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Scottish Elections (Franchise and Representation) Bill

Overview

The Bill proposes changes to who is allowed to vote and who can stand for election for Scottish Parliament and local council elections.

Who is allowed to vote

Currently, to vote you must:

  • be registered to vote
  • be 16 years old or older (for Scottish Parliament and local council elections)
  • be a British, Commonwealth or EU Citizen
  • live in Scotland
  • not legally excluded from voting, for example prisoners 

If this Bill is passed, it will also allow anyone who has a legal right to live in Scotland to vote - for example, people who have been granted refugee status or the right to asylum. 

It would allow prisoners serving sentences of 12 months or less to vote. 

Who is allowed to stand for election

The Bill would allow all foreign nationals with permanent residency (indefinite leave to remain) to stand for election. Currently only British, Commonwealth and EU Citizens can stand as candidates.

You can find out more in the Explanatory Notes document that explains the Bill.

Why the Bill was created

The Scotland Act 2016 gave the Scottish Parliament further powers over elections, for example who can vote. 

Using these powers, the Scottish Government is proposing to extend who has the right to vote and the right to stand in elections.

It wants people with a legal right to stay in the country to be able to vote and people with permanent residency (indefinite leave to remain) to be able to stand in elections.

It also wants to bring Scotland in line with human rights law for prisoner voting.

You can find out more in the Policy Memorandum document that explains the Bill.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Becomes an Act

Scottish Elections (Franchise and Representation) Bill passed by a vote of 105 for, 11 against and 3 abstentions. The Bill became an Act on 1 April 2020.

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener

Agenda item 2 is evidence taking on the Scottish Elections (Franchise and Representation) Bill. I am pleased to say that we are joined by Jen Ang, partner/director of JustRight Scotland; Andy Knox, principal solicitor and director at Lanarkshire Community Law Centre; and Lorna Gledhill, policy officer at the Scottish Refugee Council. We have some questions for you, but if there is something that you would like to say other than in response to a specific question, just give me a nod and I will bring you in.

I will kick off with the first question. What is your view on the extent to which the bill’s provisions will support and empower the engagement in elections of people from other countries who live in Scotland?

Jen Ang (JustRight Scotland)

Thank you so much for inviting JustRight Scotland to come and give evidence. I am here on behalf of our rethinking citizenship project, which is about building a broad and inclusive idea of citizenship in Scotland. We welcome initiatives such as the one that is described in the policy memorandum to the bill, because it is about supporting and empowering the engagement in elections of people who have chosen to make Scotland their home.

It is clear to us that people who choose to make Scotland their home and who contribute to our society as valued members should have a say on the laws that govern us all. Recognising that by extending the right to vote and the right to serve as elected members in our political institutions is a key way of empowering voices that we know have previously been marginalised and underrepresented.

There are some areas in which we feel that the bill could have gone further in meeting that goal, but maybe you would like me to keep that for later.

The Convener

You can say a wee bit about that now and we will probably come back to it later. Perhaps you could give us a small taster of what you intend to say.

Jen Ang

Of course. I will highlight just two areas, the first of which relates to the restriction on the right to stand for election with respect to people who have indefinite leave to remain. I would like to share some examples of how that could be rethought or how some of the reasons for the restriction might be dealt with in other ways. The second area, which my colleague Lorna Gledhill will probably say more about, relates to the fact that the bill stops short of extending the franchise to asylum seekers. I would like to give a little more information in order to clarify the reasoning behind and the consistency of that position.

The Convener

Thank you. We will come on to those issues, but it is useful to have an idea of the direction of your thinking.

Would anyone else like to respond to my question about the extent to which the bill will support and empower engagement in elections?

Andy Knox (Lanarkshire Community Law Centre)

I thank the committee very much for inviting me along.

Lanarkshire Community Law Centre receives funding via Citizens Advice Scotland to assist European Union citizens in Scotland in applying for settlement to regularise their immigration status in the country. It is against the background of that scheme that I am giving evidence today.

I broadly welcome the bill—I should point out that I am speaking for Lanarkshire Community Law Centre, not CAS—which I think is a way to strengthen migrants’ franchise purchase in Scotland. I have some more detailed comments to make on certain technical aspects of the bill, but I might reserve those for later.

Lorna Gledhill (Scottish Refugee Council)

Thank you—that is your third “thank you”—for having us here. I am from the Scottish Refugee Council. We work to support people who are seeking asylum and refugees who find themselves here in Scotland in rebuilding their lives.

Much like Jen Ang and Andy Knox, we whole-heartedly welcome the proposed legislation. It addresses a long-standing democratic deficit, whereby long-term residents in Scotland do not have a say on the areas that matter to them. They are long-standing members of the community; they should be able to participate in elections like the rest of us. As a baseline, we are very supportive of the bill.

However, there are areas in which we, like Jen Ang, thought that the bill could go a bit further. We have questions about the explicit exclusion from the franchise of people who are in the asylum process. We also have broader questions about whether the funding associated with the bill for political education and awareness raising on voting rights, as set out in the financial memorandum, will be sufficient to achieve the bill’s overarching aim to fully empower and engage new communities in voting and standing for election.

The Convener

So you are looking at the significance of the bill in terms of citizenship and bringing the population together on these important issues.

Neil Findlay

I want to pick up on your point about voting education, which is critical. When I was a councillor in West Lothian, we had a team that was involved in voting education in the run-up to any election. The team won various awards for its work, particularly on youth engagement in schools and with young people in colleges. However, all such teams have gone in the cull of local government jobs. Have you found that, around the country, that type of work, which was part of the youth work or community education work that local government did, no longer exists?

Lorna Gledhill

I can speak only about the sector in which I work. The organisations that support people who are refugees or in the asylum system are chronically underfunded. There is much more need than there is support available, which is an issue in Scotland and the rest of the United Kingdom. Things that sit around the edges of people’s lives and which are not considered to be super-critical, such as voting or political education, fall to the side.

However, with this really exciting, forward-thinking, leading piece of proposed legislation, the moment of enfranchisement and involving people in political systems that they have previously been actively excluded from is the critical point at which to talk to people about the democratic systems in Scotland, how they can register to vote and what their vote means.

Particularly for people who have gone through the asylum system or who are refugees, there might be additional reasons why they are not so keen on political structures. Their experiences in their countries of origin, of flight and of the asylum system here in the UK can give people reasons to not necessarily trust the structures and systems around them. Not only is there a broad need for political education and for work on information and education about voting rights and registration across the whole population of people who would be newly enfranchised, but there is targeted need in certain communities. That is the case not exclusively for asylum seekers and refugees but for groups that might have felt marginalised in the past.

Mark Ruskell (Mid Scotland and Fife) (Green)

Are there particular areas of Scotland in which there are well-developed partnership approaches between non-governmental organisations and councils to working with asylum seekers, or are there serious gaps?

Lorna Gledhill

Due to the way in which asylum dispersal works, the large majority of people who have come through the asylum system are in Glasgow, and the way in which the sector, local authorities, elected members and others work together in Glasgow is great.

When looking at particular aspects of the franchise, there is good learning that could be taken from other countries. Doing some quick Google searches, we can find some really great and accessible information about how voting rights work in New Zealand. There are downloadable, freely accessible educational resources for people to talk young people or adults in education through what voting looks like there. Other countries have expanded the franchise in that way, so it might be interesting to look at examples from elsewhere.

I do not know whether other members of the panel have broader experiences of Scotland beyond Glasgow.

Jen Ang

The Scottish Refugee Council’s focus is very much on asylum seekers and refugees, who are a subset of the larger group of people who migrate to Scotland. What is being looked at is extending the franchise to all people who are lawfully resident in Scotland and retaining the promise of the franchise that the European citizens already hold.

09:45  



I support Lorna Gledhill’s proposal that the extension should come with a programme of education; I see this as a positive opportunity to refresh education for all our voters by rewriting it along the lines of inclusivity that New Zealand has taken. Putting that out through communities and local electoral registration officers would create a more cohesive sense of who participates in democracy at local level.

There is a large proportion of migrants—including European citizens and people who are lawfully resident—in areas that are not traditionally inhabited by asylum seekers, such as Aberdeen, Inverness, Dundee, Stirling and Edinburgh. We know that there is tension there, with European citizens feeling left out of the political processes, so the timing of the extension and the training around it could be a positive message both for the individuals who gain the franchise and for the local authorities that will take in the message as they have to adjust their processes.

Andy Knox

I think that the policy memorandum says that 65,000 nationals who are currently not entitled would have the franchise. I reaffirm Jen Ang’s observations about the spread of support throughout the country; 50 per cent of EU nationals are in Glasgow, Edinburgh, Aberdeen and Dundee. Those who are in Aberdeen, Dundee and Inverness do not have the access to legal advice that is available much more so in Glasgow and, to a large extent, in Edinburgh; it is needed in the north-east and the Highlands and Islands, and funding should be directed to those areas.

The Convener

Thank you for those insightful comments.

Maureen Watt (Aberdeen South and North Kincardine) (SNP)

I take your point that there is not the same access to legal advice, although citizens advice bureaux are pretty good in Aberdeen—I cannot speak for Inverness. What is the need for legal advice with regard to the bill?

Andy Knox

The need is for advice about entitlement to register to vote. Sometimes, migrants fear engagement about the franchise and distrust the system. The bill will give an opportunity to people who have not been able to vote or even stand before. Also, it is important that advice is available so that people understand their rights.

Maureen Watt

Okay; we will come back to that, I think.

Tom Mason (North East Scotland) (Con)

I welcome the panel. The bill takes a radical approach with regard to giving voting rights for residency as opposed to citizenship and extending that right across the board to all comers, which goes way beyond the present Commonwealth and EU citizens. What are the panel’s views about that approach? What are the downsides? The witnesses from the refugee side have been very positive, but there are some negatives in there. There are always unintended consequences.

Jen Ang

You are right in thinking that, because of the context in which we work, I see the bill as overwhelmingly positive. It is important to remember that there is international precedent in extending the franchise in regional and national elections. I see it as a really positive statement on the part of the Scottish Parliament that it is using its powers to extend the franchise in this way. The fact that it has not been done before in the UK does not indicate that it is a terrible idea.

As a lawyer, I understand that there might be some uneasiness. In Scotland, we think about the distinction between reserved and devolved matters, and this feels uneasy because it is something new and different. However, the bill falls firmly within the devolved powers, and it moves Scotland ahead; the provisions are in line with the position that has been taken in countries such as Ireland and New Zealand.

The bill is about empowering people to vote and stand for election when they choose to make Scotland their home. Scotland does not have the power to confer legal residence or citizenship on people in the UK, but it has power over how it treats people who choose to come here. It exercises that in other areas, too. We have a slightly different approach to access to the national health service and a slightly different, broader and more generous approach to how we educate children. The extension of the franchise is consistent with other differences between Scotland and England.

People might think that there is a downside. I suppose that the criticism might be that we have done something different from what is happening in the other nations of the United Kingdom. However, what we have done is only to exercise our devolved powers, which is no different from a city or a local authority introducing a local programme because it feels that its citizens should benefit or be assessed in a different way. I am not sure that that squarely answers your question, but that is how I would explain it to someone if they were thinking about it critically.

Andy Knox

From a purely technical perspective, there is an inherent tension between the provisions in the bill that seek to ensure that EU citizens will continue to have rights post-Brexit, if Brexit happens, and the EU settlement scheme. If the scheme works out as planned over the two-year period, EU citizens who do not register with it will lose their free movement rights. There will come a point when they will not have leave to remain in the UK.

Tom Mason

Do you see a difference between the franchise at local government level and the franchise at national level? Local government is a creature of statute of the Scottish Government, and the bill could result in quite substantial changes in the law at national level, which may or may not affect the local government level.

Andy Knox

I could not comment on that. Jen?

Jen Ang

I suppose that I do not see a difference. Obviously, different powers are exercised between those levels, but there is a role in giving people a voice at both levels. If we think about how migrant communities might have common interests across Scotland, just as they might have common interests in a local authority, we can see that it is consistent to extend the franchise at the national level. As Lorna Gledhill said, there is a high concentration of asylum seekers and refugees in Glasgow, but that is not to say that there are not—because there definitely are—asylum seekers and refugees dispersed in small numbers across other parts of Scotland, for example in the very far north or the east. It is important to have that strong voice participating in national government.

I know that one of the questions that the committee looked at was about retaining and future proofing the franchise for European Union citizens. Andy Knox pointed out that the continuing uncertainty around Brexit and the rights of European citizens raises a question about how the system will operate. This is a very arcane area of law—we are very excited about it, even if not many other people are—but the drafting that extends the franchise to Commonwealth citizens is very similar to that which extends it to European Union citizens. There are perceived difficulties relating to how the status of individuals might change following decisions that are made elsewhere by the Home Office and Westminster, but the dynamic already exists. As far as I can tell, it has not been a serious issue thus far; it has not come to our attention. It is right to point out the tension, but we should not be too cautious or concerned, because that is how the system already operates.

All that we are doing is levelling an inequality. The franchise is available to British citizens, Commonwealth citizens and European citizens who are lawfully resident. The only people who are not covered are people from other countries, such as the United States—Canadians are covered, but not Americans. The bill has been drafted to make the system more equal.

The Convener

Thank you very much for that good explanation.

Maureen Watt has a couple of questions on the number of people who will be enfranchised by the bill’s provisions.

Maureen Watt

Andy Knox mentioned the figure of 65,000 but, according to the 2011 census, the figure is 55,000. Given Brexit and everything else, we are not sure exactly what the figure is. What is your estimate of the figure? Is it a good figure to base things on?

Andy Knox

I do not know, because I do not have any empirical data. I think that the latest national reported figures that we have come from the 2011 census. As an indication for the committee, prior to the introduction of the EU settlement scheme, it was estimated that approximately 20,000 EU citizens were resident in Scotland, but approximately 30,000 EU citizens have registered through the scheme—that is an overshoot of 10,000.

Maureen Watt

Will it make a big difference if we base the number on the 2011 census? Do we need a more up-to-date figure?

Andy Knox

It would be useful to have a more up-to-date figure.

Lorna Gledhill

To clarify, my understanding is that the estimate in the bill documentation is 55,000 newly enfranchised voters, which would not necessarily include EU nationals, because they are already entitled to vote. The bill is about ensuring that that right continues.

The figure of 55,000 newly enfranchised voters is probably lower than what the number is in reality. Since the 2011 census, a bunch of folk have arrived, including the 2,500 resettled refugees. It would be ideal to have a more accurate number, but whether such a number exists is another question. However, the number is likely to be a bit higher than 55,000.

Andy Knox

The data could be sourced from the Secretary of State for the Home Department. The Home Office will have figures for the number of people resident in Scotland who have temporary leave to remain. I suppose that we could not account for people moving within the United Kingdom, but the Home Office might be a good place to start looking for the figures.

Maureen Watt

I suppose that we are saying that other sources of data could be used to bring a 2011 figure up to date, prior to the next census in 2021.

Andy Knox

Yes.

The Convener

Tom Mason’s second question has partly been answered, but I invite him to ask it.

10:00  



Tom Mason

I think that I have covered the second one. It was to do with the extension of the franchise beyond EU and Commonwealth citizens and the general process of extending the franchise. I think that I got the answers.

The Convener

Thank you very much for covering that already.

We will move on. Mark Ruskell has questions on outstanding asylum claims and so on.

Mark Ruskell

I would like to ask about evidence of how extending the franchise helps with integration, particularly for marginalised people such as asylum seekers and refugees, for whom there are considerable challenges. What evidence is there that extending the franchise has a beneficial effect?

Lorna Gledhill

Political integration is a core element of a broader strategy around integration. It sits well with the positive and welcoming approach that Scotland has already taken with strategies on integrating refugees and asylum seekers.

The core principle of the new Scots strategy is the idea of integration from a person’s day of arrival and not from the day on which they are granted status. Granting voting rights to people who are in the asylum system should not necessarily be linked to their getting leave to remain. If the logic is that a person’s integration starts on their day of arrival, and if we see political participation and integration as part of that, a person’s voting rights should not be delayed until they are granted leave to remain in the country.

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. As part of our preparations for our written evidence and for today’s evidence session, I went around and spoke to different refugee communities, including people who are still in the asylum system and people who have leave to remain. They told me of their sense that when they are in the asylum system, day-to-day life is full of exclusions: things that they cannot do, things that they are unable to do and things that they feel that they are not welcome to take part in. Specific exclusion from the franchise would be just another form of that.

As I said, the legislation is positive and progressive and has the potential to enfranchise that group. We would like to think a bit more about whether that is possible within the remit of the legislation. I recognise that I did not give the committee empirical evidence, but that is how we see political participation within the broader world of integration.

Jen Ang

I will take Lorna Gledhill’s example and draw it back to our common experience. The provisions for Commonwealth and European citizens that have operated for some time have meant that a number of European citizens who were entitled to arrive in the UK as students or workers registered to vote soon after they arrived and went on to become long-term members of our communities, including standing for election and serving ably in local and national government. Perhaps a piece of empirical work has not been done on that in Scotland.

We can look at the example as a positive one in which the system has worked up until now, and we can reflect on whether it has positively contributed to the inclusion of those communities in our work, particularly in relation to the stronger voices of those politicians who have been more forceful in bringing the experiences of migrant communities to public functions.

Mark Ruskell

Is there evidence of those benefits from other countries that have extended the franchise? Has that been studied?

Lorna Gledhill

A country that has extended the franchise to include people who are still in the asylum system is Ireland, where, for both voting and standing in local elections, the only test is whether a person is ordinarily resident in Ireland. I am not aware of any in-depth analysis of the impact that that has had. However, from informal conversations with colleagues over there, I get the sense that people think that it just works.

There has been no real criticism from within the broader communities of people living in Ireland. A handful of folk in the asylum system stood for public office in the most recent elections, which, if I remember rightly, were this year. None of them was successful but it was a powerful thing for the community of people in the asylum system in Ireland. There was a sense of being seen, recognised and heard.

Although we do not have written academic evidence on this, it is obvious that if people are seen to be taking office or seen to be participating in political systems, that is an indication of being present and being part of something, rather than being excluded.

To go back to what people are telling me here in Scotland, they see that the right to vote is a way for them to indicate that they are here, that they mean to be here and that they want to be part of the community. There is softer evidence there.

Andy Knox

Perhaps I can offer a brief legal analysis. As a matter of law, provided that the UK remains a signatory to the European convention on human rights, an individual’s article 8 right to a private and family life will be intrinsically strengthened by engaging with the voting process. When consideration is being given to whether people should be granted indefinite leave to remain or further leave to remain, their position will be stronger as a matter of law if they are engaging with the voting process.

Mark Ruskell

Do you see any practical challenges for voter registration, particularly for refugees, around what might be envisaged in terms of documentation and that side of things?

Lorna Gledhill

The documentation that accompanies the bill envisages that there will be no significant changes to voter registration as a consequence of the legislation. The existing procedures will carry through and people who are newly enfranchised will be expected to follow those procedures to register to vote.

It has been a long time since I registered, but my understanding is that registering to vote is a declaratory process—you say X, Y and Z and then it is up to the electoral registration officers to ask you for further information if there are things that they need to clarify. If you cannot provide certain things, such as proof of nationality, a national insurance number or proof of address, it makes it more likely that the officers will come back to you for further evidence. That is where we can foresee some difficulties, particularly for refugees who have been newly granted residency in Scotland. There have been reports from the Red Cross about delays to people receiving their biometric residence card, which has their national insurance number on it, after they get their leave to remain. If someone does not have that when they register to vote, they might be asked by the electoral registration officer to give more information.

Similarly, if someone is in temporary accommodation, for example, and does not have proof of address, that might make it slightly more difficult to register. However, some really good work has been done on supporting people who are homeless to register to vote. There is a different registration form for people who do not have a permanent address, which is a really positive move.

We would ask the Parliament and the Government to consider the additional barriers that the newly enfranchised communities, including people who are refugees, might face when registering to vote and to consider whether a piece of work—similar to the work that has been done with homeless people—needs to be done on that.

We would also advise that we are open to working with local government to help electoral registration officers understand what kind of documentation people might have, so that we can pre-empt those barriers and help people to overcome them, rather than wait for them to arise. That is something that we are hoping that we can do if the legislation becomes law.

Mark Ruskell

Have there been any early discussions with the Convention of Scottish Local Authorities or electoral registration officers—or whoever governs them—on how this might work, or is it still early days?

Lorna Gledhill

It is still early days. There are considerations about how people who are still in the asylum system would register to vote—if the legislation is interpreted expansively to include those people, as we would like—because they will not have a national insurance number. We would have to work that through. I am not suggesting that it would be an insurmountable barrier, but it would be a different process. However, we have had productive and positive meetings with the bill team and COSLA and we have talked about working with electoral registration officers, which would happen if and when the legislation becomes law.

Mark Ruskell

I have a final question, which you have probably already partly answered. Are there any circumstances under which people should be required to have lived in Scotland for a certain period before they are allowed to vote? Lorna Gledhill said that enfranchisement in society should be from day one.

Lorna Gledhill

Yes, for sure.

Mark Ruskell

Can you see any circumstances in which there should be a residency requirement?

Jen Ang

We discussed that. It is more a practical question than one of principle. We also thought that perhaps, in practice, it does not pose a difficulty. Again, that is based on looking at how the franchise operates at the moment. The questions should be: “Would you impose a residency requirement? If so, why would you? On what basis would we set a limit?”

Some core timescales are built into the process. In order to be eligible to vote in the next election, people need to have registered by a set time before that. Beyond that, the practical problem of imposing a timescale is that you push the burden back to the registration authority to request evidence and assess it. Given that, at the moment, as Lorna Gledhill set out, it is a declaratory process, on what basis would we do that? In requiring people to declare, we already require them, on their honour, to tell us their nationality and that they believe they are eligible to vote.

A package of voter education, extending to a good discussion with electoral registration officers about eligibility requirements, along with the declaratory process, should be sufficient. Otherwise, it would become unnecessarily complicated. If you were to complicate it, you would need to ask why. What would be the benefit of that extra period?

Andy Knox

I direct the committee to paragraph 46 of the policy memorandum, on page 9, which sets out the intention. It states:

“Newly enfranchised individuals under this policy would be required, as is currently the case for all voters, to prove residency in a particular local authority area in order to register to vote in Scotland. This will ensure that, in most cases, only those with a permanent address in Scotland will be able to vote and that temporary visitors and tourists will not be able to register. EROs will assess residence as they do at present for existing voters.”

On the face of it, a person with temporary leave as a visitor or tourist would have the right to vote. However, we would hope that EROs would have sufficient training to establish that such people did not have a permanent address in the country and that therefore registration would not be appropriate.

Tom Mason

To follow on from that, if we were to extend the franchise, I would be worried about the nature of the responsibilities and obligations on the people who got the franchise. Otherwise, we would have two classes of citizens—those who had voting rights who were just residents, and those who had voting rights who were nationals. They would have different responsibilities and obligations.

10:15  



Jen Ang

If we were to extend the franchise, the sole responsibility would be to exercise the vote responsibly—to vote in an informed way.

Let us stand back and think about rights and obligations and the state and citizenship. At the moment, people who are not British citizens and come to Scotland have, by virtue of being here, a range of obligations to Scotland. For one thing, they are subject to our laws. Simply by appearing in our jurisdiction, they have obligations around standards of behaviour and conduct, regardless of whether they understand or are informed by them. The franchise—the right to vote—is the extension of an additional right to people who are already obeying our laws.

Another way of thinking about the right to vote is that many of those people might be working and paying taxes, and thereby contributing to economic production in the country, without having the right to have a say on the conduct of matters. Equally, they might be providing their time and resource in our communities by volunteering—for example, they might be keeping the street tidy or carrying out caring responsibilities in our communities—without having the right to vote. It is not really a case of thinking about what additional obligations there would be if we were to extend the right to vote, because people who contribute to our communities are already under obligations.

There is an inconsistency. Some individuals already have the right to vote by virtue of their nationality—they might happen to be British or Commonwealth citizens, or Europeans. It is a case of levelling things up and addressing the inequality for those who do not have that right. The simple proposal is that the rights and obligations should be rebalanced.

The Convener

Is that okay, Tom?

Tom Mason

Not entirely, but I will leave it there.

The Convener

Neil Findlay wants to come in.

Neil Findlay

This is probably more relevant to the UK Parliament, but let us look at the tiny majorities that some politicians are sitting on. Is there an opportunity for the system to be manipulated, even temporarily, in order to manipulate the results in particular seats? It would take only a couple of people registering temporarily in North East Fife for the incumbent not to be there any longer.

Andy Knox

That is an interesting point. I guess that the potential for exploiting that already exists. I do not think that it would be any easier for non-British citizens—

Neil Findlay

I am not saying that at all; I am just talking about the principle of being able to register without there being a residency qualification of a particular period of time that has to be met.

Lorna Gledhill

That is already the case for lots of nationals. I agree that there is probably no more reason for there to be manipulation as a consequence of extending the franchise in this way than there is at the moment. It would be sad not to do something so positive just to avoid that very unlikely scenario.

Andy Knox

The Electoral Commission would, we hope, be all over that.

Tom Mason

Hope is a poor bedfellow. [Laughter.]

The Convener

We have covered a great deal of ground on the issue of support for new voters, particularly those who have recently arrived in Scotland. This might be one of the practicalities that will have to be dealt with once the bill has been passed, but what about people who do not have a working knowledge of English? I am thinking about explanations of how to go about registering and so on. Does anything require to be done by way of planning in that respect?

Lorna Gledhill

The baseline is that any documentation that is produced to support the extension of the franchise must be made accessible—and I mean that in its broadest sense. It is not just a language issue; it is also about where the information is made available. There are two stages, the first of which is broader political education, which is about how particular systems work in Scotland, what vote for X means and what vote for Y means, and about getting an understanding of the different political parties. Then there is getting an understanding of how to register to vote and how to go about voting.

The bill will give a one-off opportunity when it becomes law, when a bunch of folk will be enfranchised overnight. A longer-term piece of work then needs to be embedded in the other things that we do in schools, adult education and the SRC’s broader integration work.

All those interventions need to be accessible. For example, information needs to be translated into relevant languages and meetings need to be held where people are based. Over the past couple of weeks, communities have said to me a lot that although documentation is great, face-to-face conversations are the best, which means going into communities and speaking directly to people. Peer education also has a role; in our case, that includes working in refugee community organisations, upskilling their representatives on how the system works and how to register to vote and supporting them to go out into their communities to help people engage.

That work needs resource, funding and support, and, unfortunately, those things are not necessarily budgeted for in the bill. The work needs to be a core part of how we make the legislation meaningful to people. The worst-case scenario would be to enfranchise a bunch of people without that really having any effect. Language is one consideration, but other things should be considered.

The Convener

I think that I have hijacked the beginning of a question from Maureen Watt, but she might want to go a wee bit further on that.

Maureen Watt

What has been said is key to making sure that the bill is not just a piece of legislation and that people get engaged in the political system. Will material need to be written in various languages?

I liked Lorna Gledhill’s idea of peer support. I will draw a comparison with getting people from ethnic communities to go on the organ donation register, which was very much about training up peers to speak to their communities. Not everybody will engage with the Scottish Refugee Council, so it is about involving a whole bunch of organisations that come together—at melas, for example. The mela in Aberdeen a week past Sunday was great, with thousands of people attending—I do not know whether Tom Mason was there. There could be a stand at such events where people who might not engage with other organisations come together. However, their peers have to be on the stand. Organisations should get funding to have a stall at a mela to spread the word that people are welcome and that they are part of the electoral system. As has been said, they might not engage with official organisations because of cultural issues.

Lorna Gledhill

There is a role for everyone in making this exciting legislation work in practice—that view has come from communities as well. They have a sense that it is their responsibility to get their heads around the issue and organisations including ours would support them to do that. Lots of other people can provide educational opportunities around the process and registering to vote. I take your point that there are other collaborative spaces in which such interventions can be meaningful. I think that we are in agreement on that, to an extent.

My point is that, at the moment, there is no consideration of where the necessary money will come from—or where it will go. We would like to have that conversation, not so that we take all the money for ourselves but so that it is put in the places where it is most necessary.

Maureen Watt

I do not know how the budgeting was done for the figure that was arrived at, although a quarter of a million pounds seems a hell of a lot of money. However, we are talking about encouraging 55,000, or even 60,000-plus, people to vote. It would be a case of organisations, such as community groups from different cultures, rather than big and well-established organisations such as yours—no offence intended—getting the money to put the message across.

Another issue is that the people who meet voters on the doorstep are, in the main, representatives of political parties. We are the ones who knock on doors and encourage people to vote. We are the ones on the front line, so what education should there be for political parties and their activists about getting the message across?

Lorna Gledhill

There is a step before people open their door and have a conversation with somebody on their doorstep, as they first need to have a decent understanding about how the structures work. However, I take your point that some collaborative work will need to be done with politicians, who will be engaging with what is, in effect, a new community of voters. Perhaps some of the information about accessibility and documentation might be helpful for elected members when they are door-knocking and canvassing.

Maureen Watt

It seems to me that, across the parties, we will need to get in touch with local community groups.

Mark Ruskell

It is a challenge. I was recently door-knocking in Clackmannanshire and came across a Syrian family. There were lots of smiles all around, but it was difficult for us to engage with one another, so there is clearly more work to be done.

Should there be financial support for candidates from particularly vulnerable refugee or asylum seeker communities to stand for election? We see that kind of support for candidates with disabilities to stand in elections. Could there be a similar approach here—perhaps to help with language needs or political education—to level the playing field?

Jen Ang

[Interruption.] I was about to defer to Lorna. I want to raise one point, then she might have further comments to make about additional funding.

To the extent that there are programmes to promote participation in our political processes by encouraging candidates to stand, which is about redressing inequalities, I absolutely support that.

One of the disappointing aspects of the drafting of the bill, which I mentioned at the start of the meeting—I realise that we are about to finish—is that the only people who would have the right to stand are individuals with indefinite leave to remain, which excludes refugees and asylum seekers. As the bill is drafted, someone from the Syrian refugee family that has received the promise that they can live here for five years and then apply for indefinite leave to remain, could not stand for election. I will be happy to follow up my point in writing, if that would be helpful. I queried the consistency of and the reasoning for that, and it came back to, “I’m not sure why we did that.” My understanding is that there is a concern that if someone had a limited period of leave—let us say that their leave was going to expire in a year and the period to which they could be elected would be a two-year term—there would be something inconsistent or odd about allowing them to be elected for a period longer than that for which they might lawfully be in the UK.

I point out, however, that, as immigration lawyers know, aside from refugee status, the longest period for which the Home Office now grants leave is two and a half years, and that is unusual. However, people will have their two and a half years of leave to remain renewed for a period of up to 10 years, at which point they achieve the right to stay here permanently. People might have lived here lawfully for seven or nine years and have every intention of settling here—and we, as immigration lawyers, would agree that they are highly likely to do so—but if the right to stand for election is confined to those who are already permanently resident, that former group of people would be excluded from participating.

I wonder how principled that is. I thought that it would be simpler to say that if someone was in office and became unlawfully resident, they would be required to resign on that basis. Just as there are other life events that cause people who are elected to not be able to continue in office, becoming unlawfully resident could just disqualify them from holding office.

Someone asked what would happen when a person’s leave expired and they were waiting for further leave. Technically, if your leave expires and you apply for further leave, you are still lawfully resident—you can continue to stay. You can continue to work, for example. That is how it works in employment law. The bill thus creates inconsistency with how employment law works.

Someone being required to stop an office for a period then come back is no different from a period of illness or maternity leave. If we think about it like that, some of the concerns that have been raised are unfounded. That was a long answer to your question, but I wanted to make it clear that if you leave the bill as it is, refugees will not be entitled to stand.

10:30  



Mark Ruskell

Do you mean in the event of a by-election when there was only one year left of a council term?

Jen Ang

The prohibition applies if you have limited leave; it is not consistent with the treatment of European candidates, either. Under European freedom of movement law, there is no period of leave, so all the European citizens currently in office are not prohibited. However, parallel provisions have not been applied in the non-European context.

The Convener

We move on to the financial memorandum.

Neil Findlay

I used to teach modern studies, and the Scottish electoral system is so complex that I would hesitate to ask the panel to explain it concisely because you might ask us to explain it concisely and we would probably also flounder. I agree 100 per cent with Lorna Gledhill that face-to-face engagement is really important. It means that people can ask questions—you do not get that from an information sheet.

There is a £280,000 one-off payment to the electoral commission, of which £200,000 will be for public awareness. That is only £6,000 per local authority. If we take it to the level of each voter, and the target is 55,000 voters, we are talking about just over three quid a voter, which ain’t a big amount. Is this a well-meaning announcement that will flounder on the basis that not enough money is being put behind it to engage the people who we allegedly want to engage?

Lorna Gledhill

That is a concern that we have already talked about. We have had a conversation about adequate funding, but there is also the issue of available resources. That is why I would direct the committee to look at what New Zealand has produced. Although it is not a face-to-face intervention, resources are provided to facilitate face-to-face interventions. There are downloadable session plans for working with communities on how voting systems work in that country. Financially, that is quite a light touch intervention that could quite easily be used by smaller community groups to work face to face with individuals.

We do not think that the £200,000 for awareness raising is sufficient, but there are interventions that could be made that are not hugely expensive but that would facilitate conversations about political education and voting rights. In the long term, we would like political education like this to be embedded elsewhere in work and interventions already happening in certain communities. There are ways that we can pull that into existing interactions that we have with refugee communities and people in the asylum system. Additionality costs a bit of money, though. That is speaking not just for us but for other people who will be engaging with those communities.

That £200,000 is for the Electoral Commission to do information and awareness-raising work. I would be interested to know what that will be. It is not loads of money, but it can be used in different ways. I would be slightly worried if all the money was used on paper resources or online interventions. I would be interested to hear the Electoral Commission’s pitch for engaging new voters.

Neil Findlay

I am new to the committee, so I am picking up on a number of points. Will any of the money that is proposed be allocated to local government, or will it all go to the Electoral Commission?

Lorna Gledhill

There is some money in the financial memorandum that will go to local government, but my understanding is that that money is not for awareness-raising work; it is more to help with the practicalities of administering new voters through voter registration and on voting day.

