Nicola Sturgeon Deputy First Minister. 8 th January Dear Nicola, Consultation on the Draft Referendum Franchise (Scotland) Bill

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1 Nicola Sturgeon Deputy First Minister 8 th January 2012 Dear Nicola, Consultation on the Draft Referendum Franchise (Scotland) Bill Thank you for the opportunity to comment on the proposals for implementing the extension of the franchise for Scotland s Referendum. In my view the Scottish Government has affirmed its respect for young people s rights by ensuring that year olds have the right to vote in the referendum and have a say in Scotland s future. I agree that any reduction in the voting age must be supported by education and awareness raising activities to ensure that young voters can engage fully in the democratic process and exercise their right to vote. I am also pleased to note that the Scottish Government has given extensive consideration as to the most appropriate ways and means of extending the franchise whilst safeguarding young people s right to privacy of their personal data. General Comment I welcome the intention of introducing a separate Bill to the Scottish Parliament to extend the franchise to 16 and 17 year olds for the referendum. I appreciate Scottish Government efforts to close the loophole in its previous proposals set out in Your Scotland Your Referendum whereby in terms of trying to work solely within the existing electoral registration system they would effectively risk disenfranchising a significant number of young people. I note that s.3 of the Draft Referendum Franchise (Scotland) Bill relates to the voting eligibility of prisoners and closely replicates the provision already contained in s.3 of the Representation of the People Act As the Scottish Parliament has no power to pass legislation which is non-compliant with the Convention rights (s.29 (2)(d) of the Scotland Act 1998), I would welcome clarification as to the Scottish Government s analysis of the position of the proposed legislation in light of that limitation and the

2 judgments in Hirst 1 and Scoppola 2. I am aware that the prospect of potentially lengthy litigation in the aftermath of the Bill being passed may interfere with the Scottish Government s very welcome plans to extend the franchise in the referendum to include year olds. Register of Young Voters I welcome the approach the Scottish Government is taking with the proposed creation of a Register of Young Voters as a means of holding the details of young people securely, and their basic data only made available to specified groups of people before, during and after the referendum. I do however have some concerns and recommendations regarding some of the mechanisms outlined in Annex A as to how this will work in practice. Paragraphs 7 & 16 : Registration of Young Voters As you are aware it is the responsibility of the head of a household to return the annual household canvass form and failure to do so or knowingly providing incorrect information is an offence punishable with a fine up to 1,000. It is important therefore to clarify whether or not the head of a household will have the same legal responsibility for the completion of the young voter registration form. For the majority of 14 and 15 year olds whether or not they are added to the Register of Young Voters will be dependent on the head of each household completing the young voters registration form during the annual household canvass. Therefore there needs to be an extensive awareness raising campaign nationally and locally to encourage year olds to make sure they are registered to vote. We need to guarantee that young people not only know they have the right to vote in the referendum but that in order to exercise this right they need to register to vote; supported by accessible information on how they register and when they need to register by. I understand that the Scottish Government is considering whether the Individual Electoral Registration (IER) arrangements, due to commence in summer or autumn of 2014, should apply to under-16s registering to vote in the referendum. I am concerned that current IER proposals recommend that there should be a civil penalty if an individual fails to complete a voter registration form. This could effectively mean that a young person who is 15 years old in September 2014 (and for various reasons has not 1 Hirst v the United Kingdom (No.2) 74025/01 [2005] ECHR 681 (6 October 2005) 2 Scoppola v Italy (No.3) 126/05 [2012] ECHR 868 (12 May 2012) 2

