Scotland adopts a more inclusive franchise

By Ruvi Ziegler (University of Reading), GLOBALCIT collaborator.

On 21 February 2020, the Scottish Parliament completed Stage 3 of the Scottish Elections (Franchise and Representation) Bill. It will come into force pursuant to (expected) royal assent.

The Act extends the franchise in Scottish parliamentary (Holyrood) and local government elections in two significant ways. First, it diverges from the selective enfranchisement of non-citizens under the Representation of the People Act 1983 (RPA) which will continue to apply in the rest of the UK. Under section 2 of the RPA 1983, UK citizens, qualifying Commonwealth citizens, relevant citizens of the (European) Union, and Irish citizens are eligible to vote in local government elections, but citizens of other countries are disenfranchised (see my critique). The Bill applies to the category of ‘qualifying foreign nationals’ (of any country) a residence criterion: they must either not require leave to remain in the UK under the Immigration Act 1971 OR have indefinite leave to remain (which includes settled status under the EU settlement scheme introduced as part of the Brexit withdrawal process), OR hold pre-settled status under section 17(1) of the EU (Withdrawal Agreement) Act 2020.

The second legislative change pertains to prisoners’ voting rights, a thorny political football since the 2005 Hirst (No. 2) European Court of Human Rights judgment held that the UK’s blanket disenfranchisement policy breached the right to free elections pursuant to Article 3 of Protocol 1 of the European Convention of Human Rights. The Bill enfranchises prisoners serving a sentence in a Scottish prison (or consecutive or concurrent sentences) which does not exceed 12 months. A prisoner’s residence is deemed not to have been interrupted by their detention in a penal institution. The convicted person is considered still to be a resident, and therefore able to register to vote with reference to an address, if they intend to return to that address on release from prison and will not be prevented from doing so by an order of any court. A prisoner may apply to vote by post or they may appoint a proxy to cast their vote on their behalf

During the legislative process, the Scottish Parliament’s Standards, Procedures and Public Appointments Committee, in its Stage 1 Report on the Scottish Elections Bill, endorsed the extension of the franchise to previously excluded foreign nationals. The Report adopted the position of the Scottish Refugee Council (SRC) (which I advised) and other civil society organisations, noting that ‘people who live and contribute to our country should also have the right to vote in elections to local government and the Scottish Parliament as these bodies will develop policies that affect them’. The SRC argued that those with an outstanding asylum claim should also be allowed to vote as it would facilitate their integration. The Committee recognised ‘the practical barriers to enfranchising asylum seekers’ but called on the Scottish Government ‘to urgently examine whether the franchise could be extended to asylum seekers resident in Scotland.’ Ultimately, the Bill excludes those who were not granted leave to remain.

The Committee also concluded that the blanket ban on prisoner voting is unsustainable in light of Hirst (no. 2), and that the Scottish Government has settled on an approach which fails to address the central question of what disenfranchisement seeks to achieve. Even though ‘providing the vote to those sentenced for 12 months or less may satisfy the ECHR requirements, the Committee has not seen sufficient evidence as to why this approach has been selected over any other’. The Committee noted ‘the arguments for enfranchising all prisoners…which were related to the contribution that voting could make to rehabilitation, the weakness of losing the right to vote as a deterrent, the importance of considering the personal circumstances of prisoners and concepts of citizenship.’ It asked the Scottish Government ‘to publish evidence which has influenced the position they have settled on in the context of the range of options on the length of sentences.’ The responses to the pre-legislative consultation revealed little (if any) support for the government’s ‘compromise’ position. Under pressure from Green (Mark Ruskell) and Labour (Neil Findlay) MSPs, the Scottish government agreed to add to the Bill Section 4A, which instructs Scottish ministers to ‘undertake a review of the operation of section 4 with a view to considering whether the length of sentence….is appropriate, prepare and publish a report on that review’ as well as ‘lay a copy of the report before the Scottish Parliament… no later than 4 May 2023’ to allow for reconsideration before the subsequent election.

Following Scotland’s lead in lowering the voting age to 16 (in 2015), the Welsh Assembly has recently followed suit, a position endorsed by all Westminster parties bar the Conservatives. It will be interesting to see whether the move to non-selective residence-based franchise in local government elections will inspire further expansion of the franchise in other parts of the UK.  Meanwhile, the British Prime Minister has written to life-long campaigner Harry Shindler to inform him of the government’s intention to scrap the 15 year non-residence bar for participation of British citizens living abroad in Westminster elections. In the previous Parliament, a private member’s bill to that effect passed second reading but made no further progress. The Liberal Democrats are set to adopt in their Spring Conference a policy according to which UK citizens living abroad will vote for MPs in separate overseas constituencies. The UK appears to be en route to having one of the most inclusive franchises globally.

The featured picture for this article represents the debating chamber of the Scottish Parliament, viewed from the public gallery. The original photo can be found here.