In context: Prisoner voting

"While many prisoners may not care whether they get the opportunity to vote, there could be a minority who wish to vote and being denied the right to shape the future in elections may increase their sense of alienation from society” - Her Majesty’s Inspectorate of Prisons for Scotland

The Scottish Elections (Franchise and Representation) Bill was born out of the Scottish Government’s desire to reform devolved aspects of electoral law, after it was handed power over the franchise in local and devolved elections. This included divisive plans to reform prisoner voting rights in Scotland.

In 2005, the European Court of Human Rights ruled that the UK was in breach of the European Convention on Human Rights in relation to its ban on prisoner voting. To this day, successive UK governments have not changed the law.

Two years ago, once the powers over franchise were devolved, the Scottish Parliament began inquiring into what changes could be made to the franchise. In May 2018, the Scottish Parliament’s Equalities and Human Rights Committee released a report, recommending lawmakers “legislate to remove the ban on prisoner voting in its entirety”. In its current form, the bill allows Scottish prisoners to vote if they are serving a sentence of 12 months or less.

But despite all of the press on the bill’s prisoner voting intentions, the legislation is also about expanding voting and candidacy rights in Scotland. As the policy memorandum states: “This bill seeks to ensure an electoral system that supports and empowers the engagement in elections of all those who have chosen to make Scotland their home.”

Currently only British, qualifying Commonwealth, Irish and EU citizens are entitled to vote in devolved elections. The bill extends franchise and candidacy rights to citizens of all countries who legally reside in Scotland. The Scottish Government predicted 55,000 people would benefit from this.

As JustRight Scotland director Jen Ang told a recent Standards, Procedures and Public Appointments Committee meeting - there is “an inconsistency” in the current law. “Some individuals already have the right to vote by virtue of their nationality. It is a case of levelling things up and addressing the inequality for those who do not have that right,” Ang said.

But Scottish Refugee Council policy officer Lorna Gledhill told the committee the bill should go further, by including people going through the asylum process. Currently, the legislation excludes “those without leave to remain in the UK” from registering and voting in elections, including “asylum seekers who have an undetermined claim for asylum”. Gledhill said: “The flipside is that if people in the asylum system are excluded from voting, it is another moment of social disenfranchisement, it is another thing that they are not able to do.”

The bill was introduced in the Scottish Parliament on 20 June this year and the deadline for Stage 1 of the legislation is 29 November.

Where do other countries stand?

England – under UK law, prisoners serving a custodial sentence after conviction are banned from voting in any elections

Wales – a Welsh Assembly committee recommended the Welsh Government should introduce legislation to give prisoners serving sentences of “less than four years” the right to vote in devolved elections. The Welsh Government accepted the recommendation, and it will be debated on 25 September

Austria, Albania, Azerbaijan, Canada, Croatia, Czech Republic, Denmark, Finland, Ireland, Israel, Lithuania, Macedonia, Moldova, Monaco, Montenegro, Netherlands, Norway, Serbia, Slovenia, Spain, South Africa, Sweden, Switzerland– prisoners vote unrestricted

Ukraine and Latvia – prisoners excluded from voting in local elections

Committee demands ‘answers’ over allowing prisoner voting in Shetland by-election

Iceland – voting for all prisoners, unless convicted of a felony

Germany – bans prisoners from voting only in rare cases if ordered by the court

Unites States – bans some prisoners from voting in some states but not others, Maine and Vermont permit felons to vote in prison

Australia – prisoners serving a sentence of less than three years must vote in federal elections, as voting is compulsory in Australia. Those serving a sentence of three years or more are not entitled to vote until they are released, but they remain on the electoral roll

What is a ‘super-majority’?

A super-majority is required for certain legislation, including bills regarding “persons entitled to vote as electors at an election for membership of the parliament”. As such, it is expected that the Scottish Elections (Franchise and Representation) Bill will be subject to the super-majority requirement. To obtain a super-majority, the number of MSPs voting for a proposition must be at least two-thirds of the total number of MSPs.

Shetland by-election

In the lead-up to the 29 August Shetland by-election, Cabinet Secretary for Government Business and Constitutional Relations Michael Russell pushed through an emergency remedial order to give prisoners a vote in that election. His choice was controversial, as he was later hauled before the Delegated Powers and Law Reform Committee to explain why he did not give them advanced warning. He said since the Scottish Parliament was in recess, the by-election was coming up and the bill had already been introduced to parliament “something had to be done” to ensure “ECHR compliance for the by-election”.

Controversy

Conservative MSP Annie Wells courted controversy last year, commenting on the Equality and Human Rights Committee report on prisoner voting before it was published. Wells gave media comment on the report two days prior to its release, and MSPs voted to exclude her from parliament for five days.