Neil Findlay

You have mentioned downloadable resources and such like. I think that it is inevitable that there will be a piecemeal and patchy approach. That might work for some organisations in some areas but, given the list of priorities that councils have, I think that doing that work will fall way down the list. I am concerned that, if the objectives are to be achieved, the financing just ain’t going to cut it.

The Convener

Do I see agreement coming from the panel?

Andy Knox

I am not saying that the sum is sufficient—I give that caveat—but, putting to one side Mark Ruskell’s example of the Syrian family in Clackmannanshire, we can consider people in Scotland with temporary leave to remain who are not asylum seekers or here with humanitarian protection. Given the structure of UK immigration law, such migrants are often highly educated people who might be engaged in the political process and not need assistance. From my experience, I do not think that we will need to inform that group of people of their rights, because they will know. Therefore, the funding should definitely be targeted at the groups that committee members have spoken about.

The Convener

We move on to the right of EU citizens to be granted leave to remain.

Mark Ruskell

The obvious question is: can we be sure that all EU citizens will be granted the right to remain in the UK?

Jen Ang

No, we cannot be sure of that, because the proposal that has come from the political settlement in Westminster is a system whereby European citizens require to apply to secure their right to remain here. There is an end date to that entitlement, so there is an end date to the application process. People who do not apply for, or successfully receive, the leave to remain beyond the end date will become illegally resident and subject to the hostile environment. That is the current proposal.

Mark Ruskell

We received evidence that 50,000 EU citizens have applied through the settled status scheme, but that that is only a quarter of the number of EU citizens who probably live in Scotland. How do we ensure that all EU citizens continue to have an uninterrupted right to vote?

Andy Knox

That will be very difficult, because the Secretary of State for the Home Department has broad powers to introduce statutory instruments that could substantially change the “Immigration Rules Appendix EU”. Just 48 hours ago, a statement of substantial changes was tabled. Such changes do not need to be made through primary legislation, so they do not require parliamentary scrutiny. The parameters of when somebody should be granted leave to remain, or when they will qualify for indefinite leave to remain, can be subject to change at quite short notice. The Scottish Government’s powers in that regard are pretty limited, because it is a reserved matter.

Jen Ang

Again, to highlight those reserved versus devolved areas of work, the Scottish Government has been vocal in articulating to European people in Scotland its intention to continue to welcome Europeans to Scotland. As you will be aware—I think that it was announced again in the latest programme for Government—the Scottish Government puts money towards information and advice to assist the European citizens who are here now to engage with the settlement scheme process. The Scottish Government also engages with Westminster on the future rules for settlement.

That money has funded the European citizens’ rights project; it has funded some of the outreach through the citizens advice bureaux, to which Andy Knox’s project is linked. To come back to Maureen Watt’s point, I continue to advocate for that money to go to local community organisations outside the central belt in particular and to organisations that work primarily with European citizens such as the Polish and Spanish organisations. It is all about getting people the face-to-face support that they need to complete the application process that has been mandated by the Westminster Government.

We cannot make guarantees, but the Scottish Government will be carrying out work in the next two years to ensure that where rights are available, people get the support that they need in order to achieve those rights, particularly the more vulnerable and at-risk European citizens.

The Convener

Thank you. For the benefit of the Official Report, I acknowledge that committee member Jamie Halcro Johnston has arrived. Jamie informed us that he would be delayed but he is with us now.

I am mindful of the short time that we have left. Do the guests have any other views on the proposal to allow foreign nationals with an indefinite right to remain in the UK to stand as candidates in Scottish elections and hold office following those elections? Is there anything specific that you want to add to what you have already given us?

Jen Ang

I thought that we had to finish earlier, so I think that I managed to cover that point earlier—

The Convener

Yes, you covered it pretty well.

Jen Ang

I think that it is inconsistent. I understand that the immigration rules in this interaction are very arcane. I would be more than happy to explain objectively what I mean another time, by providing examples of where it seems inconsistent.

The Convener

That is very helpful. I thank all three of our guests—Jen Ang, Lorna Gledhill and Andy Knox—for coming along. You engaged well with the committee.

That brings us to the end of the public part of the meeting.

10:43 Meeting continued in private until 10:59.  



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Second meeting transcript

The Convener

Agenda item 2 is evidence on the Scottish Elections (Franchise and Representation) Bill. Joining us today are Professor Antony Duff, board member, Howard League Scotland; Michael Clancy, director of law reform, Law Society of Scotland; Thomas Halpin, chief executive, Sacro; and Cathy Asante, legal officer, Scottish Human Rights Commission.

I will give each of our guests a couple of minutes—which they do not have to take—to give us a wee preamble about their position. We will then take questions from members.

Cathy Asante (Scottish Human Rights Commission)

Thank you for inviting us to give evidence. In the simplest sense, the issue can be looked at as a need to ensure compliance with article 3 of protocol 1 of the European convention on human rights—a matter that has been outstanding since 2004. There is no doubt that the law needs to be amended to give some prisoners the right to vote in order to ensure compliance with the ECHR, so the question is about how far to go in terms of providing that right to vote. The European Court of Human Rights has not prescribed exactly how that should be done. It leaves a wide margin of appreciation, which means that it is the job of national legislatures to decide what is most appropriate for the national context.

Our statutory mandate is to protect and promote human rights, so the approach that we have taken in looking at the bill is to think about what human rights standards say about whether prisoners should be given the right to vote and the guiding principles that can be used to determine how that should be done. Looking to what the European court has said about the matter and to international standards at the United Nations level, it is possible to discern some guiding principles that can be used to inform the debate. The first is about the purpose of imprisonment and how that fits with prisoners’ human rights; the second is a principle of maximum suffrage; and the third is a need for proportionate rational reasons if the right to vote is to be restricted and what that says about what is in the bill.

On the purpose of imprisonment, it is clear that the deprivation of liberty that comes with imprisonment is a punishment and that other human rights will necessarily be impacted by that—the right to family life, for example, and the right to autonomy—but there should not be additional restrictions where those are not necessary. That brings us to the question whether the right to vote is one that needs to be restricted alongside imprisonment. It is also clear from looking at the human rights framework that the purpose of imprisonment is more about rehabilitation and less about punishment.

Secondly, the European court has been clear that the starting point is a presumption in favour of maximum suffrage. The starting point is that everybody should be allowed to vote and they should only be excluded when there are rational reasons to do so. In that sense, we need to look at the aim behind excluding prisoners from being able to vote and, if we are going to exclude them, we then need to look at the most proportionate way of doing that.

The aim that is before us is being presented as the legitimate one of preventing crime: if prisoners know that they will lose their right to vote, that will act as a deterrent to crime. We have some questions about whether that is a rational aim, and whether removing the right to vote acts as an effective deterrent.

With regard to the way in which you might go about restricting the right to vote, the proposal is to determine that right by the length of the sentence and whether it is less than 12 months. The question is whether that is the most proportionate way of doing it. We can look at some international comparators that have greater proportionality when identifying which prisoners should be allowed to vote and which should not. For example, we could have judges who make the decision when sentencing or identify offences that have some connection with the operation of the electoral system.

Overall, we see the bill not just as an opportunity to ensure compliance with the ECHR or to ensure that we tick it off because it is something that the European Court of Human Rights has decided needs to be remedied. The bill is an opportunity to look at the situation anew and come up with a principled stance on prisoner voting. If the Scottish Government and Parliament want to show human rights leadership, the best way to do that is to look at the human rights standards and principles and use them to inform the debate about what should be done.

The Convener

Thank you. Would Michael Clancy like to give us a preamble?

Michael Clancy (Law Society of Scotland)

I will give a short one.

We at the Law Society come at the bill from a different angle from that of the Scottish Human Rights Commission, principally because the bill is quite an important one—it covers lots of areas of enfranchisement and relates to the competence of the Parliament to legislate.

As members will know, in the Scotland Act 2016, responsibility for elections in Scotland was devolved to the Scottish Parliament, and this is the first orderly opportunity for legislation to be made in connection with those additional powers. That is why we think that there is an issue across the bill and with the questions relating to prisoner voting in particular, in terms of the competence of the Parliament to enact legislation. We have no doubt at all that the Parliament has the competence to do what it is being asked to do by the Government with the bill. That is important because of the provisions in the Scotland Act 1998 relating to the general competence of the Parliament. Under section 29 of the 1998 act, if the Parliament enacts legislation that is not in its competence—for instance, if the legislation contravenes or is not in compliance with the European convention on human rights—that legislation “is not law”.

Having the capacity to legislate on elections means that the crunch point of compliance with the ECHR comes into sharp relief. Cathy Asante identified that issue in terms of the way in which it affects prisoner voting, compliance with the trail of court decisions from Hirst v United Kingdom in 2005 to the present day and the way in which other jurisdictions in the United Kingdom have approached the matter. Of course, up until devolution, we were bound by the approach that the UK Parliament and UK Government took towards the extension of enfranchisement to prisoners.

That is where we are coming from. I am happy to take questions as we go along.

Professor Antony Duff (Howard League Scotland Committee)

We strongly agree that it is important to go beyond the minimum requirements of the European convention on human rights. We see the bill as an important first step towards the far more ambitious aim that we would like to see of giving all prisoners the right to vote.

We think that the central issue is one of citizenship. Do we see prisoners as citizens and members of the polity with rights to engage in its affairs, or do we see them as outsiders with no part to play? For reasons of both democratic recognition and rehabilitation, we feel strongly that prisoners should still be seen, understood and treated as citizens. They are in prison and they are being punished, but still they are members of the polity and therefore should have the right to vote at elections and vote for their own future. In the end, we would like the right to vote to be extended to all prisoners, not just those who are serving sentences of less than 12 months.

My second point concerns practicalities. It is important that the right to vote is more than just a formal right that is not really used. It matters that prisoners are able to use that right, which means that they need to be assisted and encouraged to do so. That will involve resources of various kinds to ensure that it is possible for them to get the information that they need to engage in debates so that they can use the right to vote fruitfully.

Of course, the Scottish Prison Service is under heavy pressure all the time, so if the right to vote is extended, and if it is to be a serious right, we need resources to make its implementation practicable for the SPS.

Thomas Halpin (Sacro)

Thank you for the opportunity to present to the committee. At the start, I will not outline the facts of the legislation, which my colleagues have already touched on, but instead discuss the people on whom it will impact. Prisoners are, as I am sure that members will understand, largely a group of people who have been excluded and deprived throughout their lives in all sorts of circumstances. The decisions that are made around them have been very much driven by emotion and the values base of others, who very often will not have had the same experiences. We need to ensure that the system is proportionate and fair but also rational. We can look at the progressive approach from the Parliament in recent years with regard to the presumption against short sentences and so on. There are loads of examples of people who have been convicted of the same crime being sentenced differently at different diets, with one being excluded while another is not. There is a randomness there.

We can also look at people who are in prison for a long time for much more serious crimes. There is an emotional argument for excluding them—the term “civic death” has often been used to describe that exclusion. However, to take a rational view, those people still have a stake in society. They have families outside who may be impacted in the education system, for instance, and they have a right to have an interest in their children or spouses.

There are examples of people who have been absolutely written off in newspapers throughout Scotland and the UK. There are columnists who have been long-term prisoners—they are now out of prison and are playing a meaningful part in society. In previous discussions, they would have been written off through civic death and seen as not worthy of having the right to vote, but they are now out there.

This is my plea: please do not fudge this. The right to vote is a human right. If we want an inclusive Scotland, we should provide all prisoners with the right to vote.

The Convener

The witnesses have all intimated that they are ready to answer questions. We will start with questions from Gil Paterson MSP.

Gil Paterson (Clydebank and Milngavie) (SNP)

I want to ask a general question that might assist the general public. It is a Brexit question. The bill is being driven by the European Court of Human Rights. If we were to come out of the European Union having already implemented the provisions in the bill, what would be the effect? Is there a likelihood or possibility that either the Scottish Government or the UK Government could default back to the current situation and take the right to vote away from prisoners?

Cathy Asante

I am happy to answer that question, as it is really important to clarify the point for public understanding in particular. The European Union is completely separate from the Council of Europe under which the European convention on human rights sits, so we are actually dealing with two separate European systems here. When, or if, we come out of the European Union under Brexit, that would not have any automatic impact on our membership of the Council of Europe. We will remain signed up to the ECHR, which will remain embedded in our law through the Human Rights Act 1998 and the Scotland Act 1998. There is no automatic correlation between those things. There have been debates about changing the Human Rights Act 1998 or our membership of the Council of Europe, but those are separate debates and currently there are no plans on the table to change the legal position.

10:15  



Michael Clancy

That is correct. Leaving the European Union under Brexit would have no effect on our membership of the Council of Europe. As members know, however, there has been a long, grumbling debate about the relationship between the United Kingdom and the European convention on human rights, which may at some point in the future crystallise around a Government deciding what it wants to do about membership of the Council of Europe and the European convention on human rights.

I say that with one proviso about the crossover points in connection with the European Union. The Charter of Fundamental Rights of the European Union contains certain provisions that are relevant to this debate, but only in connection with matters relating to the European Union—for example, the restrictions on people being capable of voting in a European election. That was helpfully litigated on in the case of Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde a few years ago, in 2015. In that case, the Court of Justice of the European Union ruled that French law, which deprived certain convicted persons of the vote, was not an unlawful breach of the right of European citizens to vote in elections for the European Parliament.

There is a crossover, but I wish to advance the idea that we may have experienced the last vote for the European Parliament that this country will hold—at least for the meantime. Therefore, the matter might not crop up again. However, I do not need to tell you that that is a highly contentious area, and it is probably not up to me to pontificate too much on it.

The Convener

Would you like to pontificate a wee bit on that, Gil?

Gil Paterson

That raises one question in my mind. If a UK Government decided that it would introduce legislation to take us out of the jurisdiction of the European court and out of the ECHR, would Scots law still stand? Would Scottish law need to be changed also, or is there an overarching factor in the explanation that you have given?

Michael Clancy

In using the phrase “European court”, which European court are you referring to?

Gil Paterson

The European Court of Human Rights.

Michael Clancy

If a future Government withdrew the UK from the Council of Europe, the court would not have jurisdiction over the UK. If a future UK Government repealed the Human Rights Act 1998, domestic litigation in connection with the convention would not apply. Those are two possible outcomes of an approach to human rights that a future Government may adopt. Beyond that, we are getting into the realms of significant speculation.

Professor Duff

It would be a shame to focus only on compliance with the convention on human rights. That is a minimum requirement that we need to meet. Here is a chance to think beyond that and to think for ourselves about how we should treat prisoners when it comes to voting. Should we do rather more than what is required, minimally, under the convention? The Howard League Scotland is saying that we should go beyond that and think about enfranchising all prisoners, but not just because that brings compliance with the requirements of the convention. It means going beyond that and thinking for ourselves about how we should see and treat those people. I would not want to focus only on what is required to comply with the convention on human rights.

Gil Paterson

I will develop a question on that very point, but I will first ask you for your view on the approach that has been taken under the bill, whereby the right to vote is linked to the length of sentence.

Thomas Halpin

In my opening statement, I explored whether, separate from the bill, it is right or wrong to exclude people. We expect parliamentarians—lawmakers—to have a rational and mature view that is about the good of all communities. Arguments can be made one way or the other about the exclusion of people, but the fundamental thing is that people are part of a positive and thriving society in Scotland. Other than a very small number of prisoners, those on long sentences will return to their communities one day and they have a stake in them. They are denied their vote at this time for reasons of punishment. It is not about risk or because they pose a threat to wider communities. It is a value-based judgment. We want people to have a positive reason to rejoin their communities.

Neil Findlay (Lothian) (Lab)

I have a fundamental point, which is linked to that. How are the public protected and how are prisoners rehabilitated by the removal of prisoners’ right to vote? Does anybody believe in that?

The Convener

There is a lot of shaking of heads.

Cathy Asante

I did not raise my hand because I believe in it. I struggle to see what the connection is and why that particular right is seen as the one that has an impact on victims or is a deterrent to crime. I am quite confused about the rational connection there.

Conversely, there are rational reasons for allowing prisoners to vote as that would contribute to their rehabilitation by enhancing civic participation and inclusion, and maintaining prisoners’ connection with their communities and their investment in society. That argument appears to stand up to rigour better than the argument about the removal of the vote deterring crime.

Neil Findlay

In any research that has been done or in your experience of working with people in prisons, have you ever heard of an offender saying something along the lines of, “Yes, I was gaun tae ram-raid the bank and steal the money, but I realised that I wouldn’t be able to vote for Bill Kidd or Neil Findlay, so I didnae bother”?

The Convener

Does anybody have that knowledge?

Professor Duff

If we think about the standard aims that punishment might be thought to have—retribution, deterrence, incapacitation and rehabilitation—and ask whether losing the right to vote serves any of those aims, it is hard to see how it does. It does not do that for retribution; we believe that it does not deter; it does not help to incapacitate; and, if anything, it works against rehabilitation, because having the vote helps to rehabilitate. Therefore, losing the right to vote does not serve any of the standard aims of punishment and it works against at least one of them.

Mark Ruskell (Mid Scotland and Fife) (Green)

Are there any examples of a situation in which a civic death would be appropriate? I am thinking of examples such as when somebody has committed a crime against a democratic institution or been part of a democratic institution and shown gross criminality or misconduct. Again, that shifts the issue around risk to the public, because that person would not stand for election, but they would vote in elections. That is one example. Are there any situations for which a civic death would be appropriate and proportionate?

Professor Duff

That is the best case. The question is how we see the right to vote.

Let us compare it to driving. A driver can lose the right to drive because, if they drive badly enough, they will lose their licence. Driving is not a basic right; it is not quite a privilege, but it is a fungible right. If we see citizenship as basic to someone’s identity as a person, the right to vote is crucial to their civic being. The argument then is that they should not lose that right, even if they misuse it. That might invite monitoring or warnings, but they should not be able to lose it, even through electoral malpractice.

Perhaps another case, in the extreme, would be a self-avowed terrorist whose aim was precisely to destroy the political community. We might say that that person has ruled themselves out from taking part, so perhaps that might be a case.

However, even in the case of electoral malpractice, it is important that the person preserves the right to vote and is encouraged to use it appropriately.

Mark Ruskell

In that example, it could almost be a restorative element if somebody had acted against democracy but they were given the right to vote so that they valued democracy.

Professor Duff

That is why it is important that the right to vote be made a real right by prisoners being encouraged to use it properly. That involves making sure that they have the information that they need to use the vote, room for political debate and so on. That is important if we want to make the right to vote a genuine rehabilitative measure.

Michael Clancy

In response to Neil Findlay’s earlier question, I can say that I have never been present at a conversation in Barlinnie at which the convener’s name came up, or indeed Neil Findlay’s name.

On the point about civic death being applied to certain types of crime, we have seen that in legislation in other countries. For example, in the case of Scoppola v Italy, the court came to the conclusion that someone being excluded from the vote was not a violation of article 3 of protocol 1 of the European convention on human rights because, under Italian law, only prisoners who were convicted of certain offences against the state or the judicial system or who were sentenced to at least three years’ imprisonment lost the right to vote. Offences against the state or the judicial system would be in the category that Mr Ruskell was talking about.

I would contrast that example with the case of Murat Vural v Turkey. In 2005, the applicant was convicted under the Law on Offences Committed Against Atatürk because he had poured paint over statues of Kemal Atatürk. He was given an extraordinary sentence of 23 years and that sentence also excluded him from voting. That was a violation of article 3 because it was disproportionate.

It is a question of balance—one needs to deal with the issues of the margin of appreciation and proportionality. Since we have moved away from applying the death penalty in any circumstance, issues relating to civic death do not really apply in the same way as they might have done some time ago.

Tom Mason (North East Scotland) (Con)

I am trying to understand the logic behind this. Why is voting specifically separated out from other losses of rights that happen with imprisonment? Prisoners lose the right to family life as well as all sorts of other things. Voting is just one of several rights that are lost with imprisonment. What is the logic of separating out voting? There is a long list of things that people are deprived of in prison.

Professor Duff

Imprisonment is essentially loss of liberty. Along with that, inevitably, go other kinds of loss. If someone is imprisoned, they cannot maintain an ordinary family life so, inevitably, there is an impact on family life. However, the right to vote is not an inevitable loss when someone is imprisoned—it can be maintained. The starting point is that imprisonment is loss of liberty. We then need to ask what other rights must be constrained or can be maintained once someone is imprisoned. That seems to be the way forward. From that point of view, the right to vote can be maintained, even while someone is imprisoned.

Tom Mason

But many other things could be maintained in prison, if we think of open prisons—for example, the right to access newspapers and television and all sorts of things.

Professor Duff

All those rights should be maintained—unless there is a good reason to do with punishment, incapacitation or deterrence to suspend them—if we start from the position that every right should be maintained as far as that is consistent with imprisonment and its purposes.

Thomas Halpin

The rights that Tom Mason mentioned may be curtailed or restricted, but they are not lost when someone is imprisoned. The connection with family is so significant that the Scottish Prison Service has created family facilities in visiting centres, for example. The issue is whether withdrawing the right to vote is the right thing to do.

There is an emotional question in separating out crimes that are so serious or so abhorrent that we should take away the right to vote. However, it is very difficult to make that distinction. There are many people in our prisons who have been convicted of homicide but whose cases have circumstances around them. They are not evil people; they have made very bad decisions in their lives, or maybe there were not even decisions and they are there due to the circumstances. The idea that we can be rational in separating out prisoners in a judgmental way is questionable.

10:30  



The Convener

Neil Findlay has a quick question before we go back to Gil Paterson.

Neil Findlay

I just want to confirm that prisoners still have the right to stand for election. Famously, Bobby Sands stood for election and was elected, and I believe that the situation has not changed. Prisoners have the right to stand, but not the right to vote. Is that correct?

Michael Clancy

I believe that that is the case.

May I comment on the difference between taking away, in the ordinary course of events, the right to a family life and taking away the right to vote?

The Convener

Yes, of course.

Michael Clancy

I have not studied this in depth, but I suspect that there is still a sort of shadow of the franchise being something that is given rather than something that is inherent. Throughout this year, we are celebrating 100 years of women having the vote. We are very close in time to a period when women did not have the vote, and the shift from 21-year-olds to 18-year-olds having the vote happened within the lifetime of those who are seated round the table—unless there is someone here who is very young.

I think that the difference is that the right to a family life has always been considered to be inherent in a person, and the removal of that right if someone commits a crime means that society is showing them the element of punishment, or retribution. I think that that is where the issue comes about.

Cathy Asante

It is difficult to discern how we arrived at the position and how we make the connection. It is interesting to look at other countries across Europe where the connection is not made. I believe that there are 21 European countries in which there is no ban on prisoners being able to vote, so there seem to be completely different approaches to the question of prisoners and this specific right.

Michael Clancy

We do not have a written constitution in this country, although people are interested in debating that. A right to vote might be expected to be part of that concept if it ever comes to any kind of fruition. However, there are examples of constitutions of countries that are signatories to the Council of Europe that exclude the right to vote for prisoners, such as the Russian constitution and, until recently, the Ukrainian constitution. We need to be cautious about assuming that, because countries have constitutions that bestow the right to vote on prisoners, that is necessarily the way that constitutions will always be. Constitutions can be used to entrench the idea that certain people who are convicted should not have the vote, as well as to ensure that they should have it.

Gil Paterson

I have another fundamental question. The bill proposes a 12-month time bar as the definitive factor in prisoners qualifying for the right to vote, but I wonder whether a better measure, particularly for women, would be what the crime was. I watched a programme on television that was apt. Two women were put in prison for non-payment of the council tax. The circumstances that got them into that situation were emotional. Is it a crime against society if a woman steals to feed her family or steals to pay the bill because she has spent the bill money feeding herself and her family? Is it a crime against society to put someone like that in prison?

Do you have a view on the measure—the length of time in prison, rather than the crime that took place—that we are using? Should the measure be different from what is suggested in the bill?

Thomas Halpin

You raise an important point. Along with partners, my organisation delivers a significant public social partnership in Scotland, which supports every woman who leaves Scotland’s prisons having served a sentence of less than four years. We provide the women with mentoring. Therefore, we have extensive knowledge of the individual circumstances of a large cohort of women. The data is all there in the background.

The personal circumstances that relate to offending are as varied as you can imagine. For instance, women disproportionately go to prison because of their circumstances. They are not able to comply with the justice process and the administration of justice. They do not comply with bail and they end up on remand. The personal circumstances that cause them to get involved in addiction and, as Gil Paterson said, theft, in order to maintain their families, are disproportionate in women compared with men.

A large number of those women are victims of domestic abuse, deprivation and, when they were children, neglect. Therefore, if we separate them out on the basis of crimes and say, “This crime takes you into this cohort and that crime takes you into that cohort”, that does not reflect the reality of life’s circumstances for those women. We are saying to them, “Not only are we treating you like that as you go through your life experience, but we’re going to make you suffer civic death.”

We cannot separate just on the basis of crime or length of sentence. When we start doing that, the decision becomes emotional and judgmental. We want every citizen to be rehabilitated and to play a full part in a successful Scotland, and the right to vote is a fundamental building block of that.

The Convener

You have stirred something up, because everybody wants to speak. We will hear from Professor Duff, then Michael Clancy and then Cathy Asante.

Professor Duff

I suppose that the 12-month limit was set as an attempt to say crudely, “Okay—for the more serious crimes, you lose the right to vote; for minor crimes, you don’t.” Thomas Halpin has a good way of capturing the distinction between minor and serious crimes. Those who are in prison for more than 12 months could still, by virtue of their crime or their circumstances, not be the figure of the hardened career criminal that people have in mind when they talk about losing the right to vote.

If we say that some people should lose the right to vote and some should not, we need to look carefully at what picks out those who should lose the right to vote. Is it the content of their crime? Is the crime somehow against the political system? Is it just the fact that it is a serious crime? If so, how serious does it need to be before someone loses the right to vote? There is no true answer to that question. That is one reason why we think that prisoners should all get the right to vote.

However, 12 months seems a mean-minded way of allowing some prisoners the right to vote. That would let in a few prisoners but it would still disenfranchise many prisoners, who, when we look at their cases, are not serious core criminals.

Michael Clancy

Section 4 makes amendments to section 3 of the Representation of the People Act 1983. That is the nub of the issue. The 1983 act, which contains a blanket ban, says:

“A convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election.”

That is the basis on which the Hirst case was taken to the European Court of Human Rights. Mr Hirst felt that that blanket ban contravened—as Cathy Asante said—article 3 of protocol 1 of the European convention on human rights.

The court’s decision in that case talked about the support for universal suffrage, but it said that the franchise of prisoners may be restricted, provided that the restriction is proportionate to a legitimate aim. Such aims include the sanctioning of the conduct of convicted prisoners and enhancing civil responsibility and respect for the rule of law. Crucially, the length of the sentence that is given to the prisoner indicates the seriousness of the offence. That is where we get the tension between the length of the sentence and the seriousness of the offence.

The bill has landed on sentences of 12 months or less. You might remember that, following the consultation that the Scottish Government ran in March last year, we were on the cusp of talking about the presumption against short sentences. That presumption was crystallised in the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019, on which the Parliament voted before, or during, the summer. The fact that Parliament has already decided on that order indicates that the presumption against short sentences relates to the seriousness of the offence. I think that that answers Mr Paterson’s point.

The question is whether 12 months is right. The Law Society’s response to the consultation said that perhaps a landing point of four years would be more appropriate, if we are taking an incremental approach. Clearly, our advice was not heeded.

Cathy Asante

Basing the right to vote on whether the length of a person’s sentence is less than 12 months appears to be quite a crude way of distinguishing, which does not allow for consideration of an individual’s personal circumstances. An alternative approach, which is taken in other countries and seems to win favour with the European Court of Human Rights, is for voting rights to be determined by a judge when they give their sentence, so that they can take into account everything that they know about the circumstances of the case. That maintains a link between the measure of depriving someone of the right to vote and what has taken place. It is fair to say that that is a more proportionate way of doing things than simply having a cut-off point at 12 months.

Maureen Watt (Aberdeen South and North Kincardine) (SNP)

I want to follow up on the issue of short sentences. Scotland has one of the highest prison populations in the world, so we are already locking up more people than other countries are. Are a lot of those people serving short sentences? I am not just talking about sentences of 12 months. Is there a contradiction in having the rules on short sentences and implementing the bill’s proposals?

Cathy Asante

I know that the Faculty of Advocates pointed out that there might be some contradiction. It is difficult to say whether that could be the cause of a further human rights case; that is untested. There is an argument that enfranchising a smaller and smaller number of people is not in the spirit of providing the right to vote. That points to the need to future proof the bill. If we apply only the minimum of what is required by the European Court of Human Rights at the moment, we might need to return to and review the issue a number of times in the future, if anything else arises. A better approach would be to think about the right reasons for making the changes and determining the measures around those, rather than thinking only about what we can do to get over a legal hurdle for the time being.

Maureen Watt

I get the sense from the witnesses that they do not think that 12 months is appropriate. Michael Clancy said that the Law Society alighted on four years. Do the rest of the witnesses think that the vote should be available to all prisoners, regardless of the length of their sentence? I see several people nodding.

10:45  



Michael Clancy

That was how we responded to the consultation. Now that we are dealing with the bill, it is really for Parliament to decide on the best landing point. The Scottish Government has taken the view that people with a sentence of 12 months or less should be able to vote, but if they have more than 12 months, they should not.

I do not have the kind of statistics that you are looking for about what sort of crimes get what sort of penalties. I am sure that the Crown Office or the Scottish Prison Service will be able to provide those.

On whether judges should be able to add disenfranchisement at the point of sentencing, we rightly give our judges significant discretion in sentencing, but when it comes to civic rights, the Lord Justice General has already indicated that the judiciary is not in favour of that addition to judges’ powers, and we have to trust the judiciary in that regard.

Mark Ruskell

Why did the judiciary come to that view?

Michael Clancy

You would have to ask the Lord Justice General.

Professor Duff

Ideally, we would like all prisoners to have the right to vote. Failing that, we strongly believe that 12 months is much too low a limit. Although I do not agree with it, I can see the argument for people who commit really serious crimes that display a contempt for or hostility to society not being allowed to vote while they are in prison. I think that that argument is wrong, and, in any case, it involves really serious crimes committed by really serious criminals, and a 12-month sentence does not begin to capture that kind of crime.

We need to ask what kind of crime and what kind of person should lose the right to vote while they are in prison. I am not sure I can get to a simple four, five or six-year cut-off point. You could take a crime-by-crime approach, in a more nuanced way. However, in any case, 12 months seems much too low.

Maureen Watt

If you take it crime by crime, you go back to Michael Clancy’s point about the judge making a decision.

Professor Duff

You could have a list of crimes for which the sentence is so many years in jail and the loss of the right to vote. You could just list the crimes that disqualify someone. That would be feasible, although it is hard to see how you would do that, because it is not clear what the criteria would be. However, it could be a slightly more nuanced way of limiting the franchise among prisoners rather than just saying that a sentence of anything above 12 months means losing the right to vote.

Neil Findlay

I cannot quite understand the logic of the cut-off point being a year. It appears to be a minimal fudge rather than a principled position. We would have great difficulty with it if a minister was sitting in front of us and saying that this was their position. Can you explain why a year is the most relevant time? Can any of you help us to understand the relevance of 12 months as opposed to six months or 24 months? I do not understand it at all.

Thomas Halpin

I have been involved in this discussion with Parliament and the consultation for some years now. I used the word “fudge” in my opening statement. We initially had a presumption against short sentences because people worried about how it would be accepted, but there was no crime wave because of it. Crime is actually going down, and we are now looking at a presumption against sentences of 12 months.

The 12 months for voting is the same. It is about an emotional fear of how the provision will be received. We have made the arguments. We expect parliamentarians to make a rational and proportionate judgment about what is needed. There is no reason for the limit being one year, other than the fear of how it will be received.

Professor Duff

One argument was that, as 12 months is the longest sentence that a sheriff can impose in a summary case, that is a way of marking out crimes that are so minor that they would not go to the High Court for sentencing. Therefore a sentence of 12 months is thought to mark out clearly the line between non-serious and more serious crimes. It is a very crude way of doing that, but it might be one rationale for it.

Neil Findlay

But your view of what is a serious crime might be very different from someone else’s.

Professor Duff

Yes.

The Convener

We will move on a wee bit. Tom Mason wants to come in.

Tom Mason

Some of my questions have already been answered, but I would like to know what is happening on the international scene. Who is doing what and where? Will you distinguish between the franchise to vote and the right to stand in elections, which we have not yet discussed very much? What is the international perspective? Are we out in front on that, are we falling behind or are we catching up?

Cathy Asante

I had a look at some comparators across the Council of Europe area. There is a wide spectrum that ranges all the way from a total ban to total enfranchisement.

To break that down slightly, 21 European countries, including Ireland, Finland, Denmark, Norway and Switzerland, do not restrict at all the right of prisoners to vote. Interestingly, the law in Ireland was changed in response to the ruling in 2005 in Hirst v United Kingdom, which enfranchised all prisoners. There was not a great deal of controversy about that and it passed without much public or media concern. Another 18 European countries allow some prisoners to vote, with their right to do so being determined in different ways. For example, in France judges are allowed to determine whether the right to vote should be removed, and removal is mandatory in cases involving very serious crimes. However, even then, a judge can choose to disapply that rule. Germany bans only prisoners whose crimes targeted the integrity of the state—for example, terrorist offences. The list of countries that have a total ban is much shorter: it consists of only eight countries, including Russia, Armenia and Hungary.

From that breakdown, we can see that other European countries have some restrictions on prisoners’ right to vote, but a lot of them appear to be much more tailored and proportionate than a simple cut-off for a period of time.

Tom Mason

What is the situation in places such as America and South America?

Cathy Asante

I have not looked at South America, so I am afraid I do not know about the position there. In America, it varies from state to state. In addition, some prisoners—such as felons—are not allowed to vote for the rest of their lives, even after they have come out of prison, which is right at the other end of the spectrum. I believe that some Australian states allow prisoners to vote, but that is in the context of laws that mean that voting is mandatory for everyone, so they would be required to do so anyway.

Michael Clancy

At the risk of intruding upon the incipient US election, I point out that Bernie Sanders is currently going round the stumps saying that he would like all prisoners to be able to vote. However, currently, only two states—Maine and Vermont—allow that. The other 50 states allow it to varying degrees. As Cathy Asante has said, in Australia there is a distinction between the prohibitions at federal and state levels. At the state level it affects those with sentences of three years or more, I think, while at the federal level prisoners can vote if they are sentenced to less than five years.

