2 Mechanics of the Referendum
- The proposals for the management and regulation of the referendum are intended to reflect what happens for local and parliamentary elections in Scotland. They make use of Scotland's unique electoral management structure, co-ordinated by the Electoral Management Board.
- The proposed split of responsibilities is as follows:
- the poll and the count will be managed in the same way as those for elections, by local returning officers (designated for the referendum as "counting officers") directed by a Chief Counting Officer
- regulation of the referendum campaign, and reporting on the referendum process, will be the responsibility of the Electoral Commission. In this role the Electoral Commission will report to the Scottish Parliament.
- Eligibility to vote will be the same as for Scottish Parliament and local government elections and for the 1997 referendum on devolution, with the exception that the vote will be extended to 16 and 17 year olds who are eligible to be on the electoral register on the day of the poll.
- The total cost of the referendum is likely to be around £10 million. This cost is broadly in line with the cost (per voter) of the Welsh Assembly and AV Referendums in 2011.
Management of elections in Scotland
2.1 The Scottish Government's proposals for the operational management and regulation of the referendum take account of recent reforms taken forward by the Scottish Parliament. Uniquely, within the UK, the activities of returning and registration officers for Scottish local elections are now co-ordinated by a statutory Electoral Management Board (EMB) for Scotland. The EMB was established in 2009 in response to one of the key findings of the Gould Report that there needed to be a more formal structure to provide greater co-ordination of the administration of elections in Scotland. The Scottish Government has worked closely with electoral professionals, the Electoral Commission and others to develop the Board. The Local Electoral Administration (Scotland) Act 2011 established the Board in statute and gave the Convener of the Board a power of direction over local returning officers. The Electoral Commission report into the Scottish Parliament elections in 2011 concluded that the EMB had added value to the planning and delivery of elections in Scotland and built upon the positive support it enjoys among the various stakeholders in the electoral community. The Commission welcomed the decision to establish the EMB for local elections and noted that, although only given statutory authority for its work in relation to local government elections, the improved working practices, etc. that the Board would develop for this work would be likely to spread to its work in relation to other elections. The Electoral Commission concluded that the Board and the appointment of a Convener with power of direction was a welcome development for electoral administrators in the future.
Management of the referendum
2.2 In the Scottish Government's view, the arrangements which are now in place for the management of local elections in Scotland provide a sound approach which should be followed for the referendum. Accordingly, it proposes that the poll and the count will be managed in the same way as those for elections, by the returning officer (designated for the referendum as "counting officers") for each of Scotland's 32 local government areas under the overall direction of a Chief Counting Officer. Further detail is set out in paragraphs 2.5 to 2.7.
Regulation and oversight
2.3 The Scottish Government's February 2010 consultation paper proposed the establishment of a Scottish Referendum Commission (SRC) to oversee and report on the referendum and regulate campaign expenditure. The proposed commission was based on the model of the Electoral Commission, but would have reported on its activities and the discharge of its statutory functions to the Scottish Parliament rather than to Westminster. Since then, the Electoral Commission has overseen the Welsh Assembly and AV Referendums held in March and May 2011 respectively. In the light of that experience and the fact that the Scottish Parliament has since legislated to give the Electoral Commission a role in supervising the devolved Scottish local government elections, the Scottish Government now proposes that the referendum should be regulated by the Electoral Commission rather than a specially established commission. Crucially, the Electoral Commission will be responsible to the Scottish Parliament for the role that it will play. Further detail of the role is set out in paragraphs 2.7 and 2.8 below.
2.4 The division of responsibilities outlined above mirrors precisely the system established for elections in Scotland in response to the Gould Report. Under that, guidance and regulatory functions are for the Electoral Commission while the operational role is for returning officers, electoral registration officers and their staff. In deciding on this approach the Scottish Government has also had regard to the July 2011 report of the Association of Electoral Administrators into the administration of the referendums and elections across the UK in 2011. That noted that concerns had been expressed about the role placed upon the the Electoral Commission for referendums held under the Political Parties, Elections and Referendums Act 2000 (PPERA). Under PPERA the Electoral Commission has responsibility both for organising referendums and for their regulation and monitoring. For the AV Referendum, for example, the Chief Executive of the Commission was appointed Chief Counting Officer with the power of direction over local counting officers, but the Commission was also required to undertake a full range of monitoring and regulatory functions. The Scottish Government considers that it is preferable to avoid the potential tensions inherent in combining the organisational and supervisory roles.
