Scottish Elections (Franchise and Representations) Bill Passed
On 20 February 2020, after years of campaigning, legislation was finally passed to lift the blanket ban on convicted prisoners voting.
It's been fifteen years since the European Court of Human Rights (ECtHR) ruled that the UK blanket ban on prisoner voting was in breach of Article 3 of Protocol 1 (A3P1) of the European Convention on Human Rights (ECHR) (Hirst v. the United Kingdom (No.2)).
We gave evidence to the Referendum (Scotland) Bill Committee on the Scottish Independence Referendum (Franchise) Bill. We gave evidence to the Equalities and Human Rights Committee. We responded to the Scottish Government's consultation on prisoner voting. We gave written and oral evidence to the Standards, Procedures and Public Appointment Committee.
We argued that a custodial sentence alone was too low a threshold for the loss of such an important right. That removing the right to vote from those serving shorter sentences had particularly arbitrary effects. That it worked against rehabilitation. That this was an opportunity to put down a marker about the value placed on democratic rights and social justice in Scotland. That we should follow the example set by other Council of Europe states. That it was about human rights and citizenship. That it was about much more than the minimum level of compliance with our legal obligations.
And on Thursday 20 February 2020, with 92 votes 'for' and 27 votes 'against', the Scottish Elections (Franchise and Representations) Bill was passed, enfranchising those sentenced to 12 months or less in custody, and ensuring that a review of the appropriateness of the 12 months cut-off point was delivered by 4 May 2023.
We're delighted that the blanket ban has been removed, and wish to thank all our members and supporters past and present for their efforts in helping us and others to achieve this.
Of course, there's more to be done ... only extending the franchise to those sentenced to 12 months or less could still be successfully challenged through the European Court of Human Rights. We need to legislate to extend voting rights much further, so that all those people who have spent time in prison return to a community of which they feel a part and believe that they have a stake in its future. We'll also need to ensure that those who wish to vote have the information and support required to do so.
But today, let's take a (brief) moment to remember how far we've come.
Scottish Elections (Franchise and Representations) Bill Report
On 13 November, the Standards, Procedures and Public Appointments Committee published its report on evidence taken on the Scottish Elections (Franchise and Representations) Bill. It concluded that they “would like to see the … policy on prisoner voting driven by principle and evidence” and that “the Scottish Government has settled on an approach which fails to address the central question of what disenfranchisement seeks to achieve”. We will continue to campaign for the franchise to be extended to all prisoners.
Franchise Extended to Prisoners to Vote in the Shetland By-Election
We welcome the Scottish Government's announcement (01 August 2019) that it will take steps to align the franchise for the Shetland by-election with the European Convention on Human Rights (ECHR). A Remedial Order has been used to extend the franchise to those sentenced to prison terms of 12 months or less, following the 2005 European Court of Human Rights ruling which found that the UK Government's blanket ban on prison voting to be a breach of human rights. Whilst accepting its legal obligation under the Scotland Act to comply with the ECHR, we are disappointed that the Scottish Government has chosen the route of minimum level of compliance, eschewing the opportunity to signal the inclusive and democratic character of Scottish society.
Critical Issues in Scottish Penal Policy: Prisoner Voting Rights
This week HLS has invited a selected group of experts to reflect upon critical issues in Scottish penal policy. Today, Dr Cormac Behan looks at why Scotland should lift its total ban on prisoners' voting rights. Extending the vote to prisoners is not simply about criminal justice, penal reform or rehabilitation. This is about human rights, creating a universal franchise for all adults in Scotland, and ensuring democratic rights for all citizens.
Why Scotland should recognise prisoners' voting rights
In January 2018, I was invited to give evidence to the Scottish Parliament’s Equality and Human Rights Committee on prisoner voting. I presented the Committee with my research about prisoner voting internationally, with particular reference to the Republic of Ireland. In my evidence, I put forward the arguments in favour of allowing prisoners’ access to the franchise, which cover a range of issues from democracy to citizenship to reintegration. Research has indicated that there are strong arguments and evidence that prisoners’ maintaining a link with society outside, and in particular with their local community, can act as a spur towards reintegration. It might be one of the ‘hooks for change’ which scholars have identified are important in encouraging desistance from crime. To remove the right to vote – one of the most important elements of citizenship – adds to the dislocation from, and disconnection with, the world outside prison walls. It creates another layer of punishment beyond the denial of liberty, becomes an instrument of social exclusion, and can have significant longitudinal consequences in voting among ex-prisoners. To deny the right to vote not only undermines an individual’s citizenship, it can weaken the fabric of communities that have greater proportions of their citizens incarcerated.
Citizens bring rights with them to prison set out in domestic law, various policy documents and international agreements. The European Court of Human Rights in the Hirstcase ruled that: ‘Prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed’ (Hirst v United Kingdom (No. 2),2005). Unless there are substantive reasons otherwise, it can be argued that imprisonment should not remove the right to vote. Imprisonment is about the loss of liberty, not the loss of citizenship and voting is a cornerstone of citizenship in a modern democratic polity. The concept of civic death on which the denial of the right to vote to prisoners is predicated is an antiquated notion and considered an outdated idea in a modern democracy.
Some of those who oppose enfranchisement are concerned that allowing those who have broken the law to decide who should make the law undermines the democratic process for all. I presented evidence from my research in the Republic of Ireland that enfranchisement has not weakened the democratic process. During the debates in the Oireachtas (Irish parliament) in 2006 to enfranchise prisoners, arguments were advanced that this would strengthen the polity rather than damage it.
