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Scottish Elections (Franchise and Representation) Bill: Stage 1

– in the Scottish Parliament on 28th November 2019.

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Photo of Christine Grahame Christine Grahame Scottish National Party

The next item of business is a debate on motion S5M-20049, in the name of Michael Russell, on the Scottish Elections (Franchise and Representation) Bill at stage 1.

Photo of Michael Russell Michael Russell Scottish National Party

At the outset, members might like to know that this is the first stage 1 debate on a bill that will require a supermajority to pass at its final stage. That means that two thirds of all members will have to support the bill when that moment comes next year. We are off to a good start, given that the Standards, Procedures and Public Appointments Committee has recommended support for the general principles after its scrutiny of the bill, although one party was against much of it. I am grateful to the committee for its thoughtful consideration of the bill, and I hope to persuade even that one party to back it when it comes to its final stage next year.

As members will be aware, new powers over elections and the franchise were devolved by the Scotland Act 2016. This Parliament can now take decisions about key Scottish electoral issues although, regrettably, there are still franchise matters being dealt with outside Scotland, with Westminster’s continued refusal to give the vote to 16 and 17-year-olds, which will be obvious again in two weeks’ time.

The bill has two main aims: to extend voting and candidacy rights to foreign nationals, and to ensure that we are compliant with the European convention on human rights in relation to prisoner voting. The bill’s provisions on foreign nationals will, I hope, contribute to the building of an open, outward-looking, inclusive Scotland. The provisions on prisoner voting rectify a legal problem and are also progressive.

I start with the provisions on foreign nationals. We have got used to having European Union nationals and Commonwealth citizens in our franchise. Had our franchise been used for the whole of the United Kingdom in the EU referendum, the result might well have been different. There is a beneficial effect in ensuring that all citizens who have a stake in the future of the country are empowered to exercise their choice about that future. If people have chosen to build a life here, they should have the right to vote in our elections.

EU and Commonwealth citizens are not the only people who shape Scottish society through deciding to come here to live, to study, to work and to raise families as our friends and neighbours, so it is time that we recognised that anomaly and enfranchised all those citizens from around the world who live and work among us. Migration is central to the development of Scotland as an inclusive, prosperous and innovative country that is ready and willing to embrace the future. While control over migration policy is reserved, it is right that we use the powers that we have now not just to send a strong message about what Scotland wants to be—an open country, an inclusive community and a nation that values everyone who makes their home here—but to ensure that we benefit from the contribution that such citizens wish to make.

Photo of Adam Tomkins Adam Tomkins Conservative

I understand that the cabinet secretary wishes to equate the franchise in Scotland with residency. He will equally understand that there is a tradition that equates franchise not with everyone who is lawfully resident here but with citizenship. If he wants to break the link between franchise and citizenship, I ask him this: what does he think citizenship is for, and what value does he think citizenship should add if not the right to vote?

Photo of Michael Russell Michael Russell Scottish National Party

I will not go into a dissertation on citizenship here. What I am talking about is whether, if someone is a member of a society and is resident in that society, they should have the chance to take part in decisions about that society. That is the principle that we are discussing today.

In addition, no franchise stands still. I know that the term “conservative” refers to those who conserve what they believe to be good and what they believe should not change, but franchises are, and should be, dynamic. The franchise in Scotland needs to continue to change, just as all franchises need to change.

Scotland actually agrees with the position that I have taken and outlined: more than three quarters of the respondents to the consultation were supportive of extending the franchise in this way. That sends a message not just about what Scotland wants to be but about what Scotland is.

Political participation is a vital part of a person’s integration. We are proposing one of the most open approaches to voting rights in the world, which will include enfranchising refugees who have leave to remain, which is highly significant.

The Standards, Procedures and Public Appointments Committee has asked the Scottish Government to consider whether we could go even further. I have listened to the compelling arguments presented to the committee by several witnesses regarding asylum seekers whose decisions are pending. I am far from unsympathetic, but I have to acknowledge a number of practical reasons why I am not yet able to take that step.

First, asylum policy is not devolved, and Home Office data suggests that about 50 per cent of asylum claims are ultimately unsuccessful. That raises questions about how the integrity of the electoral register could be maintained if individuals are registered to vote and then denied leave to remain. Secondly, the bill as drafted will add at least 55,000 foreign nationals to the electoral roll, and coping with that will be a challenge for electoral registration officers. I am sure that they are equal to the challenge, but asylum seekers will not typically have a national insurance number, and there are then questions about the documentation that they can reasonably be expected to provide to registration officers and about the time that each individual registration will take.

Photo of Michael Russell Michael Russell Scottish National Party

I will make my point first.

As I said, I have considerable sympathy for the benefit of extending rights to people who have come to our country in the most traumatic circumstances. My concerns relate fundamentally to practicality, efficiency and good administration. I undertake to consider the issue further as the bill progresses.

I have already met Mr Ruskell to discuss the issue—perhaps he would like to make his point now?

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

Has the cabinet secretary, or have his officials, considered whether asylum registration cards, which are a form of photo ID, could provide an adequate form of verification for electoral registration officers?

Photo of Michael Russell Michael Russell Scottish National Party

As I have indicated to Mr Ruskell before—I do so again now—I am always open to ideas on the matter. One possibility might be to effect a change at a later date, outside the bill process. That would allow us more time to examine some of the issues and to address practical constraints. I have written to the committee this week to that effect.

The bill as introduced also extends candidacy rights to foreign nationals with indefinite leave to remain. That approach is adopted by the Welsh Government in its franchise legislation, which was approved yesterday. Again, the committee has asked us to go further and find a way to afford any foreign national who is able to vote in our elections the right to stand as a candidate. Once again, I can see the attraction in doing that, but it presents a clear risk of persons being elected who may lose the right to reside in the country before the end of their term of office, or even before polling day itself.

Although indefinite leave to remain can be extended, it can also be refused or curtailed early. Therefore, there is a danger that we could potentially be building into our system a significant number of by-elections, which might be costly and disruptive. Moreover, immigration policy is reserved and there are a number of complex factors at work in relation to leave to remain.

Photo of Neil Findlay Neil Findlay Labour

Does the cabinet secretary accept that, given the very small number of people that we would expect to be involved, it is a bit of a stretch to suggest that there would be a long list of by-elections? Does he accept that there are many reasons why someone who is elected might not finish their term, and that this is no different?

Photo of Michael Russell Michael Russell Scottish National Party

With respect, I think that it is different. In those circumstances, we would be giving the right to stand to someone who could in no sense be confident that they would be able to see out their term. Very often individuals are confident that they will see out their term but then something happens to them. It is not right to dismiss the issues, and I am not dismissing them. I am taking the issues seriously and trying to explore them, but I will not hide from the practical difficulties.

I have also reflected on the concerns that have been raised about support for local authorities in handling the proposed changes and I have given the committee an undertaking that additional funding will be provided.

On the bill’s provisions in relation to prisoner voting at Scottish Parliament and local government elections, I recognise that the idea of prisoners being able to vote arouses a wide range of views. In 2017, the Parliament’s Equalities and Human Rights Committee recommended allowing all prisoners the vote, whereas the United Kingdom Government limits prisoner voting to those on remand or temporary release.

Whatever a member’s personal view on the matter, it is clear that the Parliament as a whole must act, because the current ban on prisoner voting is untenable under human rights law and has been for some years. Consequently, doing nothing is not an option. The Standards, Procedures and Public Appointments Committee agrees with that position, having taken evidence on the matter. The reason is that in 2005, the European Court of Human Rights found the UK blanket ban on prisoner voting to be in breach of article 3 of protocol 1 of the European convention on human rights. We received powers over our franchise three years ago; as a result, we are obliged to take action to ensure that we are ECHR compliant. Members who are familiar with the Hirst ruling know that the court allows member states a wide margin of appreciation in relation to the exercise of the franchise by convicted prisoners. Indeed, there is no one-size-fits-all approach to ensuring compliance across Europe.

We consider that our proposal to allow prisoners who are serving sentences of 12 months or less to vote falls within that margin of appreciation. The committee has questioned the 12-month period, but it has a solid grounding. First, 12 months is the maximum sentence that a judge can pass in cases that are heard without a jury. Secondly, it is the threshold for the Government’s new presumption against short sentences. Thirdly, it was the most favoured option of the periods on which we consulted earlier this year.

Photo of Michael Russell Michael Russell Scottish National Party

I ask the member to allow me to make some progress.

There were, of course, other views. Some people proposed a different sentence threshold or the complete lifting of the ban. The committee questioned the 12-month proposal, suggesting, for example, that the presumption against short sentences would, in effect, mean that few prisoners would be enfranchised.

However, my colleague, the Cabinet Secretary for Justice, has been clear that the presumption is not a ban. It seeks to encourage the courts to consider alternatives to custody that can be more effective in rehabilitating individuals, but there will always be crimes for which the court decides that imprisonment is the correct course.

There is a link between the two policies, as both the presumption against short sentences and the proposal to allow prisoners serving 12 months or less to vote are approaches that are rooted in inclusion and a desire for rehabilitation through active citizenship. I therefore believe that the bill as drafted contains a clear, principled and practical position and I ask members to endorse it.

Photo of Adam Tomkins Adam Tomkins Conservative

I do not disagree with the cabinet secretary at all when he says that the proposals in the bill are likely to fall within the margin of appreciation that is afforded by Strasbourg to member states. My question is whether the bill goes further in enfranchising prisoners than is necessary to meet the Council of Europe’s requirements. Are there not smaller steps that could and should be taken, instead of enfranchising all prisoners who are subject to jail terms of less than 12 months?

Photo of Michael Russell Michael Russell Scottish National Party

The UK Government has taken a much smaller step, but that step has not yet been challenged. As Adam Tomkins will know, as he is more experienced than I am in matters of the law, the smaller the step that is taken, the greater the likelihood of challenge—there is a relationship between the two.

I go back to this point because it is key: the approach is proportionate and there is strong reasoning behind it, as I have laid out. In the consultation, no period had a majority, but the 12-month period was the one that found most favour. There are strong arguments for taking that approach, which we believe is appropriate, and I am glad that Adam Tomkins agrees that it is likely to be so.

As no clear consensus emerged in the committee in favour of an alternative period, or even in favour of lifting the ban in its entirety, our approach is one that is founded on clear reason.

