Thursday 29 January 2015

Who should get the vote in a Brexit referendum?


Steve Peers

“Nasty Yes won the referendum yesterday”

That was my initial response to the Brexit referendum of 1975, written precociously in my childhood diary. I rather suspect that a hundred or so miles away, in a rather posher diary, and in an infinitely posher school, David Cameron was writing exactly the same words.

Of course, we had different motivations for this youthful flirtation with the Dark Side. In my case, I was simply copying my parents’ left-wing opposition to the EU, which remained unabated even though my dad had been one of the very first British citizens to (briefly) exercise the free movement of workers to another Member State. (I remained in the UK with my mother, who was a third-country national; it’s lucky we didn’t end up as an EU law exam question).

On the other hand, David Cameron probably didn’t care much about the referendum at all, but felt he needed to write those (hypothetical) words in his diary so that right-wing Eurosceptic bullies would finally leave him alone. They didn’t.

Forty years later, it looks like we may have another Brexit referendum in the near future, depending (as things stand) upon the very uncertain result (and aftermath) of the general election due in May. I have already blogged here about the reasons why advocates of the EU should support such a referendum. My topic today is who should get the vote in a Brexit referendum; I suspect many on the pro-EU side won’t like my argument on this issue much either. But like my case for a referendum, I believe that the case I make here is a principled one – and ultimately, the pro-EU case can only legitimately be made upon principled foundations.

Although it’s not yet certain that a Brexit referendum is imminent, I am prompted to write now on the issue of the franchise due to comments on the weekend by Nigel Farage, the leader of the UK Independence Party, who said that only British citizens should get the vote in the referendum. It wasn’t clear whether he thought British expatriates in the EU (or elsewhere) should also get it.

The starting point should be the franchise rules that already exist, although they could be changed for a referendum (as they were for the Scottish independence referendum last year). Among the existing rules, it makes sense to focus on those for UK-wide elections, rather than those for local government or the devolved bodies in Scotland, Wales and Northern Ireland, since a Brexit vote would be held nationwide.

There are two nationwide templates to choose from. In general elections, all British, Irish and Commonwealth citizens can vote, as can any British expatriates if they have been away from the country (whether in the EU or elsewhere) for less than 15 years. In European Parliament elections, citizens of all European Union countries can vote.  (For more details, see here).

At first sight, it might seem attractive to argue (as many on the pro-EU side do) that all EU citizens in the UK should get the vote. The departure of the UK from the EU would certainly affect them fundamentally. Even though UKIP’s current official position is that all those legally present should get to stay, there’s no guarantee that this protection would exist in practice after Brexit. And giving all EU citizens the vote is not unprecedented for nationwide elections, as they have the vote in European Parliament elections. (Indeed, they have the vote in local elections too).

However, this argument should be rejected, for two reasons. First of all, European Parliament elections are different in principle from other nationwide votes. They determine who will be the UK’s Members of the European Parliament, but that is a multinational body with a role in EU-wide decision-making. Of course EU laws have an impact on the UK, but the European Parliament is not the place where decisions distinct to the UK as a separate state get made. In contrast, such decisions get made via means of direct democracy, in nationwide referendums, and more frequently via means of indirect democracy, via means of our vote for the national parliament. So it makes more sense for all votes on the future of the UK as a separate state to be subject to the same franchise rules. In fact, this is the practice: the Westminster voting rules (leaving aside members of the House of Lords) were applied to the 2011 referendum on a change to the electoral system, and in the recent private members’ bills (supported by the Conservative party) providing for a 2017 Brexit referendum.

The second argument is one of legitimacy. If the pro-EU side narrowly wins a Brexit referendum in which all EU citizens are allowed to vote, Eurosceptics will endlessly claim that the election was ‘stolen’ from them. I can already anticipate the reaction to this point: Eurosceptics will demand another referendum anyway. The historical parallels are legion: Quebec separatists demanded another referendum after they lost the first one in 1980; Scottish nationalists are already agitating for a second independence referendum; and the Eurosceptics of the 1970s took over the Labour party shortly afterward.

But the point is not to try to stop hardcore Eurosceptics arguing for another Brexit referendum. They are bound to do that. The point is to stop them winning the argument for another referendum in public opinion more broadly. The pro-EU side should aim to win that argument fairly, by ensuring that the upcoming Brexit referendum (if there is one) is, as far as possible, beyond reproach.  (Again, of course hardcore Eurosceptics are bound to reproach it if they lose; the battleground is mainstream public opinion). The result of a Brexit referendum is always likely to be seen as a little bit dubious in mainstream public opinion if it depends on the votes of people who don’t usually have the vote in general elections, given that EU citizens can only vote in EP elections in the first place because of EU law. A good historical parallel would be the Canadian election of 1917, which was won by a pro-conscription party in the midst of the First World War by disenfranchising conscientious objectors and enfranchising women, but only if they were related to servicemen. For good reason, this victory was regarded as illegitimate by those opposing conscription.

