QUESTION

 

Assume that the Scottish Government is preparing a Bill for reform of electoral law in Scotland (“the Scottish Bill”). The draft Bill has been sent to the Lord Advocate, the Presiding Officer and the Advocate General for Scotland for scrutiny prior to being introduced into the Scottish Parliament.

The draft Bill contains the following provisions:

1. A provision to enfranchise convicted prisoners in Scotland serving sentences of 90 days or less;

2. A provision providing that European Union (EU) citizens who are resident in Scotland are entitled to vote in “all elections held in Scotland”;

3. A provision inserting a new subsection 2C into section 2 of the Scotland Act 1998 which empowers the Scottish Ministers to disapply section 2(2) for “such period as the Ministers think fit” in any circumstance in which they consider “that the holding of a general election would be seriously prejudicial to the public interest”.

A Bill is also progressing through the United Kingdom (UK) Parliament (“the UK Bill”) which, inter alia, removes the voting rights of EU citizens at all elections held in the UK. The Explanatory Notes to the Bill state that the provision does not require devolved consent because “it is consequential upon the UK’s withdrawal from the European Union, which is a reserved matter.”

Advise the following parties as to the legislative competence of the Scottish Bill, and about any powers and/or duties they have if they have any concerns about whether the Bill is within competence:

1. The Lord Advocate;

2. The Presiding Officer;

3. The Advocate General for Scotland.

Also advise the Scottish Ministers whether there is anything they can do to prevent the enactment of the UK Bill and how, if at all, its enactment may affect the competence of the Scottish Bill.

A problem question tests your ability to identify the legal issues raised by the facts, to explain and discuss the relevant legal rules, and to apply those rules to the facts. Make sure that you follow the instructions contained in the problem and use the IRAC method to structure your answer. This does not require the inclusion of a general introduction or conclusion. Your answers must be grounded in appropriate legal research and fully supported by authority, following appropriate referencing conventions (see OSCOLA, available on the Undergraduate Law Myplace page, for guidance).

ANSWER

PUBLIC LAW

Issue

The identification of public law is essential for the better political understanding of any country. The identified issues, in this case, have certain rules and regulation on which the related acts and regulation enforced by the government of Scotland has been identified. The proper analysis of the acts is vital for a better understanding of the case and finding effective outcomes.

An electoral bill is been reformed by the government of Scotland to bring some changes in the current voting rules and regulation. In order to maintain a proper standard of law, the rules were sent to the Lord Advocated for the proper scrutiny. The draft of the bill was also sent to the Advocate General as well as the Presiding officers. The drafts of the bill produced consist of certain vital aspect that needs proper concentration for free and fair elections in Scotland. The draft consists of three vital changes in the process of election.

The provision of the prisoner less than 90 days in jail to have the proper right to vote to select their own representative was mentioned. The second point in the draft stated that the citizen of Europe Union will have the right to take part in the election held in Scotland. The third and the most important point consist of the introduction of a new section in the Scotland Act 1998 which stated that the ministry has the right to keep the election on hold for the public interest. The new section, however, stated that this rule should not be valid under any circumstances.

The bill has also been in progress due to the introduction of the UK bill by the parliament of the United Kingdom’s¹. The UK bill stated that the citizens of Europe Union will not have any right to vote in the election of the UK. The election of the UK will only be conducted with the vote cast by the citizens of the UK. The withdrawal of the UK from the Europe union was the major cause of the issue. The change in the pre-existing voting pattern has disturbed the political condition of the EU as well as Scotland.

Regulation

Scotland Act 1998 (as amended) Section 11, 12 stated that the citizen of Europe with 16 years of age has the right to vote².

Acts of Union 1707 (Scotland) Section 19(2) consists of the rules and regulation of treaty of union between the European kingdoms and Scotland. The removal of the UK from the EU is the major reason behind forming unions³.

The Claim of Right 1988 and the Scottish Constitutional Convention Section 24 and 25 stated that the citizen of Scotland has the right to build a government on their own choice⁴.

