Legislating the referendum: preliminaries

The rumour is that, after months of waiting, we are finally about to discover the SNP’s preferred date for the independence referendum. The introduction into the Scottish Parliament of the Referendum Bill is said to be imminent.

Last week saw the publication of the first of the two Bills that will deliver the referendum. This Bill, known as the Franchise Bill, sets out the rules governing who will be able to vote in the referendum.

There are few surprises in that Bill, but there are several pressing questions that are left unresolved, and that the Scottish Parliament must now explore in some detail with Ministers as the Bill goes through.

But why are two Bills necessary? The answer is that the SNP have made matters more complicated than they perhaps needed to be by insisting that the franchise for the referendum be extended to 16- and 17-year olds. Now, there are many folk in many political parties who believe that the voting age should be reduced to 16. And, while it’s not a view I happen to share, I recognise that there are some good arguments in its favour, not least that by the age of 16 boys and girls are able to join HM Armed Forces and are liable to be taxed. If it’s SNP policy for the voting age to be lowered to 16 I have no quibble with them seeking to legislate for this where it is within the competence of the Scottish Parliament to do so.

But, as Scottish Ministers recognise, doing so presents real challenges, and it is to overcome these challenges that has required us to have two Bills and not one.

There are two main challenges. The first is administrative; the second might be something more than that. The first is simply stated: in order to be able to vote in an election or a referendum anywhere in the UK, a voter first needs to be registered. We cannot just vote anywhere: we may vote only where we are registered to vote. We cannot generally choose where we vote: we may vote only where we live. The electoral register, compiled and updated annually by electoral registration officers (EROs), deals with all of this. The problem, of course, is that the register contains the details only of those who are currently entitled to vote: that is to say, those who possess the relevant citizenship and who are 18 years old or who very soon will be. Parents/guardians of persons about to attain the age of 18 may register their teenager as an “attainer”, but SNP policy is not that the franchise should be extended only to registered attainers, but to all 16- and 17-year olds, whether they are currently on the register or not.

Thus, the first challenge is to make sure that come referendum day all 16- and 17-year olds are registered to vote. Getting these boys and girls onto the register will not be particularly difficult — it can be done by canvassing households in the ordinary way — but it will take time. The Referendum Bill will not be enacted by the Scottish Parliament until the end of this year — less than 12 months out from the referendum itself (probably). This is too late for the EROs. Thus the Franchise Bill has been severed from the Referendum Bill proper, in order that it may be pushed through the Scottish Parliament more quickly. It is expected that the Franchise Bill will be enacted before the beginning of Holyrood’s summer recess.

All of this said, there are several details of the registration process that, if it is doing its job properly, the Scottish Parliament will want to scrutinise carefully as the Franchise Bill goes through. Earlier this year the UK Parliament passed the Electoral Registration and Administration Act 2013. This new law changes the way in which EROs will gather the information that goes onto the electoral register. Since the nineteenth century we’ve done this in Britain household by household. The head of the household is responsible for registering everyone living in that house who is eligible to vote. The 2013 Act reforms this, such that from now on, each individual and not each household, will be responsible for registering him- or herself. The hope is that this will lead to a more accurate register, although the fear is that, at least in the first instance, it will also lead to a much more incomplete register. Not everyone will realise that they now have to register themselves — EROs and others will do their best to inform the public, but it seems inevitable that some voters will fall off the register. When individual electoral registration replaced household registration in Northern Ireland a decade ago about 10% of voters dropped off the register. Clearly, this has the potential to have grave consequences for the legitimacy not only of the independence referendum but also of the Westminster and Holyrood elections that will follow.

So much for the administrative process. The second challenge that must be faced by the extension of the franchise to minors concerns data protection. The electoral register is a public document. It is made available (for a fee) to commercial and charitable organisations who wish to undertake large-scale mailshots, for example. Adding the names and addresses of children to the register opens up issues of data protection. Ministers will want very carefully to guard against the possibility that the names and addresses of young girls and boys, collected on an electoral register, could fall into the wrong hands. Remember: it is not only 16- and 17- years who will be registered: it is all those children who will attain their 16th birthday by the date of the referendum. This inevitably includes some children who are only 14 years old at the moment.

Very sensibly, Scottish Ministers have proposed in the Franchise Bill that instead of adding the names and addresses of minors to the current electoral register, they will instead be compiled on a new, separate Register of Young Voters (RYV). Unlike the current electoral register, the RYV will not be publicly available.

That is all well and good, but details matter — especially in an area as precious as child protection — and, critically, there are questions of detail that are left wholly unanswered by the Franchise Bill. Clearly, the two main campaign groups in the referendum (Better Together and Yes Scotland) will want access to all voters eligible to vote in the referendum, whether they are on the RYV or the current electoral register. How is that process going to be managed compatibly with issues of child and data protection? Likewise, will the political parties be granted such access? The Franchise Bill is disturbingly cryptic about this: section 9(2) of the Bill merely states as follows: the Register of Young Voters, “or an entry in it, may be disclosed to a person for the purposes of an independence referendum, but only in accordance with provision made by or under” the forthcoming Referendum Act.

This provision shows how closely tied the Franchise Bill is to the eventual Referendum Bill. It will be in the Referendum Bill — or, quite possibly, in regulations to be made at some future point under the terms of that Bill — where the details will be found as to how sensitive data about Scotland’s 14-, 15- and 16-year olds will be made available to Better Together, to Yes Scotland and, possibly, to others involved in the referendum campaign. Given the critical importance of child protection it would be quite improper for the Scottish Parliament to pass section 9(2) into law without first having studied these details extremely closely.

Constitutionally speaking the Franchise Bill and the eventual Referendum Bill will be the most important Acts passed by the Scottish Parliament since its creation in 1999. I only hope that MSPs are up to the job of scrutinising it properly.

As it stands the Franchise Bill leaves a series of open questions which the Scottish Parliament must now take up. At the top of the list are the following:

  1. What will the extension of the franchise to 16- and 17-year olds cost? Scottish Ministers have estimated that it will cost £360,000. Is this figure realistic? Is it accurate? Is this good value for money?
  2. How will electoral registration officers cope with having to make two significant changes at once: namely, moving from household to individual electoral administration AND extending the franchise to 16- and 17-year olds? What additional resource will they need? Who will supply this, and when?
  3. And what provisions are required in order to allow simultaneously for the sharing of electoral data and the protection of children? How will the circle be squared between the twin imperatives of a fair and well-run referendum, on the one hand, and the essential public good of child protection, on the other?