The conduct of the poll and the count
2.5 The draft Bill provides for the appointment of a Chief Counting Officer (CCO) who will be responsible for ensuring the proper and effective conduct of the referendum, including the conduct of the poll and the counting of the votes. The CCO will have a power of direction over local counting officers. The CCO is likely to be the Convener of the Electoral Management Board. The draft Bill confers a range of functions on the CCO and local counting officers, including:
- making arrangements for the issue of poll cards and to allow for absent or proxy voting
- making arrangements for the designation and management of polling stations and appointing presiding officers and clerks
- publishing notice of the referendum
- ensuring the security of the ballot
- counting the votes and declaring the result. Votes will be counted in each local authority area and reported to the Chief Counting Officer. He or she will make a declaration of the national results after which local counting officers will make "local declarations" of the result for each local government area.
2.6 Votes will be counted by hand in the traditional way. The detailed rules about the conduct of the poll are based on those applying to the conduct of elections. In the time between the publication of this document and the introduction of the Referendum Bill, the Scottish Government will discuss the detailed referendum rules further with the Electoral Management Board and others. In particular, it will work with the Scottish Assessors' Association on the proposals to extend the franchise to those 16 and 17 year olds who are eligible to be on the attainers register (see paragraph 2.15).
What are your views on the proposal to give the Electoral Management Board and its Convener responsibility for the operational management of the referendum?
Role of the Electoral Commission
2.7 The draft bill confers a range of guidance, regulatory and monitoring functions on the Commission:
- publishing guidance for voters
- publishing guidance for counting officers
- publishing guidance for permitted participants
- recording the money spent and donations received by permitted participants and making that information available for public inspection
- observing the conduct of the referendum at polling stations
- observing the conduct of the count
- publishing a report on the conduct and administration of the referendum.
2.8 The Electoral Commission will be expected to take a fair and balanced approach to its activities and to be seen to be operating in this manner. The functions are specified in the Bill in a way which will ensure that the Commission is at no risk of Scottish or UK Government influence in its affairs.
What are your views on the proposed division of roles between the Electoral Management Board and the Electoral Commission?
2.9 On 4 June 2010 the Scottish Government and the Scottish Parliament's Local Government and Communities Committee held a joint seminar in the Scottish Parliament on the subject of voter turnout. Over 50 organisations took part in the seminar including the Electoral Commission, COSLA, the Scottish Youth Parliament and the Electoral Reform Society. Those present discussed the possible causes of low turnout in elections and ways to increase the number of people who register and use their votes in elections in Scotland. Among the ideas discussed was the suggestion that elections could be held on a Saturday in order to make it easier for people to vote. Other proposals included voting in places other than the traditional polling stations (shops, libraries or other accessible public buildings) and encouraging the greater use of mobile polling stations. The Scottish Government would welcome views about feasible means to make voting easier.
What are your views on the idea that the referendum could be held on a Saturday or on other ways which would make voting easier?
Eligibility to vote
2.10 As proposed in the Scottish Government's 2010 consultation paper, and following the precedent of the 1997 referendum, eligibility to vote in the referendum will be based on that for Scottish Parliament and Scottish local government elections. The franchise for these elections (which is set out in UK legislation) most closely reflects residency in Scotland and has been chosen for that reason. The choice of this franchise reflects the internationally accepted principle that the franchise for constitutional referendums should be determined by residency and the Scottish Government's view that sovereignty lies with the people of Scotland. The Scottish Government notes that the UK Government has also concluded that this is the most appropriate franchise for the referendum.
2.11 The following groups of people will therefore be entitled to vote in the referendum:
- British citizens resident in Scotland
- Commonwealth citizens resident in Scotland
- citizens of the Republic of Ireland and other EU countries resident in Scotland
- members of the House of Lords resident in Scotland
- Service/Crown personnel serving in the UK or overseas in the Armed Forces or with Her Majesty's Government who are registered to vote in Scotland.
