Prisoner Voting

– in the Scottish Parliament on 24th February 2021.

Alert me about debates like this

Photo of Lewis Macdonald Lewis Macdonald Labour

I remind members to observe the social distancing measures that are in place in the chamber and across the campus, including when entering and exiting the chamber and when accessing and leaving their seats.

The next item of business is a Conservative Party debate on motion S5M-24205, in the name of Liam Kerr, on prisoner voting. I invite members who wish to speak in the debate to press their request-to-speak buttons now.

Photo of Liam Kerr Liam Kerr Conservative

During the Shetland by-election in September 2019, the Scottish National Party used ministerial diktat to sneak through a change to the franchise and bypass parliamentary scrutiny, allowing prisoners to vote in that election. Then, last year, it pushed through a bill that allows prisoners serving sentences of 12 months or less to vote in Scottish elections. As a result, this May, the Scottish Parliament elections will be decided with the votes of convicted prisoners who are serving their sentence in Scotland’s prisons.

What does that mean for people who are watching? According to the Scottish Prison Service, 540 criminals who are now in prison will be eligible to vote, and the SPS notes that that figure could increase by polling day.

I know that the cabinet secretary is fond of a quotation, and here is a good one:

“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.”—[

Official Report

, 28 November 2019; c 93.]

The First Minister was perfectly correct when she said that in November 2019.

The latest statistics show that in 2018-19, nearly 10,000 criminals received a custodial sentence of 12 months or less. Let us interrogate those figures.

Photo of Liam Kerr Liam Kerr Conservative

I will not give way. Mr Arthur must let me make the point.

One hundred and nineteen criminals are currently in prison on a 12-months-or-less sentence for attempted murder or serious assault. Thirty-seven are inside for 12 months or less for sexual assault, and there was even someone convicted of homicide who was sentenced to 12 months or less in prison. All those people are eligible to vote.

Let us look more closely at some of those whom the SNP will enfranchise in May: a serial criminal who was previously convicted for attacking police and robbing a bookies and is imprisoned for 12 months for assaulting a prison warder; a convicted rapist who breached a sexual offences prevention order and is serving 12 months in prison for that breach; a criminal who, using racist language, threatened to kill lawyers and judges, obstructed police officers and spat in a police vehicle and is imprisoned for 12 months; and a criminal who is in prison for six months after threatening to kill a hotel porter who was doing his job, and then assaulting a nurse.

It is morally repugnant that those who commit such crimes should be granted the vote. It is not right, it is not fair and it is not just.

Photo of Tom Arthur Tom Arthur Scottish National Party

Liam Kerr is perfectly entitled to his view. However, I take issue with his suggestion that the SNP pushed through the change. As he knows fine well, changes to the franchise are protected under the Scotland Act 1998 and require a supermajority. How can he describe a vote of this Parliament by supermajority as the SNP pushing it through? Will he withdraw that statement, given that it is patently inaccurate?

Photo of Liam Kerr Liam Kerr Conservative

Mr Arthur’s summary is, indeed, a fact—as is the fact that the minister and his colleagues founded on a misunderstanding of the Hirst judgment in order to push the change through. I come to that judgment now.

I think that a lot of MSPs in the chamber agree with me, but they will seek comfort, as the minister does in his amendment, in their misunderstanding of the European convention on human rights. They think to themselves, “Look—I don’t like it, but we must do this to be compliant with the ECHR.” That argument is fundamentally flawed, because nowhere does the convention accord an individual right for prisoners to vote. Indeed, for 23 years, until the European Court of Human Rights sought to discover it in the Hirst case, in 2005, there was no such right.

I remind members that Professor Adam Tomkins described the Hirst judgment as

“one of the worst judgments that the European Court of Human Rights has ever handed down”, predicated as it is

“on a false premise ... that there is a blanket ban on” prisoners voting in the UK.

In November 2019, the minister himself reminded the chamber that

“Members who are familiar with the Hirst ruling know that the court allows member states a wide margin of appreciation” and that

“there is no one-size-fits-all approach to ensuring compliance”.—[

Official Report

, 28 November 2019; c 98, 64.]

That margin is part of our law. During consideration of the Scottish Elections (Franchise and Representation) Bill, the Law Society of Scotland made it clear that

“the franchise of prisoners may be restricted, provided that the restriction is proportionate to” achieving

“a legitimate aim”, such as

“enhancing civil responsibility and respect for the rule of law”—[

Official Report, Standards, Procedures and Public Appointments Committee,

19 September 2019; c 14.]

and avoiding sanctioning law-breaking conduct.

