National Voting Rights for Resident Non-Citizens: The Luxembourg Debate

By David Owen, Professor of Social and Political Philosophy at University of Southampton (@rdavidowen, Academia.edu). You can find more posts by David here.


On June 7th 2015, the people of Luxembourg will be voting in a referendum covering four separate questions:

  • Should teenagers aged 16 or over be given the active right to vote? (The active right means that they would be able to vote but not stand in elections.)
  • Should non-Luxembourg nationals be allowed to vote in national elections on the condition that they have lived in Luxembourg for at least ten years?
  • Should the state continue to pay salaries and pensions of priests, diocese staff or officials of other faith groups in Luxembourg?
  • Should government mandates be limited to a period of ten years?

Although all raise fascinating points for political theory and practice, it is the second – national voting rights for resident non-citizens – that raises the most challenging issues for contemporary states in contexts of migration and for EU member states in the context of the right to freedom of movement enjoyed by EU citizens. On the 20th-21st March I was privileged to be invited as an expert in a wide-ranging intellectual debate on this issue held in the Chambre des Députés du Grand-Duché de Luxembourg in which a group of historians, lawyers, sociologists and political scientists presented a range of perspectives on resident non-citizen suffrage to an audience of parliamentary representatives, activists, academics and students. Organized by Professor Philippe Poirier and his colleagues at the University of Luxembourg with the cooperation of the Luxembourg Parliament in order to enhance political debate, the event exemplified how academic research can inform, and be challenged by, the diversity of political perspectives that characterize a democratic state.

The question of resident non-citizen suffrage in national elections has real political significance for Luxembourg. About 45% of its residents are non-citizens (with about 85% of these being EU citizens). On the one hand, this looks like a serious democratic problem with almost half the population being denied national political representation in its legislative body. On the other hand, it is easy to see that the people of Luxembourg might reasonably be concerned that permitting national suffrage rights to resident non-citizens would undermine their ability to control their own political destiny.

One response to this dilemma is to make acquisition of nationality relatively straightforward and on the 1st January 2009 Luxembourg introduced new naturalization legislation that permitted dual/plural nationality and a double ius soli principle. This has had significant impact:

The number of valid demands for nationalisation quadrupled, going from 1065 in 2008 to 11770 for the period of the 1st January 2009 to the 31 December 2011. The Luxembourgish nationality was granted to 11736 persons, quasi 4000 per year. … By comparison, in 2008, only 1215 persons acquired the Luxembourg nationality. Furthermore, by double ius soli, 3414 persons of less than 18 years age, born in the Grand-Duchy of foreign parents of whom one was also born in Luxembourg, acquired Luxembourg nationality on the 1st January 2009. Following the assessment of the STATEC (National Institute of Statistics and Economic Studies), from 2009 to 2011, approximately another 1000 children became Luxembourgers by double ius soli, and 2491 children were naturalised along with one of their parents. A total of about 18500 new Luxembourgers in three years, mainly because of the innovations introduced by the law of 2008.

However, as already noted, the number of resident non-citizens today is c.45% with c.85% being EU citizens. For Luxembourg, it seems a decision must be made.

The vote in Luxembourg is also, however, also significant for the EU. Currently the EU has a demos problem in that EU citizens who exercise their civil right of freedom of movement may find themselves disenfranchised at the national voting level in both their state(s) of nationality and their state of residence. This is a democratic wrong but it is one that the EU as an institution has no competence to resolve. There are several possible ways of resolving this problem. But given (a) that the institutional architecture of the EU is neither purely intergovernmental (which would support tying national voting rights to naturalization) or purely federal (which would support tying national voting rights to residence) and (b) that EU citizenship entitles EU citizens who move to other member states to be treated as de facto dual nationals for a wide range of purposes, one fitting way of addressing this problem would be for Member States to allow such Second Country Nationals to become ‘Resident Electors’ after a reasonable period of residence. A ‘Yes’ vote in Luxembourg’s referendum (although it would also encompass a small number of non-EU citizens) would provide an example to the EU of such a practice. A ‘No’ vote would push the agenda in the direction of either reciprocal arrangements between specific Member States or expatriate voting rights for Second Country Nationals or some combination of the two. Luxembourg’s decision thus has implications that are wider than its own national affairs – and it is also for this reason that the engagement of academics, citizens and politicians in the event organized by the University of Luxembourg in association with their Parliament was such a welcome endeavor.

