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.

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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]^↩

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".

Response to Scottish Government consultation on Independence Referendum

As with the UK Government's Consultation, I have responded to the Scottish Government's Consultation on the Independence Referendum and suggest you do the same:

To whom it concerns,

I enclose my response to the questions raised in the Scottish Government's Consultation Paper on the Independence Referendum. I draw particular attention to my recommendations in respect of the franchise and the need for a public and legally clear second question so as best to make clear independence takes primacy in the event of a double-Yes vote,

Regards

Graeme Cowie

Q1: What are your views on the referendum question and the design of the ballot paper?

A: The question is straight-forward and accessible. I'd rather the paper properly addressed the mechanics of a second question (to put that issue to bed once and for all) instead of vaguely mentioning that it could be added if there was a call for it. I disagree with the Scottish Government's view that, per para 1.5 the question could circumvent s29 and Schedule 5 of the Scotland Act in the event a s30 order or extension of power by Act of Parliament was not forthcoming.

Q2: What are your views on the proposed timetable and voting arrangements?

A: They are satisfactory.

Q3: What are your views on the inclusion of a second question in the referendum and the voting system that could be used?

A: I believe a second question asking "notwithstanding your response to Q1 should the powers of the Scottish Parliament should be extended to include full tax-raising powers and other competences which are presently reserved matters" or words to that effect, should be on the ballot paper. As a Liberal Democrat, I have urged my party to work with the Scottish Government to define the parameters of this third option and I would hope that a bit of give and take would be forthcoming on both sides. The first question on the ballot, contrary to the original Referendum Bill in the last Parliament, should be the independence and not the extra-powers question. This leaves the voter in no doubt whatsoever that the primary issue at stake is independence and that devo-max is a related but alternative proposition that will only come into play if the first question results in a No vote.

As a word of caution, I would avoid using "but remaining with the UK" or any reference to such in the second question, because it makes the propositions not merely related alternatives but mutually exclusive propositions. This should remove any pretence of uncertainty with reference to what has been dubbed "Rennie's Riddle".

Q4: What are your views on the proposal to give the Electoral Management Board and its Convener responsibility for the operational management of the referendum?

A: I am content with these propositions. It is a welcome development that the SNP has disposed of its proposal for a separate Referendum Commission, which would have been an unnecessary complication, not terribly expedient, and would have shown a disregard for the good, independent, and impartial work of the Electoral Commission in both UK-wide and devolved referenda.

Q5: What are your views on the proposed division of roles between the Electoral Management Board and the Electoral Commission?

A: No objections.

Q6: What are your views on the idea that the referendum could be held on a Saturday or on other ways which would make voting easier?

A: I see no compelling reason to hold it on a Saturday. By Autumn 2014 the football season will have gotten well under-way and many fans will be quite far away from their polling station in any case. The standard mid-week position is one that should be adopted. I don't see any great need to change the existing polling location arrangements either. That's a matter for the local authorities' Election Boards.

Q7: What are your views on extending the franchise to those aged 16 and 17 years who are eligible to be registered on the electoral register?

A: I wholeheartedly agree with the principle of votes at 16. I cannot, however, agree with the mechanism the SNP has described. There are severe legitimacy issues when it comes to an ad hoc reduction of the franchise as part of the same Act of Scottish Parliament that provides for a one-off plebiscite. Further, the manner and form of registration on the Electoral Roll for 16 and 17 year-olds is inexact and the cut-off would not be as clear (with some 16 year-olds being eligible to go on the roll and others not). The reason this group are registered on the roll at all is to guarantee that they will be on the roll by the time they are eligible to vote at 18. It comes across as incredibly ad hoc and doesn't further it for the right reasons in the constitutionally appropriate manner

If you are going to extend the franchise you have to do it properly and by separate Act of Parliament. I have a lot of sympathy for the SNP in this area since both the Gould Report and Calman Commission supported the devolution of elections in Scotland to the Scottish Parliament. I would suggest that the Scottish Government issue a specific request to be given the power to set the franchise in Scottish Parliamentary and local elections, and by extension any referendums held in Scotland only. Then they could introduce a Representation of the People (Scotland) Bill prior to the passage of the Referendum Bill into law, extending the franchise to 16 for all Scotland-only elections.

Q8: What are your views on the proposed spending limits?

A: I see nothing objectionable.

Q9: Do you have any other comments about the proposals in the draft Referendum (Scotland) Bill?

A: N/A