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".

Number 10 has a Plan

It is not the case that Number 10 do not have a plan. They have a very clear plan. David Cameron let the cat out of the bag in the House of Commons today. He told Angus Robertson, Leader of the SNP group, that Scotland should want to stay inside two single-markets: the British one and the European one.

Similar, "helpful" questions came from Ken Clarke, who pushed fairly overtly for Parliament's preference (for which read, the least Brexit-like) and Pat McFadden, who asked him if he knew of any country which was admitted to the single market but which did not have to accept free movement of workers (the answer obviously being "no, none").

The Plan

The United Kingdom is going to negotiate to become a member of the European Economic Area, or the EEA. The so-called "Norway" option. There will be some quibbles over the specifics and there may be some variation, but it is what is happening.

The Government is holding-off invoking Article 50 for a very good reason. This is a Brexit Prime Minister's button to push, and the longer it isn't pushed, the less room there is for them to save face without agreeing to a terrible deal. Cameron worked this out when he made his resignation statement on Friday Morning. The only person who can successfully lead the UK out of the EU, in the absence of an EEA offering, is a Tory Prime Minister with a substantial (50+) seat majority. With an EEA offering, the coalition of compromise is there across the parties.

Perhaps most importantly, Cameron has essentially decided that the political price for this decision should be that the Brexit Tories should be the ones to be very clearly and publicly responsible for the reneging on promises about immigration, financial contributions to the single market, and economic instability. Put plainer still, PM Boris Johnson will be the one that is blamed for a generation, by Remainers for taking us out of the EU, and by Leavers for the lies and a settlement that undermines the core of the democratic choice he persuaded them to take.

What would it mean

The ironic thing about the EEA is that it is the solution that does Britain the least economic damage and causes the least disruption, yet it is also the one choice that does the polar opposite of "taking back control". We will find ourselves bound by the vast majority of the legislation passed and promulgated by the Commission, Council and Parliament, but will have zero democratic input into those decisions.

It is true that the UK would regain some control over the fisheries and agriculture policies, but we would probably pay roughly the same membership fee as we do now (per capita, Norway pays more!) and we have to protect most, but not all of the treaty rights to free movement of workers.

What about Scotland?

This is important for Scotland for several reasons.

The UK is leaving the EU

It is now extremely unlikely that the UK will remain in the EU. There is no intention among those who matter to try and outright reverse this result. The priority of those who will be in government has swung firmly behind damage limitation.

Reverse Greenland won't happen

That means that any hopes of Scotland staying in the EU proper, while remaining in the United Kingdom, is unlikely. The only circumstances in which that could happen is if some kind of "reverse Greenland" proposal is agreed, to try to ring-fence membership for the UK that only has territorial application to Scotland, as part of the transition to the EEA.

This is a nice, seductive and attractive idea on the surface, but it's totally unworkable. In reality, it involves either the break-up of the British single market into EU and non-EU zones, or else there is very little that can be offered for Scotland that the EEA doesn't provide already. Differential free movement workers rights within a state would also be a nightmare to get right, albeit the actual border enforcement would not itself be radically different from the Norway/Sweden arrangement.

It also faces considerable political obstacles. The EU will not want to set a precedent whereby states can effectively "opt-out" parts of their state from the most onerous parts of EU membership. To do so would undermine the core objectives of the EU. It would be difficult to reconcile the "rights" of these "within a member-state" member-states in the European Council and its Parliament, and difficult to establish lines of accountability for Treaty obligations. The EU is, first and foremost, a Union of sovereign states, and any suggestion that something different would be arrived at would represent such a fundamental change in its nature as an institution as to justify far wider treaty change.

This is completely against the interests of especially the Eurozone. They seek, if anything, greater flexibility to allow for aggressive integration of its member-states. That is not something that can be done while creating different tiers and types of European Union membership. It is also not something that is likely to be entertained by any other state in the EU with a secession movement, lest differential membership terms be seen as a stepping-stone towards outright independence.