PAIR 50th Anniversary Lecture (Tonight, 6pm): ‘Sovereignty of the People? Public Opinion and Constitutional Change in Britain’

By Rosie Campbell, Reader in Politics, Birkbeck University of London.

Wednesday 11th February 6-7.30pm (02 / 1089, followed by wine reception).

Abstract: In this presentation I will explore how the public understands political representation using illustrative examples from surveys of public opinion. Contemporary elite and academic discourse often problematizes the descriptive and substantive representation of citizens through the lens of gender and ethnicity. For example, there are multiple surveys that have evaluated whether there is a public appetite for measures to improve the descriptive representation of women. However, there is also a resurgent interest in social class and regional/local identities that provides a further challenge to the current political class’s claims to be ‘representatives’ of the people. How the sovereignty of the people should be expressed through the collective voice of MPs in parliament has been contested at least since Burke made his famous speech to the Electors at Bristol; MPs must negotiate where to situate themselves between the two poles of political representation (centre and periphery) and choose to act as either delegates or trustees. These issues are increasingly salient in the context of a fragmenting party system where there is mounting pressure on MPs to perform their representative role by focusing more of their attention on the interests of their constituency. I will use surveys of public opinion to explore how these tensions are ‘voiced’ by the people.

Prime Minister and Parliament: Constitutional Implications of a Hung Parliament in 2015

alixpicBy Dr. Alexandra Kelso, Associate Professor of British Politics at University of Southampton. You can read more posts by Alexandra Kelso here.


The start of the New Year has sparked fevered debate about the forthcoming May 2015 UK general election, and what the likely outcome of that election will be. The polls still indicate that another hung parliament will be the result, and although experts were confidently predicting a hung parliament well before the 2010 election, this time around there’s a sense that we’re all more mentally prepared for a result that was until recently viewed as exceptional in British electoral politics. On BBC Radio 4’s Today programme on 8 January 2015, the former Cabinet Secretary Gus O’Donnell reflected on the coalition negotiations that followed in 2010, arguing that things ‘could be even messier’ this May, and that ‘it could take quite a lot longer next time to actually form a government.’ We should take this as the friendly warning that it was designed to be.

In 2010, it took four days for the parties to determine that there could be a coalition government between the Conservatives and the Liberal Democrats. During that time, when negotiations between these two seemed to be flagging, Labour began discussions to see whether it might form a so-called ‘rainbow coalition’ with the Liberal Democrats and assorted nationalists. Gordon Brown attracted some criticism for remaining in office as Prime Minister for as long as he did, even although this was the constitutionally correct thing to do, to avoid a scenario which embroiled the Queen entirely inappropriately in political matters. Only when it was clear that Brown could no long command the confidence of the House of Commons (the key precept on which Westminster parliamentary government is based), and that Cameron would have to be summoned to form a government in his place (either a coalition or a minority), did Brown meet with the Queen and offer his resignation.

During those four days of negotiation between the political parties, supported and aided by the civil service staff at the Cabinet Office, what we saw on television news was the very turning of the cogs of the British constitution. Previously, the visual cues following a UK general election in which the incumbent party had been defeated involved the outgoing Prime Minister being driven to Buckingham Palace in the ministerial Jaguar while the removal vans lined up around the back of No.10 Downing Street, followed by the triumphant winner following immediately in his or her wake to be invited by the Queen to form a government. The transfer of power, and the investing of governing authority in a Prime Minister, was swift, often brutally so. But in 2010 we were deprived of that speedy transfer of power, and as Gus O’Donnell indicated on the Today programme, the possible permutations that might emerge this coming May could preclude quick coalition negotiations. Depending on how the Conservatives fare, this could prompt debate about whether Cameron ought to remain as Prime Minister and for how long, particularly if the eventual government formed does not look likely to include his party in it.

For a long time, we assumed that there were no meaningful questions regarding what happens following general elections in this country. That is no longer the case. This summer will see the publication of an edited collection called Parliaments and Government Formation: Unpacking Investiture Rules (Oxford University Press), to which I’ve contributed a chapter on the UK, where I map out what it means to invest power in a Prime Minister in the UK political system, and how this process has the potential for considerable complexity in an environment of hung parliaments. If, as Gus O’Donnell has predicted, there are coalition negotiations this May, and they take even longer than they did in 2010, this may prompt broader reflection on the constitutional position of an incumbent Prime Minister in the immediate aftermath of a general election. And, as has been the case so often in the recent history of UK constitutional politics, it may be the very process of constitutional change itself which prompts attention to what the rules should, in fact, be.

