Sunday, 19 February 2017

The Right to Vote after Brexit

Recently, for reasons related to my academic research, I've been reading quite a bit about nationalism and aspects of the so-called "right to secede". As part of that, I've looked at how we make distinctions between, on the one hand, "liberal nationalism" and "ethnic nationalism". This is a politically fraught area, but one that can manifest itself in how we define who "the people" are. When it comes to deciding who has the right to vote, our laws on citizenship are typically the defining factor, but those citizenship laws themselves can say the lot about a nation, the State that contains it, and its nationalism.

Ethnic v Liberal Nationalism

One of the distinctions that constitutional and political theorists draw, when determining whether a nationalist movement and state institutions are "ethnically" or "liberally" nationalist is how they define, or propose to define, the citizenship of their territorial-political society. Among others, philosopher Kai Nielsen1 distinguishes these two by characterising "ethnic" nationalism as one which is based on descent and which is therefore on some levels exclusionary, whereas "liberal" nationalism requires that "anyone who wishes to have full citizenship and be a part of the nation may, at least in principle, do so if they learn its language, history, and customs, swear allegiance to it, and are willing to abide by its laws."

It should be noted that liberal nationalism is not quite the same thing as another idea, that of "civic nationalism" that has dominated the Scottish independence debate. A purely civic nationalism, which Nielsen maintains is an "oxymoron" (and I'm inclined to agree) has no concern for protection of cultural and political institutions because of their origins, a characteristic that clearly does define even the more inclusive forms of political nationalism in places like Scotland, Catalonia and Quebec. Purely civic nationalism is scarcely nationalism at all: as I will explain later that is one of the main aspects of it that is to be commended.

Most sovereign States share elements of both ethnic and liberal aspects of nationalism in their citizenship criteria. Descent is typically used as a baseline for belonging to the nation, but this is supplemented by provisions that allow for people to be "naturalised" as citizens. This usually requires that they have acquired a permanent right to remain under immigration law, and may involve them taking some kind of citizenship test. How easy it is to meet the requirements to become a citizen, however, varies greatly. It is possible that you can live in a country under a series of work-related visas, but never be able fully to participate in its political process and to be involved in making the laws that affect you on a day-to-day basis. In the most classic of senses, non-citizen residents (many but not all of whom can properly be understood as "immigrants") are a second-class of person in many liberal democracies. They enjoy basic legal rights, and basic human rights, but they have no influence over the people who make those laws. They assume all the obligations of citizens without the rights: as our American friends might put it, they face taxation without representation.

Britain is a bit more complicated

The United Kingdom, however, has always had an ambiguous relationship with citizenship and national identity. Although clearly the idea of being "British" is something that exists, it faces both internal and external challenges. Internally you have sub-State nationalisms, and externally you have a kind of internationalist conception of peoples too. There are (especially historically) problematic and imperialistic aspects to this conception, but our laws on citizenship and political participation have been and continue to be defined against the context of the British Empire and quite permissively. We do not simply, for instance, allow those holding what is called "British citizenship" to vote and to stand in our elections; we allow "qualifying Commonwealth citizens" and citizens of the Republic of Ireland so to stand. This Commonwealth identity, often conflated or overlapping with the notion of an Anglosphere, allows anyone holding citizenship of over 50 different countries to participate fully in our politics if they have "indefinite leave to remain" or if for other reasons they do not require leave to remain in Britain. Indefinite leave to remain is not an easy immigration status to acquire (certainly less so than it was before more stringent limits on immigration have been imposed in recent decades on movement from Commonwealth countries) but we do see this kind of reversing of citizenship rights into specific groups of non-citizen permanent residents.

Our membership of the European Union has also added an additional layer of complexity to this issue. Anyone who holds a qualifying national citizenship of an EU Member State has EU citizenship, and therefore has certain rights when they exercise freedom of movement in other countries. This includes limited rights of participation in the European Parliament and "municipal" elections of their host State on the same basis as nationals of that State. EU citizenship is therefore a kind of half-way house between national non-citizenship and citizenship, conferring some but not all of the relevant rights.

