The section 30 order and under-18s voting in a Scottish referendum

There have been indications – leaks, rumours and even official statements – for some time now that agreement on the section 30 order to confer power on Holyrood to call a referendum on independence was near (see BBC News from the last few days here and here, or Severin Carrell in the Guardian in early September here and on Wednesday here).  Indeed, I was on BBC Radio Wales’s phone-in yesterday to talk about the supposed agreement, to find that the latest news was that Alex Salmond was keen to emphasise that a deal had not yet been done, which led to the over-reaction that the deal was off.   In any event, there is to be a meeting between Salmond and David Cameron on Monday, supposedly to sign off the section 30 order.  (The SNP seem to have won a protocol struggle here, with Salmond succeeding in putting himself on the same footing as Cameron, while more junior ministers such as Nicola Sturgeon and Michael Moore do much of the sherpa-ing for the premiers’ summit.)

The order will, apparently, permit a single-question referendum, to be held not later than 2014, and regulated by the Electoral Commission.  The single question and the regulation are points on which the UK Government (and Labour) have been determined since May 2011, and have been conceded by the Scottish Government; the date has been chosen by the SNP, but was initially resisted by the Unionist side.  However, the question of who can vote in the poll has now become an area of controversy, because of the SNP’s desire to ensure that under-18s can vote.  This was a focus of the debate around a private notice question in the Lords on Wednesday, asked by Lord Forsyth of Drumlean (and available here), and again on Radio 4’s ‘Today’ programme on Thursday morning.

It will be tempting to many to see this as an attempt by Lord Forsyth (no friend of the SNP, Scottish independence, or even devolution if it facilitates independence) to obstruct a referendum on spurious grounds.  Forsyth is keen to emphasise the wider issues arising from allowing under-18s to vote, and the fact that a precedent once set would be hard to unpick.  He therefore seeks a much wider debate about the issue if it is to form part of the order.  (The closest thing to a UK Government position on the issue seems to be a comment of David Mundell’s, reported here, that the order would only confer a power to allow the rising-18s to vote, not necessarily mean that they did.  That would seem pretty spurious too.)

The principle that 16 and 17 years should be able to vote in the referendum was first officially stated in the Scottish Government’s consultation on a draft referendum bill published in February 2010 (so it’s hardly a new proposal).  That document is available here; the fullest discussion is in chapter 2, paragraphs 2.11 to 2.14.  The idea of giving a vote in the referendum to those not otherwise qualified to vote appears to lie in the SNP’s view that 16 year olds should be allowed to vote in all elections (a policy shared by the Lib Dems).  In the 2010 referendum consultation, the Scottish Government note that 16 and 17 year olds were allowed to vote in the pilot elections to health boards in Fife and Dumfries & Galloway (though the evidence suggests a lower-than-average turn-out from the under-18 voters in those cases; see here).  Anyone over 16 who is otherwise eligible can also vote for members of the Crofting Commission, following changes made by the Crofting Reform (Scotland) Act 2010.  In both those cases, separate registers are prepared, and the bodies for which they are used clearly relate to non-reserved (therefore devolved) matters.  The draft bill suggests that not all 16 and 17 year olds would be entitled to vote, only those a) entitled otherwise to vote in Holyrood elections and others which use the ‘local government’ franchise (which is different to that for Westminster elections), and b) who would turn 18 during the life of the electoral register in question, which in practice means relatively few 16 year olds.  There may be an element of seeking electoral advantage here, in the belief that younger voters are more likely to support independence, but the evidence for that seems fairly weak.

Forsyth is therefore not wholly right in claiming that this would set a precedent, since a weak one has already been set through the health board and Crofting Commission elections.  He’s also only partly right in saying that a wholly new register would be needed for the referendum; the Scottish Government has suggested that this would use the existing register, but also allow to vote some whose names would be on the register but who would otherwise not be able to vote.  But he’s also right that there is a wider precedent here, which in the Lords discussion of Lord Forsyth’s question was picked up by Lord Tyler for a possible referendum on EU membership.  What exactly that means depends, however, on how the possible franchise for the referendum is framed – in particular, whether the order addresses the issue directly, or is silent on the point. (See further the ‘update’ below.)