Who Are ‘the People’ in a People’s Constitutional Convention?

By David Owen, Professor of Social and Political Philosophy at University of Southampton (@rdavidowen, Academia.edu). You can find more posts by David here.


This post is a contribution to a debate at openDemocracy initiated by Stuart White and followed by Alan Renwick’s discussion of institutional designs for such a convention. David Owen’s contribution focuses on the question of who should be included in the People for these purposes.

There are a lot of questions raised by the idea of a People’s Constitutional Convention for the UK. The most fundamental, however, is ‘who are the People?’ for this purpose.

In Stuart White’s initial post and Alan Renwick’s acute reflections on the form of such a convention, they adopt the intuitive response to this question: the People are the (adult) citizens of the UK, which we might imagine to be those who can vote in General Elections. The rationale for this view is straightforward: a constitution sets the terms of a political association; it specifies the basic legal form of citizens’ political relationships to one another. This is a good start but I think for these purposes we need to construe the People a bit more widely.

Consider first that not all UK citizens can vote in General Elections, for example, citizens who have been resident abroad for more than 15 years or prisoners serving custodial sentences. Should they be able to participate? Well, notice first that a constitution applies to all citizens regardless of whether they are resident in the UK or not. Any changes to the constitution are binding on all citizens and change their relationships – so, for example, the result of a UK referendum on EU membership would be binding on all UK citizens whether or not they are resident in the UK, the EU or the wider world. Because a constitution sets the terms of their relationship, the People must include non-resident, as well as resident, citizens.[1]

If we turn to prisoners serving custodial sentences, we should note that even if we think that there may be both principled and pragmatic reasons for refusing voting rights in General Elections for some classes of those convicted of criminal offences, a constitutional convention is a different kind of event, one that stands in a much more intimate relationship to one’s standing as a citizen. The loss of voting rights in a General Election says that one is not a citizen in good standing; the loss of the right to participate in a constitutional convention says that one has no civic standing. So all citizens need to be included in terms of either having a vote for representatives or being in the population from which citizens selected by lot are chosen.

But a constitution doesn’t just set the terms on which citizens relate to one another, it also lays down the ground rules for:

  • What the public actors (aka the State) can and cannot legitimately do in relation to all those who live under its authority, that is, within its territorial jurisdiction.
  • What private actors (individual or corporate) can and cannot legitimately do to other persons in this territory.

Looked at from this angle, everyone who is a resident of (as opposed to a visitor to) the UK has an equally clear and vital interest in being protected from arbitrary exercises of public and private power. Indeed, given that immigrant non-citizens are typically much more exposed to exercises of arbitrary power by the State (perhaps most especially the kind of discretionary power with respect to immigrants currently lodged in the Home Office) and by private actors (perhaps most obviously unscrupulous employers), the case of the inclusion of non-citizen residents is overwhelming.[2] The People needs to encompass residents more generally, not just citizens.

What about non-resident non-citizens? This is a harder issue. It is fairly straightforward to see that this group should be able to make representations to a People’s Constitutional Convention since, in an increasingly interdependent world, their lives are likely to be shaped in part by our actions, but should they have representatives with the decision-making body? Some authors – Ian Shapiro and Robert Goodin, for example[3] – answer in the affirmative. What counts, on this view, is that your morally relevant interests are or may be affected. I am skeptical of this appeal to ‘the all affected interests principle’ as a criterion of democratic inclusion for the reason nicely put by Christopher McMahon:

The people who have a right, under democratic principles, to participate in a decision are not those who are affected by it but those whose actions are guided by it. That is, if the possession of [political] authority is a matter of having a right to direct the actions of some group, democracy is reflexive authority – the generation of authoritative directives by those who will be subject to them. The say in determining a decision that democracy confers is a say in determining what one will do or allow as a member of a group.

Citizens and residents are subject to the authority of the constitution, non-resident, non-citizens are not. This isn’t to say that there are not good moral and epistemic reasons to consult widely with outsiders, there surely are! It is just to say that they need not be included within the People. So non-resident non-citizens should be represented in some way, but probably should not have voting rights in a People’s Constitutional Convention.