There is a practical concern, which some have articulated, regarding the difficulty of having large numbers of prisoners registering to vote at a specific prison, but that worry is not based on fact. The bill is clear that voting will occur by postal or proxy vote only and that prisoners will ordinarily, and virtually universally, be registered to vote in the area in which they lived prior to conviction.

The bill will achieve two distinct, but equally important, objectives: it will guarantee ECHR compliance with regards to prisoner voting, which we must do, and include in our franchise all who make Scotland their home, which we should do.

These are important steps forward for our franchise and our society, and I thank the committee for its engagement with the issues so far. I look forward not only to this afternoon’s debate, but to the remaining stages of the bill early next year, providing that members in the chamber agree to its general principles today.

I move,

That the Parliament agrees to the general principles of the Scottish Elections (Franchise and Representation) Bill.

Photo of Bill Kidd Bill Kidd Scottish National Party

As convener of the Standards, Procedures and Public Appointments Committee, it is my pleasure to speak on behalf of the committee.

I thank all those who provided evidence on the bill, as well as my fellow committee members for the constructive way in which they approached the committee’s stage 1 report. Although we did not agree on all the conclusions and recommendations, we were very civil in agreeing not to agree every important aspect of detail.

The committee recognises that the bill represents the first significant use of the increased autonomy that is provided to the Scottish Parliament and the Scottish ministers in relation to the operation of Scottish Parliament and local government elections by the Scotland Act 2016.

In my speech, I will cover the committee’s main conclusions and recommendations in relation to the two main areas of the bill: first, the right of foreign nationals to vote and stand in elections; and secondly, the right of prisoners who are serving sentences of 12 months or less to vote.

Those who provided evidence to the committee welcomed the proposal to extend the franchise to foreign nationals. The International Institute for Democracy and Electoral Assistance told us that, although citizenship has historically and often constitutionally been a requirement to exercise the right to vote,

“an increasingly mobile global population has prompted many countries to reconsider the link between citizenship and voting rights to address democratic deficits and to support the social and political integration of non-citizens.”

It further stated that:

“introducing voting rights for non-citizens would be both symbolically and practically a step towards removing barriers for inclusion and strengthening overall political participation.”

That view was echoed in an informal meeting with representatives of refugee communities, organised by the Scottish Refugee Council. They told us very clearly that having the right to vote would support their social and political integration into Scottish society. I will quote two participants in that meeting. First, Alham Al Bashiri told us how important gaining the right to vote would be for her in order that she could feel that she belonged in Scotland and had equal rights to other people. She said:

“I need this right, I need to feel that this place is my place as much as anyone in here. I should have equal rights the same as anyone in Scotland.”

Secondly, Serge Kasongo emphasised that refugees contributed to Scotland by working but did not have the right to vote. He said:

“We contribute to this country by working, but we can't contribute our voice. There should be more equality.”

Under current arrangements, EU citizens and qualifying Commonwealth citizens resident in Scotland have the right to vote in Scottish Parliament and local government elections, but other foreign nationals, such as Japanese or United States citizens, do not. The bill proposes to provide a uniform right to vote in Scottish elections to all foreign nationals who are legally resident in Scotland.

The Scottish Government estimates that 55,000 people would gain the right to vote as a result of the proposal. Given the numbers of people who would be added to the electoral register, the committee questioned witnesses about how quickly that could be achieved. We were told by the Scottish Assessors Association that it would be “manageable” to get that number of people on the register before the 2021 Scottish election.

I mentioned that the committee did not agree on all the provisions in the bill. However, the majority of the committee welcomed the extension of the vote to foreign nationals on the basis that we believe that people who live in and contribute to our country should also have the right to vote in elections to local government and the Scottish Parliament, as both those bodies will develop and agree policies that affect those individuals.

We also welcomed the cabinet secretary’s commitment to promote engagement with the Scottish Refugee Council and other organisations working at a local level across Scotland to provide support and information on the electoral system and voter registration to those who would be enfranchised by the bill if it is enacted.

The bill also proposes to allow all foreign nationals with an indefinite right to live in Scotland to stand as candidates in Scottish elections and to hold office if elected. Again, that addresses the current anomaly in relation to those who can stand as candidates in Scottish elections by providing more uniform rights. However, the requirement to have the indefinite right to live in Scotland means that refugees and asylum seekers cannot stand as they do not have indefinite leave to remain. The majority of the committee therefore called on the Scottish Government to look to bring the candidacy provisions for foreign nationals in line with the franchise provisions. The committee also called on the Scottish Government to address the anomaly whereby there will be no requirement for EU and European economic area nationals to have an indefinite right to remain in order to stand for elections, unlike other foreign nationals.

I will now turn to prisoner voting. Members may be interested to note that we are informed by Her Majesty’s Inspectorate of Prisons that there was no ban on prisoner voting between 1949 and 1969, and that prior to 1949, only prisoners convicted of the most serious crimes were banned from voting.

The European convention on human rights requires states

“to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people” including in relation to prisoner voting in those elections. The bill seeks to comply with the ECHR by proposing that those serving sentences of 12 months or less should have the right to vote.

Photo of Liam Kerr Liam Kerr Conservative

Would the member concede that the ECHR does not contain a specific right to vote?

Photo of Bill Kidd Bill Kidd Scottish National Party

I thank the member for that question. The bill seeks to comply with the ECHR by proposing that those serving sentences of 12 months or less should have the right to vote. In that respect, the committee believes that we are complying with the ECHR.

The committee agreed that a blanket ban on prisoner voting is unsustainable as it would be at odds with the ECHR, but concluded that the Scottish Government had settled on an approach that fails to address the central question of what disenfranchisement achieves.

In particular, the committee felt that there was a need for further evidence as to why the Scottish Government had settled on the approach of enfranchising those sentenced to 12 months or less. In addition, the committee noted that very few people would be enfranchised by this proposal, given the presumption against sentences of 12 months or less. During its call for evidence, the committee heard a number of arguments for setting the cut-off point at four years, which marks the delineation between short-term and long-term sentences. The Law Society of Scotland and the Faculty of Advocates both indicated a preference for a four-year cut-off point.

The committee also heard arguments in favour of enfranchising all prisoners. The case was made that gaining the right to vote could contribute to the rehabilitation of prisoners, by reducing their sense of alienation and marginalisation. It would also recognise prisoners as citizens in wider society. The weakness of losing the right to vote as a deterrent was also stressed. In the committee, no clear consensus emerged in favour of any specific alternative.

The bill provides for prisoners to be registered by reference to their previous home address or by a declaration of local connection, which allows them to be allocated to an electoral community. That addresses the practicalities of registering prisoners and them exercising their right to vote. Prisoners would be allowed to vote only by proxy or postal vote. The committee received evidence from the Scottish Prison Service and Her Majesty's Inspectorate of Prisons, and it was broadly content with the arrangements in relation to proxy or postal voting. It was also satisfied that there would be sufficient means for prisoners to access information on candidates and political parties.

I turn briefly to the financial memorandum. The committee raised concerns about the cost to local authorities, and about the cost of adapting electoral management systems and software to respond to the changes to the franchise. The estimated costs that would be incurred by local authorities are estimated to be around £200,000. Although the financial memorandum envisaged that those costs would fall on local authorities, the cabinet secretary has since written to the committee to indicate that he is

“persuaded to accommodate further funding to cover costs which will be incurred by Returning Officers arising from an increase in the number of people who are able to vote once the franchise has been extended to foreign nationals”.

The majority of the committee members supported the general principles of the bill, although there are a number of conclusions and recommendations on which we will either call for further clarification or ask the Scottish Government to reconsider some of its proposals at stage 2.

Photo of Jamie Halcro Johnston Jamie Halcro Johnston Conservative

I echo the convener’s comments—although we did not always agree, we had a very constructive discussion.

First, as a member of the Standards, Procedures and Public Appointments Committee, I thank our ever-diligent clerking team for their work on the stage 1 report.

There are two main areas in the bill and I will take them in turn. The first part deals with voting by foreign nationals. The Scottish Government broadly seeks to extend the right to vote in local authority and Scottish Parliament elections, regardless of a person’s nationality or citizenship status. Few countries around the world allow for such a wide franchise.

In most other nations, quite reasonably, voting is tied to citizenship in one form or another. In others, foreign nationals are able to vote, but with the requirement that a minimum period of residence in the country has been fulfilled. Unlike in the case of European citizens, there is no reciprocal agreement, and none has been sought from other countries. Equally, evidence that was received by the committee shows that increasing the voter rolls will not necessarily increase participation in elections, and that other barriers may well be more important.

Another issue is that of residence and permanency. Although the current system is, perhaps, not perfect, the bill will extend voting rights to relatively temporary residents. Indeed, it will be extended to residents in Scotland who do not have a long-term right to remain here. Conversely, a lifelong resident of Scotland who is living away from home for a period of work or education is, by the arguments that are deployed by the Scottish Government, no longer considered to have a stake in our society.

If the franchise is to be used in the same way for referendums, the issue can become even more pointed. If we look to Ireland, for example, we see that a distinction has been drawn between general elections and referendums. In a referendum, further restrictions are applied, acknowledging that Irish citizens have a closer tie to the Irish state.

Those issues are in part addressed by the additional limitation that the bill proposes for residency in relation to election candidates, but there is a wider point—

Photo of Jamie Halcro Johnston Jamie Halcro Johnston Conservative

I would like to make a bit of progress.

The wider point is that citizenship is a legal relationship that binds an individual with the state. It is not about origins or ethnicity; it is about participation in a shared common endeavour. That relationship has a value that is based on more than simply the technical aspects of the right to reside within a country’s borders.

Part 2 of the bill concerns the Scottish Government’s proposals on prisoner voting. The legal questions around the ban on prisoner voting have existed since the 2005 decision of the European Court of Human Rights in the Hirst v United Kingdom (no 2) case. We know that a wide margin of appreciation exists in how domestic law implements the requirements of protocol 1 of the European convention on human rights, which is concerned with free and fair elections. The Scottish Government has previously suggested that it has a moral opposition to prisoner voting. However, there is a strong case that the bill goes beyond the legal requirements of the European convention and the decision of the European court.

