and Ireland, like the UK, have unelected second chambers with veto power. Indeed, the veto power of the Canadian Senate is (at least formally) greater than that of the UK House of Lords.
John Quiggin 10.08.20 at 10:51 pm
Australia also eliminated birthright citizenship in the 1980s, although it’s more or less automatic after 10 years of residence. And there’s now a proposal to require English competency for partners of Australian citizens.
Against that, naturalization is still viewed very positively.
Matt 10.09.20 at 11:28 am
To follow up on John’s comment, it’s a weakness of the Australian constitution that it has no guarantees of citizenship, leaving matters to legislative whims, which have generally blown towards being more restrictive over time. (The reason there are no citizenship rules in the constitution relates to the uncomfortable question of wanting to keep indigenous Australians from being citizens for a long time. Curiously, the High Court has recently adopted something like the old US “one drop” policy to hold that certain people who “identify” as indigenous Australians and have some nominal heritage cannot be deported, even if they otherwise wouldn’t qualify as citizens.)
It is a strength of the current law that citizenship for those born in Australia with the “wrong” sort of parents who are “ordinarily resident” for 10 years become citizens essentially as a matter of law w/o needing to do more. It’s also a plus that naturalization is comparatively easy (easier and faster than in the US, for comparison) and not expensive – the fee is something like $280 AU.
J-D 10.09.20 at 11:17 pm
Most of the national constitutions I have looked at contain no guarantees of citizenship. Should the absence of such guarantees be considered a weakness, it may be a common weakness rather than an unusual one.
This may be so, but should my guess be right and the default be for constitutions to contain no citizenship rules, then the explanation would be supererogatory.
Moz in Oz 10.10.20 at 5:26 am
it’s a weakness of the Australian constitution that it has no guarantees of citizenship
Don’t we still have the delightful feature that the minister of immigration can strip someone of citizenship if they think that person might be eligible for citizenship elsewhere… no proof, let alone actual citizenship, required.
We do have the completely bizarre thing where people can lose citizenship without them or the government being aware of it… it’s automatic if they are involved with certain types of terrorism. And once they lose citizenship they can’t be charged with terrorism in violation of Australian law*. We’re the smart country.
yes, it is entirely possible to commit terrorism without violating Australian law. How do you think we obtained the country in the first place? More recently, you could join the Army. Whatever problems you have are vanishingly unlikely to result in conviction, let alone of a serious offense.
Matt 10.11.20 at 2:16 am
JD – if you look at the debates relating to the formation of the Australian Constitution at the time of federation, and also at several of the changes to citizenship laws in the early 20th Century, you’ll see that a desire to ensure that indigenous Australians (and, to a lesser degree Asian immigrants) did not gain citizenship was front and center of the reasoning. This was one of several areas where the US constitution was looked at, and the model of the 14th Amendment was rejected for these reasons.
Moz in Oz notes some other unfortunate features – the ability to strip citizenship from “natural born” citizens is particularly interesting and stark.
John Quiggin 10.11.20 at 2:55 am
I don’t think the discussion of Australian citizenship above is correct. At the time of Federation, there was no concept of Australian citizenship: Australians were British subjects and any British subject (including Asians) had the same citizenship status as any other. The object of the White Australia policy was to keep Asians out, regardless of citizenship, not to admit them as non-citizens (the phenomenon discussed in the OP, and relevant to the status of temporary visa holders today).
According to Wikipedia, Australian citizenship was introduced in 1948. But long after that (until the Australia Act 1986, I think), all British subjects were allowed to vote in Australian elections. That’s one of the reasons so many people who came from Commonwealth countries as small children never got naturalised and are now subject to deportation.
I don’t know if the ability of ministers to strip Australians (and Britons, I believe) of their citizenship on the basis of an assertion that they have a right to a second citizenship elsewhere has been tested in court yet. It’s outrageous, but who knows what kind of outrage our courts will tolerate.
J-D 10.11.20 at 3:54 am
I’m not sure what you’re basing that on; I can’t find any provision to that effect in the Australian Citizenship Act 2007 (Cth). I find powers granted by section 36B and section 36D of that Act for the Minister to determine that citizenship has ceased for a person who has engaged in specified conduct (terrorism or specified related actions), or who has been sentenced to three years imprisonment or more for one of a particular list of criminal offences, but this power is limited because the Minister may not make such a determination if it would leave the person with no citizenship (a provision I imagine is motivated by Australia’s obligations under international law designed to avoid statelessness). I suppose I might have misinterpreted the meaning of those sections (or perhaps there’s some other relevant provision I’ve missed), but then again it’s possible that the misinterpretation is not mine but somebody else’s.
Good news! That ceased to be the case three weeks ago (on 18 September, to be precise), when the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth) came into effect.