If we look closer to home, in England and Wales the total ban was modified by an agreement between the UK Government and the Council of Ministers so that prisoners on temporary licence would be able to vote. The council indicated its contentment with that agreement in December 2018. In Wales, there is an on-going debate and consultation on the issue of prisoner voting, which I believe has not yet reached any firm conclusion.

Tom Mason

What about standing for elections?

Michael Clancy

I do not have any information on that.

The Convener

That could be looked into and brought back to the committee, if that is all right with you, Tom.

Tom Mason

The issue of standing for election opens up a spectrum of issues.

The Convener

It does; you are quite right. I think that a few of Maureen Watt’s questions about the 12-month cut-off have been covered.

Maureen Watt

Yes. I do not have anything else to ask at the moment.

The Convener

Thank you.

Mark Ruskell

Has rehabilitation and subsequent reintegration back into communities been studied? Are there particular examples that you can give from the UK or abroad of places where it has been beneficial?

Thomas Halpin

There are a number of studies, including a publication by the Scottish Government’s analytical services, about what works in rehabilitation and reducing reoffending. It is not possible to give the actual causation, but there are correlations around the protective factors that help someone in their journey to desisting from committing offences. That is a complex area, and it involves multiple needs that people have, such as those around housing, family, motivation, health and addictions—you can imagine them all. The sense of belonging is extremely important in supporting those protective factors when someone is moving into rehabilitation. There is no doubt in my mind that a number of evaluation studies over a long period of time have provided evidence about the importance of all of that with regard to supporting rehabilitation.

The Convener

Before Mark Ruskell comes back in, I point out that we are going to run on a wee bit further than we thought we would, because we are getting a lot of really good responses, which will help us a lot in our deliberations. By the looks of it, we will go on well past 11 o’clock. If anybody needs to go, they are perfectly free to do so; we are not locking anybody up in here.

Mark Ruskell

I hear what Thomas Halpin says on the general approach to rehabilitation, but I am thinking specifically in terms of participation in democracy and in wider society. Is there any evidence around that? I am thinking even about those who are being held under terrorist offences, and their reintegration and rehabilitation into society and how the proposals fit with that.

Professor Duff

As we have the blanket ban in Britain, we could not find evidence of the right to vote helping to rehabilitate, at least in this country. I do not know of evidence from elsewhere; I am a philosopher rather than an empirical scientist, so I theorise rather than investigate empirically.

If you think about it, imprisonment is bound to cut various ties that people have with their community. It cuts you off in various ways. Rehabilitation involves trying to maintain such ties as you can and trying to build up ties again as you are released. One such tie is a connection to the political life in your community, in so far as you can maintain that tie. That includes the right to vote. It also includes the right to take part in debates and to engage politically. That connection certainly cannot hinder rehabilitation. It is one way in which you can try to maintain a person’s ties with their community. It seems a matter of common sense rather than empirical evidence that that must be the way to go if you are seriously interested in rehabilitation, as it is one way to maintain a person’s important connections with the life of the community to which they belong.

Mark Ruskell

Are there any international examples of that in places where there is either a limited or full extension of the franchise? Is there positive evidence of people reintegrating, and maybe even becoming politically active or involved once they have been reintegrated back into wider civic society, through participation and confidence building and all those kinds of things?

Thomas Halpin

I suspect there will not be many such studies, although it is an area that would lend itself to a good study, as you recognise. However, there are loads of examples of people who have entered into political life after imprisonment, including political prisoners. One of the very positive experiences we have is of peer mentoring in and out of prison. That is an example of people who are moving into active citizenship. Those are individuals who are definitely motivated within the prison system.

The Convener

Professor Duff, do you have an answer?

11:00  



Professor Duff

I do not know—I can try to find out whether there is any international research on the matter and get back to the committee on that.

The Convener

Thank you. We move to our final round of questions, on voter education and political engagement.

Maureen Watt

Is there any evidence to show that, if prisoners get the right to vote, they will in fact use it? What has the situation been in other countries, for example?

Cathy Asante

The only evidence that I am aware of is from Ireland. I believe that the finding was that prisoners voted in about the same proportion as the general population.

Professor Duff

Much would depend on how the right was introduced and how it was treated. If prisoners were simply told that they could vote formally, and that was all there was to it, it is plausible that the uptake would be rather low. If there was a genuine campaign to encourage prisoners to vote, to show them how to do so and to help them to engage with political debate, I think that the rate of uptake would be higher, with beneficial effects beyond that. A lot would depend on the resourcing and how it was organised.

The Convener

I have a question for Thomas Halpin. You spoke about peer mentoring and so on. Do you think that that has encouraged more people to engage?

Thomas Halpin

There is absolutely no doubt in my mind that it has encouraged people to take part in positive, purposeful activity in the prison system, so one would follow the other. The question would be whether the way in which the right to vote was introduced would make it difficult for people to vote and so on. The experience of peer mentoring in the prison system definitely suggests that voting would be a hot topic among that population group, in the positive sense of giving them something purposeful to do.

Maureen Watt

Will prisoners have a choice in where they register to vote? Would they be registered where they lived prior to going into prison, or in the ward or constituency where the prison is?

Professor Duff

The bill proposes that, where there is a place that they can say that they live, they should register and vote there. Where there is no such place, they would vote in the prison constituency. If the aim is for people to maintain connections with the community, they should if possible vote where their home is. If they have a home to which they will return after prison, that is where they should vote. If they have no home, they will by default have to vote where the prison is. That seems right.

Maureen Watt

How can candidates who are standing for election interact with prisoners?

The Convener

A bit of guesswork is needed there.

Professor Duff

If a prisoner is registered to vote in their home area, they cannot plausibly attend meetings there. Candidates cannot all go round all the prisons to see the prisoners. It would need to be done largely by post, I guess. One can imagine a more complex system of online debate, but that would be very expensive to organise. Plausibly, it would be done primarily by mailing electoral literature to prisoners. They would need to have a chance somehow to at least put questions to candidates, either online or by mail, in order to engage with them. There are technologies that can be used for that purpose.

The Convener

This has been one of the best rounds of questioning that the committee has had for a very long time, in terms of giving us a range of views and in-depth evidence. I thank all our guests for attending, and we will keep you engaged in what we go on to do.

11:04 Meeting continued in private until 11:15.  



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Third meeting transcript

The Convener (Bill Kidd)

I welcome members to the 16th meeting in 2019 of the Standards, Procedures and Public Appointments Committee. We have received apologies from Maureen Watt MSP, who is unable to be with us. Gordon MacDonald MSP joins us as Maureen Watt’s substitute. I invite Gordon MacDonald to declare any relevant interests.

Gordon MacDonald (Edinburgh Pentlands) (SNP)

I have no relevant interests.

The Convener

Thank you very much.

Agenda item 1 is on the Scottish Elections (Franchise and Representation) Bill. Joining us today we have Andy Hunter, chair of the Association of Electoral Administrators, Scotland and Northern Ireland; Sarah Mackie, manager of the Electoral Commission Scotland; Chris Highcock, secretary of the Electoral Management Board for Scotland; and Peter Wildman, chair of the electoral registration committee of the Scottish Assessors Association.

I welcome you all to the meeting. Because there are four of you and we have a number of questions to get through, we will not ask for opening statements, but you should feel free to expand in your answers on whatever questions you hear. It is very nice to see you all; we are also pleased to see the members of the public who are here. We do not always get a large number of people at this time in the morning. We will start off with some questions from committee members.

Neil Findlay (Lothian) (Lab)

I am just looking at all the organisations that the four panel members represent. I know that the convener does not want opening statements, but there seem to be a hell of a lot of you involved in this field, all doing similar things. Can you briefly tell us why we need you all?

Peter Wildman (Scottish Assessors Association)

I am the electoral registration officer for central Scotland. I am also chair of the electoral registration committee of the SAA. That committee is comprised of the 15 EROs across Scotland and their senior staff. We are the stakeholders who deliver electoral registration across Scotland.

Sarah Mackie (Electoral Commission Scotland)

In relation to the franchise bill, the Electoral Commission’s role will be to provide guidance and support to electoral registration officers and to the returning officers who will be administering the legislation. We will also be in charge of public awareness campaigns to reach those newly enfranchised citizens. That is our interest in the bill.

Andy Hunter (Association of Electoral Administrators)

The Association of Electoral Administrators is a professional body that represents anybody who works in electoral administration across the United Kingdom. We have just under 2,000 members and essentially the association is there to help to protect and promote good practice in the electoral administration field, both in the returning officer and registration sectors.

Chris Highcock (Electoral Management Board for Scotland)

I am a deputy returning officer in the City of Edinburgh Council. Returning officers are charged with the administration of electoral events in Scotland. The EMB is responsible for co-ordinating and supporting returning officers and electoral registration officers in the delivery of electoral events, promoting best practice and always making sure that the voters’ interests are at the heart of all that returning officers and electoral registration officers do.

Neil Findlay

I feel a flow chart coming on.

There are often comments about the inaccuracy of the electoral register. It has been estimated that a further 55,000 people would come on to the register through this provision. Given the historical problems with accuracy, is that projection accurate, in your opinion?

Peter Wildman

The estimate was based on the 2011 census, so that number will have changed over time. Some 4.1 million electors are registered in Scotland, of which there are 132,000 European Union citizens on the electoral register. That excludes citizens of the UK, Ireland, Cyprus and Malta because they qualify as Commonwealth citizens or, in the case of Ireland, in their own right as Irish citizens. In that context, 55,000 is a reasonable number. It will take some time to get people on to the register, but in that context, it is a manageable number.

Neil Findlay

The Electoral Commission data tells us that the accuracy of the register has fallen since 2015 and it is now 86 per cent accurate. A significant number of people are not accurately picked up on the register. Why is that happening?

Peter Wildman

The register is a snapshot in time. It is updated monthly, but at any point during a month people are moving so there is that inherent churn within the register. Certain groups are slower to register than others—those in the private rented sector, for instance.

We are proactive in encouraging registration. We do an annual canvass each year; we send a form to every household to identify anybody new. We also mine databases such as the council tax database, school registers and university lists. We issue an invitation to register to anybody we identify who is not on the register. We follow that up with a reminder and then another reminder and we also try to visit the property to engage with the elector and encourage them to register.

The one thing to note is that registration is a voluntary exercise within the UK—it is not compulsory—and a certain number of people choose not to register.

Neil Findlay

Is there any analysis of why that number has fallen?

Peter Wildman

Since 2001, it has remained relatively constant. It has not changed significantly. Prior to the 1960s and in the early 1990s it was higher, but the law changed in 2001.

Sarah Mackie

We do a comprehensive piece of research every three years to track the state of the registers and the number has gone down very slightly since the last time that we did that analysis. However, we should bear in mind that since 2017, we have had no expected and planned for polls—although obviously, we had the unexpected European Parliament election earlier this year.

Peter Wildman spoke about the people who are missing from the register. The three biggest factors are, first, the length of time that someone has been at their address. Only about 34 per cent of the people who have been at their address for less than a year are on the register in Scotland, whereas about 80 to 90 per cent of the people who have been at their address for more than 10 years are on the register. The second factor is being young and the third factor is tenure—being in private rented accommodation. In cities such as Glasgow, there is quite a young student population who move frequently and they do not tend to get around to registering at their current address until just before there is a poll.

Since 2014, we have had individual electoral registration and that has enabled people to register in time for elections for the first time. That has made a big difference among young people in the run-up to polls. I remember that the figure was something like 600,000—

Peter Wildman

Yes—on the last day of registration ahead of the last UK general election, there were 622,000 registration applications across the UK. About 75 per cent of those applications were from people under 34. If you look at the demographics in relation to age and tenure, there tends to be an overlap—there is a fair chance that if you are in the private rented sector, you are probably young and you are probably there for less than a year. I would not like to speculate too far as to the reasons for that, but it can be about connection to the area. Are you going to stay there? How long is your permanency? Do you feel a connection? Will you register to vote? Those people will register but they register at the last minute. Sarah Mackie is right—there was no major electoral event in Scotland in 2018, when the analysis of the registers was done.

Sarah Mackie

The Electoral Commission thinks that there is a longer-term problem that needs to be addressed. A lot of the electoral registration processes are really outdated and could be modernised to make it a lot easier for people to register to vote—even easier than registering online. The annual canvass process that the registration officers have to run is very highly prescribed. Peter Wildman and his colleagues spend a lot of time contacting people they know are still at that address to get them to confirm that they are at that address. They need to keep going back. Even though they know from council records that those people are still there, the officers have to get them to confirm that.

Some work is under way across the three different Governments—in Wales and Scotland and at Westminster—to try to update that process so that registration officers spend less time on the people they know to be there, freeing up resource to go out and find the people they know are missing. We think that we can go even further—for example, if you have moved house and you are updating your driving licence, we could give you an option to tick a box that says, “Update my registration details” at the same time.

Peter Wildman

As EROs, we are not complacent. We would like 100 per cent accuracy and 100 per cent completion. That is what we are striving to achieve. These studies are helpful because although sometimes we would like the figures to be slightly better than they are, at least the studies give an indication of where we need to target our activity.

Gil Paterson (Clydebank and Milngavie) (SNP)

What you have just described raises some questions with regard to prisoners. You have described a settled group of people who, by and large, stay in one place or they pass away or they move house. I understand that about 10 per cent of the register naturally changes every year. The Government proposition is for prisoners to be eligible to vote within a year. It seems to me that a lot of maintenance would be required in that regard because you do not know who those people are in advance. You only have that year to pick them up and put the administration in place. How will the system be able to cope with this group of people, which will change every year?

Peter Wildman

The way that the draft legislation is framed is that people will be able to remain registered at their home address even though they are detained in prison. One hopes that they will already be registered. We have had discussions with the Scottish Prison Service as to whether we can identify those prisoners. If we discover that people are not on the register, that offers opportunities. There is a challenge around contacting them, but certainly from the way that the legislation is framed, they will not have to come off the register. One concern would be if we had to take them off at their home address and register them at the prison for a very short time. One of the challenges is that some of the short sentences could be quite short—shorter than a year. We therefore welcome the fact that prisoners can remain registered at their home address.

Gil Paterson

That answers that question, thank you.

Gordon MacDonald

In evidence to the Finance and Constitution Committee, it was highlighted that in 2014, voter registration was at 97 per cent. Currently, the local government register is sitting at 83 per cent. Can you give us an idea of the number of potential voters who are not on the register, given that size of drop? What part has the move from household registration to individual registration played in that drop?

Peter Wildman

The drop is partly due to students. Students are unique in that they can legitimately register at two addresses—at their term-time address and at their home address. Under the old household registration system, we got the full list of everybody resident in student accommodation at universities and simply added them on to the register from that information. We now rely on students to register themselves. The anecdotal evidence is that they prefer to remain registered at their home address because that is where they have a connection so registration numbers at universities tend to be low. That concerns us and we are working with the universities on how we can promote registration, but at the end of the day it is voluntary. If the students do not choose to engage, they may not register. That is part of it.

It is also about how much people engage with the electoral events that are taking place. In my experience of the independence referendum, we had people who made it quite clear that they had never registered to vote before, but they felt so strongly about the independence question that they decided to opt in to the registration system.

One of the advantages of individual electoral registration is that it is harder for people to come off the register. They can only come off in certain circumstances.

09:45  



The Convener

Chris Highcock made a mistake in nodding at some of that. Would you like to say something as well?

Chris Highcock

I think that the points that Peter Wildman made about the actual statistics are valid. I do not have much more to say about that element.

We must always remember why individual electoral registration was introduced in the first place. There is a lot of discussion about the register’s accuracy, but it is all about its integrity. We must make sure that we have the right people on the register, that the people on the register exist and that everyone is registered only once in each place. There is a value to that.

Gordon MacDonald

Can somebody answer the question about the magnitude of the drop from 97 to 83 per cent?

Sarah Mackie

Yes. Voter registration at 97 per cent never existed. From memory, I think that a journalist took the number of people on the register and then—

Gordon MacDonald

It was Mr Wildman who mentioned it in evidence to the Finance and Constitution Committee.

Peter Wildman

I think I said that it was reported as being 97 per cent.

Sarah Mackie

In the run-up to the independence referendum, as Peter Wildman said, we had an unprecedented level of registrations. When you applied to register to vote, you were first placed on the new register, and then you were taken off the register at your old address, but there was a brief window when you were registered twice. That inflated the figures. I am not saying that the figure was significantly different, but it certainly would not have been as high as 97 per cent.

Then individual electoral registration came in; I think that it was introduced the day after the referendum. That led to a big clear-up of the registers, so that the double registrations disappeared, which resulted in quite a big drop. When we carried out our completeness and accuracy study in 2015, we found the registers to be significantly more accurate than they had been the last time we had done a study, which was prior to the referendum, in 2011. We found a big increase in accuracy, but that has dropped a little bit since 2015.

Tom Mason (North East Scotland) (Con)

The residential requirement is three months, and the proposal is that, if you are resident, you get a vote. Turning the thing on its head, if a person has been resident in Scotland and then moves away for work purposes, when do they deregister?

Sarah Mackie

My understanding is that the bill does not introduce any residence qualifications. If you move to Scotland today and are resident, you are eligible to register to vote from today.

Peter Wildman

We proactively manage the register by checking other databases. If we get an indication from council tax that somebody has moved out of a property, we will then carry out a review of registration. If we get more than two pieces of evidence to say that somebody has moved, we can just take them off the register; if we do not, we send them a letter that says, “We do not think that you are there. If you are, provide evidence”. If they do not provide evidence, they come off the register. The annual canvass is the backstop to that, if you like.

Neil Findlay

Don’t go there. [Laughter.]

Peter Wildman

Apologies for that.

The canvass is the annual registration check, in which somebody can return the household inquiry form having scored a person off it. If we have another source of evidence to say that a person is not there, we will take them off the register. That is how it works.

We also encourage new registrations. In 2018-19, we added about 250,000 people to the register, and a similar number came off the register.

Tom Mason

If somebody was resident and voted but then moved away to work—to London or somewhere else—for how long could they continue to vote in any election?

Peter Wildman

It depends whether they shift their main residence. If you are away for more than six months, you can still not break your residency. There is provision for remaining registered at your home address if you are working away from home. The question is the point at which you shift your home address. If you were temporarily working in London for a period of six months, you could remain on the register in Scotland, but if you permanently shifted to London, you would have to come off the register in Scotland.

Tom Mason

What is the definition of a permanent shift? A lot of people—including members of my family—did not get a vote in the referendum because they were working away from home.

Peter Wildman

Residence is complicated. There is no single answer. It is about looking in the round at all the facts of each individual case to establish where somebody’s main residence is.

Sarah Mackie

Case law says that it is where your main business—

Peter Wildman

Yes, it says that it is where your main business of life is carried out. That is the case law in Scotland.

Tom Mason

Where is that defined? How do you define it?

Peter Wildman

We do not define it. We just look at the circumstances. Where we are not certain that somebody is resident, we will ask them to provide evidence. If necessary, we will hold a hearing at which they can provide oral evidence to outline the facts of their life and what they consider their main residence to be, where the main business of life is carried out.

Tom Mason

Is that governed by case law? Who determines that?

Peter Wildman

Case law sets out that residence is where the main business of life is carried out, which is interpreted by electoral registration officers. If people do not like our decision, they have a right of appeal to the sheriff court.

Jamie Halcro Johnston (Highlands and Islands) (Con)

In theory, you can contest a registration, but I take it that, in practice, somebody will move into an area and put themselves on the register, and there is no background check or anything like that unless an issue is raised with yourselves with regard to their residency.

Peter Wildman

That is right—or if there is something on our records that indicates that something is not right. The other point to bear in mind is that 13 of the 15 electoral registration officers are also assessors. We hold the property records, so we can check the size of a property against the number of electors. If we had a huge number of electors in a small property, we would question that.

Jamie Halcro Johnston

Somebody could rent a property and register, and that would not necessarily be flagged up until it was flagged up.

Sarah Mackie

We can run a check on the Department for Work and Pensions database. You have to provide your national insurance number when you apply to register, and the first thing that happens is that that is matched against the DWP database to see whether that indicates that you are resident at the property. If that did not—

Peter Wildman

No, the DWP just checks your identity; it does not check your residency. If we get an unsolicited application—if somebody applies without our inviting them to apply—we send a paper communication to the property. That acts as a check. Certainly, I have had a few cases where somebody has come back and said, “No, this person is not a resident here”. We then review that application.

Jamie Halcro Johnston

I am not necessarily suggesting that there are cases of people using a false address. Somebody could be at a property for a very short period, register and then leave, and it is unlikely that that would be flagged up. I was just wondering how many cases are reviewed every year.

Peter Wildman

That is a very hard question. You can have people who genuinely have a property as their main residence for three months because they move around and do not have a permanent home elsewhere. If that is their permanent home, even for three months, they are entitled to be registered.

Jamie Halcro Johnston

How many cases are contested every year?

Peter Wildman

There are very few cases. In the run-up to the independence referendum, we had more hearings into residency and more questions over that, but in the normal course of events, there are not many.

Jamie Halcro Johnston

Do you think that there are not many cases because the process is working, or do we just not know?

Peter Wildman

On the whole, I think that the process is working because of the annual canvass. There are not many databases that get an annual audit, and the register is audited during the annual canvass. The annual canvass is really important.

Neil Findlay

On the residency issue, anyone who just rocks up and says, “I am living here,” and applies for their vote can get the vote. Is that system replicated anywhere else in the UK?

Peter Wildman

I am not sure about Northern Ireland, but the residency rules, which are in section 5 of the Representation of the People Act 1983, are the same across Great Britain.

Neil Findlay

Has there been any evidence of manipulation of the residency rules? I am thinking of constituencies in Scotland where there are very small margins between the winning and losing parties, and a couple of busloads of people coming up a couple of weeks before an election could have an effect. We have seen manipulation of the electoral system in the past. Has there been any evidence of such manipulation of the rules?

Peter Wildman

Not that we are aware of, no.

Neil Findlay

I will have to get my cunning plan in place then. [Laughter.]

Chris Highcock

In elections, there is always a tension between integrity and inclusion—that is, we make sure that as many people take part as possible, but that they do so according to the rules. We have to recognise that tension at all times. After every electoral event, the Electoral Commission completes a report on that event, in which it looks at questions of integrity and electoral fraud. The record in Scotland is very good. Very few questions have been pulled out about the delivery of elections in Scotland.

Peter Wildman

Were we to identify something, we would report it to the police. I have not known a police investigation to go the full length.

The Convener

Thank you.

I have a logistical question. An expansion could come about under the bill. I know that polling places change occasionally, but is the system sufficiently flexible to allow polling stations to absorb growth in the numbers in an area?

Chris Highcock

The polling scheme is decided by local authorities. The council has a responsibility in law to split every ward into polling districts and then to identify a polling place for every district in a ward. Some of the decision about a polling place is based on the accessibility of the building, some of it is based on capacity and some of it is based on location. The council will choose a building that is sufficient for the size of the electorate in that district. The decision will also be based on the electoral register that we are given by the electoral registration officer. If the electorate was to grow as a result of the provisions of the bill, we would just have to make sure that we had sufficient capacity in the building to cope with that number of people.

Often, the number of polling stations changes for particular events—I am referring to how many stations we have in particular places. The electorate changes from event to event. More people are able to vote in a council election, for example, than in a UK parliamentary election because the franchise is different. We can cope with that just by looking at the size of the register and deciding what capacity we need.

We may find that the register grows significantly in a concentrated area because of the provisions in the bill, but that is not insurmountable. That happens in each event in any case.

The Convener

Does the local authority handle staffing as well?

Chris Highcock

For each electoral event, the returning officer is responsible for recruiting and training the staff who will work in the polling place. Staffing is driven by the number of polling stations for a particular event; it is just a case of considering whether we recruit a couple of extra staff for that building or can cope with what we have. Again, that is driven by the numbers on the register.

The Convener

I assume that that approach is perfectly acceptable to Andy Hunter’s members.

Andy Hunter

Yes, absolutely. I fully agree with Chris Highcock. After an electoral event, we always review our polling places and whether there were any issues with them. We do that to inform future planning. In the run-up to the election, we determine the number of stations well in advance so that we can recruit. We take various factors into account, such as whether the number of electors is going up. Planning is a big issue, so it is extremely useful to know about changes in advance of any electoral event and to get the planning right.

Gil Paterson

Will the extra variations that will come into play because of the bill throw up any problems with regard to your administrative functions?

Chris Highcock

Such variations happen at the moment. We have different franchises for the European elections and the UK parliamentary elections, and for the Scottish Parliament and Scottish local government elections. We take those differences into account when we train staff. We make sure that people are aware of who can vote and who cannot. Again, we use the registers as they are produced by the electoral registration officer as the basis for our planning and delivery. These things change event by event.

Andy Hunter

Obviously, we prepare for that. In a lot of cases, we prepare for more than we need. For example, most polling places have capacity for another station or to take on an extra 200 or 300 voters. There will be the odd one where we are already at our limit and so we have to think slightly differently, but that is the minority. That probably applies across a number of processes. We already have a wee bit of capacity to cope with a bit more.

10:00  



Jamie Halcro Johnston

If increased checks of voter identification were introduced in polling stations, how might that be impacted by an expansion of the electorate?

Sarah Mackie

That would partly depend on what type of voter ID was used. Earlier this year and the previous year, there were trials during the local government elections in England, and we have a statutory role to evaluate those trials. Each pilot used different ID systems. Some followed the model in Northern Ireland, where people can apply for a voter ID card if they do not have a passport or driving licence. Others just required people to bring their poll card, and others required people to bring ID and, if they did not have it, to get somebody to come along to attest that they were who they said they were. If new citizens join the register, careful consideration will be needed to avoid setting a requirement for ID that is difficult for them to obtain.

We have said that there needs to be a bit more thinking around the ID pilots. As Chris Highcock said, there is a tension between accessibility and integrity. A bit more thinking might need to go on to find the right balance with regard to voter ID.

Peter Wildman

At the moment, it is only the UK Government that intends to introduce voter ID, for UK parliamentary elections. As it stands, foreign nationals would not be enfranchised for those elections.

Jamie Halcro Johnston

I think that there is an increase in people using postal votes. Is it harder to ensure the security of the voting process and to check eligibility with postal voting than it is with people going to a polling station, or is there no real difference?

Chris Highcock

In many ways, the integrity checks that apply to postal voters are greater than those that apply to people who turn up in person to vote at a polling place. You will be aware that everyone who applies for a postal vote needs to fill in a postal vote application in which they provide their signature and date of birth. For every postal vote that is returned, the signature and date of birth are checked before the ballot paper is opened and placed into the count. In some ways, those checks are much more rigorous than the process when someone turns up at a polling place and just declares their name and address. We have to check the voter ID elements before the postal vote is processed.

Peter Wildman

Another point is that the signature is refreshed every five years. If somebody’s signature does not match at an election, the electoral registration officer will write out saying that the signature did not match and that the person needs to provide a new one. If they do not provide that, we can take them off the absent voter list.

Jamie Halcro Johnston

In effect, the gap at the moment is in the polling stations.

Peter Wildman

Yes, there is a difference between voting in a polling station and a postal vote.

Chris Highcock

I would not necessarily say that it is a gap. When someone affirms their name and address in a polling place, they are making a solemn declaration of their identity, and we trust them in doing that. Many electoral elements are based on trust. If someone says, “My name is X and this is where I live,” we take that as their solemn oath of who they are.

Gil Paterson

Some of the questions that I was going to ask have been covered. With regard to postal votes or proxy votes, how does what you have just described carry over to prisoners? Are there any additional problems, not for prisoners—I can see that it is straightforward for them—but for the administrative process?

Chris Highcock

In our written evidence, we highlighted that the expansion of the franchise is one thing, but the very fact that a prisoner is not at liberty potentially limits the degree to which the normal rules could apply to them. For example, at the moment, if someone does not receive the postal vote form—because it is lost or does not arrive—it can be replaced, but that generally requires the person to come in and ask for it and to show some form of identification. If the papers are spoiled, people are asked to return them and we then reissue them. Some of those things are difficult to apply with people who are not at liberty. At the basic level, it will be the same: prisoners will get a postal vote, they will sign it, put their date of birth and send it back, and it will be processed as normal.

Gil Paterson

What about proxy voting? Is there a problem there?

Peter Wildman

No. Prisoners will need to complete a proxy vote application form. One of the challenges will be the speed with which we can communicate. If an ordinary elector makes a mistake on their proxy vote application or registration application, we can pick up the phone or send an email and can get a fairly quick response. Indeed, if necessary, we can visit people in certain circumstances. With prisoners, that will be more difficult—that will be the challenge.

The Convener

That leads us on to Mark Ruskell’s questions.

Mark Ruskell (Mid Scotland and Fife) (Green)

Yes, I will build on that theme. Chris Highcock’s written evidence says that

“the extension of the franchise is necessary but not sufficient to allow some prisoners to vote”

and that

“Barriers would remain.”

You have just described one of the issues. Are there other such barriers?

Sarah Mackie

One issue that will need to be looked at is that, if somebody is given the vote, they need to be given the opportunity to make an informed choice. As I understand it, there is not unlimited internet access in prison. There will have to be thinking about how people can inform themselves, particularly for elections where people want to look at the candidate’s policies. You can put every party’s manifesto in front of them, but they might want to know about a particular candidate.

Andy Hunter

On the point about postal vote replacements, there is also a point about timing. Currently, electors can go to the polling station and hand deliver a postal vote right up until the last minute, at one minute to 10. Obviously, prisoners will not be able to do that, so everything will have to be posted back and forth. Their timescales for dealing with the postal vote will therefore be shortened to compensate for that.

Another issue is that prisoners are not always local. At the moment, all postal voters live in the returning officer’s local area but, for example, someone from Aberdeen could be in prison in Stirling. That makes it even more difficult because, even if officials could visit people in prison, there is no way that they could travel so far to do that.

Chris Highcock

The expansion of the franchise allows people to vote. We have to accept that they do not have the same ability and freedom that a normal voter at liberty in the community has and that therefore there will be restrictions on them that are not on other people.

At this point, I want to mention some of the basic rules of democracy. People have a hard-won right to vote in secret so that others do not know how they are casting their vote. We may need to think about that. People vote in secret so that they are free from coercion and influence and no one tells them how to vote or rewards them in a particular way. We have to think about creative ways to ensure that people can vote in secret in prison. Those are some of the issues that flow from that.

Mark Ruskell

Has there been discussion of those questions with Scottish Government officials who are drafting the bill and ministers? I see nodding.

Peter Wildman

Yes. We work closely with the Scottish Government and the Scottish Prison Service. Electoral registration officers are more than happy to engage with any stakeholders to look at how we can minimise and mitigate any issues that could arise, although we will perhaps not make the process entirely as smooth as it is for ordinary electors.

Chris Highcock

It is worth saying that the extension of the franchise in that way is potentially an opportunity for education and rehabilitation for prisoners. The lessons and the openness about voting can be part of a process for giving them a broader explanation of life in open society.

Mark Ruskell

Are there particular challenges and administrative issues with prisoners who are serving short sentences in terms of when an election is called?

Chris Highcock

The issue is the same as with any election: it is about who is on the register. Once someone is on the register, the election will be processed as normal and administered in that way. The question is then about getting people on the register and ensuring that the postal vote goes to the right address or that they can vote by proxy.

Peter Wildman

If someone had opted to vote by post and was then released, they would still be committed to vote by post. Chris Highcock can probably comment more accurately on this, but we would have to consider how to ensure that their postal vote reached them.

Chris Highcock

If someone had changed their address, we would make a replacement postal vote, cancel the old one and issue a new one to the new address.

Mark Ruskell

What about prisoners from Scotland who are in English prisons? Does that cause a complexity?

Peter Wildman

We have yet to engage with Her Majesty’s Prison Service south of the border, and we will need to do so just to establish that we can verify that people are serving a sentence of 12 months or less.

Mark Ruskell

Moving on from prisoners, my final question is about the potential to extend the franchise to asylum seekers. Does that pose particular challenges and, if so, are they insurmountable? How would we go about that?

Sarah Mackie

Do you mean challenges in reaching them and encouraging them to register and understand how to vote?

Mark Ruskell

Yes—and potentially to be candidates as well.

Sarah Mackie

Potentially, yes. The commission would take a lead on that kind of awareness raising nationally, but we would work closely in partnership with the electoral registration officers across Scotland, who have links into their communities. It would be very much a partnership approach. We could run a grand advertising campaign, but we are trying to reach 55,000 or 60,000 people who are dotted around the country, so it would not be cost effective to run big nationwide advertising campaigns.

I watched with interest the evidence that you heard on that a couple of weeks ago. Since then, I have spoken to Lorna Gledhill from the Scottish Refugee Council about how we can work together. There are people who are already on the ground working with such communities, so there is no point in our replicating the good work that they are doing. We can work in partnership.

In the past, we have developed education resources on not just how to register and vote but what an elected politician is and what parties are. We are doing that work anyway in relation to political literacy for 16 and 17-year-olds in schools. In the past, we had a big resource that electoral registration officers and youth workers used called the democracy cookbook, which had plain English information about the institutions as well as activities such as build your own politician. Those were fun activities to allow people to think about democracy and what it means. We are looking at developing some of that work for young people, and that can perhaps be transferred to different audiences by using different examples and issues.

As I said, there will be a partnership approach, because we will rely on the expertise and knowledge of people who work with those communities. We can bring the expertise on democracy and voting, but we need the expertise of people who work in those communities and who understand the needs and language barriers. We already translate our forms into about 25 languages, but that might change. I have been looking at some of the census data from 2011 and it looks as though the biggest group that will be enfranchised will be Americans, but there will also be large numbers of Iraqis and Chinese people, so we probably need to think about more translated materials.

The Convener

Obviously, in 2020 there will be an annual canvass of electors, which will relate strongly to the 2021 Scottish Parliament elections. What if another referendum took place in Scotland prior to 2021? Would the electoral register be up to the mark and prepared for that or would extra work be required?

