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Our next item is stage 3 proceedings on the Scottish Elections (Franchise and Representation) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings of amendments. I remind members—although I am sure that most will know by now—that the division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. There will be a 30-second vote at that stage; thereafter, the first vote after each group will be a one-minute vote.
Members should now turn to the marshalled list of amendments.
I am pleased that we have got to stage 3 of this brief but significant and important bill. I am glad that we have the opportunity to consider it this afternoon. It will be the first time that the Parliament has considered a bill that requires a supermajority, so this is another moment in Scottish parliamentary history.
I hope that we can have a constructive debate. Apart from two amendments in the name of Liam McArthur, which we will come to later, there are no substantive amendments on issues that were not discussed at stage 2. Therefore, we have a rerun. I know that some changes have been made, and that members will refer to them, but we have rehearsed the amendments at length, and I am sure that we will bear that in mind.
I am pleased that the bill extends voting rights to foreign nationals resident in Scotland. It is important to stress that those provisions have been widely welcomed by the Standards, Procedures and Public Appointments Committee and respondents to the Government’s consultation on electoral reform. This is not a minor matter; it is a major step forward.
Amendments 1 to 9 alter the bill’s description of the voting rights of European Union nationals to bring them into line with those of other foreign nationals. That is a consequence of Brexit having occurred following the bill’s introduction.
The requirements of EU law on voting in municipal elections by EU nationals are no longer applicable. The amendments recognise that following Brexit, some EU nationals living here will have leave restrictions that allow them to remain only for a certain period of time. It would not be logical for a person who should not legally be in the country to have voting rights; the amendments seek to put EU nationals on the same basis as those from all other countries. As a result, only those foreign nationals living here who have leave to remain will be able to vote in our elections, whatever their country of origin. That is a substantial step forward; it should not be diminished. It is worth bearing in mind here that the Republic of Ireland remains a special case: its citizens do not require leave to remain.
The question of leave to remain brings me to Mark Ruskell’s amendments 21 to 23. It might be helpful for me to remind members that the bill seeks to extend voting rights to those with refugee leave. It has sought to do so from the outset and that is a step that few other countries have taken. I am proud of the fact that that is in the bill that we are considering.
The Standards, Procedures and Public Appointments Committee considered whether we should go further by also enfranchising asylum seekers. It heard evidence on arrangements in Ireland where, uniquely, asylum seekers can vote and stand in local, but not national, elections. Vitally, the committee also heard about the practical concerns raised by electoral registration officers on how to accurately maintain records of asylum seekers with voting rights. The committee ultimately decided not to support Mr Ruskell’s proposals at stage 2—reluctantly. I have the greatest sympathy for those proposals, but there are huge practical issues that simply cannot be wished away.
Mr Ruskell’s amendment 21 seeks to assist electoral registration officers in registering foreign nationals. That might be supported if his other amendments were accepted, but I am not convinced that all the difficulties identified by the returning officers in enfranchising asylum seekers have been addressed. Although amendment 21 could in theory be used to assist with other issues involving foreign nationals, it would only really be of practical use in relation to asylum seekers.
Mr Ruskell’s lead amendment—amendment 23—seeks to simplify matters. It provides that voting rights would be conferred only until the point at which the asylum seeker’s application was determined. I would interpret that as ruling out any period in which an appeal was under way. That therefore seeks to respond to concerns about how electoral registration officers would know when an asylum seeker whose case has been refused should be removed from the register. I fear that the overall result would in fact not simplify but complicate an already complex situation. For example, an asylum seeker might remain at a property for some time after the initial determination of the case, so electoral registration officers would have to identify a person as an asylum seeker—which is not their job—remove them if the initial decision went against them and then re-register the person if they subsequently gained refugee status following an appeal. That would not be impossible, but at a time when we are asking returning officers to make other major changes, the integrity of the poll and the register would become an issue.
We are already asking electoral registration officers to administer prisoner voting in addition to voting for 55,000 to 60,000 foreign nationals. The enfranchisement of asylum seekers with a pending asylum claim would be a further onerous burden for electoral registration officers and their staff. The amendment would in effect require them to become experts or arbiters in immigration law—that is not something we can reasonably impose on those who are responsible for ensuring that the electoral register is accurate and up to date. The standards committee specifically called for the Government to consider how to make the electoral register
“as complete and accurate as possible.”
We must therefore listen, no matter how reluctantly, when it is suggested that enfranchising asylum seekers would damage the overall accuracy of the register and risk eroding public trust in the electoral process.
I share Mr Ruskell’s aspiration to have as wide a franchise as possible. We are bringing significant changes to the franchise in the bill. The bill represents a major step forward in welcoming many to our franchise, but, as I said at stage 2, Mr Ruskell’s further amendments risk making
“the best the enemy of the good.”—[
Official Report, Standards, Procedures and Public Appointments Committee,
16 January 2020; c 10.]
Therefore, reluctantly, I cannot endorse them.
I move amendment 1.
Yesterday, I hosted an event in the Parliament with an absolutely wonderful group of asylum seekers, who are part of our communities. I thank members from across the chamber for coming along to that event and engaging with those people. What struck me more than anything was that the right to vote is seen by asylum seekers as a fundamental human right. For many, it is as important as the right to work.
It is an acknowledgement of their very existence, that they have a voice and are valued. They see the right to vote as a powerful invitation to integrate with the community—it is a recognition that they are not alien, not other and are part of our community. How many of our fellow citizens value their right to vote in the same way? How many of us in the Scottish Parliament feel the same way about our right to vote? We have to find a way through.
So many asylum seekers are stuck in limbo and spend years in the system, but they continue to have a legal right to live in this country throughout the consideration of their asylum application. Those people are not illegally present in the UK, but can often be here for years while claims are considered. They are members of our communities, but they are isolated, unheard and, often, unintegrated.
“people who have been welcomed here as refugees and people who are going through the process of seeking asylum”.—[
, 23 May 2018; c 14.]
Recognising the concerns raised at stage 2, I have engaged with electoral registration officers to understand the practical, paperwork challenges of registering asylum seekers and I have sought to address them. We have had several engagements. Most recently, I received a letter from the Scottish Assessors Association, which says that the issues I raised with regard to asylum seekers are a matter of policy and therefore the Assessors Association does not offer a view on that matter.
