The next item of business is stage 3 proceedings on the Scottish Independence Referendum (Franchise) Bill. In dealing with the amendments, members should have: the bill as amended at stage 2, SP bill 24A-revised; the marshalled list, SP bill 24A-ML; and the groupings, SP bill 24A-G.
The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds; thereafter, I will allow a voting period of one minute for the first division after a debate.
Section 2—Those entitled to vote in an independence referendum
My amendments in the group offer two alternative options, which look to allow some prisoners to vote in the referendum.
The European Court of Human Rights has ruled that the United Kingdom’s blanket ban on prisoners voting in elections is contrary to the European convention on human rights. Only four other countries in Europe—Armenia, Bulgaria, Estonia and Russia—impose a blanket ban. The Joint Committee on the Draft Voting Eligibility (Prisoners) Bill at Westminster has confirmed that the draft bill would apply to national and local elections and local referendums. Far from being a progressive beacon on this issue, Scotland is well behind the curve.
There is clear and growing support for giving at least some prisoners the vote from those who have worked closely with our prison and rehabilitation services and from human rights associations. The Scottish Youth Parliament and the Scottish Trades Union Congress have added their voice to calls to amend the Scottish Independence Referendum (Franchise) Bill.
More important than all that, though, is that it is the right thing to do. We send people to prison as punishment, but we can measure success only by considering the way in which offenders re-enter the community. Therefore, surely prison is about rehabilitation. It is about re-engaging prisoners with society, preparing them to take on the responsibilities of citizenship and giving them the tools to make a meaningful contribution to the community.
Allowing some prisoners to vote on the future of our country sends a powerful message that we are serious about giving them a role in society upon release. If we keep the blanket ban, we risk isolating them still further.
Amendment 1 would pave the way for the other substantive amendments in the group, and the two direct alternatives—amendments 2 and 3. Amendment 2 would give the vote to prisoners serving less than four years, reflecting the current law, which makes a distinction between short-term and long-term sentences, with four years being the dividing line.
I acknowledge that some members who might be open to the general principle of opening up the vote to some prisoners would be uncomfortable with the four-year cut-off. Amendment 3 is a direct alternative to amendment 2 that would likely grant the vote to around 400 prisoners, specifically those serving very short sentences of six months or less.
I would welcome support for the amendments.
I move amendment 1.
I am glad that we have the opportunity to return to this subject, which was debated at some length at stage 2, at which stage the Referendum (Scotland) Bill Committee considered a range of options including allowing prisoners to vote based on the length of their service; allowing prisoners to vote who were coming to the end of their prison term; allowing prisoners to vote based on the type of offence that they have committed; and—what I would call the full franchise option—simply repealing the ban on prisoners voting altogether.
Now we have the opportunity to reconsider some of those options. Alison McInnes’s amendments 2 and 3 specify length of sentence. My amendment 4 returns to the argument for a repeal of the ban on prisoners voting altogether. Margo MacDonald’s amendment 7 seeks to address the issue through sentencing guidelines.
I would like the chamber to recognise that this is not simply the whim of a small number of MSPs. I am pretty sure that only a small number of MSPs will vote for any of these amendments and I do not expect suddenly to change everyone’s mind, but it is important that these arguments are put on the record because of the breadth of non-parliamentary support that they have attracted.
We have had evidence from the Howard League for Penal Reform, the Prison Reform Trust, Sacro and a range of academics, such as Professors Fergus McNeill, Mike Nellis and Alec Spencer, as well as written evidence from the Quakers. Although at its most recent general assembly the Church of Scotland was not able to adopt a formal position, the convener of the church and society council continues to support the argument and intends to return to the debate within the church later in the year.
It is important to recognise the arguments that have been put on a point of principle: what is prison for? Generally we expect that there are three purposes of prison: protecting society, punishing offenders and rehabilitation. Which of those purposes is served by the blanket ban on prisoners voting?
