As preparations for the upcoming election to the Scottish Parliament gather pace, attention is increasingly turning to the electorate.
In the final part of our series on Scottish election law, and in our second look at the franchise, this article considers who is eligible to vote, how voter registration is managed, and the methods by which votes can be cast.
Eligibility
Under section 11(1) of the Scotland Act 1998, a person is eligible to vote as an elector in a general election to the Scottish Parliament if, on the day of the election, they:
- would be eligible to vote in a local government election in Scotland: and
- are registered in the register of local government electors at an address within the constituency.
Eligibility for local government elections in Scotland is set out in section 2 of the Representation of the People Act 1983. To be eligible, a person must:
- be aged 16 years or over;
- be a Commonwealth citizen, citizen of the Republic of Ireland, or a “qualifying foreign national”; and
- not be subject to any legal incapacity to vote.
A qualifying foreign national is a person of any nationality who does not require leave to enter or remain in the United Kingdom under the Immigration Act 1971 or who has, or is to be treated as having, such leave. In practice, this means that all persons legally resident in Scotland can vote regardless of their country of origin or citizenship.
Those subject to a legal incapacity to vote include persons convicted of criminal offences who are in prison or hospital for more than 12 months. It also includes persons who have been found guilty of electoral offences – such as voting as another person, voting more than once, and causing postal ballot papers not to be delivered to the intended recipient. They are ineligible for three or five years after their conviction depending on the seriousness of the offence.
Notably, persons subject to a guardianship or power of attorney can vote but must choose for themselves who to vote for. Additionally, and differently from elections to the House of Commons, members of the House of Lords are eligible to vote.
Voter Registration
Under section 8 of the 1983 Act, every local authority in Scotland has a duty to appoint a registration officer for the constituencies within their areas. Those appointed are known as Electoral Registration Officers (EROs).
EROs must maintain a register of those eligible to vote in elections to the UK Parliament and local government elections and must also conduct an annual canvass of unregistered persons who are entitled to be registered to vote and registered persons who may be ineligible. Where an ERO is aware of an unregistered person’s name and address and has reason to believe they are entitled to be registered, they must invite them to apply for registration.
A person who is not yet eligible to vote due to being under 16 can still be in entered in the register of those eligible to vote in Scottish local government and Scottish Parliament elections if they are 14 years old or over.
Deadlines
Many of the practical rules on voting are contained in the Scottish Parliament (Elections etc.) Order 2015. Under article 7 of the 2015 Order, persons may generally vote in person at their allotted polling station, by post, or by proxy.
As noted previously, the next election to the Scottish Parliament is scheduled to take place on Thursday 7 May 2026. Electors will therefore have until:
- 23:59 on Monday 20 April to apply to register to vote – under sections 13A, 13AB, and 13B of the 1983 Act and regulation 29 of the Representation of the People (Scotland) Regulations 2001;
- 17:00 on Tuesday 21 April to apply to vote by post (or amend an existing arrangement) – under article 9(1) of the 2015 Order;
- 17:00 on Tuesday 28 April to apply to vote by proxy – under article 9(2) of the 2015 Order; and
- 17:00 on Thursday 7 May to apply to vote by proxy in certain emergency circumstances – under article 9(4) of the 2015 Order.
For more information on the election and law, please see the previous instalments in our Scottish Parliamentary election series which have considered the legal framework, its impact on primary legislation currently in the Scottish Parliament, the restrictions on pre-election activity by the Scottish Government and certain public bodies, and recent changes to the franchise.
Otherwise, please contact Christine O’Neill KC, Lauren Smith, Evan Adair, or your usual Brodies contact.
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