The guidance from EROs is that it is a matter for the Government to consider and to find a way through as a matter of policy, rather than for the electoral registration officers.
The assessors are correct: it is a matter of policy. However, it is a policy that will have a series of significant bureaucratic and administrative challenges that need to be addressed before the Parliament can give effect to the policy intention that Mr Ruskell is seeking to support.
I do not often agree with Mike Russell, but the cabinet secretary made a series of detailed observations on the administrative challenges that the member’s amendments would pose for electoral administrators. We need to see what the member’s response is to those details before we can support his amendments.
Okay. I appreciate that intervention and I am coming to those points. However, the administration issues that we face in registering asylum seekers are not materially different to those arising from the registration of many other groups that the bill seeks to enfranchise. There are very similar issues and will come on to those a little bit later, if I am given the time.
People seeking asylum in Scotland will be able to meet the main tests for voter eligibility: they are present in Scotland; they have a Home Office recorded address; and they are lawfully resident in the country by the nature of having an outstanding asylum claim. That status already enables them to access health and education services. There is precedent in terms of the way that asylum seekers access services in our society.
The relevant amendments in my name grant the franchise extension to asylum seekers, but also allow for guidance to be issued, so that forms of identification issued by the Home Office can be used to prove identity. They tick that box.
Asylum seekers move their residency no more than anyone else does—and probably less often than students or those in privately let accommodation. The integrity of the register is no more of an issue for this group than it is for anyone else.
Once an asylum claim is rejected, within time, that person is removed from their registered dispersal accommodation. There is no need for EROs to determine the legal immigration status of an individual for whom documentation and their very existence in a residence in Scotland is proof of eligibility. The bill already guarantees that the temporariness of someone’s leave to remain in Scotland should not affect their right to vote in Scottish elections.
My amendments would merely extend to asylum seekers the rights that the bill already gives to citizens from outside the European economic area who may have similar immigration conditions.
Everyone who makes Scotland their home—for however long—should have a voice in our democracy. They should be equally valued, regardless of where they were born, integrated as new Scots from day 1, welcomed and respected. That is why I intend to move the amendments in my name.
The cabinet secretary’s amendments 1 to 9 have the effect of recognising and bringing into line European nationals and other foreign national voters in recognition of the UK’s departure from the European Union and the potential for different immigration positions that now arises. The amendments are a sensible recognition of the current situation and we will not oppose them.
Mark Ruskell’s three amendments—21, 22 and 23—deal with voting by people with certain limited residence. I am aware of his campaigning for those who are applying for refugee status. The arguments were largely covered by the committee at stage 2 and a number of the same issues still apply. The member has not addressed those suitably for us today, so we will not support his amendments.
I echo the cabinet secretary’s comments about the importance of the bill and what it says about the open, outward-looking and welcoming country that we wish to be. The Scottish Liberal Democrats will support all the Government’s amendments in the group.
Notwithstanding the concerns that have been raised by the cabinet secretary and Conservative members, I thank Mark Ruskell for lodging his amendments, which would allow asylum seekers with live applications, and their dependents, to vote. It is critical that asylum seekers are given a warm welcome from day 1 and that they are helped to live with dignity. That means sorting out the horrendous conditions that they can be housed in; it means letting them work instead of deliberately forcing them into destitution; and it means ensuring that trauma services are available without delay.
Applications can get stuck in the Home Office for years, even when a case is cut and dried and it is obvious that people are genuinely seeking refuge in our country.
As Beatrice Wishart put it—and she has been involved in many cases affecting constituents in the northern isles—languishing in the dark recesses of that department causes real detriment and disruption to those who are trying to rebuild their lives. While they wait, people can work and pay tax for a decade and their children can be on the verge of completing their schooling. They are part of our communities, and our voting system should reflect that. It should be compassionate and outward looking rather than say to people who are fleeing war and other horrors that we do not believe them.
On that basis, we will support Mark Ruskell’s amendments.
Scottish Labour will support all the amendments in the group.
The cabinet secretary’s amendments 1 to 9 are essentially technical amendments that improve the legal understanding and policy objectives of the bill.
The main contention is around Mark Ruskell’s amendments 21 to 23. The overall policy objective of the bill to extend the franchise to foreign nationals who are resident in Scotland and to prisoners—to which we will come later—is one that we support.
I have listened carefully to the speeches. Mark Ruskell and Liam McArthur have made good points about how asylum seekers should be welcomed into the country and how part of that should be an extension of the right to vote when there are pending asylum seeker cases.
The cabinet secretary seems sympathetic to that argument, but he opposes the amendments on the basis of practicality. The issue seems to be the collection of data and the updating of the appropriate register and information technology systems. It should not be beyond us, in 2020, to have appropriate technology in place to keep the register up to date.
I note what Mark Ruskell said about reflecting on the stage 2 concerns, and I am convinced by his arguments. Scottish Labour will support the amendments.
I have been strongly in favour of the bill and of what it seeks to do from the beginning, and I remain strongly in favour of it. It is a significant—in fact, a massive—step forward in changing the franchise.
Equally, as a minister, I cannot tell Parliament that it can wish away the problems that exist within the system, particularly when some of what is in the bill creates issues that would take returning officers time and effort to resolve. The advice is that adding further provisions to the bill would create additional difficulties that would be very difficult to resolve.
When we come to look at issues of candidacy, in relation to a later section, we will discover that some issues are out of this Parliament’s scope. Do I like that? Of course not. I do not want anything to be out of this Parliament’s scope. However, the reality is that I cannot recommend supporting things that are going to create difficulties and affect the register.
I return to the view of the Standards, Procedures and Public Appointments Committee. Its initial report says that the Government must consider how to make the electoral register
“as complete and accurate as possible.”
We will not do that if we agree to Mr Ruskell’s amendments.
I am not against asylum seekers. I know that nobody has said that the Government is against asylum seekers, but the implication that, because we cannot support the amendments, we do not support asylum seekers is utterly untrue.