I defy anyone to tell me that it is genuinely a source of punishment and that the inability to vote in elections or in referendums is genuinely perceived as punishment by offenders. Does it protect society? It is inconceivable that an offender poses a greater threat to society when they are in prison simply by virtue of having a vote.
The third purpose of prison is rehabilitation, which can be served only by underlining to convicted prisoners that they are going to return to society and we expect them to behave as a part of society—by underlining the importance of citizenship and the understanding that democratic participation is a right. The Prison Reform Trust says:
“We believe that there is a clear and unambiguous case for reform. This rests on the conviction that voting is not a privilege. It is a basic human right. It is certainly not a reward to be granted to those whom the Government has judged morally decent.”
The trust points out that
The position in the UK and in Scotland is not a normal one; it is not a mainstream one. As well as the other organisations that I have mentioned, the Scottish Trades Union Congress has written to members to argue against a restrictive interpretation of the right to vote. There is a clear case for reform, and for sending the message that prisoners are expected to return to society as participants in society, including in the democratic process.
I find it bizarre that the Government continues to be determined to resist change on this matter despite a theoretical commitment to incorporating the European convention on human rights at the heart of a written constitution for Scotland. If the Government wants to put human rights at the heart of a written constitution for Scotland—which I would welcome—it has implicitly accepted that convicted prisoners will have the right to vote in elections. If that is the case, there is no rational argument for a more restrictive approach to referendum franchise than to electoral franchise. I look forward to the Deputy First Minister and Cabinet Secretary for Infrastructure, Investment and Cities responding to that argument—if Mr Swinney has not distracted her too much in the past few moments.
I pick up where Patrick Harvie left off. If we are serious about this being an advanced legislature and our body of law being better than we have had, we must consider what improvements we would make—certainly from prisoners’ point of view—were we to resist banning prisoners from voting.
This situation may be the result of a peculiar shyness on the part of members. Most members in here are quite bold—we are new and cutting edge—and yet, on this matter, such members automatically say, “Oh no, we couldn’t give prisoners the vote. The public wouldn’t like that.”
I have not spoken to a huge number of people but I can say, hand on heart, that everyone I have spoken to about this agrees on the middle road, if you like. They do not want to think of axe murderers and people who have committed dreadful crimes being allowed to vote, because that is taking part in society in a privileged way, and such prisoners have forfeited that privilege. However, they think it too much to deprive people of the vote who are in prison for less time and for less serious crimes against society. Those prisoners should be encouraged to take part in society and to see the error of their ways.
We will be falling down on the objectives that we have set ourselves if we do not consider this issue very seriously. Remember that we do not need to take all the decisions ourselves—we are asking for guidelines. I am prepared to trust the Scottish Law Commission to come up with guidelines that judges and the general public can live with.
Fundamentally, there are two arguments here. I still remain unconvinced, even though those who lodged the amendments made those arguments very eloquently.
On the legal position, the Law Society of Scotland said in a letter to us:
“Prisoner voting cases have all been based on alleged breaches of ECHR Article 3 Protocol 1 (A3P1) which states,
‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’”
That is the important point. The Law Society went on to say:
“A3P1 does not govern voting in referenda but only in elections for the ‘choice of the legislature’. Accordingly the European Court of Human Rights jurisprudence relating to prisoner voting rights ... do not apply to the referendum.”
I accept that there are two points. There is also the principle, which Patrick Harvie spoke about. However, when someone is found guilty of a crime, judges have a decision to make: they have to decide on the length of the sentence and they have to decide whether it should be a custodial or a non-custodial sentence. In making that decision, judges will take into account a number of factors, including the impact of a custodial sentence on the individual and, of course, their family. They realise that imposing a custodial sentence has an impact in a number of ways.
Patrick Harvie said that voting is a right, not a privilege. That is an interesting use of words. The fact is that we take away a number of rights from individuals when we sentence them to a custodial sentence: we remove the right to liberty, the right to a family life and the right to vote, to name but a few. The issue is not that voting is a privilege—it is a right; and as a society, when we impose custodial sentences, we remove from individuals not just their right to vote but their right to liberty and their right to a family life, for example. Judges and sheriffs are well aware of the impact of imposing a custodial sentence, and I prefer to leave the decision to them.