Removing the right to vote not only undermines the social contract but damages the social compact on which community and citizenship is constructed. While prisoners may have broken the social contract and therefore, argue proponents of disenfranchisement, voluntarily put themselves outside the social order, others who have damaged the social compact are less likely to appear before the courts and subsequently end up in prison and therefore be denied the franchise. While it is argued that governments have an obligation to those who obey the law to punish those who break the law, this fails to locate the law in a wider social and political context.
The denial of the vote to a prisoner for the duration of a sentence is also related to the timing of an election. If an individual is serving a sentence on election day for a minor offence they may be denied the opportunity to exercise their franchise. An individual could serve a number of years in prison for a more serious offence and still have the opportunity to vote, if they were no longer incarcerated on election day. If voting is one of the most important elements of the social contract, then these considerations make denying it in this context somewhat arbitrary. It is imprisonment that will decide if a prisoner keeps or loses their right to vote rather than their receiving a conviction and many of those found guilty in the courts do not receive a custodial sentence. In the Hirstcase, two judges of the European Court of Human Rights observed that, ‘the reasons for handing down a custodial sentence may vary. A defendant’s age, health or family situation may result in his or her receiving a suspended sentence. Thus the same criminal offence and the same criminal character can lead to a prison sentence or to a suspended sentence’ (Hirst v. United Kingdom (No.2), 2005). They concluded that the reason the right to vote is denied ‘is the fact that the person is in prison’. In different jurisdictions, two individuals may be convicted of the same crime, and one may be sentenced to a term of imprisonment and not allowed to vote, while the other receives a non-custodial sentence and can exercise their franchise.
The Equalities and Human Rights Committee took evidence from a range of witnesses and received numerous submissions. The Committee engaged with the complexities of the issue and were keen to hear about the experience of enfranchisement in other jurisdictions. In their report to parliament, the Committee concludedthat:
“144. Consequently, given the evidence we have heard, and the fact that many other countries have followed this approach with little in the way of problems (including a neighbouring country with similar legal and political traditions such as the Republic of Ireland) we think there is a strong argument that Scotland should aim for a higher standard than recently established at UK level and should therefore legislate to remove the ban on prisoner voting in its entirety.
“145. We ask the Scottish Government to legislate to remove the ban on prisoner voting in its entirety. 
“146. In taking forward this recommendation, we ask the Scottish Government to consider a plurality of views on the issue and consult as wide a range of stakeholders as possible, including victims of crimes and the general public”.
There is currently a window of opportunity in Scotland to make these chnages happen. All members and supporters of Howard League Scotland now have an opportunity to contribute to these consultations and make the Scottish government aware of your views on prisoner enfranchisement.
Author Information: Dr Cormac Behan is a Lecturer in Criminology in the Law Department at the University of Sheffield, prior to which he taught political education and history in Irish prisons for 14 years. He is a leading expert in prisoner voting and was recently invited to give oral evidence to the Equalities and Human Rights Committee of the Scottish Parliament.
- Committee Recommends ban on prisoner voting should be removed in its entirety
- What is Justice? Punishment, prisoners and the franchise
Jamie Greene MSP and Annie Wells MSP dissent from paragraph 144.
Jamie Greene MSP and Annie Wells MSP dissent from paragraph 145.
Press Release: HLS Statement on Equality and Human Rights Committee
Press Release: HLS welcomes the recommendation from the Equality and Human Rights Committee that Scotland's ban on prisoner voting should be removed in its entirety.
Howard League Scotland welcomes today’s report from the Equality and Human Rights Committee that calls for all people in prison to be given the right to vote. The Committee state that given the importance of rehabilitation, human rights, and democracy, 'Scotland should aim for a higher standard than recently established at UK level and should therefore legislate to remove the ban on prisoner voting in its entirety’
Howard League Scotland has consistently campaigned against the blanket ban on prisoner voting and we are delighted to see cross party support for change. We hope the Scottish Government and Scottish Parliament will give this report the positive and thoughtful consideration it deserves.
Extending the vote to prisoners is not simply about criminal justice, penal reform or rehabilitation. This is about human rights, creating a universal franchise for all adults in Scotland, and ensuring democratic rights for all citizens. The existence of a universal franchise is an important measure of the strength of our democracy and social equality. Using that measure, Scotland’s democracy currently falls short. Of the 47 Council of Europe nations, Scotland is an outlier; having restrictions on prisoner voting we are in line only with the rest of the UK, Armenia, Bulgaria, Estonia and Russia.
Since the devolution of electoral matters to Holyrood in the Scotland Act 2016, however, Scotland has gained the opportunity to be a leader in democratic and penal reform by becoming the first polity in the United Kingdom to extend the franchise to convicted prisoners, who are still being denied the vote across the UK, despite the European Court ruling that this is unlawful. We strongly encourage the Government and Parliament to embrace today’s report. By extending the vote to all prisoners, the Scottish Parliament can send a clear signal about its commitment to justice and fairness, and Scotland will make a bold statement on the international stage about the inclusive and democratic character of our society.
- Read the Equality and Human Right Committee's Report here: Prisoner Voting in Scotland
For further details contact: Louise@HowardLeague.Scot
About Howard League Scotland (HLS): Founded in 1979, HLS campaigns for penal reform in Scotland and promotes just responses to the causes and consequences of crime. HLS accepts no funding from central or local government so that we can campaign freely on key issues. HLS is a highly respected organisation and has been influential in changing government policy in Scotland.