Peter Wildman

Obviously, by definition, we do the annual canvass every year, and the process is heavily prescribed. We have to issue a household inquiry form to every residential property in our area. We then have to issue a second form and if we do not get a response, we have to visit the property to get a response. If we still do not get a response, we have to issue a third form. It is a robust procedure that works well. The independence referendum in 2014 was on 18 September and, by July, my team were already working overtime. To an extent, such electoral events drive registration of their own accord, but the annual canvass supplements and reinforces that. The two work hand in hand.

For the 2020 canvass, if the bill is passed, we will need to ensure that the messaging is clear that the franchise has been extended. As Sarah Mackie alluded to, the UK and Scottish Governments are looking at canvass reform, which means that, for properties where we do not think there has been a change, we will send a light-touch communication. We will need to ensure that that communication makes it clear that anybody who is not registered and who is now eligible can register.

10:15  



The Convener

Earlier, we talked about the percentage of people who are registered. Obviously, a number of factors cause people either to not be on or to fall off the electoral register. We have also talked about education, but what are the plans for education of the general population?

Sarah Mackie

The commission runs a public awareness campaign ahead of every major electoral event. The next campaign that we have planned in Scotland is in the run-up to the Scottish Parliament election. When the commission started, which was more than 10 years ago, we ran year-round activity, but we found that it was not terribly effective. Unless something is dangling right in front of people, they tend not to take action, so it does not work to say, “In a year’s time, there will be an election, so you must register now.” When the messaging says, “You have 10 days left to register,” we get a good return on our money.

There is that element of factual information about how to register and vote and how to get a postal vote. We have been talking to the Australian Electoral Commission, which, alongside its voter awareness campaign, ran a know the source campaign that encouraged voters to look at the messaging that was targeting them at elections and to check the source. We are considering running a similar campaign for the general public at future elections.

The Convener

Some people might say that I do not really remember this but, when I was at school, we never talked about elections, because you had to be 21 to vote at that time. When people get the vote at 16 or 18, there is obviously more of an impetus to get people registered. Is much work done through schools?

Sarah Mackie

We have been working with Education Scotland and various other bodies such as the Association of Directors of Education in Scotland. We have been doing that since just before the independence referendum, because we found that teachers across the country were all taking different approaches. Some people thought that they could talk about the referendum, whereas others thought that they were not allowed to talk about it in school. We came together with those organisations and produced a briefing for headteachers and teachers to say what was appropriate and what would not be appropriate, just to reassure them about what was okay. There was a bit of nervousness around in 2014, because there was quite a highly charged atmosphere.

Since young people from the age of 16 have had the vote permanently for Scottish elections, there has been a much more relaxed attitude. We ran campaigns ahead of the elections in 2016 and 2017 specifically targeting young people in schools. The ready to vote campaign encouraged schools to run registration events in the month of March in both years. I think that, in 2017, 84 per cent of secondary schools signed up to do the registration activity with young people who were old enough to register and vote at that election. The great thing about 16-year-olds rather than 18-year-olds is that we know where most of them are and we can reach them. We will build on that work in the run-up to the 2021 Scottish Parliament election.

The Convener

Thank you. The financial memorandum is obviously something that excites people potentially more than it needs to. If no one else cares to bring in the financial memorandum, I will do so and you may join in when it suits you. The financial memorandum allocates a £280,000 one-off payment to the Electoral Commission for the purposes of publicity, guidance and so on. We are told that

“£200,000 would be an appropriate estimate for the additional public awareness costs”

for the 2021 election, given that it will be the first planned one using the new franchise. Are the resources that are identified in the financial memorandum sufficient to support the necessary work for newly enfranchised voters?

Sarah Mackie

The sum in the financial memorandum is largely for work taking place around the annual canvass. We have a separate budget that sits outside the financial memorandum of usually around £1.5 million to run a public awareness campaign ahead of a poll, and that will kick in in 2021. The amount in the financial memorandum will just be for work that will take place up until our main public awareness campaign runs in 2021, which will also include elements for new voters.

Chris Highcock

As I read it, £200,000 has been allowed in the financial memorandum for the work that local authorities will do on the expansion of the franchise. How the financial memorandum phrases it is that that cost is small enough when spread across 32 local authorities that no additional funding will be required and local authorities will be able to cope with it. I would say that, when it comes to the work of local authorities, £200,000 is still £200,000. Given that there are other pressures that they have to deal with at the moment, an additional £200,000 cost represents still more money that will come away from other services.

The Convener

Fair enough.

Neil Findlay

Chris Highcock is from the City of Edinburgh Council. I was speaking to some local authority people recently who said that they used to have around 40 or 50 staff for youth work but they now have eight. Those staff were the people who went out and engaged with young people and got them on the register and did the democracy workshops and all that kind of stuff. What capacity do you have in Edinburgh for that kind of outreach work?

Chris Highcock

That sort of outreach work is not just done by community education workers; it is done across the council. As Sarah Mackie said, a lot of it goes on through schools, where it is part of the curriculum to make sure that people are aware of the franchise and of the nature of the electoral events that they will be participating in. Even though there may be fewer community education workers than there used to be, there is adequate provision right across the council through a lot of different outreach methods. We do not work just in schools; we also work at citizenship events.

The EROs also have staff who engage with communities and who go out to events right across the community. There is a lot of engagement with black, Asian and minority ethnic community events. The EROs will be at citizenship ceremonies making sure that people have the relevant forms and understand what they have to do. Although there may be fewer specific outreach workers, the work is spread across all that councils do.

Peter Wildman

My area has good partnership working with the three education authorities. Sarah Mackie alluded to the toolkit that the Electoral Commission provides. That has been very effective and it would be good to see it not just in election years but in non-election years as well.

We get lists from the schools of all eligible pupils and, if those pupils have not registered themselves, we will personally write to them inviting them to register. It is a multistrand approach. It is not just education authorities, it is not just EROs and it is not just the Electoral Commission; there is a huge body of work. If there are community groups out there promoting registration, that is a good thing.

Chris Highcock

We often say that politicians, too, have a responsibility to make people aware of their responsibilities. We look at members of the Scottish Parliament as stakeholders in the electoral event as well. MSPs will be knocking on doors and canvassing people, so they have an opportunity to ensure that people are on the register and know what they have to do to take part.

Mark Ruskell

Do you have any more comments on the extension of candidacy rights?

Chris Highcock

We are concerned with the practicalities, but the policy measure is a matter for you. We will apply the rules as they are given. In terms of candidacy rights, when someone fills in a nomination form, we take what they put on the form on faith and we do not check what they say is their address, their name or their citizenship. If that is wrong, they have provided false information and they can be held to account for that. We do not go beyond the four corners of the nomination paper. Whoever the candidate is and whatever their qualification, we take on good faith what they have told us. If that proves to be wrong, they will have to answer for that.

Andy Hunter

I fully agree with Chris Highcock on that. However, we get asked questions in the nomination process, so clear guidance that the potential candidates can check for themselves would be useful to make the process smoother for them.

Gil Paterson

I have a question on security regarding the administrative process in a prison. Are there any issues with security and secrecy?

Peter Wildman

We are working with the SPS to make sure that any communication that we send goes to the correct prisoner. We are exploring options for how we can ensure that that happens. Every prisoner has a number allocated to them, so that may form part of the communication to ensure that we get the right communication to the right prisoner.

Sarah Mackie

We will want to discuss with the SPS how we ensure that, when prisoners vote, they have a private secure area where they can fill in their vote independently and without any undue influence.

The Convener

Thank you. You have taken everything that we have given you and you have given us very strong answers. We may be in touch with you again at some future point. Andy Hunter, Sarah Mackie, Chris Highcock and Peter Wildman, thank you all very much indeed. I will let you go now.

10:26 Meeting continued in private until 11:00.  



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12 September 2019

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19 September 2019

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3 October 2019

Standards, Procedures and Public Appointments Committee Stage 1 Report

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

  • bring a section or sections of a law that’s already been passed, into force
  • give details of how a law will be applied
  • make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Delegated Powers and Law Reform committee

This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.

Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 27 September 2019.

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

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Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-20049, in the name of Michael Russell, on the Scottish Elections (Franchise and Representation) Bill at stage 1, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Wightman, Andy (Lothian) (Green)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Robison, Shona (Dundee City East) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Findlay, Neil (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Tomkins, Adam (Glasgow) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Greene, Jamie (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carlaw, Jackson (Eastwood) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

The Presiding Officer

The result of the division is: For 63, Against 18, Abstentions 0.

Motion agreed to,

That the Parliament agrees to the general principles of the Scottish Elections (Franchise and Representation) Bill.

The Presiding Officer

The final question is, that motion S5M-19966, in the name of Derek Mackay, on a financial resolution for the Scottish Elections (Franchise and Representation) Bill, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Scottish Elections (Franchise and Representation) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

Meeting closed at 16:51.  



Financial resolution

A financial resolution is needed for Bills that may have a large impact on the 'public purse'.

MSPs must agree to this for the bill to proceed.

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Financial resolution transcript

The Presiding Officer (Ken Macintosh)

The next item of business is consideration of motion S5M-19966, in the name of Derek Mackay, on a financial resolution for the Scottish Elections (Franchise and Representation) Bill.

Motion moved,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Scottish Elections (Franchise and Representation) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.—[Derek Mackay]

The Presiding Officer

I am minded to accept a motion without notice to bring forward decision time to now. As no one objects, I call on the Minister for Parliamentary Business and Veterans to move such a motion.

Motion moved,

That, under Rule 11.2.4, Decision Time be brought forward to 4.49 pm.—[Graeme Dey]

Motion agreed to.

Vote at Stage 1

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Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-20049, in the name of Michael Russell, on the Scottish Elections (Franchise and Representation) Bill at stage 1, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Wightman, Andy (Lothian) (Green)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Robison, Shona (Dundee City East) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Findlay, Neil (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Tomkins, Adam (Glasgow) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Greene, Jamie (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carlaw, Jackson (Eastwood) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

The Presiding Officer

The result of the division is: For 63, Against 18, Abstentions 0.

Motion agreed to,

That the Parliament agrees to the general principles of the Scottish Elections (Franchise and Representation) Bill.

The Presiding Officer

The final question is, that motion S5M-19966, in the name of Derek Mackay, on a financial resolution for the Scottish Elections (Franchise and Representation) Bill, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Scottish Elections (Franchise and Representation) Bill, agrees to any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act.

Meeting closed at 16:51.  



MSPs agreed that this Bill could continue

Stage 2 - Changes to detail 

MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.

Changes to the Bill

MSPs can propose changes to a Bill  these are called 'amendments'. The changes are considered then voted on by the lead committee.

The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.

The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.

The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.

Depending on the number of amendments, this can be done during one or more meetings.

First meeting on amendments

Documents with the amendments considered at the meeting held on 16 January 2020:

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First meeting on amendments transcript

The Convener

Agenda item 2 is the core business of today: Scottish Elections (Franchise and Representation) Bill stage 2 proceedings. I will explain how everything is going to work, so bear with me and we will then move straight to the business.

I welcome Michael Russell, the Cabinet Secretary for Government Business and Constitutional Relations, and his accompanying officials. I highlight that officials are not permitted to speak on the record during today’s formal proceedings. We will also welcome at a later point in the meeting Liam McArthur, who has lodged an amendment to the bill.

Members might find it helpful to have a reminder of the stage 2 process. Everyone should have a copy of the bill as introduced, the marshalled list of amendments, which sets out the amendments in the order in which they will be disposed of, and the groupings.

There will be one debate on each group of amendments. I will call the member who lodged the first amendment in the group to speak to and move that amendment and speak to all other amendments in the group. I will then call other members who have lodged amendments in the group to speak to their amendments and to others in the group, but not, at that time, to move their amendments.

Members who have not lodged amendments in the group but who wish to speak should indicate that to me or the clerk, and we will make sure that they are called. If the cabinet secretary has not already spoken on the group, I will invite him to contribute to the debate just before we move to the winding-up speech.

The debate on each group will be concluded by me inviting the member who moved the first amendment in the group to wind up. Following the debate on the group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or seek to withdraw it. If the member wishes to press it, I will put the question on the amendment. If the member wishes to withdraw it, I will ask whether any member objects to that. If any member objects, the amendment is not withdrawn and the committee must immediately move to a vote on it.

If any member does not wish to move their amendment when it is called, they should say, “Not moved,” and should do so audibly. Any other member who is present may move the amendment. However, if no one moves the amendment, I will immediately call the next amendment on the marshalled list.

Only committee members are allowed to vote. Voting in divisions is by a show of hands. It is important that members keep their hands clearly raised until the clerks have recorded the vote.

The committee is required to indicate formally that it has considered and agreed to each section of the bill, so I will put the question on each section at the appropriate point.

If we have a tied vote on any amendment, I will, as convener, vote as I voted in the division. I will do that consistently throughout the process.

I hope that that is all clear to everyone. Depending on how we progress with the consideration of amendments, we may have a short comfort break at 10.15.

Section 1—Voting by qualifying foreign nationals

The Convener

The first group of amendments is on voting by asylum seekers or dependants at Scottish parliamentary elections and local government elections in Scotland. Amendment 1, in the name of Mark Ruskell, is grouped with amendment 10.

Mark Ruskell (Mid Scotland and Fife) (Green)

Amendments 1 and 10 seek to enfranchise around 5,000 asylum seekers in Scotland who have a lawful right to live in Scotland. They are not illegal immigrants but part of our communities. They are our neighbours, friends and colleagues and they make a valued contribution to Scotland. If we can find a way to enfranchise those people, that would send a very clear message that people seeking refugee protection in Scotland are equally valued, no matter where they were born.

The Scottish Government’s “New Scots Refugee Integration Strategy” establishes an important principle of integration from day 1, regardless of somebody’s immigration status. It is important that people who are seeking safety and peace in this country, who are attempting to rebuild their lives here and are accessing services such as education and healthcare, are part of our community. They are not others—not illegal immigrants—and they should be integrated. Part of that integration is about ensuring that they are enfranchised and have the vote. In the words of one Glasgow refugee,

“Granting refugees full political rights will help overturn stereotypes of migrants and asylum seekers as simply victims in need of help.”

From my perspective, having heard some of the evidence at stage 1, I think that there are some practical issues to consider and I have had constructive discussions with the Cabinet Secretary for Government Business and Constitutional Relations, the bill team and Pete Wildman from the Association of Electoral Administrators in Scotland. The first question is about the identity of asylum seekers. How can they prove their identity? They do not have a national insurance number, so when they fill out their registration forms, they will not be able to fill out that section. However, there is an alternative way for people to identify themselves, which is through the production of other accredited documentary evidence that verifies somebody’s identity.

In the case of asylum seekers, there are clear forms of documentary evidence that could be provided. One is an immigration bail certificate known as a BAIL 201 notice, which is issued by the Home Office. It underlines the fact that the person is in the immigration and asylum system and that they have a lawful right to live in this country; they are identified. An accompanying piece of documentation alongside the BAIL 201 certificate is an asylum registration card, which is a form of photographic identification that, again, identifies the person.

In my discussion with Pete Wildman, I learned that electoral registration officers would need the guidance that is issued to them to be updated to confirm that those forms of documentation are acceptable as verification. We do not want to put registration officers in a position where they have to assess for themselves what is a reasonable and acceptable form of documentation and verification. The guidance should be updated to make it clear that, if someone does not have a national insurance number but has those other forms of identification, that is fine.

In terms of where they reside—their normal place of residence that allows them to be on the electoral register—in many ways asylum seekers have more evidence than you or I do, convener. When they come to this country, they are not allowed to work and they are therefore largely dependent on the state. The Home Office has a duty to provide dispersal accommodation for them and they are registered at that address. It is their proven place of residence for the period during which they claim asylum. They are verified, and that should, in many ways, make the work of electoral registration officers simpler.

I believe—I think that the cabinet secretary believes this as well—that everybody who makes their home in Scotland should have a say in how our country is run, and we need to find a way through this to give asylum seekers that important enfranchisement and vote.

I move amendment 1.

Neil Findlay (Lothian) (Lab)

I endorse a great deal of what Mark Ruskell said. Those who make Scotland their home have the right to have a say in how the country is run.

I have also had discussions with the Scottish Refugee Council and I am reassured that the practical issues that the Government flagged at stage 1 and in our committee discussions can be overcome. People who are in the asylum system have plenty of identification; indeed, they must have it to satisfy the Home Office, so I think that the issues that relate to ID other than a national insurance number can be overcome. We can make the decision here in this Parliament, in Scotland—with no influence from anyone else—to include in the franchise people who are legally here in the asylum system.

The Convener

Gil Paterson would like to come in.

Gil Paterson (Clydebank and Milngavie) (SNP)

I would not mind hearing what the minister has to say. I appreciate the points that colleagues are making, but I would like to understand the Government’s position. If I am allowed, perhaps I could come in after that.

The Convener

Certainly, Gil. I invite the cabinet secretary to make a statement.

The Cabinet Secretary for Government Business and Constitutional Relations (Michael Russell)

I have indicated repeatedly that I am not unsympathetic to the idea—in fact, I am very sympathetic to the idea—but you cannot wish away somebody else’s immigration rules and systems; you have to remove them legally. The major obstacle to the proposal is that immigration rules and systems are not set by us. If they were, I would be very happy to see them adapted to see whether we could do this, but they are not.

I am grateful to the Scottish Refugee Council in particular for its views on the bill. It said:

“We maintain that the Bill is a truly exciting piece of legislation, set to address a longstanding democratic deficit whereby thousands of New Scots have been unable to participate formally in Scottish democracy ... The passing of this legislation will be a seminal moment for thousands of New Scots, with refugee communities fully accepted on an equitable basis in the political sphere.”

That is being done, and we should all be glad that it is being done. There will be some people who will vote against it, but the majority in the committee and the Parliament will, I hope, be keen to see that that is done.

However, we cannot do everything in a devolved Parliament—that is the issue. Mark Ruskell’s proposal cannot be done easily or without enormous complications and difficulties for electoral registration officers, and they accept that. Pete Wildman said in evidence that the proposal

“almost takes us into immigration territory, which would be quite challenging for electoral registration officers.”—[Official Report, Standards, Procedures and Public Appointments Committee, 28 November 2019; c 15.]

Mark Ruskell

Can I—

Michael Russell

No, because there are six points that need to be made. I know that Mr Ruskell has heard these directly, but it is important that we repeat them here.

First, immigration rules say that an asylum registration card is not a form of ID, so, at the very beginning, we know that the use of an immigration card is not enough.

Secondly, the difficulty is identifying refugees, and if the bail card is not identification, there is no other identification. Another issue is residence. The registration office will not know how long a person will be resident where they are seeking to register.

Thirdly, registration officers are absolutely clear that they do not want to hold immigration-style hearings or to have to employ people who have the expertise to do that. They see that as a difficulty in terms of the integrity and reputation of their work, which must be clearly impartial.

Fourthly, they believe that the public may lose confidence in the register if it contains people who have left Scotland or who have lost their claim.

Finally, adding foreign nationals, which is a good thing and which the bill is doing, is a big step. Registration officers believe that that major change would have to bed in before they looked at an even more difficult task, which is what Mark Ruskell is proposing.

As I said, I am not against it. If Scotland were in total charge of its immigration system, I would try to change the system. I hope that we would not have the type of system that we have now. However, we cannot wish that away.

Neil Findlay

Will the cabinet secretary take an intervention?

Michael Russell

No, let me finish.

If the registration officers are saying that this is something that they cannot do, those people who are setting the regulations in the legislation need to be very mindful of that. The registration officers are not even saying that it is a difficulty that they will overcome; they are saying that there are other things that they need to do first. I am not against it but, in practical terms of good legislation, the best in these circumstances is the enemy of the good. We should recognise that.

09:15  



The Convener

Thank you, cabinet secretary.

To clear up the situation for members, the opportunity for them to speak comes after the person who is moving the amendment has spoken. Thereafter, after members have had the opportunity to speak, the cabinet secretary will have the opportunity to speak. We will then return to the mover of the amendment to wind up. Those are the rules that we operate by at stage 2. As such, if members want to bring anything up, they have to do so prior to the point at which the cabinet secretary speaks. Those are the rules at stage 2, I am afraid.

Neil Findlay

To clarify, convener, is it correct that we can intervene on one another, but not on the cabinet secretary?

The Convener

Yes.

Neil Findlay

Can we intervene on the cabinet secretary?

The Convener

No, you cannot.

Neil Findlay

We cannot intervene on the cabinet secretary. Can we intervene on Mr Ruskell when he is summing up?

The Convener

Yes, you can—as long as he is willing to accept an intervention. That is only to make sure that the discussion is in a format that we can carry through, because it is about legislation.

I call Mark Ruskell to wind up and press or withdraw amendment 1.

Gil Paterson

Could you start—

The Convener

Hold on a second, please. When I ask someone to wind up and to press or withdraw their amendment, that person will speak. A member can intervene if that is okay with the person who is winding up. We have to follow that format.

Mark Ruskell

I would like to hear everybody’s views before I wind up; nonetheless, if the convener wants me to do it iteratively, I will do it iteratively.

I start with the cabinet secretary’s views. I was a bit disappointed to hear his position, because it does not appear to have moved on since November. Has he or his team spoken to the electoral registration officers in the past couple of months? He can intervene if he likes.

Michael Russell

Yes.

Mark Ruskell

It is fair to say that the electoral registration officers were rather busy during December, but I spoke to them on Monday of this week. They have not met to review their position on the enfranchisement of asylum seekers; I understand that they will meet at the end of this month. However, I took from the meeting that I had with Pete Wildman that there is—understandably—a lack of detailed knowledge about how the asylum system works and about the forms of verification that asylum seekers have as to their identity and residency.

Gil Paterson

Will Mark Ruskell take an intervention?

Mark Ruskell

In a second.

I am confident that, by furnishing the registration officers with more information on how the asylum system works, those concerns can be resolved; I do not see them as enormous complications in any way.

The cabinet secretary talked about residency and about people moving around. Asylum seekers are often in the system for years, in dispersal accommodation. Students in our society move around from semester to semester, from term to term and from month to month. Although I am sure that it would be easier for the registration officers if they did not have to register students, they do have to do that, because students have an important role in our society, and they have a vote and are enfranchised. There are logistical issues around particular groups in our society, but I am sure that the enfranchisement of more foreign nationals provides an opportunity for our electoral system, as well as placing a burden on it. However, as I said, all the issues can be resolved; indeed, they are largely being resolved at the moment.

I will take interventions from Gil Paterson, Neil Findlay and Tom Mason—and anybody else who wants to come in.

Gil Paterson

Thank you. I am sorry if I am abusing my position—I was hoping to intervene or seek guidance after the cabinet secretary spoke, as there are two aspects to his comments that I want to address.

I am sympathetic to the general thrust of what we are trying to do here, but there are two things that, at this moment in time, prevent me from supporting Mark Ruskell’s amendments. First, if the Government is saying that the practicalities mean that enfranchising asylum seekers will be at best difficult and at worst impossible, I have to take that into consideration.

The second is an issue that comes up quite frequently and is a major one for me, so I will explain it now. Certain parties in the Scottish Parliament want the Government to act as though it has all the powers, but it does not. That annoys me somewhat. I get quite annoyed when people—I am not talking about Mark Ruskell—refuse to even support the idea of the Parliament having the powers that we should have in order to deal with such things. They only come on board to try and blame the Government and the cabinet secretaries for not implementing something that they cannot do because they are handcuffed by the lack of powers.

There is an opportunity to change the bill at the final stage, but at this point in time those two aspects mean that I cannot give the amendments my support.

Mark Ruskell

Thank you.

It is important not to conflate two issues here. The first is the devolved issue that the bill is dealing with, which is the enfranchisement of citizens of this country, and the second is the immigration status of particular individuals in this country. I accept the limitations that the cabinet secretary has spelled out in relation to our inability to change somebody’s immigration status. However, that is not what we are debating; we are debating a change in the enfranchisement arrangements under the bill and the inclusion of people who have a definite immigration status and a lawful right to live in our country.

I point to Scottish Government policy, which is about integration from day 1, regardless of immigration status. That is the Scottish Government’s policy, and it allows asylum seekers certain rights in the healthcare and education systems, all of which is backed up by the BAIL 201 form. That documentary evidence is presented to hospitals and NHS service providers to enable asylum seekers to access services. The logistical issues do not appear to be a problem for doctors and nurses treating asylum seekers or for schools or other public service providers, such as councils.

Like Gil Paterson, I hope that we can move forward and reassure registration officers that those issues can be dealt with.

The Convener

I will let members finish and then I will come back to how we will run the rest of the meeting.

Neil Findlay

Let us be absolutely clear that the issue is one that Parliament can decide today. There is no other Parliament holding powers over us that prevents us from enfranchising asylum seekers—it is up to the Scottish Parliament to decide today, and to say otherwise is a red herring. We can decide what we accept as a form of identification—that is completely at our discretion and within the powers of the Parliament. Again, it is a red herring to say that that cannot be done.

The cabinet secretary says that we cannot know how long people will be in a certain place. None of us knows how long we will be resident anywhere—we could move tomorrow, and the next day and again the day after that. Mark Ruskell gave the very good example of students in that respect. All those objections are red herrings.

The Scottish Refugee Council has explained very clearly how the practicalities of the bill can be implemented. I repeat: it is a decision for the Scottish Parliament to make today. We have the powers to do this—let’s do it.

The Convener

For the rest of today’s stage 2 discussion of the bill, we will return to the correct procedures, under the guidance on bills. As it has been such an unusual start, I will allow the cabinet secretary to say something in reply.

Michael Russell

I simply make the point that you can believe the registration officers’ view and that we do not have control of migration—and I certainly think that my responsibility is to listen to the registration officers—or you can believe other views that this is easy and can all be done. However, it cannot be done.

It is the committee’s choice to create difficulties for the registration system and imperil the really good things in the bill by insisting on adding something that is very difficult to do, but I am afraid that that would damage what we are all trying to achieve. The best is the enemy of the good, and I urge members not to reject the idea, but to say that it is not practical. In any case, the drafting would have to be changed because there are real problems with it. The amendments try to do something that the committee is being told by those who are responsible for the system will damage the wider objectives that we have set ourselves. I do not think that that is a sensible thing to do.

The Convener

I call Mark Ruskell to wind up and press or withdraw amendment 1.

Mark Ruskell

In those comments, the cabinet secretary just reiterated where he was previously in the debate—he did not really add anything. I was hoping for a statement that there will be continued discussions with the electoral registration officers on the issue and that some of the lack of awareness around how the asylum system operates and the more practical, administrative aspects could be reflected in those discussions. We are talking about administrative reasons why asylum seekers cannot be enfranchised. Are we really going to let paperwork hold up citizens’ rights in Scotland? That is what the debate has come down to. It is not about immigration status, devolved and reserved powers or wider questions about the constitution; it is about paperwork and administration. I am not going to let paperwork stand in the way of the rights of citizens who are part of my community.

Let us focus on the paperwork, as that issue can be resolved through guidance. I would like to know whether the Scottish Government is considering how to update the guidance on the paperwork that is required under the relevant section of the registration form. The relevant section is not the one in which people fill in their national insurance number; it relates to other forms of documentary evidence. That would give the registration officers what they want, which is clarity. They do not want to get involved in debates around individuals’ immigration status, and they do not need to. If they have clear guidance that tells them that a BAIL 201 form is an acceptable form of identification, they can tick the box, move on and give people the rights that they deserve.

I press amendment 1.

The Convener

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Ruskell, Mark (Mid Scotland and Fife) (Green)
Findlay, Neil (Lothian) (Lab)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Mason, Tom (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 1 disagreed to.

The Convener

Before we move on, I will refer to the guidance on bills, because it is important. The guidance states:

“The debate on a group is the only opportunity members have to comment on any of the amendments in the group.”

The opportunity has been given for this group and will be given again for each future group.

The guidance also states that

“the calling of speakers in a debate is at the discretion of the convener”.

I have used that discretion already.

The guidance goes on to say that

“members should generally assume they will be called only once in each debate. Members should therefore ensure that their speech relates to all the amendments in the group on which they wish to comment.”

As we go forward, one opportunity will be granted to each member of the committee—should they wish to speak—prior to the cabinet secretary’s opportunity to sum up. After that, we will move on.

Amendment 10 not moved.

Section 1 agreed to.

After section 1

The Convener

The next group is on voting by foreign nationals with leave to remain and European Union citizens at Scottish parliamentary elections. Amendment 17, in the name of Tom Mason, is grouped with amendment 18.

09:30  



Tom Mason (North East Scotland) (Con)

Amendments 17 and 18 seek to address an anomaly in relation to people who have residency in this country, as opposed to people who have citizenship. As the bill stands, individuals who arrive in the United Kingdom will, in a relatively short time, have the same franchise as those who have demonstrated a long-term commitment to reside here.

It goes without saying that people who have chosen to come here make our society richer, through their different experiences and cultural traditions. We value all who make Scotland their home. I should also say that I do not intend my proposed approach to remove the right to vote from anyone who currently has that right. If further provision is necessary to clarify that, I will be happy to look again at the amendments. In particular, amendment 18 does not make holding citizenship a requirement. Rather, it sets out a timeframe that implies a similar commitment to living here permanently.

There is international precedent for similar measures. In Canada, non-Canadian citizens with permanent residency do not have the right to vote at any level; they get that right only after gaining full citizenship. Since 1996, green card holders in the United States have been able to vote in certain local elections but not at state or federal level.

Amendments 17 and 18 seek to decouple local and national voting, ensuring that individuals who come to our country can have their say at local level while setting a higher standard for national elections. Amendment 18 sets the relevant time period as being the same as that for citizenship, but I am open to the committee’s views on that.

We are changing the fundamental principle of voting in relation to citizenship and residency. Although the bill is small, it will have implications for many generations. It is therefore important that we make the right decision at this point. If we do not do so, we might create a situation that will cause problems for future generations, and which we will then be unable to change.

I move amendment 17.

The Convener

Does any committee member want to speak about the amendments in this group, before I invite the cabinet secretary to wind up? This is your opportunity to do so; it will not come again.

Mark Ruskell

Let me briefly just go back to Scottish Government policy, because I am a big fan, in this context. Integration of foreign nationals from day 1 in this country, regardless of their immigration status and where they are from, is important. The restricting of voting rights to people who have been here for a certain time is not the right way forward. Let me be frank with Tom Mason: I think that we need to extend the franchise to everyone who is resident here. That is a key point that I will make in the context of amendments that we will consider later.

Michael Russell

We have just had a discussion about whether the bill should go further and enfranchise more people. I agree with Mr Ruskell that we should do everything that we can to enfranchise the largest number of people.

Therefore, I disagree with Mr Mason on amendments 17 and 18. No franchise is static. All franchises change—they should change, and they should go on changing. What we are trying to do here is to have a wide and inclusive franchise.

Amendments 17 and 18 seek to restrict the extension of rights in the bill by limiting it to local government elections. Amendment 18 also puts forward the concept of allowing only European Union and other foreign nationals who have five years’ residence to vote in Scottish Parliament elections.

Throughout the bill process, I have made clear that the bill seeks to send a strong, positive message to people who have chosen to make their life here—it is just as Mr Ruskell said; we are in substantial agreement on these points. I am pleased that the majority of the committee welcomed the extension of voting rights to foreign nationals. We have just discussed how it is a positive move to allow as many people as possible who live in and contribute to our country to have the right to vote in our elections.

The majority of respondents to our consultation on electoral reform agreed with that. Of the 751 respondents who answered the question on enfranchising legally resident foreign nationals, 79 per cent were in favour. The Welsh Government and Senedd also agree with such an approach: the Senedd and Elections (Wales) Bill, which allows foreign nationals to vote—using almost exactly the same formulation as our bill uses—has been passed.

I do not expect to convince Mr Mason of the benefits of that approach. However, I offer a couple of observations on amendment 18. By restricting the right of EU citizens to vote in Scottish Parliament elections, amendment 18 would remove rights that EU nationals hold under the existing law. It would also impose on electoral registration officers another potentially onerous obligation, which we have been discussing: to satisfy themselves with regard to people’s residency over the past five years. As members know, we have substantial evidence that such a requirement has already proved problematic for EU nationals who are applying for settled status. The Scottish Government has made very clear its commitment to ensuring that EU citizens’ rights to vote will be protected after the UK leaves the EU.

For those reasons I cannot support the dilution of existing rights that amendment 18 proposes. I ask the committee to reject amendments 17 and 18.

The Convener

I call Tom Mason to wind up and press or withdraw amendment 17.

Tom Mason

As I said, the bill represents a change in the fundamental principles of voting in Scotland. Amendment 18 seeks to extend the time period for residency of a qualifying foreign national. At the moment, anybody who arrives here can establish their residency in as little as three months. They could come here not understanding anything about the local culture, including our voting methods, but would then be able to make decisions on very important matters through the elections to the Scottish Parliament.

I consider that extending the necessary residency period from three to five years, which would be consistent with the period for applying for citizenship, would not block people’s rights; it would be advisable for us to do so, to ensure that we get rational development of policy in Scotland.

If we need further amendments to maintain existing voting rights for those who are already here, I would go along with those. However, anybody who is already here has the right to seek citizenship in exactly the same way as anybody else.

With those thoughts, I leave the matter with the committee. I press amendment 17.

The Convener

The question is, that amendment 17 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 17 disagreed to.

Amendment 18 moved—[Tom Mason].

The Convener

The question is, that amendment 18 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 18 disagreed to.

Section 2—Scottish parliamentary elections: nomination, election and holding office

The Convener

The next group is on the candidacy of foreign nationals with leave to remain and asylum seekers at Scottish parliamentary elections and local government elections in Scotland. Amendment 11, in the name of Mark Ruskell, is grouped with amendments 12 to 14.

Mark Ruskell

At the moment, the bill creates unequal candidacy rights for foreign nationals. A citizen who arrives from the European Economic Area or the European Union is able to stand for election pretty much on the day of their arrival. However, others require to have an immigration status with indefinite leave to remain before they can stand for election. That will exclude people who have applied for indefinite leave to remain and have been involved in a process of renewal for many years. Some people in our communities have been here for more than a decade and, despite applying, do not yet have indefinite leave to remain. That is wrong: there should be equal candidacy rights for all foreign nationals who live in this country and have a legal right to do so.

An individual’s immigration status might be a complicating factor in relation to their ability to take and hold office and to be remunerated for their work, but it should not be a factor that removes their right to candidacy.