Scotland has to Choose

Given this, Scotland will soon have to make a choice. They will have, in all likelihood, the opportunity to choose between three outcomes:

1. Accept being part of the UK, which is itself a member of the EEA
2. Become an independent state, securing its own EEA membership immediately or almost immediately as an intermediary step to full EU membership; or
3. Negotiating as part of the UK's EEA settlement that Scotland receives accelerated EU membership if it chooses to vote to leave the UK in a second referendum

My Preference

As I have indicated elsewhere, it is now (tentatively) my belief that the third option is the most desirable of those three, but it will be the most complicated to achieve. I also believe that this option has its fewest drawbacks if it transpires that the rest of the UK would be in the EEA rather than a looser arrangement with the rest of Europe. We would still, in those circumstances, functionally retain a single market with the rest of the UK, and would be able to trade with them without any serious impediment. The same, incidentally, would be true of the second of these three options as we'd both have the same relationship with the European single-market.

In many respects, therefore, very little in terms of the economic relationships between Scotland and the rest of the United Kingdom would stand to change if we seceded. The key impediments to Scottish independence would actually be fundamentally the same as they were in 2014. On the currency, the pound has weakened, albeit it may strengthen in the coming months. Back in 2014 I always said that a separate Scottish currency, initially pegged to either the pound or the Euro, was preferable to a currency union.

I always thought that problem was overblown. It is a necessary challenge that comes with independence, but in the medium term the answer is obvious and it is not clear that it would significantly impede trade. There will be very little pressure for Scotland immediately to join the Euro, not least because of its own current challenges and the pragmatic interests of both Europe and Scotland in finding a responsible way to address Scotland's deficits, which substantially exceed the Exchange Rate Mechanism's minimum requirements.

The fiscal situation is definitely more acute. I am not going to deny that; indeed I have argued at length about it. But that is the case not because of Brexit but those underlying economic conditions. If anything, the effect of our withdrawal from the EU may well affect the balance of tax generated and public spending committed within the United Kingdom substantially. If Scotland makes clear that it intends to be a full member of the EU, rather than just an EEA member, it may stand to benefit from some of the jobs and business, especially in the financial sector, that the UK currently has in London, thus far seen as a "gateway" to the European Union.

Settling the Mandate

What is clear, though, is that Scotland very clearly indicated a preference to be involved in the political institutions of the European Union, rather than just the single market. I think it is necessary, once we know the tenor of the UK's new relationship with the EU, that Scotland should be given a clear opportunity to choose between the two Unions, and the two relationships that come with them.

If it is the view of the people of Scotland that this fiscal transfers enjoyed by Scotland, the stability of a common currency with the rest of the UK, and the new likely control of fisheries and agriculture, are are better option than seeking outright European Union membership, there would in the event of a referendum be a clear choice for those people. You can still vote No. That would provide clarity as to the conflicting two mandates Scotland has issued in the 2014 and 2016 referendums. This is not a vote British Unionists should fear. There would also still be a clear base for all Liberals, keen to keep all of the UK in the EU, the opportunity to make the case for reintegration of each of the respective two states in decades to come, should the EEA prove an unsatisfactory deal.

Uncertainty

People have absolutely nothing to fear from another Scottish independence referendum, given the very substantial uncertainty that now afflicts both what it means to persevere with the British Union or to depart from it in favour of the European one. What is different is that we need to know what the depth of feeling of the Scottish people was at, apparently, wishing for a diametrically opposite conclusion to those of the English and Welsh people in relation to the European family. The only way we can resolve that democratic deficit is another referendum.

If the difference between the EEA and the EU really is so shallow that the Scottish people really do not mind, I suspect that the British Union, with its pooling and sharing of resources, would in the minds of the Scottish people outweigh that of Europe. In those circumstances, those who prefer or see their primary loyalty to that Union have absolutely nothing to fear from another plebiscite.

