We welcome this opportunity to comment on the draft Scottish Independence Referendum Bill[1]. Our comments are about the proposal (as set out in Section 3 of the draft Bill) to ban convicted prisoners from taking part in a future referendum on Scottish independence.

Summary of our position

• This Bill represents the third opportunity for the Scottish Parliament to legislate on the franchise. Amendments to both the Scottish Independence Referendum (Franchise) Act 2013 and the Scottish Elections (Reduction of Voting Age) Act 2015 that would have extended voting rights to some convicted prisoners were rejected by the Scottish Government.
• Once again, instead of simply reproducing the Westminster blanket ban on convicted prisoners’ voting rights, there is an opportunity for the Scottish Parliament to put down a marker about the value placed on democratic rights and social justice in Scotland.
• We wish to highlight that almost all other European democracies recognise that voting is too hard-won a fundamental right to be lost automatically on imprisonment.
• We welcome the Scottish Government’s recognition that too many people are sent to prison in Scotland. We also welcome recent statements by the First Minister and other members of the Cabinet about the importance of human rights and their commitment to international human rights standards and protocols, including the European Convention on Human Rights (ECHR).
• We therefore ask the Scottish Government why it believes that imprisonment on one particular date should be enough in all cases to prevent citizens from taking part in a vote which will determine the constitutional future of their country. We would welcome a broad debate on whether to follow the model of many other developed democracies, and allow some or all convicted prisoners to vote.

Why voting matters

“The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.”

The constitutional court of South Africa[2] in a decision on prisoners’ voting rights (1999)

"The creation of a universal franchise is one of the great political achievements of the past 150 years: we should never take it for granted.  How much care we exercise when we decide to remove voting rights is a token not just of how we value fellow citizens, but of how much we value voting itself."

In many countries, the vote is seen as an inalienable right that cannot be taken away as a punishment.  We think that is a powerful position which better represents the values of a modern democracy than the current position in the UK, which has its roots in the mid-nineteenth century relationship between voting and property ownership, and the forfeiture of property for certain crimes. 

We would like the Scottish Government to give a fuller explanation of its decision to follow the UK blanket ban on voting by convicted prisoners. 

The European Context

The UK is unusual in Europe in implementing a blanket ban on voting by all convicted prisoners.  On the best available recent research (Briefing Note SN/PC/01764, from the House of Commons Library, February 2015[3]):

• At least eighteen European nations, including Denmark, Finland, Ireland, Spain, Sweden and Switzerland, have no form of electoral ban for imprisoned offenders. Norway has provision for removing voting rights from certain offenders, but this appears never to have been used.
• In other countries electoral disqualification depends on the crime committed or the length of the sentence. In France, certain crimes are identified which carry automatic forfeiture of political rights and Germany’s ban extends only to prisoners whose crimes target the integrity of the state or the democratic order, such as political insurgents. 
• Among the Council of Europe countries, those with which the UK keeps company in not allowing any convicted prisoners the right to vote are Armenia, Bulgaria, Estonia, Georgia, Hungary, Liechtenstein, San Marino and Russia: in at least two of these, consideration is being given to change.

The ban is often defended on the basis that those sentenced to prison have broken their contract with society, in a substantially different way from the many other offenders who are given non-custodial sentences or fines, and that this must mean that all convicted prisoners should lose their vote while they are held in prison.  When so many of our fellow democracies reject that logic, we should stop and consider it again.

Even at Westminster, a cross-party Joint Committee of both Houses recommended in December 2013[4] that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections; and moreover that prisoners should be entitled to apply, up to 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released. Although no proposals have yet been brought forward.

The international position underlines that respecting the rights of victims, as we should, does not require the removal of the vote.  We are not aware of any evidence that it functions as a deterrent. Indeed, we find the idea that prison should automatically carry a penalty of “civic death” at odds with the agendas for rehabilitation and reintegration that have been a welcome part of Scottish political debate in recent years.   We believe effective rehabilitation is central to addressing the needs of victims of crime.

