The Scottish Elections (Franchise and Representation) Bill was introduced in Parliament by Deputy First Minister and Cabinet Secretary for Education and Skills, John Swinney MSP, on 20 June 2019.
The Bill sets out a number of changes to the electoral franchise (who is allowed to vote) and candidacy (who can stand for election) for Scottish elections. “Scottish elections” are those which are used to elect MSPs to the Scottish Parliament and councillors to Scotland’s local authorities.
The Scotland Act 2016 devolved powers over elections to the Scottish Parliament and the franchise for local government elections. The Scottish Government’s 2018-19 Programme for Government included a commitment to introduce an Electoral Franchise Bill.
This blog will look at the Bill’s key provisions.
The Bill is made up of 10 sections which are largely modifications of existing electoral law. Electoral legislation is complex and fragmented with both primary and secondary legislation covering elections.
The Bill’s key provisions:
- extend the electoral franchise for Scottish Parliament and local government elections to include all those with a legal right to live in Scotland (section 1);
- extend candidacy rights for Scottish Parliament and local government elections for foreign nationals (sections 2 and 3), and
- give prisoners on sentences under 12 months the right to vote (section 4).
The Bill relates only to the Scottish elections. Elections to the House of Commons and to the European Parliament remain a specific reservation under Schedule 5, Head B, of the Scotland Act 1998. Any change to the franchise for Scottish elections would not, therefore, affect general elections, which remain a matter reserved to Westminster.
The Referendums (Scotland) Bill, if agreed by the Parliament, would adopt the local government franchise for referendums in Scotland (section 4 Referendums (Scotland) Bill). As such, changes proposed in this Bill may affect the franchise for future referendums held under devolved legislation.
Extension of franchise – foreign nationals
As the law stands, to vote in Scottish elections (both local government and Scottish Parliament) an individual must:
- be registered to vote;
- be 16 or over on the day of the election;
- be a British, Commonwealth or EU citizen;
- be resident at an address in Scotland, and
- not be legally excluded from voting.
The rules around Commonwealth citizens mean, for example, that an individual from Canada can vote in Scottish elections so long as they meet the other requirements set out above.
Individuals who are not EU or Commonwealth citizens, but who may be resident in Scotland, are excluded from the franchise. This means, for example, that an individual from the USA cannot vote.
In December 2017, the Scottish Government launched a consultation on electoral reform. The consultation explored the possibility of extending the voting franchise to “everyone legally resident in Scotland”, including to all those granted asylum or living on a visa, such as non-EU or non-Commonwealth citizens.
The Scottish Government’s analysis of the consultation found that 79% of respondents supported an extension to the franchise.
At Portfolio Questions on 23 May 2018, Ross Greer MSP asked whether the Scottish Government’s proposal to extend the franchise would see refugees and asylum seekers resident in Scotland given the right to vote in Scottish Parliament elections. In response, the Minister for Parliamentary Business, Joe FitzPatrick MSP said:
“Yes. In my view, people who have been welcomed here as refugees and people who are going through the process of seeking asylum should be included. Scotland is a welcoming country and our intention to extend the opportunity to vote to all those who are legally resident in Scotland, whatever their place of birth, should include refugees and asylum seekers.”
Section 1 of the Bill extends the franchise for Scottish elections to include all those with a legal right to live in Scotland. It does so by creating a new category of voter – “qualifying foreign national”.
A qualifying foreign national is someone who does not require leave to enter or remain in the UK under the Immigration Act 1971.
This means that people who have been granted refugee status and those who have been granted asylum will be able to vote. People who are in the UK illegally, or who are seeking asylum but whose claim is still undetermined, will not be able to vote.
The Bill also provides an opportunity to maintain the voting and candidacy rights of EU citizens for Scottish elections when the UK leaves the EU.
In general terms, those able to vote in Scottish elections can stand as candidates. The exception to this is people aged 16 or 17 who are not allowed to stand for election. The Bill does not seek to change the age exception.
The Bill allows all foreign nationals with an indefinite right to live in Scotland to stand as candidates in Scottish elections.
Individuals with a limited right of residence are under the provisions of the Bill able to vote, but not stand for election. This is because, if elected, their term of office could extend beyond the time that they are legally allowed to live in the UK.
The Representation of the People Act 1983 establishes the current legal basis for the disenfranchisement of prisoners in the UK. Section 3 of that Act provides that someone who has been convicted and is detained is legally incapable of voting.
People who are held on remand (awaiting trial but not convicted) and people on parole or home detention curfew are able to vote by post or proxy as they are not ‘detained’.
In 2005, the European Court of Human Rights found that the UK’s blanket ban on prisoner voting was in breach of Article 3 of Protocol 1 of the European Convention on Human Rights.
In December 2018, the Scottish Government launched a consultation on prisoner voting. This followed an inquiry on prisoner voting by the Equalities and Human Rights Committee of the Scottish Parliament which recommended that all prisoners should have the vote.
Section 4 of the Bill provides that prisoners serving sentences of 12 months or less have the right to vote by post or proxy (section 7).
This right will not extend to people who are convicted and sentenced to consecutive or concurrent terms of imprisonment which, when taken together, exceed 12 months.
The Scottish Elections (Franchise and Representation) Bill will require a super-majority (a two-thirds majority of the Scottish Parliament) if it is to be passed by the Parliament.
A full SPICe briefing on the Bill will be available on the SPICe Digital Hub prior to Stage 1.