The Representation of the People Act 1983 Remedial (Scotland) Order 2019

Publication Date:January 01, 2019

2019No. 261

REPRESENTATION OF THE PEOPLE

The Representation of the People Act 1983 Remedial (Scotland) Order 2019

Made at 11.15 a.m. on1stAugust2019

Laid before the Scottish Parliament at 2.30 p.m. on1stAugust2019

Coming into force in accordance with article 1

The Scottish Ministers make the following remedial Order in exercise of the powers conferred by section 12(1) and (3) of the Convention Rights (Compliance) (Scotland) Act 2001( 1) (“the 2001 Act”) and all other powers enabling them to do so.

The Scottish Ministers consider the provision made by this Order to be necessary or expedient in consequence of section 3 of the Representation of the People Act 1983( 2) being incompatible with a Convention right( 3).

In accordance with section 12(2) of the 2001 Act the Scottish Ministers are of the opinion that there are compelling reasons for making a remedial order as distinct from taking any other action.

In accordance with section 14(1) of the 2001 Act it appears to the Scottish Ministers that, for reasons of urgency, it is necessary to make a remedial order without following the procedure under section 13(2) to (4) of the 2001 Act.

Citation and commencement

1. This Order may be cited as the Representation of the People Act 1983 Remedial (Scotland) Order 2019 and comes into force on the day after the day on which it is made.

Application of this Order

2.—(1) This Order applies to the election to be held under section 9 of the Scotland Act 1998( 4) (constituency vacancies) on 29 August 2019 for a constituency member of the Scottish Parliament to serve for the Shetland Islands constituency.

(2) That election is referred to in this Order as the “Shetland Islands by-election”.

Interpretation

3. In this Order—

“the 1983 Act” means the Representation of the People Act 1983,

“the 2015 Order” means the Scottish Parliament (Elections etc.) Order 2015( 5),

“constituency member” has the meaning given in section 126(1) of the Scotland Act 1998,

“convicted person” has the meaning given in section 3(2)(a) of the 1983 Act( 6),

“dwelling” has the meaning given in section 202(1) of the 1983 Act( 7),

“elector” has the meaning given in section 202(1) of the 1983 Act( 8),

“penal institution” has the meaning given in section 3(2)(b) of the 1983 Act,

“register of local government electors” has the meaning given in paragraph 10 of schedule 7 of the 1983 Act,

“registration officer” means an officer appointed under section 8(3) of the 1983 Act( 9),

“relevant date” has the meaning given in section 4(6) of the 1983 Act( 10),

“Shetland Islands constituency” means the constituency listed in paragraph 1(2)(b) of schedule 1 of the Scotland Act 1998.

Voting at the Shetland Islands by-election

Voting by convicted persons sentenced to terms of 12 months or less

4.—(1) A convicted person is not legally incapable of voting at the Shetland Islands by-election by virtue of section 3(1) of the 1983 Act( 11) (disenfranchisement of offenders in prison etc.) during the time that the person is detained in a penal institution in pursuance of a sentence imposed for a term not exceeding 12 months.

(2) In calculating the term of a sentence of a convicted person for the purpose of paragraph (1), terms that are consecutive or concurrent to any extent are to be treated as a single term if the sentences were imposed on that person—

(a) on the same occasion, or

(b) on different occasions but the convicted person was not released (other than on temporary release) at any time during the period beginning with the first occasion and ending with the last.

(3) So far as necessary for the purposes of voting at the Shetland Islands by-election (including registering to vote at that election), a convicted person to whom paragraph (1) of this article applies is to be treated as not being legally incapable of voting at local government elections in Scotland by virtue of section 3(1) of the 1983 Act( 12) (entitlement).

Registration

Residence of convicted persons in prison etc.: uninterrupted residence

5.—(1) This article applies to a convicted person to whom article 4(1) applies.

(2) In determining whether the convicted person is resident in a dwelling on the relevant date for the purpose of section 4(3)(a) of the 1983 Act( 13) (entitlement to be registered in the register of parliamentary and local government electors: residence requirement), the convicted person's residence is not to be taken to have been interrupted by reason of the convicted person's detention in a penal institution if—

(a) the convicted person—

(i) intends to resume actual residence when released from the penal institution (other than on temporary release), and

(ii) will not be prevented from doing so by an order of any court, or

(b) the dwelling serves as a permanent place of residence (whether for the convicted person alone or with other persons) and the convicted person would be in actual residence there but for the convicted person's detention.

Residence of convicted persons in prison etc.: notional residence

6.—(1) Section 5(6) of the 1983 Act( 14) (residence of persons detained in legal custody) is subject to section 7B of that Act( 15) (notional residence: declarations of local connection) in so far as it relates to a declaration made for the purposes only of the registration of local government electors in Scotland.

(2) Section 7B of the 1983 Act, so far as relating to the registration of local government electors in Scotland, also applies to a person who, on the date on which the person makes a declaration under subsection (1) of that section—

(a) is a convicted person to whom article 4(1) applies, and

(b) would not be entitled to be registered by virtue of residence at any place other than the penal institution in which the convicted person is...

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