I’m not doubting what you’re telling me about that, but my guess could still be right that the absence from a constitution of any rules about who is a citizen is a routine feature. Obviously the US Constitution does now contain a guarantee of citizenship in the Fourteenth Amendment, but that points up the fact that before the Fourteenth Amendment it did not contain such guarantees; and the same is still true of at least some constitutions, and may be true of many.
If I have understood the position correctly (see above), then it would follow that in the majority of cases it won’t be possible to deprive a born citizen of citizenship because in the majority of cases the result would be statelessness and that’s not allowed.
I don’t mean to suggest that it’s a good provision to have available even for a minority of cases.
I don’t think there’s any doubt that the Australian Constitution did not create any category of Australian citizenship, but what Matt is telling us (and I don’t doubt it) is that when the it was being written consideration was given to the possibility of creating a category of Australian citizenship, possibly replicating features of the Fourteenth Amendment to the US Constitution, and that this option was deliberately rejected.
I think you’re out by a couple of years there. It appears that it was an amendment of the Commonwealth Electoral Act 1918 (Cth) which removed the entitlement of British subjects (that is, the ones who were/are not Australian citizens) to register on the electoral roll, and I think it took effect on 26 January 1984, because the Act still preserves the entitlement to enrolment (and to vote) of anybody who registered (under the provisions of earlier law) before that date. The Act was extensively amended around that time.
Matt 10.11.20 at 4:06 am
John, if you look at the discussion of the development of Australian citizenship laws in, say, the textbook I’ve used when teaching Australian Migration and Refugee Law, (Immigration, Refugees, and Forced Migration: Law, Policy and Practice in Australia by Mary Crock and Laurie Berg) you’ll see a clear discussion of what I’m referring to, and how citizenship in Australia, including the decision to not have a formal category, but also to exclude indigenous Australians took place. In particular, from the start “Australia’s indigenous peoples were grouped together with migrants and people of colour in their shared experience of exclusion and deprivation.” (p.19) That is, like non-white immigrants, indigenous Australians were not given full membership (whatever that was called at different points), and if you look at the debates at the time, the reasons for going for the more nebulous status is directly related to this goal.
In any case, Crock and Berg’s text is outdated as to many recent developments, but is very good for discussing the history and development of Australian citizenship and immigration law, so I’d recommend it for that.
John Quiggin 10.11.20 at 4:09 am
IIRC, the government purported to strip citizenship from Neil Prakash (born in Melbourne) on the basis of a claim, denied by the Fijian government, that his Fijian parentage entitled him to citizenship there.
https://en.wikipedia.org/wiki/Neil_Prakash
An identical case in the UK,
https://en.wikipedia.org/wiki/Shamima_Begum
As far as I can tell, in either the UK of Australia, it would be perfectly possible for the Minister to assert that anyone (say, the Leader of the Opposition) was entitled to citizenship of an arbitrarily chosen country, and strip them of their birth citizenshi[. I don’t know what, if any, legal remedy is available.
Matt 10.11.20 at 4:57 am
I’m mostly in agreement w/ JD’s comment in 17 above. I would note that quite a lot of people have dual (or more) citizenship today, often w/o knowing it. (Many members of the Australian Parliament found this out to their surprise, recently!) As John Q notes, the provisions to prevent statelessness are insufficient in practice, as well as being insufficient in theory.
Thanks also to JD for the note on the recent legislative change – it’s good to hear about, and one more thing to update in my lectures slides for the upcoming summer term.
Chris Bertram 10.11.20 at 7:41 am
@John in the Shamima Begum case the UK has indeed claimed that Begum’s entitlement to Bangladeshi citizenship entitles the minister to strip her of UK nationality. But it isn’t quite right to say that mere assertion by a minister is enough: the UK courts will look into Bangladeshi nationality law to determine if the claim is, in their view, correct. This is obviously unsatisfactory, for many reasons, but so would be the claim that the government (rather than the courts) of Bangladesh (or Fiji) has the last word. In other words, whether a person has a particular nationality or not is a matter of legal fact rather than something in the gift of executives. (Morally speaking, of course, Begum is the UK’s responsibility and the attempt to dump her on Bangladesh is appalling.)