3 been registered as part of the annual household canvass) and fails to register under IER will be subject to a civil penalty if their 16 th birthday falls before the referendum. If a decision is taken to apply this new arrangement to under-16s registering to vote in the referendum; it is important that the Scottish Government promote awareness of the new registration arrangements to young people, their parents and carers. Paragraph 12: Aged Marker I agree that it will be of interest to a wide range of observers to know what has been the impact of extending the franchise to 16 and 17 year olds. Paragraph 12 states that in order to determine the turnout a marker will be used on the merged register to determine if someone is aged when they vote; and that the merged registers will only be used by electoral administrators for the poll. However paragraph 27 suggests that there is a proposal that the marked merged registers become available for inspection by members of the public for one year after the referendum. If this is the case it means it will be possible to identify year olds by name and address from the merged registers. A preferred solution may be to extract the statistical data from the marked merged registers on the number of year olds that vote, and then remove the marker before making the merged registers publicly available. Paragraphs 17 & 18: Declaration of Local Connection I welcome the proposal that young people have the option of registering a declaration of local connection (at an address at which they have previously been resident, but is not their current address). However in its current configuration the responsibility of doing so falls to the young person via the completion of a form available from EROs (Electoral Registration Officers). I recommend that the young voters registration form and the annual canvass form include sections and guidance to prompt the head of household to consider and discuss with young people in their household whether or not they should register a declaration of local connection. As stated in Annex A it will be of the utmost importance that EROs engage actively with Local Authorities and other bodies with responsibilities of care for young people to promote awareness of these arrangements. I would suggest that for young people living in residential care the default position should be to apply for a declaration of local connection and not register the address of their residential unit. I would also discourage the registering of a generic address for an individual young person, such as the headquarters of a local authority, as this has the potential of marking a young person as being looked after. It may not be possible to cover all eventualities. For instance there will be occasions where some young people who wish to register a declaration of local connection do not have the option of providing an address at which they have previously been 3

4 resident. It may be that they have been in care for a number of years or that they have not been resident at one fixed address for any length of time, and have no knowledge of a previous address or documentation to prove it. This may in turn discourage them from registering to vote. Whilst some young people will be registered to vote, the instability of their home situation will mean that they are living elsewhere at the time of the referendum. It may mean that they lose out on their postal vote or lose track as to whether or not they are registered to vote and if so at what address they are registered at. Paragraphs 19 & 21: Anonymous Registration There will be circumstances where a young person (or someone in their household s) safety would be at risk to such an extent that they need to go beyond the declaration of local connection and register to vote anonymously. It is likely that the young person will be in a vulnerable state; added to which they will be faced with the responsibility of deciding whether they want to register anonymously and whether they can meet the strict criteria required to support their application. I am concerned that the process in its current form is such that it could dissuade a young person from registering at all, and effectively disenfranchise them. Consideration needs to be given as to how to ensure young people receive the necessary support to enable them to commence and go through this process. I would recommend that the Scottish Government confirm that where an order has been given as to the non-disclosure of a child s place of safety, place of residence, or whereabouts this is in the current list of qualifiers for applicants requesting anonymous registration; and if it is not it be added to the current list. Paragraph 28: Marked Registers Available for Inspection. I suggest that the Scottish Government retain the proposals set out in the draft Referendum Bill; with the physical marked registers only available for inspection by members of the public on request. I do not agree with marked registers being made available for purchase by designated organisations and permitted participants as this would potentially result in copies of them being retained beyond the 12 months that they are available for inspection by members of the public. Further Comment I would like to take this opportunity to raise a general concern as to how the current electoral process impacts on 16 and 17 year olds, and how for the purpose of the referendum this could be improved. As you are already aware in the UK there exists a full electoral register and an edited electoral register. The edited register contains the same type of information as the full register and can be sold to any person, organisation or company to be used for any number of purposes, including direct 4

5 marketing. It is not compulsory to have your details on the edited register however the default position is to include them unless an individual or household indicates otherwise. In the run-up to the referendum I would urge that the Scottish Government raise awareness as to the existence and purpose of the edited register during the forthcoming annual household canvass in December 2013 March 2014, and particularly if the householder is registering any year olds. In addition, whilst it may not be within the legislative competence of the Scottish Government to amend current electoral processes, they may wish to discuss with the UK Government the possibility of abolishing the edited register, as recommended by the Electoral Commission and the Association of Electoral Administrators 3. If the edited register is to be maintained, then I suggest the current opt-out practice should be changed to allow registering electors to opt-in. I hope the above comments will prove helpful to you in developing the legislation and ensuring appropriate electoral processes are in place to enable young people to exercise their right to vote in Scotland s Referendum. Yours sincerely Tam Baillie Scotland s Commissioner for Children and Young People 3 White, Isobel (2012) Edited Electoral Register. House of Commons Library. 5