The Conservatives have been consistent in our opposition to prisoner voting. Scottish Conservative members of the Equalities and Human Rights Committee opposed broadening the franchise in such a way when that was considered previously. The issues have arisen in the United Kingdom Parliament, and the UK Government’s approach has been to outline a solution in which a relatively small number of people—those who have been sentenced to prison but who have been released on temporary licence—will be able to vote. Temporary licence is a different state from imprisonment. Those are people who, despite their offences, are being prepared for full resettlement into the community and who are beginning a clear process of rebuilding their lives outside prison. That phase of their sentence is entirely focused on rehabilitation.

The UK Government’s proposals have been welcomed and accepted by the Council of Europe as an acceptable solution to the issues that are raised by the Hirst case. However, the Scottish Government’s approach in the bill is to provide voting rights to those serving sentences of 12 months or less, which goes far further and brings elections directly into our prisons. Of course, there are those who suggest that we should go even further, that the requirements of the convention rights are a minimal standard in this area and perhaps even that restrictions on prisoner voting should be lifted entirely. In response to that, I echo the sentiment of the former Prime Minister David Cameron, who said that the idea of the consequences that flow from it made him “physically sick”.

Photo of Neil Findlay Neil Findlay Labour

I have to say that, given the policy agenda of Mr Cameron, he makes many people physically sick.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

Can we have a bit more respect for members?

Photo of Jamie Halcro Johnston Jamie Halcro Johnston Conservative

I thank the member for that extraordinarily helpful, positive and productive comment, which I will gloss over.

Admittedly, a lifting of all restrictions is not the situation that we face today. The presumption with the figure of 12 months seems to be that those who are convicted in such a way will be the least serious offenders. The bill’s policy memorandum sets out the distinction between the sentencing powers of courts acting under the summary and solemn procedures. However, we know that sentencing decisions are far from clear cut in that way. Given the range of options that are available to the courts, all custodial sentences are serious penalties that are handed down for serious reasons. There is already a high bar for offenders to reach before they find themselves in prison. That in itself is enough to make me doubt the logic of opposing a ban on prisoner voting on the ground of proportionality.

Photo of Michael Russell Michael Russell Scottish National Party

If the member wishes to talk about inconsistency, will he look at the decision in the rest of the UK, which means that any prisoner who is on temporary release is entitled to vote, and in that regard there is no indication of the seriousness of the crime at all? It is perfectly possible that someone who has been convicted of a serious crime south of the border will be on temporary release and eligible to vote. If the member is looking for consistency, perhaps he should look to Scotland rather than the rest of the UK.

Photo of Jamie Halcro Johnston Jamie Halcro Johnston Conservative

The point is that those people are not in prison, whereas the people who are to be given the vote under the bill are in prison.

On the nature of offences, the Scottish Government's proposals to open up prisoner voting have taken a blanket approach. For example, there has been no separate consideration of the case of people who are imprisoned for electoral offences. That issue arose in committee and received a response from the cabinet secretary. In his reply, he attempted to draw a false distinction by arguing that, if crimes such as murder were to be treated in a certain way, so should acts of electoral fraud. However, that is to make a distinction of levels of seriousness and not one of type, and electoral offences are clearly relevant in this situation.

We should also consider some of the consequences of politicians being obliged to consider the votes of offenders who are currently imprisoned. To what level would candidates be expected to engage with prisoners? What about those candidates and campaigners who are themselves victims of crime?

I expect that ministers might hide behind the defence that voting will form part of a prisoner’s rehabilitation and reintegration into society. However, we know from the Scottish Prison Service’s own figures that the numbers of hours of work and education that have been undertaken by prisoners has slumped in the past decade. Without real effort being put into rehabilitation, that defence would be—at best—warm words.

These are issues of unusual—and effectively constitutional—significance. When prisoner voting was foisted upon us in the Shetland by-election by ministerial diktat, bypassing the scrutiny of this Parliament until after the event, it should rightly have been seen as an area of real concern. Now, the Scottish Government’s bill creates a framework for a fundamental change in the franchise. It is right that it receives tough scrutiny in this chamber.

The committee’s report raises a number of important questions about the bill going forward. Along with my colleagues in the Conservative Party, I have questions that go further than the report’s. I believe that there are very basic questions about the policies that are being pursued in the bill.

We can improve how our elections are run, and do much more to make them a better representation of the views of the electorate. We must work hard to make sure that votes are counted effectively and that efforts to combat electoral fraud are prioritised. We also must ensure that everyone who is legally entitled to vote not only can, but is encouraged to, use their ballot. The bill does little to achieve those objectives.

Photo of Alex Rowley Alex Rowley Labour

I am pleased to open the debate on behalf of the Labour Party. We commend the committee for its stage 1 report on the Scottish Elections (Franchise and Representation) Bill. We welcome the committee’s conclusions and recommendations, and we believe that the direction that is being taken will strengthen and improve the administration of devolved elections here in Scotland.

We welcome the intention of the bill to ensure that citizens of all countries who are legally resident in Scotland are able to vote and stand in elections that affect them. Foreign nationals who make their homes in Scotland contribute greatly to our society, and it is only right that those who are legally resident in Scotland should have a say on decisions that affect their daily lives.

It is heartening that the Scottish Government consultation on the extension of the franchise was supported by 79 per cent of respondents, as well as by those who provided evidence to the Standards, Procedures and Public Appointments Committee as it scrutinised the bill. In its evidence, the Scottish Refugee Council noted:

“the proposed legislation … addresses a long-standing democratic deficit, whereby long-term residents in Scotland do not have a say on the areas that matter to them.”—[

Official Report

,

Standards, Procedures and Public Appointments Committee

, 12 September 2019; c 4.]

I welcome the fact that that is being addressed by the bill.

Increasing participation in elections by encouraging people to vote and stand for election should be a key priority for any well-functioning democracy. It is welcome to see Scotland take measures that will give the right to vote to more people who live, work and make their home here.

Photo of Adam Tomkins Adam Tomkins Conservative

I will ask Alex Rowley the same question that I asked the cabinet secretary. I completely understand the argument that the franchise should be connected to residence, but what is lost in that argument is the sense that the franchise should be connected not simply to residence but to citizenship. My question is this: what work is left for citizenship to do? If it does not give us the right to vote, what is its value in the modern world? Are we giving up on the idea of citizenship? It is premature to move as quickly as the Government wants us to move in equating the franchise to residence, because there is something of value in citizenship that I want to preserve. Does Mr Rowley have any reflections on that?

Photo of Alex Rowley Alex Rowley Labour

Neil Findlay has just said to me, “No taxation without representation.” People are paying their taxes and contributing while living in this country. The cabinet secretary said that he did not want to enter into a discussion about citizenship, but it is a valid one to have, and I am happy to continue it with Professor Tomkins as we move through the bill process.

It is vital that we ensure that the rights that are currently held by EU nationals living in Scotland are protected in the event of the UK leaving the EU. I welcome the safeguard that is being put in place to ensure that voting rights are guaranteed based on residence status. It means that the current voting rights of EU citizens will be reaffirmed in all scenarios at this uncertain time.

The committee raised concerns over the high number of people who are eligible to vote but who are not on the electoral register, as well as the number of people who are not correctly registered. The integrity of the register must be looked at and kept to the highest standard. I ask the Scottish Government to consider what moves can be taken to ensure that the register of local government electors is as complete and accurate as possible, especially given that the bill takes steps to extend the franchise. Although the moves to extend voting rights are welcome, it is clear from witnesses to the committee that voter education must go alongside them. We cannot simply enfranchise voters without making sure that they have the information to make an informed decision and have a good understanding of voting processes. That includes making information accessible.

I note that the cabinet secretary has committed to promoting engagement with the Scottish Refugee Council and other organisations working at a local level and across Scotland, with the finance and resources required, but it would be helpful to have a clearer picture of how much support is required and whether the necessary levels of financing will be provided so that it is not just a token gesture. If we are to follow through on the aims of the bill, proper resourcing is required to ensure that those aims are met.

I concur with the view of the committee that it is essential that

“policy on prisoner voting is driven by principle and evidence.”

The Scottish Government has full control over legislating on prisoner voting in devolved elections. It is clear that the current blanket ban on prisoner voting is unsustainable, particularly given that it puts our country at odds with the European convention on human rights. The Scottish Centre for Crime and Justice Research points out that Denmark, Sweden, Norway, Finland, Switzerland and Ireland have no electoral ban on prisoners being able to vote. We should look at the evidence from those countries see what lessons can be learned here in Scotland. The committee’s stage 1 report notes that

“the Scottish Government has settled on an approach which fails to address the central question of what disfranchisement seeks to achieve.”

It is vital that we look at that and find an approach that is, as the committee says,

“driven by principle and evidence.”

Reform in this area is badly needed, so we need to move it forward.

Photo of Liam Kerr Liam Kerr Conservative

Is there any evidence from the countries that the member mentioned as having no such ban that there is an improvement in rehabilitation outcomes?

Photo of Alex Rowley Alex Rowley Labour

I do not know—that is the point that I am making. Those countries have that policy in place and we need to look at the evidence. I have not yet looked at that evidence, but I will do so as we progress with the bill. I hear members say that there is evidence; it is vital that we look at it, as reform is needed.

The central elements of the bill aside, voter registration and participation are still too low in Scotland. It is clear that we must do more to address that and I call on the Scottish Government to provide more details on how, aside from the positive elements of the bill, it will promote greater participation in elections across Scotland. Our democratic processes have been pushed to the very limits over the past few years and it has left many across the country even questioning democracy itself.

We must reaffirm faith in our democracy by strengthening it in any way that we can, and we must bring back the trust that has been lost by showing people that their choices are in their hands.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

I join the convener of the Standards, Procedures and Public Appointments Committee in thanking the clerks, the Scottish Parliament information centre and all those who gave evidence on the bill at stage 1. I also thank committee colleagues because, despite our differing starting points, we managed to find consensus on many of the bill’s key areas, while agreeing to amicably disagree on others.

I acknowledge and welcome the fact that basic compliance with the European convention on human rights is a legal duty that the bill delivers, although it is disappointing—it is quite chilling—to hear the Tories suggest that democracy is not a human right. It is a human right, and it is in the European convention on human rights.

Photo of Adam Tomkins Adam Tomkins Conservative

Will the member point me to the provision of the European convention on human rights that confers a right to vote on anybody, never mind one that confers the right to vote on prisoners? There is no provision of the convention that includes the phrase “right to vote”. That is the point that was made by Liam Kerr, and it is accurate and true.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

We are dancing on the head of a pin here. Article 3 of protocol 1 of the convention is th e “Right to free elections”. Elections cannot be held unless people are freely allowed to vote and stand in those elections.