Both of these aspects of our citizenship laws are more permissive than many other countries that are widely regarded as "liberal" and "open" societies. In Canada, for instance, the right to vote is circumscribed to Canadian citizens, but their process for naturalisation is fairly permissive and their immigration policies allow for a net migration rate in the region of double that of the United Kingdom.

But in other respects our citizenship laws are anachronistic and adhere far more to the notion of descent than they do a true desire to include all adult participants in our society and communities. The fact that voting rights are extended beyond citizens only to Commonwealth citizens (and Irish citizens who UK law don't even consider to be foreign) in their full form, means that it still excludes others from our process simply because of where they came from. Why does a Maltese national living here have a claim to decide who my MP is, but a French national doesn't? Why does someone with leave to remain from Cameroon get to vote in our elections, but someone from neighbouring Gabon with the same immigration status cannot? These distinctions are completely and utterly arbitrary. There is not even a defence here that this Commonwealth voting status is a reciprocal arrangement; plainly it is not and many other Commonwealth countries do not extend British citizens the right to vote.

Relevance to the current debate

All of this is relevant because our leaving the European Union will require us to carry out some reappraisal of our citizenship laws as they currently exist. We saw the rumblings of this issue already when there was a debate about who should have the right to vote in the European Union referendum. The UK Government insisted, and Parliament acquiesced, that the franchise should be based-upon the franchise that exists for UK General Elections. This is a franchise that excludes a number of people who are eligible to vote in European Elections, devolved elections, and local authority elections, namely European Union citizens who are not also Commonwealth or Irish citizens. It was particularly ironic that a democratic exercise that would have zero effect on the citizenship rights of Sri Lankan citizens, but which would systematically affect the exercise of citizenship rights of hundreds of thousands of Polish citizens, allowed the former, but not the latter, to vote.

Should the UK leave the European Union, the voting rights of EU citizens in devolved and local elections could go with it. There is an added complexity in Scotland, in that the Scottish Parliament is now responsible for its and local government franchises, and would likely be responsible as in 2014 for setting the franchise of any independence referendum. But for Westminster at least there is a question politicians must confront here. Are EU citizens, who presently have rights by virtue of residence in the UK, still to have a place in British political decision-making, including, incidentally, not just the right to vote, but the right to stand for election and to sit as an MSP, MLA, AMs and councillors? Or will they lose these rights? If only some of them will lose these rights, which ones, and how will we distinguish?

It is hard to imagine a position that does not either require an extension of political participation rights to all EU citizens with a minimum residence period in the UK, or which otherwise involves a very explicit attempt to deprive people who live in this country of civic rights they previously exercised.

The Real Debate

If one is to be optimistic, however, this need to confront this issue might just require the UK to confront more squarely and honestly what the basis of political participation is in our country. There are two directions this could go in:

1. We become more restrictive by limiting voting rights to British citizens
  • This would, in my view, be a most retrograde step, but it is one that a worrying number of people seem to be advocating
2. We begin to decouple the right to vote from citizenship 
  • This would involve either bringing EU citizens permanently into some sort of legal status equivalent to Commonwealth citizens, or would involve the removal of a citizenship requirement from the right to vote outright
I firmly take the view that the second of these two directions is the preferable course of action. I have to confess I have never been sympathetic to the idea that citizenship should determine whether or not people have the right to participate in the political process. Even a "liberal nationalism" that says it's okay to exclude certain people if they have not gone through a process to acquire citizenship seems to me to be discriminatory and unfair. To be a truly civic State, one that does not base rights upon descent, requires two things:

1. That all adults bound by the laws of a territory, i.e. those who live in it, can have a role in deciding who gets to make those laws

2. That a country should be as permissive as is possible, and should not discriminate, with respect to who it allows to take up residence in it

If someone has already done enough to satisfy a State that they have the right to live and work or study here, I think it is plainly prejudiced and discriminatory to say that they should have to meet additional hurdles to participate in the civic life of our country than those who happened to be born here or born to the right set of parents.

