Participants in the 18 September 2014 Scottish independence referendum will be asked whether Scotland should become an independent country. The UK Chancellor of the Exchequer’s pronouncement that Scotland will not be able to keep the pound, and the EU Commission President’s observation that ‘it would be extremely difficult, if not impossible’ for Scotland to join the EU (following Crawford and Boyle’s paper on, inter alia, the likely conditions for Scottish accession) have received great attention; conversely, the question who will- and should- participate in the referendum determined by the Scottish Independence Referendum (Franchise) Act, has hardly been debated. I have previously considered some challenges arising from the decision to impose a blanket ban on electoral participation of prisoners in Scottish jails. In this post, I wish to draw attention to the disenfranchisement of United Kingdom citizens, formerly resident in Scotland, pursuant to Section 2 of the Act.  

All democratic states set eligibility criteria for participation in elections of their institutions of government. Broadly speaking, these criteria fall into two categories: individual competence and membership of the state’s political community. The latter criterion is manifested by ubiquitous exclusion of non-citizen residents from national (and oftentimes also sub- or supra-national) elections. Concurrently, some states impose residency requirements which disqualify their expatriates during part or all of their period of absence.

Elsewhere, Icritiqued the reasoning employed by the European Court of Human Rights in its Shindler judgment regarding the disqualification of UK expatriates from participation in UK parliamentary elections after fifteen years of residence abroad, pursuant to the Representation of the People Act 1985. Crucially, eligibility for participation in the forthcoming referendum does not mirror these criteria but, rather, those employed to determine eligibility for local government elections. Hence, Scottish expatriates who have left Scotland in the last fifteen years are eligible to vote in UK parliamentary elections wherever they currently reside, but will be excluded from the referendum.

The EU Commission is justifiably concerned about the effective disenfranchisement of EU citizens who exercise their treaty right to freedom of movement and of residence. In its 29 January recommendations to member states, the Commission noted that ‘[EU] citizens residing in another Member State can maintain lifelong and close ties with their country of origin and may continue to be directly affected by acts adopted by the legislature elected there’, and advised that ‘the rationale of policies that disenfranchise citizens should be re-assessed in the light of current socio-economic and technological realities’.

The ECtHR jurisprudence and the EU Commission’s recommendation address, in the main, electoral processes that affect the governance of an existing political unit to which expatriates qua citizens retain the internationally recognised right to return. In such circumstances, it is assumed that most of the state’s citizens reside therein, and that the geographical boundaries of the state are not affected. Independence referenda are different: they may lead to the creation of successor State(s), with ensuing ramifications for citizenship-contingent privileges of expatriates. In a talk for the Public Law Discussion Group at the Oxford Law Faculty on 14 March 2014, I shall argue that putative ab initio citizens of a putative State (pursuant to internationally accepted criteria) are significant stakeholders in a transformative referendum that may bring that putative State into being. Hence, the rationales for external voting in routine electoral processes apply a fortiori to a transformative referendum in light of its fundamental nature and its long-term impact.