Every year, local authorities have by-elections that are caused by members standing down for a variety of reasons, such as ill health or changing personal or work-related circumstances. People come in and out of politics for a range of reasons, but they are not barred from standing for election because of their health or employment status or for any other reason. If they are eligible to stand, they stand.

Asylum seekers currently have no automatic right to work. The ban on working can be waived by the Home Office, and guidance exists about that. I am interested to hear from the cabinet secretary whether the Scottish Government has discussed with the Home Office whether the guidance on asylum seekers who are in paid work can be changed to allow them to work and to be remunerated in certain positions, including elected office. They can of course undertake voluntary work, so in theory they could stand, be elected to office and conduct their duties in a voluntary capacity, claiming only expenses. That would create equity issues for them in comparison to other elected members, but in theory it would be a way forward.

The committee had an excellent briefing session on this issue. We met asylum seekers and I made the point at the time that many of those individuals were highly valued by their communities and would make excellent elected representatives—I would be willing to vote for a number of them.

The issues around immigration status relate not to candidacy but to the right of those individuals to undertake paid work in this country. I recognise that there is a discussion to be had with the Home Office and I would be interested to hear from the Scottish Government how hard it is pushing at that door.

I move amendment 11.

The Convener

Do any other members of the committee wish to speak?

Neil Findlay

Consistent with my previous position on the franchise, I will support this amendment, for many of the reasons that were outlined by Mark Ruskell.

The Convener

As no other member of the committee wishes to speak, I invite the cabinet secretary to do so.

Michael Russell

The situation with regard to this group is not dissimilar to that of the first group. Mr Ruskell has asked whether I can assist him with this issue, and I will do my best to do so.

The way forward for this issue is slightly different from the way forward for the first one. The difficulties for returning officers are not as great, given the numbers that are involved, but there are issues with regard to by-elections. They are not quite as presented by Mr Ruskell; of course there are by-elections because people change their jobs, or for other reasons. However, the number who are disbarred, such as by bankruptcy or a jail sentence, is comparatively limited—in fact, very limited. For this issue, there would be a disbarring effect; the person would not be able to complete their term because, in essence, they were no longer eligible to be here.

There is a difference, but I think that we can move the situation forward in two ways. I am sympathetic, and I am willing, as are my officials, to approach the Home Office in the light of today’s debate.

I have very little confidence that it will respond in a positive way. I have dealt with migration issues through the Brexit process for the past three and a half years. There are lots of brick walls, and the brick wall on migration is particularly dense—the UK Government has an obsession with it.

If Mr Ruskell is not going to press these amendments, I am willing to have the conversation and see what comes out of it. That could remove the first blockage, which is about whether this amendment—particularly as drafted—is within our competence, because it would impinge on the status of migrants, which is not within our competence. If, for example, the Home Office were to say, “Yes, we are going to change the regulations, the guidance and the law to allow this to happen—this will be an exception”, that would remove the first of the barriers.

There is another barrier, which I think we can remove at stage 3 and I am looking to see how to do that. As the bill is presently drafted, EU nationals with settled status would be able to stand as candidates, but the bill does not at present enfranchise people with pre-settled status.

I am very concerned about pre-settled status, what it means and how the system is operating. I think that it would be logical to extend that right to people with pre-settled status, so I am seeking to find a way in which we can do that at stage 3.

09:45  



Being realistic, I do not hold out much hope that the Home Office will change its position, but I am willing for my officials to have that conversation with a view to getting the position changed. If we can do that, we could see whether an amendment at stage 3 was possible. I commit to lodging such an amendment at stage 3 if we can find a way—I hope that we can—to deal with pre-settled status. In other words, we are moving towards Mr Ruskell’s position. Let us see whether we can complete that move. To that end, it would be helpful if Mr Ruskell withdrew amendment 11 and we can return to the matter at stage 3.

Mark Ruskell

I welcome what the cabinet secretary has said, particularly his comments about people with pre-settled status, in relation to whom it is clear that there is an anomaly with regard to candidacy. If a stage 3 amendment was lodged to deal with that, that would give hope that the brick wall can be dismantled in small chunks and that asylum seekers can be part of our community and do useful work, which I know that they desperately want to do but are thwarted in doing by the Home Office’s restrictions.

On the basis that that would move things forward, I am happy to seek to withdraw amendment 11.

Amendment 11, by agreement, withdrawn.

Amendment 12 not moved.

The Convener

The next group is on candidacy at Scottish parliamentary elections of foreign nationals with indefinite leave to remain. Amendment 19, in the name of Tom Mason, is the only amendment in the group.

Tom Mason

Amendment 19 seeks to bring the requirements for candidacy into line with the requirements for voting that are outlined in amendments 17 and 18. It is largely a technical amendment that does not raise any considerations in relation to qualification other than those that have already been discussed. However, because I did not succeed with amendments 17 and 18, I do not intend to move amendment 19.

Amendment 19 not moved.

Section 2 agreed to.

Section 3—Local government elections: nomination, election and holding office

Amendments 13 and 14 not moved.

Section 3 agreed to.

After section 3

The Convener

The next group is on the minimum age for candidates at Scottish parliamentary elections and local government elections in Scotland. Amendment 3, in the name of Mark Ruskell, is the only amendment in the group.

Mark Ruskell

One of the most positive changes that we have seen in our democratic franchise in recent years has been 16 and 17-year-olds acquiring the ability to vote. During the 2014 referendum, I was really moved to see whole class loads of high school students coming down to their local polling centre to vote; the same has happened in subsequent elections. Those are incredible scenes.

Globally, young people such as Greta Thunberg are showing great leadership in our society. That begs the question, if young people are enfranchised, why should they not also be able to stand for election to the Scottish Parliament or to local government? Fundamentally, I believe that candidacy rights should match voting rights. That is why I lodged amendment 3.

The potential introduction of candidacy rights for 16 and 17-year-olds is potentially quite a big change. I realise that a lot of issues would need to be considered and consulted on; I am not sure whether we are quite ready in Scotland to consider a proposal at this point to deliver those rights in this bill. However, I think that we need to initiate a process and a discussion. That is why I felt that it was appropriate to put in place provision in this bill to allow ministers to introduce regulations at the right time. A super-affirmative procedure would ensure that it is given adequate consideration in Parliament. There would be a long period of 120 days for Parliament to consider any potential change in those candidacy rights. It is a belt-and-braces approach. It is not about saying, “Today is when we give 16-year-olds—or 17-year-olds—the right to stand in council elections”. However, we need to consider the issues.

The committee has already had some evidence from members of the Scottish Youth Parliament, which thinks that young people would be prepared to take on such a responsibility. There is a growing debate on this issue and the way forward would be to establish a power for ministers to make regulations through this proposed act and to see what transpires in the years to come.

I move amendment 3.

The Convener

Thank you. Do any other members have anything that they would like to contribute?

Gil Paterson

I have been a great believer for a long time in young people being able to influence issues that society charges them with. For instance, if they work and pay tax, they should be involved in decisions on the level of tax. Someone can get married at 16 years of age—in Scotland, that has been possible for a long time—and the idea that they cannot vote has always bothered me.

However, there is a counter-argument. In this Parliament, we have people with a variety of experience. My academic experience is not the best, but I bring a lot of experience to the table on technical stuff. I worry about lowering the age for candidacy because young people lack experience.

I do not want to criticise anyone, but I sometimes think that there are limitations to how some members manage in their parliamentary journey. They do not have experience of some of the things that they deliberate on. I have just explained that academia is not my area—I am fessing up to that. I think that there is a requirement that when people are making laws, for instance, they should bring something to the table. Unfortunately, it takes young people a bit of time to get that experience. The age of 18 is borderline, but reducing the candidacy age to 16 or 17 is somewhere that I do not want to go.

Tom Mason

I am fairly sympathetic to this in some ways. My biggest worry generally is the inconsistency of the age where people are seen as coming into adulthood—the age of legal competency and so on.

My biggest worry here is that it is proposed as a change by regulation and not by primary legislation. Although, in general, I am fairly sympathetic, I do not think that that is the way to do it.

Neil Findlay

I am quite torn. I do not concur with Gil Paterson’s view that just because people are young they cannot bring experience to the table. To turn that on its head, there are several people in Parliament whose experience we could have done without, over the years. However, that is neither here nor there.

I have sympathy with what Tom Mason says about the way in which it is done. I am supportive of the principle behind amendment 3, but I do not think that giving ministers the powers to develop regulations is the way in which it should be done.

Michael Russell

Unusually, I find myself in agreement with Neil Findlay and Tom Mason. I am not unsympathetic to amendment 3. If I had a crystal ball, I would look into it and see that such a change will probably happen at some stage. However, the way in which it happens is crucial. It is a major change to the electoral franchise—indeed, it could be unique. There is no substitute.

The normal situation in such discussions is that committees are critical of secondary legislation and ministers are urging secondary legislation. We have the opposite situation here. I do not think that such a change can be made by secondary legislation. The super-affirmative procedure is no substitute for a three-stage bill, with consideration of the general principles of the bill at the first stage and of the details at the subsequent stages. An example of that can be found in amendment 3 itself. The amendment fixes the age at 16—it sets that age. However, there could be substantial discussion about that age.

I am not at all unsympathetic to discussing the idea. I suspect that the issue will return the next time that the Parliament considers an electoral bill, which may be in the next session. If this change were to be proposed, either by the Government—whichever Government that is—or by a member, it would be as part of primary legislation, rather than secondary legislation.

There are some issues that we would have to consider. For example, the Welsh Government considered the issue under its recent legislation on electoral reform. It concluded against making the change and the debate threw up some important issues about child protection and working hours, which would need to be considered. We have not explored those issues and they would need to be explored through a primary legislation process.

Although I accept that Mr Ruskell is building in the consultation issue, reflecting the discussion that took place at stage 1, I do not think that this is the way to tackle the matter. The card is marked, and that being so, I suspect that a future Parliament will return to the issue—perhaps quite soon—but not by means of secondary legislation.

Mark Ruskell

I appreciate those points. The points around child protection and working hours are real issues that would need to be considered in any consultation or scrutiny. I also appreciate the points made by Neil Findlay, Tom Mason and the cabinet secretary on the appropriateness of secondary legislation. Amendment 3 explores how, if this were implemented through secondary legislation at the end of a long, consultative process, that procedure could be robust. I came down on the side of the super-affirmative procedure as being the most robust way to do it through secondary legislation.

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.

At this point, I would be content for there to be some sort of scoping of the issues. The cabinet secretary says that the card has been marked, but we need to do more than that: we need to understand the issues that are associated with it to ensure that any primary legislation in the future is well informed and that there is a consensus on whether it is the right way forward.

Amendment 3, by agreement, withdrawn.

The Convener

The next group is on the removal of disqualification as candidates for local government elections in Scotland of former councillors who received a severance payment. Amendment 4, in the name of Neil Findlay, is the only amendment in the group.

10:00  



Neil Findlay

The reform of local government and changes to the voting system that followed from the Local Governance (Scotland) Act 2004 were accompanied by a scheme of severance for councillors who stood down at the 2007 election. Those councillors were paid between £10,000 and £20,000, depending on their length of service, and the payment was designed to recognise their contribution at a time of significant change in councils and in the role of elected councillors.

Some of the councillors who stood down in 2007 did so for family reasons or because of work commitments at that time in their lives. Thirteen years have passed and many of those who stood down are sadly no longer with us. However, some may now be in a situation in which they can commit to public service and we should not prevent them from doing so.

In the Scottish Parliament, members who have lost their seat or stand down collect a resettlement grant of 50 per cent of salary or one month’s salary for each year served up to a maximum of 12 years. There are current members of the Scottish Parliament who have previously benefited from such a scheme. Also, ministers who are sacked or stand down receive a one-off payment, but there is no barrier to them being appointed to the cabinet again. That may, indeed, have happened to someone in this room.

At Westminster, MPs who lose their seats are paid up to £31,000, depending on their length of service. None is prevented from standing again. At the recent 2019 election, a number of people who lost their seats in 2017 were re-elected.

The bill is about extending the franchise and candidacy rights. Amendment 4 is about ending what is, in effect, a lifetime ban on one group of people whose only offence is to have served their community.

I move amendment 4.

Tom Mason

I am very sympathetic to the amendment. That payment happened a long time ago and people go back into politics for various reasons. We can never tell what will happen in the future. I, for one, have come back. If I had accepted that payment way back—not that it applied to me—I would be disappointed if I could not come back, given that the political dimensions have changed substantially since then. Therefore, I support amendment 4.

Mark Ruskell

I will be honest and say that I am pretty torn about amendment 4. The restriction and resettlement provision relates to a particular cohort of councillors in 2007. It does not, I think, apply to any councillor who steps down today and it was wrapped up in a process of electoral reform in which single-member wards were being abolished and we were bringing in the single transferable vote and proportional representation. It was about a refresh in our local councils. However, a number of councillors decided to stay on and fight for election to the new multimember wards, not taking the severance money at that point. Many of them continue to serve today.

I am not clear what the potential number is of people who took that resettlement grant in 2007, deciding not to stand again and fight multimember wards, but who now want, 13 years later, to stand for re-election. I am not clear about the demand for that. Councillors who step down today do not get any kind of severance payment. That was a particular moment, when we were reforming local democracy. People who had been councillors for many decades and provided great service, in many instances, were faced with a situation in which the electoral wards that they had fought for and served for a number of years were being abolished. Therefore, they had to make a choice about whether to step away from the system or fight elections under a completely new system.

Jamie Halcro Johnston (Highlands and Islands) (Con)

I have sympathy with a lot of the points that have been made. My understanding is that the councillors who stepped down were given the payment on the basis that has been outlined, and those who continued would be working in the new system under which councillors were salaried—they received remuneration. In principle, I do not like the concept that we are talking about now and have talked about in the context of earlier sections, that is, that people who have a right to stand in elections, or who previously had that right, can have it removed. The long and short of the matter is that I will probably support amendment 4.

Michael Russell

The issue was raised with me in the past couple of weeks by, I think, an individual who has been in touch with Neil Findlay. As Neil Findlay explained, the Local Governance (Scotland) Act 2004 contains the arrangements for those severance payments, and a person who took the payment was disqualified from nomination, election and holding office as a member of a local authority. Only councillors who accepted a severance payment were not entitled to stand as candidates in future local government elections. That was made clear to people who applied to the scheme, so, to that extent, Mr Ruskell is right: people knew what they were doing and made a conscious choice.

However, Mr Mason is also right, in saying that 2007 was a long time ago. There was a reasonable proposition, which came from a previous Administration, to refresh local government, and it was quite right to say that people who pocketed the cash should not seek to return to local government.

I think that that time has passed. I cannot see much point in continuing with such a bar. Mr Findlay is right to raise the issue. I see no need to restrict former councillors from standing. We do not know how many people are in that position, but I suspect that the number is small. I am aware of only one case of someone in those circumstances who was about to be nominated but found that they had to withdraw. There seems to be no point in continuing the situation, so I urge people to support amendment 4 and to conclude the matter.

Neil Findlay

I very much welcome all committee members’ comments.

I find Mr Ruskell’s position difficult to accept given that, throughout our debates, he has argued for the extension of rights to various groups. We continue to ban candidates from standing if they belong to that group of people who made a decision based on their situations at a particular time. The ban remains for the rest of people’s lives, and I suspect that if it was challenged in court it would not stand up to due process.

I welcome the cabinet secretary’s position and I hope that members will support amendment 4, which I press.

Amendment 4 agreed to.

The Convener

Before we move on, I welcome Liam McArthur MSP, who has joined us to take part in debates that we will have a wee bit later.

The next group is on voting by electors living outwith Scotland at Scottish parliamentary elections. Amendment 20, in the name of Tom Mason, is the only amendment in the group.

Tom Mason

Amendment 20 seeks to address an anomaly between UK general elections and Scottish parliamentary elections, in relation to overseas voting. Currently, a Scot who is living abroad can vote for their representative at UK level, provided that they have lived at home at some point in the past 15 years. Such people have no corresponding right at Scottish level.

We accept that those people do not currently live here and might have moved for different reasons, such as academic and career considerations. In the past, Scots have been well known for supporting overseas activities. They might be posted by their companies, working for Government or doing all sorts of other things overseas, while retaining a close connection with this country.

We accept that such people retain a considerable stake in the future of their communities, and we have acknowledged that by giving them the right to vote at UK level. By denying them the right to vote in elections to this Parliament, we send a contradictory message.

The approach in amendment 20 seeks to mirror the system that is used at UK level, applying it to Scottish citizens in Scottish Parliament elections. Scots have made an incredible contribution around the world in a wide variety of fields and should be able to do so without fear of being disenfranchised in elections to this Parliament.

I understand that the area gives rise to considerable debate, and I am aware that there is difference of opinion on how we should address the anomaly. With that in mind, I am prepared to withdraw amendment 20 if the minister commits to look into the issue with a view to lodging a corrective amendment at stage 3.

The Convener

Are you moving the amendment, Mr Mason?

Tom Mason

I move amendment 20. I would like to hear what the cabinet secretary has to say.

The Convener

Okay. As no other members have anything to say, I call the cabinet secretary.

Michael Russell

This was—of course—an issue in the stage 1 report on which members held different views. The majority concluded that British citizens who had previously been included on the register of local government elections, and who no longer live in Scotland, should not be given the right to vote in Scottish elections.

I agree with the majority of the committee that the case for allowing people who do not live in Scotland the opportunity to influence the result of local government or Scottish Parliament elections has not been made. However, even if we agreed that extending voting extra-territorially was desirable, we would need to devise a scheme that worked, which would be challenging.

I regret that amendment 20 would need extensive reworking in order to operate in any effective way at all. It relies upon the definition of a Scottish citizen in such a way that it self-references the existing franchise. It is, in a sense, a rabbit hole down which we would be drawn. As residency is a key part of the franchise, the amendment as drafted would not achieve the aim of adding anything to the existing requirement of residency in Scotland.

The central difficulty seems to be in establishing which UK citizens living outwith Scotland would qualify as Scottish citizens, and which would not. Without a Scottish passport—which is something that I would like to see, though I suspect that Mr Mason would not—we would have to identify a connection to Scotland, and we would be drawn back to the residency definition.

We established a franchise for Scottish Parliament and local government elections in Scotland on the basis that people who live here should be able to vote on matters that affect them. We are taking that approach to the next stage by extending the franchise to foreign nationals who live here. That principled approach should not be undermined, and amendment 20 would undermine it. Therefore, I urge Mr Mason not to press the amendment.

The Convener

I call Tom Mason to wind up, and to press or withdraw amendment 20.

Tom Mason

I heard what the cabinet secretary said. However, I will press my amendment, for the purpose of the record.

The Convener

The question is, that amendment 20 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 20 disagreed to.

The Convener

We will suspend for a few minutes to allow for a comfort break.

10:12 Meeting suspended.  



10:18 On resuming—  



Section 4—Voting by convicted persons sentenced to terms of 12 months or less

The Convener

The next group relates to criteria for prisoners to vote at Scottish parliamentary elections and local government elections in Scotland. Amendment 21, in the name of Jamie Halcro Johnston, is grouped with amendments 15, 22, 16, 23, 24, 26 and 9A to 9E. If amendment 21 is agreed to, I cannot call amendments 15 and 22 because of pre-emption.

Jamie Halcro Johnston

My amendments in the group would remove from the bill the existing provisions on prisoner voting, particularly sections 5, 6 and 7.

Amendment 21 would replace the existing provisions with a provision that would allow anyone who is enfranchised by UK Government guidelines in England and Wales to also vote in Scottish elections. The approach recognises that the enfranchisement of people who are released on temporary licence in England and Wales is being achieved by non-legislative means through guidance to prison governors. The amendment would ensure that, at a minimum, people in Scotland who are in the same circumstances would be able to vote in elections here, and it would address the main concerns that have been raised by the European Court of Human Rights in relation to the United Kingdom’s compliance on prisoner voting. The UK Government’s approach has been accepted by the Council of Europe, which is the body that organises the court, as an appropriate response to the concerns that have been raised.

Amendment 22 would exclude any person who has been convicted of corrupt or illegal practices under election law from benefiting from the prisoner voting provisions and would exclude not only prisoners who are under sentence for breaking electoral law but those who are under sentence for other offences—if someone had broken electoral law but was in prison for another offence, they would remain excluded. We already accept that people who are guilty of corrupt and illegal practices under election law should be barred in some circumstances from voting or standing as a candidate, as well as from holding certain offices. This is a question of type and relation. Improper interference with the democratic process should render a person unable to participate in it.

Amendment 15, in the name of Mark Ruskell, seeks to extend the length of sentence above which prisoners would not be able to vote from one to four years, and amendment 16, in the name of Liam McArthur, would give ministers the power to increase that period indefinitely. I will not support those amendments.

I move amendment 21.

Mark Ruskell

It is my belief that voting is a right and not a privilege. The majority of prisoners who are serving sentences will at some point be released back into communities and so will need to go through a period of rehabilitation. I therefore do not believe that, in considering disenfranchising prisoners, punishment can be the sole consideration. If we are to deploy criminal disenfranchisement to certain groups of prisoners, we need to do it with very good reasons.

A number of states have introduced automatic and blanket criminal disenfranchisement, and in many cases those policies have been struck down by the European Court of Human Rights. Russia, Bulgaria and Georgia put in place restrictions on all those who are serving sentences of more than one year, but those were found to be wanting and were struck down by the European Court of Human Rights.

Any voting restriction must be a proportionate response to the crime that has been committed, and drawing the line at four years would be a more proportionate response, because sentences of more than four years are longer-term sentences that relate to more serious crimes. For example, 89 per cent of homicide convictions are for more than four years and those who are convicted of rape or attempted rape are given sentences of more than four years.

Wales has considered where to draw the line in this regard and has agreed that the vote should be removed from those who are serving sentences of more than four years. During consideration of the issue, the National Assembly for Wales was told that a period of four years

“would be more clearly justifiable in the light of the level of criminality of such individuals”.

I believe that disenfranchising those who have been convicted of shoplifting or breach of the peace is not proportionate. For those reasons, I think that the enfranchisement of those who are serving sentences of up to a year needs to be extended to those who are serving sentences of up to four years.

With amendment 16, Liam McArthur is in effect trying to forge a middle way and to create the power to change the period in future. However, we have a bill in front of us now and we have the opportunity to make a judgment about where it is proportionate to draw the line on enfranchisement. That is the content and subject of the bill, and we need to make a clear decision on where we want to draw the line, as has been done in Wales and many other states around Europe.

The Convener

As I mentioned, we have been joined by Liam McArthur. I invite Mr McArthur to speak to amendment 16 and the other amendments in the group.

Liam McArthur (Orkney Islands) (LD)

I thank Mark Ruskell for setting out the backdrop to the issue. He fairly reflects views that I share. Although we might disagree slightly on the amendments, I associate myself with the points that he has made.

The current blanket ban on prisoner voting means that we have been in breach of the European convention on human rights—and have therefore been breaking international law—since 2005. I again pay tribute to the work of my former colleague Alison McInnes for helping to lay much of the groundwork for the debate that we are having in the context of the Scottish Elections (Franchise and Representation) Bill. Although her amendments on prisoner voting were voted down twice in the previous session of Parliament, she undoubtedly helped to show that a blanket restriction on prisoner voting is not legal, fair or progressive.

Imprisonment does not have to mean disenfranchisement, nor should it. I very much welcome the fact that the bill acknowledges that. However, I am concerned that, now that the principle has been accepted, there remains some uncertainty, which is why—to respond to Mark Ruskell’s comments—we might need to keep the issue open beyond this bill.

Mark Ruskell’s amendment 15 returns to the question of where the right place is to draw the line and presents four years as an option. As that is the current threshold for throughcare, I can see the logic behind it. Indeed, a threshold of that length of sentence was among the options that were presented by Liberal Democrats in the previous session of Parliament.

My amendment 16 takes a different approach. It would ensure that there was a means to adjust the system, should that be desirable or required, without having to go back to primary legislation. As the Scottish Human Rights Commission said,

“the ECHR defines the floor rather than the ceiling of human rights protection.”

The ruling in the Hirst case made it clear that a blanket ban breaches article 3 of the ECHR, but it was less clear about what compliance would look like. The court said that there must be

“a discernible and sufficient link between the sanction and the conduct and circumstances of the individuals concerned.”

In other words, restrictions should take account of the individual. The bill might meet that requirement, but an automatic sentence length-based distinction could be vulnerable to future legal challenge. Without allowing for review and amendment, the bill might manage to bring about only temporary compliance. There needs to be a means to fix things in the event that greater clarity is provided or there is a successful challenge.

Amendment 16 would also allow for a change to be informed by the experience in the first election under the new rules. That would seem to be a sensible move at a point at which the implications of what is proposed might be a little clearer.

I look forward to hearing what the cabinet secretary and other colleagues have to say.

Maureen Watt (Aberdeen South and North Kincardine) (SNP)

This is a very interesting part of the bill and one that there has been quite a bit of debate about, not just in the committee but informally among members of the Parliament, for quite some time.

I think that it was HM Inspectorate of Prisons for Scotland that said that there was no ban on prisoner voting for 20 years prior to 1969 and that, prior to 1949, only prisoners who had been convicted of the most serious crimes were banned from voting. It seems to me that, in the years since then, we have gone backwards in the UK as a whole. However, under the Scotland Act 2016 we have the power to act in this area and we must ensure compliance with the ECHR. It is interesting to note that, in 2018, a majority of members of the Parliament’s Equalities and Human Rights Committee called on the Scottish Government to legislate to remove the ban on prisoner voting in its entirety.

I accept the point that the Government received mixed evidence on this part of the bill, as the cabinet secretary said. However, in evidence to this committee, organisations such as the Faculty of Advocates, Sacro, the Law Society of Scotland and the Howard League for Penal Reform all thought that we should be bolder than we are going to be.

10:30  



At stage 1, I said that we should reflect on that and consider the issue again. There is now a presumption against imposing short prison sentences of a year or less. I have also taken soundings around the Parliament. I do not think that current members have sufficient desire to move towards anything beyond a period of one year. If the bill is to pass through the Parliament it would require the support of two thirds of members, so I believe that, at this point, we will have to go for a period of one year.

Gil Paterson

I started by thinking that sentences of four years would be the right threshold for me to be able to support the proposal but, like Maureen Watt, I then took soundings from other members around the Parliament, after which I changed my mind. I will explain why I have done so.

First, I should say that I have always been extremely worried and concerned about the number of people—especially women—who end up in jail because they have been involved in what I call low-level crime, such as shoplifting, or perhaps involved with drugs or alcohol. When we look at such crimes we often find that they have been driven by the circumstances that the people who commit them have been in. The reason why they end up in prison is usually that they have been persistent offenders, and they are often there for less than a year. Because of the circumstances, such as poverty, that drive such offenders, I do not think that they should be in prison in the first place.

I find the threshold of a year satisfactory but, having looked at other aspects of the issue, I found that sentences for sexual crimes and domestic violence can come under the four-year threshold. Just the other day, there were news reports about two individuals who had attacked a taxi driver by beating him up and stabbing him and who had been jailed for 44 months for their crime. I find it hard to gift such offenders the legal right to make a decision in elections—I consider that they give up that right by committing their crimes. I have therefore reverted to thinking that a 12-month threshold is appropriate, and I am comfortable with that. Those are my reasons for changing my mind.

Neil Findlay

My view is that, in the longer term, all prisoners should have the right to vote. However, I, too, have taken soundings around the Parliament, and I do not think that the majority of members want to see that. I am sure that all committee members will have spoken to their political groups about their views. At this stage, I support a threshold of one year.

Michael Russell

This substantial group of amendments provides a number of alternative approaches to the bill’s provisions on prisoner voting as they are drafted.

At the outset it is right to stress that the position of the European Court of Human Rights is not that there should be a specific threshold or a blanket ban, and that it is for each contracting state to determine the correct approach for that state.

Mr Halcro Johnston’s amendment 21, and the consequential amendments 23, 24 and 26, strike at the heart of the enfranchisement of prisoners in Scotland and, indeed, the bill’s intention to fulfil our wider obligations.

Amendment 21 would replace the Government’s proposal to enfranchise prisoners serving sentences of 12 months or less, by instead applying the guidance that is in operation in England and Wales. That would raise a number of serious concerns. First, that proposal would replace the proposed scheme upon which the Scottish Government has consulted and this Parliament’s committee has taken evidence. It would place the enfranchisement of our prisoners under the control of guidance that has been issued by the Ministry of Justice—and not just that issued in 2018, but any future guidance that the ministry might choose to set out. Of course, any such guidance would be intended for prisoners in England and not those in Scotland. Although there is much common ground between our systems, there are also many differences—for example, in the way that temporary release operates.

Although amendment 21 refers to prisoners in England and Wales, it is worth noting that the Welsh Government has committed to enfranchising prisoners who are serving sentences of under four years. Indeed, I note that the Welsh Assembly’s Equality, Local Government and Communities Committee described the UK Government approach as one of “minimal compliance”.

Even if amendment 21 were focused purely on the current approach of the Ministry of Justice, the UK Government’s response to the human rights case law on prisoner voting is a position that did not enfranchise any prisoners in custody, but focused instead on clarifying a number of points in relation to those on temporary release.

I welcome this committee’s stage 1 report on the bill concurring that the blanket ban is unsustainable, as it is against the European Convention on Human Rights. We, as a Parliament, are responsible for ensuring ECHR compliance on this and all other matters; that is a non-negotiable for us. One of the principal aims of the bill is to accept that responsibility, and to resolve the issue in a fair and proportionate way that sends a positive message about rehabilitation and civic responsibility. Amendments 21, 23, 24 and 26 seek to transfer that responsibility back to Westminster, without even a pretence of respecting the historical independence of the Scottish justice system, or any apparent concern that this Parliament is responsible for human rights compliance on the issue. I cannot commend that course. Therefore, I ask Mr Halcro Johnston not to press the amendments, and, if he does so, I urge the committee to reject them.

In contrast, the amendments of Mr Ruskell and Mr McArthur present alternatives to achieving the policy of enfranchising prisoners in Scotland at Scottish elections based on the length of sentence. Nonetheless, I maintain that our suggested course is the correct one, and I will explain why I am not minded to support either amendment at this time.

Mr Ruskell referred—I think—to the offences of house breaking and breach of the peace; I point out that, statistically, a very small number of people are sentenced to more than one year, which means that there will, obviously, be special sentencing conditions. The vast majority of people who commit those offences, and other offences in those sort of categories, are not sentenced to anything more than a year.

Mr Ruskell’s amendments go further than the Government’s proposal by seeking to increase the threshold to 48 months. I accept that that is, of course, being pursued by the Welsh Government, which has stated its intention to amend its Local Government Elections (Wales) Bill to enfranchise in Welsh local government elections prisoners and young people in custody who are serving a sentence of less than four years.

As Maureen Watt pointed out, four years is the threshold that is suggested by the Law Society of Scotland and the Faculty of Advocates. However, Maureen Watt also indicated—as did Gil Paterson and Neil Findlay—that it is an issue upon which views are divided. The committee also heard evidence calling for a removal of the ban in its entirety, while around one in three respondents to the Government consultation expressed the view that no prisoner should be allowed to vote. That underlines the challenge that we all face in settling on an approach that is principled and justifiable. I maintain that we have found that approach in the form of the bill as introduced. The 12-month threshold has a solid grounding in the Scottish justice system, in that 12 months is the maximum sentence that can be imposed in a case that is heard without a jury. In addition, it was the most popular period among those who responded to the Government’s consultation question on the sentence threshold, with a third of respondents choosing it.

It is worth noting that Mr Ruskell’s proposal would enfranchise the majority of prisoners in the custody of the Scottish Prison Service. Based on the prison population on Monday 13 January, a total of 3,327 prisoners would be enfranchised by a four-year threshold, while a smaller cohort of 916 prisoners would be enfranchised by the proposed one-year threshold.

I appreciate the rationale behind Mr McArthur’s amendment 16. Society’s views evolve, and, as other members have indicated, it may well be that a future Parliament decides to amend the threshold. However, we are back in the very unusual situation that we were in earlier this morning in which the Government is arguing against secondary legislation and committee members are arguing in favour of it. This is another area that should be done not by regulation, but by primary legislation. Given the range of views on the subject, and the strong feeling that it evokes, I consider that that would be the right place to do it. It is important that we have a full and frank debate on an issue of this magnitude, and it has encouraged very substantial debate. Therefore, I would not recommend that we use secondary legislation in that regard. Mr Ruskell and Mr McArthur have engaged very seriously on the issue, and there is—undoubtedly—debate to be had on the threshold.

The spirit of Jamie Halcro Johnston’s amendments does nothing to take the issue forward. Amendment 22 would undermine the integrity of Scottish elections because it would create a circumstance that is already in electoral law. The amendment deals with disqualification for people who are guilty of offences under electoral law. However, the Representation of the People Act 1983 already specifically makes provision for a person who has been found guilty by an election court of corrupt or illegal practices at an election to be barred from registering to vote or voting, being elected to Parliament, or holding any elected office. In the case of a person who has been convicted of corrupt practice, that prohibition applies from the date of conviction and ends after five years. For illegal practices, the period is three years. In our consultation paper on prisoner voting, the Government proposed that those provisions be retained, so there is no intention of changing them. Essentially, amendment 22 seeks to achieve something that already exists in law and can be activated, so it is completely redundant.

In summary, Mr Halcro Johnston’s amendments seek to undermine the responsibilities of the Parliament and the responsibilities that we have to take. I appreciate what Mr Ruskell’s and Mr McArthur’s amendments are trying to do, but the proposal that we have made is the right one at this time, and it should be supported.

Jamie Halcro Johnston

I take on board the comments that have been made, and I think that we all accept that there is a need to comply with the judgment that has been made. However, the question is how far we want to go with that compliance and whether we want simply to comply with the law and the ruling or to go further. I do not want to see that.

The cabinet secretary mentioned responsibility, powers and decision making going back to Westminster. I have tried to look at how we can meet the compliance requirements and also have some consistency across the UK.

We will come to the practicalities of prisoner voting later. Obviously, we are looking at how many prisoners are disenfranchised or given the franchise by the bill, but that does not mean that we cannot look at engagement and that prisoners cannot be engaged in the political process or sphere.

I press amendment 21.