When it comes to the principle, the dividing line is not between the rights of short-term prisoners and the rights of long-term prisoners; it is between those who are in prison and those who are not in prison.
I draw members’ attention to my entry in the register of members’ interests. My brother is Tony Kelly, who is a practising solicitor.
I oppose all the amendments in the group. Those who are in favour of extending the franchise to some groups of prisoners advance the argument that a ban achieves no purpose and punishes people from deprived and disadvantaged communities. Some areas of my constituency are deprived and disadvantaged. When I look at examples of lower-level offences, I think of the woman who has been harassed by antisocial behaviour and threatened with a gun, who is off work through stress. [Interruption.] I also think of the pensioners who have been conned out of their savings by a fraudulent rogue trader. The victims of such crimes would think that prison serves a purpose and that the people who inflicted those crimes on them should lose the right to participate in the referendum. It is important that we give the victims of crime a voice in the debate. They would not applaud MSPs for granting prisoners a vote in the referendum.
I am sorry, but I am short of time.
The route that Margo MacDonald’s amendment 7 proposes is a dangerous route to go down, in that it would allow consideration to be given to special events or special circumstances. The court already takes into account social work reports and family circumstances. Sending someone to prison will be the last option. Therefore, I do not accept amendment 7.
On the legal arguments about ECHR compliance, the Deputy First Minister tells us that she has taken into account all the legal considerations and that the arguments on case law are clear. However, she has not advanced a legal rationale. It would be good if she could substantiate the Government’s position by saying more about the legal arguments.
In summary, we reject all the amendments in the group and we would like more detail to be provided to back up the Government’s legal case.
I admire the tenacity of Alison McInnes and Patrick Harvie in pursuing the inclusion of their amendments in the bill. They have certainly done their best to expound their arguments and articulate their positions.
However, my problem is one of fundamental principle. In my opinion, if a court considers prison to be an appropriate sentence for an accused, suspension of liberty rightly involves suspension of franchise. I realise that Alison McInnes and Patrick Harvie may disagree with that view, but it is the view that I take.
Both of those members called on evidence in aid of their argument by referring to various witnesses who support their view. However, no reference was made to another important body of evidence, which is the court of public opinion. An extensive poll that was carried out last year showed that 63 per cent of respondents felt that no prisoners should be allowed to vote in elections. I do not think that we should disregard what is a fairly powerful expression of the public view.
I realise that Margo MacDonald’s amendment 7 is well intended, but again I find it flawed in both principle and rationale. If a judge is determining the sentence for a convicted accused, I want that judge to consider the crime, the victim, the particular circumstances of the accused and—as James Kelly said—any ancillary material such as a social work report.
I do not consider it relevant for the judge to consider whether or not an accused will lose the right to vote. The loss of the right to vote is not a mitigating factor in sentencing, but a consequence of an individual’s transgression against society. I am therefore unable to support any of these amendments.
I thank all those members who have ensured that we have had a full and thorough debate on the issue. I recognise that differences of opinion exist, that there are arguments on both sides of the debate and that those who advocate change are putting forward arguments that are based on conviction and stem from principle.
I am sure that, beyond the referendum, we will debate the issue again, both here and elsewhere. It is right that Parliament has heard the debate aired in such detail, and that we have the opportunity to do so again today.
The amendments that Alison McInnes and Patrick Harvie have lodged seek to change the provisions in the bill that prevent convicted prisoners from voting in the referendum while detained in prison. They seek to do so in various ways, all of which are intended to allow some convicted prisoners who are still serving prison sentences to vote in the referendum.
All these amendments were previously lodged at stage 2 and rejected by the committee. As I have said previously—and as I assure Margo MacDonald—I have taken and considered the matter very seriously. However, the Government does not believe that convicted prisoners should be able to vote while they are detained in custody.
