Would Britons abroad have a say in a 'People's Vote'?

A bill on ‘Votes for Life’ for Britons living overseas is still going through the UK parliament a year-and-a-half after it was introduced – Dr Sue Collard, Senior Lecturer in French Politics and Contemporary European Studies at University of Sussex, considers why it is taking so long and whether it may be passed in time in case of another Brexit referendum or snap election

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With the ever increasing likelihood of either a snap election or a second referendum (often referred to by campaigners as a 'People's Vote'), this question must be uppermost in the minds of the many Britons who are disenfranchised by the current ‘15-year rule’ applied to overseas electors.

Since the pledge to abolish this rule was first made in the Conservative Party Manifesto of September 2014, confirmed in the Queen’s Speech under David Cameron in May 2015, and again endorsed in Theresa May’s 2017 manifesto, potential beneficiaries of this promise will be understandably frustrated that the necessary legislation has not yet been passed.

However, to start with the first part of the question, there are reasons why bringing forward such a bill has taken time.

The first relates to the complex technical nature of the bill, which has significant ramifications in terms of electoral management.

The publication of a Consultation Paper by the Cabinet Office in October 2016 showed that work had in fact been under way for some time on preparing the bill, and the level of detail in this document and the responses to it demonstrate the complexity of the practical problems to be tackled in order to enable electoral registration of those who may have lived outside the UK for many decades.

The second reason for the delay owes more to political context: because the extension of overseas voting rights is politically contentious (having been consistently opposed by the Labour Party since the 1980s), the introduction of such a bill requires careful timing.

The disruption to the Conservative agenda following the result of the 2016 EU Referendum and the subsequent domination of Theresa May’s programme by Brexit-related legislation has meant that many manifesto promises have been left on the back burner. For these reasons, the Government has not prioritised a bill introducing Votes For Life.

It nevertheless took the opportunity in February 2018 of supporting a Private Member’s Bill (PMB) sponsored by MP Glyn Davies as an alternative route to introducing the legislation.

Government support of PMBs is controversial, especially when legislating on a party manifesto, because they are intended to give backbench MPs a chance to introduce their own bills rather than being hijacked by the executive.

The fact that the Government has accepted the risk of criticism in this case could therefore be seen as testimony to its genuine commitment to getting Votes For Life passed, even if it can be challenged as an abuse of its position.

However PMBs are governed by different procedures to other bills, with less parliamentary time allocated to them; this means very few of them get past the initial stage of the Second Reading, let alone progress to Royal Assent.

Having Government support can make all the difference but it does not guarantee success.

Although the Overseas Electors Bill 2017-19 (OEB) passed its Second Reading in February 2018, it did not get to the Committee Stage until October because there were many other PMBs also waiting in the queue.

After four sessions of debate by the committee (which could only sit on Wednesday afternoons) the bill was sent on for the Report Stage on the first available date, January 25.

Unless there is some major disruption to the parliamentary timetable before then, this date should be confirmed on the 17th.

It is technically possible for this stage to be completed in a day, together with the Third Reading, but if the Opposition proposes amendments, as is highly likely, the debate could be prolonged. It then has to go through the same cycle of debates in the House of Lords, where the government does not have a majority, so the bill could be amended and returned to the Commons in pursuit of an agreement.

Clearly, this could all take some time, and it is very much at the mercy of the Opposition who can try to kill it off by spinning out the proceedings so that it runs out of time before the end of the current parliamentary session at some point (yet to be defined) in the Summer of 2019.

Given the fragility of the current political climate, the prospect of ‘Votes For Life’ becoming law is still very uncertain. So in the event of a snap election, which would also cut short the current parliamentary session, the Bill would fall and the 15-year rule would stand.

But this would not necessarily impact on the second part of the question, concerning the overseas vote in a possible second referendum, because the franchise for each referendum is decided on an ad hoc basis by Parliament and does not have to be the same as for general elections.

So Parliament could decide for example that British citizens living in the EU were so directly affected by Brexit that they should be given a vote.

However, this is unlikely because the same arguments were rejected in 2016 when the Liberal Democrats tabled an amendment in the House of Lords to this effect.

Veteran campaigner Harry Shindler even attempted a legal challenge together with Brussels-based lawyer Jacqueline MacLennan, but here again the argument was lost, despite the government’s declared commitment to Votes For Life.

Although there has been massive mobilisation from Britons in the EU since 2016, there is little evidence to suggest that there would be any more sympathy second time round either from government, Parliament or the general public, for whom ‘expats’ seem typically to be either ‘out of sight, out of mind’, or denigrated as having ‘jumped ship’.

Even if the Votes For Life Bill was passed before a second referendum, this would not guarantee a vote in it: there would be strong political arguments in favour of maintaining the same franchise as for the first in the interests of comparability and a concern to ‘keep a level playing field’.

In 2016, this comprised the parliamentary franchise (which includes Commonwealth and Irish citizens resident in the UK) plus special dispositions for the British Overseas Territory of Gibraltar and for Members of the House of Lords who are not normally allowed to vote in parliamentary elections.

Also, if the franchise was extended to non-resident British citizens on the grounds that they are affected by Brexit, it would re-open the demands for EU citizens resident in the UK to also be included, which could complicate and prolong the debate.

Even if this these arguments were overcome, the electoral services would be very hard pushed in a limited time frame to process all the new claims for registration: the Government estimates that up to 3.5m new voters could be enfranchised by the bill, and given the complexities involved in registering people who may have been out of the country for several decades, there could be a case for delaying implementation until the next scheduled general election in 2022, as set out in the wording of the Bill.

One novel solution to this practical problem would be for government to create a one off ‘virtual’ overseas constituency for electors newly enfranchised by ‘Votes For Life’, allowing them to register centrally online with a passport number and / or National Insurance number. In this case there would be no need in a referendum to establish the constituency link, which is what takes up the time of the overstretched electoral services who would no doubt welcome such a move.

This idea would also have the advantage of ensuring against ‘double’ or ‘multiple’ registrations which will be an area of particular concern in the implementation of Votes For Life for new overseas electors.

However, it is not clear who would be technically responsible for such a venture: it is outside the current remit of the Electoral Commission, and the Cabinet Office would be unlikely to want to take it on.

Maybe the ‘Gibraltar model’ could be used, whereby votes from Gibraltar are fed into the South-West England regional count for the purposes of European elections?

The preceding analysis will not be what readers want to hear: for many British citizens living in the EU who are directly affected by Brexit, the injustice of their disenfranchisement by the 15-year rule is an open wound that Votes For Life has the potential to heal, yet it seems unlikely to deliver the anticipated miracle cure.

But in politics, where there is a will, there is a way.

If and when a second referendum is announced, campaigners should be ready to make their voices heard, even if they cannot vote. Meanwhile, efforts should focus on persuading members of Parliament to support the Overseas Electors Bill as it progresses.

And those who do still have a vote should use it when the time comes and encourage others to register.

Readers who want to know more about the Overseas Electors Bill can find details on my web-site www.britonsvotingabroad.co.uk

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