The UK’s franchise jigsaw puzzle grows from 500 pieces to 1000

Jo Shaw (GLOBALCIT and University of Edinburgh)

It has been widely observed that the population of the UK has turned to jigsaws as a pastime during lockdown. What is perhaps less well known is the extent to which the body of rules governing the right to vote in the UK resembles a jigsaw puzzle. Recent developments have seen this puzzle grow in size and complexity.

In May 2021, there will be a substantial number of elections in the UK. These will be held under conditions of at least partial lockdown, although the precise conditions will vary across the different parts of the UK. There will be more postal voting, and counts will be delayed. In terms of the modalities of voting, the UK awaits the outcome of a challenge to a 2019 photo ID pilot for voting, which is currently before the Supreme Court. Photo ID for voting could be introduced on a universal basis from 2023. So far, the challenge has failed before the Court of Appeal.

Local elections and mayoral elections in England, including the election of the Mayor of London, were delayed from May 2020 as a result of the pandemic, and further delays were initially considered for this May’s elections (both scheduled and postponed) when it was not clear whether the pandemic was going to be largely under control. While it is obvious that delaying elections can have substantial impacts upon ‘quality of democracy’ in a country, it is probable that many people in the UK breathed a sigh of relief at not having to go to the polls in 2020, after a surfeit of general elections (2015, 2017, 2019), devolved elections (2016 in Scotland and Wales; 2017 in Northern Ireland), annual local, mayoral and police and crime commissioner elections, and referendums (2014: Scottish Independence; 2016: Brexit) across various parts of the country in the last few years.

2021’s Scottish Parliament elections are due to be particularly significant in the light of Brexit and controversies over the handling of coronavirus, which at the end of 2020 and beginning of 2021 saw support for the Scottish National Party and for Scottish independence soar to previously unseen heights. In March 2021, the Scottish Government published its draft independence referendum bill, developing proposals based on the assumption that if the SNP were to win an outright majority in the elections in May 2021, this would give it a strong mandate to call a new referendum, even though the Westminster Government of Prime Minister Boris Johnson has remained resolutely opposed to facilitating such an event. In the absence of Westminster government and parliament approval, any such independence referendum would be legally dubious.

However, it seems that the gloss may have been knocked off the SNP position and support for independence by the Salmond/Sturgeon affair. (Settle in for a long read here if you really want to know more about this set of frankly quite sickening political events (based on some real life events that are also deeply depressing), or a rather shorter one here.) Be that as it may, it is clear that what happens on 6 May in Scotland will be keenly observed across the UK.

As we prepare for new elections, attention is turning once again to the mess which is the UK’s franchise rules, as demonstrated by this article in The Economist (registration or subscription required). If anything, that article perhaps understates the complexity. The backdrop has been that after the splintering of what was the British Empire and the institution of universal suffrage after the First World War, and before the arrival of devolution at the end of the 1990s, the following groups could vote in all elections in the UK: UK citizens, Irish citizens and ‘qualifying’ Commonwealth citizens (must have settlement rights in the UK). There was no external voting until the 1980s, when it was introduced for general elections with a time limit that has varied over the years, but is currently 15 years since last residence in the UK. After the Treaty of Maastricht, the right to vote in local elections was extended to EU citizens (a category that has obviously extended with successive enlargements of the EU), and when devolution was introduced after the election of Tony Blair’s government in 1997, resident EU citizens were given the right to vote in devolved elections in Northern Ireland, Scotland and Wales and in the Greater London Mayoral elections. They have also voted in various referendums, including the Scottish independence referendum of 2014 (but not the Brexit referendum of 2016). The argument in favour of EU citizens voting in devolved elections was that from the Westminster perspective these elections were largely seen as ‘local’ in character. There is no constitutional guarantee of devolution in the UK, although some might argue that the unilateral abolition of the Scottish Parliament, now re-created after 300 years, would be a breach of the Act of Union. However, from the Westminster perspective, the UK remains a unitary state, definitely not either a federal state or even, truly, a Union state.

Lately, there have been further developments, most significantly pursuant to a transfer of competences to the Scottish Parliament and what is now called the Senedd Cymru or Welsh Parliament, which are empowered to set their own franchises. Both Parliaments now permit all qualifying foreign citizens (that is, those with settlement rights) and any person over 16 to vote in Scottish and Welsh Parliament elections, and local elections in those countries. We covered the development in Scotland earlier here. Amongst the important novelties here for the UK are allowing votes at 16 and allowing, for example, settled refugees to vote. These measures had to be adopted by a two thirds majority in the respective parliamentary bodies.

The current state of voting rights in the UK can be reviewed through this research briefing or on this webpage, although the latter page does not carry information about further complexities that need to be added to the mix. For example, EU citizens, who should see their rights disappear after the UK’s withdrawal from the EU (except in Scotland and Wales due to the positions outlined above), will be able to vote in May 2021 local elections because these have been postponed and should have been held during the transitional period (with continuing rights provided for during that period in the Withdrawal Agreement). This was confirmed by a parliamentary question in the House of Lords. It is a campaign goal of the 3Million organisation that the whole of the UK should match Scotland and Wales in its approach to non-citizen voting.

It should also be noted that there are now substantial numbers of reciprocal arrangements in place between the UK and Poland, Spain, Portugal and Luxembourg, governing the right to vote in local elections. The use of reciprocal voting rights treaties is consonant with the UK government wishing to signal as frequently as possible that it is exercising its newly recovered sovereign powers post Brexit. None of these treaties is yet enshrined in national law (the UK, as a dualist country, has to transpose its international commitments into domestic law before they becoming internally binding). But, as noted, extra time has been gained because of the postponement of the May 2020 elections until May 2021.

Finally, we should note that so-called ‘Votes for Life’ (i.e. unlimited external voting), which have long been promised, seem now more likely to go ahead after funding for a Bill and presumably the implementation of the ensuing legislation was set in the recent budget. As this BBC report notes, ‘Paragraph 2.41 of the Treasury Red Book, which sets out the government’s planned spending in detail, says: “Overseas Electors – the government is providing an additional £2.5m to remove the limit preventing British citizens who live overseas from voting after 15 years.”’ Of course, we have been in this position before, although a previous private member’s bill with a degree of cross party support discussed on this blog was lost at the end of the 2017-2019 parliamentary session. Although given a second reading, it made no further progress through Parliament. It is worth noting that experts such as Sue Collard of the University of Sussex came to be of the opinion that the Conservative Party would never deliver on what has been a consistent manifesto commitment for the last three elections, because many of the voters in question will have shifted away from the Conservative Party because of Brexit. After all, external voting was originally introduced by the Conservative Party because it could see partisan advantage in including what is often called the ‘expatriate vote’ within the franchise. The widening of external voting will only apply to general elections and – potentially – referendums. There is no external voting in the UK in devolved and local elections.

The extent to which any of these developments, whether put in place or anticipated, will make a discernible difference to the outcomes of the various elections at which they are applicable will, of course, be a difficult conundrum to unpick.

Featured picture by Bianca Ackermann