Put simply, I think it is time for the UK Parliament to remove all references to "qualifying Commonwealth citizens" from the Representation of the People Act and to replace it with a very permissive right to reside stipulation.

If liberals believe in internationalist values, and believe that people should not be defined by their country of origin, or the birthplace of their parents, they should be ramping-up the arguments for this expansion of the franchise. Because if they do not, it could end-up being constrained, going completely against the tide of history. If Theresa May wants to show liberals that her Brexit is about opening Britain up to the world rather than a nascent nativism concerned with the exclusion of those who are "foreign", she should be careful which side of this debate she comes down on.




1 See among other work, K. Nielsen (1998), 'Liberal Nationalism, Liberal Democracies, and Secession', The University of Toronto Law Journal, 48(2), pp. 253-295 available from JSTOR here [accessed 19/02/2017]

Monday, 13 February 2017

The Franchise after Brexit - Questions for Holyrood

Context

Yesterday evening a discussion emerged on what I suppose we should call "Scottish Twitter" about the extent to which non-British EU citizens might influence the result of any second referendum on Scottish independence. There are about 181k such citizens currently in Scotland according to the Scottish Parliamentary Information Centre (SPICe)'s data. In the last referendum, it was widely considered that this group leaned towards No, motivated in part by the fact that leaving the UK could have interrupted, even if only temporarily, Scotland's place in the European Union and would have affected the legal basis on which many of those people had come to settle in Scotland.

A little over two years on, and a great deal has changed. Scotland voted for the UK to remain in the EU, but the UK as a whole did not. We still do not have clarity as to what impact this will have on the rights of EU citizens that live here, or indeed those that had been considering moving to the UK in the future.

Neil Lovatt, a member of the Advisory Board of the political pressure group "Scotland in Union", questioned the relevance of the views of EU citizens in any future independence referendum, since "post Brexit they certainly won't" "be getting a vote".


I do not wish to delve into the politics of this statement, though my views on the franchise are, I think, fairly clear. I take a very permissive view of who should be allowed to vote, and think it a mistake to restrict it on the basis of citizenship. I take the view that any adult ordinarily resident in a relevant territory should be allowed to participate in the political process by voting in elections or referendums.

I do wish, however, to clear-up the legal terrain that underpins how the franchise works. I have written before about the franchise as it relates to prisoners, and more broadly about who gets to decide what the franchise is. It is very easy to lose sight of why the UK lets certain people vote in certain elections but not others.

General Aspects of the Right to Vote in the UK

The UK Parliament has been responsible for setting the general terms of the franchise in the United Kingdom. The first thing to recognise is that the UK does not limit the franchise only to British citizens. Voting rights exist for "qualifying Commonwealth citizens" (which includes but is not restricted to, British citizens) and citizens of the Republic of Ireland. A "qualifying" Commonwealth citizen is one who either does not require leave to remain, or who has leave to remain, in the United Kingdom. This allows nationals of over fifty sovereign states, and those holding nationality connected either with British Overseas Territories or Crown Dependencies to participate in all UK elections. The UK therefore takes, in many respects, a more permissive stance on citizenship than other countries do. The right to vote in Canadian federal elections, for instance, is restricted exclusively to Canadian citizens.

The EU dimension

However, the issue is given an additional layer of complexity by virtue of our membership of the European Union. Under Article 22 TEU:

"Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State"

This is supplemented by Directive 94/80/EC, which regulates and imposes some limits upon this general obligation.