However, there are important issues around the extension of the franchise to asylum seekers and young people, and the need for more widespread prisoner voting to assist rehabilitation, which the bill does not yet fully address. I welcome the cabinet secretary’s openness to working with me and other members in seeking to complete those powers in the bill.

The Scotland that we are proud of is inclusive. Someone need only pull up a chair and they are in. That is what citizenship means to me. Therefore, guaranteeing the rights of EU citizens and other foreign nationals to vote in and stand for election is a necessary and welcome step in the bill.

I recently hosted two well-attended events in Stirling and St Andrews for EU citizens who were concerned about their rights. I was struck by their commitment to Scotland and their communities. Those people are us; they are not others. The settled status scheme is, frankly, an insult to citizens who have chosen to spend their lives here. I was in particular moved by those pensioners who have been in Scotland longer than some of us have been alive. They were confused and hurt by the settled status scheme. They deserve better—they deserve representation and, to be honest, they deserve the right to represent all of us, should they choose to stand for election.

However, what most moved me in considering the bill was the informal session that the committee hosted with the Scottish Refugee Council. The convener has already articulated many of the powerful points that those attending made. We met a wonderful group of asylum seekers—individuals who have made their legal application for leave to remain and who, in most cases, have been here for many years. They were eloquent and passionate about democracy. They were passionate about local services. We had an in-depth debate about potholes. It is people such as those that I would like to be able to vote for to be my councillors. Perhaps many of them should be sitting here as MSPs, too.

There are, of course, considerations to do with whether an asylum seeker’s status may change, should they be elected to office. As we see by the number of council by-elections that are triggered each year, it is already the case that personal circumstances can change, especially for councillors, when health or wider employment issues arise. When individuals decide to put themselves forward for nomination, they and their parties consider those circumstances.

I know that the cabinet secretary is concerned about the complexities surrounding electoral registration of asylum seekers, and there are issues with the bill basing qualification on the Immigration Act 1971. Where there is a will, there is a way, and I believe that the cabinet secretary wants to find a way forward. With the clock now ticking on stage 2, I want us to find a way to bring those people into the franchise, because they are citizens in everything but name.

Asylum seekers are not tourists. They have a lawful presence under immigration bail and they are issued with a photo ID asylum registration card. In many ways, they are able to prove habitual residence in a more detailed way than the rest of us, who simply self-declare on a registration form. It is not enough to say that asylum seekers can already make representation to elected members on issues that concern them. That is not enough. They live here, we walk together on the same streets and they deserve democratic participation, not just representation.

On prisoner voting, the Government needs to be clear about what it is trying to achieve beyond mere legal compliance and a compromise to minimise public controversy. An important principle is about rehabilitation rather than punishment. It is no punishment to deny a prisoner the opportunity to vote for me or any other MSP in this chamber but, as offenders work through their sentences, the work to rehabilitate them must meaningfully progress. To reintegrate offenders into society, they have to be educated to understand the needs of others, build empathy and feel part of wider society rather than a narrow peer group of fellow prisoners. Voting in an election is just one strand of an approach that will build that sense of social responsibility.

Drawing the line at sentences of more than one year for the termination of voting rights appears to be an arbitrary aspect of the bill. I am sure that at stage 2 a range of options will be presented for increasing the franchise further and I urge the cabinet secretary to be bold. The principle of prisoner voting has been agreed, the Government has already taken a hit from the right wing, to an extent, and it should now make the extension of the franchise meaningful and purposeful, as well as legal.

The recent extension of the electoral franchise to young people has been a great acknowledgment of their rights and contribution to society, and the climate strikes have underlined that even further. The sight of classloads of young people in their school uniforms going out to vote is, to me, a wonderful thing, but it begs the question as to whether voting and candidacy rights should be equalised at some point. I realise that that idea requires careful consideration, particularly around safeguarding issues, but I see no fundamental reasons why young people cannot and should not take their place as decision makers. If political parties feel that a young person is mature enough to hold office, it should be possible to select that person to stand. I invite the cabinet secretary to consider how that could be explored further before what I expect to be a busy stage 2 and stage 3 process for the bill.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

It gives me great pleasure to speak on behalf of my party in this stage 1 debate, and to offer the support of the Liberal Democrats for the principles of the bill. The bill includes a variety of improvements to the way in which people in Scotland can vote and be represented.

Scottish Liberal Democrats have been calling for many of the changes for a long time, so I pay tribute to my colleagues and predecessors who have worked hard to make the arguments, even when they were not easy arguments to make and were, sometimes, met with hostility.

Rousseau said in “The Social Contract” that people are truly

“free only during the election of members of parliament.”

The ability to cast a ballot is an opportunity for change. It should always be about letting people make a meaningful choice and letting them have their voices heard. At a time when more and more people see politics as a frustration rather than an opportunity, it is more important than ever that we engage with the people.

We have to make it easier, not harder, for people to influence the way in which our country is run. That is part of how we build an inclusive, compassionate and liberal society. One way in which we can build that liberal society is in how we treat offenders, so I very much welcome the provisions in the bill that recognise the need to extend the franchise to people who are incarcerated. The blanket ban on prisoner voting that currently applies means that we have knowingly been in breach of the European Convention on Human Rights since 2005. The Conservatives have asked throughout the debate where it is written in the ECHR, but it is in legal precedent as set out in the judgment in Hirst v United Kingdom. That means that there is a legal imperative for us, as a country, to extend the franchise to the people who are in our prisons.

There is no corollary between a crime and the sentence and removal of the right to vote. A person who had been sentenced to prison in 2011 for three years would have missed two electoral tests. If that person had committed the same crime and been sentenced to three years in 2014 would have missed nine electoral tests. The situation is entirely arbitrary and bears no relation to either the crime or the intention of the punishment.

When the Equalities and Human Rights Committee, of which I am deputy convener, looked at the matter last year, the evidence for change was direct and compelling, so we welcome the change of heart that the bill represents. I recognise that it is a step forward, but I agree with Mark Ruskell that extending the franchise only to short-term one-year sentences does not answer the legal imperative and continues the arbitrary nature of the decision about who is allowed to vote and who is not. The arguments stand on their own.

I hope that Parliament will recognise the hard work that preceded the bill to ensure that change; it has been a long and hard-won battle, since even before the days of the judgment in Hirst v United Kingdom.

The Liberal Democrats lodged two amendments to bills that would have given some prisoners the right to vote in both the independence referendum and the previous election for the Scottish Parliament, on the basis of their sentence length. Both were voted down by the Government. We lodged those amendments because preventing prisoners from voting is neither legal nor fair, nor is it progressive. Allowing people on short-term sentences to have their say—as the bill will—will mean that their imminent rehabilitation could be done with a greater sense of their inclusion in our society.

Ensuring that prisoners are prepared to rejoin our communities and making them more aware of the responsibilities of citizenship means that there is a higher chance of their re-integration and a reduced chance of recidivism. The evidence says that prisoners are among the most disengaged people; why not help them to realise their rights? That will also benefit the communities to which they return.

I welcome the bill’s provision on EU citizens. Fifty years ago, 18-year-olds were given the right to vote in the UK. Before then, only people over the age of 21 had that right. It is almost unbelievable that it took that long: 18-year-olds had gone to war for the country, had paid taxes that contributed to the establishment of the national health service and had been marrying and having families. However, it took until the 1960s for them to be given the right to vote. In 2019, that same disenfranchisement exists for EU citizens.

We are heavily indebted to people who choose to make Scotland their home; they deserve the warmest of welcomes. Immigration is as good for Scotland as it is for the rest of the UK. Despite that, those people are denied the ability to participate fully in civic life because they cannot vote. The least that we can do in exchange for their caring for older people, teaching our children and saving lives in our hospitals, is allow them the franchise.

Scottish Liberal Democrats are internationalists. That is not a secret. We welcome the enormous contributions that EU citizens bring to our communities, our culture and our economy. Those who choose to come to the UK to work, study or join our families should be welcomed for the skills and contributions that they bring.

I am glad that the bill seeks also to extend the franchise for Scottish elections to people who have sought refugee protection. That point was put very succinctly in a contribution to the Scottish Youth Parliament, at which a member said:

“If you live here, you contribute and should have a say.”

It should be that simple. People in Scotland should have every right to a say in the decisions that affect them. I hope that, through the bill, we will make changes that will seem just as common sense in the next 50 or 100 years, as when we extended the right to vote to women and to 18-year-olds.

On young people, I fundamentally agree with the Green Party position. If we trust young people to have a say in the governance of this country, we should also trust them to put themselves forward as candidates for elected office, and we should support them to do so. They are our future and they deserve to have a voice in that future.

I am happy to confirm that the Liberal Democrats will support the bill at decision time.

The Presiding Officer:

We move on to the open debate. I call Maureen Watt, to be followed by Liam Kerr.

Photo of Maureen Watt Maureen Watt Scottish National Party

I am pleased to take part in the stage 1 debate on the Scottish Elections (Franchise and Representation) Bill. The Standards, Procedures and Public Appointments Committee does not often consider bills but, as with buses, two have come along in quick succession, as we are also taking evidence on the Scottish Elections (Reform) Bill.

As others have said, nothing is more important in a democracy than ensuring that as many people as possible who live in work in the country have the right to vote and participate in elections. The old maxim, “No taxation without representation”, which Alex Rowley and Neil Findlay mentioned, should never be forgotten, so it is really important that one of the key tenets of the bill is that it seeks to ensure that we have an electoral system that supports and empowers engagement in elections by all those who choose to make Scotland their home. We should create conditions that encourage people not only to vote but to consider standing for election.

We live in a world with an increasingly mobile global population. As the International Institute for Democracy and Electoral Assistance has observed, that has prompted many countries to reconsider the link between citizenship and voting rights, to address democratic deficits and to support the social and political integration of citizens.

In many debates in committee, we have acknowledged the Scottish economy’s need for people from other countries to come to work and make their homes in Scotland. As valued contributors to our society, they should have a say in the laws that govern us all. JustRight Scotland, the Scottish Refugee Council, the church and society council of the Church of Scotland and Maryhill Integration Network have recognised the valuable and valued contribution of new Scots. Their participation in the electoral process is important to integration.