Scottish independence referendum, 2014 Section 36 consist of the rules of getting the proper opinion of the citizen on the independence of Scotland. The citizens were supposing to caste the vote in just yes or no⁵.

Scotland Act 2016 Section 3 stated that the prisoners irruptive to their duration in person are ban from casting a vote⁶.

Application

The proper application of the issue is only possible with the effective scrutiny of the arising problem. According to the Scotland Act, 2016 Section 3 the prisoners are ban from casting their vote in the process of election. However, the length of the duration of the prisoner is not given much consideration in this act. The Lord Advocate might consider this fact and use certain terms and conditions in the process of casting vote by the prisoners. The intensity and nature of crime play a vital role in the degree of punishment faced by the judiciary⁷. The Lord Advocate can validate the first point suggested in the draft saying that the right to vote of a person in prison can be judged by the length of their stay in custody. A similar case was identified “Nicola Sturgeon vs. Holy rood’s equalities committee”, where the committed stated that allowing a prisoner to vote meant questioning the responsibility of the citizen of Scotland. However, the ministry of the MSP government rejected all the calls and allowed the prisoner to cast his vote in the election. The decision was challenging and even backed by other opposition parties whereas about 3 prisoners took the case to Supreme Court⁸. The ministry supported the decision that the prisoner needs to be sent to the rehabilitation centre for his punishment and not excluded from society like an alien⁹.

On the other hand, the Presiding officer can use the point that the nature of the crime shall be used as a basis for the prisoner to have a right to cast vote to their representatives. The negotiation in the time period allotted to the valid voting criteria of the prison by the Advocate General for Scotland can in turn strict to the time period to sentence to be 6 months¹⁰. The prisoners were in prison for less than 6 months in prison will be allowed to cast vote shall be the final outcome of the produced 1st point of the proposed draft.

Scottish independence referendum, 2014 section 36 can be used in the recommendation on the draft as the act states that Scotland must have the dependency while voting and not be a concern of the European Union. In the case “Ruth Davidson vs. Scottish parliament”, ensured all the citizen above the age of 16 has the right to vote in both all the Holy rood as well as local elections¹¹. It was mentioned during the case that including the young of 16 years added to the extra 3% vote at the time of the election. This is however considered that the election is taking part in Scotland and giving the people of European Union’s the right to vote is simply validated as Scotland is an integral part of Europe¹². The withdrawal of the UK from the EU, the Presiding Officer might highlight the trade and business related issue faced by the UK¹³. The Lord Advocate can at the same time suggest the advantages of forming a union with the European nation with the beneficial advantages.

Scotland Act 1998 (as amended) section 11, 12 can be effectively used by the Advocate General of Scotland to identify the fact that the treaty between Scotland and Europe in long and everlasting¹⁴. The implication of the treating in defending the points associated in the draft of the voting regulation of Europe is beneficial¹⁵. The Presiding officers are advised to use the law in support of the second point where the entire citizen of the European Union is supposed to vote in the election of Scotland. Scotland being the part of Europe can allow voting from the entire EU.

The implication of Acts of Union 1707 (Scotland) section 19(2) can be used by the Lord Advocate of Scotland in the process of providing proper scooting to the draft presented to him. Scotland being an essential part of the EU can allow the entire citizen to cast vote in the elections held in Scotland. However the right of keeping the general election on hold by the government of Scotland is invalid and the importance of the need of the new sub-section can only be explained by the Scotland Act 1998 (as amended) section 11, 12. The Presiding Officer Scotland can advocate on this matter and highlight the fact that general elections held in Scotland are the basic right of the citizen and cannot be kept on hold even in the interest of the public. The avocation of creating a new subsection in the Scotland Act 1998 to eliminate the power of the government parties in keeping the general elections of Scotland on hold for the public interest. On the other hand, The Claim of Right 1988 and the Scottish Constitutional Convention section 24 and 25 can be utilised by the Advocate general to provide yet another perspective of a free and fair election in Scotland without any kind of political influences. The proper conduction of election in Scotland is possible with the proper