It is worth pointing out that this obligation only applies to "municipal elections". Nevertheless the UK has chosen to extend the right to vote in devolved elections, to the Holyrood, Senned and Stormont legislative bodies, in addition to those relating to local authorities. This is because the franchise for those bodies was originally determined with direct reference to the entitlement to vote in local authority elections.

Implications for Scotland's elections

The result of this is that EU citizens living in Scotland have the right to vote in Holyrood elections. Since the passage of the Scotland Act 2016, the Scottish Parliament has gained legislative competence over its franchise and those of Scottish local authority elections. It could, if it wishes, choose to extend or restrict the right to vote in a way that departs from the prior position under UK electoral law. It has already done this with respect to the minimum age someone must attain before they can vote, cutting it from 18 to 16 ahead of the most recent set of Scottish Parliamentary elections. This power is constrained, however, by the imposition of a new "super-majority" requirement. To modify the franchise for Parliamentary elections, at least two-thirds of the whole Parliament must vote in favour of it.

When the UK leaves the European Union, the requirement to implement the EU Treaty and Directive provisions in relation to the right to vote will likely elapse (unless the withdrawal agreement under Article 50 stipulates otherwise). This would potentially render the words "relevant citizen of the Union", which are inserted into the Representation of the People Act 1983, ineffective for the purposes of the franchise, since the Treaties would no longer apply to the UK.

This does not prevent the Scottish Parliament, however, from implementing legislation to preserve those rights. It would be open to them to pass a law including EU citizens in the franchise again, or indeed to enfranchise any other group, whether or not they were citizens of a particular country.

What about referendums?

Where things get even further complicated still is in the area of referendums. The UK does not have a prior set of restrictions on who can vote in a referendum. Instead, the legislation that provides for a referendum must itself define who can participate.

In the first independence referendum, the question who may vote was a matter for the Scottish Parliament. Indeed, specific legislation was introduced during that referendum campaign to make provision to allow for the registration of younger electors so they would be on the register in time to vote if they were only 16 or 17 on polling day. At that time the electoral roll did not include some of these people because they would not have been 18 at the next relevant election, and that was the prevailing minimum age in UK law to vote.

Even if it is the case that under EU law Scotland is required to allow EU citizens to vote in Holyrood elections (and that is doubtful as they are not, incontestably, "municipal" elections) it is plainly not the case that it is required that they are allowed to vote in referendums. EU law stipulates no conditions there. Nevertheless, the Scottish Parliament took the position that no one who was allowed to vote in a Holyrood election should be excluded from voting in the independence referendum. They, quite simply, chose to set the franchise that way. EU citizens were therefore permitted to vote.

Equally, however, in the EU referendum, the United Kingdom Parliament took the position that the franchise should be the same as it was for UK General Elections. It therefore included Commonwealth citizens, but excluded a freestanding right to vote for those who were EU citizens.

So what does it matter in a future referendum?

The issue at hand is what would the situation be in a future independence referendum. If the UK leaves the European Union, the default position is likely to be that EU citizens will lose their Treaty-derived right to vote in any UK elections.

There is a related issue, however. The Scottish Parliament does not clearly have the legislative competence to hold an independence referendum without the UK Parliament granting it such a power. Last time, that power was granted without any legal conditions imposed on what the franchise would be. The Edinburgh Agreement proceeded on the basis of political consensus that, at least, the Scottish Parliament's franchise should be used as the starting point and that the Scottish Parliament should decide after its consultation whether and to what extent it should be expanded on the grounds of age. It should be pointed out, though, that in 2012, the Scottish Parliament's franchise was set by the UK Parliament so letting the Scottish Parliament set the franchise for the referendum at all was an innovation and constrained by a set of constitutional norms they did not yet control. This would not be the case in a second referendum, where the Scottish Parliament controls its own franchise.

I think it is reasonable to expect that the first referendum should set a precedent: the franchise in an independence referendum is a matter for the Scottish Parliament, even more so than it was in 2012-13, since its powers in this area more generally have grown, rather than shrunk in recent years. There should, therefore, be no legal impediment to the enfranchisement of EU nationals or indeed anyone else, should a second independence referendum come along.

