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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.

The Bill at different stages

'Bills' are proposed laws. Members of the Scottish Parliament (MSPs) discuss them to decide if they should become law.

Here are the different versions of the Bill:

The Bill as introduced

Scottish Elections (Franchise and Representation) (Scotland) Bill as introduced

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

Bill is at ScottishParliament.SC.Feature.BillComponents.Models.BillStageModel?.DefaultBillStage?.Stage_Name stage.

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:

Government Bills

These are Bills that have been introduced by the Scottish Government. They are sometimes called 'Executive Bills'.

Most of the laws that the Scottish Parliament looks at are Government Bills.

Hybrid Bills

These Bills are suggested by the Scottish Government.

As well as having an impact on a general law, they could also have an impact on organisations' or the public's private interests.

The first Hybrid Bill was the Forth Crossing Bill.

Members' Bill

These are Bills suggested by MSPs. Every MSP can try to get 2 laws passed in the time between elections. This 5-year period is called a 'parliamentary session'.

To do this, they need other MSPs from different political parties to support their Bills.

Committee Bills

These are Bills suggested by a group of MSPs called a committee.

These are Public Bills because they will change general law.

Private Bills

These are Bills suggested by a person, group or company. They usually:

  • add to an existing law
  • change an existing law

A committee would be created to work on a Private Bill.

Bill stage timeline

The Scottish Elections (Franchise and Representation) Bill is currently at Stage 2.

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.