Indeed they may be able to kill Scottish independence for a generation with a second No vote in quick succession. I cannot see what they stand to lose, if they are also passionate Europeans, in those circumstances. For if the Scottish people see the EU as so fundamental that we should leave, then leaving demonstrably would advance those interests and values and that is something we should enable them to do.

Conclusions

The fact that we are negotiating Britain's future in Europe, with a conclusive end-point, in many respects actually removes some of the uncertainty of a future referendum for Scotland. The fact that the UK is having to clarify its terms of departure from the EU makes it much easier for the EU to consider the hypotheticals for Scotland, without hitting opposition from other states. Countries like Spain will be far more willing to entertain "pre-negotiation" for Scotland when they know it only sets a precedent where the parent state is leaving the EU already, because Spain has no intention of leaving the EU.

Imaginative thinking doesn't have to mean delusional thinking in the aftermath of this referendum result. The bottom line is that, once we know what the UK is likely to get as a relationship with the rest of the EU, Scotland must clarify its own trajectory. Not to maintain this is, I'm afraid, simply anti-democratic, and actually will turn Scotland's politics back away from real bread and butter issues.

If you want a neverendum, constitutional uncertainty, and economic insecurity, by all means fight Brexit at a UK level. You will make the job harder to secure an EEA agreement, meaning the rest of the UK will diverge more harshly from the EU, and you will make the break-up of the United Kingdom more likely. You will give the SNP an easy narrative for the next 5 years to avoid accountability on its domestic agenda. And the Scottish people will harbour an unresolved grievance, on both sides of the divide.

I don't want that. I suspect in their heart of hearts, most Unionists don't either.

A Counterintuitive Liberal Opportunity

A superficial look at the Scottish Parliamentary election results would suggest that Scotland has divided along Nationalist and Unionist lines. Two unexpected and impressive victories by Willie Rennie in North East Fife and Alex Cole-Hamilton in Edinburgh Western have made us harder to dislodge and re-established a core for our party. It is tempting not just to attribute that to the marshalling of a tactical Unionist vote but to act accordingly.

This should not be a reason now to be cautious: to justify Unionist opposition for opposition's sake. The fact that the SNP have failed to win a majority offers us an unexpected but critical opportunity to maintain our relevance in Scottish politics. It makes the fact that the Greens have overtaken us in seats less of a problem than it otherwise would have been.

All of the talk will be about what deals the SNP can do with the Scottish Greens. But the split of the independence vote in this election represents a fundamental fault-line that is not so easily bridged as people might think. Especially on taxation and macroeconomic policy there is much that separates the SNP and the Greens. It doesn't seem plausible to me that John Swinney will swallow much of substance of the Patrick Harvie tax-plan, or his uncompromising approach to the energy sector.

It is also true that this minority SNP government will not be like the 2007 one. No longer can they rely on the Tories to waive through their budgets on the promise of a few more bobbies on the beat, like they could under Annabelle Goldie. The Tories positioning themselves as the main opposition, and the SNP having vilified cooperation with the Tories during the independence referendum, has burned those bridges.

Against that backdrop, the Liberal group of 5 MSPs, who maintain their status as an official "group" at Holyrood, can make a constructive, liberal and centrist, contribution to this Parliament. We can be the pragmatic reformists: the "better Union" power-brokers that the SNP can, and ultimately must, do business with.

This doesn't just make sense from a policy perspective. Sure, it can keep the SNP from their worst authoritarian excesses and stop self-defeating economic policies of the Malthusian left from holding Scotland back. But it makes sense from an electoral perspective too. It's time, much as it pains some Liberals, to try to heal the rift with liberal Nationalists after our immensely damaging sulk post 2007. If we do this, we can secure significant concessions on our core priorities, especially mental health and education.