The Convener

The question is, that amendment 21 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 21 disagreed to.

Amendment 15 moved—[Mark Ruskell].

The Convener

The question is, that amendment 15 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Mason, Tom (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 1, Against 6, Abstentions 0.

Amendment 15 disagreed to.

Amendment 22 not moved.

Section 4 agreed to.

After section 4

Liam McArthur

I will reflect further on the concerns that the cabinet secretary has raised about introducing changes in future by means of secondary legislation, so I will not move amendment 16.

Amendment 16 not moved.

Section 5—Residence of convicted persons in prison etc: uninterrupted residence

10:45  



Amendment 23 moved—[Jamie Halcro Johnston].

The Convener

The question is, that amendment 23 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 23 disagreed to.

Section 5 agreed to.

Section 6—Residence of convicted persons in prison etc: notional residence

The Convener

We move on to arrangements for registration to vote and voting by prisoners et cetera at Scottish parliamentary elections and local government elections in Scotland. Amendment 5, in the name of the cabinet secretary, is grouped with amendments 6 to 9.

Michael Russell

To a great extent, these are technical amendments, which deal with the technicalities of prisoner voting. I ask members to bear with me as I go through them, because they are important.

The amendments have three main aims: to ensure that the bill’s provisions in relation to registration of prisoners who are eligible to vote operate as intended; to make the requisite changes to secondary legislation to facilitate proxy and postal voting by eligible prisoners at Scottish Parliament and local government elections; and to allow for early commencement of part 2 of the bill, which relates to prisoner voting. I will deal with those aims in turn and say why the amendments are necessary as I go through them.

As introduced, the bill modifies the Representation of the People Act 1983 to allow eligible prisoners to register to vote via declaration of local connection. That is an existing legal mechanism, which is used to allow an individual with untypical residence to register. The provisions seek to ensure that registration at the prison address would only ever occur as a last resort. That proposition appears to have been generally supported during the progress of the bill.

However, the provisions are complex and take into account a range of residency scenarios. We have identified two possible scenarios in which the bill does not operate as intended as a result of that complexity. Amendments 5 and 6 are necessary to make the technical changes that are required to avoid those situations arising.

Amendment 5 will ensure that a person who used to live in Scotland but whose permanent residence immediately prior to imprisonment was outwith Scotland will not be able to register to vote using a declaration of local connection simply because of their residence in a Scottish prison. Amendment 5 will ensure that a connection can be declared to the address at which a person was resident immediately before the prisoner’s detention. If a person was homeless immediately before their detention, they may declare a connection to the address of a place in Scotland where they have spent a substantial part of their time.

Amendment 6 will amend the same section to ensure that a person whose only connection to Scotland is their residence in a Scottish prison will not be entitled to register to vote. That will ensure that the bill does not allow, for example, an overseas visitor to Scotland who commits a crime and is subsequently sentenced to a prison in Scotland to register to vote in devolved Scottish elections or to vote in those elections. The amendment is designed to ensure that only those people with a sufficient connection to Scotland and who cannot give an address under the bill’s other provisions are able to register at the address of a Scottish prison. We expect very few people to use the provision, but it is an important backstop nevertheless.

I turn now to the practicalities of voting by prisoners. Amendment 7 will introduce a schedule of necessary modifications to secondary legislation and amendment 9 will insert the schedule itself into the bill.

Members are well aware of the complexities of electoral law. Some changes on proxy and postal voting were already contained in the bill as introduced, where amendment to primary legislation was needed. The changes today are in respect of secondary legislation, and the intention had been to achieve them by subordinate legislation. That remains the case for the foreign nationals who are being enfranchised by the bill, but I have concluded that provision should be made now, via the bill, for postal and proxy voting for prisoners. That is the result of amendment 8, which will commence the bill’s provisions on prisoner voting early and which I will explain in a moment. The changes are made to the Representation of the People (Absent Voting at Local Government Elections) (Scotland) Regulations 2007 and the Scottish Parliament (Elections etc) Order 2015 to facilitate prisoner voting at local government and Scottish Parliament elections, respectively.

As I have stated previously, voting by prisoners will occur by postal and proxy vote only. No provision has been made to allow prisoners to cast their vote at a polling station within the prison complex. Indeed, one of the amendments specifically rules that out for Scottish Parliament elections and section 7 of the bill already prohibits it for local government elections.

As I said, amendment 8 provides that the bill’s provisions in relation to prisoner voting will come into force on the day after royal assent is received. I will outline to the committee why I believe that early commencement of this part of the bill is desirable.

I am grateful to the committee for agreeing in its stage 1 report that the current blanket ban on prisoner voting is unsustainable and that compliance with the ECHR must be achieved. I believe that the bill’s provisions ensure compliance with the ECHR for devolved elections, and I want the provisions to be in force as soon as possible. If the provisions were not commenced early, there would be a period of approximately two months after royal assent in which a Scottish Parliament by-election could take place without the act being in force. In order to ensure that there was ECHR compliance, another remedial order would be required for a Scottish Parliament by-election in that period. Given the committee’s consideration of the remedial order that was made for the Shetland by-election that took place in August, I think that members will agree that it is desirable to have the long-term change to the law in place as soon as possible, rather than have another remedial order.

I considered whether the bill’s provisions in relation to foreign nationals should also be commenced early, but they do not have the same ECHR compliance concerns and they affect many more people, so more work requires to be done. As a result, I consider that those provisions should be commenced in the normal way, on a day that is appointed by commencement regulations that are made by the Scottish ministers and laid before the Scottish Parliament.

The committee has previously expressed its broad contentment with the proposed arrangements in relation to proxy and postal voting and the declaration of a local connection. I therefore hope that members will support the amendments, which facilitate those arrangements and seek to achieve ECHR compliance as expeditiously as possible.

I move amendment 5.

Amendment 5 agreed to.

Amendment 6 moved—[Michael Russell]—and agreed to.

Amendment 24 moved—[Jamie Halcro Johnston].

The Convener

The question is, that amendment 24 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 24 disagreed to.

Section 6, as amended, agreed to.

After section 6

The Convener

The next group is on election meetings on the prison estate. Amendment 25, in the name of Jamie Halcro Johnston, is the only amendment in the group.

Jamie Halcro Johnston

Amendment 25 seeks to create a new section that would provide that candidates who were standing in a ward or Scottish Parliament constituency or region would have to agree in advance before a hustings could be held in a prison or other such institution. It would also require the prison governor to conduct a risk assessment of any such hustings or event. That would guarantee that no candidate—including, for example, one who had been a victim of crime or was otherwise unwilling to entertain election meetings in a prison environment—would be disadvantaged or pressured into attending an election event in a prison or similar facility.

The requirement for the governor to conduct a risk assessment would provide for consideration of the safety of candidates, prison staff and other prisoners as a result of the holding of a political event in a prison environment, and the practicalities of that.

I move amendment 25.

Michael Russell

Amendment 25 is drafted to mirror the provisions for electoral meetings in schools and community rooms that were set out in the Representation of the People Act 1983, but those provisions were rooted in specific constituencies. The prospect of such meetings being held in prisons is distinct from those arrangements, and the amendment does not accommodate that difference.

The bill seeks to ensure that prisoners will register, as I indicated previously, at their home address or their declared local connection, instead of at the prison. As a result, there will not be only one constituency or ward that is relevant to a prison. Prisoners in the same prison will have different choices of candidates, depending on where they are registered. Given that, the amendment is unclear as to which candidates might arrange events—whether they might be from specific constituencies or be nominated representatives of their parties who are sharing information about the wider party platform.

Those ambiguities could lead to substantial additional work, most of which would be unnecessary. In its evidence to the committee, the Scottish Prison Service has indicated that it is content to make arrangements for electoral events in prisons. The planning that is under way will accommodate the important security considerations that are necessary for prison estate events and the distinctive needs of an audience from multiple voting areas, without the need for the measure in amendment 25.

Even on a practical level, there is too little detail in the amendment. Unlike similar provisions of the 1983 act, amendment 25 makes no reference to allocation of costs for the events or appropriate periods of notice to be given before an event.

Although the amendment highlights that a risk assessment by prison governors would be a requirement of such meetings, it provides no further clarity about the decision-making process once such an assessment has been made, and whether governors, for example, could veto meetings that are declared unsafe.

Amendment 25 could be said to be seeking to resolve an issue that is not likely to arise, thus bringing in uncertainties for the Prison Service. It is also incredibly vague on the vital, practical details. I therefore invite Mr Halcro Johnston not to press the amendment. If it is pressed, I ask the committee to reject it.

Jamie Halcro Johnston

I am happy to work further, and perhaps with the cabinet secretary, on some of the practicalities, if that is his concern. What we did not hear in his response was the implications for a candidate who might be reluctant to be involved in events that are held in prisons, particularly if they have been a victim of crime.

I press amendment 25.

The Convener

The question is, that amendment 25 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 25 disagreed to.

Section 7—Method of voting by convicted persons at local government elections

Amendment 26 moved—[Jamie Halcro Johnston].

The Convener

The question is, that amendment 26 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 26 disagreed to.

Section 7 agreed to.

After section 7

Amendment 7 moved—[Michael Russell].

The Convener

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Findlay, Neil (Lothian) (Lab)

Against

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

The Convener

The result of the division is: For 5, Against 2, Abstentions 0.

Amendment 7 agreed to.

Amendment 9 moved—[Michael Russell].

Amendment 9A moved—[Mark Ruskell].

11:00  



The Convener

The question is, that amendment 9A be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Mason, Tom (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 1, Against 6, Abstentions 0.

Amendment 9A disagreed to.

Amendment 9B moved—[Mark Ruskell].

The Convener

The question is, that amendment 9B be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Mason, Tom (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 1, Against 6, Abstentions 0.

Amendment 9B disagreed to.

Amendment 9C moved—[Mark Ruskell].

The Convener

The question is, that amendment 9C be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Mason, Tom (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 1, Against 6, Abstentions 0.

Amendment 9C disagreed to.

Amendment 9D moved—[Mark Ruskell].

The Convener

The question is, that amendment 9D be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Mason, Tom (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 1, Against 6, Abstentions 0.

Amendment 9D disagreed to.

Amendment 9E moved—[Mark Ruskell].

The Convener

The question is, that amendment 9E be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Mason, Tom (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Findlay, Neil (Lothian) (Lab)

The Convener

The result of the division is: For 1, Against 6, Abstentions 0.

Amendment 9E disagreed to.

The Convener

Cabinet secretary, do you wish to press or withdraw amendment 9?

Michael Russell

I press amendment 9.

The Convener

The question is, that amendment 9 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Findlay, Neil (Lothian) (Lab)

Against

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

Abstentions

Ruskell, Mark (Mid Scotland and Fife) (Green)

The Convener

The result of the division is: For 4, Against 2, Abstentions 1.

Amendment 9 agreed to.

The Convener

The next group is on a review of the impact of the proposed act on the integrity of elections. Amendment 27, in the name of Jamie Halcro Johnston, is the only amendment in the group.

Jamie Halcro Johnston

Amendment 27 seeks to require a review following the next Scottish Parliament election after the act receives royal assent, assuming that it is passed by the Parliament. The review would consider the operation of the act in general and in regard to its impact on the integrity of elections and the number of electoral offences arising from the act.

In its current form, the bill will create significant change, enfranchising a range of new groups of people. Amendment 27 would allow for problems that are created by the significant shift in the franchise to be considered. The amendment would create a review period of one year after polling day, when the Scottish ministers would be expected to bring about a review in consultation with persons who “they consider appropriate”. Under my proposed approach, the Scottish ministers would have to lay a report before Parliament no later than one year after the review period had ended, which would be two years after polling day.

I move amendment 27.

Michael Russell

Although it is always good to consider the impact of new legislation, amendment 27 implies that the bill is expected to have a negative impact on the security of elections, and that electoral offences will increase as a direct result of it. That is a political and not a factual view. There is nothing in the provisions of the bill to suggest that that will be the case. It has been drafted with the need to protect the integrity of elections always in mind.

Stakeholders ranging from the Electoral Commission to the Scottish Prison Service have been in close contact with officials during the preparation of the bill, and they have identified no concerns that would justify a provision of this nature.

I remind Mr Halcro Johnston—as he seems to have forgotten—that the Electoral Commission has a statutory duty to review the conduct of Scottish Parliament and local government elections, including on issues of integrity. I do not see the need for the Scottish ministers to carry out an additional review. If, as I hope, the bill is passed and becomes an act, there will be scrutiny by the Electoral Commission.

Therefore, I invite Mr Halcro Johnston not to press amendment 27.

Jamie Halcro Johnston

I am not sure whether the cabinet secretary is reluctant for the impact of the bill to be reviewed, so I press amendment 27.

The Convener

The question is, that amendment 27 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Findlay, Neil (Lothian) (Lab)

Against

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)

The Convener

The result of the division is: For 3, Against 4, Abstentions 0.

Amendment 27 disagreed to.

Section 8 agreed to.

Section 9—Commencement

Amendment 8 moved—[Michael Russell].

The Convener

The question is, that amendment 8 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Findlay, Neil (Lothian) (Lab)

Against

Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)

The Convener

The result of the division is: For 5, Against 2, Abstentions 0.

Amendment 8 agreed to.

Section 9, as amended, agreed to.

Section 10 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. I thank everyone for their attendance and contribution.

Meeting closed at 11:08.  



Scottish Elections (Franchise and Representation) Bill with Stage 2 amendments

Additional related information from the Scottish Government on the Bill

Stage 3 - Final amendments and vote

MSPs can propose further amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law

Debate on the proposed amendments

MSPs get the chance to present their proposed amendments to the Chamber. They vote on whether each amendments should be added to the Bill.

Documents with the amendments considered at the meeting on 20 February 2020:

Video Thumbnail Preview PNG

Debate on proposed amendments transcript

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is the stage 3 debate on motion S5M-20922, in the name of Michael Russell, on the Scottish Elections (Franchise and Representation) Bill. I inform members at the outset that we are short of time and it may be the case that decision time will be later than 5 o’clock.

The Cabinet Secretary for the Constitution, Europe and External Affairs (Michael Russell)

I thank all the members who have engaged with the Scottish Elections (Franchise and Representation) Bill today and throughout its parliamentary progress. My thanks go to the Standards, Procedures and Public Appointments Committee for its scrutiny and to electoral professionals for sharing their expertise. Many others, such as the Scottish Prison Service and the Scottish Refugee Council, worked constructively with the Government to develop what is historic legislation. It has two significant aspects: one is the expansion of the franchise, which I will come to in a moment; the second is prisoner voting.

Fifteen years ago, the grand chamber of the European Court of Human Rights stated in its Hirst judgment:

“the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion”.

Member states of the Council of Europe are afforded a margin of appreciation about how they achieve compliance with the European convention on human rights, and each country has adopted its own position. The Governments in Wales and at Westminster have taken their own views, based on their own circumstances. I have highlighted that the very limited approach of the United Kingdom Government only allows those on temporary release on polling day to vote. Although I accept Mr Tomkins’s point about the Council of Europe, the UK Government’s position has not yet been tested in court. However, we are not here to speculate on the outcome of such a test; rather, our duty is to take action that is proportionate, justifiable and tailored to our system.

In 2018, the Equalities and Human Rights Committee recommended that all prisoners should have the right to vote. Last year, the Standards, Procedures and Public Appointments Committee did not reach a consensus, and we have discussed a variety of proposals as the bill has progressed. The bill, if passed, will set the threshold for prisoner voting at those who are serving sentences of 12 months or less. Twelve months was the most popular response in our consultation and it has a firm basis in our justice system. It is the maximum sentence that can be imposed in a case that is heard without a jury.

I remind members that, as the Presiding Officer reminded us before the meeting was suspended briefly, this is the first time in Holyrood’s history that a bill will need not just a majority but the support of two thirds of all members who have been elected to this Parliament in order to be passed.

If the bill is not passed tonight, we will still be obliged to ensure that all future parliamentary elections are ECHR compliant. A remedial order was required last year to bring the franchise for the Shetland by-election into line with the convention. That was not a move that I wished to take, but I felt compelled to take it. Without the bill, we would have no choice but to lay another order in respect of prisoner voting in Scottish Parliament elections. I do not want to take such an action unless it is absolutely unavoidable. I recognise that prisoner voting is an important, emotive issue, and it is one on which I want the settled will of the Parliament to be expressed. I hope that that will be reflected at decision time tonight.

Although the bill’s provisions on prisoners are driven by the compelling need to meet human rights obligations, our proposals on foreign nationals are driven by the reality and, I believe, the aspiration of modern Scottish society. European Union and Commonwealth citizens already have the franchise, but we must also recognise the enormous contribution that is made to our country by people from all over the world. That is why we are extending the right to vote in devolved elections to all foreign nationals who are resident in Scotland and have leave to remain.

Some have argued in the chamber—and, no doubt, some will argue this evening—that voting should be rooted in strictly traditional ideas of citizenship. I believe that it must be based on active participation in society. The extension of voting rights is especially meaningful in the atmosphere of uncertainty surrounding the UK Government’s plans for the immigration system.

Adam Tomkins (Glasgow) (Con)

The point that the cabinet secretary has moved on to is very important. My question to him is this: if the link between the franchise and citizenship is to be broken—we can take different views about that, but it will be broken by the bill—what is citizenship for?

Michael Russell

That is a very interesting question, which Mr Tomkins raised at a previous stage. I would be happy to have that debate but, given the circumstances that we are in and the atmosphere of uncertainty over Brexit and immigration reform, I am happier to essentially recognise that the need for change is there. However, that does not exclude the debate that Mr Tomkins wants to have, and I would be happy to have it. It is part of the debate about modernising our society. I would argue that it is perhaps best expressed by having a modern nation to have that modern debate, although I do not believe that we presently live in a modern nation, given where the UK is. I do not want to dismiss that debate; I am simply not going to enter it now, because I do not have the full answers yet. However, we have an answer in terms of what we are attempting to do to modernise Scottish society.

We tried to cut through that uncertainty with our proposals for a new Scottish visa. However, as members will know, in a modern society, Scotland may accept that, but the UK dismissed it with contempt. That only serves to underline the importance of using the powers that we have to send the message that Scotland is open, is welcoming and is home to all those who choose to settle here. I am pleased to have introduced a bill that sends that message to the refugee community. I regret that we have not been able to find a workable way of extending voting rights to asylum seekers at this time, but I hope that that will not lead to any accusations that we do not wish to try to do so, that we are in some way dismissive or contemptuous of asylum seekers or that we are timid. We are going much further than almost any other country has done, and that should be recognised and celebrated.

The issue of who may stand as a candidate is related to that. There is a logic to the idea that candidacy rights should reflect voting rights, but the bill’s passage has illustrated that that is not so straightforward to achieve. We cannot, for example, pass legislation that affects the employment status or capacity of foreign nationals in the UK. If we did so, we would take ourselves outwith legislative competence. I would like to be permanently within legislative competence because this Parliament had all the powers, but we are where we are.

However, following stage 2, we have identified areas in which we could rightly go further, and we have brought them into the bill. For example, although EU nationals with settled status could stand as candidates under the bill as introduced, those with pre-settled status could not. However, those people are European Economic Area nationals and, as a result, we have been able to take the matter forward in a progressive way.

The bill reflects the reality of modern Scotland. However, no franchise is static. All franchises continue to grow, expand and develop. No doubt, franchise reform will continue in the chamber at some stage, perhaps in the not-too-distant future. I hope that those reforms will continue to reflect what the bill reflects: a Scotland that is committed to the treaties that safeguard our human rights, which wants to give a democratic voice to some of the most marginalised in our communities, and which welcomes those who seek to join our society. To make that vision a reality, we require the support of 86 members. I hope that members will recognise it as something that they wish to be part of, as they vote for the first time in a supermajority division.

I move,

That the Parliament agrees that the Scottish Elections (Franchise and Representation) Bill be passed.

16:15  



Jamie Halcro Johnston (Highlands and Islands) (Con)

The bill has two major functions: reforming the franchise in relation to residence and nationality, and bringing about prisoner voting. Having engaged with the bill at all stages, I would like to again extend my thanks to the legislation team and to the Standards, Procedures and Public Appointments Committee clerking team for all their support as we have progressed.

There is, of course, a far longer history behind our consideration of prisoner voting. We will be conscious of the decisions of the European Court of Human Rights, which loom over the choices that we make. However, equally, there are members in the chamber who have a sincere and long-standing commitment to enfranchising criminals who are still serving their sentences. On that point, I straightforwardly disagree.

Looking back, we can consider the period in the run-up to the 2014 referendum, when Scottish National Party members lined up to condemn prisoner voting and to object to the decision of the European Court of Human Rights. In 2013, the current First Minister refused to countenance it, saying:

“if somebody commits a crime that lands them in prison, they break their contract with society and therefore lose some of the rights that the rest of us take for granted.”—[Official Report, 14 May 2013; c 19707.]

Unbelievably, I agree with her. It is a position that many people beyond the chamber still hold. Indeed, it is a popular one, as the former justice secretary Kenny MacAskill, who is now a newly elected SNP MP, recognised. He believed, it seems, that allowing prisoners to vote was the right thing to do, but the arguments in the corridors of St Andrew’s house seemed to be solely against it, focused as they were on newspaper headlines and the effect on the opinion polls ahead of the referendum vote. Mr MacAskill called that position “shameful”, and we can see why.

As I have said, many members and parties have sincere and moral positions on prisoner voting—in some cases, those are absolute; in other cases, they are qualified. Some believe that it should be restricted to less serious offenders, or to those who are undergoing rehabilitation with a view to soon re-entering the community. For others, the material point is compliance with the decision of the European Court of Human Rights. The bill does a poor job of satisfying any of those points. It does not address rehabilitation, it does not merely implement the decision of the courts, and it does not successfully exclude people who may have received relatively short sentences but who committed significant and unpleasant crimes.

If we are to accept the argument of the European Court of Human Rights that a blanket ban is a disproportionate interference with human rights, we should perhaps reflect on the circumstances here in Scotland. To be sentenced to imprisonment, even for a relatively short period, generally means that a serious offence has been committed, or that a person has a lengthy history of more moderate offending that has reached a head. A proportionality test is already built in. If we must accept the ruling of the court—and the Scottish Government has been reticent on that point for many years—we should not gold-plate the requirements that the ECHR places on us.

The UK Government has accepted—unhappily—that some movement has to be made on prisoner voting. It has set out a position that I would be tempted to term “minimal compliance”, and the Council of Europe has accepted it. The Scottish Government has not accepted that position and has voted against it today.

There can be little hiding from the fact that the bill will bring prisoners into our elections. That will be a consequence of a decision made at Holyrood, not of compliance with a court in Strasbourg.

As I have said, many people simply disagree with the proposal that prisoners—people who have stepped beyond the rules set by our society—should have the right to vote for the people who set those rules while they are still being punished and have yet to be rehabilitated and reintegrated into our community. Rehabilitation is necessarily a process, but it is not complete by day 1 of a short sentence. Even if the bill is to be passed today, several things could have been done to make it safer. I pressed two amendments. One was a commonsense approach that would have ensured that any election events taking place on the prison estate as a result of the bill were safe and did not disadvantage candidates who might for a variety of reasons not wish to campaign in a prison setting. It would also have ensured that proper risk assessments would be carried out, with prison governors given a role to protect candidates, prisoners and prison staff.

The second amendment called for a review of the bill’s effect after the next round of elections. We should be mindful of the significance of changing our electoral franchise materially and I believe that the bill should be given the proper post-legislative attention that it merits.

On the question of the franchise for foreign national voters, I accept that there are arguments on both sides. In some cases, residence may demonstrate an attachment to place. However, it seems to me that citizenship is not an irrelevant consideration. For people who come to Scotland and live here for a sufficient amount of time, gaining citizenship demonstrates not only a right to residence but an involvement with the civic life of the country.

Today will mark the end of a rather uncomfortable process through which convicted prisoners who are spending time in jail will be brought in as part of our democracy. Some people may pay little attention to it. The numbers involved—just over 900 prisoners, spread around Scotland—may not have a huge influence on the results of any given election. However, it was also a process through which the SNP Government has, in forcing through prisoner voting, U-turned on its previous position, jettisoned its principles and put itself firmly at odds with the views of the voters whom we in this place serve.

The Deputy Presiding Officer

Before I call James Kelly, I can advise members that decision time is likely to be moved to 5.15 pm. I will advise better nearer the time, but the division bell will ring accordingly.

16:21  



James Kelly (Glasgow) (Lab)

I welcome the opportunity to open the debate for Scottish Labour on this important piece of legislation. There are two central parts to the bill: the extension of the franchise to include foreign nationals who are now resident in Scotland, and prisoner voting, which has been the subject of much debate this afternoon.

On prisoner voting, it is important to reflect on what has happened in the Parliament over the past six or seven years. The issue was considered ahead of the 2014 referendum and at that time the Government opposed extending the franchise to include prisoner voting, with Scottish Labour’s support. I spoke in the debate, from the seat that Mr Halcro Johnston is now sitting in, and I opposed prisoner voting. I suppose that a fair challenge to me and to the Government would be to ask what has happened to change our position.

I will submit two central reasons, the first of which is the European court judgment. Although it was around at the time of the previous debate, the bottom line was that various Governments, including the UK and Scottish Governments, danced around it and delayed any proper interaction with that judgment. That position cannot be sustained and we need to put in place a proper solution that extends the franchise to include at least some prisoners. It must be a serious and proportionate response, not the one that was put forward in the Tory amendment.

Liam Kerr (North East Scotland) (Con)

Will the member take an intervention?

James Kelly

Let me make my point about the Tory amendment, which would have allowed only those prisoners who were out on licence to participate in the elections.

Liam Kerr

Why does Mr Kelly think that we cannot stop at that level?

James Kelly

I will develop that point; I am trying to be helpful. As I said, I opposed the proposal in 2013 and one reason why I have changed my position is that I believe that we have to interact seriously with the European court judgment.

I will explain my second reason. As someone who held the justice portfolio previously and has recently returned to it, I have observed many of the justice debates, and it strikes me that, even among Tory members, many calls have been made for support to be provided for rehabilitation. I believe that giving prisoners with sentences of 12 months or less a vote in Scottish elections will help the process of establishing them as more responsible citizens who will make a greater contribution to society when they leave prison. I think that that represents a reasonable contribution to the rehabilitation process, alongside all the other rehabilitation techniques that we speak about in the chamber. For those reasons, I and Scottish Labour believe that the position that is established in the bill that we will vote on at decision time is the correct one.

The extension of the franchise to foreign nationals who are resident in Scotland is logical. People who reside here contribute to our economy and our communities, and they often work in caring professions such as those in the health service. Therefore, it is only right that we extend to them the right to participate in elections, to take part in the democratic process and to have a choice when it comes to the representatives who are picked and the Government that is elected.

My final point is one that I will expand on when I sum up. Allied to all the things that I have mentioned, there needs to be a process of voter registration and voter education.

As Mr Russell rightly said, the Scottish Elections (Franchise and Representation) Bill is an important bill that needs to achieve a two-thirds majority at decision time, and I hope that at least 86 MSPs will support it.

16:26  



Mark Ruskell (Mid Scotland and Fife) (Green)

The bill delivers important protections for the rights of EU and Commonwealth citizens and an extension of rights to refugees and others who have residency in the UK. Of course, Green members warmly welcome that tangible extension of rights; it is also an important symbol of how we increasingly base the definition of citizenship in Scotland on residency.

The Government has rightly used powers that were granted to the Parliament under the Scotland Act 2016, but I remain disappointed that it has not pushed right up to the limits of devolution by extending franchise and candidacy rights further. There will still be barriers to the rights of people in our communities, which will act against integration. Some of those barriers will be the result of choices that the Parliament has made this afternoon. Rather than having anything to do with immigration status, those choices represent a clear flinch away from administrative complexity.

Throughout the progress of the bill, the cabinet secretary has said repeatedly that the best is the enemy of the good, but it was clear in the vote earlier this afternoon on the proposed extension of the franchise to asylum seekers that there would have been a supermajority in favour of that change if the Government had actively chosen to resolve in advance the policy complexities that were flagged up months ago. Surely it cannot be beyond the capabilities of Government to work with electoral registration officers to take a 55,000-person franchise extension and add a further 5,000 people who have similar residency status issues.

The cabinet secretary will be relieved to hear that I am ready to move on, but I hope that the Government is, too. The debate about asylum seeker voting rights has been important but, of course, democracy is not just about single electoral events at which representatives are selected; it is also about participation. Maybe community councils could be opened up to asylum seekers who are resident in communities but who are not on the electoral register; maybe citizens juries and assemblies could include asylum seekers. Perhaps the Government can find a way to revisit the issue of the franchise sooner rather than later.

Adam Tomkins

Will the member take an intervention?

Mark Ruskell

If I have time—I am sorry; I do not think that I do.

On candidacy rights—

The Deputy Presiding Officer

Excuse me, Mr Ruskell. I do not remember answering. I can give you time to take the intervention.

Adam Tomkins

I have a very short question. How can somebody who is not a citizen play a meaningful role in something called a citizens assembly?

Mark Ruskell

Because they are resident. If our citizenship is based largely on residence, the fact is that those people will be in communities. They have views, access services and contribute to society. They have voices and we want to hear those voices, because they might actually make our society a better place for them and for the rest of us.

On candidacy rights, the concerns about those who have limited leave to remain not seeing out terms is a red herring. Many people are granted repeated periods of temporary leave to remain over many years. In many ways, their circumstances are similar to those who face financial or health insecurity but still stand for election. Diverse proportional electoral systems with lists and multimember constituencies can handle departures, whatever the cause.

On prisoner voting, the one-year cut-off point is open to challenge. If the Government was confident of its position in the bill, it would not have accepted Mr McArthur’s amendment to keep the door ajar. Many will be watching this space and I am sure that some will consider jumping into it.

Finally, I want to address candidacy rights for young people between the ages of 16 and 18. I am in no doubt about the capabilities of young people in leading our world. We only have to see the contrast between Greta Thunberg and Donald Trump to see that maturity and childishness can take unexpected forms. However, I recognise that matching the franchise with candidacy rights for young people requires careful thought and consideration, especially when it comes to safeguarding issues. The thinking has started and I hope that the next Government can be bold and formally revisit the issue.

Indeed, the whole process of electoral reform and revitalisation of our democracy has barely begun. There is much work to do, and it will require vision, a bold Government and a Parliament that is willing to challenge and push the boundaries further and further.

16:31  



Liam McArthur (Orkney Islands) (LD)

As the cabinet secretary acknowledged, inclusion has been a common theme during today’s debate and earlier debates on the bill. I am grateful, therefore, to have an opportunity to contribute on behalf of the Scottish Liberal Democrats and I pay tribute to the Standards, Procedures and Public Appointments Committee for its efforts in leading the scrutiny of such important legislation.

We need only cast our minds back to the previous parliamentary session, when amendments on prisoner voting from my colleague Alison McInnes were twice voted down, to see how far we have come to reach this point. I acknowledge the candour that was shown by James Kelly in talking about his journey in that respect. The legislation bears witness to the fact that even the most hardened narratives can be shifted if people are willing to make arguments or cases that are not easy or popular. In a week when self-defeating immigration policies rooted in xenophobia have been proposed, that is an important point to remember and cling to.

The UK is a nation of immigrants and we should be proud that people want to come to our country and work in our national health service and our schools, and to be part of our society. Those who want to make Scotland their home should be helped in their efforts to make a contribution to their new community. If someone has been forced to flee their home to escape war and persecution, they should not be confronted with needless barriers to integration. We should be tearing down walls, not building them. Extending voting to those who are legally here will help in a small but important way to do that.

Diversity in the UK should be celebrated. Our political institutions draw strength from the extent to which they reflect the people they are there to represent. Scottish Liberal Democrats are internationalists. We believe passionately in the values of human rights, democracy and equality. I am hopeful that the bill will play an important part in progressing those values in this country.

It is quite clear that the current blanket ban on prisoner voting flouts international law. The truth is that no other developed European democracy does that. It is not fair or progressive and it is not in the interests of rehabilitation. We know that if we are to reduce reoffending, we need to make people more aware of their responsibilities as citizens, rather than alienating them further.

I am not entirely convinced that drawing a line at 12 months is sufficient to meet ECHR obligations, but I am grateful to the Government for accepting my amendment for a review, to leave the door open to further change if necessary.

In any case, Scotland should not make a habit of settling for the bare minimum on human rights, as we did with the age of criminal responsibility last year, despite my party’s best efforts. Human rights are not pick-and-mix principles; they apply to everyone.

Prisoner voting rights are unrestricted in many developed nations across the world, including Austria, Canada, Denmark, Norway, the Netherlands and Sweden, to name but a few. Despite some of the rhetoric that we have heard this afternoon from Conservative members, those democracies have not collapsed in on themselves. Instead of stubbornly trailing behind international best practice, Scotland should be pushing it. Although the bill will not put us at the forefront, I remain hopeful of more progress in the future, which will build on the welcome steps that we are taking today. On that basis, Scottish Liberal Democrats will support the bill at decision time.

The Deputy Presiding Officer

I advise members that we are still running behind time. Therefore, I invite the cabinet secretary to move a motion, under rule 8.14.3, that the debate be extended by up to 30 minutes.

Motion moved,

That, under Rule 8.14.3, the debate be extended by up to 30 minutes.—[Michael Russell]

Motion agreed to.

The Deputy Presiding Officer

We move to the open debate and speeches of up to four minutes.

16:36  



Bill Kidd (Glasgow Anniesland) (SNP)

Over the course of this parliamentary term, members of the Standards, Procedures and Public Appointments Committee, of which I am the convener, have delved into poignant questions that have been posed by the Scottish Elections (Franchise and Representation) Bill.

As the bill’s name suggests, the questions revolved around core elements of democracy: the role of the social contract, obligations of the state, protection of voting rights and extension of the franchise. Those are all complex points of discussion and I take this opportunity to thank my fellow committee members and the clerking team for their dedicated and sincere engagement with those points over the past months. A good deal of work has gone into the creation of the bill and I am pleased with the outcome so far.

We have collectively pushed on to find the most appropriate, legally compliant and just way forward. In saying that, it should be noted that not all committee members agreed on every element, but any disagreement was carried out in a dignified and civilised manner and I thank the committee members for that. I echo the cabinet secretary’s hope that a two-thirds majority, at the very least, agrees to the bill.

