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The Referendum on Scottish Independence: A Process as well as an Event

Document Cited authorities 7 Cited in Related
Vincent
Date01 May 2014
DOI10.3366/elr.2014.0206
AuthorStephen Tierney
Published date01 May 2014
Pages245-250
<p>With the referendum on independence barely six months away (at the time of writing), inevitably attention is now focused upon major substantive issues such as currency relations between an independent Scotland and the UK, and the ease or difficulty with which an independent Scotland would achieve membership of the European Union. What is often overlooked is that the credibility of the outcome of the vote on 18 September 2014, whatever that might be, will depend greatly on the legitimacy of the referendum process itself. Indeed, given the heat which the debate is now generating and the concomitant prospect of an ill-tempered and potentially bitter referendum campaign, it is of the highest importance that the process of the referendum itself be fair and be seen to be so by both sides: it is imperative for the future of Scotland that the result is agreed <italic>to</italic>, even if it is not agreed <italic>with</italic>, by losers as well as winners.</p> <p>The procedural rules for the referendum have already been put in place. It is fortunate, I believe, that the two main pieces of legislation which will govern the process were passed with fairly calm deliberation by the Scottish Parliament before the political temperature started to rise. The franchise rules are set out in the Scottish Independence Referendum (Franchise) Act (the “Franchise Act”), introduced into the Scottish Parliament on 11 March 2013, passed by the Parliament on 27 June 2013, receiving Royal Assent on 7 August 2013.<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>Available at <ext-link ext-link-type="uri" xlink:href="http://www.scottish.parliament.uk/parliamentarybusiness/Bills/61076.aspx" xlink:type="simple"><italic>http://www.scottish.parliament.uk/parliamentarybusiness/Bills/61076.aspx</italic> </ext-link>.</p> </fn> This Bill needed to pass through the Scottish Parliament quickly to facilitate the registration of voters, particularly new voters since the franchise for the referendum is extended to 16 and 17 year olds. The Scottish Independence Referendum Act (the “Referendum Act”) was introduced into the Parliament on 21 March 2013, passed on 14 November 2013, and received Royal Assent on 17 December 2013.<xref ref-type="fn" rid="fn3"><sup>3</sup> </xref><fn id="fn3"><label>3</label> <p>Available at <ext-link ext-link-type="uri" xlink:href="http://www.scottish.parliament.uk/parliamentarybusiness/Bills/60464.aspx" xlink:type="simple"><italic>http://www.scottish.parliament.uk/parliamentarybusiness/Bills/60464.aspx</italic> </ext-link>.</p> </fn></p> <p>The legislation was preceded by the Edinburgh Agreement signed by the UK and Scottish Governments on 15 October 2012.<xref ref-type="fn" rid="fn4"><sup>4</sup> </xref><fn id="fn4"><label>4</label> <p>Available at <ext-link ext-link-type="uri" xlink:href="http://www.scotland.gov.uk/About/Government/concordats/Referendum-on-independence" xlink:type="simple"><italic>http://www.scotland.gov.uk/About/Government/concordats/Referendum-on-independence</italic> </ext-link>.</p> </fn> This, and the associated “memorandum of agreement”, provided that the referendum should have a clear legal base; be legislated for by the Scottish Parliament; be conducted so as to command the confidence of parliaments, governments and people; and deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect. This has been formalised by an Order in Council<xref ref-type="fn" rid="fn5"><sup>5</sup> </xref><fn id="fn5"><label>5</label> <p>Per the <span class="vid_spn">Scotland Act 1998 s 30</span>.</p> </fn> which devolves to the Scottish Parliament the competence to legislate for a referendum on independence which must be held before the end of 2014.<xref ref-type="fn" rid="fn6"><sup>6</sup> </xref><fn id="fn6"><label>6</label> <p>The Scotland Act 1998 (Modification of Schedule 5) Order 2013, SSI 2013/242, para 3.</p> </fn></p> <p>This article will summarise some of the main points to emerge from the legislation: the franchise rules for the referendum, the question that will be asked, the role of the Electoral Commission, the referendum period, and the parameters for other important process issues, in particular the funding and expenditure rules.</p> FRANCHISE

The general franchise demarcation set out in the Franchise Act is uncontroversial. The franchise for the referendum is to be the same as for Scottish Parliament elections and local government elections,7

Referendum Act s 2.

mirroring the franchise used in the Scottish devolution referendum in 1997. One consequence is that EU citizens who are resident in Scotland will be able to vote in the referendum

One major difference from the 1997 franchise, however, is the extension of the vote to those aged 16 and 17.8

S 2(1)(a).

This is a radical departure: never before have people under the age of 18 been entitled to vote in a major British election or referendum.9

The age of 18 as the threshold for UK elections is set out in the...

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