Towards a Fair and Democratic Process? Regulating the Referendum on Scottish Independence

Professor Stephen Tierney

Professor Stephen Tierney

In a post originally published at the UK Constitutional Law Group’s blog, Professor Stephen Tierney discusses the necessary components of a fair and democratic referendum. Stephen notes the focus on the outcome rather than the legitimacy of the process.

The referendum on independence is still a year away and already attention is focused on major substantive issues such as economic relations between an independent Scotland and the United Kingdom, 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.

Already the procedural rules for the referendum have been taking shape, with one bill now enacted and the other before the Scottish Parliament. The franchise rules for the referendum are set out in the Scottish Independence Referendum (Franchise) Act (‘the Franchise Act’), introduced into the Scottish Parliament on 11 March, and enacted on 7 August. This Bill required 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 Bill (‘the Referendum Bill’) was introduced into the Parliament on 21 March 2013 and is expected to be passed in November.

The legislation was preceded by the Edinburgh Agreement signed by the United Kingdom and Scottish Governments on 15 October 2012. 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 (per section 30 Scotland Act 1998) which devolves to the Scottish Parliament the competence to legislate for a referendum on independence which must be held before the end of 2014 (Order in Council, para 3).

For Stephen’s analysis of the franchise, the question asked, the role of the electoral commission and funding and spending rules, please visit the UK Constitutional Law Group’s Blog

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