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]

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