Part II Mini-Symposium on EU Citizenship in the Shadow of Brexit: Political participation by EU citizens in Scotland after Brexit

By Mark Lazarowicz

Some have assumed that one of the consequences of Brexit is that EU citizens, who can currently vote in all elections in the UK except for those which choose MPs in the UK Parliament, will lose that right once, and if, the UK leaves the EU. In fact, Brexit will not automatically mean EU citizens in UK will lose the right to vote in elections for local government and the devolved legislatures. That is because the right of EU citizens to vote in local government elections is set out in the UK’s own domestic legislation. Therefore, all the rights of EU citizens to vote in other member states arises out of EU law, because that right is now contained with UK law, the fact that UK will no longer be a member of the EU does not change that provision giving EU citizens the right to vote in local elections. In that respect, they will join the citizens of many other countries who, although they have no right deriving from a treaty to vote in UK elections, nevertheless have such a right. For example Commonwealth citizens, if they have leave to enter or remain in the UK, or do not require such leave, can register, vote, and stand in all UK elections even though there may not be any reciprocal right for UK citizens to vote in elections in that Commonwealth country.

Furthermore, because the franchise for devolved legislatures in the UK (eg in Scotland, Wales, and Northern Ireland) is defined as being the same as that for local elections (For example, for Scotland, by section 11 of the Scotland Act 1998), EU citizens in the UK can vote, and stand for election, to those legislatures.

However, after Brexit, EU citizens’ right to vote in those UK elections will no longer be guaranteed by European Treaties, nor is it provided for by the UK-EU Withdrawal Agreement. That right could be removed by an Act of the UK Parliament, and possibly even by statutory instrument under the EU (Withdrawal) Act 2018. (There is an exception for citizens of Cyprus, Malta and Ireland because they are specifically guaranteed electoral rights as Commonwealth or Irish citizens in UK.

In Scotland, however, the franchise for local and devolved elections is now devolved to the Scottish Parliament. Furthermore, in a constitutional innovation for the UK, a ‘super majority’ (two-thirds of MSPs) is required for legislation on that franchise to pass. That applies to legislation which restricts that franchise just as much as to that which extends it. So even in the unlikely event that it wished to do so, the Scottish Government would not be able to remove rights of EU citizens to vote in those elections without obtaining a ‘super majority’ for that legislation in the Scottish Parliament.

In fact, far from wishing to do that, Scottish Government is proposing extension of the franchise to all people residing (legally) in Scotland – not just all Europeans (EU and others), but citizens from anywhere in the world. Because of the requirement to attain ‘super-majority’, it will require support from Labour and/or Conservative MSPs to pass such legislation, as the number of SNP MSPs, together with the smaller minority parties, the Greens and the Liberal Democrats, is less than two-thirds combined.

The Scottish Government has also said it will ‘protect the electoral franchise for EU citizens in Scotland.’ As that franchise is a matter now reserved to the Scottish Parliament, it does not appear that there is any immediate reason to provide that protection. The thinking may be that because the right to vote in devolved election is derived from the right of EU nationals to vote in local government elections, if the UK changed the legislation to take away the right to vote in local elections from EU nationals, it would then be legislating on devolved matters which under the Sewel Convention it ought not to do. (This is the convention whereby the UK Parliament will not normally legislate on devolved matters. That convention is now given a statutory basis in the Scotland Act 1998, following amendments made by the Scotland Act 2016)

It is true, of course, that the UK Parliament could use its reserve powers to remove voting rights from EU citizens in both local and devolved Parliamentary elections in Scotland, and/or stop the extension of the franchise, to over-rule any decision by the Scottish Parliament on these matters. That would be extremely politically controversial, however.

What has to be said is that the extension of the franchise to EU citizens is just one example of what is markedly a positive attitude to EU citizens by the Scottish Government. This extends beyond EU nationals: the proposal to give the right to vote in local and devolved elections to all those legally resident in Scotland is an example of this. The Scottish Government has also expressed its support for freedom of movement, and to see more immigration into Scotland, because of Scotland’s ageing population. More generally, it has generally expressed a positive stance towards the concept of Scotland as a multi-cultural society.

Within its own competence, where it has the power to take action, it has recently announced that it will fund a support and advice service for EU citizens in Scotland, and supported a programme of information and advice events by the EU Citizens’ Rights Project (transparency – I am the chair of that project). It also stated its intention to pay the settled status application fee for “those working in the devolved public services”, although the status of this pledge is now unclear as the UK appears to be insisting that those having that fee paid will be liable for income tax for that sum which will be regarded as an addition to earnings.

Of course, immigration into the UK is a matter which is reserved to the Westminster Parliament, over which the Scottish Parliament has no authority. The Scottish Government would like that devolved, at least to a degree, to Scotland. And there is cross-party support for some differentiated approach to immigration in Scotland, – even from some Scottish Conservatives. There is no indication, however, that the UK government will agree to such a change.

Some are cynical about the motives of the Scottish Government’s positive attitude towards migration of EU citizens into Scotland, and indeed towards EU nationals more generally. No doubt there may be many factors influencing that policy. But I see no reason not to believe that that welcoming attitude is based primarily from a genuine commitment to a multi-cultural Scotland which is welcoming to EU nationals and migrants more generally. And in some respects, it is also a courageous stance. Opinion polls suggest, of course, a high level of support for EU membership within Scotland. But actually, there was a substantially higher percentage of support for ‘leave’ amongst SNP voters than amongst Labour and Liberal Democrat voters. And although attitude surveys have suggested that voters in Scotland are slightly more positive towards migration than the UK average, the difference is not substantial.

And certainly, one result of the Scottish Government’s stance is that it has made it easier for  the language of political discourse, amongst political parties, and public discourse generally, in Scotland, to be much more positive (not universally, but for the most part) towards EU citizens and migrants than in many other places in the UK.  I know that a similar positive approach to EU citizens and migration is shared by many in devolved government and in local government elsewhere in the UK, and I hope that they can get encouragement from the approach taken in Scotland.

As a postscript, mention should be made of the contrast in Scotland between the 2014 referendum on independence, in which EU citizens were allowed to vote, and the 2016 referendum on EU membership, where EU citizens were not able to take part in a decision which would have a greater bearing on their lives in the UK than most others able to vote in that referendum. It should be emphasised that the Scottish Parliament does have, and always had, the power in principle to allow EU citizens to vote in referendums on anything. That is the case because the power to hold a referendum was not, in principle, reserved to the UK parliament. The question in 2014 was whether the holding of a referendum about a reserved matter (constitutional change) was itself within the powers of the Scottish Parliament, even when that referendum would not have had legal effect. The 2014 referendum on independence was, in effect, advisory – that may sound familiar.

One of the reasons why both UK and Scottish government agreed that legislation to allow the SP to hold a referendum, within specified constraints, was precisely because there was uncertainty – on both sides – as to whether the Scottish Parliament could legally have held an advisory referendum on independence even if the UK government didn’t allow it.

Nevertheless, that contrast between the 2014 and 2016 franchises is cited by many EU citizens in Scotland as another example of a more welcoming attitude towards them, and towards participation in the democratic process, in Scotland.