That is why the United Kingdom’s solution to the Hirst case—to give the right to vote to prisoners who are released on temporary licence—has been accepted as a solution by the Committee of Ministers, which is the enforcement agency of the Council of Europe. That is why the European Court has never found that the United Kingdom’s refusal to comply with that ill-considered judgment should result in any kind of damages for disenfranchised prisoners from the United Kingdom or from any Government within it. That is why this Parliament is not, and never was, required by the Hirst judgment to enfranchise prisoners.

There should be no doubt that any member who votes to enfranchise prisoners at decision time tonight will not be required by any law or legal principle to do so, because compliance with Hirst can be achieved by going no further than what the rest of the UK does. I appreciate that there are members who understand that, but believe that rehabilitation prospects are increased by giving prisoners the right to vote. They make that suggestion on the supposition that participating in elections is likely to encourage prisoners to become responsible, law-abiding citizens through what the minister has called “active citizenship”.

In a debate last year, Alex Rowley said that policy should be driven by evidence. I could not agree more. When the bill to which the minister’s amendment refers was debated and passed, neither he, nor any member of the Parliament, adduced a single shred of evidence to suggest that giving prisoners the vote increases the prospects for rehabilitation. There is nothing to that effect in the Audit Scotland report on “Reducing reoffending in Scotland”, nor was such evidence given to the Equalities and Human Rights Committee, which included in its report the following quote in evidence from a criminologist who has studied the issue:

“I have not found evidence to say that the introduction of prisoner voting will lead to a lower rate of recidivism”.—[

Official Report, Equalities and Human Rights Committee,

25 January 2018; c 12.]

I predict that the final refuge of those who seek to justify giving prisoners the vote will be a plea based on some form of right to vote, but I ask them to reflect on this. 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 this 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?”

When I walk out of the chamber after decision time tonight, I will look victims and their relatives in the eye and say that my Conservative colleagues and I voted to ensure that no individual who is serving a prison sentence should be allowed to vote in the 2021 Scottish Parliament election. My conscience will be clear. Will members of the other parties be able to say the same?

I move,

That the Parliament believes that no individual serving a prison sentence, including criminals convicted of serious assault, robbery and sexual offences, should be allowed to vote in the 2021 Scottish Parliament election.

Photo of Michael Russell Michael Russell Scottish National Party

Again and again, the Conservatives come to the chamber and denounce the choice of topic for a statement or a debate. It is therefore ironic that they have chosen to give up an hour of their debating time—virtually their last hour of debating time this session—for a naked political gesture that is as cynical as it is hollow.

As we have just heard, this debate has nothing to do with justice or democracy or even fairness; it has to do with trying to shore up the core hard-right vote in Scotland, and it is a sign of Conservative desperation.

The Tories know full well that we cannot overturn legislation of any sort, let alone legislation passed by a supermajority, with a single-sentence motion debated for an hour on a Wednesday, four weeks before dissolution. No matter what happens today—[


.] No, I will not take an intervention; I just want to make this point, because it is essential that we say what the situation is.

No matter what happens today, even if the motion were to be passed, it would be a meaningless, empty gesture, and the Tories know that. That is an abuse of the Parliament. If the Tories were in any way serious about this issue, as opposed to just exploiting prejudice, they would have come here with a new bill to reverse the change. That is what it would take, and they know that. However, that is not what they have brought, and they know that, too.

Photo of Elizabeth Smith Elizabeth Smith Conservative

For the cabinet secretary to talk about “abuse of the Parliament” this week is a bit rich.

Is the cabinet secretary aware of the most recent YouGov polling, which shows that two thirds of the public want our point of view?

Photo of Michael Russell Michael Russell Scottish National Party

I am aware of two things. One is the cynical exploitation of a range of issues this week by the Conservatives. I am familiar with that, it is a disgrace, and they will pay the price for it. Secondly, I am fully aware that, when the issue is explored and discussed properly, people tend to be on the side of fairness; they do not tend to be on the side of prejudice.

Let me carry on with what I was saying. The Tories would have had to bring an emergency bill to the chamber. They have known what the situation is for a year, but they have brought the matter here this week. Such a bill would require a process to be implemented, and it would be only the second-ever bill, and the only ever emergency bill, to need a supermajority.