J-D 10.11.20 at 9:01 am
On my reading of that Wikipedia article, I’m not sure that you do recall correctly. The government did not purport to strip (Australian) citizenship from Neil Prakash on the basis of a claim that he was entitled to Fijian citizenship. The government revoked his citizenship on the basis of his (alleged) links to terrorism. The point about his (alleged) Fijian citizenship is not that it was a grounds for revoking his Australian citizenship. The point is that the law does not allow people with (alleged) terrorist links to be stripped of Australian citizenship if the result would be that they were left with no citizenship/nationality. This exception would not protect a person who had Fijian citizenship from being deprived of Australian citizenship, and that’s what makes a person’s citizenship of Fiji (or some other country) relevant in this particular context. It’s not, however, that other citizenship which is the grounds for termination of Australian citizenship under section 36B or section 36D. If I’m reading the Act correctly (and anybody can double-check this to discover any mistake I’m making, because the Act, like other Commonwealth legislation, is available online), it doesn’t give the Minister the power to make a determination saying ‘You are a citizen of another country and therefore you cease to be a citizen of Australia’. It gives the Minister the power to make a determination saying (for example) ‘You engaged in international terrorist activities and if you cease to be a citizen of Australia you will still be a citizen of another country and therefore you cease to be a citizen of Australia’ or ‘You were imprisoned for three years for espionage and if you cease to be a citizen of Australia you will still be a citizen of another country and therefore you cease to be a citizen of Australia’.
I’m not saying those are good ideas, because I don’t think they are, but they are not identical with a law which would allow the Minister to take away citizenship from anybody who had (or was alleged to have) citizenship of another country.
If the Minister makes a determination under section 36B or 36D, the person affected has a right under section 36H to apply to the Minister to revoke the determination (which would have the effect that the person would retain Australian citizenship), and there’s a note to the Act which explains that if the Minister decides not to revoke the determination, that decision is subject to review by the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903 (Cth). (I don’t know how to judge whether this is adequate, but that is the legal remedy which is available, and anybody can double-check 36H of the Act to find out whether I’m in error about this.)
Moz in Oz 10.11.20 at 8:24 pm
Chris, Australia has a subtly different view which a major dose of racism added.
Our parliamentary shenanigans were somewhat amusing in a slapstick kind of way, if you like seeing idiots run into walls they have carefully constructed mere moments before. The conclusion was the someone who is unknowingly entitled to apply for citizenship elsewhere, even if they cannot disavow that right, is deemed to have “foreign allegiance” and may not be elected an MP without a somewhat onerous and entirely discretionary leave being granted. However, someone who has British citizenship, even if they also profess allegiance to a non-British foreign power, may be elected and sit unchallenged.
https://en.wikipedia.org/wiki/2017%E2%80%9318_Australian_parliamentary_eligibility_crisis
John Quiggin 10.11.20 at 8:49 pm
J-D To clarify, I was aware that dual citizenship (as determined by the Minister) wasn’t sufficient, you also need a determination (again by the Minister) that the person in question is engaged in terrorism. It’s good to know that there are some avenues for redress.
Moz, I think you mean “Australian” in your last sentence. Quite a few of those disqualifications have been on the basis of British citizenship. But, as you say, there’s no legal problem with someone who is a declared agent of a foreign power sitting in Parliament.
John Quiggin 10.11.20 at 8:57 pm
Chris, it’s good that there is an appeal to the British courts, but still wrong that any part of the British state purports to determine who is and isn’t a citizen of Bangladesh. I think the correct approach would be for the Bangladesh government to make the determination, with an avenue of appeal to the Bangladesh courts. And of course, the whole thing is morally rotten even in the case where the person concerned has a right to citizenship of a country they’ve never lived in.
J-D 10.11.20 at 10:55 pm
I think the relevant UK legislation is the British Nationality Act 1981 (UK) and if I have interpreted correctly the relevant provision is even worse than the Australian one: section 40 seems to give the Secretary of State a broader discretion to deprive somebody of citizenship ‘if the Secretary of State is satisfied that deprivation is conducive to the public good’ (again, as in the Australian case, this is limited by a provision to guard against statelessness; also, again as in the Australian case, there is a right to review).
This is, of course, the key point. I do think it’s worth being accurate about the precise legal provisions but, whatever the law actually is, what it should be is void of any provisions allowing deprivation of citizenship with the possible exception of cases where a person ineligible for citizenship has obtained it by outright fraud or corruption. I don’t know why people think it’s important to have a legal power to take citizenship away but they are mistaken.
Moz in Oz 10.11.20 at 10:59 pm
John, oops, you’re right.
Australia has created the problem that other states determine who can sit in our parliament. As we saw with Hungary, they are very probably not aware that they have that power or are having that effect. But as I pointed out when the clusterfunk was in progress, it would be very easy for someone like Timor to say “you mean former Minister for Abusing Nearby Nations” and grant anyone they didn’t like citizenship. They would no doubt phrase it as a great honour and arrange a ceremonial bestowal… while apologising profusely when the problem was pointed out and expressing great sadness that their legal system has no mechanism for retroactively removing citizenship.
J-D 10.11.20 at 11:43 pm
Section 55AA of the Electoral Act 1993 (NZ) provides an instructive comparison:
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