The way we use prisons

As a society, we expect the criminal justice system to punish offenders appropriately and reduce the risk of reoffending. Prisons will always be an essential part of that system.

Decisions about imprisonment are often not clear-cut, however: there is not a straightforward divide between the types of offences that attract imprisonment and those that do not. As we noted in our original submission on the Scottish Independence Referendum (Franchise) Bill, in 2011-12, 28 per cent of shoplifting convictions, 54 per cent of housebreaking convictions, and 61 per cent of convictions for serious assault and attempted murder ended in a custodial sentence (Source: Criminal Proceedings in Scotland 2011-12[5]).  The remaining cases were dealt with using non-custodial measures. Using their discretion, sentencers take many issues into account, including the welfare of the offender him or herself and what particular community sentencing options are available in the local area. 

Scotland's rate of imprisonment is one of the highest in Western Europe and over twice as high as the prison populations of the Nordic countries. The prison population rose by 17% between 2004/05 and 2013/14 (Source: Prison statistics and population projections Scotland: 2013-2014[6]). We applaud the commitment of the Scottish Government to reducing the use of imprisonment and support the view of the Cabinet Secretary for Justice delivering the Apex Scotland Annual Lecture in September 2015[7]:

“I truly believe that there is no good reason why Scotland should have such a high prison population… my vision for penal reform in Scotland is one which I believe reflects the values of a modern and progressive nation, in which prison - and in particular short-term imprisonment - is used less frequently as a disposal”

Inquiries into prisons and offending commissioned by the Scottish Government in recent years tell a consistent story about the over-use of imprisonment in Scotland, in particular for those from the most deprived and vulnerable backgrounds.  This is not a new issue: similar points have been made by earlier inquiries.

From Scotland’s Choice: The Report of the Scottish Prisons Commission (2008)[8] established by the Scottish Government and chaired by the Rt Hon Henry McLeish [our emphasis]:

Our review shows that we are not using prisons mainly to tackle serious crime ….    [the] breakdown of data shows we use prison for a very different purpose. Instead of investing in a system that can secure stronger, safer communities, a series of problematic and largely unnecessary uses of prison are revealed….[including]

• The short sentences problem - people who are more troubling than dangerous: Eighty-three percent of prison sentences in 2005/06 were for 6 months or less (and 57% of all prison sentences were for 90 days or less)…
• The warehousing problem - a place to hold the damaged and traumatised: Ninety percent of women in prison have drug and alcohol problems, and 75% have a history of abuse and major health problems. The picture for male offenders and young people is similar….

Research has demonstrated and defence lawyers are well aware that similar cases are sentenced very differently in different courts - and even by different judges in the same courts…

We calculate that it would be possible to reduce the prison population by as many as three to four thousand offenders who have not committed serious crimes and do not constitute a danger to the public…

From the Report of the Commission on Women Offenders (2012)[9] established by the Scottish Government and chaired by Dame Elish Angiolini [our emphasis]:

There are women who should be in prison to protect the public and to mark the seriousness of their crimes. Even for these women, opportunities for rehabilitation should be available to reduce the likelihood they will reoffend and help reintegrate them back into the community…. For other women who have been repeatedly convicted of committing lower level offences, their offending is often the result of significant underlying issues, such as drug or alcohol addiction and mental health problems, that could be better addressed in the community….  75 per cent of custodial sentences imposed on women are for periods of six months or less…. … further analysis is required to gather the information which will help to explain the reasoning behind sentencers’ decisions.

Female prisoners have higher lifetime incidences of trauma, including severe and repeated physical and sexual victimisation, than either male prisoners or women in the general population.

The evidence is compelling that being sentenced to imprisonment alone should not be regarded as providing a strong enough justification for removing a person’s right to vote and that the current ban impacts disproportionately on the most deprived and vulnerable.  As in other developed European democracies, if we are to remove the vote at all, we should set a higher bar.