However, there are in any case wider issues at stake than simply the detail of who can vote in a Scottish referendum.  One is whether the referendum will be ‘made in Scotland’, as the SNP insist (still claiming that Holyrood has legal power to call a referendum without a section 30 order too, it seems; for my views on that, see HERE).  The symbolic importance of who is able to vote is therefore considerable.  The SNP continue to insist that the terms of the referendum must be set by them, even though the Scottish Parliament has no legal power to do so.  This is therefore a serious potential obstacle to the making of a section 30 order – and whether the SNP can blame the UK Government and Unionist parties for the failure to hold a referendum, if the order is not to their satisfaction.

The other is the role of the parliaments in this process.  There has been an assumption that this is a matter for governments, and the negotiations about the section 30 have been intergovernmental, between Scottish and UK Government officials and ministers.  But the order itself has only a minimal effect on governments as a matter of law. As secondary legislation, it has to be proposed by a UK Government minister.  However, the approval that is needed is a positive vote in favour by the House of Commons, the House of Lords and the Scottish Parliament.  It doesn’t, in fact, directly involve the Scottish Government at all.  In practice, it’s reasonable to assume that governments with majorities can secure passage through Holyrood and the Commons; even if some government members vote against it in the Commons, the government majority is large enough (and the order should have Labour support too) that it will be approved.  That cannot be taken for granted in the same way in the Lords.  Party discipline and the authority of the whips are weaker there, and the House’s attitude generally is more constitutionally conservative and more traditionally Unionist than in the Commons.  That independence of mind, and an independent role, mean that the assent of the Lords cannot be taken for granted.

The choreography of making a section 30 order as the basis for a referendum was always going to be rather complex.  (See my earlier discussion of the complexities of that HERE).  It has also been in the SNP’s interest to make that process seem more difficult, to emphasise the ‘concessions’ wrung from the UK Government and the extent to which the UK Government had sought to obstruct the popular will of the Scottish people (and therefore show that it wasn’t also a legitimate government for Scots).

What is important is that the emergent terms of the order actually suit both sides.  The SNP get to have a referendum on independence, as they said in their 2007 and 2011 manifestos, and to pass the legislation for that at Holyrood.   The Unionist parties get to ensure that referendum raises only one question, and is regulated by the Electoral Commission in which they have confidence.  While the question of under-18s voting is a significant one, the extent to which the referendum will actually set a precedent is debatable.  More important is the outcome; Lord Wallace rightly said yesterday that ‘it should be a referendum where, at the end of the day and when the votes are counted, no one can claim foul play.’  Failure to reach agreement on the section 30 order would be a way for the Unionist side to give the SNP a way out of holding a referendum it may well now wish to avoid; and for the SNP to blame the Unionist side for that failure, despite its own undelivered manifesto pledges.  Is it worth anyone losing the order when that will be the consequence?

UPDATE: The question of who is entitled to vote in a referendum, if the section 30 order is silent on the point, is an intriguing one.  I suspect this story from the Telegraph is simply wrong, if the order contains no specific provision.  There’s an argument – a strong one in my view – that if the holding of a referendum comes within the competence of the Scottish Parliament (which would probably be the effect of a section 30 order depending on how it is drafted), it is also open to the Parliament to determine who may vote in such a referendum.  That could be those entitled to vote under the local government franchise also used for Holyrood elections (which is a reserved matter thanks to Schedule 5, Head B3 of the Scotland Act 1998), an adapted version of the franchise allowing rising 18s to vote too, or something else.  It would be for the Parliament to define the franchise as part of the referendum bill.

However, if the Parliament were to use a franchise that does not already exist – including an adapted version of the local government one – it would need to create a ‘referendum register’ of those qualified to vote in that particular poll.  That would be a complicated and potentially costly task.  That might not involve a separate registration exercise, though there might be data protection problems if it did not.  (The Electoral Commission was cagey about how long that might take and how large an exercise it would be, when asked about it by members of the Commons Scottish Affairs Committee in November last year; see their response at QQ 102-108 here.)  However it was achieved, there would, however, need to be an identifiable list of those entitled to vote in the referendum.

Actually enabling 16 and 17 year olds to vote may be rather harder and more expensive than the SNP thought when it made that particular promise.

UPDATE, 24 October: My fellow legal blogger Love and Garbage has turned his attention from the correct pronunciation of ‘scone’ to ponder whether prisoners (young offenders, I suppose) under 18 would  be entitled to vote in the referendum.  He argues, convincingly in my view, that they should.  His post is here, and well worth reading.