Public Law

March has been trailed as the month in which the Scottish Government will introduce their legislation for an independence referendum, and a Bill was introduced to the Scottish Parliament yesterday. However, this Bill – the Scottish Independence Referendum (Franchise) Bill – is a ‘paving’ Bill, which establishes only who will be entitled to vote in the referendum.

While that is no doubt important, and makes for a relatively complicated Bill due to the Government’s decision to add 16 and 17 year olds to the electorate, we will need to wait a little longer for a second Bill setting out the substantive details of the referendum such as the date and the question.

If you’re wondering whether you’ll get to vote, the Bill says that at the date of the referendum (which we don’t yet know) you must be:

  • at least 16 years old;
  • registered on the local government electoral roll or on the new “register of young voters” established by the Bill;
  • not subject to any legal incapacity to vote; and
  • a Commonwealth citizen, Irish citizen or otherwise an EU citizen.

These conditions are cumulative, so you need to meet all of them to be eligible. The explanatory notes to the Bill say that it only includes Commonwealth citizens who have, or don’t require, leave to enter or remain in the UK (which of course includes British citizens). The Bill itself does not contain that qualification, but it is one of the conditions of getting onto the local government electoral roll in the first place (and the Bill provides that 16 and 17 year olds need to meet the same conditions – other than age, obviously – to get on the register of young voters).

Otherwise, we seem to have found something on which the Scottish Government and UK Government agree; section 3 of the Bill says prisoners will not get a vote, other than those on remand. The explanatory notes reveal that this is included because the Scottish Government doesn’t want any changes made by the UK Parliament via the currently draft Voting Eligibility (Prisoners) Bill to apply to the referendum. Of course, the UK Parliament is only considering that Bill at all (and rather unwillingly at that) because of judicial pressure on the issue of prisoner voting, stemming principally from the European Court of Human Rights. So much for putting the referendum process beyond legal challenge…

 

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

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