What message would that bill send out to the people of Scotland? First, that the priority of the Tories was not Covid, education or health, but themselves and their hard-right views. Secondly, it would send a signal about our willingness to welcome short-term prisoners back into society and about the Parliament’s concern for human rights and the rule of law, which is something that the Tories pretend to support when it suits them. It would trample all over the Gould principle, which argues that changes to electoral law should not be made less than six months ahead of an election—something that the Tories regard as sacrosanct in other circumstances.

Such a bill would send the very odd message that the Parliament might be willing to radically change its mind on an issue that it endorsed by an emphatic margin just a year and four days ago. In fact, it was not pushed through; it was passed by 92 votes to 27, with all the parties voting for it except the Conservatives. It would involve a tiny number of people. There were 643 prisoners in custody serving a sentence of 12 months or less two days ago. Many of those people will not register to vote, due to the length of their sentence or to an unwillingness to do so.

Such a bill would negatively impact on electoral registration officers, who are busy processing large numbers of new postal-vote applications as a result of the pandemic, thus—[


.] No, I will not give way. Thus, it would make the operation of our democracy harder.

Finally, and most dauntingly of all, such a move would resurrect the incompatibility with the European convention on human rights that inspired the Scottish Elections (Franchise and Representation) Act 2020 in the first place and, in so doing, it would put Scotland back at severe risk of significant penalties.

The franchise was extended to prisoners serving sentences of 12 months or less by the will of the Parliament, by 92 votes to 27, on 2 April 2020. The bill that led to that change was passed under the supermajority procedure. It was the first and, so far, only bill of this Parliament to require that majority. It was not pushed through; it was democratically decided. The view of democracy that the Tories give is a sham, and it should be shown as a sham.

Before the change, the Government conducted a consultation, in which only a third of respondents opposed permitting any prisoners the vote. The Standards, Procedures and Public Appointments Committee took evidence on the bill and unanimously concluded that

“the blanket ban on prisoner voting is unsustainable as it is at odds with the European Convention on Human Rights.”

I will lean on legal opinion, not on the opinion of Liam Kerr, who, I have to say, has set himself up against the entire body of jurisprudence on the matter and expects us to believe him.

The Tory motion—[



Photo of Michael Russell Michael Russell Scottish National Party

I will give way—not because Jamie Halcro Johnston shouts from a sedentary position, but because I am interested in seeing how much more arrogant Mr Kerr will become.

Photo of Jamie Halcro Johnston Jamie Halcro Johnston Conservative

On a point of order, Presiding Officer. Yet again, we find ourselves in a situation in which the cabinet secretary is using what I would consider disrespectful language towards a member of this Parliament, who is entitled to make their points, as is the cabinet secretary. Presiding Officer, what is your opinion on whether describing a member as arrogant is acceptable language?

The Deputy Presiding Officer:

I remind all members of the need for courtesy in their use of language when referring to one another in the chamber.

Photo of Liam Kerr Liam Kerr Conservative

I am grateful to the cabinet secretary for taking the intervention. When giving criminals the vote, why did the SNP Government go further than it was required to go under Hirst?

Photo of Michael Russell Michael Russell Scottish National Party

It did not go further than required. It put in place a sensible solution that has been used elsewhere. I cannot account for the fact that Mr Kerr seems to regard himself as knowing more than the entire European Court of Human Rights. I cannot account for it, but I can tell him that he does not. I hope that that is not disrespectful, as it is a fact.

The Tories’ motion is not about “cons voting”, as their weekend pre-publicity put it. It is actually a con on the people and voters of Scotland and this Parliament, and it is a very cruel con on victims, because it tells them that something that cannot happen, can happen. There is no way that the motion can bring about a change in the law. If that is what the Tories are promising victims, they are guilty of a cruel hoax, and they should apologise for it. I can look victims in the eye and say that; I hope that the Tories can apologise for their false prospectus.

The Deputy Presiding Officer:

Please draw your remarks to a close.

Photo of Michael Russell Michael Russell Scottish National Party

My amendment rightly wipes out the offensive motion and replaces it with the facts of the matter. I hope that my amendment will be supported across the chamber today, perhaps even by those Scottish Conservatives—and there will be some—who recognise the shameful nature of what one of their leaders has forced them to bring here today.