Conclusion

Hence, it could be concluded that the proper advice of the lord advocate, the presiding officer as well as the advocate general of Scotland is essential for the proper implication of the new rules or in charge of the pre-existing regulation. Election being one of the most important criteria needs proper attention. The effective identification of the appropriate laws is required for the proper understanding of the political circumstances of the country. The withdrawal of the UK from the Europe Union was identified as one of the most alarming reasons behind the proposal of the new bill in the parliament of the UK. The criteria selected for the bill seems to have long term objective and implication in the parliament of Scotland. The proper identification of similar cases to the situation in the draft is helpful in understanding the rules associated with drafting and enforcing new rules and regulation in the voting procedure of Scotland. Hence, the proper execution of the acts and regulation existing in Scotland and previous cases will be utilised by the lord advocate, the presiding officers as well as the advocate general of Scotland to take correct decision for the scrutiny of the draft.

References

Charley Jarrett “Votes for 16 and 17-year-olds in Scotland, Wales… and overseas?” (2018) <https://www.electoral-reform.org.uk/votes-for-16-and-17-year-olds-in-scotland-wales-and-overseas/> [Accessed on 17.3.19]

Clark, Alistair. “Public administration and the integrity of the electoral process in British elections.”, (2015) 914no. 1 86-102.

Clark, Alistair. “The relationship between political parties and their regulators.” (2017) Party Politics 23, no. 6 646-656.

Diffley, Mark. “The Election in Scotland In Political Communication in Britain” (2017), pp. 49-61. Palgrave Macmillan, Cham, 2017.

Gordon, Michael. “Brexit: a challenge for the UK constitution, of the UK constitution?. European constitutional law review” (2016) 12, no. 3 409-444.

Gov.uk “Scottish independence referendum, 2014” (2019) <https://www.gov.uk/government/topical-events/scottish-independence-referendum> [Accessed on 17.3.19]

Hunt, Jo, Rachel Minto, and Jayne Woolford. “Winners and losers: the EU referendum vote and its consequences for Wales.” (2016). Journal of Contemporary European Research 12, no. 4

Legislation.gov.uk “Acts of Union 1707 (Scotland)” (2019) <http://www.legislation.gov.uk/aep/Ann/6/11/contents> [Accessed on 17.3.19]

Legislation.gov.uk “Scotland Act 1998” (as amended) (2019) <https://www.legislation.gov.uk/id/ukpga/1998/46> [Accessed on 17.3.19]

Legislation.gov.uk “Scotland Act 2016 section 3” (2019) <https://www.legislation.gov.uk/ukpga/2016/11/part/3> [Accessed on 17.3.19]

Matthews, Felicity, and Matthew Flinders. “Patterns of democracy: Coalition governance and majoritarian modification in the United Kingdom, 2010–2015.” (2017)British Politics 12, no. 2: 157-182.

McHarg, Aileen, and James Mitchell. “Brexit and Scotland The British Journal of Politics and International Relations” (2017) 19, no. 3: 512-526.

Mullen, Tom. “The referendum and after Scotland’s Constitutional future Law 22”, (2016) no. 2: 187-202.

Shaw, Jo. “The quintessentially democratic act? Democracy, political community and citizenship in and after the UK’s EU referendum of June 2016. Journal of European Integration “(2017) 39, no. 5 559-574.

Studocu.com “The Claim of Right 1988 and the Scottish Constitutional Convention Scotland” (2019) <https://www.studocu.com/sv/document/university-of-glasgow/constitutional-law-1/foerelaesningsanteckningar/scottish-parliament-and-govt/1462463/view> [Accessed on 17.3.19]

The guardian “Sturgeon pressed to allow prisoners to vote in Scottish elections” (2019) https://www.theguardian.com/uk-news/2018/may/14/sturgeon-pressed-allow-prisoners-vote-scottish-elections [Accessed on 17.3.19]

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