I am trying to drill down into what the concern is. Effort was made to resolve the matter between stages 2 and 3. I am trying to understand why there is a difference between asylum seekers, who may leave a property, and somebody who is in a private rented property, who may move from time to time, or students, who may be in a property for a short period before moving on. Each of those groups affects the integrity of the electoral register, yet we are not saying that we should take away the vote from students or people in private rented accommodation because they might move every six months.
Their e ligibility does not change, but the eligibility of an asylum seeker may well change, and there will be a process that they have to go through. I do not like that. I would like to redraw the entire migration and asylum system. This Parliament should have the right to do that. However, under the present system, eligibility changes; therefore, there is an enormous difference between those groups of people.
Mr Ruskell also mentioned documentary proof. If we were to agree to his amendments, we would be asking returning officers to seek additional documentary proof from a range of individuals whom they must, first of all, identify. At this stage, that is simply not practical. Would it be practical in the future? Mr Kelly is absolutely right—no problem is insuperable. However, we are making major changes. The returning officers are already saying that they have major work to do, that they cannot do any more and that there are special difficulties in relation to this matter. I do not consider it to be a responsible position to ignore that.
Reluctantly, I say—yet again—that I cannot accept Mr Ruskell’s amendments. I wish that I could. If there had been more time to do it and if the returning officers had entered into additional discussion, maybe what he proposes could have been done. We have been through two stages of the bill, and we are now at the final stage. In the view of those who are most deeply involved, what is proposed cannot be done without affecting the integrity of the register; therefore, as the minister with responsibility for elections in this Parliament, I cannot recommend it to the chamber.
I ask members to support the amendments that I have lodged—I am glad that those have been welcomed—and ask them to take a responsible position in relation to the other issue. This is not something that we are happy about, but it is a fact.
Amendment 1 agreed to.
Amendments 2 to 8 moved—[Michael Russell]—and agreed to.
Amendment 21 moved—[Mark Ruskell].
The Presiding Officer:
The result of the division is: For 32, Against 87, Abstentions 0.
Amendment 23 disagreed to.
Group 2 is on eligibility for nomination, election and holding office in the Scottish parliamentary elections. Amendment 10, in the name of Michael Russell, is grouped with amendments 11 to 14, 24, 25, 15, 15A, 15B, 15C, 26, 16 to 19, 27, 28, 20, 20A, 20B, 20C and 29.
There is a connection between group 1 and group 2 in terms of eligibility, nomination and holding office, which I will come to in just a moment. However, I need to point out that this is a complex group of amendments, containing a number of different propositions in relation to candidacy rights.
It might assist members if I explain that the bill as introduced sought to extend candidacy rights only to those foreign nationals with indefinite leave to remain in the United Kingdom. I appreciate that that position might have appeared somewhat harsh in respect of individuals who have lived here for many years on the basis of a succession of two or three-year leave periods, which have been regularly renewed.
As I said in the debate on the previous group, I would like to see full control over immigration to Scotland rest with this Parliament. However, the fact remains that it is presently—I hope not forever—a reserved matter and we cannot wish that fact away. Nor can we legislate as though it is not true. That is a really important point. I would like to, but we cannot.
Following discussions on candidacy at stage 2, I wrote to the Home Secretary to explore whether we could come to an agreement so that employment restrictions could be waived for those seeking to stand or be elected to serve as councillors or as members of the Scottish Parliament. The question has—I have to say, without any surprise—thus far gone unanswered.
As things stand, allowing persons to stand for election who have no guarantee of being allowed to remain in the UK for the duration of their term of office, or even to polling day itself, presents an unacceptable degree of risk. However, I highlighted a number of areas at stage 2 where I considered that we could go further within the current immigration framework.
I explained in the debate on the previous group that the advent of Brexit required an adjustment to how the bill describes the voting rights of EU nationals. The same position applies in relation to their candidacy rights. As a result, amendments 10, 11, 16 and 17 seek to ensure that any EU national whose leave to remain in the UK has expired cannot stand for election in Scottish Parliament or local government elections. The committee highlighted the need to take action on that in its stage 1 report.
The amendments recognise that, following Brexit, some EU nationals living here will have leave restrictions that allow them to remain for only a certain period of time. It would not be logical for a person whose right to legally be in the country has expired to continue to have candidacy rights. As a result, the amendments seek to put EU nationals on the same basis as all others.
Amendments 12 to 15 and 18 to 20 seek to ensure that European Economic Area nationals with pre-settled status may stand in Scottish Parliament and local government elections and then hold office. The bill currently sets out candidacy rights for those with indefinite leave to remain, which will include EEA nationals with settled status, but not persons with time-limited leave. Persons are granted pre-settled status when they have not been able to evidence five years’ residence in the UK at the point of application. In many cases—even the UK Government says this—the individual will progress to settled status in due course. The amendments seek to provide candidacy rights during that pre-settled stage, which is a logical extension of the policy of maintaining the rights of EU citizens following Brexit. Amendment 15 makes the principal change in respect of Scottish Parliament elections and amendment 20 is the principal amendment in relation to local government elections.
Mr Ruskell has made two separate sets of proposals in relation to candidacy rights for those foreign nationals who are not already covered by the bill. One set of proposals is set out in amendments 15A, 15B, 15C, 20A, 20B and 20C. They envisage allowing the Scottish ministers to grant candidacy rights by regulation for Scottish Parliament and local government elections for certain categories of foreign nationals who have limited leave to remain. The other proposal, as set out in amendments 24 to 29, seeks to allow the Scottish ministers to grant candidacy rights to all foreign nationals with limited leave to remain but to set out exceptions by regulations. Logically, the two sets of proposals represent, in essence, an inclusive set and an exclusive set.
The law here is complex and I appreciate why Mr Ruskell has sought to present alternate options. However, the second proposal would be outwith the legislative competence of the Parliament. I return to what I said earlier. It would have a direct bearing on a reserved issue—the employment capacity of foreign nationals. I appreciate that the amendments seek to grant a power to exclude certain categories of persons in order to avoid encroaching on that reservation, but that is not how the law works. The power would come too late. The bill would already have trespassed into the reserved issues of employment capacity before we could exercise the power. I therefore have to invite Mr Ruskell not to move amendments 24 to 29, because they would move the bill out of scope and into a reserved area.
