A note on the Scottish Independence Referendum Act 2013

The referendum on Scottish independence from the rest of the United Kingdom took place last week amidst much media coverage. Mercifully, it also passed without much incident, despite some attempts to portray the largely respectful debate as somehow sinister (which I will not give credence by linking to here). That it did so was largely thanks to diligent public sector employees and an army of interested observers, so allow me to put on record my gratitude to them in this blog.

A smooth referendum was also ensured by the legal regime within which the debate, the poll and ultimately the count operated. The general law of the land was supplemented by the Scottish Independence Referendum Act 2013. That legislation’s impact on the pre-poll period is analysed by Andrew Tickell (aka Peat Worrier) in a recent edition of the Edinburgh Law Review (£). The conduct of the count, and a dismissal of some of the wilder conspiracy theories, is scrutinised by Doug Daniel in a blog hosted by Wings Over Scotland. A matter relating to postal votes (and the possible analysis thereof at a pre-count stage) is reported in The Herald today. This blog will consider the polling day itself.

A couple of months ago a friend who works for a local authority told me that his employer had some roles available for polling day. Not having any plans for the day itself (except for one property law lecture to students at the University of Aberdeen), I indicated I could be available and was advised to contact someone in the elections team. I did so, and after explaining my own background (law lecturer, solicitor, notary public) it was explained to me that there was a role available as Presiding Officer at a polling station. A PO has to stay at a polling station all day (06.15-22.00), so this did not fit in with my 16.00 lecture. I was told to get back in touch if I managed to arrange cover for the lecture, such cover was arranged and I duly got back in touch (also arranging a day’s annual leave from my full-time job).

In the course of this exchange, it dawned on me that I had not exactly been backward in coming forward for a Yes vote (either in this blog, on social media or via interest groups). I went into disclosure mode, noting in correspondence that I had put my name to both the Lawyers for Yes and the Academics for Yes declarations.

I was offered the PO role. As regards my disclosure, I was informed that statute prevents a local authority employing anyone actively involved in campaigning for either outcome of the referendum and that this would only be a problem if that had been the case.

I still had a nagging doubt. Life and lawyer experience confirm that nagging doubts are best flushed out before they become massive, horrible, explicit doubts. I thought I should clarify and resolve the situation in advance and put the following positions forward.

• On the “not campaigning” side, I am not and never have been in a political party, I did not donate to either referendum campaign, and I had (at that point) never engaged in any door-knocking/canvassing or represented either side on any platform.
• On the “campaigning” side, there was my blog, anyone finding me on social media (including a public Twitter page) so near the referendum would very quickly glean my voting intention, and my previously disclosed Academics for Yes and Lawyers for Yes involvement.

Following on from this, I was informed that it could be construed that I was campaigning for an outcome of the referendum and thus putting me in a PO role might put the local authority in breach of the Scottish Independence Referendum Act 2013. On reflection, I think this is correct, and I should perhaps have ruled myself out sooner: in my limited defence I was not sure how central a role I was to be offered, and after being offered that post I was also distracted by other mundane referendum day matters (like arranging cover for my lecture). Schedule 3, paragraph 10 of the 2013 Act is pretty clear on the point and having encouraged the local authority to take a view on the point I was not going to argue with whatever view was formed.

So what was the net effect of this decision? It shows the referendum was a Unionist conspiracy. No, sorry, what I meant to write was it shows the law was taken seriously. This is as it should be. You will not hear any calls for a re-vote from me.

On a more personal level, I came to something of an #indyref epiphany, in that I thought “Sod it, I may as well do a bit more campaigning”. Health matters had limited my involvement in most things from August 2013 to early 2014 (a fellow Yes campaigner was kind enough to give me a medical line for this…), but I did get involved in the latter stages of the campaign by doing a spot of canvassing and volunteering for a “get out the vote” effort in the Tillydrone and Powis areas on referendum day. The net effect of this final burst of activity will never be known to me, but I am okay with that. Democracy and secret ballots are rather important and I am delighted to be in a state that takes such things seriously. (Yes, there is a potential irony as I did vote for Scotland to not be part of that state, but I have explained why elsewhere.)

On an even more personal level, my non-PO role freed me up to give my law lecture that day.  I think I managed to refrain from making that lecture about the categorisation of things in Scots property law a rallying call for Scottish independence.