As the prospect of a second referendum on Scottish independence has now come back on the agenda, I thought it would be useful to look at the question of whether EU citizens resident in Scotland would be able to vote in such a referendum. Given that the future relationship between Scotland and the EU is likely to be a key issue in such a referendum, the significance of the votes of such citizens may well be substantial. In the last referendum on Scottish independence, in 2014, EU citizens in Scotland were able to vote – would they be able to vote in a future second independence referendum, particularly if it was held at a time after the UK had left the European Union?

The answer, as with so much else relating to Brexit, is that we don’t know. The 1998 Scotland Act, which is the constitutional foundation for Scottish devolution, states that various aspects of some elections, including who is entitled to vote, are matters over which the power to legislate is reserved to the UK Parliament. The extent of that reservation will reduce once the 2016 Scotland Act is fully in force.

However, the Scotland Act 1998 does not include the franchise for referendums in the list of reserved matters, so in principle the Scottish Parliament can decide who can vote in referendums which it decides to legislate for. The question is whether the Scottish Parliament has the legal powers under the Scotland Acts to hold a referendum on independence at all. Legal opinion is mixed on that question, but the view held by most constitutional lawyers is that it probably does not have that power. There is a good explanation of the position in this article by Professor Stephen Tierney, here. Certainly, the question is sufficiently open to have prompted the Scottish Government to seek the agreement of the UK government to hold a referendum on Scottish independence in 2014, and to seek that agreement for a second independence referendum if that is held.

The question of whether EU citizens would be able to vote in a future independence referendum would therefore depend on the nature of any agreement reached between the Scottish and UK governments as to who would be able to vote in such a referendum. If the UK government did not make any specification as to who could vote in that referendum, the Scottish Parliament could make the decision to include whosoever it wished in the franchise for that vote.

That franchise could include EU citizens; indeed, in principle, there is no reason why it could not extend the franchise to the citizens of any foreign country currently resident in Scotland (or indeed, for former residents of Scotland now living outside Scotland).

Moreover, there is nothing in the legislation preventing the Scottish Parliament from including EU citizens in the franchise for a future independence referendum, even if the UK (including Scotland) had by that time departed the European Union. It should be noted that in the 2014 referendum, the franchise also included Irish and Commonwealth citizens legally resident in Scotland, as these citizens are included on the register for all elections in the UK (unlike EU citizens, who cannot vote in elections for the UK Parliament), even though there are no international treaties compelling the UK to grant the vote to such residents.

The issue, therefore, is whether the UK government was prepared to leave the question of the franchise for a future referendum to the Scottish government and Parliament to decide, or whether it would seek to limit the right of EU citizens to vote in such a referendum, whether it was held before or after the date of a final ‘Brexit’. That matter would no doubt be a subject for negotiation between the UK and Scottish governments.

For an explanation of the position regarding EU citizens’ right to vote in UK elections (including Scotland), see my blog here.