Currently, some people qualify to vote and stand in elections because of their nationality—for example, EU citizens and qualifying Commonwealth citizens. However, the proposals in the bill will allow all persons of all nationalities who are legally resident in Scotland to vote in Scottish Parliament and local government elections. It has been estimated that that will allow about 55,000 new citizens to vote and stand for election.

It will be important to inform those citizens of their new enfranchisement. Concern has been voiced about whether the resources that are being allocated to new voter education are sufficient. We have to recognise that many people will come from countries in which there is great distrust of the political system, and that some reassurance will be necessary. I would like the cabinet secretary to assure me and others that the resources to be allocated for that work will be proportionate, and that they will be shared appropriately among various organisations across Scotland. For example, I would like the people who run our colourful and vibrant melas in Aberdeen and elsewhere to be able to access money so that they can increase voter registration and encourage participation through peer support and at the melas.

As has already been said, some new Scots are fearful of authority, but others celebrate their new lives and new freedoms and are very engaged in civic society. That applies more to no one more than it does to the young asylum seekers who came to the meet the Standards, Procedures and Public Appointments Committee informally, through the auspices of the Scottish Refugee Council. They are desperate to play a full part in Scottish life.

The committee welcomes the bill’s intention to extend the franchise to people who have been granted leave to remain, which is normally for a period of five years. Unfortunately, under the current UK Government system, far too many asylum seekers still wait far too long for their status to be confirmed. It is with deep regret I note that we will have to wait for full control of immigration to come to the Scottish Parliament before we can meet those young people’s ambitions.

I will turn briefly to prisoner voting. I declare that, before I entered Parliament in 2006, I was a member of a prison visiting committee for 12 years and was a frequent visitor to the former Craiginches prison and other penal establishments.

It is important to recognise that the Scotland Act 1998, in setting up the Scottish Parliament, and the Human Rights Act 1998 require all public authorities in Scotland—including the Scottish Government and the Scottish Parliament—to act in accordance with the European convention on human rights. In oral and written evidence to the committee, there was an overwhelming desire to allow people with a prison sentence of four years or less to vote. I think that there is a contradiction between a presumption against short sentences of a year or less and setting the level at one year, but I am sure that that will be teased out during future stages of the bill. However, there was broad agreement that enfranchisement should not be at the discretion of the sentencing judge or relate to the types of crimes that were committed or whether the crime that was committed was electoral fraud.

I look forward to the further stages of the bill and to Parliament approving the bill at stage 1.

Photo of Liam Kerr Liam Kerr Conservative

I cannot vote for the principles of the bill. Jamie Halcro Johnston articulated my general concerns. I cannot get beyond the prisoner voting aspect of the bill, which would allow a prisoner convicted of a crime severe enough to warrant a prison sentence to play a part in determining the outcome of Holyrood and council elections.

Historically, the position has been that those convicted of a crime severe enough warrant a prison sentence lose some of their rights, including the right to vote, as a function of that imprisonment. Several reasons have been advanced today to alter that position.

First, the cabinet secretary raised the idea that rehabilitation prospects are increased by giving prisoners the right to vote, on the premise that participating in elections is likely to encourage them to become responsible, law-abiding citizens through what I think he called “active citizenship”. I do not see it. Alex Rowley is right to say that policy should be driven by evidence. I do not see in the report the evidential base that links the exercise of the franchise to greater rehabilitation, not least because, as Bill Kidd conceded, the committee felt that such small numbers of prisoners would avail themselves of that right that it would have no impact whatsoever.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

The penal system that operates here and, indeed, south of the border and in the rest of the UK has led to the greatest ever number of prisoners in our prisons and their relatively ineffective rehabilitation. Does the member accept that that stands in stark contrast to the position in other countries? I could pick one at random, such as Sweden, where citizens retain almost all their rights during periods of incarceration. The outcomes there are incomparably better, and fewer discharged prisoners return to prison.

Photo of Liam Kerr Liam Kerr Conservative

My point was absolutely clear. We need an evidential basis for rehabilitation, and there is no such basis in the report. Indeed, what we have is language that suggests that loss of the franchise might add to a sense of alienation, which might not help.

There is an assertion that enfranchisement is potentially an opportunity for education, which, as we know, prisoners are not currently getting. I read that as a concession that education is the key, not the franchise. Neither do I see such evidence in the Audit Scotland report, “Reducing reoffending in Scotland”.

When I have visited prisons and prisoners and interrogated reports, and when committees have exhaustively pored over the evidence on rehabilitation, I have seen that what promotes its success are factors such as education, purposeful work, a job to return to, a house to live in and meaningful family contact during incarceration. Therefore, when the Parliament considers rehabilitation and how to spend relevant resources, its time would be far better spent in addressing the fact that the number of hours of work and education that Scotland’s prisoners carried in 2017-18 out dropped by nearly 300,000.

Photo of Neil Findlay Neil Findlay Labour

If Liam Kerr thinks that prison is not about rehabilitation, he must think that it is about punishment and prevention. Does he have evidence that that approach works? Does he know of anyone who has ever said, “I was going to commit that crime, but I was really terrified that they would take my vote away from me”?

Photo of Liam Kerr Liam Kerr Conservative

The report picks up Mr Findlay’s point that people are not put off committing crime because they will lose their right to vote. However, I do not think that that is relevant to the point that I am making, which is that rehabilitation is best served by the provision of work and education in prisons. Due to the Scottish Government’s actions, the SPS is unable to provide throughcare services, and I think that Mr Findlay would agree with me that resource and time should be used to end the current necessity for shared cells, for example. Such measures would have a greater impact on human rights and rehabilitation prospects than the extension of the franchise.

Many members might be with me on that point but feel constrained by the human rights argument. In that regard, it is worth noting that article 3 of protocol 1 of the ECHR was carefully worded to include a duty on Governments to hold elections; it does not specifically accord individual prisoners a right to vote. That makes sense, because when someone is punished by imprisonment for committing a crime, they have certain rights curtailed. Those are chiefly the rights to freedom and privacy, but they also lose the right to vote. The fact that a right for prisoners to vote neither features—

Photo of Liam Kerr Liam Kerr Conservative

I will not, because I am running late. I apologise.

Photo of Liam Kerr Liam Kerr Conservative

I will take it if it is very quick.

Photo of Michael Russell Michael Russell Scottish National Party

Liam Kerr might disagree with article 3 of protocol 1, but does he disagree with the European Court of Human Rights, which, in the case of Hirst, said:

“the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion ... there is no room in the Convention for the old idea of ‘civic death’ that lies behind the ban on convicted prisoners’ voting.”

Photo of Liam Kerr Liam Kerr Conservative

My colleague Adam Tomkins will address that point in his closing speech. It took 23 years from the ECHR being brought in for that right to be found in the Hirst case. Adam Tomkins will elaborate on that later.

The fact that the right for prisoners to vote does not feature in the convention, and that its architects did not intend for it to feature, suggests that what we are debating today is as much an issue of social policy. That view is supported by the wide variation in interpretation of what the right is and to whom it should be applied.

A minority of European Union countries give all prisoners the vote, and plenty of democratic countries retain full bans. The Law Society of Scotland’s briefing makes it clear that

“the franchise of prisoners may be restricted, provided that the restriction is proportionate to achieving a legitimate aim”, such as enhancing civic responsibility, respect for the rule of law and avoiding sanctioning law-breaking conduct. That being the case, the Scottish Government is not mandated to enfranchise this category of prisoners at all. To be compliant, it could be that the Government must merely enfranchise people on temporary licence.

If members are not with me so far, they will surely accept that we are talking about only a qualified right, as opposed to the absolute rights that are enjoyed by all, such as the right not to be subjected to torture. If that is the case, it inexorably follows that we must consider more than just the rights of prisoners. Victims such as those who have suffered serious assault, attempted murder and sexual assault, which are crimes that, in the past few years, have attracted sentences of 12 months or less, will be watching the debate. They will be asking, “Where were my human rights? What happened to my right to freedom from discrimination, my right to security and my right not to suffer inhuman or degrading treatment?”

We must be under no illusions: people who are sentenced to 12 months’ imprisonment are, by definition, serious criminals. They have committed the more serious offences—those that have defeated the presumption against short sentences and the desire to give community disposals. They are the criminals who are not suitable for electronic monitoring, and the repeat offenders.

All that means that, when I walk out of the chamber after decision time tonight, I will be able to look victims—those whose right to life or whose right to freedom from torture was offended—and their relatives in the eye. When they ask, “Why does the Scottish Parliament put a prisoner’s qualified right to vote over my family’s absolute right to life?”, I must answer, “I did not.”

For that reason, I cannot vote for the principles of the bill. I strongly encourage colleagues across the chamber to think very carefully about the message that they will send tonight if they disagree with me.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

I support the general principles of the bill, and I commend colleagues on the Standards, Procedures and Public Appointments Committee for their report. I will deal with some aspects of the report first, before I tie the report into a wider issue.

The bill continues Scotland’s strong record of electoral reform and demonstrates the commitment to value equally everyone who chooses to make Scotland their home. The report’s conclusions and recommendations are very helpful in bringing out the key points. I will discuss some of the report’s paragraphs.

On paragraph 16, I agree with extending the franchise to foreign nationals who are living in Scotland. For me, it is crystal clear: if someone chooses to live their life here, to contribute to our society and economy and to become part of their community, why should they be denied a say in how Scotland and their community are run? Why should they be considered to be an outcast in their own community? Telling people that their voice does not matter by denying them a vote is an example of narrow British nationalism at its worst.

I am appalled that the Tories do not want such people to get the vote, and I hope that they will rethink their position, because I believe it to be untenable. They might argue that the policy is not unique and that many other countries deny foreign nationals the vote. That is the case, but it ill behoves this Parliament and this country to follow in those footsteps. Sometimes in life, it is better to lead the way than to meekly follow others. The bill sets out the stall and tells all foreign nationals with indefinite leave to remain that they matter to Scotland.

Scotland has already led the way by lowering the voting age to 16, and the provisions in the bill take further strides to create an even more inclusive franchise. We are the home of the enlightenment, yet some in this chamber do not want to be enlightened when it comes to foreign nationals who live here.