This minority government also buys us time that we frankly did not expect to have to shore-up our response to the constitutional question. Holyrood's Committees, including its Devolution Committee, are no longer subject to majority SNP control. We can now work internally, with less timidity, on the detail of what is actually needed to deliver a federal Britain. We can afford to be bolder with our ideas now that a second independence referendum is unlikely to feature in this Holyrood parliamentary term. This will be the long-term route to the Liberal Democrats not just to dig-in like "cockroaches" as Tim Farron once put it, but actively to rebuild our Parliamentary presence into double-digits.

The Labour Party now faces an existential crisis in Scotland. If we seize the opportunity to work with the Scottish Government, we can make ourselves genuinely indispensable to the national debate, on both bread-and-butter and constitutional issues, and fill the gap they have vacated. If, on the other hand, we retreat into our bunker, the victories of Willie and Alex will have been phyrric.

Permanency and Parliaments

The latest Twitter storm in relation to the Scotland Bill concerns the very first clause. It is being claimed that the Commons has voted against the permanence of the Scottish Parliament, and that therefore the Smith Commission proposals have not been upheld.

This is untrue.

Amendment 58, moved by the SNP, proposes to change the wording of sub-clause 1(1), which amends the first section of the Scotland Act. The Bill's original wording simply provides a new section which would read as follows:

"(1A) A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements."

The proposed amendment would read:

"(1A) The Scottish Parliament is a permanent part of the United Kingdom’s constitution. 

(1B) Subsection (1) or (1A) may be repealed only if—
(a) the Scottish Parliament has consented to the proposed repeal, and
(b) a referendum has been held in Scotland on the proposed repeal and a majority of those voting at the referendum have consented to it."

It is being maintained that, by voting against this amendment, the Commons has voted against making the Scottish Parliament permanent.

It is certainly the case that, so long as (1B) were to be on the statute book, there is a significant political obstacle to the repeal of the Scotland Act or the removal of the Scottish Parliament. The political cost of not having procured consent of Holyrood and the Scottish people, having made a written commitment to do so, would be enormous.

In terms of its legal effect, however, this additional sub-clause does not add anything at all. If the concern of the movers of this amendment is that (1) or (1A) might be repealed, one presumes by ordinary legislation in the Westminster Parliament, what is to stop exactly the same piece of legislation from repealing (1B) in the same piece of legislation? Nothing. Any scenario in which the repeal of (1) or (1A) would be in issue could also see (1B) in the firing line.

This actually relates to more fundamental problems with the drafting of the Scotland Bill. The recommendation of the Smith Commission in relation to the permanency of the Scottish Parliament is essentially constitutionally impossible, so long as it is accepted that the Westminster Parliament is legislatively supreme and may make or unmake any law.

The proposed (1A) by the government does not actually make the Scottish Parliament permanent either. It says that it makes it permanent. But what does that mean? If Westminster passed the Abolition of the Scottish Parliament Act that purported to repeal it in its entirety, who would actually stop the Parliament from ceasing to exist? Not the courts. They would take their instruction from the most recent and unambiguous words of the Westminster Parliament. This is no greater legal protection of the existence of Holyrood than the Scotland Act as it stands.

If you were to make the Scottish Parliament permanent, you would need a codified constitution, and you would need to abolish the Westminster Parliament, or at least find a mechanism by which its legislative supremacy is "permanently" or irrevocably constrained. No provision in the Scotland Bill is capable of doing this, because of the principle that no Parliament may bind its successors.

Even if (1A) were capable of making the Scottish Parliament permanent, in terms of the law, (1B) arguably weakens, not strengthens, the protection, by providing a specific exception to the provision of (1A). Any logic that argues that (1B) is immune from repeal must accept that (1A), without (1B), is immune from repeal.

The principle that the Scottish Parliament and the Scottish people should both have a veto over Holyrood's abolition is a perfectly sound one. Neither the government's clauses nor the SNP amendment deliver this.

We need a constitutional convention!