I move amendment S5M-24205.1, to leave out from “believes” to end and insert:

“recognises that the extension of voting rights to some prisoners was introduced to comply with a ruling from the European Court of Human Rights that a blanket ban on prisoner voting breached the European Convention on Human Rights; notes that, under the Scottish Elections (Franchise and Representation) Act 2020, passed with a two thirds majority on 20 February 2020, the franchise was extended to those serving a custodial sentence of 12 months or less, and that similar actions have been taken in other parts of the UK and widely across the world, and believes that it is for the Scottish Parliament to take the action that it considers necessary to comply with human rights obligations.”

Photo of Rhoda Grant Rhoda Grant Labour

It is obvious that there is an election in the offing. Today’s debate is, sadly, a waste of all our time. Prisoner voting was debated and voted on in this Parliament only a year ago, and there is no evidence that the matter requires review. Even if there was a need to review it, the Conservatives know that there is not enough time in this parliamentary session to do so.

The Scottish Labour Party believes that we must abide by our obligations under international human rights conventions, regardless of whether they sit comfortably. The history of the matter is that, in 2005, a case was brought by John Hirst, a British prisoner who had been convicted of manslaughter. The European Court of Human Rights ruled that a blanket ban on prisoners voting violated the ECHR’s provisions on the free expression of opinion in elections. Crucially, the court found that considerable lawful restrictions could be placed on the enfranchisement of prisoners but that a test relating to the duration of the sentence or the severity of the offence had to be applied. Restricting voting to prisoners serving one year or less not only ensured that we were not open to legal challenge but, importantly, recognised that, for more severe crimes, civil freedoms must also be restricted.

The primary purpose of imprisonment is to protect people and communities from offending behaviour. Prisons are also used as punishment for crimes by restricting freedoms. However, punishment is a secondary concern, and the first must be the protection of victims and communities. Therefore, imprisonment for crime must also be used to stop offending behaviour by ensuring that the convicted person addresses and changes their behaviour, and is fit to return to society without risk to the public. That approach also enables them to contribute positively to society. Voting can be seen as a right but also as a privilege and as a responsibility to society—a duty to elect a Government that looks after our collective interests and runs the country. To be encouraged to vote—to take that responsibility—can be seen as a step towards rehabilitating offending behaviour.

The Conservative Party has long attempted to brand itself as the party of law and order. Yesterday, its members voted against an instrument that reduced the hours that are required in the fulfilment of community work orders. They think that that will portray them as being tough on crime. However, on the most basic analysis, their logic is flawed. The alternative that they appear to want is that, despite Covid-19 restrictions, those work orders should be completed, putting at risk the lives not only of those who are serving the orders but of those they work with and of those who oversee the completion of those orders. Perhaps Conservative members would prefer that those orders became unworkable and that more people end up in prison, when that is patently not the right place for them.

Photo of Liam Kerr Liam Kerr Conservative

I am interested in the member’s characterisation of that. If she truly believes in rehabilitation, how can she support the cutting of 300,000 unpaid work hours that are supposed to rehabilitate criminals?

Photo of Rhoda Grant Rhoda Grant Labour

Liam Kerr was at the Justice Committee and heard the questions that I asked of the Cabinet Secretary for Justice about ensuring that the work that went towards rehabilitation was carried out, that support was still in place and that alternatives to physical work should be considered.

Scotland already has the highest prisoner population rates per head in western Europe. Overcrowding is already at dangerous levels and is absolutely unsafe during Covid-19.

In a pandemic, there are much more important things for the Conservatives to debate. It is incredibly frustrating. We could be debating the help that is available to businesses to get them through the pandemic. People who are losing their livelihoods will wonder what on earth is going on—and who could blame them?

The truth is that the pandemic and its ensuing poverty will cause devastation in our communities. It is damaging mental health and it is deepening inequalities and deprivation—the very social drivers that we know can increase criminality. We should be using the time to debate how we stop that from happening; how we deal with the mental health issues that lead to offending; how we prevent desperate people from choosing between survival and legality; and how we create a society in which we no longer need to have overcrowded prisons.

We must rebuild a fair and just society. That is what Scottish Labour is interested in, and I believe that it is what the public are interested in, too.