I agree with what the committee said about the franchise in paragraphs 23, 34 and 42. With regard to paragraph 43, I say “Well done” to the committee and “Shame” to the Tories. People who have left Scotland to forge a life elsewhere should have no say on how Scotland is run now. Why should they? People who have chosen not to live here, for whatever reason, should forfeit the right to potentially affect the running of the country. However, there will be people who live here who have contracts to work elsewhere; Jamie Halcro Johnston mentioned that issue. For example, there will be such people who work in the oil and gas sector, but they will not be adversely affected because their home is here. They will still have the right to vote here, and rightly so.

I welcome the recommendation on asylum seekers in paragraph 51, and I welcome what the cabinet secretary said about that. I accept that the argument on voting entitlement is a different argument, but I welcome the cabinet secretary’s commitment to examine the matter further.

On candidacy rights, I welcome the recommendations in paragraphs 67 and 68. As I have said previously in the chamber, Scotland’s tartan is a mix of colours and backgrounds; it is not just white with a ginger fringe. Having more candidates from different backgrounds and nationalities makes our country and our society stronger.

It was a privilege to be in the chamber when, following their election, Christian Allard and Marco Biagi took the oath in French and Italian respectively. I believe that we now have more people from different backgrounds standing for election to the Scottish Parliament and to local authorities. Our community, our society and our country will be better for it when more people from different backgrounds are elected to various chambers. Extending candidacy rights to people who have indefinite leave to remain can only make Scotland a stronger and better country. [

Interruption

.] I thank Mark Ruskell for applauding.

I also support the recommendation that those prisoners who are serving sentences of 12 months or less should have the right to vote. As Bill Kidd said, very few people would be enfranchised by that, but I believe that it represents a progressive step forward. I cannot remember exactly what he said, but Liam Kerr indicated that, because we are talking about only a small number of people, it might not make a difference. However, I am standing beside Bill Kidd, who won his seat by seven votes. Stephen Gethins won his seat by two votes. Every vote counts. I genuinely believe that extending the franchise in that way will be a progressive step forward. However, given what the committee said in its recommendation, it is clear that more discussion is required.

Jamie Halcro Johnston spoke about the barriers to political participation, of which there are many—we agree on that. However, the actions of politicians and political parties can help with political engagement. Politicians—female politicians, in particular—are quite right to highlight the trolling and abuse that they are subjected to. Today’s BBC report highlights four such female politicians from across the political spectrum. We are in the midst of the 16 days of activism against gender-based violence, and all of us whole-heartedly support the campaign. With that in mind, I invite Jamie Halcro Johnston to condemn his colleague Ruth Davidson’s ill-considered tweet this week about the First Minister “getting a doing”. The process of political engagement and encouraging voters should be done positively without using such language.

I support the principles of the bill, I thank the Standards, Procedures and Public Appointments Committee for its excellent report and I look forward to the rest of the debate and to the bill progressing through Parliament so that our country can become a more progressive country and one in which there is greater political engagement with more people in society.

Photo of James Kelly James Kelly Labour

I am pleased to take part in this afternoon’s debate on the general principles of the Scottish Elections (Franchise and Representation) Bill. As others have done, I thank the Standards, Procedures and Public Appointments Committee for its consideration of some very important issues.

A number of themes are already running through the debate. On the situation regarding foreign nationals, it has been interesting to listen to the various exchanges across the chamber, mainly involving Adam Tomkins, on whether people who reside in this country should be entitled to vote and where that places rights in terms of citizenship. We can have an intellectual discussion back and forth about that but, for me, looking at it logically, people from other countries who reside here and bring up their families here, who are part of the community and are potentially in employment and pay taxes here, have a right to participate in elections of Governments that will set the laws of the country that they will have to abide by and respect. That is a fairly logical position.

The other major debate that arises from the bill concerns prisoner voting. When the Parliament last examined prisoner voting ahead of the 2014 referendum, it took a position not to include prisoners in the franchise for that referendum. It is right that the question should be re-examined at this time. The judgment on the Hirst case took place in 2005, so we are now some 14 years down the line. The driver for the matter to be examined is the new powers that have come to the Scottish Parliament on the franchise for local government and Scottish Parliament elections, but the Government is right to have regard to complying with the outcome of that case under article 3 of the ECHR. That is part of the reason for considering such a change.

In addition, having thought about the matter carefully as someone who was involved in the decision that the Parliament took in 2013, I think that there is a case for considering rehabilitation. There have been many debates in recent times on the crisis in the prison system and the fact that the prison population is 8,300—sometimes rising higher than that—with prisons almost at full capacity. We need to consider the serious issue of rehabilitation. If we give prisoners the right to vote in a proportionate way, that encourages them to be more responsible citizens. When they re-enter society and the community, there is a better chance of them not reoffending. That is good for that citizen and for society as a whole, and it takes the pressure off the overpopulation in the prison system.

Photo of Liam Kerr Liam Kerr Conservative

What is Mr Kelly’s evidence base for that assertion?

Photo of James Kelly James Kelly Labour

I have participated in a number of debates on the subject, having returned to the justice portfolio. One of the drivers that we consider in relation to reducing the prison population is reducing reoffending—and one of the ways of reducing reoffending is to ensure that people feel better about themselves, that they are more part of society and that they are making more of a contribution. One of the great ways of making a contribution is by participating in the debates—we see this playing out before us in the current election campaign—and being able to vote. That helps people to become better citizens; I see it every day in the election campaign.

There must be a proportionate basis to what we do. The committee is right to ask the Government to consider the evidence and the different options regarding lengths of sentences, ranging from 12 months up to four years. There can be further examination of that ahead of stage 2.

Other important issues that need to be examined include those around electoral registration. It is a real concern that up to 830,000 people could be missing from the electoral register. In practical terms, I have found when canvassing that a lot of people are missing from the register. It is important that we update the register, as the committee recommended in its report. On the financial memorandum, the committee made some valid points about local government funding. If local government is to be empowered to extend the franchise, improve voter education and ensure the accuracy of the electoral register, it will need to be properly funded.

In summary, the committee’s report addresses a number of important issues. I support the general principles of the bill and I thank the committee for the work that it has carried out.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

It may be worth reminding ourselves that there have been no major or significant changes to the franchise in the last 200 years that the Tories have not opposed, starting with the great reform act of 1832, or the first reform act and its Scottish equivalent, which, incidentally took the vote away from women. The Pittite faction had its fingerprints all over that. The Tories also opposed the removal of the property qualification.

The only time that the Tories had a momentary point of self-doubt was during the 1922 election when Winston Churchill lost his seat in Dundee to a Scottish prohibitionist party in a hangover from the pre-1832 provisions, whereby boroughs elected multiple members, and Dundee elected only two members. Voters had only one vote, but they could elect two members, and in the 1922 election Winston Churchill came third. He did not think much of the system then—

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

My mother had to wait until she was 30 to get the right to vote, and when she got that right she got two votes, because she was a university graduate. Every stage of the way, major changes have been resisted by the Tories. Plus ça change, plus c’est la même chose.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I will take an intervention from Mr Tomkins now that I have finished my point.

Photo of Adam Tomkins Adam Tomkins Conservative

I am excessively grateful to the member for taking an intervention.

Surely, in this wonderful and not entirely accurate history of Conservative franchise reform, Mr Stevenson is not going to overlook the Reform Act of 1867, which was pioneered by Benjamin Disraeli, a Conservative Prime Minister, and provided for the biggest single increase in the franchise in the 19th century.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

That is correct; indeed, that led to the introduction of the first secret votes, as a result of the doubling in the franchise that derived from the three acts—it was not just one act; there were a number of acts over a four-year period. The first secret ballot took place in August, in a by-election—in Uttoxeter, if I recall correctly, but I am slightly uncertain about that; it is not in my notes, for which I apologise to Mr Tomkins.

We have heard a lot about residency and so on. The bottom line is that we need to be cautious about taking away the right to vote from residents who are citizens of other countries. I have three family members who are not resident in the UK—they are resident in the EU and elsewhere—and who have the right to vote in the country in which they reside. If we interfere with the rights of people in this country, there might be reciprocal action elsewhere. However, that is speculation, not certainty. I very much support the provisions on qualification.

More fundamental, on prisoner voting, a person is deprived of their liberty as a punishment and perhaps for the protection of society. In other jurisdictions—I have a niece who is now a Swedish citizen because of Brexit, so I am particularly well informed about Sweden—better connections are retained between people who have to be deprived of their liberty and their pre-prison lives, and we find that the chance of a prisoner resuming their life in a proper fashion after prison is enhanced by the number of civic connections that they have with their previous life. The ability to retain their house, their residency, connections to their family and their right to vote: it is not that a single measure makes the difference, but that the aggregation of all the measures provides assistance. In our own jurisdiction, we know that, when we send someone to prison, we reduce the chances of their effective rehabilitation and we increase the chance of their recidivism. That is a more general point.

Like others, I have gained considerable experience since coming to Parliament. I have attended 278 Justice Committee meetings and I have visited prisons—I have not been in prison—in Scotland, Wales, France and the Republic of Georgia in the Caucasus. Different jurisdictions do things in different ways, but the bottom line is that we have to think about the practical effects.

I support what we are trying to do, but there are a couple of things that we can think about. The 12-month rule is a relatively arbitrary one, but it is simple to understand, which is a great merit, and we could tweak it if we think that it should be a different period. I thought that the bill might make a distinction between convictions under a summary procedure and those under a solemn procedure, but that could actually make things more complicated.

In my mind, there is a wee difficulty with the way in which section 7(4) is constructed, because it talks about

“the date of the election”.

However, proxies can of course be postal proxies, so, in a strict sense, votes can be cast before the date of the election. Therefore, I think that it might be worth revisiting the drafting.

On uninterrupted residency, it is possible to have multiple places of residence. I have residences both in my constituency and in Edinburgh, as perhaps some colleagues here do, too. I am not allowed to vote in the same election twice, but I am allowed to be registered in the electoral register twice, although I choose not to be, I hasten to add. I think that there are wee issues around that point as well.

I strongly support the provisions of the bill, not simply because of the ECHR issues or the court cases, but because it is a modest and useful contribution to the rehabilitation of prisoners as they return to society by preventing the total disconnection that the prison system often creates.

Finally, I congratulate Tom Fox, whom we all know as our connection with the SPS, as he retires at 5 o’clock today.

Photo of Gil Paterson Gil Paterson Scottish National Party

It is a pleasure to be involved in this very important debate, which will result in the introduction of sensible modifications to the existing UK legislation as it applies to Scotland. The Scottish Elections (Franchise and Representation) Bill is a worthy piece of legislation that demonstrates how, as a result of devolution, Scotland can take a different approach to major franchise issues from the remainder of the UK.

