Scottish Elections (Franchise and Representation) Bill: What does the Bill look like ahead of stage 3?

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This blog looks at the Scottish Elections (Franchise and Representation) Bill examining key issues of debate and the changes made to the Bill at stage 2.

Background to the Bill

In December 2017, the Scottish Government indicated its decision to take forward reform of devolved aspects of electoral law by launching a consultation on electoral reforms for Scottish Local Government and Scottish Parliament elections. The consultation sought views on a number of issues, including:

  • term lengths
  • extending the franchise to all foreign nationals legally resident
  • extending the role of the Electoral Management Board for Scotland
  • access to voting and elected office
  • electronic voting
  • the role and remuneration of Returning Officers
  • boundary reviews.

The Scottish Government’s 2018-19 Programme for Government included a commitment to introduce an Electoral Franchise Bill and an Electoral Reform Bill, with the Franchise Bill to “include provisions to extend the franchise for Scottish Parliament and Local Government elections to protect the franchise for EU citizens.”

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.

The Scottish Elections (Franchise and Representation) Bill was introduced in Parliament on 20 June 2019.

Section 11 of the Scotland Act 2016 provides that a super majority (two-thirds of the total number of MSPs) is required for legislation on certain matters. Those matters include “the 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 super majority requirement at stage 3.

Prisoner voting

Section 4 of the Bill provides that prisoners serving sentences of 12 months or less have the right to vote at both Scottish Parliament and Scottish local government elections.

The Scottish Government’s view, as set out in the Bill’s policy memorandum, is that 12 months is sensible as it “is consistent with the distinction within the Scottish criminal justice system between the sentencing powers of courts of summary jurisdiction and courts of solemn jurisdiction”.

In its stage 1 report, the Standards, Procedures and Public Appointments Committee stated that:

The Committee believes that the blanket ban on prisoner voting is unsustainable as it is at odds with the European Convention on Human Rights. The Committee would like to see the Scottish Government’s policy on prisoner voting driven by principle and evidence. We believe the Scottish Government has settled on an approach which fails to address the central question of what disenfranchisement seeks to achieve.

At stage 2, Jamie Halcro Johnston, Mark Ruskell and Liam McArthur tabled amendments on the issue.

Mr Halcro Johnston’s amendment sought to remove provisions in the Bill to enfranchise prisoners serving sentences of 12 months or under and replace them with provision to enable those released on temporary licence to vote. This amendment echoed similar provision made by the UK Government for prisoners in England.

Mr Ruskell urged members of the committee to enfranchise voters serving sentences of 4 years (48 months) or under.

Mr McArthur’s amendment sought to allow Scottish Ministers to make changes to the length of sentence which would enfranchise a prisoner by secondary legislation. Mr McArthur withdrew his amendment after debate as members of the Committee and the Cabinet Secretary favoured any future changes to the franchise being subject to primary legislation.

The changes proposed by Jamie Halcro Johnston and Mark Ruskell failed to secure the backing of the committee.

Mr Halcro-Johnston has lodged a similar stage 3 amendment (amendment 30). Mr Ruskell has also lodged a stage 3 amendment similar to that lodged at stage 2 to enfranchise prisoners serving sentences of 48 months or less.

Mr McArthur has lodged stage 3 amendments which require Scottish Ministers to review the operation of section 4 of the Bill (the part concerned with prisoner voting) within a year of the first relevant national election (the first Scottish Parliament election where the blanket ban on prisoner voting has been lifted).

Voting by qualifying foreign nationals 

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. Any period of leave to remain entitles a person to register to vote.

This means, for example, that people who have been granted refugee status and those who have been granted asylum will be able to vote, so long as they satisfy the condition of living in Scotland, as well as the conditions which apply to all electors for Scottish elections (for example being over 16 years of age).

Individuals seeking asylum but whose claim is still undetermined, will not be able to vote.

Mark Ruskell lodged amendments at stage 2 which aimed to enfranchise those whose claim was undetermined. The Cabinet Secretary indicated sympathy for the idea but said such a move was not possible because of UK immigration rules. The amendments failed to secure the support of the committee – the first was supported by Mr Ruskell and Mr Findlay. Mr Ruskell did not move amendment 10 after amendment 1 was not agreed to.

Mr Ruskell lodged similar stage 2 amendments (amendments 11 and 12) which sought to allow those with undetermined claims to stand for election at local government elections in Scotland. The Bill provides that “qualifying foreign nationals” with indefinite leave to remain can stand for election. Citizens from the EU are already able to stand as a candidate at local government elections in Scotland and in elections to the Scottish Parliament. Mr Ruskell withdrew these amendments at stage 2 after the Cabinet Secretary committed to having a discussion with the Home Office to look at this issue.

Mr Ruskell has lodged similar stage 3 amendments.

Mr Mason lodged stage 2 amendments (amendments 17 and 18) which sought to require a five year residency requirement before qualifying foreign nationals could vote at Scottish Parliament elections. The committee did not agree these amendments. The result of the division on both was two votes for and five votes against.

Reduction of candidacy age to 16

Mark Ruskell also lodged an amendment at Stage 2 (amendment 3) which sought to give Ministers powers to reduce the candidacy age for local government elections in Scotland and Scottish Parliament elections to 16. The current age is 18, although 16 and 17 year olds are able to vote at Scottish elections.

A number of Committee members expressed their sympathy for the intent of the amendment but felt that the issue was a significant change to the electoral franchise which deserved further consideration.

Withdrawing his amendment, Mr Ruskell said:

If the committee’s view is that the matter would be better dealt with through future primary legislation, rather than the bill as it stands, I will take that on and withdraw amendment 3. It is an area that will continue to provoke a lot of debate and discussion. In advance of any legislation that might be proposed by a future Government, it would be good to see the current Government committing to a consultation and discussion with key stakeholders about how such a change could be introduced and what issues would need to be considered.

The Scottish Elections (Franchise and Representation) Bill stage 3 proceedings are scheduled for 20 February 2020. The Marshalled List of Amendments selected for stage 3 is available as well as the Groupings of Amendments for stage 3.

Sarah Atherton, Senior Researcher, Parliament and Constitution