The position that we have taken in the bill is consistent with current arrangements. Convicted prisoners do not currently have the right to vote in elections, and they will not have the right to vote in the referendum. The franchise is a crucial part of the referendum, and a consistent position on the issue is key. It is also important that the issue is settled well in advance of the referendum and put to rest with the passage of the bill.
The legal position is clear. The ECHR does not apply to referendums, and case law backs that up. The Law Society of Scotland and legal experts agree on that point, and on the fact that any challenge would not be likely to be successful.
Although I welcome James Kelly’s support for the Government’s position, it is slightly unfortunate that he cannot simply bring himself to say that he backs the position of the Scottish National Party Government, preferring instead to try to pretend that there is some lack of clarity around the legal position. The legal position is clear, and that fact was narrated in the committee’s stage 1 report.
There may come a day—and today would be as good a day as any—when the Labour Party can simply say, without equivocation, that the SNP Government has got it right. I live in hope that we get to that position before the end of today’s proceedings.
Aside from those practical arguments, and the clear legal position, the Government opposes these amendments on principle. The principle that a convicted prisoner loses certain rights for the duration of their custodial sentence is a fundamental and long-standing part of the prison process.
Custodial sentences are handed down by judges and by sheriffs who look at each case on its merits and decide, based on all the circumstances that are laid out before them, whether or not a custodial sentence is suitable and what the appropriate length of that sentence should be. Where such a sentence is imposed, that determines the matter. That approach achieves clarity and is both consistent and principled.
Perhaps the cabinet secretary slightly overstates the long-standing nature of the current situation. For example, under the Forfeiture Act 1870, prisoners in the middle of the 20th century serving sentences of less than 12 months were entitled to vote. I will have one more stab at asking the cabinet secretary to explain. If on principle she supports ECHR and its consequent provision that prisoners—at least some—are able to vote in elections, why is it that a referendum franchise ought to be more restrictive than an electoral franchise?
I do not believe that prisoners should get to vote in elections; what I do believe is that we have to accept the implications of ECHR. However, ECHR does not mandate that prisoners should be allowed to vote in referenda, because it specifically applies to elections to national legislatures. If I personally do not believe in a particular position, then I do not think that it is consistent or sensible for me to want to argue for going beyond the ECHR position.
Surely the ECHR position is not about the particular vote but about the principle of voting, which means that if we can vote in one way to elect a member, we can vote in another way.
I agree to an extent with Margo MacDonald, but the point that I am making is that in principle I do not believe that prisoners should have the right to vote. I have heard some people say that the Scottish Government’s commitment to reducing short-term sentences and ensuring that prison is used only where that is appropriate somehow means that we should take a different view on this issue; on the contrary, the fact that our position is that prison should be used only where appropriate means that where a judge does decide that a prison sentence is appropriate, then certain consequences should flow from that prison sentence. One of those consequences is that the prisoner loses the right to vote for the duration of the custodial part of their sentence. I think that Stewart Maxwell summed the argument up absolutely perfectly, because this is not a debate between short sentences and long sentences: the distinction here is whether a judge sees fit to send somebody to prison or not—that is the basis of the principle.
Margo MacDonald’s amendment 7 seeks to impose an obligation on the Scottish sentencing council to provide guidelines to the courts. I do not think that it is for our courts to have guidelines given to them in this area. It is a responsibility of this Parliament to legislate for or—what I want to see—against prisoners voting. It is our responsibility and I believe that we should execute it.
The act that sets out the sentencing council—the Criminal Justice and Licensing (Scotland) Act 2010—allows ministers to ask the council to propose guidelines in particular, but it is worth stressing that it is for the council to decide how to respond to that request, which can include rejecting it. As an alternative, Margo MacDonald has suggested that if the sentencing council is not established in time, the Scottish Law Commission could be required to develop and submit guidelines. However, the Law Commission was established to consider proposals for law reform, and I do not think that it would be appropriate for it to engage in sentencing guidelines.