In my view, Scottish Parliament elections and local government elections will be much more inclusive and will better reflect Scottish society’s desire to be fair and to not exclude anyone living in Scotland from the voting process for no good reason.

I am particularly interested in the provisions on voting by qualifying foreign nationals. I have always believed that everyone who lives legally in Scotland should have the same voting rights and that we should not discriminate against anyone on the basis of the land of their birth. Most in Scotland agree that, with an ageing population, Scotland requires foreign nationals—or, as I prefer to say, new Scots—to help to grow and sustain our economy. We want to encourage them to stay, integrate into our society and belong in Scotland.

Part of that belonging is equal rights, and an important part of equal rights is voting rights. I am therefore very supportive of the bill and am convinced that it will encourage many of the young people and families who are currently living in Scotland to stay.

I think that the provisions of part 2, on prisoner voting rights, are just about correct. Once again, we will demonstrate our difference from the rest of the UK, which breached the European convention on human rights by providing a blanket ban on prisoner voting rights. That ban was ruled unlawful by the European Court of Human Rights and that unacceptable position will be put right in Scotland by the bill.

Photo of Liam Kerr Liam Kerr Conservative

Does the member not accept that the position could be put right by having the same temporary licence qualification as they have done down south, rather than by providing for those serving less than 12 months?

Photo of Gil Paterson Gil Paterson Scottish National Party

No, I do not. It is a cop-out not to abide by the spirit of what was determined by the European Court of Human Rights. Sometimes, when I listen to Tory politicians, I wonder whether they have had a humanity bypass. We should be looking at prisoner voting rights even if there was no rehabilitation benefit—that is just how we should treat people.

Providing voting rights for prisoners who are serving sentences of no more than 12 months seems to be sensible, particularly when, as a society, we want our penal system to have rehabilitation at its core. In addition, most prisoners with short sentences are in prison because of fairly low-level crimes, and extending the franchise to them will have the effect of including them in mainstream society. That will, I hope, reduce the chances of them reoffending and will reduce our prison population.

I have to admit that I have changed my views over the past four years. Having said that, in my opinion, those who have been convicted of more serious crimes, particularly those of a sexual nature, violent crimes and crimes that harm people, have forfeited their right to vote.

The Scottish Elections (Franchise and Representation) Bill has been set at the correct level on both those issues. I therefore support the bill. I thank all the members of the committee for their solid work on the bill.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

We move to closing speeches. Every member who took part in the debate should be back in the chamber.

Photo of Neil Findlay Neil Findlay Labour

I thank the committee clerks and witnesses for their support and input throughout the initial stages of the bill. It has been an interesting bill at times and we have heard some interesting speeches and evidence.

On the extension of franchise rights to foreign nationals, the majority of the committee supported the proposals to extend the franchise to those resident in Scotland at the time of an election, and I agree with them. The principle—as other speakers have emphasised—that people who live in our country and contribute to our society should also have the right to influence politics and policies in elections to local government and the Scottish Parliament is the right one. Those bodies spend money and take decisions that affect people living here. It is a sound principle. Maureen Watt and Alex Rowley mentioned the principle of no taxation without representation, which is an old principle but one that stands the test of time.

However, questions were raised in the committee about the number of people who are likely to be added to the register, and we need to be clear about that, so that electoral registration officers and others can be prepared for that increase.

Although we want to widen democratic participation to foreign nationals, we must also look to expand the number of citizens in Scotland who register to vote across the board. As a result of the involvement of political parties, councils, Government, schools, colleges, youth groups and all manner of organisations, around 3 million people have been added to the register since the election was called. That is a very good thing and shows what can be done to widen participation if we take the right approach. However, voter registration and voter education campaigns require resources, commitment and personnel.

I know a number of youth workers who worked for councils and were extremely skilled. They did prize-winning projects with young first-time voters to get them on to the register and educate them about their responsibilities. Many of those youth workers have gone in the massacre of personnel that has followed all the cuts to local government. Councils have had to cut back on administration staff, communications professionals, advertising and much more. If the choice is between social care or education and voter registration, we know what is going to fall off the edge. Capacity and resource need to be put into voter registration if it is going to have a significant impact, and if the Government is serious about doing that, it has to fund it with real money.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

Regarding the comments that I made before, would Neil Findlay agree that the political language used by all politicians and parties is also extremely important in engaging people and in getting them to register to vote?

Photo of Neil Findlay Neil Findlay Labour

Absolutely. Politics is a robust business. The language that is used can get fiery at times and all members have been involved in that, but there are times when it can go too far.

Bill Kidd referred to the meeting that the committee had with a group of men and women from the refugee community. They were very keen to have both voting and candidacy rights extended. That was a very good and powerful meeting. Their evidence was excellent—I agree with Mark Ruskell, who said that they would make excellent public representatives. They were very articulate in expressing their views and it was a pleasure to meet them.

The Government has identified issues with extending rights to asylum seekers and has stated that only those with a legal right to remain should be enfranchised, but the Scottish Refugee Council commented that

“In its current format, the Bill draws an incorrect and uncomfortable association between people still in the asylum system and those who are living in Scotland without any form of leave to remain ... If the legislative intent is to ‘enfranchise citizens of all nationalities who are legally resident in Scotland’”.

The Scottish Refugee Council believes that it is inconsistent to exclude people who are in the asylum system, because asylum seekers have a lawful right to live in the UK while an asylum claim is pending. Eventually, many of those people will be recognised as refugees and will be given an extended period of leave to remain, although the decision-making process takes some time. Could the cabinet secretary address that point when he sums up? The SRC also points out that the Immigration Act 1971 is reserved. Could the cabinet secretary expand on any discussions that he may have had with the UK Government about that?

Photo of Gil Paterson Gil Paterson Scottish National Party

It is kind of Mr Findlay to let me in. In reflecting on what he said, I note that we heard evidence in the committee this morning from Pete Wildman, who is the chair of the Scottish Assessors Association electoral registration committee. He said that, presently, it is unworkable to administer the process to allow folk to vote. Does Neil Findlay agree that the Government should look carefully at ways to circumvent that, so that we can provide for folk to be able to vote?

Photo of Neil Findlay Neil Findlay Labour

We can put men on the moon; I am sure that we can organise elections and expand the franchise.

There is a wide range of views on prisoner voting; indeed, there is a wide range of views in all political parties, and in society. People take the view that all prisoners should get the right to vote or that no prisoners should. The committee took a lot of evidence from articulate and vocal advocates of various forms of prisoner voting. However, we heard very little evidence from the other side of the debate. That is not to say that it does not exist; it is just that the committee heard very little from it.

We have had very little evidence from the Tories for their oppositionalist position. The Government cannot ignore the ECHR, and the issue has been around for a long time. However, the Government’s position is just not credible. It is calling for prisoners who are serving a sentence of less than 12 months to be given the vote and at the same time seeking to end short sentences, which is giving with one hand and taking away with the other. The Government must think about that contradictory position. We are supposed to be in an era of evidence-led policy, so we should see the evidence for any proposal before we make a final decision.

Photo of Adam Tomkins Adam Tomkins Conservative

This has been a really good debate on a profoundly important issue. There is no more profound issue for a parliamentary democracy to debate than the right to vote, how we should frame that argument and how we should even think about and discuss the reform of the franchise.

During the afternoon, we have heard a number of well put together arguments for a liberal progressive view of franchise reform, with none being quite so articulate as that of Alex Cole-Hamilton.

I will try to put what I hope is a thoughtful Conservative view about franchise reform. I say to Mr Stevenson that there are thoughtful Conservatives, and Disraeli was certainly one of them. He was a key player in the 19th century moves to extend the franchise, which Mr Stevenson should not have overlooked in recounting the history. By the way, to correct Mr Stevenson—I love being able to correct him on a point of history—the first use of a secret ballot in the United Kingdom was in August 1872 in Pontefract, which is not quite what Mr Stevenson said—but there we are.

In the cabinet secretary’s opening remarks, he said that

“no franchises stand still” and that every franchise is

“and should be ... dynamic.”

I agree with that—it is entirely right.

We have heard that, throughout western democracy and globally there is a loosening of the link between citizenship and voting, and that that is part of the journey of modern human rights. Somebody mentioned that we started thinking about human rights in the enlightenment, although neither David Hume nor Adam Smith ever wrote about democracy or the right to vote—but never mind. However, when we started thinking about rights in the time of the enlightenment, we thought about them in the context of birth rights—rights that we had by virtue of where we were born. Of course, that is arbitrary and we have no control of it.

These days, we tend not to think about rights in terms of birth rights; we tend to think about them in terms of human rights or universal rights. That is what the Government wants voting to become in Scotland, and it has a point. It is a perfectly reasonable approach to modern franchise law to think that the way to frame the debate about who has the right to vote should simply be a matter of lawful residency. James Kelly talked about logic, and I have no difficulty in following the logic of that as a point of principle. However, I am not yet ready to give up on citizenship or to abandon entirely the old language of birth rights. Of course I believe in universal human rights. I believe in free speech, the right not to be tortured and all manner of prisoners’ rights, which Mr Kerr talked about.

Photo of Adam Tomkins Adam Tomkins Conservative

Let me finish this point, then I will happily give way.

Those are universal human rights that do not depend at all on where people are born. However, I still think that there are some things that I want to call rights, including the right to vote, that link to citizenship and do not extend merely to the thinness of residency. I have asked a number of members in the debate to say, if they do not accept that argument—I am not saying that everybody has to accept it—what value citizenship still holds for them. Mr Russell said that he did not want to

“go into a dissertation on citizenship.”

We do not have to get into a dissertation on anything, but it behoves us all to reflect on what it means for the future of citizenship in Scotland if we extend the franchise to everybody who is lawfully resident here.

Photo of Adam Tomkins Adam Tomkins Conservative

I have already said that I will give way to Mr Findlay.

Mr Rowley was kind enough in his remarks to say that, even though he does not necessarily agree with the point that I was seeking to make, there is a point to be made and something for us usefully to reflect on.

Photo of Neil Findlay Neil Findlay Labour

While Mr Tomkins was speaking about citizens’ rights, I checked and confirmed that, under one of its treaties, the European Union gives its citizens the right to vote and to stand in European and municipal elections. There are citizens’ rights that we have at the moment because of our EU membership.