Voting and rehabilitation

We welcomed the 2013 inquiry[10] by the Scottish Parliament’s Justice Committee into purposeful activity in prisons and in particular the former Cabinet Secretary for Justice’s statement to the Committee that:

"...the Scottish Government believes that offenders should be sent to prison as punishment, but that our prisons should also be about the rehabilitation and reintegration of offenders back into society as contributing citizens."

We do not want to suggest that voting by itself will make a large difference but we do believe that participation in democratic decision-making could contribute to the process of rehabilitation and send a strong message to prisoners that they remain part of wider society and have a stake in its future.

Arbitrary effects

Including those on short sentences in the ban on voting will create some unusually acute anomalies in the specific case of a referendum.

• Prisoners on short sentences are regularly released soon after conviction, due to the time they have already spent on remand.  They suffer little or no impact on their voting rights.  Others, where the courts have been content to grant bail, serve their whole sentence as convicted prisoners. Of two people convicted side by side and given the same sentence in the run-up to September 2014, the one granted bail could lose their only opportunity to vote on the issue of independence, while the other does not.
• In 2013-14, 9,362 people received a custodial sentence of less than 6 months[11]. On an average day only 419 of these were actually in prison serving their sentence, due to: the rapid turn-over of these prisoners; time already spent on remand; and early release (including on Home Detention Curfew; we understand prisoners on early release would be eligible to vote).   On this pattern, there will be a significant element of arbitrary disenfranchisement among those serving short sentences during the year surrounding the referendum.

Practical issues

Arrangements have to be made for prisoners on remand by electoral administrators and the Scottish Prison Service.  Remand prisoners already make up around one-fifth of the prison population and can vote by post.  At first sight, there is not an obvious reason why, for example, prisoners on short-term sentences at least could not be treated in the same way. 

At a minimum, the practicalities of extending the vote to those on short-term sentences, which are defined in law as being less than 4 years, should be tested with the organisations involved and it should not simply be assumed that it would be unachievable. 

On an average day in 2013-14, in addition to the 419 serving sentences of less than 6 months, 1715 prisoners were serving sentences from 6 months up to less than two years, and 1077 were serving sentences between two years and less than four years. (Source: Prison statistics and population projections Scotland: 2013-14[12])

There is also a case for seeking to include those nearing the end of a sentence and being prepared for release, although we realise that they may be harder to identify in law and would bring into the debate prisoners who have committed more serious crimes.

The relevance of ECHR

We recognise that ECHR compliance is a more significant matter for Scottish legislation than UK legislation, because of the limitations on legislative competence in section 29(2)(d) of the Scotland Act 1998, and that the Scottish Government has previously stated that it does not believe that the ECHR applies to voting in referendums.  While recognising that it will be important for the government and the Parliament to satisfy themselves on the legal issues, we want to make this as a moral case, not a legal one.

Conclusion

We hope that the Scottish Government will reconsider its proposed ban on voting by convicted prisoners in a future independence referendum.

We take encouragement from the words of the First Minister[13], at an event on 23 September 2015, in response to a question from Howard League Scotland about prisoner voting rights:

"As we get more responsibility for the franchise more generally of course we will have to consider the issue of prisoner voting. We haven't got any proposals to put forward at this stage but that is something that we will continue to consider.

"Clearly it's incumbent on all governments not just to talk the language of human rights, but not just on this issue but on all issues to make sure that that's reflected in our decision-making as well."

There is an opportunity with this Bill for Scotland to strike a distinctive course which brings us closer to the practice in other developed European democracies, rather than automatically following the model set by Westminster. We believe the question of voting rights for prisoners in a referendum is more, rather than less, acute than in general elections.

We hope that, as part of any consideration of this legislation, this issue would be fully debated, in a way which reflects positively on Scotland as a country which values democratic rights and social justice.

Howard League Scotland

January 2017