Mr Ruskell’s other proposal, which is set out in amendments 15A, 15B, 15C, 20A, 20B and 20C, seeks instead to allow ministers to extend candidacy rights by regulations to certain additional categories of foreign nationals with limited leave. As I have said, I remain sympathetic to the intention behind the amendments and I have reflected on them, but I have come to the conclusion that I cannot see a realistic circumstance in which we could actually use the powers. That is because we could only allow those who were not subject to a work or study restriction to stand, and we are unable to readily describe all those persons. As Mr Ruskell knows, to identify in regulations every category of persons with leave restrictions would be no easy task. It would also be like painting the Forth bridge; it would never be done. The list would have to be continually updated as the Home Office adjusted immigration categories or changed the law. Indeed, the Home Office announced details of a new system this very week.
I accept that some categories of persons with limited leave and no employment restriction would be easier to identify than others, but acting for them alone would raise serious considerations of fairness and equity. Suppose we allowed refugees to stand as candidates. Somebody in a much less clearly defined group, such as the spouse of a person who is here for a specific job, might well be able to raise a challenge that they were being treated unfairly.
I again recognise that Mr Ruskell’s intention is good, but his amendments are not practical propositions and one set of them would be exceedingly dangerous in relation to the competence of the bill. To adopt them would be to risk confusion. I cannot see the powers that they bestow ever being used while the immigration system, which is an area of near constant flux, remains reserved to Westminster. I know that I would have Mr Ruskell’s support were we to bring the immigration system home, and I want to do that, but we cannot legislate as if migration is already completely devolved, however much we would like that to be the case.
I therefore—reluctantly, but firmly—invite members not to support amendments 15A, 15B, 15C, 20A, 20B and 20C or the alternatives that have been proposed.
I move amendment 10.
I thank the cabinet secretary for those points. Having reflected on his views on amendments 20A,
20B, 20C and 29
, I will not move them.
I will, however, focus on the group of amendments that starts with amendment 15A.
I welcome the other amendments in the group that were lodged by the cabinet secretary to extend candidacy rights to one group who have a limited leave to remain, namely EU citizens who have pre-settled status. I have engaged with many such citizens within my region, and at public meetings with Ben Macpherson and Bruce Crawford. Those citizens are a valued part of our community and absolutely need to have candidacy rights, so I welcome the extension of those rights to that group.
However, the amendments lodged by the Government do not extend to people from outside the EU, who are in Scotland on a similar basis, with equally limited leave to remain.
Why should an EU national be entitled to stand as a candidate from day 1 of their arrival in Scotland, when a refugee from Iran would have to live in Scotland for five years, and successfully apply for indefinite leave to remain, before they had the right to stand? What is the difference between those people? They would both be resident in our communities. Why is one more fit than the other to stand for public office? I recognise what the cabinet secretary says about the immigration system being in constant flux. If only it were controlled by this Parliament; he knows my views on that. However, that is not an excuse not to work to the very limit of the powers of devolution, to give those people, who are part of our communities, the utmost rights to participate in our democracy.
I recognise the limits. I recognise that extending candidacy rights to asylum seekers would be difficult, given the restrictions on their ability to take up paid employment. For others, however, who are allowed to work, full participation in democracy, and a matching of the franchise with candidacy rights, should be the norm. I appreciate what the cabinet secretary says about the flux within the immigration system, and that it would require regulations, but surely we should take whatever action we can to enfranchise those people and to give them candidacy rights within our communities.
Group 2 deals with candidacy and elections.
The Government has lodged amendments 10 and 11, which will make provision for a European national whose leave to remain has expired, to lose the right to stand in elections to the Scottish Parliament. Similar arguments apply to amendments 1 to 9 in the previous group. I consider that the amendments do little more than recognise the position following the UK’s departure from the EU; therefore they are reasonable and we will not oppose them.
By extension, we will not oppose amendments 16 and 17, which address the same issue in relation to local government elections.
Amendments 12 to 15 and 18 to 20 recognise that EU nationals with pre-settled status would not lose the right to stand for and hold office within the Scottish Parliament and council elections. Those with pre-settled status will be resident EU nationals who have come to the UK and previously enjoyed the right to vote and to stand in elections to the Scottish Parliament and to local authorities. We do not seek to withdraw the existing rights that EU citizens resident here have enjoyed but, on this side of the chamber, we are also clear that voting rights for people with pre-settled and settled status should be replicated for British nationals who are resident in the rest of the EU.
For the reasons that the cabinet secretary has set out, and that I set out earlier when I voted in favour of asylum seekers having the vote, I have a great deal of sympathy for Mark RuskeII’s amendments in group 2. However, there are complications and unresolved issues that make it difficult to support Mr Ruskell on this occasion.
Voters deserve clarity when people stand: clarity that the person whom they are voting for has the right to work and take up the position to which they are elected; clarity that they will be able to serve the five-year term, because the system should not invite by-elections; and clarity that the person whom they are voting for can be paid in the same way as everyone else. I am not comfortable entrenching existing inequalities by asking people who already have disadvantaged backgrounds to somehow work for free. My colleague Christine Jardine MP has tried to change the law to give asylum seekers the right to work after three months, which would be a vast improvement and make a real difference, but that is still not the case.
There is also a significant danger that the Parliament would be acting outwith its competence. I expect that the Advocate General for Scotland would take a close look at Mark Ruskell’s amendments were they to be incorporated in the bill.
Many parts of the bill are very welcome and it is important that they are in place before the elections next year. I am reluctant to provoke another dispute like the one that we saw over the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, because it is not clear to me whether the changes that Mr Ruskell proposes would withstand a court challenge. On that basis, I cannot support Mr Ruskell’s amendments in the group.
Scottish Labour will support Mr Russell’s amendments in the group. We believe that they bring necessary legal clarity around candidacy rights. I note Mark Ruskell’s comment about the amendments that he will not move. I listened carefully to the arguments from both Mark Ruskell and Mike Russell in relation to amendments 15A to 15C and 20A to 20C, and I am persuaded by the cabinet secretary’s arguments, particularly on the issue of certainty for candidates. As Liam McArthur said, if voters are going to the poll, they have a right to expect that the person whom they elect will be able to fulfil that duty for the full term. In addition, the cabinet secretary makes valid points around legal competence.
