The debate about who can vote in next year's referendum and why has begun in earnest: why give it to 16 and 17 year olds but ban prison inmates and some military personnel overseas?
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Ballot boxes counted in Glasgow. Photograph: Daniel Gilfeather/Rex Features
The essential debate about the franchise for next year's referendum on Scottish independence – the historic inclusion of under-18s versus the exclusion of Scottish military personnel serving overseas - has jumped into life after ministers in Edinburgh published their bill on the referendum franchise.
There was one unintended controversy over my reporting on Tuesday of the quite complex steps the Scottish government has had to take on preserving the identity of those 125,000 or so 16 and 17 year olds who will be allowed to vote, after I described that list as "secret".
That was meant to reflect the fact that this list – unlike every other voters roll – will remain wholly and entirely undisclosed outside a small number of electoral officials: it was not meant as an underhand dig but to underline the significant steps ministers believe are needed to make this extension of the franchise work.
In the discussion below the story, I made this observation:
The list of all under 18 year olds eligible to vote will not be disclosed to anyone outside a very strictly controlled group of official staff involved with electoral registration and the voting process: it will be secret in that sense, and is a far tougher policy/test than the current selective use of confidentiality in some regards with the adult register.
There will be a merged list produced from that data, which will exclude any age identifying information. But even that merged list of all voters will not be released to anyone other than the two registered campaign groups - Yes Scotland and Better Together. No-one gets to know who the 16 and 17 year olds are. That will be secret.
I think that goes beyond being heavily-restricted or highly confidential, but recognise that some people felt the word "secret" over-stated that.
Beyond this debate, the bill itself and its detailed supporting documents (available here) answer some questions and raise a number of bigger ones which could well continue to bubble up as the bill goes through Holyrood. Others will emerge as the Electoral Commission and other groups study the detail.
Notably, the nationalist legal blogger Lallands Peat Worrier has asked why should prisoners be denied a vote, while the Telegraph has questioned why Scottish soldiers serving abroad would be missed off too.
And for political anoraks and party officials, there's the intriguing question about why the Scottish government has decided only the official "yes" and "no" campaigns will be given access to the final merged list of all eligible voters.
Alex Salmond's official spokeswoman confirmed on Tuesday that this list would be given to the two campaigns only 16 weeks before referendum day: the first minister is widely expected to disclose that hotly-anticipated date next week, on Thursday 21 March.
(There is growing speculation that that is the day he'll publish the full referendum bill, two days before the Scottish National party's spring conference in Inverness, which will add further legal detail to the plans for the new voters register for the referendum.)
The main political parties, despite being highly experienced at handling data and observing their legal duties as data holders, will be denied access to the full complete list – a decision which will surely inhibit their right to send literature to every voter (ironically so, in the case of the Scottish National party, which has championed votes for 16 and 17 year olds).
Alex Salmond's desk in the Scottish government press office was asked several times yesterday why this distinction has been made, and the best answer was this:
The government's proposals, welcomed by child protection groups, seek to limit the availability of information on the youngest voters in the interests of child protection.
So, a decision has been taken to propose to parliament that designated organisations should have access to the merged register but no other campaigners. The numbers involved (i.e. the difference between those on the merged register and those on the local government register) will be small.
The first minister's official spokeswoman added that they wanted to "strike a balance between putting young voters on an equal footing with other voters and a desire to ensure that their data is treated sensitively and responsibly."
But this doesn't actually directly answer the question about why the parties can't be trusted.
John Curtice, the polling expert at Strathclyde university, suspects that civil servants wants to stop the parties trying to circumvent the decision not to identify 16 and 17 year olds by comparing this new referendum voters list with the standard voters roll and pinpointing new names (a laborious task given there are over 4m voters on the roll and only about 124,000 16 and 17 year olds to find amongst them):
Given that the regular register is in the public domain, if the regular register and the expanded register were put side by side, probably by a process of comparison, you could work out who was under 18.
Curtice suspects that this issue will be raised at Holyrood as the bill goes through parliament:
I would be really surprised if this didn't come up for discussion at stage one.
The Scottish National party has been consistent in its policy on votes for 16 and 17 year olds - it has them for Crofting commission votes and some health board elections. Yet in its leader on Wednesday, the Herald took issue with the central argument for votes at 16 (that 16-year-olds pay tax, can marry and join the armed forces) by asserting this:
On the other hand, nobody is suggesting the right to buy alcohol should be extended to 16-year-olds or the right to fight on the front line and die for their country. There are different thresholds for different activities and rightly so in an era where neuroscience suggests the parts of the human brain we use to weigh up the consequences of our actions often do not mature properly until around the age of 20.
In the vast majority of the world's democracies, there is a consensus that 18 is the right age for the franchise. Some European countries are contemplating lowering the voting age but The Herald has argued that this should happen only after a full consultation and extensive trials, such as those currently being piloted in municipal elections in Norway. If change is deemed desirable, it should be extended to all elections local and national. The referendum is too serious an issue to be the subject of an experiment.