Photo of Liam McArthur Liam McArthur Liberal Democrat

The Conservatives’ motion rings a bell. That is because Liam Kerr and his colleagues have previous. In the run-up to the general election in 2019, the Tories chose to spend their debate time pitching proposals for whole-life prison sentences. That debate, like this one, had nothing to do with improving community safety, the lives of victims or even the small matter of operating within the realms of what is legal. Then, as now, it was not due to a lack of things to focus on even in the justice arena alone—from overcrowded prisons that are rife with Covid to an underresourced police force that is facing its own issues around mental health. The sole purpose of both debates is to posture and grandstand ahead of an election, with no hope, intention or expectation of delivering change.

The Parliament should be looking towards recovery and new ways of doing things better, in justice as in every other area of policy, but the motion speaks to the tired old political logic that, by blowing the dog whistle—making unsubstantiated claims that are based on fear, not fact—votes will come running. Liam Kerr needs to ask himself whether that has any credibility. The public understand that our communities are safer when we invest in smart justice. They understand that a vote is a voice and that having a voice matters to people. They understand that imprisonment should be a chance to give people who have done wrong the opportunity to do right in the future.

That is why the Parliament was right when it overwhelmingly supported a change in prisoner voting rights, as the cabinet secretary rightly reminded us. The previous blanket ban was not fair, progressive or legal, nor did it help rehabilitation or make our communities safer. If we are to reduce reoffending, we need to make people more aware of their responsibilities as citizens, not deepen their sense of alienation. The language that Douglas Ross has used in this context has been illogical and irresponsible. Canada, Ireland, Denmark and the Netherlands all offer voting rights to prisoners—strangely, those democracies remain intact.

For people who care about the rule of law, the motion is a wolf in sheep’s clothing. A blanket ban on prisoner voting would break the law. As with the debate on whole-life sentences, the Tories are asking the Parliament to agree to something that breaches the ECHR. Liam Kerr knows that, and Douglas Ross knows that. As I said, Mr Ross and his colleagues have previous when it comes to wanting to sidestep judicial rulings.

Moreover, in the midst of a pandemic, when our businesses, schools and health services are crying out for help, there are more pressing issues that the Tories might have chosen to debate. Then again, some people in the Conservative Party will always make time to bash out a tired old tune on the trusty old dog whistle.

Scottish Liberal Democrats reject the regressive, evidence-free and counterproductive approach that Liam Kerr proposes. We will support the amendment in Michael Russell’s name.

Photo of John Finnie John Finnie Green

The election of a dishonest, racist and misogynist leader, the UK Prime Minister, might suggest that Tories believe in redemption and the power to change. We know that that is not the case. Tories are about privilege. Tories are about building barriers and devising bogeymen. Tories are about contempt for human rights. Tories are about disregarding Scotland’s Parliament, ignoring uncomfortable evidence and continually spouting negativity. Scotland’s Tories are about undermining Scotland’s institutions and the people who work for them.

There are three facts in the Government’s amendment. It is a fact that voting rights were extended

“to comply with a ruling from the European Court of Human Rights”.

It is a fact that the legislation that provided for the extension of voting rights enjoyed super-majority support—and that that was the will of the Scottish Parliament, for which the Tories often purport to have regard. It is a fact that

“similar actions have been taken” elsewhere. It is also certainly the case that the Scottish Parliament will

“take the action that it considers necessary to comply with human rights obligations.”

The Scottish Conservatives are the nasty party—the party of the rape clause, the party of austerity, the food bank party—and they are proud of it. Tories belittle alternatives to custodial sentences and therefore those who work in our criminal justice social work departments and their third sector partners.

Scottish Greens believe in a criminal justice system that seeks to prevent crime by addressing one of the principal causes of crime: poverty. Tories create poverty, and they blame and place no value on the people who are in poverty. South of the border, the Tories—the so-called law and order party—hand out public contracts to their mates and donors, with no procurement process and no need to give a contract for ferries to a ferry company, and then smirk when they are found out by the courts, which they hold in contempt anyway.

Tories know nothing about compassion. Tories know nothing about rehabilitation. We need only read their words on drugs. Tories care nothing about the rights of children and the evidence of harm. Their stance on equal protection for children is simply shameful.

I value shrieval judgment in Scotland.

Photo of Liam Kerr Liam Kerr Conservative

On a point of order, Presiding Officer.

I would welcome your guidance; I am wondering whether the member will bother to address the motion at any point in his speech.

The Deputy Presiding Officer:

This is an opening speech in the debate, and I expect Mr Finnie to address the motion.