Thank you. I will make three brief points.
First, Mr Ruskell asked me why I thought that an Iranian citizen was more fit to stand for election than a European citizen. I do not think that that is the case, but, as in the first section, there are two different categories of individual involved and we cannot exactly equate them in terms of this bill and what their candidacy rights would be.
Secondly, Mr Ruskell wants me to work up to the limits of the powers of the Parliament. I am very happy to work beyond the limits of the powers of the Parliament, but the basic point arises that if one tries to pretend that something is not the case, one cannot will it to be the case by passing legislation that could be challenged. That is the third point, and Mr McArthur and Mr Kelly have made a really important point. If the bill has within it items that could be challenged by the Advocate General, we would face a serious delay in putting it into practice. We hope that it will receive royal assent and then move forward, but a legal challenge would jeopardise our ability to implement the bill in time for the 2021 elections. We do not wish to do that, because the work is being done to put it in place.
In those circumstances, although I understand the argument, it is best that we move forward in a way that ensures that the bill can become law, should the Parliament support it later today—it is a supermajority bill—and begin to be implemented. I am glad that members will support my amendments, but, again reluctantly, I urge them to reject Mark Ruskell’s amendments.
Amendment 10 agreed to.
Amendments 11 to 14 moved—[Michael Russell]—and agreed to.
Amendment 24 moved—[Mark Russell].
The Presiding Officer:
The result of the division is: For 27, Against 92, Abstentions 0.
Amendment 28 disagreed to.
Amendments 20A to 20C not moved.
Amendment 20 agreed to.
Amendment 29 not moved.
Group 3 is on convicted persons who are detained in penal institutions and their eligibility to vote.
Amendment 30, in the name of Jamie Halcro Johnston, is grouped with amendments 31 to 35, 37, 38 and 40. If amendment 30 is agreed to, I cannot call amendment 31.
Amendments 30, 34, 35, 37, 38 and 40, all in my name, are largely straightforward and have been explored previously at stage 2. They would remove the existing provisions relating to prisoner voting from the bill and replace them with a proposal for minimum compliance with the European convention on human rights and rulings of the European Court of Human Rights.
I will not rehearse at length the arguments but, to go beyond what our legal situation necessitates, as the bill does, is to fly in the face of public opinion and it contrasts with the Scottish Government’s previous objections to prisoner voting. A similar objective has been achieved without the need for legislation through guidance for prison governors in England and Wales. Amendment 30 would bind the Scottish Government to taking forward the same measures.
I have taken cognisance of the cabinet secretary’s comment at stage 2 that my earlier amendment could be seen as tying the Scottish Parliament to possible future changes in England and Wales. Although it is my view that uniformity across the UK is a positive thing for the election franchise, amendment 30 would not tie the Parliament to any future changes made elsewhere.
Amendments 34, 35, 37, 38 and 39 are consequential on amendment 30. They remove the additional provisions regarding prisoner voting that amendment 30 would replace.
I will also comment briefly on amendment 31, in the name of Mark Ruskell. His proposal to extend the franchise to prisoners who are serving sentences of less than four years is a significant departure from the Scottish Government’s view that voting rights should be extended only to those who have committed less serious offences. To apply voting rights to those who are sentenced to less than four years would catch a variety of serious offenders and move far beyond what even the Scottish Government is proposing.
In amendments 32 and 33, Liam McArthur has lodged amendments that would seek to review the sentence length that is mentioned in the bill. Although I recognise that his inclination is probably to increase the sentence limit, the amendments do not make that presumption. They also allow for a review of the types of offence that the prisoner voting provisions apply to, which is an issue that I spoke about at the earlier stages of the bill. It is welcome that he has removed the provision that was in his stage 2 amendments that would have allowed change to the sentence limit to be brought about by secondary legislation. That would be an inappropriate power to pass down to secondary legislation. With the above in mind, we are minded to support those amendments.
I move amendment 30.
I am bringing back my amendment to extend prisoner voting to those who are serving sentences of four years or less because, at stage 2, a number of members voted against it on the basis that they did not think that there would be a majority in Parliament even though they supported it themselves. I would therefore like to put that to the test this afternoon by asking all members to come to a view.
“legislate to remove the ban on prisoner voting in its entirety.”
There will be members here today who signed up to that recommendation and who still believe in it. I am asking them to follow through with a more progressive extension of the prisoner voting franchise, which is in line with judgments from the European Court of Human Rights. To some members in the chamber—our friends on the Conservative benches—it might sound like a horribly radical step, but it was of course the norm for most prisoners to have the vote before 1969, so perhaps it is more about a return to traditional values. The Greens are the party of tradition, after all.
Mr Tomkins should recognise that a number of organisations that also work with victims, such as Sacro, back this approach as part of rehabilitation. To be honest, I want to sleep safely in my bed at night as well, and I want to know that prisoners have been effectively rehabilitated before they are released back into our communities. That means reintroducing a social contract with prisoners, which is why we need to see prisoner voting as part of a suite of measures.
Removing the right to vote from prisoners does not protect the public and it certainly does not punish criminal activity. If anything, it hinders rehabilitation, because taking away voting rights only weakens the individual’s stake in society and their respect for its laws. Organisations such as Sacro that work with offenders know what makes offenders tick and they know how to rehabilitate them. Those organisations believe that extending the prisoner voting franchise beyond one-year sentences is so important. If we are to continue to remove voting rights from prisoners at all, it has to be proportionate. That is the lesson from numerous legal cases that have challenged the validity of voting bans for prisoners who are serving more than one year.
If there is to be a cut-off, using the sentencing distinctions that are already in place is more proportionate. There is a clear distinction between short-term sentences of less than four years and longer sentences of more than four years. More than 85 per cent of homicides, rapes and attempted rapes result in sentences of more than four years. That is where the Welsh Assembly has drawn the line, and that is where we should draw the line, too.
Amendments 32 and 33, in the name of Liam McArthur, would kick the question into the long grass but would offer a lifeline should the Government face a likely legal challenge and need to revise the franchise in the future. Therefore, we will support those amendments.