However, it is possible that the UK Government might, this time around, demand that conditions should be imposed on any re-grant of the power to hold a referendum. The possibility of conditions being imposed this time in such a way as they were not last time has been raised by David Torrance in his article in The Herald today. He takes the view that the UK Government might insist upon restrictions both on the timing of a referendum and possibly even the question asked. Last time there was a time limit of about two years, within which there was total discretion to hold or not hold the referendum, and the question was set by the Scottish Parliament in consultation with the Electoral Commission. For my own part I am ambivalent about the virtues of anything that could be seen as a political fix-up, on the part of either side in these areas.

These conditions might, however, include constraints on the franchise. This is therefore a potential bone of contention. If HM Government were to insist on excluding EU citizens from the referendum despite the Scottish Parliament having potentially protected their ordinary voting rights, the question of who has the right to decide the franchise could very easily become the obstacle to agreeing a section 30 order.

Conclusion

I think Neil Lovatt is wrong when he says that, post Brexit, EU nationals "certainly won't" have voting rights in Scotland, let alone in relation to a referendum. Ultimately these are choices that the Scottish Parliament has, by the precedent, been entitled to make. If the UK Government wishes to create problems for itself by insisting on constraints that it did not insist upon last time, that would likely be very politically unwise indeed.

Leaving the EU does, however, re-open the question of voting rights generally in the United Kingdom. As part of the emerging conflict of political cultures, the franchise is a possible avenue where this "open v closed" society dynamic could come into life. It will say a lot about our country whether this change leads us to include or exclude people from our political processes. One might even say this is the real mark of who exactly it is that is "Taking Back Control".

Friday, 3 February 2017

Ratifying a Withdrawal Agreement - The Lib Dem Amendment

Context

The Liberal Democrats have tabled an amendment to the European Union (Notification of Withdrawal) Bill. This legislation was introduced by the government in response to the adverse judgment in Miller v Secretary of State for Exiting the European Union, in which the Supreme Court concluded that Parliamentary authorisation was required before the Prime Minister could, in the terms of Article 50 (2) TEU "notify the European Council of its intention" to withdraw from the EU.

The proposed amendment would require the United Kingdom and Gibraltar to hold a referendum on the "exit package proposed by HM Government at conclusion of the negotiations triggered by Article 50(2)". The choices in that referendum are to "support the Government's proposed new arrangement" or that the United Kingdom should "remain a member of the European Union".



There are two problems with this amendment.

Problem One - A withdrawal agreement is optional

Firstly, there might not be an "exit package". Article 50 notifications trigger a 2-year negotiation period that can only be extended by the unanimous agreement of the 28 Member States. Article 50(3) is very clear about this. The Prime Minister has already contemplated the conditions in which she might reject a deal that is proposed by at least a qualified majority of the remaining Member States. In those circumstances, it is not even clear that the British people would, under this proposed amendment, get the opportunity to participate in a referendum: there is no "exit package" proposed by the government in those circumstances, and our obligations under EU law would extinguish regardless.

Problem Two - Article 50 is not unilaterally reversible

The second problem is that, even if the UK Government does arrive at an "exit package" with the other Member States, it is not in the UK Government's gift to offer the British people a second chance to stay in the European Union. If the deal is rejected at the ballot box, the default legal position is that the United Kingdom leaves the EU without an exit deal. It's not just that Theresa May could ignore the result of an "advisory" referendum in either direction; it's that it's no longer in her gift to give effect to one of the results.