The need to bridge a legal contradiction that has arisen between the Scotland Act 2016 and the blanket ban on all prisoners voting necessitated the creation of the bill. The blanket ban has only a short historical precedence; in fact, until the 1960s—relatively recently—many prisoners in the UK were enfranchised. Now, our current law is at odds with the conclusions of many legislators in other healthy democracies and is in conflict with the ECHR and the Scotland Act 2016.

Following Scottish Government consultation and committee engagement, the bill amends current legislation to extend the franchise to prisoners who are serving a sentence of less than a year. That conclusion has been reached on the basis that there should be a relationship between the seriousness of a crime and the ability to vote. What is notable about the cut-off point is that 12 months is the maximum sentence that can be imposed in a summary trial. A summary trial does not involve a jury and considers only crimes of a less serious nature.

As the committee members did not all agree on everything, the committee found a balance of a 12-month cut-off, which reflects the outcome of the Scottish Government consultation. The balance also provides the Scottish Parliament with a way forward that is compliant with our specific ECHR duties under the 2016 act. In addition, that way forward maintains the extremely important link between the right to vote and the fulfilment of the social contract. Aside from those elements, the bill brings about other changes that will make the extension of the franchise reflect Scottish society in the globalised 21st century. An elevating element of the bill is to allow qualifying foreign nationals to vote. Such a legislative change means that the evolution of migration and its impact on the make-up of Scottish society is recognised.

Importantly, the change also ensures that EU nationals who are living in Scotland with settled status will still be able to vote in post-Brexit elections. Moreover, the legislation empowers refugees with leave to remain by extending the franchise to them. Anyone who has the right to remain will have the right to vote in Scotland, which is an incredible step forward.

Voting for legislation that takes crucial steps towards empowering vulnerable or socially disenfranchised groups is a powerful moment for legislators. Today, we have the opportunity to vote for a bill that will make our voting landscape brighter and more reflective of the inspiring and evolving society that defines Scotland. I hope that everyone will join me today in making that a reality.

16:40  



Liam Kerr (North East Scotland) (Con)

I shall not vote for the bill, as it proposes to give the vote to prisoners who are serving sentences in prison.

I address my comments, not so much to the likes of Alex Cole-Hamilton, who has been consistent that the vote should be given to prisoners simply because—and I paraphrase here—they should have their voices heard and influence how the country is run. I fundamentally disagree with that premise, because I cannot accept that those who commit crimes of such severity that, despite the presumption against short sentences, the desire to give community disposals and the increase in electronic monitoring, they still go to prison, should be granted the vote over the rights of the victims that they offended against. However, I accept that that position will not be swayed by recourse to the cold reality of legal argument.

Furthermore, I shall not expend time addressing those whose position crumbles in the face of facts, yet will not change their vote. I have in mind those such as Gil Paterson, who rehearsed today during the debate on amendments what he said at stage 1:

“in my opinion, those who have been convicted of more serious crimes, particularly those of a sexual nature, violent crimes and crimes that harm people, have forfeited their right to vote.”—[Official Report, 28 November 2019; c 93.]

That accords with the Government’s position that voting rights should be extended only to those convicted of less serious offences. That is spot on. In 2018, nearly 9,500 people received a custodial sentence of 12 months or less. Of those, more than 100 were convicted of attempted murder or serious assault, 98 were sexual offenders and 329 were convicted of handling offensive weapons. Mr Paterson is right—they should forfeit their right to vote. Nevertheless, he voted at stage 1 to give them the vote and, in doing so, he made it clear that logical argument would not change his position.

Presiding Officer, I address my comments to those who seek the sanctuary of the European convention on human rights and say, “Look, I don’t like it but we must go to 12 months to be compliant.” That argument is fundamentally flawed, because nowhere does the convention accord an individual right for prisoners—or anybody—to vote. That makes sense, because when someone is punished by imprisonment for committing a crime, certain of their rights are curtailed, such as the rights to freedom and privacy, as well as the right to vote. For 23 years, until the Hirst case in 2005 discovered it, there was no such right.

Leaving aside the difficulties in that case, which Adam Tomkins highlighted at stage 1, there was no respect in that judgment for the margin of appreciation on which the convention system depends. That margin is part of our law. At an earlier stage, the Law Society of Scotland made it clear that

“the franchise of prisoners may be restricted, provided that the restriction is proportionate”

to achieving

“a legitimate aim”.

The cabinet secretary is an authority for that. He stated that

“Members who are familiar with the Hirst ruling know that the court allows member states a wide margin of appreciation”

and that

“there is no one-size-fits-all approach to ensuring compliance”.—[Official Report, 28 November 2019; c 64.]

He is correct. That is why the United Kingdom’s solution to the Hirst case—to give the right to vote to prisoners who are released on temporary licence or on remand—has been accepted as a solution by the Committee of Ministers, which is the enforcement agency of the Council of Europe.

The inescapable conclusion is that this Parliament is not mandated to enfranchise this category of prisoners and is going further than is necessary or desirable in order to meet the Hirst requirements. Therefore, those who claim to vote for the legislation because of an obligation to comply with the law are misguided. They are making not a legal but a purely political decision.

Let there be no doubt that any member who votes for the bill at decision time tonight is voting to prioritise giving prisoners the vote over the human rights to life, to freedom from torture and to freedom of family life for victims and their families. They are doing so, not because they are required to by any law or legal principle, but because that is where their priorities lie. Let them live with the consequences and their consciences.

16:44  



Alex Rowley (Mid Scotland and Fife) (Lab)

I am pleased to speak in the stage 3 debate on the Scottish Elections (Franchise and Representation) Bill. In the stage 1 debate, I commended the committee for its report on the bill. I reiterate that and I commend the work that the committee has done to take the bill through to stage 3. I welcome the direction that has been taken by the bill and I believe that it will strengthen and improve the administration of devolved elections here in Scotland.

Increasing participation in elections by encouraging people to vote and stand for election should be a key priority for any well-functioning democracy and I am glad that the bill will help in that regard. I welcome Scotland taking measures that will give the right to vote to more people who live, work and make their homes here.

During the debate on amendments, Professor Tomkins raised concerns regarding the concept of citizenship. I draw his attention to a briefing for the debate that came through this morning, from the Scottish Refugee Council. It states:

“As it stands, the vast majority of refugees cannot vote in any election in the UK until they have acquired British citizenship. Refugees from former Commonwealth countries are the only exception, as they are considered ‘qualifying foreign nationals’ for the purpose of elections. We believe that the requirement to obtain citizenship in order to vote creates an unreasonably high barrier to political participation for refugees. Not only is the citizenship process expensive and complex”

—and it is—

“it can only be applied for after a minimum of six years residence in the UK. Many refugees living in Scotland do not have British citizenship and live here either with leave to remain as a refugee (five years leave) or indefinite leave to remain.”

I welcome the fact that the bill is set to change all that by enfranchising everyone who is lawfully resident in Scotland, regardless of nationality.

As I said, foreign nationals who make their homes in Scotland contribute greatly to our society. It is only right that those who are legally resident in Scotland and who contribute to our society in Scotland should have a say on the decisions that affect their daily lives.

I am pleased to support the bill and I hope that it sends a message that Scotland is a welcoming, inclusive country, where everyone is treated equally, no matter where they are from. I hope that the bill has a positive impact in showing those who are lawfully resident in Scotland that they have a voice and that this country is their home. I also hope that it helps with further integration in our communities, and that it helps to deliver the inclusive Scotland that I believe all of us in this chamber want to achieve.

16:47  



Gil Paterson (Clydebank and Milngavie) (SNP)

Our making use of the powers over elections and franchise provisions that were devolved to the Scottish Parliament by the Scotland Act 2016 is essential to the creation of a fairer and more inclusive Scotland. The proposals in the Scottish Elections (Franchise and Representation) Bill will—in my opinion—enhance democracy in Scotland, and enhance Scotland’s standing among the world’s democratic nations.

The decision by Parliament to lower the voting age to 16 has already had a significant and positive impact on political activity, through bringing appreciation of and involvement in the political process to Scotland’s younger voters—which is in stark contrast to their experiences elsewhere in these islands.

There is no doubt that issues including climate change and Brexit will have much more severe long-term implications for the younger generations, so their strong voice should be heard. In Scotland, because of franchise changes that have already been made, that can happen through the ballot box.

It has always shocked me that the so-called universal franchise in the UK is so restrictive. For example, EU citizens who make their homes and raise their families here, and who contribute to the economic and social wellbeing of this country were denied the right to vote in a referendum that will remove the UK from the European Union. People who have a legal right to residency in Britain should also have the right to vote. I am pleased that the bill will at least provide foreign nationals with that right, and with the right to stand for election in Scottish Parliament and local government elections. It is telling that 92 per cent of organisations and 78 per cent of individuals who responded to the Scottish Government’s consultation support the reform. To me, that says that we are going in the correct direction, towards creating a better and more inclusive society.

Although my heart says that we should incorporate asylum seekers in the new provisions, I have to agree with the comments that the cabinet secretary, Michael Russell MSP, made on 10 October 2019, when he articulated the problem to the Standards, Procedures and Public Appointments Committee in an evidence session, and which he backed up today very well. In essence, he said that, under UK jurisdiction, it would be extremely difficult to grant the right to vote to people who have no right to be in the UK in the first place. However, if migration is devolved to the Scottish Government or if Scotland becomes an independent nation, I am sure that that will change for the better.

The proposal to give voting rights to prisoners who are serving sentences of 12 months or less is just about correct. I am particularly interested in such sentences. I believe that women who have, perhaps repeatedly, committed low-level crimes to help their families should not be incarcerated; I find it barbaric. However, the fact that such women will be entitled to vote goes a little way towards dealing with how I feel about that issue. Such women are in poor circumstances that have often been brought about by society and by pressure that we put on them by, for instance, cutting financial support to which they should be entitled.

As well as achieving compliance with the European convention on human rights, the provisions fulfil our desire for rehabilitation of prisoners, particularly those who are on short sentences and who have committed less serious crimes, while excluding those who have been convicted of serious crimes and who are a danger to our progress towards being a better and safer society. The majority of people in Scotland want that to happen.

16:52  



James Kelly

Much of the debate has focused on prisoner voting. It is perhaps a sign of the progress that Parliament has made that, in 2020, we have arrived at a position in which we are prepared to support prisoner voting, or a partial extension to prisoners of the right to vote. I explained in my opening speech the reasons why I opposed such a measure in 2013 and why I support it now. Many members who will vote tonight took part in that vote in 2013. That shows that we are a democratic institution in which members are prepared not just to accept their legal responsibilities, but to examine issues in order to arrive at a position.

Jamie Halcro Johnston outlined a situation involving Kenny MacAskill and a lot of nervousness behind closed doors. That is possibly accurate, but we are where we are now.

Liam Kerr said that he feels that many members are hiding behind the European court judgment and saying that we need to do something to comply with it. However, from looking at the debates that have taken place on the issue, not just in the chamber but in committees, and from speaking to members around Parliament, that is not my experience.

This is a difficult issue for MSPs of all parties; members will have debated it in their party groups. Ultimately, the consensus at which Parliament will arrive will not only be the right one, but will be one that MSPs are comfortable with. In that regard, it is helpful that a supermajority in favour of the bill is required, because this is a big change. It is a change from our previous position that will require the support of 86 MSPs at decision time for the bill to become law. That shows that the arrangements around such legislation are robust.

I accept the point that Mr Russell made earlier on balance. I am sure that he will correct me if I am wrong, but I think that he said that based on the current prison population, 695 prisoners out of a population of just over 6,000 would be covered. I think that that is right and proportionate.

Liam McArthur’s amendments that were agreed to will provide the ability to review arrangements after Scottish Parliament and local elections have taken place.

There have also been good contributions on non-Scottish citizens who are legally resident here being part of the franchise. Alex Rowley made a very good speech on that. It is right, if we are a modern country and if we are asking people to live and work here, and to contribute to our community and economy, that those people have the vote.

Scottish Labour will support the bill at decision time. It makes important changes and will send the powerful message from the Scottish Parliament that we are extending the franchise.

16:56  



Adam Tomkins (Glasgow) (Con)

The cabinet secretary, Mr Russell, described the bill earlier as a

“significant—in fact, a massive—step forward”

and later described it as “a historic change”, which I think it is. It is a historic change that goes to the heart of something that Bill Kidd said in his opening remarks when he talked about the role of the social contract. That is what I will talk about in my closing remarks.

The Scottish Conservatives will oppose both parts of the bill, for the same fundamental reason: we do not think that the franchise should be extended to foreign nationals on the basis of residency and we do not think that the franchise should be extended to prisoners who are serving terms of imprisonment in Scotland. The reason why we think that ultimately boils down to the fact that we think that voting and the franchise are intimately associated with citizenship.

There is an alternative view, which has been eloquently put in the debate by Mark Ruskell and Liam McArthur in particular. They take the view that there is no relationship any more, in the modern world, between citizenship and voting; that the historic link between the franchise and citizenship—which they must surely acknowledge as a matter of history—has now been broken; and that the right to vote is just like any other human right, in that it is basic and universal and shared equally by us all.

However, that is not the view on voting that we in the Conservative Party take. It is also not the view on voting that is taken in the European convention on human rights. As Liam Kerr correctly said, there is no right to vote in the European convention on human rights, because those who wrote the European convention on human rights understood that the right to vote—fundamental as it is to our social contract—is not a human right, because we do not share it universally. It is a right that is associated with citizenship.

The United Kingdom is not and never has been a country that insists that someone must be a British citizen before they can vote here. We extend the franchise to Irish citizens and citizens of Commonwealth countries who are lawfully resident in the United Kingdom, because they have citizenship that is intimately associated with the United Kingdom. The bill goes so much further than that in breaking the link altogether between citizenship and the franchise.

If that is what we want to do—fine. I completely respect the position of Mr Ruskell and that of Mr McArthur, which is that the historic link between citizenship and the franchise is no longer material and that we should treat voting as a universal human right. That is fine and is a perfectly respectable position. However, the passage of the bill poses an interesting and profound question that the Scottish Parliament will need to address in the near future: what do we think citizenship does and what value does it add to residency if it is not partly encapsulated by the right to participate in and vote in elections and referendums in this country?

I do not think that citizenship is all about voting—there is much more to citizenship than that. However, I do not want to break that link between citizenship and the franchise. That is the reason of principle—the philosophical reason—why we will oppose the bill tonight. I fully understand that that is not the only principled position that one can take on modern electoral law, but that is our position and has been throughout the passage of the bill.

I will say a few more things about prisoners’ right to vote and the Hirst judgment, which Liam Kerr so expertly demolished in his remarks. I have already said that there is no right to vote in the European convention on human rights, so the Hirst judgment rests on a double legal error: first, it pretends that there is a right to vote under the ECHR and secondly, it says that the then UK legal position was a blanket ban on prisoner enfranchisement. Several members have used the expression “blanket ban” this afternoon and they are—as was the European Court of Human Rights—with respect, wrong to do so. There is no blanket ban and there has never been a blanket ban on prisoners voting in the United Kingdom: prisoners on remand can vote and prisoners who are incarcerated because they are in contempt of court can vote; they have never been disenfranchised. That is not a blanket ban. It is a general prohibition on voting, to which there are specific exemptions.

The European Court of Human Rights should never have gone anywhere near the issue because there is no right under the convention and no pan-European consensus on the matter, and because it should have given the United Kingdom the margin of appreciation that we are due as a member state of the Council of Ministers.

Mark Ruskell

Will the member give way?

Adam Tomkins

I am in the last few seconds of my speech, so I do not have time.

The European Court of Human Rights should never have gone anywhere near the issue for all those reasons. However, the solution does not rest in enfranchising all prisoners in Scotland who are sentenced to terms of imprisonment of up to a year. Minimal compliance with that doubly rotten judgment, which is what the United Kingdom is avowedly doing, is still compliance.

Mr Russell says that it is all very well for the Committee of Ministers to sign it off, but it could still be challenged in court. My question for the cabinet secretary—if he is still with us—is this: can he tell us of a case where the Committee of Ministers has accepted the position of a member state but where that position has nonetheless been challenged successfully in court? There is no realistic prospect of the UK’s position being successfully challenged in court, given the view of the Committee of Ministers. Those are the reasons of principle on which the Conservatives rest this evening.

17:03  



Michael Russell

I will follow on from what we have just heard from Mr Tomkins in a positive sense, because members hold genuinely different views, and there are different views on what the position is under ECHR. Since Hirst, the European Court of Human Rights has reiterated that the right to fair and free elections includes the right to vote. There is a margin of appreciation, but that is not unlimited. A blanket ban is outside that margin and that is where we are today.

There is a difference of opinion and there will always be a difference in opinion. We should respect each other in those circumstances. The only departure from that today came, regrettably, from Liam Kerr, who started out accepting the different views and then in his last few minutes went into the Tory law and order rant. I want to draw him back from that and towards a piece of evidence from Her Majesty’s Inspectorate of Prisons for Scotland. The HMIPS is a body that is not partisan in the matter and in its submission to the Standards, Procedures and Public Appointments Committee in September 2019, it said about people in prison:

“Their path into crime often starts with vulnerabilities not properly identified or responded to at the appropriate time or a lack of opportunities, sometimes linked to deprivation and other barriers that are not easily overcome. Exclusion from the electoral process may potentially only add to their sense of alienation and marginalisation in a way that may not help with efforts to encourage rehabilitation and reduce the risk of reoffending. That would not be in the best interests of society, even though that may not necessarily be fully recognised by the public.”

That is a very significant contribution to this debate.

We must recognise that our job is to take a proportional judgment between that position, which we respect, and the positions of others who are totally opposed to this, such as victims of crime. Not all victims of crime are opposed to it, but some are. We are trying to take that proportional position.

We are doing that in the context of franchise reform. No franchise is static; all electoral franchises are dynamic. There will be common ground. The Abbé Sieyès, the intellectual father of the French revolution, believed in direct, positive, participatory democracy. I am not trying to equate the Abbé Sieyès with Adam Tomkins, but he asked the question, “What is the nation?” Asking who is a citizen is an entirely legitimate thing to do.

The process of changing the franchise is not instantaneous. No franchise is ever fully formed; it continues to change and develop. What we decide here today will change in time and there will be different approaches. That is one reason why I backed Mr McArthur’s recommendation. It is right that we look at this again in future and ask whether there are changes that we still need. Those will not be considered in that review, but the equation between the right to vote and the right to stand is a legitimate issue that must be considered. We have not consulted on the right of 16 and 17-year-olds to stand, but that must be considered at some stage. Things keep evolving.

I do not say this unkindly, but one common theme in this debate has been the Conservative view that things should not change fast at all. The name “Conservative” gives that away. They think that things should not change. Radical voices will move us forward. That is why I respect Mr Ruskell’s ideas, but there is a job in the middle. That job is not to hold things back, but to make sure that they can be put in place in an efficient, effective and achievable way, because there is no point in doing things that are not achievable. That is what we have been trying to do.

Mark Ruskell urges me to get to the limits of devolution. I want to go well beyond the limits of devolution, but I want to do it in a way that is sustainable and that allows us to say to the people of Scotland that we have done it, and that it is going to happen. We cannot do that and say to people that we have done something on a wing and a prayer and hope that it might work. We are responding to advice, as it is our job to do, and moving forward.

We must also recognise—which I am sure that Mr Ruskell will accept—that we cannot do everything under devolution. That is why I believe in independence. We must do things fully and completely. We cannot design an electoral system that takes in substantial issues of migration without saying that we need to change the system of migration. We must recognise that there are things that we should be able to do but cannot do. I want to be bold; I do not want to be timid or timorous and I am not, but boldness is not just about words. Boldness is about achieving. It is about actions that stick. It is moving things forward constructively so that they will stick. That is what we have been trying to do.

I will finish on another quotation. I started with one from the evidence to the Standards, Procedures and Public Appointments Committee. Alex Rowley quoted the evidence from the Scottish Refugee Council. We must keep in mind that this is a radical and progressive bill. Sometimes the forces of progress in this Parliament are divided by questions, including by the constitutional question. It is possible for the forces of progress to come together and to say that we have some common view of what Scotland should look like and that it is not only defined by the constitution. Can we put elements of that into place now, even with the limits of devolution?

This is one of those moments when we have the opportunity to look at the type of Scotland that we would all like to achieve—the things that are important in our vision of Scotland and to put them in place.

The Scottish Refugee Council talked about the bill in those terms in its evidence in the briefing note to which Mr Rowley referred. It said:

“This Bill is a truly exciting piece of legislation, set to address a longstanding democratic deficit whereby thousands of New Scots have been unable to participate formally in Scottish democracy ... By granting voting rights to all those who are lawfully resident in Scotland ... this legislation”

reflects Scotland’s reputation for being

“a welcoming, inclusive country, where everyone is treated equally no matter where they are from.”

Given that, for the first time ever under devolution, we are dealing with legislation that requires a supermajority, the passing of the bill requires 86 or more progressive voices. I have never seen Mr Rumbles as one of those progressive voices—

Mike Rumbles (North East Scotland) (LD)

Oh!

Michael Russell

—but sometimes I am wrong. I know that that is a surprise—I see that Mr McArthur and Mr Simpson look shocked by that idea. Yes, sometimes I am wrong, and if there are progressive voices to be heard, I look forward to hearing them, including from all the Liberal Democrats, as forces for progress.

We need 86 or more progressive voices in this chamber who will say, “That is the type of Scotland that we want to deliver. No matter our views on other matters, let us deliver it.”

To conclude, I go back to where I started. There are different views about how democracy changes and there are different views on the society in which we wish to live. Some contend, as the Conservatives do, that we already live in perfection. Some of us believe that we live in imperfection, and that we need to continue to change and develop the society in which we live. However, from time to time, all of us in this chamber get the chance to show what we believe, to show whether we believe in having a progressive society and to show our philosophical view of what society is. Mr Tomkins has laid out eloquently some of the elements of his own vision, but tonight we have a chance to move in a progressive way.

I ask all members in the chamber to consider very carefully before they cast their vote, given the requirement for two thirds of members to show their progressive instincts, the issues of prisoner voting and the wider franchise, and to ask themselves what that says about their views of Scotland. I ask that members vote with their conscience on the matter. I shall support the bill at decision time; I hope that they do, too.

Final debate on the Bill

Once they've debated the amendments, the MSPs discuss the final version of the Bill.

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Final debate transcript

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is the stage 3 debate on motion S5M-20922, in the name of Michael Russell, on the Scottish Elections (Franchise and Representation) Bill. I inform members at the outset that we are short of time and it may be the case that decision time will be later than 5 o’clock.

The Cabinet Secretary for the Constitution, Europe and External Affairs (Michael Russell)

I thank all the members who have engaged with the Scottish Elections (Franchise and Representation) Bill today and throughout its parliamentary progress. My thanks go to the Standards, Procedures and Public Appointments Committee for its scrutiny and to electoral professionals for sharing their expertise. Many others, such as the Scottish Prison Service and the Scottish Refugee Council, worked constructively with the Government to develop what is historic legislation. It has two significant aspects: one is the expansion of the franchise, which I will come to in a moment; the second is prisoner voting.

Fifteen years ago, the grand chamber of the European Court of Human Rights stated in its Hirst judgment:

“the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion”.

Member states of the Council of Europe are afforded a margin of appreciation about how they achieve compliance with the European convention on human rights, and each country has adopted its own position. The Governments in Wales and at Westminster have taken their own views, based on their own circumstances. I have highlighted that the very limited approach of the United Kingdom Government only allows those on temporary release on polling day to vote. Although I accept Mr Tomkins’s point about the Council of Europe, the UK Government’s position has not yet been tested in court. However, we are not here to speculate on the outcome of such a test; rather, our duty is to take action that is proportionate, justifiable and tailored to our system.

In 2018, the Equalities and Human Rights Committee recommended that all prisoners should have the right to vote. Last year, the Standards, Procedures and Public Appointments Committee did not reach a consensus, and we have discussed a variety of proposals as the bill has progressed. The bill, if passed, will set the threshold for prisoner voting at those who are serving sentences of 12 months or less. Twelve months was the most popular response in our consultation and it has a firm basis in our justice system. It is the maximum sentence that can be imposed in a case that is heard without a jury.

I remind members that, as the Presiding Officer reminded us before the meeting was suspended briefly, this is the first time in Holyrood’s history that a bill will need not just a majority but the support of two thirds of all members who have been elected to this Parliament in order to be passed.

If the bill is not passed tonight, we will still be obliged to ensure that all future parliamentary elections are ECHR compliant. A remedial order was required last year to bring the franchise for the Shetland by-election into line with the convention. That was not a move that I wished to take, but I felt compelled to take it. Without the bill, we would have no choice but to lay another order in respect of prisoner voting in Scottish Parliament elections. I do not want to take such an action unless it is absolutely unavoidable. I recognise that prisoner voting is an important, emotive issue, and it is one on which I want the settled will of the Parliament to be expressed. I hope that that will be reflected at decision time tonight.

Although the bill’s provisions on prisoners are driven by the compelling need to meet human rights obligations, our proposals on foreign nationals are driven by the reality and, I believe, the aspiration of modern Scottish society. European Union and Commonwealth citizens already have the franchise, but we must also recognise the enormous contribution that is made to our country by people from all over the world. That is why we are extending the right to vote in devolved elections to all foreign nationals who are resident in Scotland and have leave to remain.

Some have argued in the chamber—and, no doubt, some will argue this evening—that voting should be rooted in strictly traditional ideas of citizenship. I believe that it must be based on active participation in society. The extension of voting rights is especially meaningful in the atmosphere of uncertainty surrounding the UK Government’s plans for the immigration system.

Adam Tomkins (Glasgow) (Con)

The point that the cabinet secretary has moved on to is very important. My question to him is this: if the link between the franchise and citizenship is to be broken—we can take different views about that, but it will be broken by the bill—what is citizenship for?

Michael Russell

That is a very interesting question, which Mr Tomkins raised at a previous stage. I would be happy to have that debate but, given the circumstances that we are in and the atmosphere of uncertainty over Brexit and immigration reform, I am happier to essentially recognise that the need for change is there. However, that does not exclude the debate that Mr Tomkins wants to have, and I would be happy to have it. It is part of the debate about modernising our society. I would argue that it is perhaps best expressed by having a modern nation to have that modern debate, although I do not believe that we presently live in a modern nation, given where the UK is. I do not want to dismiss that debate; I am simply not going to enter it now, because I do not have the full answers yet. However, we have an answer in terms of what we are attempting to do to modernise Scottish society.

We tried to cut through that uncertainty with our proposals for a new Scottish visa. However, as members will know, in a modern society, Scotland may accept that, but the UK dismissed it with contempt. That only serves to underline the importance of using the powers that we have to send the message that Scotland is open, is welcoming and is home to all those who choose to settle here. I am pleased to have introduced a bill that sends that message to the refugee community. I regret that we have not been able to find a workable way of extending voting rights to asylum seekers at this time, but I hope that that will not lead to any accusations that we do not wish to try to do so, that we are in some way dismissive or contemptuous of asylum seekers or that we are timid. We are going much further than almost any other country has done, and that should be recognised and celebrated.

The issue of who may stand as a candidate is related to that. There is a logic to the idea that candidacy rights should reflect voting rights, but the bill’s passage has illustrated that that is not so straightforward to achieve. We cannot, for example, pass legislation that affects the employment status or capacity of foreign nationals in the UK. If we did so, we would take ourselves outwith legislative competence. I would like to be permanently within legislative competence because this Parliament had all the powers, but we are where we are.

However, following stage 2, we have identified areas in which we could rightly go further, and we have brought them into the bill. For example, although EU nationals with settled status could stand as candidates under the bill as introduced, those with pre-settled status could not. However, those people are European Economic Area nationals and, as a result, we have been able to take the matter forward in a progressive way.

The bill reflects the reality of modern Scotland. However, no franchise is static. All franchises continue to grow, expand and develop. No doubt, franchise reform will continue in the chamber at some stage, perhaps in the not-too-distant future. I hope that those reforms will continue to reflect what the bill reflects: a Scotland that is committed to the treaties that safeguard our human rights, which wants to give a democratic voice to some of the most marginalised in our communities, and which welcomes those who seek to join our society. To make that vision a reality, we require the support of 86 members. I hope that members will recognise it as something that they wish to be part of, as they vote for the first time in a supermajority division.

I move,

That the Parliament agrees that the Scottish Elections (Franchise and Representation) Bill be passed.

16:15  



Jamie Halcro Johnston (Highlands and Islands) (Con)

The bill has two major functions: reforming the franchise in relation to residence and nationality, and bringing about prisoner voting. Having engaged with the bill at all stages, I would like to again extend my thanks to the legislation team and to the Standards, Procedures and Public Appointments Committee clerking team for all their support as we have progressed.

There is, of course, a far longer history behind our consideration of prisoner voting. We will be conscious of the decisions of the European Court of Human Rights, which loom over the choices that we make. However, equally, there are members in the chamber who have a sincere and long-standing commitment to enfranchising criminals who are still serving their sentences. On that point, I straightforwardly disagree.

Looking back, we can consider the period in the run-up to the 2014 referendum, when Scottish National Party members lined up to condemn prisoner voting and to object to the decision of the European Court of Human Rights. In 2013, the current First Minister refused to countenance it, saying:

“if somebody commits a crime that lands them in prison, they break their contract with society and therefore lose some of the rights that the rest of us take for granted.”—[Official Report, 14 May 2013; c 19707.]

Unbelievably, I agree with her. It is a position that many people beyond the chamber still hold. Indeed, it is a popular one, as the former justice secretary Kenny MacAskill, who is now a newly elected SNP MP, recognised. He believed, it seems, that allowing prisoners to vote was the right thing to do, but the arguments in the corridors of St Andrew’s house seemed to be solely against it, focused as they were on newspaper headlines and the effect on the opinion polls ahead of the referendum vote. Mr MacAskill called that position “shameful”, and we can see why.

As I have said, many members and parties have sincere and moral positions on prisoner voting—in some cases, those are absolute; in other cases, they are qualified. Some believe that it should be restricted to less serious offenders, or to those who are undergoing rehabilitation with a view to soon re-entering the community. For others, the material point is compliance with the decision of the European Court of Human Rights. The bill does a poor job of satisfying any of those points. It does not address rehabilitation, it does not merely implement the decision of the courts, and it does not successfully exclude people who may have received relatively short sentences but who committed significant and unpleasant crimes.

If we are to accept the argument of the European Court of Human Rights that a blanket ban is a disproportionate interference with human rights, we should perhaps reflect on the circumstances here in Scotland. To be sentenced to imprisonment, even for a relatively short period, generally means that a serious offence has been committed, or that a person has a lengthy history of more moderate offending that has reached a head. A proportionality test is already built in. If we must accept the ruling of the court—and the Scottish Government has been reticent on that point for many years—we should not gold-plate the requirements that the ECHR places on us.

The UK Government has accepted—unhappily—that some movement has to be made on prisoner voting. It has set out a position that I would be tempted to term “minimal compliance”, and the Council of Europe has accepted it. The Scottish Government has not accepted that position and has voted against it today.

There can be little hiding from the fact that the bill will bring prisoners into our elections. That will be a consequence of a decision made at Holyrood, not of compliance with a court in Strasbourg.

As I have said, many people simply disagree with the proposal that prisoners—people who have stepped beyond the rules set by our society—should have the right to vote for the people who set those rules while they are still being punished and have yet to be rehabilitated and reintegrated into our community. Rehabilitation is necessarily a process, but it is not complete by day 1 of a short sentence. Even if the bill is to be passed today, several things could have been done to make it safer. I pressed two amendments. One was a commonsense approach that would have ensured that any election events taking place on the prison estate as a result of the bill were safe and did not disadvantage candidates who might for a variety of reasons not wish to campaign in a prison setting. It would also have ensured that proper risk assessments would be carried out, with prison governors given a role to protect candidates, prisoners and prison staff.

The second amendment called for a review of the bill’s effect after the next round of elections. We should be mindful of the significance of changing our electoral franchise materially and I believe that the bill should be given the proper post-legislative attention that it merits.

On the question of the franchise for foreign national voters, I accept that there are arguments on both sides. In some cases, residence may demonstrate an attachment to place. However, it seems to me that citizenship is not an irrelevant consideration. For people who come to Scotland and live here for a sufficient amount of time, gaining citizenship demonstrates not only a right to residence but an involvement with the civic life of the country.

Today will mark the end of a rather uncomfortable process through which convicted prisoners who are spending time in jail will be brought in as part of our democracy. Some people may pay little attention to it. The numbers involved—just over 900 prisoners, spread around Scotland—may not have a huge influence on the results of any given election. However, it was also a process through which the SNP Government has, in forcing through prisoner voting, U-turned on its previous position, jettisoned its principles and put itself firmly at odds with the views of the voters whom we in this place serve.

The Deputy Presiding Officer

Before I call James Kelly, I can advise members that decision time is likely to be moved to 5.15 pm. I will advise better nearer the time, but the division bell will ring accordingly.

16:21  



James Kelly (Glasgow) (Lab)

I welcome the opportunity to open the debate for Scottish Labour on this important piece of legislation. There are two central parts to the bill: the extension of the franchise to include foreign nationals who are now resident in Scotland, and prisoner voting, which has been the subject of much debate this afternoon.

On prisoner voting, it is important to reflect on what has happened in the Parliament over the past six or seven years. The issue was considered ahead of the 2014 referendum and at that time the Government opposed extending the franchise to include prisoner voting, with Scottish Labour’s support. I spoke in the debate, from the seat that Mr Halcro Johnston is now sitting in, and I opposed prisoner voting. I suppose that a fair challenge to me and to the Government would be to ask what has happened to change our position.

I will submit two central reasons, the first of which is the European court judgment. Although it was around at the time of the previous debate, the bottom line was that various Governments, including the UK and Scottish Governments, danced around it and delayed any proper interaction with that judgment. That position cannot be sustained and we need to put in place a proper solution that extends the franchise to include at least some prisoners. It must be a serious and proportionate response, not the one that was put forward in the Tory amendment.

Liam Kerr (North East Scotland) (Con)

Will the member take an intervention?

James Kelly

Let me make my point about the Tory amendment, which would have allowed only those prisoners who were out on licence to participate in the elections.