Thus far I have treated the People in terms of existing adults, whether citizen or not, resident or not, but ‘the People’ denotes an intergenerational community that exists through time and the decisions, perhaps particularly constitutional decisions, that we make now will shape the world that future generations of UK inherit. If we think about children first as an existent future generation of adult citizens, it is clear first that they have important interests at stake and second that their lives, values and self-understandings as political agents will be significantly shaped by the constitutional character of the UK. Saying simply that they can change the constitution when they reach adulthood fails to acknowledge the fact that they have interests at stake now and that much of their political identity as citizens will already have been formed by then. For these reasons I think that the People needs to encompass the representation of children.

What of not yet existent future generations whom we can envisage only as an indeterminate abstract collective of the yet to be born? It is clear that they, like non-resident non-citizens, will be affected by our decisions – perhaps vitally in respect of whether we include significant environmental norms in any constitution – but should they be represented? In relevant ways, this case looks like the temporal equivalent of the spatial case of non-resident non-citizens and I am inclined to think that they should be treated in the same way, that is, as having rights to make representations to a People’s convention but not be represented within the decision-making People.

If this is cogent, the People for the purpose of a constitutional convention cannot be restricted simply to resident adult citizens. And this expansion of the People has implications for the design of a constitutional convention as well. In order to ensure that the relevant classes of persons are appropriately ‘present’, it is sensible to adopt a design that includes at least some element of structured random selection so that there are not only resident citizens present but also resident non-citizens and non-resident citizens as well as some element of inclusion of governmental representatives such as a Children’s Ombudsman. I therefore favour – in this respect at least – the approach used in Ireland’s recent convention, as discussed by Alan Renwick, as the best way forward for a People’s convention to accommodate an appropriately expansive understanding of the People.

[1] For a fuller discussion, see David Owen, ‘Transnational Citizenship and the Democratic State’ Critical Review of International Social and Political Philosophy, 14: 5, 2011, pages 641-663.

[2] For related observations on access to citizenship for residents, See David Owen (2013) ‘Citizenship and the marginalities of migrants’, Critical Review of International Social and Political Philosophy, 16 (3): 26-343 & (2014) ‘Republicanism and the Constitution of Migrant Statuses’

17 (1): 90-110.

[3] Ian Shapiro The Moral Foundations of Politics (New Haven, Yale University Press) pp.219-20 as well as Robert Goodin ‘Enfranchising All Affected Interests, And Its Alternatives’, Philosophy and Public Affairs 35 (1): 40-68.

Constitutional Wrangling after the Independence Referendum

By Dr. Alexandra Kelso, Senior Lecturer in Politics at University of Southampton. You can read more posts by Alexandra Kelso here.


(Cross-posted at The Conversation. This post first appeared with minor errors, which have been corrected. – Ed.)

The vote, in the end, was decisive, with the Better Together campaign winning with 55% of ballots cast. As a Glaswegian living in Southampton, I’ve watched from afar, saddened not to be in my home nation at this crucial juncture, while amazed at the remarkable political awakening that has taken place these last months. As the politicians have said repeatedly, the No outcome doesn’t mean a return to business as usual, and there are some key things we can take away from all this in terms of constitutional politics in the UK.

First, although the result was decisive, it was not an overwhelming majority. Consider that when this process began, the average support for Scottish independence typically ran at around 30-35% or thereabouts. The Yes campaign succeeded in drawing a significant number of people to their cause, and that is a massive achievement in such a short space of time, given the magnitude of the issue. In particular, the Yes campaign won the vote in Glasgow, North Lanarkshire, West Dunbartonshire and Dundee City, the first two of which in particular are Labour Party heartlands that have borne the brunt of deindustrialization. Scottish Labour strategists looking ahead to the 2015 UK general election will already be wondering about the work they will have to do to maintain these strongholds, and whether those Labour voters who voted Yes will now be more willing to consider opting for the SNP next year. This is important, given how hard it is for any party to gain a Westminster majority.

Second, the Prime Minister has already committed to begin the process of devolving more power to Holyrood, and to exploring the structure of governance throughout the rest of the country, and has said that devolution across the UK will follow the same quick timetable, with a white paper due early next year. That will be a massive undertaking. If it happens, it will demonstrate the remarkable flexibility of the UK constitution, and its pragmatic malleability in the light of popular pressure for change. However, the unanswered question at the heart of UK constitutional politics is the English Question, and it has remained unanswered ever since devolution was rolled out in 1999 and the then Labour government’s plans for English regional devolution failed. The Conservative Party’s McKay Commission has interesting solutions to this question, but it’s far from clear that David Cameron will be able to convince his party to pursue change, because so much depends on the details of those changes, none of which have thus far been spelled out.