Today, Parliament will hopefully take the long overdue step of putting an end to the illegal disenfranchisement of all prisoners. It has been clear for some time that stopping all prisoners from voting is not legal, fair, progressive or proportionate.
Five years ago, my former colleague Alison McInnes sought to do what amendment 31 is now looking to do. Accordingly, Scottish Liberal Democrats will support amendment 31. Although it may prove unsuccessful, I think that it reflects a belief that, welcome though the changes that we are seeing with the bill are, we will almost certainly need to go further in the future to ensure compliance with our human rights obligations. To that end, I have lodged amendments 32 and 33, which largely mirror the amendments that I lodged at stage 2, while also addressing the concerns that Jamie Halcro Johnston rightly mentioned about provisions being introduced through secondary legislation.
Both of my amendments make provision for a review of the legislation as it relates to prisoner voting: one for a more general review and the other for a review that specifically looks at the decision to base the franchise on the length of sentence, as opposed to the nature of the offence. That is because there has been no clear direction from the European Court of Human Rights on what exactly would ensure compliance.
We know that a blanket ban is definitely not okay, but rulings from the court have tended to make distinctions based on the individual case.
In the current context, having a future review to reflect on where the line is has the support of the Howard League Scotland.
Amendment 33 makes clear that actual compliance might be realised only with an offence-based distinction, which both the Howard League Scotland and the Scottish Human Rights Commission consider to be right.
That said, I recognise the concerns that the cabinet secretary raised today and at stage 2. I thank him for his engagement on my amendments since stage 2.
I welcome his support for the more general review that is proposed in amendment 32. I agree that the review would be more helpfully carried out when we have the evidence, not just from the next Scottish Parliament election but from the local authority elections thereafter. On that basis, my manuscript amendment 32A seeks to move the deadline for the review to 2023, rather than 12 months after the next “national election in Scotland”.
In relation to the other amendments in that group, I am conscious that the Scottish Human Rights Commission has made clear that
“the ECHR defines the floor rather than the ceiling of human rights protection.”
On that basis, Jamie Halcro Johnston’s amendments belong in the basement. There is no credible reason to reduce the scope of prisoner voting in the way that Mr Halcro Johnston proposes. If Scotland is to aim high on human rights, we should not follow that agenda. Therefore, the Scottish Liberal Democrats will oppose his amendments.
The amendments in the group deal with one of the central issues in the bill, which is the extension of the franchise to prisoners. That comes on the back of the 2005 ruling by the European Court of Human Rights, so the issue has been around for a long time. Therefore, it is correct for the Parliament to take a proper view on it. It is unsustainable to continue to ignore that court ruling. Scottish Labour supports the position that is set out in the bill for the extension of the franchise to those who are serving 12 months or less. That is right and proportionate. From that point of view, we do not support Mark Ruskell’s position of extending the sentence limit to four years.
I believe that Jamie Halcro—[
.] It is these double-barrelled names, you know? [
.] Jamie Halcro Johnston’s amendment seeks to introduce minimal compliance with the ruling of the European Court of Human Rights, but it does not respect it. If we are to be a modern and progressive Parliament, we must interact properly with that court ruling.
As I said, if we are to be a progressive and modern Parliament, we require to consider these issues as the evidence develops. I will develop that more in my stage 3 debate speech. The Government has done that, and Scottish Labour has looked at it, and the position that we have arrived at is correct.
There are issues and complexities around that. From that point of view, it is right to support amendments 32 and 33, in the name of Liam McArthur, which support a review once the legislation is implemented and we have seen how it operates during the course of elections. That would allow proper reflection, and then any appropriate changes could be made.
I will say a few words on eligibility to vote. I am concerned about the number of women in prison. Therefore, the one-year threshold fits with the way that I think, because I also think that some women are in prison who should not be in prison, because they have committed low-level crimes—crimes that they committed in order to feed their families. I am comfortable with the one-year threshold.
I am one of the switchers in relation to the four-year threshold. After taking soundings from various places, I have changed my mind, on the basis that four-year sentences would include people who have committed sexual offences—some of them serious. Therefore, in my view, that threshold is too high.
My understanding is that even crimes that have a sentence of up to one year would include people who have been convicted of sexual crimes. Therefore, even at the one-year threshold, we will be enfranchising people who have committed sexual crimes.
I appreciate that point, and I am glad that Mr Ruskell made it. However, this is about the seriousness of the crimes; serious sexual offences can come under the four-year threshold, whereas crimes under the one-year threshold are very low-level types of crime. That is why I changed my mind.
I understand Gil Paterson’s point. Sexual offences carry with them a range of sentencing and after-care support. However, at no point in sentencing for any crime—sexual or otherwise—is reference made to the franchise. It is an entirely arbitrary proposition. One could be sentenced to three years in prison for a crime and miss no elections, and could then be sentenced to three years again, for the same crime, but miss nine elections—as could have happened between 2014 and 2017. Having the franchise is not linked to sentencing, so why should it be linked to the offence?
Evidence at committee was that it is very difficult to have a level playing field—judges would have to make different decisions based on individual cases. That would take us back to the place that Alex Cole-Hamilton talked about, whereby some could, but others could not, escape the consequences of the same crime.
I support the changes that the Government is making.
As we have heard, the group of amendments encompasses two distinct proposals on how to achieve ECHR compliance in relation to prisoner voting. I will say a word about each in turn, before I turn to Mr McArthur’s proposal.
At stage 2, Jamie Halcro Johnston suggested that instead of designing our own distinct proposal, we should apply the guidance that is in operation in England and Wales. Amendment 30 seeks to achieve the same aim, but this time by express provision that would allow only prisoners who are on temporary release on licence on polling day to vote. Although the amendment would not tie us to future changes to Ministry of Justice guidance, as his previous attempt would have done, there are still many concerns.
The UK Government’s response to European Court of Human Rights case law on prisoner voting did not enfranchise any prisoners in custody; instead, it focused on clarifying how those who are on temporary release could exercise their existing voting rights. Parliament has to make its own assessment of what is the appropriate response, and to seek—as James Kelly rightly asserted—to strike the correct balance for Scotland. We have our own justice system, with different temporary-release rules, so we need to make our own assessment of what is needed for ECHR compliance, just as the Welsh Government, and every other member state of the Council of Europe, has done.