For all those reasons, I cannot accept amendment 7. I ask members to oppose all amendments in this group and to maintain the position taken by the Scottish Government that convicted prisoners, while in prison, should not be entitled to vote in the referendum.
The right to vote is a fundamental right in a fair and free democratic society. We must not remove that right lightly or, indeed, arbitrarily. The referendum vote will be a landmark vote, given its potential to bring about significant change. We have an opportunity to do something different here in Scotland today, because we do not need to uphold the UK blanket ban in this case. Today, we have a chance to show Scotland as a progressive nation.
The Labour member referred to the victims of crime, but the best way in which to support them is to do everything that we can to put a stop to reoffending. What I propose would be a small step towards that, because we want to encourage offenders to engage with their communities and to feel part of society.
I will press amendment 1 and I urge members to show support for some of the amendments.
The question is, that amendment 1 be agreed to. Are we agreed?
There will be a division.
We will have a five-minute suspension, followed by a 30-second division.
15:24 Meeting suspended.
15:29 On resuming—
Before we progress, I advise members that we require more time than has been provided to allow us to complete our consideration of amendments to the bill. I am therefore minded to accept a motion without notice under rule 9.8.5A, that the time limit for consideration of amendments to the bill be extended to 40 minutes.
That, under Rule 9.8.5A, the time limit for consideration of amendments be extended to 40 minutes.—[Joe FitzPatrick.]
Motion agreed to.
I should also remind members that, under rule 9.8.5B, I will use the discretion that is available to me to move decision time tonight to 4.40 pm.
We proceed with the division on amendment 1.
The result of the division is: For 8, Against 105, Abstentions 0.
Amendment 4 disagreed to.
Section 2—Offenders in prison etc not to be entitled to vote
The question is, that amendment 2 be agreed to. Are we agreed?
There will be a division.
The result of the division is: For 8, Against 107, Abstentions 0.
Amendment 7 disagreed to.
Schedule 2—Canvass form
Group 2 is on register of young voters: canvass form. Amendment 6, in the name of the cabinet secretary, is the only amendment in the group. I ask the cabinet secretary to speak to and move the amendment as briefly as possible.
Schedule 2 contains the young voter registration form that will be used in the autumn 2013 canvass. The form, which was developed by the Scottish Government in line with Electoral Commission guidelines and in consultation with electoral registration officers, has been subject to rigorous independent testing and found to be clear and easily understood. At stage 2, I lodged a number of minor amendments to the form arising from the testing process and comments by EROs.
Amendment 6 seeks to make one further change to the form. During stage 1, several witnesses commented that it would be helpful to include on the canvass form information about the possibility of registering anonymously or through a declaration of local connection. At stage 2, I advised the committee that the Scottish Government was considering whether it would be best to communicate such information on the form itself or in guidance. As it is crucial that individuals know what options might be available if there are any concerns that inclusion on the register of young voters could affect the young voter’s personal safety, or if the young voter does not wish to register with their current address, amendment 6 seeks to insert an additional paragraph to the guidance notes on the back of the registration form, making it clear that other registration options might be available to young voters in such circumstances. The amendment’s wording has been developed in consultation with EROs and directs individuals to discuss any concerns with them.
Of course, amending the form goes only so far in raising awareness of these important facilities for registering anonymously or with a separate address, so Scottish Government officials will continue to work with EROs over the summer on how to promote awareness of the arrangements.
I move amendment 6.
I am not accustomed to taking credit for anything, but I think that I highlighted at committee concerns about the structure of the canvass form. If I were being picky, I might say that this information should be placed at the beginning of the form; however, I will not be. I am very pleased about this change to the canvass form; it is good to have the amendment and I will support it.
I do not want to use up the chamber’s time unnecessarily by going over the arguments that the committee had but will simply say that we, too, welcome this change. We think that it provides necessary safeguards and additional information for young people who might otherwise be left vulnerable and unable to access a voting facility.