Prisoner voting – the Scottish Government consults on options for change

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On 14 December 2018, the Scottish Government published a consultation with options for giving prisoners the right to vote in local government and Scottish Parliament elections.

This blog outlines the background to prisoner voting and briefly summarises the options proposed by the Scottish Government.

UK prisoner voting ban

The Representation of the People Act 1983 bans almost all prisoners from voting in UK elections (prisoners on remand can still vote).

As explained in another SPICe blog, in 2005 the European Court of Human Rights held in the Hirst case that this blanket voting ban breached the rules on free elections in the Council of Europe’s European Convention on Human Rights. The Council of Europe is a non-EU intergovernmental organisation with 47 member states which, amongst other things, oversees compliance with the Convention.

The Hirst case was the start of a long political saga in which a series of UK governments consulted on ways to give prisoners the vote, before being either unable or unwilling to change the rules.

The Council of Europe and the UK remained at loggerheads for more than a decade. The issue was only resolved in December 2017 when the Council of Europe accepted new UK proposals. These would give the right to vote to around one hundred prisoners who are already in the community on temporary licence (a form of discretionary parole).

Although the changes proposed were very minimal, the Council of Europe stressed that they were an adequate response to the Hirst case as states should be given a wide degree of discretion in this area. Wider geopolitical motives may, however, also have played a role (see SPICe blog).

Scotland – devolution of the franchise

Up until recently, this area of policy was reserved to Westminster. However, the Scotland Act 2016 gave the Scottish Parliament the right to legislate on who can vote in local government and Scottish Parliament elections.

Inquiry by the Scottish Parliament’s Equalities and Human Rights Committee

The devolution of powers over the franchise led the Scottish Parliament’s Equalities and Human Rights Committee to start an inquiry into prisoner voting in June 2017. The Committee held two evidence sessions with a range of interested parties.

The Committee’s report, published in May 2018, recommended that the Scottish Government legislate to allow all prisoners to vote in local and Scottish Parliament elections (the Committee’s Conservative Members dissented from this conclusion). The report emphasised that consultation with a wide range of stakeholders would be essential.

Scottish Government consultation on prisoner voting

The Scottish Government’s consultation stresses that the current blanket ban, “is no longer fit for purpose as it is not compatible with human rights law”.

However, the Scottish Government does not agree with the recommendation of the Equalities and Human Rights Committee that the ban should be lifted for all Scottish prisoners voting in local government and Scottish Parliament elections. Instead it favours an option (option 1) where the ban would only be lifted for prisoners serving short sentences. It notes that:

“In the light of the range of evidence and arguments … it is neither appropriate, nor necessary to ensure compliance with the ECHR, to enfranchise all prisoners. Having considered the Equalities and Human Rights Committee’s report, the case-law of the ECtHR and international practice, the Scottish Government proposes that the right balance will be struck by enabling prisoners serving short sentences (which would be defined as a sentence of imprisonment for a length of time which is below a specified maximum threshold) to vote.”

The consultation argues that this would be in line with the approach used in a range of other Council of Europe countries as well as being consistent with approaches elsewhere in the Scottish justice system – i.e. treating long term prisoners differently from those who have been given shorter sentences.

It also states that it would, “strike the appropriate balance between the right to vote and the aims of preventing crime.” Views are, however, sought on the length of sentence below which prisoners would be entitled to vote.

The consultation also outlines three other options.

Option 2 would allow courts to impose the loss of the right to vote as a separate sentence. This would mean that a judge could impose disenfranchisement at their discretion when sentencing a person convicted of a crime. The consultation indicates that this approach is used in several Council of Europe states, but has been criticised by the Scottish judiciary on the basis that the key principles on prisoner voting should be set by Parliament and not by judges. The Scottish Government shares this criticism.

Option 3 would involve the disenfranchisement of convicted prisoners being linked to the type, or severity, of the crime committed. The consultation indicates that certain Council of Europe states use this approach for crimes against the state or the electoral system.

Option 4 would allow prisoners to vote for a specified period before the end of their sentence, with the aim of aiding their rehabilitation.

How many prisoners would get the vote?

The consultation estimates that around 1,000 prisoners would be enfranchised if the threshold sentence length for option 1 was 12 months or less. A threshold of six months or less would allow around 480 prisoners to vote. This compares with an average daily prison population (non-remand) of 6,103 for 2017-18 (see Scottish Prison Service figures).

It is worth noting that the Scottish Government intends to extend the current presumption against the courts passing prison sentences of more than three months to 12 months (see Programme for Government 2018-19). If this occurs, it could have an impact on the number of prisoners serving sentences of less than 12 months.

How would prisoners vote?

The consultation explains that prisoners will not be entitled to vote in person. Instead, they will need to register for a postal or proxy vote, in a similar way to remand prisoners.

It also indicates that prisoners will be registered by declaration of local connection to a previous address or local authority, rather than the prison’s address. The consultation explains that this should avoid electoral results being distorted by large numbers of prisoners registering to vote in areas where a prison is situated.

What happens next?

The consultation is open for responses until 8 March 2019. Any provisions giving prisoners the right to vote will be included in a future Electoral Franchise Bill.

Angus Evans

Senior Researcher, Justice Health and Social Affairs Research Unit

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