Many people have argued that the approach of the UK Government is inadequate. At the very least, we should consider the assessment of the Welsh Assembly’s Equality, Local Government and Communities Committee, whose report last June stated:
“We cannot take lightly the concerns raised that the current approach by the UK Government of minimal compliance may not continue to be sufficient in the future.”
Does the cabinet secretary accept that the Council of Europe—whose flag is still flown outside this building—has accepted that the UK’s “minimal compliance” is exactly that—compliance. The Committee of Ministers of the Council of Europe, having examined the United Kingdom Government’s response to the question, has closed its examination of the execution of the Hirst judgment, which means that the United Kingdom complies with international human rights law.
That is an interesting point. However, as a lawyer, Mr Tomkins knows better than I do that that compliance is not the same as surviving a challenge on the issue—and much opinion says that the UK Government would not survive a challenge.
Mr McArthur’s point about the basement was good. If the UK Government was challenged and fell, we would be in the same position. Mr Kerr is wrong: it is far better to have a position that we believe is resistant to challenge than to be in the position of the UK Government, which looks vulnerable to challenge. That is important.
Last August, I demonstrated our belief that urgent action is essential, when I made a convention compliance order to allow limited prisoner voting in the Shetland Islands by-election. I have repeatedly welcomed the unanimous agreement of the Standards, Procedures and Public Appointments Committee in its stage 1 report that the blanket ban is unsustainable, because it is at odds with the European convention on human rights.
The 12-month threshold that is set out in the bill is the Government’s considered response on the issue, which has been reached following consultation of and deliberation by not one, but two parliamentary committees. The proposal has a direct link to a key aspect of the Scottish justice system—the sentence threshold for courts that sit without a jury—and it was the option that had the greatest support in the consultation. I therefore invite members to vote against amendments 30, 34, 35, 37, 38 and 40.
Mr Ruskell’s amendment 31 seeks to enfranchise all prisoners who serve sentences of four years or less. I understand the arguments, and members will be familiar with them from stage 2. As I have just said, the bill’s proposal of a 12-month threshold has a solid grounding in the consultation and in our justice system, in terms of sentencing. It also ties in with our new presumption against sentences of less than a year.
In considering the thresholds, it might assist members to have some prison population data. On Tuesday this week, there were 811 prisoners who would have been enfranchised by the one-year threshold and 3,156 who would have been enfranchised by a four-year threshold, from a total population of 6,475 convicted prisoners in custody. I remain convinced—I was pleased to hear Mr Paterson confirm that he has changed his mind and now takes this view—that 12 months is the best choice, on the basis of the substantial nature of the changes, the consultation and the Scottish legal system. I therefore invite Mr Ruskell not to move amendment 31.
On Liam McArthur’s amendments 32, 32A and 33, I accept the merits of the case that he has put forward for seeking a route for further consideration of the test for prisoner voting. The bill is making an historic change, so I agree with him that a review would be valuable. I am grateful to Mr McArthur for accepting my suggestion that a review should be able to take into account experience not just at the coming Scottish Parliament election but at the 2022 local government elections. I will therefore be pleased to support amendment 32, as amended by amendment 32A, which will mean that the review report must be delivered by 4 May 2023. That will mean that both elections can be considered.
I welcome the fact that Mr McArthur intends to change amendment 32, which is focused on the threshold, rather than amendment 33, which raised the possibility of tying the test to specific types of offence. We considered that approach seriously, but as our consultation paper highlighted, two offences of the same type can attract substantially different sentences.
We will support amendment 32 and manuscript amendment 32A, and I invite members to do the same, but I cannot accept the other amendments in the group.
Although I am sorry that the Conservatives will be standing alone in the Scottish Parliament against prisoner voting, I believe that we do so on the side of the vast majority of members of the public outside Parliament.
Amendment 36 expands on an amendment that was lodged at stage 2 and relates to electoral meetings on the prison estate. The amendment has two main functions. The first is to ensure that candidates are not unfairly disadvantaged by not attending an election event on the prison estate. There are many conceivable reasons why a candidate may have objections to seeking votes in prison—for instance, he or she may have been a victim of crime. To have them placed at a disadvantage because of that objection would be wrong. The amendment would allow candidates to campaign in prisons only with the consent of the other candidates that they were opposing in their ward or constituency.
At stage 2, the cabinet secretary equated my proposals with the provisions in the Representation of the People Act 2000 regarding hustings and the use of community facilities. Amendment 36 is, in fact, quite different and reflects the unique circumstances that the bill will bring about.
As has been outlined, the bill will generally require prisoners to register to vote at their previous residences rather than in the constituency where the prison is located. The amendment takes account of that and applies a right to be informed of election meetings to candidates in the constituency where the prison is sited. Its key component is the requirement of the approval of all candidates in a constituency or ward for an election meeting to take place in a prison that any one of them proposes to attend.
That will effectively ensure that all candidates in a particular electoral race are satisfied before any sort of campaigning can take place in prison, ensuring that they are all on a level playing field.
The need to seek the agreement of all candidates on the regional list, which I recognise would be a burdensome threshold to reach, would apply only when a candidate was standing only on the regional list and not in a constituency. That would provide proper and fair protection for candidates who might not wish to campaign on the prison estate.
The second element of amendment 36 is the requirement that a risk assessment must be made of any such meeting on the prison estate. That would ensure that prison governors could take necessary steps to ensure the safety of all concerned, whether they were candidates, prison staff or prisoners. Elections can be emotionally heated, and it would be unsurprising if political or other election events became a focal point for crime and disorder in a prison setting.
Amendment 36 makes it clear that its provisions would extend only to candidates operating in furtherance of their candidacy in an election. It would not impact on elected members meeting constituents in prisons or erect any additional hurdles to supporting or communicating with people serving time in prison.
I move amendment 36.
Amendment 36 is a curious beast. It masquerades as being compassionate by drawing on the principles of the Representation of the People Act 2000, but, on closer inspection, it is nothing of the sort. There is no evidence in the Representation of the People Act 2000 of the right to veto political interactions with potential voters. There is precedent for regulation around the use of publicly owned spaces for electioneering and there is room for risk assessment and proper guidance to ensure that meetings that are held within prison spaces are safe and fair. Governors already have obligations in relation to the safety and integrity of what happens within our prisons. If further guidance is required, the Scottish Prison Service and the Electoral Commission would be best placed to address that.