The orthodox view of Article 50 is that a notification, once made, cannot unilaterally be revoked. The UK could not "cancel Brexit" on its own simply because a referendum saw the British people change their mind. This point of law was common ground in Miller [see para 26]. A legal challenge in the Irish Courts has been brought by Jo Maugham QC to try to establish this point, but it is unlikely to reach the Court of Justice of the European Union on a reference and even if it does it is likely to lose. For one thing, their case appears to have relied on arguing that the UK has already notified the EU for the purposes of Article 50, something which clearly cannot be the case now that the Supreme Court has said notification without Parliamentary authorisation would be unlawful (and therefore not, per Article 50(1) "in accordance with [our] constitutional requirements").

In order for the UK to stay in the EU following a second referendum, therefore, the other Member States would have to do one of two things. Either they could agree unanimously indefinitely to extend the deadline of the Article 50 process, and to normalise the cancellation of the Article 50 process by way of an amendment to the Treaties under Article 48 TEU (which would itself require the full ratification process through all 28 Member States). Or alternatively, they would have to try to negotiate a second "withdrawal agreement" that was in fact completely the opposite. Although such an agreement would only require a qualified majority to pass, it may be considered a violation of the Treaties to use Article 50 for the opposite of its intended purpose. Such a "not really a withdrawal agreement agreement" would also still have to be ratified in accordance with the constitutional requirements of every single other Member State.

There is also a fundamental democratic point here. If you do not like Theresa May's deal, you might not like it for one of two pretty diametrically opposed reasons. How should you vote in this proposed referendum if you want a WTO Brexit? The blunt answer is you do not know until or unless what the consequences of rejecting the deal will in fact be are clarified. May's deal might be preferable to you if the consequences of rejecting it are that we do not leave at all. The same is true for a Remainer. If you would prefer May's Brexit deal to a Hard Brexit, it is not reasonable to expect you to vote against that deal on the wing and a prayer that the exit process can be and will be reversed.

So even if the Lib Dem amendment is well intentioned, and there is likely to be fundamental political opposition to it, it fails to protect the right of the British people to choose what actually appears on their ballot papers.

Proposed improvements

So what should they be doing to get their desired ends, assuming it is democratically defensible and feasible to get through Parliament?

1. The Lib Dems and like-minded allies should be seeking to restrict the types of withdrawal agreement that HM Government are permitted to agree to. Their amendment should contain a prohibition against the Prime Minister or any other government representative consenting to an agreement that fails to include a provision that either allows or requires the UK not to leave the European Union if the exit deal is rejected in a referendum. This would allow an agreement to be ratified, contingent upon the outcome of that referendum. WTO Brexiteers and Remainers would therefore know exactly what they were voting for.

This is not an unprecedented approach to how the UK regulates its relationship with the European Union. Indeed this is exactly the kind of limitation imposed by provisions in the European Union Act 2011, which the Coalition Government passed. It imposes restrictions on Ministers variously, "giving a notification", "voting in favour of or otherwise supporting", or "confirming the approval of" certain decisions or processes giving rise to the exercise or transfer of Treaty powers on behalf of the United Kingdom. There are generally two mechanisms by which the Act allows these powers to be exercised: approval in a referendum or approval by Parliament.

2. Their amendment should impose a duty on the government to hold a second, In/Out referendum at least three months before the expiry of the Article 50 2-year window in the event that a withdrawal agreement has not yet been reached. Although such a referendum could not be legally binding without the Council's agreement, this would at least carry a great deal of political weight. Such a requirement would also disincentivise both the EU from being extremely harsh in its negotiating position, and disincentivise the Prime Minister from walking away from a withdrawal agreement on favourable terms, simply because it contained a second referendum requirement.

Parting thoughts

Brexit is going to happen, and as it stands, it's going to be a pretty brutal one. It is going to hand a lot of power back to the UK Government, rather than Parliament. The Miller case gave Parliament a small window in which to assert itself and to constrain the ability of the Prime Minister to act on our behalf. Whether the intention is still, a little delusionally, to stop Brexit, or even if it is well placed, to try to mitigate the damage, the requirement of a second referendum could change the dynamics of the negotiations considerably. But it requires Parliament to be smart: to strengthen Britain's negotiating position by weakening the Prime Minister's. In its current form, the Liberal Democrats' amendment fails to do that.