Third, this was an astonishing exercise in democratic participation. Turnout stands at a staggering 85%, and it’s clear that people have been engaged in this process who have not been involved in politics for a very long time, if ever. At a time when politicians are maligned, and traditional forms of political participation are in decline, what this referendum result shows is that people take part when they believe that the process will end in a meaningful outcome for their lives, and they are in control of that outcome. It remains to be seen whether the public will stay engaged throughout the months of political negotiation that lie ahead, now that the decision is back in the hands of the ‘political elite’. Crucially, the participation of 16-17 year olds in this referendum may now fuel demands for their inclusion in elections at other levels.

The months ahead will feature much constitutional wrangling and bargaining. Decisions about our constitutional future now lie, once more, in the hands of the professional political class. Those on both sides of the independence referendum debate must now wait to find out how their collective voices will be interpreted

Demos Problems and the European Union: An Exercise In Contextual Democratic Theory

by David Owen, Anali Hrvatskog Politološkog Društva (English), vol. 10, No. 1 (2013), pp 7-23.

Debates concerning the ‘democratic deficit’ have been a prevalent feature of the normative literature on the European Union, but rather less attention has been paid to ‘demos problems’ constructed by the normative ordering of the EU and what such problems reveal about the nature of democratic citizenship in the EU, the character of the EU as a normative order and the institutional character of the relationship between the constitution of the EU as a normative order and as a structure of political incentives. This article addresses this topic by focusing on one such ‘demos problem’.

Read this article now at Citizenship Observatory.

Efficiency and Lies: Constitutionalism in British Politics

By Meg Sherman, Undergraduate Student in Politics & International Relations

Order and stability within a political community, old ends of Western political philosophy, requires staunch, centralized administration organizing public life throughout a territorial nation. Such a conservative world view guided Walter Bagehot, whose landmark book, The English Constitution, written in the aftermath of several Reform Acts following the first in 1832, queried how the British nation-state would remain stable if it also made inadequate concessions as far as the political representation of millions of working-men goes. The Act, which forever reconceptualised the British ‘people’, allowed eligible men over the age of 21 a vote in periodic elections dominated by parties, of which the Independent Labour Party and its successor came to play a significant role representing the aspirations of working men and women. In many ways Bagehot outlaid the main strategy for constitutional politics over the next century, and what he calls the constitution’s “efficient secret”, which I will describe shortly, remained the pre-eminent understanding of our un-codified constitution until the 1950s, after which a new legal order of international law, coupled with our eventual entry into the EEC, made updated theories necessary.

Despite its obvious obsolescence, Bagehot’s work remains an invaluable map for students of the constitution, or indeed anybody remotely interested in political history, especially those interested in the tension between parliamentary democracy and popular democracy in the UK; Cabinet Government, for example, was never intended to be democratic, even though it is supposed to represent the highest point of power in the political system. Unlike the US’ famed separation of authority between the legislature, executive and judiciary, the British political system fuses executive and legislative, overall giving governments enormous opportunities for passing their desired laws without popular intervention. This is the “efficient secret.” Moreover, understandings of the constitution antiquated by events, as well as the understandings of those who work it at present, will remain absolutely important to our understanding of day to day British Politics until we care to make an external, foundational document for it.

Beneath any delusion that the Westminster Model epitomises a modern, democratic form of governance – exported to those states we previously administered as colonies – it is clear, in the line of argument pursued by Robert Coll, that: “a new aristocracy of middle class politicians ruling through cabinet government” remains the organizing principle of politics in the UK. Even so, the ongoing hard work of researchers putting time in to understand and design institutional innovations is promising, guided broadly by a preeminently collective desire to diminish effective executive committees within the state, working out arrangements which give more people more control over the decision-making apparatus and enhance their abilities as citizens.

If the political classes did not take power from the aristocracy in this country without deception, and if Bagehot did not write The English Constitution without accepting that giving ordinary citizens major influence on policy is the biggest threat to a college of similar parties with vested social and economic interests, then it is time to realize that theatrical displays of society have been seen, understood, and studied well.