Liam Kerr

Why does Mr Kelly think that we cannot stop at that level?

James Kelly

I will develop that point; I am trying to be helpful. As I said, I opposed the proposal in 2013 and one reason why I have changed my position is that I believe that we have to interact seriously with the European court judgment.

I will explain my second reason. As someone who held the justice portfolio previously and has recently returned to it, I have observed many of the justice debates, and it strikes me that, even among Tory members, many calls have been made for support to be provided for rehabilitation. I believe that giving prisoners with sentences of 12 months or less a vote in Scottish elections will help the process of establishing them as more responsible citizens who will make a greater contribution to society when they leave prison. I think that that represents a reasonable contribution to the rehabilitation process, alongside all the other rehabilitation techniques that we speak about in the chamber. For those reasons, I and Scottish Labour believe that the position that is established in the bill that we will vote on at decision time is the correct one.

The extension of the franchise to foreign nationals who are resident in Scotland is logical. People who reside here contribute to our economy and our communities, and they often work in caring professions such as those in the health service. Therefore, it is only right that we extend to them the right to participate in elections, to take part in the democratic process and to have a choice when it comes to the representatives who are picked and the Government that is elected.

My final point is one that I will expand on when I sum up. Allied to all the things that I have mentioned, there needs to be a process of voter registration and voter education.

As Mr Russell rightly said, the Scottish Elections (Franchise and Representation) Bill is an important bill that needs to achieve a two-thirds majority at decision time, and I hope that at least 86 MSPs will support it.

16:26  



Mark Ruskell (Mid Scotland and Fife) (Green)

The bill delivers important protections for the rights of EU and Commonwealth citizens and an extension of rights to refugees and others who have residency in the UK. Of course, Green members warmly welcome that tangible extension of rights; it is also an important symbol of how we increasingly base the definition of citizenship in Scotland on residency.

The Government has rightly used powers that were granted to the Parliament under the Scotland Act 2016, but I remain disappointed that it has not pushed right up to the limits of devolution by extending franchise and candidacy rights further. There will still be barriers to the rights of people in our communities, which will act against integration. Some of those barriers will be the result of choices that the Parliament has made this afternoon. Rather than having anything to do with immigration status, those choices represent a clear flinch away from administrative complexity.

Throughout the progress of the bill, the cabinet secretary has said repeatedly that the best is the enemy of the good, but it was clear in the vote earlier this afternoon on the proposed extension of the franchise to asylum seekers that there would have been a supermajority in favour of that change if the Government had actively chosen to resolve in advance the policy complexities that were flagged up months ago. Surely it cannot be beyond the capabilities of Government to work with electoral registration officers to take a 55,000-person franchise extension and add a further 5,000 people who have similar residency status issues.

The cabinet secretary will be relieved to hear that I am ready to move on, but I hope that the Government is, too. The debate about asylum seeker voting rights has been important but, of course, democracy is not just about single electoral events at which representatives are selected; it is also about participation. Maybe community councils could be opened up to asylum seekers who are resident in communities but who are not on the electoral register; maybe citizens juries and assemblies could include asylum seekers. Perhaps the Government can find a way to revisit the issue of the franchise sooner rather than later.

Adam Tomkins

Will the member take an intervention?

Mark Ruskell

If I have time—I am sorry; I do not think that I do.

On candidacy rights—

The Deputy Presiding Officer

Excuse me, Mr Ruskell. I do not remember answering. I can give you time to take the intervention.

Adam Tomkins

I have a very short question. How can somebody who is not a citizen play a meaningful role in something called a citizens assembly?

Mark Ruskell

Because they are resident. If our citizenship is based largely on residence, the fact is that those people will be in communities. They have views, access services and contribute to society. They have voices and we want to hear those voices, because they might actually make our society a better place for them and for the rest of us.

On candidacy rights, the concerns about those who have limited leave to remain not seeing out terms is a red herring. Many people are granted repeated periods of temporary leave to remain over many years. In many ways, their circumstances are similar to those who face financial or health insecurity but still stand for election. Diverse proportional electoral systems with lists and multimember constituencies can handle departures, whatever the cause.

On prisoner voting, the one-year cut-off point is open to challenge. If the Government was confident of its position in the bill, it would not have accepted Mr McArthur’s amendment to keep the door ajar. Many will be watching this space and I am sure that some will consider jumping into it.

Finally, I want to address candidacy rights for young people between the ages of 16 and 18. I am in no doubt about the capabilities of young people in leading our world. We only have to see the contrast between Greta Thunberg and Donald Trump to see that maturity and childishness can take unexpected forms. However, I recognise that matching the franchise with candidacy rights for young people requires careful thought and consideration, especially when it comes to safeguarding issues. The thinking has started and I hope that the next Government can be bold and formally revisit the issue.

Indeed, the whole process of electoral reform and revitalisation of our democracy has barely begun. There is much work to do, and it will require vision, a bold Government and a Parliament that is willing to challenge and push the boundaries further and further.

16:31  



Liam McArthur (Orkney Islands) (LD)

As the cabinet secretary acknowledged, inclusion has been a common theme during today’s debate and earlier debates on the bill. I am grateful, therefore, to have an opportunity to contribute on behalf of the Scottish Liberal Democrats and I pay tribute to the Standards, Procedures and Public Appointments Committee for its efforts in leading the scrutiny of such important legislation.

We need only cast our minds back to the previous parliamentary session, when amendments on prisoner voting from my colleague Alison McInnes were twice voted down, to see how far we have come to reach this point. I acknowledge the candour that was shown by James Kelly in talking about his journey in that respect. The legislation bears witness to the fact that even the most hardened narratives can be shifted if people are willing to make arguments or cases that are not easy or popular. In a week when self-defeating immigration policies rooted in xenophobia have been proposed, that is an important point to remember and cling to.

The UK is a nation of immigrants and we should be proud that people want to come to our country and work in our national health service and our schools, and to be part of our society. Those who want to make Scotland their home should be helped in their efforts to make a contribution to their new community. If someone has been forced to flee their home to escape war and persecution, they should not be confronted with needless barriers to integration. We should be tearing down walls, not building them. Extending voting to those who are legally here will help in a small but important way to do that.

Diversity in the UK should be celebrated. Our political institutions draw strength from the extent to which they reflect the people they are there to represent. Scottish Liberal Democrats are internationalists. We believe passionately in the values of human rights, democracy and equality. I am hopeful that the bill will play an important part in progressing those values in this country.

It is quite clear that the current blanket ban on prisoner voting flouts international law. The truth is that no other developed European democracy does that. It is not fair or progressive and it is not in the interests of rehabilitation. We know that if we are to reduce reoffending, we need to make people more aware of their responsibilities as citizens, rather than alienating them further.

I am not entirely convinced that drawing a line at 12 months is sufficient to meet ECHR obligations, but I am grateful to the Government for accepting my amendment for a review, to leave the door open to further change if necessary.

In any case, Scotland should not make a habit of settling for the bare minimum on human rights, as we did with the age of criminal responsibility last year, despite my party’s best efforts. Human rights are not pick-and-mix principles; they apply to everyone.

Prisoner voting rights are unrestricted in many developed nations across the world, including Austria, Canada, Denmark, Norway, the Netherlands and Sweden, to name but a few. Despite some of the rhetoric that we have heard this afternoon from Conservative members, those democracies have not collapsed in on themselves. Instead of stubbornly trailing behind international best practice, Scotland should be pushing it. Although the bill will not put us at the forefront, I remain hopeful of more progress in the future, which will build on the welcome steps that we are taking today. On that basis, Scottish Liberal Democrats will support the bill at decision time.

The Deputy Presiding Officer

I advise members that we are still running behind time. Therefore, I invite the cabinet secretary to move a motion, under rule 8.14.3, that the debate be extended by up to 30 minutes.

Motion moved,

That, under Rule 8.14.3, the debate be extended by up to 30 minutes.—[Michael Russell]

Motion agreed to.

The Deputy Presiding Officer

We move to the open debate and speeches of up to four minutes.

16:36  



Bill Kidd (Glasgow Anniesland) (SNP)

Over the course of this parliamentary term, members of the Standards, Procedures and Public Appointments Committee, of which I am the convener, have delved into poignant questions that have been posed by the Scottish Elections (Franchise and Representation) Bill.

As the bill’s name suggests, the questions revolved around core elements of democracy: the role of the social contract, obligations of the state, protection of voting rights and extension of the franchise. Those are all complex points of discussion and I take this opportunity to thank my fellow committee members and the clerking team for their dedicated and sincere engagement with those points over the past months. A good deal of work has gone into the creation of the bill and I am pleased with the outcome so far.

We have collectively pushed on to find the most appropriate, legally compliant and just way forward. In saying that, it should be noted that not all committee members agreed on every element, but any disagreement was carried out in a dignified and civilised manner and I thank the committee members for that. I echo the cabinet secretary’s hope that a two-thirds majority, at the very least, agrees to the bill.

The need to bridge a legal contradiction that has arisen between the Scotland Act 2016 and the blanket ban on all prisoners voting necessitated the creation of the bill. The blanket ban has only a short historical precedence; in fact, until the 1960s—relatively recently—many prisoners in the UK were enfranchised. Now, our current law is at odds with the conclusions of many legislators in other healthy democracies and is in conflict with the ECHR and the Scotland Act 2016.

Following Scottish Government consultation and committee engagement, the bill amends current legislation to extend the franchise to prisoners who are serving a sentence of less than a year. That conclusion has been reached on the basis that there should be a relationship between the seriousness of a crime and the ability to vote. What is notable about the cut-off point is that 12 months is the maximum sentence that can be imposed in a summary trial. A summary trial does not involve a jury and considers only crimes of a less serious nature.

As the committee members did not all agree on everything, the committee found a balance of a 12-month cut-off, which reflects the outcome of the Scottish Government consultation. The balance also provides the Scottish Parliament with a way forward that is compliant with our specific ECHR duties under the 2016 act. In addition, that way forward maintains the extremely important link between the right to vote and the fulfilment of the social contract. Aside from those elements, the bill brings about other changes that will make the extension of the franchise reflect Scottish society in the globalised 21st century. An elevating element of the bill is to allow qualifying foreign nationals to vote. Such a legislative change means that the evolution of migration and its impact on the make-up of Scottish society is recognised.

Importantly, the change also ensures that EU nationals who are living in Scotland with settled status will still be able to vote in post-Brexit elections. Moreover, the legislation empowers refugees with leave to remain by extending the franchise to them. Anyone who has the right to remain will have the right to vote in Scotland, which is an incredible step forward.

Voting for legislation that takes crucial steps towards empowering vulnerable or socially disenfranchised groups is a powerful moment for legislators. Today, we have the opportunity to vote for a bill that will make our voting landscape brighter and more reflective of the inspiring and evolving society that defines Scotland. I hope that everyone will join me today in making that a reality.

16:40  



Liam Kerr (North East Scotland) (Con)

I shall not vote for the bill, as it proposes to give the vote to prisoners who are serving sentences in prison.

I address my comments, not so much to the likes of Alex Cole-Hamilton, who has been consistent that the vote should be given to prisoners simply because—and I paraphrase here—they should have their voices heard and influence how the country is run. I fundamentally disagree with that premise, because I cannot accept that those who commit crimes of such severity that, despite the presumption against short sentences, the desire to give community disposals and the increase in electronic monitoring, they still go to prison, should be granted the vote over the rights of the victims that they offended against. However, I accept that that position will not be swayed by recourse to the cold reality of legal argument.

Furthermore, I shall not expend time addressing those whose position crumbles in the face of facts, yet will not change their vote. I have in mind those such as Gil Paterson, who rehearsed today during the debate on amendments what he said at stage 1:

“in my opinion, those who have been convicted of more serious crimes, particularly those of a sexual nature, violent crimes and crimes that harm people, have forfeited their right to vote.”—[Official Report, 28 November 2019; c 93.]

That accords with the Government’s position that voting rights should be extended only to those convicted of less serious offences. That is spot on. In 2018, nearly 9,500 people received a custodial sentence of 12 months or less. Of those, more than 100 were convicted of attempted murder or serious assault, 98 were sexual offenders and 329 were convicted of handling offensive weapons. Mr Paterson is right—they should forfeit their right to vote. Nevertheless, he voted at stage 1 to give them the vote and, in doing so, he made it clear that logical argument would not change his position.

Presiding Officer, I address my comments to those who seek the sanctuary of the European convention on human rights and say, “Look, I don’t like it but we must go to 12 months to be compliant.” That argument is fundamentally flawed, because nowhere does the convention accord an individual right for prisoners—or anybody—to vote. That makes sense, because when someone is punished by imprisonment for committing a crime, certain of their rights are curtailed, such as the rights to freedom and privacy, as well as the right to vote. For 23 years, until the Hirst case in 2005 discovered it, there was no such right.

Leaving aside the difficulties in that case, which Adam Tomkins highlighted at stage 1, there was no respect in that judgment for the margin of appreciation on which the convention system depends. That margin is part of our law. At an earlier stage, the Law Society of Scotland made it clear that

“the franchise of prisoners may be restricted, provided that the restriction is proportionate”

to achieving

“a legitimate aim”.

The cabinet secretary is an authority for that. He stated that

“Members who are familiar with the Hirst ruling know that the court allows member states a wide margin of appreciation”

and that

“there is no one-size-fits-all approach to ensuring compliance”.—[Official Report, 28 November 2019; c 64.]

He is correct. That is why the United Kingdom’s solution to the Hirst case—to give the right to vote to prisoners who are released on temporary licence or on remand—has been accepted as a solution by the Committee of Ministers, which is the enforcement agency of the Council of Europe.

The inescapable conclusion is that this Parliament is not mandated to enfranchise this category of prisoners and is going further than is necessary or desirable in order to meet the Hirst requirements. Therefore, those who claim to vote for the legislation because of an obligation to comply with the law are misguided. They are making not a legal but a purely political decision.

Let there be no doubt that any member who votes for the bill at decision time tonight is voting to prioritise giving prisoners the vote over the human rights to life, to freedom from torture and to freedom of family life for victims and their families. They are doing so, not because they are required to by any law or legal principle, but because that is where their priorities lie. Let them live with the consequences and their consciences.

16:44  



Alex Rowley (Mid Scotland and Fife) (Lab)

I am pleased to speak in the stage 3 debate on the Scottish Elections (Franchise and Representation) Bill. In the stage 1 debate, I commended the committee for its report on the bill. I reiterate that and I commend the work that the committee has done to take the bill through to stage 3. I welcome the direction that has been taken by the bill and I believe that it will strengthen and improve the administration of devolved elections here in Scotland.

Increasing participation in elections by encouraging people to vote and stand for election should be a key priority for any well-functioning democracy and I am glad that the bill will help in that regard. I welcome Scotland taking measures that will give the right to vote to more people who live, work and make their homes here.

During the debate on amendments, Professor Tomkins raised concerns regarding the concept of citizenship. I draw his attention to a briefing for the debate that came through this morning, from the Scottish Refugee Council. It states:

“As it stands, the vast majority of refugees cannot vote in any election in the UK until they have acquired British citizenship. Refugees from former Commonwealth countries are the only exception, as they are considered ‘qualifying foreign nationals’ for the purpose of elections. We believe that the requirement to obtain citizenship in order to vote creates an unreasonably high barrier to political participation for refugees. Not only is the citizenship process expensive and complex”

—and it is—

“it can only be applied for after a minimum of six years residence in the UK. Many refugees living in Scotland do not have British citizenship and live here either with leave to remain as a refugee (five years leave) or indefinite leave to remain.”

I welcome the fact that the bill is set to change all that by enfranchising everyone who is lawfully resident in Scotland, regardless of nationality.

As I said, foreign nationals who make their homes in Scotland contribute greatly to our society. It is only right that those who are legally resident in Scotland and who contribute to our society in Scotland should have a say on the decisions that affect their daily lives.

I am pleased to support the bill and I hope that it sends a message that Scotland is a welcoming, inclusive country, where everyone is treated equally, no matter where they are from. I hope that the bill has a positive impact in showing those who are lawfully resident in Scotland that they have a voice and that this country is their home. I also hope that it helps with further integration in our communities, and that it helps to deliver the inclusive Scotland that I believe all of us in this chamber want to achieve.

16:47  



Gil Paterson (Clydebank and Milngavie) (SNP)

Our making use of the powers over elections and franchise provisions that were devolved to the Scottish Parliament by the Scotland Act 2016 is essential to the creation of a fairer and more inclusive Scotland. The proposals in the Scottish Elections (Franchise and Representation) Bill will—in my opinion—enhance democracy in Scotland, and enhance Scotland’s standing among the world’s democratic nations.

The decision by Parliament to lower the voting age to 16 has already had a significant and positive impact on political activity, through bringing appreciation of and involvement in the political process to Scotland’s younger voters—which is in stark contrast to their experiences elsewhere in these islands.

There is no doubt that issues including climate change and Brexit will have much more severe long-term implications for the younger generations, so their strong voice should be heard. In Scotland, because of franchise changes that have already been made, that can happen through the ballot box.

It has always shocked me that the so-called universal franchise in the UK is so restrictive. For example, EU citizens who make their homes and raise their families here, and who contribute to the economic and social wellbeing of this country were denied the right to vote in a referendum that will remove the UK from the European Union. People who have a legal right to residency in Britain should also have the right to vote. I am pleased that the bill will at least provide foreign nationals with that right, and with the right to stand for election in Scottish Parliament and local government elections. It is telling that 92 per cent of organisations and 78 per cent of individuals who responded to the Scottish Government’s consultation support the reform. To me, that says that we are going in the correct direction, towards creating a better and more inclusive society.

Although my heart says that we should incorporate asylum seekers in the new provisions, I have to agree with the comments that the cabinet secretary, Michael Russell MSP, made on 10 October 2019, when he articulated the problem to the Standards, Procedures and Public Appointments Committee in an evidence session, and which he backed up today very well. In essence, he said that, under UK jurisdiction, it would be extremely difficult to grant the right to vote to people who have no right to be in the UK in the first place. However, if migration is devolved to the Scottish Government or if Scotland becomes an independent nation, I am sure that that will change for the better.

The proposal to give voting rights to prisoners who are serving sentences of 12 months or less is just about correct. I am particularly interested in such sentences. I believe that women who have, perhaps repeatedly, committed low-level crimes to help their families should not be incarcerated; I find it barbaric. However, the fact that such women will be entitled to vote goes a little way towards dealing with how I feel about that issue. Such women are in poor circumstances that have often been brought about by society and by pressure that we put on them by, for instance, cutting financial support to which they should be entitled.

As well as achieving compliance with the European convention on human rights, the provisions fulfil our desire for rehabilitation of prisoners, particularly those who are on short sentences and who have committed less serious crimes, while excluding those who have been convicted of serious crimes and who are a danger to our progress towards being a better and safer society. The majority of people in Scotland want that to happen.

16:52  



James Kelly

Much of the debate has focused on prisoner voting. It is perhaps a sign of the progress that Parliament has made that, in 2020, we have arrived at a position in which we are prepared to support prisoner voting, or a partial extension to prisoners of the right to vote. I explained in my opening speech the reasons why I opposed such a measure in 2013 and why I support it now. Many members who will vote tonight took part in that vote in 2013. That shows that we are a democratic institution in which members are prepared not just to accept their legal responsibilities, but to examine issues in order to arrive at a position.

Jamie Halcro Johnston outlined a situation involving Kenny MacAskill and a lot of nervousness behind closed doors. That is possibly accurate, but we are where we are now.

Liam Kerr said that he feels that many members are hiding behind the European court judgment and saying that we need to do something to comply with it. However, from looking at the debates that have taken place on the issue, not just in the chamber but in committees, and from speaking to members around Parliament, that is not my experience.

This is a difficult issue for MSPs of all parties; members will have debated it in their party groups. Ultimately, the consensus at which Parliament will arrive will not only be the right one, but will be one that MSPs are comfortable with. In that regard, it is helpful that a supermajority in favour of the bill is required, because this is a big change. It is a change from our previous position that will require the support of 86 MSPs at decision time for the bill to become law. That shows that the arrangements around such legislation are robust.

I accept the point that Mr Russell made earlier on balance. I am sure that he will correct me if I am wrong, but I think that he said that based on the current prison population, 695 prisoners out of a population of just over 6,000 would be covered. I think that that is right and proportionate.

Liam McArthur’s amendments that were agreed to will provide the ability to review arrangements after Scottish Parliament and local elections have taken place.

There have also been good contributions on non-Scottish citizens who are legally resident here being part of the franchise. Alex Rowley made a very good speech on that. It is right, if we are a modern country and if we are asking people to live and work here, and to contribute to our community and economy, that those people have the vote.

Scottish Labour will support the bill at decision time. It makes important changes and will send the powerful message from the Scottish Parliament that we are extending the franchise.

16:56  



Adam Tomkins (Glasgow) (Con)

The cabinet secretary, Mr Russell, described the bill earlier as a

“significant—in fact, a massive—step forward”

and later described it as “a historic change”, which I think it is. It is a historic change that goes to the heart of something that Bill Kidd said in his opening remarks when he talked about the role of the social contract. That is what I will talk about in my closing remarks.

The Scottish Conservatives will oppose both parts of the bill, for the same fundamental reason: we do not think that the franchise should be extended to foreign nationals on the basis of residency and we do not think that the franchise should be extended to prisoners who are serving terms of imprisonment in Scotland. The reason why we think that ultimately boils down to the fact that we think that voting and the franchise are intimately associated with citizenship.

There is an alternative view, which has been eloquently put in the debate by Mark Ruskell and Liam McArthur in particular. They take the view that there is no relationship any more, in the modern world, between citizenship and voting; that the historic link between the franchise and citizenship—which they must surely acknowledge as a matter of history—has now been broken; and that the right to vote is just like any other human right, in that it is basic and universal and shared equally by us all.

However, that is not the view on voting that we in the Conservative Party take. It is also not the view on voting that is taken in the European convention on human rights. As Liam Kerr correctly said, there is no right to vote in the European convention on human rights, because those who wrote the European convention on human rights understood that the right to vote—fundamental as it is to our social contract—is not a human right, because we do not share it universally. It is a right that is associated with citizenship.

The United Kingdom is not and never has been a country that insists that someone must be a British citizen before they can vote here. We extend the franchise to Irish citizens and citizens of Commonwealth countries who are lawfully resident in the United Kingdom, because they have citizenship that is intimately associated with the United Kingdom. The bill goes so much further than that in breaking the link altogether between citizenship and the franchise.

If that is what we want to do—fine. I completely respect the position of Mr Ruskell and that of Mr McArthur, which is that the historic link between citizenship and the franchise is no longer material and that we should treat voting as a universal human right. That is fine and is a perfectly respectable position. However, the passage of the bill poses an interesting and profound question that the Scottish Parliament will need to address in the near future: what do we think citizenship does and what value does it add to residency if it is not partly encapsulated by the right to participate in and vote in elections and referendums in this country?

I do not think that citizenship is all about voting—there is much more to citizenship than that. However, I do not want to break that link between citizenship and the franchise. That is the reason of principle—the philosophical reason—why we will oppose the bill tonight. I fully understand that that is not the only principled position that one can take on modern electoral law, but that is our position and has been throughout the passage of the bill.

I will say a few more things about prisoners’ right to vote and the Hirst judgment, which Liam Kerr so expertly demolished in his remarks. I have already said that there is no right to vote in the European convention on human rights, so the Hirst judgment rests on a double legal error: first, it pretends that there is a right to vote under the ECHR and secondly, it says that the then UK legal position was a blanket ban on prisoner enfranchisement. Several members have used the expression “blanket ban” this afternoon and they are—as was the European Court of Human Rights—with respect, wrong to do so. There is no blanket ban and there has never been a blanket ban on prisoners voting in the United Kingdom: prisoners on remand can vote and prisoners who are incarcerated because they are in contempt of court can vote; they have never been disenfranchised. That is not a blanket ban. It is a general prohibition on voting, to which there are specific exemptions.

The European Court of Human Rights should never have gone anywhere near the issue because there is no right under the convention and no pan-European consensus on the matter, and because it should have given the United Kingdom the margin of appreciation that we are due as a member state of the Council of Ministers.

Mark Ruskell

Will the member give way?

Adam Tomkins

I am in the last few seconds of my speech, so I do not have time.

The European Court of Human Rights should never have gone anywhere near the issue for all those reasons. However, the solution does not rest in enfranchising all prisoners in Scotland who are sentenced to terms of imprisonment of up to a year. Minimal compliance with that doubly rotten judgment, which is what the United Kingdom is avowedly doing, is still compliance.

Mr Russell says that it is all very well for the Committee of Ministers to sign it off, but it could still be challenged in court. My question for the cabinet secretary—if he is still with us—is this: can he tell us of a case where the Committee of Ministers has accepted the position of a member state but where that position has nonetheless been challenged successfully in court? There is no realistic prospect of the UK’s position being successfully challenged in court, given the view of the Committee of Ministers. Those are the reasons of principle on which the Conservatives rest this evening.

17:03  



Michael Russell

I will follow on from what we have just heard from Mr Tomkins in a positive sense, because members hold genuinely different views, and there are different views on what the position is under ECHR. Since Hirst, the European Court of Human Rights has reiterated that the right to fair and free elections includes the right to vote. There is a margin of appreciation, but that is not unlimited. A blanket ban is outside that margin and that is where we are today.

There is a difference of opinion and there will always be a difference in opinion. We should respect each other in those circumstances. The only departure from that today came, regrettably, from Liam Kerr, who started out accepting the different views and then in his last few minutes went into the Tory law and order rant. I want to draw him back from that and towards a piece of evidence from Her Majesty’s Inspectorate of Prisons for Scotland. The HMIPS is a body that is not partisan in the matter and in its submission to the Standards, Procedures and Public Appointments Committee in September 2019, it said about people in prison:

“Their path into crime often starts with vulnerabilities not properly identified or responded to at the appropriate time or a lack of opportunities, sometimes linked to deprivation and other barriers that are not easily overcome. Exclusion from the electoral process may potentially only add to their sense of alienation and marginalisation in a way that may not help with efforts to encourage rehabilitation and reduce the risk of reoffending. That would not be in the best interests of society, even though that may not necessarily be fully recognised by the public.”

That is a very significant contribution to this debate.

We must recognise that our job is to take a proportional judgment between that position, which we respect, and the positions of others who are totally opposed to this, such as victims of crime. Not all victims of crime are opposed to it, but some are. We are trying to take that proportional position.

We are doing that in the context of franchise reform. No franchise is static; all electoral franchises are dynamic. There will be common ground. The Abbé Sieyès, the intellectual father of the French revolution, believed in direct, positive, participatory democracy. I am not trying to equate the Abbé Sieyès with Adam Tomkins, but he asked the question, “What is the nation?” Asking who is a citizen is an entirely legitimate thing to do.

The process of changing the franchise is not instantaneous. No franchise is ever fully formed; it continues to change and develop. What we decide here today will change in time and there will be different approaches. That is one reason why I backed Mr McArthur’s recommendation. It is right that we look at this again in future and ask whether there are changes that we still need. Those will not be considered in that review, but the equation between the right to vote and the right to stand is a legitimate issue that must be considered. We have not consulted on the right of 16 and 17-year-olds to stand, but that must be considered at some stage. Things keep evolving.

I do not say this unkindly, but one common theme in this debate has been the Conservative view that things should not change fast at all. The name “Conservative” gives that away. They think that things should not change. Radical voices will move us forward. That is why I respect Mr Ruskell’s ideas, but there is a job in the middle. That job is not to hold things back, but to make sure that they can be put in place in an efficient, effective and achievable way, because there is no point in doing things that are not achievable. That is what we have been trying to do.

Mark Ruskell urges me to get to the limits of devolution. I want to go well beyond the limits of devolution, but I want to do it in a way that is sustainable and that allows us to say to the people of Scotland that we have done it, and that it is going to happen. We cannot do that and say to people that we have done something on a wing and a prayer and hope that it might work. We are responding to advice, as it is our job to do, and moving forward.

We must also recognise—which I am sure that Mr Ruskell will accept—that we cannot do everything under devolution. That is why I believe in independence. We must do things fully and completely. We cannot design an electoral system that takes in substantial issues of migration without saying that we need to change the system of migration. We must recognise that there are things that we should be able to do but cannot do. I want to be bold; I do not want to be timid or timorous and I am not, but boldness is not just about words. Boldness is about achieving. It is about actions that stick. It is moving things forward constructively so that they will stick. That is what we have been trying to do.

I will finish on another quotation. I started with one from the evidence to the Standards, Procedures and Public Appointments Committee. Alex Rowley quoted the evidence from the Scottish Refugee Council. We must keep in mind that this is a radical and progressive bill. Sometimes the forces of progress in this Parliament are divided by questions, including by the constitutional question. It is possible for the forces of progress to come together and to say that we have some common view of what Scotland should look like and that it is not only defined by the constitution. Can we put elements of that into place now, even with the limits of devolution?

This is one of those moments when we have the opportunity to look at the type of Scotland that we would all like to achieve—the things that are important in our vision of Scotland and to put them in place.

The Scottish Refugee Council talked about the bill in those terms in its evidence in the briefing note to which Mr Rowley referred. It said:

“This Bill is a truly exciting piece of legislation, set to address a longstanding democratic deficit whereby thousands of New Scots have been unable to participate formally in Scottish democracy ... By granting voting rights to all those who are lawfully resident in Scotland ... this legislation”

reflects Scotland’s reputation for being

“a welcoming, inclusive country, where everyone is treated equally no matter where they are from.”

Given that, for the first time ever under devolution, we are dealing with legislation that requires a supermajority, the passing of the bill requires 86 or more progressive voices. I have never seen Mr Rumbles as one of those progressive voices—

Mike Rumbles (North East Scotland) (LD)

Oh!

Michael Russell

—but sometimes I am wrong. I know that that is a surprise—I see that Mr McArthur and Mr Simpson look shocked by that idea. Yes, sometimes I am wrong, and if there are progressive voices to be heard, I look forward to hearing them, including from all the Liberal Democrats, as forces for progress.

We need 86 or more progressive voices in this chamber who will say, “That is the type of Scotland that we want to deliver. No matter our views on other matters, let us deliver it.”

To conclude, I go back to where I started. There are different views about how democracy changes and there are different views on the society in which we wish to live. Some contend, as the Conservatives do, that we already live in perfection. Some of us believe that we live in imperfection, and that we need to continue to change and develop the society in which we live. However, from time to time, all of us in this chamber get the chance to show what we believe, to show whether we believe in having a progressive society and to show our philosophical view of what society is. Mr Tomkins has laid out eloquently some of the elements of his own vision, but tonight we have a chance to move in a progressive way.

I ask all members in the chamber to consider very carefully before they cast their vote, given the requirement for two thirds of members to show their progressive instincts, the issues of prisoner voting and the wider franchise, and to ask themselves what that says about their views of Scotland. I ask that members vote with their conscience on the matter. I shall support the bill at decision time; I hope that they do, too.

Final vote on the Bill

After the final discussion of the Bill, MSPs vote on whether they think it should become law.

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Final vote transcript

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-20922, in the name of Michael Russell, on the Scottish Elections (Franchise and Representation) Bill at stage 3, be agreed to. I remind members that, for the first time ever for a bill in the Scottish Parliament, this bill requires a supermajority to be passed. That means that 86 members are required to vote for the bill for it to be passed. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smyth, Colin (South Scotland) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rennie, Willie (North East Fife) (LD)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
McNeill, Pauline (Glasgow) (Lab)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Fee, Mary (West Scotland) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Boyack, Sarah (Lothian) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mason, Tom (North East Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Greene, Jamie (West Scotland) (Con)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

The Presiding Officer

The result of the division is: For 92, Against 27, Abstentions 0. That means that a supermajority has been achieved.

Motion agreed to,

That the Parliament agrees that the Scottish Elections (Franchise and Representation) Bill be passed.

The Presiding Officer

The final question is, that legislative consent motion S5M-20921, in the name of Humza Yousaf, on the Terrorist Offenders (Restriction of Early Release) Bill, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Whittle, Brian (South Scotland) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tomkins, Adam (Glasgow) (Con)
Todd, Maree (Highlands and Islands) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smyth, Colin (South Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smith, Elaine (Central Scotland) (Lab)
Simpson, Graham (Central Scotland) (Con)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
McNeill, Pauline (Glasgow) (Lab)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, Tom (North East Scotland) (Con)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kelly, James (Glasgow) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harris, Alison (Central Scotland) (Con)
Harper, Emma (South Scotland) (SNP)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Griffin, Mark (Central Scotland) (Lab)
Greene, Jamie (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Fee, Mary (West Scotland) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Boyack, Sarah (Lothian) (Lab)
Bowman, Bill (North East Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Wishart, Beatrice (Shetland Islands) (LD)
Wightman, Andy (Lothian) (Green)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rennie, Willie (North East Fife) (LD)
McArthur, Liam (Orkney Islands) (LD)
Johnstone, Alison (Lothian) (Green)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Finnie, John (Highlands and Islands) (Green)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

Abstentions

White, Sandra (Glasgow Kelvin) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)

The Presiding Officer

The result of the division is: For 105, Against 11, Abstentions 3.

Motion agreed to,

That the Parliament agrees that the relevant provisions of the Terrorist Offenders (Restriction of Early Release) Bill, introduced in the House of Commons on 11 February 2020, relating to Scottish Ministers’ power to refer prisoners to the Parole Board, Scottish Ministers’ power to release prisoners when recommended to do so by the Parole Board and disapplication of certain powers held by Scottish Ministers’ in respect of the early release of prisoners, so far as these matters alter the executive competence of Scottish Ministers, should be considered by the UK Parliament.

The Presiding Officer

That concludes decision time.

Meeting closed at 17:23.  



 

Scottish (Elections Franchise and Representation) Bill as passed

Super-majority

Under section 31(2A) of the Scotland Act 1998, the Presiding Officer decided that the Bill needed a super-majority to pass. This is because the Bill relates to a protected subject-matter. This is “the persons entitled to vote as electors at an election for membership of the Parliament”. A super-majority means that the number of members voting for a Bill must be at least two-thirds of the total number of seats for members of the Parliament (86 votes). The Bill passed, after reaching the required super-majority.

This Bill was passed on 20 February 2020 and became an Act on 1 April 2020.
Find the Act on legislation.gov.uk

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