Sunday, 13 November 2016

Howling at the Moon? Yep.

On Saturday, the Scottish Liberal Democrats confirmed themselves as unconditional Unionists.

This is not liberal.

The Parliamentary Party turned on a motion that was itself an attempt to heal the divide between members of the party for whom the result of the EU referendum will likely compel the choice between two unpalatables. They showed a total unwillingness to listen, to acknowledge that the Unionism of far too many, especially many in the Scottish Tories, is unthinking, tribal and contrary to the interests of either people in Scotland or other parts of that Union.

They falsely accused the movers of the motion of pushing them to break a pledge they made to the electorate in May. The movers of the motion deliberately framed the motion in such a way so as not to put them in that position. Whatever your view of the merits of either the manifesto commitment against supporting a referendum in this Parliament, or the donor-seeking Scotland in Union pledge overtly to oppose any such referendum, we were very clear we would not and could not ask them to go back on it.

Yet the leadership's inner-circle lined up one after another, frankly, to tell barefaced lies to the Conference hall. They smeared those bringing the motion as unwitting nationalist conduits, for having the audacity simply to ask that they do two things. Those two requests were possibly the most painfully reasonable one could hope for a liberal and democratic party to agree to.

First, we asked them to talk to the Scottish Government, and to go to the table without preconditions and demands. We wanted them to work with their group of experts to identify possible ways of protecting Scotland's interests in the EU. Rule nothing in; but rule nothing out, until the lie of the landscape is clearer.

Their response? To say that the Muscatelli Group was a PR exercise and a ruse for independence. Never mind that a longstanding and highly respected Labour MEP sits on this group. Never mind that Sturgeon has been back-peddling on the imminence of a referendum ever since June, and has directed her focus towards single market and free movement protection since. To expect this group to have done much before Art 50 has even been invoked is disingenuous, and not even to work with them is narrow-minded.

Secondly, we asked them to bring their proposals, once the terms of a Brexit deal are known, before Conference, so that the membership could freely and openly discuss the best way forward for Scotland. The amendment they voted for removed that commitment. The leadership therefore has a free hand to ignore the concerns of the membership about whether, and to what extent, leaving the European Union alters Scotland's interests in the British Union.

Several times those of us with concerns about the party's increasingly default hostility to anyone who didn't toe the line on the constitutional question have reached out, to try to reach a compromise that lets us move forward as one liberal voice. Time and time again those requests fell on deaf ears. There is now barely any room whatsoever for even critical unionists in the Scottish Liberal Democrats. The gravity of the party has shifted, and it amounts, in essence, to a slightly more cosmopolitan Conservative and Unionist party that doesn't like Iain Duncan Smith.

Some people yesterday said that it was a mark of strength that the Lib Dems allow debates like this. In truth it was nothing of the sort. Instead of having respect for the perspective of members of their own party who disagreed with them, the Parliamentary Party treated them like pests to swatted. They opposed a motion that would have very specifically put the future positioning of this party in its membership's hands.

That membership would, in all probability, have, when the time came, reaffirmed the party's opposition to Scottish independence and may well even have extended its opposition to another referendum, even beyond the 2016-21 Holyrood Parliamentary session. But what would have mattered is that the leadership would have been obliged to justify their stance and ask the membership to back them, when all the information was laid bare and made available to the membership and to the rest of Scotland as a whole.

Put simply, they don't trust the members of the Party, and they don't trust the Scottish people.

A political party for whom both of those things are true might not become extinct, but it will also never be relevant in Scottish politics. Taking two mainland constituency seats to replace two mainland list seats isn't "winning again"; it's palliative care that writes off people who are liberal by politics to court tactical Tories.

