The Franchise for the Scottish Referendum Explained
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Alistair McConnachie explains the franchise for the Scottish referendum and its legal basis. Alistair has a degree in Scots Law. This article was posted on 3 August 2012.
[The date for the referendum is going to be Thursday 18th September 2014.] The UK government has no objection to the franchise being the same franchise used at the Scottish Parliamentary election.
So, who does that involve?
The House of Commons briefing paper, "Electoral franchise: who can vote?" details the rules for all elections. (See Chris Sear, "Electoral franchise: who can vote?" House of Commons, Parliament and Constitution Centre, 1 March 2005, http://www.parliament.uk/briefing-papers/SN02208
To summarise: If you are 18 or over and a British, Commonwealth, Republic of Ireland or European Union citizen, resident and registered to vote at your resident address in the UK, then (if you live in that particular election's area) you can vote at the elections of the Greater London Authority, the Scottish, Welsh and Northern Ireland elections, and all local elections, including Parish, throughout the UK. You can also vote at the European Union elections - that's them all, except the General Election!
The Referendum to keep the UK together, to be held on Thursday, 18 September 2014, will be held under the Scottish elections franchise - meaning that all British, Commonwealth, Republic of Ireland and EU citizens resident and registered to vote in Scotland will be able to vote.
Let's take a closer look at the franchise for all the elections in the UK, and their legislative basis. All Parliamentary Acts referenced in this article can be studied at the online Statute Book www.legislation.gov.uk
THE ROLE OF EU CITIZENS IN THE FRANCHISE
Few people realise that EU nationals can vote and stand as candidates in local elections and European elections throughout the UK, and in assembly elections in London, Wales and Northern Ireland, and in the Scottish Parliament elections, as a result of Article 19 (paras 1 and 2) of the Consolidated Treaty on European Union:
1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State?
2. Without prejudice to Article 190(4) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State?
While, Article 19(1) enables EU citizens to vote and stand at "municipal" elections only, this word "municipal", has been interpreted to mean Wales, Northern Ireland and Scotland. From a strict "black letter" legal interpretation, the word "municipal" usually could not be stretched to mean an entire country! Chambers 20th Century defines the word as "pertaining to (the government of) a borough, town or city."
Nevertheless, this is the practice, and by legislating to enable those eligible to vote at "municipal" elections to participate also in devolved elections, the government is interpreting Article 19(1) very widely.
People can register to vote up to 11 working days before polling day - it used to be 8 weeks. The referendum will be held on Thursday 18 September 2014, this means that an EU citizen who arrives in Scotland with a place to stay, on Wednesday 3rd September 2014, and who registers to vote that day, will have a say in whether Scotland should split from the UK, at the referendum a mere 2 weeks later. [Subsections (1) and (2) of Section 11 of the Electoral Administration Act 2006 amended Section 13B of the Representation of the People Act 1983, which concerned alterations to the electoral registers during a period when an election is pending. These subsections moved the deadline for applying for registration closer to the day of poll. A person is entitled to vote in an election if his or her registration has taken effect by the fifth day before polling day. Registration cannot take effect until the registration officer has determined entitlement and issued a notice amending the register. The five day period for public objections, currently provided for in secondary legislation, means that the final date for applying to be registered is eleven working days prior to polling day.]
Although Article 19 gives EU nationals the "right" to vote and stand at local and Euro elections, this "right" has to be translated into British law through the following Acts of Parliament.
From the Acts below, we can see that the franchise for Scottish Parliamentary elections is the franchise for all "local elections" in the UK, which, as per Section 2 of the Representation of the People Act 1983, detailed below, allows registered EU citizens to vote.
The LEGISLATION for the FRANCHISE for EUROPEAN ELECTIONSThe franchise in the Euro-elections is governed by the European Parliamentary Elections Act 2002 wherein:
8 Persons entitled to vote
(1) A person is entitled to vote as an elector at an election to the European Parliament in an electoral region if he is within any of subsections (2) to (5).
This Statutory Instrument 2001 No. 1184 states:
Relevant citizens of the Union as European Parliamentary electors
3.-(1) A person is entitled to vote as an elector at a European Parliamentary election in an electoral region if on the date of the poll he -
(a) is registered in the region in the register of relevant citizens of the Union entitled to vote at European Parliamentary elections (maintained under regulation 5(2) below);
(b) is not subject to any legal incapacity to vote (age apart);
(c) is a relevant citizen of the Union; and
(d) is of voting age (that is, 18 years or over).
Local elections are considered "municipal" elections and the franchise for local elections throughout the UK is governed by the Representation of the People Act 1983 wherein:
2.- Local government electors.
(1) A person is entitled to vote as an elector at a local government election in any electoral area if on the date of the poll he -
(a) is registered in the register of local government electors for that area;
(b) is not subject to any legal incapacity to vote (age apart);
(c) is a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union; and
(d) is of voting age (that is, 18 years or over).
And where:
202.- General provisions as to interpretation.
(1) In this Act, unless the context otherwise requires - "citizen of the Union" shall be construed in accordance with Article 8.1 of the Treaty establishing the European Community (as amended by Title II of the Treaty on European Union), and "relevant citizen of the Union" means such a citizen who is not a Commonwealth citizen or a citizen of the Republic of Ireland;
The franchise at the Scottish Parliament election is governed by The Scotland Act 1998 which states:
11.-(1) The persons entitled to vote as electors at an election for membership of the Parliament held in any constituency are those who on the day of the poll-
(a) would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within the constituency, and
(b) are registered in the register of local government electors at an address within the constituency.
The franchise at the Welsh Assembly election is governed by The Government of Wales Act 1998 which states:
10.-(1) The persons entitled to vote at an election of Assembly members (or of an Assembly member) in an Assembly constituency are those who on the day of the poll-
(a) would be entitled to vote as electors at a local government election in an electoral area wholly or partly included in the Assembly constituency, and
(b) are registered in the register of local government electors at an address within the Assembly constituency.
The franchise at Northern Ireland Assembly elections is governed by The Northern Ireland Act 1998 which states:
36.(7) A person is not disqualified for membership of the Assembly by virtue of subsection (4) by reason only that he is disqualified under section 3 of the Act of Settlement (certain persons born out of the Kingdom) if he is a citizen of the European Union.
The franchise for the Greater London Authority elections is the same as the franchise for the local government elections, as per sec 17, and schedule 3 of the Greater London Authority Act 1999.
The LEGISLATION for the FRANCHISE for the BRITISH GENERAL ELECTIONAt the General Election, European Union citizens cannot vote - but Commonwealth and Republic of Ireland citizens can still do so, as per Section 1 of the Representation of the People Act 1983.
The history regarding Commonwealth citizens is that the Representation of the People Act 1918 provided that only "British subjects" could register as electors - a term which included any person who owed allegiance to the Crown, including Commonwealth citizens. This has never been revised, even though the Commonwealth includes another 53 countries and reciprocal voting rights for British citizens are only in place with Antigua & Barbuda; Dominica; Grenada; Guyana; Jamaica; Mauritius; St. Lucia and St. Vincent & The Grenadines. Today, the Citizens of Cyprus and Malta can also vote at the British General Election, even though they are EU countries, because they are also Commonwealth countries.
As far as citizens of the Republic of Ireland are concerned, Section 2 of the Ireland Act 1949 established that "the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom". As far as voting eligibility is concerned, the Republic reciprocated in 1985 and since then British citizens resident in the Republic have been entitled to vote in elections to the Irish Parliament.
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