The draft bill also emphatically rules out allowing convicted prisoners the right to vote: this is widely seen as a political decision, since the government is entitled to determine its own franchise in a referendum, and – unlike giving inmates a vote in elections in the UK, there is no legislation to prohibit that. But Salmond is viscerally opposed to allowing prisoners the vote, on principle.
The Scottish government's briefing papers state:
While the franchise at the referendum is a matter for the Scottish parliament to determine, the franchise in Scotland (as throughout the UK) is a matter for the UK parliament. The UK government announced in November 2012 that it would ask a committee of parliamentarians to consider a range of options set out by the government in response to successive rulings by the European court of human rights that the UK's ban on prisoners voting in elections to state legislatures breaches the European convention on human rights. The committee will report later in 2013.
The ECHR ruling (and human rights case law) does not relate to referendums, and convicted prisoners will not be able to vote in the referendum irrespective of whether UK electoral law is amended to extend the vote to prisoners for parliamentary elections before the referendum in 2014.
Supported by Adam Tomkins, the constitutional expert at Glasgow university, Lalland Peat Worrier says that is legally watertight. Referring to previous ECHR cases about voting in elections, including the case Hirst v United Kingdom, he writes:
In essence, this means that Holyrood could but won't enfranchise prisoners, if it passes this bill. [My] question is, can they get away with it? The policy memorandum doesn't provide any evidence to support its claim that referendums can be distinguished from elections, when it comes to prisoners' voting rights. Like all devolved legislatures, Holyrood is charged in its founding documents to observe the rights protected by the European Convention.
Unlike Westminster, the Scottish parliament can't assert sovereignty and shrug off the European court's decision in Hirst v. the United Kingdom, which held that our blanket ban on prisoners voting was incompatible with the convention (but didn't hold that all prisoners in all circumstances should be granted the right to vote).
So the conundrum is this: the Scottish parliament, unlike Westminster, must observe the European convention on human rights in its legislation. The European court of human rights has said denying every prisoner a vote breaches the convention.
Although LPW doesn't mention this, the SNP government is of course making great play of its intention to have a written constitution in an independent Scotland: we won't see any official draft before referendum day, but why shouldn't it enshrine the convention rights of (at least some) prisoners to vote?
Here's what he concludes:
A formalistic construction of the convention clearly supports the Scottish government position, and legally, I'd expect the proposed limits to the independence franchise to be upheld as compatible with the European convention. One has to wonder, however, whether depriving those in jail of any say in their country's future abides by the spirit, if not the letter, of the European court's judgment in Hirst, or represents 'effective and meaningful democracy governed by the rule of law' where 'universal suffrage' is a 'basic principle' worth upholding. Even for the 7,500 or so folk who are currently bidies-in with Her Majesty.
The Telegraph meanwhile has taken a poke at the decision to bar Scottish soldiers based or serving outside Scotland from voting while allowing under-18s to do so. In its splash in the Scottish edition, it implies this is a perverse, politically correct decision.
Two out of Scotland's five Royal Regiment of Scotland battalions will be based outside the country come referendum day, it reports. Although it agrees that personnel with a fixed Scottish home address can vote, the Telegraph quotes both Jim Murphy, Labour's shadow defence secretary at Westminster and Maj Gen Andrew Mackay, a retired General Officer Commanding Scotland, criticising the policy.
Describing Scottish soldiers as "genuine patriots", Murphy said:
In all the excitement of 16 year-olds getting the chance to vote it is unacceptable that servicemen and women posted outside of Scotland are being overlooked.
Those who choose to leave Scotland don't have a right to vote in the referendum, but our service personnel haven't chosen to leave they have been directed to do so. They shouldn't be excluded because of that loyalty.
Maj Gen Mackay (the Telegraph adds that he commanded Prince Harry in Afghanistan) said:
It seems incongruous that as a born and bred Scot you can serve your country yet be denied a vote.
Soldiers never like to stand by passively particularly when they have made so much sacrifice themselves.
But if you exclude the under-18s issue, the Scottish government is taking a pretty consistent position on the franchise for the referendum: it is using the local government electoral roll and franchise rules.
So all UK and EU citizens resident in Scotland will be allowed to vote, along with armed service personnel registered to vote at a Scottish address. (But then Scotland's 8,100 prison inmates all live at a Scottish address too).
The bar on Scottish squaddies not based or registered in Scotland will likely exclude only a few thousand people, but critics say this: if Scottish ministers want to use their discretion to expand the franchise to include 16 and 17 year olds, why not try for Scottish military personnel overseas too?
There's a counter-argument, presumably. If Scottish soldiers living outside Scotland would be allowed to vote, why not include other ex-pats or Scots living in England? That question has already been conceded in principle by all the UK parties, despite Murphy's intervention.
The Edinburgh agreement last year is quite explicit: the referendum will be framed and decided in Scotland. So, if you want to influence that outcome and live elsewhere, you need to move.