And make no mistake, in 2021 and 2026 the Tories will come gunning for those seats. They have the money and after 2016, they have the ground operation. And when that happens, the Lib Dems really are in trouble.

Thursday, 6 October 2016

Citoyens du Monde

In her speech to Conservative Party conference, Theresa May said that if you are a citizen of the world you are a citizen of nowhere.

Insodoing she surrendered any moral right to criticise literally anyone for being a "divisive nationalist".

I have never been comfortable with the concept of citizenship. The idea that as individual human beings we owe some sense of inherent loyalty to a set of political institutions, or to a flag, or to a nation is one that makes no sense at all. As the infamous political compass put it, you don't choose your country of origin so it is foolish to be proud of it.

But citizenship is important in our world. This idea of commonality, that because you exist and you are a part of our society, that you have a basic expectation of dignity, respect, protection, is vital if progress is to be achieved.

The problem with citizenship is that it is exclusive. Arbitrarily so. It excludes people, who would be far better advocates of the goals of citizenship than most people who are actually citizens. It says that they don't belong. Not really. Because they happened not to be born here, or not born to the right parents. We deny people citizenship because they don't speak our language quite well enough to tick a box, or because they haven't lived here long enough, or because a relative with a funny sounding name did something that was cruel or inhumane.

Citizenship was not invented to exclude; it was invented to empower. One of the best things about EU citizenship was that it sought to say something about who we are as a political community. It said that, when we work together, the plumber from Warsaw is just as important to Britain whether he comes here for a year or a lifetime. That the student from the Czech Republic can be as involved in our public life and our politics as the family that has lived here for countless generations. That, when you strip back the barriers, we are all essentially just people. People with dreams, aspirations, a desire to make the lives of ourselves and those around us better. The respects in which EU citizenship fell short wasn't that it gave our neighbours too many rights; it's that it didn't give enough of our neighbours the dignity and opportunity of a life in our country.

To say that we cannot be citizens of the world is insulting. The fact that we have states and nations does not alter the fact that the plight of the child in Aleppo is just as important, as morally significant, as that of the child in Ardrossan or Aldershot. Our capacities to assist may differ, but that is not something they control and therefore not something by which we should judge them.

It is Theresa May that does not understand the true meaning of citizenship. When people say they are citizens of the world they do not say that their loyalty is to nothing; they say it is to humanity and the pursuit of the truly common good. It is just a fact that I have more in common with many people in other countries than I do with some people who live a five minute walk away. To try to impose special duties on my belonging to Britain as a community is just as offensive as the idea you should impose them on someone who comes here to make a better life. Citizens of the world say that what unites us is our capacity to empathise, and our need to be accepted, protected, and welcomed into the communities in which we live.

The tax avoiders and croney businesses Theresa May criticises don't claim to be "global citizens". Corporations can scarcely be said to be citizens at all, least of all to any nation or state. Where their actions are morally offensive they are so not because it is "disloyal" to Britain but because they disown empathy to the whole of humanity. They reject the spirit of what it means to participate in any society; not just the ones in Britain. It is the individual human beings they affect who are offended against, not the state. Not the nation. It's the people who can't get treatment because there is no money for the cancer ward. It's the people who lose their jobs because a businessman exploits bankruptcy laws to avoid paying his suppliers. It's the family that chooses whether to heat or eat.

None of this requires us to care where they were born, what the colour of their skin is, what language they speak, what is their religion. If citizenship really requires these arbitrary questions of moral concern to divide or communities into the deserving and the undeserving then truly it is preferable to be stateless.

But we're not going to let you win Theresa May. You aren't even turning the clock back to 1950. Because at least then the trajectory of human progress was towards inclusion, openness, and the setting aside of the sheer pettiness of nationalism. An ideology that legitimised the wasting of tens of millions of human lives, held back humanity's potential and made us an altogether inferior civilisation.

Citizenship means global citizenship. And whether you like it or not, we are going to make a success of it.