Furthermore it’s not impossible to convince the broader public that a fresh referendum is unnecessary, where there’s a good case that the earlier one was clearly legitimate. After all, while Quebec separatists did get to hold another referendum in 1995, they have not yet secured another one despite their very narrow loss on that occasion. The Eurosceptic takeover of the Labour party proved shortlived, since it contributed to splitting the party and its biggest electoral defeat since the 1930s.

Should the franchise be changed in some other way for a Brexit referendum? No, for the same reason: any special rule would look like an attempt to fix the result, possibly in a Eurosceptic direction. So the franchise should not be narrowed to British citizens only: Irish and Commonwealth citizens have the vote in general elections, so should have the vote for the Brexit referendum too. (Remember that Cyprus and Malta are in both the EU and the Commonwealth). So should British citizens living abroad, whether they are living in the EU or not. It can’t be assumed that they are all pro-EU voters, as my dad’s example shows. Some of them may even have left the UK because of a belief that there were too many immigrants there – displaying an obvious lack of appreciation of irony.

What if the general election mandate is changed anyway? There may indeed be a case to be made that only British citizens should vote in general elections. However, for good reasons, there is a tradition that changes to the franchise need broad support across the political spectrum, including the main opposition party. And it would clearly be obnoxious to shove through a change to the franchise in the last few weeks before a general election. If there is such broad support for changing the franchise after the next general election, the first time to apply the new rules should be the subsequent general election, not any Brexit referendum that might take place.

My argument above will disappoint those who believe strongly that EU citizens in the UK should have the vote on a matter that affects them so significantly. But the case against letting them vote in a Brexit referendum is also tactical: the complaints against it are more likely to lead to a further referendum in the near future, or even to increase the votes for the anti-EU side. Yet even if the net result of letting all EU citizens vote would be to increase the pro-EU vote, it would be wrong to give them the vote in principle. And if EU citizens are particularly keen to vote, they could always consider obtaining UK citizenship.

Postscript (10 May 2015):

The above analysis obviously becomes more relevant after the results of the UK general election, given that a referendum on EU membership now seems certain to happen in the near future. That doesn't give me any reason to change my view, but it's a good occasion to make two further points.

First of all, I would reiterate the case against changing the voting franchise at all for the EU referendum, no matter what the changes concern. So the UKIP argument that 'only UK citizens should have the vote' should also be rejected, because it is equally wrong in principle. If Commonwealth citizens and Irish citizens can normally vote on the key issues facing this country in general elections, why can they not vote on the question of EU membership? Excluding them would appear to be an attempt to bias the vote toward the anti-EU side. Similarly, while I am in favour of extending the vote to 16 and 17-year-olds, the EU referendum would be the wrong time to change the rules. Again, it would appear to be an attempt to fix the results, particularly in light of the bizarre UKIP argument that young minds have been polluted by EU colouring books featuring evil Euro-cows.

Secondly, I think there's a better way to put my argument of principle against allowing all EU citizens to vote in the EU referendum. The whole point of the referendum is to decide on the polity (ie the political identity) of the UK in the first place. Should we remain part of the EU or not? Allowing all EU citizens in the UK to participate in that decision would effectively mean that they are judges in their own case.

I can understand the concerns of EU citizens in the UK that they ought to have a vote in an issue which will affect them so directly.  One solution is to obtain UK citizenship. For those unwilling or unable to do that, they have every right to participate in the broader public debate to convince voters that EU membership makes an important contribution to the UK's economic prosperity, environmental protection. social justice, animal welfare and cultural identity - and in particular that migrants from the EU make a huge contribution to Britain's economic and social success.  

Second postscript (25 May 2015)

Press reports indicate that the UK referendum on EU membership will indeed essentially follow the general election franchise, and not extend the vote to citizens of other EU countries (besides Ireland, Cyprus and Malta) living in the UK. Some have questioned the legality of this, but there seems little ground to challenge it. The EU Treaties require Member States to give all EU citizens the vote in local and European Parliament elections, but there is no reference to other votes. Since the Treaties include the power (never used) to widen EU citizens' rights beyond those listed, it must therefore be presumed that the Treaty drafters did not intend to require Member States to extend voting rights in referenda (or in any other elections) in the absence of a decision to lengthen the list of rights attached to EU citizenship.  As for the ECHR, the First Protocol to the Convention requires States to hold 'free elections', but on the face of it this does not apply to referenda, and the case law does not suggest that voting must be extended to non-nationals in any event.     

Barnard & Peers: chapter 2

Photo credit:
Meme: Steve Peers
Jumper design: Nigel Farage :)

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