Scottish Human Rights Law Group

It is clear that the Scottish Parliament constitutes a “legislature” for the purposes of Article 3 Protocol 1.[1]   Section 11(1) of the Scotland Act 1998 provides that the persons entitled to vote at an election for the Scottish Parliament are those who on the day of the poll

“(a) would be entitled to vote as electors at a local government election and (b) who are registered in the Register of local government electors at an address within a constituency”

Section 12(1) empowers the Secretary of State, by Order, to make provision for the conduct of elections to the Scottish Parliament, including, in particular, provision about the registration of electors.

 Section B3 in Part II of Schedule 5 to the Scotland Act 1998 provides that “the franchise at local government elections” as well as “elections for membership of the House of Commons, the European Parliament and the Scottish Parliament” are matters reserved to Westminster, and, as such, fall outwith the legislative competence of the Scottish Parliament and the executive competence of the Scottish Ministers.    This reservation on electoral matters is said to include:

“the subject matters of – (a) the European Parliamentary Elections Act 1978; (b) the Representation of the People Act 1983 and the Representation of the People Act 1985; and (c) the Parliamentary Constituencies Act 1986, so far as those enactments apply or may be applied in respect of such [Parliamentary] membership.”

By virtue of Paragraph 7(1)(a) of Schedule 4 to the 1998 Act an Act of the Scottish Parliament may directly or indirectly by way of authorising subordinate legislation “restate” the law on reserved matters, or restate it with such modification as are otherwise within it is competence or repeal any spent enactment.   Paragraph 7(1)(b) provides, however, that any such a restatement of the law by the Scottish Parliament will not take that law out of the category of reserved matters.

Aidan O’Neill

 

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[1]  See Application No. 27311/95 Timke v. Germany, digested in [1996] European Human Rights Law Review 74 and Matthews v. UK, 18 February 1999 ECtHR, RJD I-251 at paragraph 40:

“40. The Court recalls that the word ‘legislature’ in Article 3 of Protocol No. 1 does not necessarily mean the national parliament: the word has to be interpreted in the light of the constitutional structure of the State in question. In the case of Mathieu-Mohin and Clerfayt v. Belgium, the 1980 constitutional reform had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian ‘legislature’, in addition to the House of Representatives and the Senate (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 23, § 53; see also the Commission’s decisions on the application of Article 3 of Protocol No. 1 to regional parliaments in Austria (application no. 7008/75, decision of 12 July 1976, DR 6, p. 120) and in Germany (application no. 27311/95, decision of 11 September 1995, DR 82-A, p. 158)).”

Commentaries, Prisons Law, Protocol 1, Art. 3 Right to Free and Fair Elections