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Elections and Super-Majorities: Simply Another Staging Post?

Document Cited authorities 5 Cited in Related
Vincent
Date01 September 2016
Published date01 September 2016
DOI10.3366/elr.2016.0369
Pages367-372
Author
<p>Though not attracting the same attention as the provisions devolving powers over income tax, the codification of the “Sewel convention” or the attempts to make the Scottish Parliament a “permanent” feature of the UK constitution, what the <a href="https://vlex.co.uk/vid/scotland-act-2016-808434845">Scotland Act 2016</a> (“SA 2016”) has to say about elections to the Scottish Parliament is just as significant. The parliament has been vested with the power to determine its own composition, the composition of its electorate, and the conduct and regulation of its elections. Conferring these powers on a unicameral parliament that may be (and, between 2011 and 2016, was) controlled by a single party with an overall majority carries with it at least the risk that these powers could be abused so as to secure an electoral advantage for that majority party. Accordingly, provision is made for a “super-majority” to pass most of the changes that the Scottish Parliament can now make to electoral law in Scotland. The introduction of a “super-majority” requirement raises more profound constitutional questions which are, in large part, unaddressed by SA 2016. In the current era of piecemeal and disjointed constitutional reform that is unsurprising, but it does remain disappointing.</p> <p>This article considers the electoral provisions of <a href="https://vlex.co.uk/vid/scotland-act-2016-808434845">the 2016 Act</a> in three parts: the effect of the provisions themselves; the “super-majority” protection that is introduced; and, finally, some of the other questions to which they give rise.</p> THE LEGISLATION

As with previous revisions of the devolution statutes, SA 2016 takes the approach of amending the Scotland Act 1998 (“SA 1998”). Consequently, the amendments are not easy to follow and add another layer of complexity to electoral law in Scotland.1 In essence, the changes made by the 2016 Act come in three parts: timing and conduct of elections; membership and composition of the parliament; and safeguards against abuse by a majority government. The power to lower the voting age was transferred in time for it to be exercised for the recent Scottish general election so as to enfranchise sixteen and seventeen year olds (consistent with the age set for the independence referendum).2

Timing and conduct of elections

One of the consequences of the Fixed-Term Parliaments Act 2011 was that UK and Scottish parliamentary elections would clash on a regular basis.3 Provision has now been made to prevent a Scottish parliamentary election being held on the same day as a UK parliamentary election.4 That, however, is a slight over-simplification. A clash is only prohibited with a scheduled UK parliamentary election (i.e. one that occurs at the expiry of the five-year term) but not with an early UK parliamentary election which may be called under the 2011 Act.5 It is not clear why such a distinction is necessary: either holding the polls on the same day is objectionable or it is not. In any event, under what is now section 12A, the Secretary of State may, with the...

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