Public Law

There have been several further developments in the independence debate this week, some of which are important but perhaps none of which are all that dramatic.

Firstly, the Referendum Bill received Royal Assent on Tuesday to become the Scottish Independence Referendum Act 2013. This was no surprise, Royal Assent is a formality once a Bill has been passed by the Scottish Parliament (unless someone challenges it in the meantime!) as the Referendum Bill was last month.

The more interesting development (though one that was still not that hard to predict) is yesterday’s decision by Lord Glennie to refuse the attempt by three prisoners to overturn the Scottish Independence Referendum (Franchise) Act 2013‘s ban on prisoners voting in the referendum. His Lordship’s decision is here, if you’re into that sort of thing.

We mentioned the possibility of a challenge to that provision here and here, but did not go into any detail as it was always likely to be an uphill struggle. As Lord Glennie notes in his (admirably detailed) decision, the right to vote set out in the European Convention of Human Rights has only ever applied to Parliamentary elections, and the Court of Human Rights has never extended that right to participation in a referendum.

In addition to these developments, those of you with excellent memories may have been asking yourselves “isn’t today the deadline by which the Electoral Commission wanted the Scottish and UK Governments to agree a joint statement outlining the process that would follow the referendum if there was a yes vote or a no vote?” For the benefit of those people, I can confirm that the correct answer to that question is “yes it is, now stop showing off”. However, if you’ve been banking on that statement to deliver you a pre-Christmas fix of referendum wonkery, I’m afraid you’ll be disappointed. As the BBC notes, that deadline has come and gone, with discussions expected to continue in the New Year.

If you’d care to rank the above developments in order of surprisingness, I suggest you (a) feel free to leave a comment below and/or (b) find something more interesting to do – it is Black Friday, after all.

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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