Photo of Adam Tomkins Adam Tomkins Conservative

That is a very good point, which makes my point for me. When the European Union, at Maastricht, started to talk about the idea of union citizenship, what rights did it afford to citizens? It gave them the right to vote and the right to stand in elections. Those are rights that are linked to citizenship, even in EU law. They are not linked to nationality or to residency; they are linked to citizens.

If a Canadian citizen comes to an EU member state, no right in European law is conferred upon them, as a Canadian citizen, to vote in elections in Europe. That right appends to European citizenship. That is the point that I am trying to make.

Photo of Adam Tomkins Adam Tomkins Conservative

I will be happy to give way in a moment.

There is still room for an argument that the franchise is appropriately linked to citizenship and should not be extended to everybody who is lawfully resident in a territory.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I have followed Adam Tomkins’s very good speech, but it slipped for me when he mentioned European citizenship. There is no such thing.

Photo of Adam Tomkins Adam Tomkins Conservative

It was Mr Findlay who brought up European citizenship, and there is such a thing—it was introduced in the treaties at Maastricht. Very few rights are attached to it in those treaties, but the rights to vote and stand in elections are among them.

I will move on to prisoners’ right to vote. Again, I start with a point of agreement with the cabinet secretary. In his opening remarks, he said that we must be ECHR compliant and, of course, he is correct about that, as a matter of policy and of law.

However, the proposals to extend the franchise to every prisoner in Scotland who is serving a jail term of less than 12 months go much further than is necessary to comply with the European Court of Human Rights’ judgments on prisoners’ right to vote. I am sure that the cabinet secretary is right when he says that, if the provisions were challenged, the European Court of Human Rights would not find that they were disproportionate or irrational, and would find that they fell within the margin of appreciation.

I will close my remarks with a few brief reflections on the problem with the Hirst judgment.

The Hirst judgment is one of the worst judgments that the European Court of Human Rights has ever handed down. To start with, it is based on a false premise—which was, unfortunately, reflected in Alex Cole-Hamilton’s otherwise excellent speech. The false premise is that there is a blanket ban on prisoners’ right to vote in the United Kingdom, when there is not. Prisoners on remand and those who are in contempt of court are not excluded from the franchise, so it is not a blanket ban. It is a general exclusion, which the European Court of Human Rights has, in my view, wrongly found to be unlawful, but it is not a blanket ban. That is the first problem with the Hirst judgment.

The second problem—this point has been made by a number of Conservative members—is that there is, quite deliberately, no right to vote in the European convention on human rights. The job of the European Court of Human Rights in Strasbourg is to give effect to the words of the convention; it is not the job of the court to invent new rights that do not appear in the convention. Unfortunately, that is what the court did with the Hirst judgment.

The Deputy Presiding Officer:

There is no time, Mr Cole-Hamilton.

Photo of Adam Tomkins Adam Tomkins Conservative

The European court should not have done that—not least because there is no European consensus on the question of prisoner enfranchisement and, therefore, there was no respect in the Hirst judgment for the all-important margin of appreciation on which the convention system depends.

That is why, over the course of the 15 years since the Hirst judgment, the court has swithered on it, given up and backed down on it, in effect, and has never found that the United Kingdom’s repeated refusal to comply with that ill-considered judgment should result in any kind of damages that disenfranchised prisoners could seek from the United Kingdom or any Government within it.

That is why the United Kingdom’s approach to the issue, which is to give the right to vote to prisoners who are released on temporary licence, has been accepted by the Committee of Ministers, which is the enforcement agency of the Council of Europe.

That is why the Scottish Government is going much further than it needs to with this bill to give effect to the ECHR’s jurisprudence on prisoners’ right to vote.

Photo of Michael Russell Michael Russell Scottish National Party

This has been an interesting and varied debate: a great deal has been discussed during the afternoon and I want to cover as much of it as I possibly can. There were a huge number of issues raised, albeit that there are only two items in the bill. There has been a difference of opinion on each of those items—I suppose that that was inevitable in this chamber. However, let me see if I can bring together the areas of agreement first.

On the franchise, there is agreement by all parties bar the Conservatives that the reforms that have been recommended are a big step forward. They are a big step forward because they are inclusive. I shall come to Mr Tomkins’s helpful suggestion—although I disagree with it—on citizenship in a moment, but there is agreement among the parties that residence should be the qualification for voting.

I say to those who have tended to skate over the progress that the bill makes and to focus immediately on the one group that is still to be decided, do not let the best be the enemy of the good. I have made it clear that I would like to move on the issue of asylum seekers, but the bill makes enormous progress in other areas, so let us try to bank that progress, agree on it and get it to work, and if we can move any further in an area that will have many difficulties, let us try to do so. It would be wrong to throw out the progress that we can make for the sake of the one item on which we are not yet able to make progress.

I come to Mr Tomkins’s contribution on citizenship and residence.

Photo of Michael Russell Michael Russell Scottish National Party

No, I want to make progress.

Although I refused to go into a dissertation, I think that there is an issue to be discussed about the difference between residence and citizenship, if there is one. We can go into that as the bill progresses, because we might find that we can draw the Conservative Party into supporting the bill, which would be helpful to everybody.

The Deputy Presiding Officer:

I ask members to please cut down on the private conversations. It is getting very noisy.

Photo of Michael Russell Michael Russell Scottish National Party

I make two contributions to that process. The first is that I think that residence is a necessary, but not a sufficient, condition for citizenship. There is a relationship between residence and citizenship. Here, we are saying that residence is the qualification that we should look for for voting, but it is not necessarily the qualification that we should look for, for example, for international protection. The UK passport still says, “Her Majesty’s Secretary of State for Foreign Affairs”, etcetera, so there is an element, as there has been since the issuing of the first passports, of international protection, and there is a link to voting protection. Lyndon Johnson observed that

“A man without a vote is a man without protection”.

So, there is an issue of rights within the state, where residence takes place, which are protected by voting and may not be protected by voting internationally.

There is also the question of passing on citizenship. It was touched upon by Mr Tomkins and it deserves further consideration, but we have the possibility to explore it at stage 2. It is an issue that I think needs to be explored and it would benefit the committee and Parliament if we understood the relationships.

Another point raised was about money. I can confirm that there will be £280,000 for the Electoral Commission, the spending of which needs to be considered in terms of how we can drive up participation and reach parts that presently are not reached. I know that Mr Rowley, for example, raised that yesterday in the context of the Referendums (Scotland) Bill. There is a lively interest in the referendums bill and in the Scottish Elections (Reform) Bill, about the issue of turnout and participation. We should not see this bill as standing on its own in those areas, but should draw the bills together and see what the resources are to effect that with all relevant authorities working together—I have to stress the word “relevant” in the light of the discussion yesterday at the Finance and Constitution Committee. The point that Maureen Watt made about unconventional places where that might take place should certainly be considered.

I move on to the question of prisoner voting. It has been said repeatedly that the Scottish Government is overreaching here and that it could, in the terms that have been used, “get away with” doing less. I am not sure that any Government should try to get away with doing less if it believes that its position is based on principle.

As I stressed, our position is based not only on principle but on particular Scottish conditions. Twelve months is the maximum sentence that a judge can pass in cases heard without a jury. It is the threshold for the Government’s presumption against short sentences. It was the most favoured option of the periods on which we consulted, so there is a logic in that position.

Moreover, there are concerns about the position that the UK Government has taken. The current Committee of Ministers, which has indicated that it considers that the action taken meets the requirement of the Hirst court ruling, is a political body of the Council of Europe that is responsible for the oversight of the implementation of judgments. It is for the court alone to determine the requirements of the European convention on human rights. Although Mr Tomkins does not like the judgment, and has criticised it, the judgment stands. Government has to observe that judgment. What we heard from the Tory party—not from Mr Tomkins, but from another member—on defying the judgment was not wise.

We have to consider whether the UK Government’s current approach might withstand a court challenge. I will quote the Welsh Assembly’s Equality, Local Government and Communities Committee’s report, from 11 June, because I agree with the point that

“We cannot take lightly the concerns raised”— in evidence given to the committee—

“that the current approach by the UK Government of minimal compliance may not continue to be sufficient in the future. As legislators, we have to take very seriously the risk of failing to pass legislation that would be within competence.”

It has been said that the Scottish Government is attempting to overreach on that. We may in fact be pitching the proposal not just on the basis of the arguments for that proposal but on the fact that we wish to make sure that we could withstand a challenge in a way that the UK position may not be able to. There is no option on that matter—I want to emphasise that.

It was indicated that there might be an option on whether to do that. If the judgment stands, which it does, and this Parliament has responsibility for the franchise, which it has had for the past three years, we are obliged to make changes.

There is the question what those changes should be. If we consider that changes made elsewhere are not sufficient and would not withstand challenge, it would be wrong and irresponsible of this Government to put those forward as serious proposals.

We must make a proposal that we believe will withstand challenge, which is precisely what we are endeavouring to do with the 12-month proposal. That is the right proposal; it could and will withstand any challenge.

I will reflect on franchise reform. I am glad that Mr Tomkins agrees with me that franchises are dynamic and not static. I would not want to take a position in any dispute between Mr Stevenson and Mr Tomkins, but I have to say that the truth lies somewhere between the two of them. The Conservatives have certainly made parliamentary and franchise reforms in the past.

The Reform Act 1867 has been cited—that, of course, was under Lord Derby’s premiership and not Disraeli’s. However, that bill was introduced in one form, and, having been massively revised by Opposition amendments, it became a much bigger bill. Why was that? Apparently, it was because Disraeli believed that he could win an election based on a wider franchise. He lost the 1868 election.

The Conservatives repeatedly espouse reform when it benefits them. They opposed the great reform bill, because they considered that property is the basis of society and the constitution would be destroyed. They opposed further extension, until they thought that they would benefit from it. They opposed votes for women, until they thought that they would benefit from it. They still oppose proportional representation, except here, where they have benefited from it. They oppose voting by 16 and 17-year-olds and they oppose any meaningful reform of the House of Lords.

Today, unfortunately, they are opposing necessary changes to the franchise. They oppose changes to residents that would modernise the franchise and take us forward, recognising the contribution of all who live here, and essential changes that are required because of a judgment of the European Court of Human Rights. It is to be regretted that they still hold back on that point; if only I could persuade the Tories that the changes would benefit them, I think that they would jump to support them.