In essence, like the amendments in the previous group, amendment 36 is a wrecking amendment and will not have the support of the Scottish Liberal Democrats.
I oppose amendment 36—[
The logic of the bill, which will be considered in full later, is that we are extending the franchise to include voting by prisoners, who will be an addition to the electorate and should be respected as such. That group of voters not only should be able to vote in an election but should be able to participate in the democratic process, and election meetings are an essential part of the democratic process. Amendment 36 is, in effect, a veto that would allow one candidate, by pulling out, to block the important process of democratic engagement.
Amendment 36 would not add anything to the important aims of extending the franchise and improving the democratic process that we are discussing this afternoon.
I have some sympathy with the points that Liam McArthur makes—the amendment is superficially attractive but there are huge issues beneath it. Mr Halcro Johnston lodged a similar amendment at stage 2, and I said at that stage that it sought to resolve an issue that is unlikely to arise but would risk creating uncertainty and a disproportionate burden on the Scottish Prison Service.
I appreciate where Jamie Halcro Johnston appears to be coming from. Hustings can be an intimidating process for any candidate, and I am sympathetic to the member’s concern for candidates who have been the victims of crime. However, I do not believe that seeking to mirror existing law on electoral meetings in schools or community rooms is either the solution or appropriate.
I think that Mr Halcro Johnston has misunderstood the bill. It is reasonable to assume that those who attend a community centre hustings reside nearby and are considering the same set of candidates, but we cannot make that assumption with prisoners, as they will largely be registered at their home addresses rather than at the prison address. It is true that the Scottish Prison Service has said that it will attempt to accommodate such meetings, but it should not attempt to administer them, particularly as the burden could be huge.
The amendment would compel prison governors to seek the consent of a range of different “relevant” candidates, depending on who requested the meeting. Under the amendment, if several different candidates made a request, the governor would be expected to check each constituency, ward or region in question, identify the relevant candidates and then set about obtaining the consent of every person before a meeting could be held. That would not be just four or eight candidates. Given that one prison could hold prisoners from anywhere in Scotland, it could involve governors writing dozens of notes of consent, which would be disproportionate. It is not appropriate for prison governors to be expected to identify and contact so many candidates in that way.
The proposed arrangements would not only cut across the agreement of prison authorities to engage but add a complex, unnecessary bureaucratic burden. I said at stage 2 that the amendment was unnecessary, and I remain firmly of that view. I do not support amendment 36.
The issues that the cabinet secretary highlighted come from his Government’s proposal to allow prisoner voting. It is a sensible amendment that would protect those people who—as has been highlighted—may not want to, but may feel obliged to, campaign in a prison should that option be put to them.
I press amendment 36.
Amendment 39 would require a review of the effect of the legislation to take place following the next election after its enactment.
The bill will make significant changes to the electoral franchise in regard to foreign national voters and prisoner voting. It will require new rules and working practices, and it will also make a substantial difference to how our democracy works in practice. It is therefore right that the changes be properly reviewed by the Scottish Government and that conclusions be brought before the Parliament.
The cabinet secretary has previously observed that the Electoral Commission will produce a report following each election to the Parliament. My amendment proposes a narrower and more in-depth review. It could, of course, draw on the findings of the Electoral Commission’s report, and it could—it should—be based on wide consultation with the Electoral Commission and other bodies.
The review would look at the effects of the bill and the changes that have been made. That would involve a full response from the Scottish Government on the bill’s effects, which would complement, not detract from, the report of the independent Electoral Commission.
Given the gravity of the changes that we are debating, I consider this to be an important step in ensuring that proper scrutiny of the proposals can be given.
I move amendment 39.
Once again, Mr Halcro Johnston is returning to an issue that he first raised at stage 2. I appreciate that he has revised his initial proposal, but I remain strongly of the view that amendment 39 is not only unnecessary but undesirable, given that it overlaps with the statutory role of the Electoral Commission. The role of the commission, as an independent body, is to review the conduct of the Scottish Government and local government elections. It is not the Government’s role to do that.
Looking back to the commission’s report on the 2016 Holyrood election, I see that there is detailed information on electoral integrity, public engagement, registration, turnout, candidates and electoral fraud. Those are the same issues that Mr Halcro Johnston is now seeking to require the Scottish Government to review.
Moreover, I am concerned that the proposal implies that the bill risks undermining the security of our elections. Election professionals, including the Electoral Commission and electoral registration officers, have been involved in the development and the implementation planning of the bill from its earliest stages. Our consultation received 268 responses before it closed, in March 2019, and those responses were analysed and considered throughout the policy development process. I can think of no particular reason why the enfranchisement of either foreign nationals or prisoners would have a detrimental impact on the security of Scottish elections, which is the issue that is being addressed.
In addition, through Mr McArthur’s amendments 32A and 32, the Parliament has just agreed—if the bill is passed, this will be definitively agreed—on a review.
For all those reasons, I cannot support amendment 39.
I am convinced of the need to support amendment 39. I appreciate that there cannot be a review of every piece of legislation, but, as we have seen in this afternoon’s debate, there are important complexities and material changes to do with the franchise. I do not think that we should be afraid of such a review. We should implement the changes confidently, but we should also check whether they have been implemented effectively and make any changes that are required.
We will support amendment 39.
The Presiding Officer:
That ends consideration of amendments. Members will be aware—they should be very familiar with this by now—that, at this stage, I am required under the standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, whether the bill will modify the electoral system and franchise for Scottish parliamentary elections. In my view, the provisions of the Scottish Elections (Franchise and Representation) Bill do relate to the protected subject matter of the persons who are entitled to vote as electors in an election for membership of the Parliament. Therefore, the bill requires—for the first time in the Scottish Parliament—a supermajority in order to be passed. That means that 86 members—two thirds of members—are required to vote for the bill for it to be passed at stage 3 at decision time.
I suspend business for five minutes, for a short comfort break.
16:01 Meeting suspended.
16:07 On resuming—