Voters aged 16 and 17
2.12 The only difference from the franchise used in 1997 relates to those aged 16 or 17. The Scottish Government's view is that the voting age should be reduced to 16 for all elections. Denying 16 and 17 year olds the vote risks them becoming disengaged from the political process at the very point society expects them to take on rights and responsibilities such as getting married, serving in the Armed Forces or paying tax. Reducing the voting age to 16 would encourage participation by young people in Scotland's democratic processes and would give them a voice on matters that affect them.
2.13 The principle of lowering the voting age enjoys wide support. The Liberal Democrat and Green Parties have expressed support for lowering the voting age for elections, as have major youth organisations. The Labour Party supported a move to allow 16 and 17 year olds to vote in the 2011 referendum on the Alternative Vote. Other countries are also starting to consider this issue. For example, in 2007, Austria became the first member of the European Union to adopt a voting age of 16 for all purposes, and Germany and Switzerland have lowered the voting age in certain elections. Jersey, Guernsey and the Isle of Man also have a voting age of 16.
2.14 Although it is currently outwith the powers of the Scottish Parliament to legislate about the franchise for local and parliamentary elections, the Parliament has already legislated to give the vote for 16 and 17 year olds where it has the power to do so. The Health Boards (Membership and Elections) (Scotland) Act 2009 enabled 16 and 17 year olds to vote in the pilot Health Board elections on 10 June 2010. The Labour, Liberal Democrat and Green Parties all supported these proposals when they were put before the Scottish Parliament. More recently, on 21 December 2011, the Scottish Parliament unanimously passed the Crofting Commission (Elections) (Scotland) Regulations 2011 which enabled those aged 16 or over to vote in elections to the Crofting Commission.
2.15 For the referendum, the Scottish Government is constrained by the fact that the franchise for elections is reserved to Westminster. The electoral register is established and maintained under Westminster legislation. The system currently allows 16 and 17 year olds to apply to be on the register if they will become 18 during the twelve months beginning on 1 December after their application. The draft Bill therefore provides that those 16 and 17 year olds who are eligible to be registered under the existing UK legislation will be able to vote in the referendum.
What are your views on extending the franchise to those aged 16 and 17 years who are eligible to be registered on the electoral register?
2.16 The draft Bill is designed so as to ensure equality of opportunity for people in having their say on the constitutional future of Scotland. In particular, it places responsibilities on the CCO and counting officers to make provisions so that as many people as possible have the opportunity to take part. These provisions follow existing legislation and practice for elections.
2.17 The draft Bill includes the following provisions to help people with disabilities to vote:
- if a voter applies to vote with the assistance of someone else on the grounds of blindness, other physical disability or an inability to read, the presiding officer of the polling station must approve the application if he is satisfied that the voter and the companion meet the terms of the legislation
- polling stations are to be accessible to all. This issue will be covered in further detail by guidance issued by the Electoral Commission
- postal voters must be given information about how to obtain guidance for voters in Braille, pictorial format, audible format or in other formats
- each polling station must have a sample copy of the ballot paper in large text for voters who are partially sighted, and a "tactile voting device" for enabling voters who are blind or partially sighted to enable them to vote without the need for assistance
- an enlarged sample copy of the ballot paper must be displayed at every polling station and a translation of the ballot paper into other languages as appropriate.
2.18 In addition, there is a requirement in the draft Bill for the Counting Officer to issue to postal voters information about how to obtain translations into languages other than English of any directions or guidance for voters sent with the ballot paper.
2.19 A detailed financial memorandum will be provided to the Scottish Parliament when the Referendum legislation is introduced. However, the total cost of the referendum is likely to be around £10 million, the bulk of which will be spent on running the poll and the count. The Electoral Commission report into the Welsh Assembly Referendum in March 2011 put the total cost of the referendum at £5.89 million. The electorate in Scotland is 1.7 times greater than in Wales so a comparable figure for the cost of a referendum in Scotland would be approximately £10 million. The Commission's report into the AV Referendum, while not reporting final costs, suggested the total cost of that referendum could be around £96.2 million.