Photo of John Finnie John Finnie Green

That is what I am doing, Presiding Officer.

I value shrieval judgments in Scotland and rulings of the European Court, not the rantings of Mr Kerr about his understanding of those rulings. We want robust, well-resourced alternatives to prosecution and custody and an end to ineffective short-term prison sentences that give people have little chance of doing constructive work. We want participative and inclusive democracies—and we know that the Tories do not like Johnny Foreigner voting either; they want to roll back the franchise even further.

We should be encouraging every jailed father to vote in a local authority election where the education of their child is an important issue. We should be encouraging every inmate with a history of addictions to vote, given the funding decisions that are made about addiction services. Such services are a key issue.

A casual observer might think that the Tories have called it wrong in this debate, but they know exactly what they are doing. They are separating themselves from others, away off to the right. Let us, in Parliament, distance ourselves from that unpleasant group of hypocrites and reassert our view. It is not that long ago that we valued human rights and the work of our prison staff. We believe that rehabilitation is a key element of human rights, and voting has a role to play in that.

The Scottish Green Party was and remains fully behind the franchise and representation legislation that was passed just a year ago. We will support the amendment in the name of Michael Russell at decision time.

The Deputy Presiding Officer:

We now move to the open debate. I remind members that we are tight for time—there is a strict four minutes for speeches.

Photo of Elizabeth Smith Elizabeth Smith Conservative

I am strongly opposed to prisoner voting and have been for a long time. I hope that my decision is based on careful consideration of both sides of the argument, not on arrogance, a lack of compassion or nastiness; neither is it a knee-jerk reaction.

That careful consideration is, to my mind, important; so, too, should be scrutiny in the Parliament, and the Scottish Conservatives will make no apology for restating our case in this party business debate.

There are two key aspects to the debate: what might be termed the more philosophical approach and what might be seen as the more practical approach often identified by the public. Both of those approaches come together in the view that those who have committed a crime have not only broken the social contract in philosophical terms, but put themselves outside the law voluntarily, having chosen not to value the privilege of citizenship and civic virtues. As such, they should be denied the opportunity to decide who will make the laws for the time that they are in prison.

Disenfranchisement reinforces society’s denunciation of criminal activity, which is what leads many in society to believe that prisoners cannot be trusted to respect the will of the people and abide by the law. Incarceration is a period of removal from the normal freedoms and privileges of society, such as personal liberty, the right to privacy, and some freedoms of speech and expression. Weakening those privileges is the aspect that most fuels public anger.

As Liam Kerr rightly said, there are serious criminals in prison serving 12 months or less who might well end up voting in the next election. It is not just their victims who are angry about prisoners having the vote; the public at large feel that it is inherently unfair and wrong that prisoners are permitted to vote. I am sure that that is why—this was shown in the latest YouGov poll on the issue—63 per cent of people are against prisoners having the vote. Of course, that is about the same percentage who believe that the current justice system does not hand down sentences that fit the crime.

Many people argue that prisoners deserve a second chance, and that permitting them to vote provides them with the necessary respect and responsibility to prepare them for the outside world once they have served their time. For me, that is a privilege that should be accorded only once they have demonstrated that they have again become law-abiding and upstanding citizens. In any case, there is no evidence to tell us that prisoner voting cuts reoffending rates. If there was convincing evidence of that, that might have greater influence on the debate.

I accept that it is important to distinguish between those who have served their time and those who are still in prison. Once an individual has completed his or her sentence, he or she should be free to participate in public life again. This whole debate is a balance between citizenship and redemption, that is why former prisoners should immediately be handed back their citizenship and freedom once they have served their sentence.

Voting in elections is a democratic right, but it must be earned; it is not a given right in every circumstance. Voting is about having a stake in society and allowing prisoners to vote would mean that politicians were arguing that criminals have the same right as others to elect those who make the law. In my book, that cannot be right, and I do not think that many members of the public—or even many members in the chamber—think that that is right. Indeed, I think that many members of the public will seriously question in May why prisoners should be free to vote from their cells when many other people will be making huge efforts to attend a polling station.

I am utterly convinced that prisoners should not be voting, and I whole-heartedly support the motion in the name of Liam Kerr.

Photo of Rona Mackay Rona Mackay Scottish National Party

In my opinion, the Conservative motion that we are debating is both surprising and baffling. I associate myself with the remarks made earlier by Rhoda Grant, Liam McArthur and John Finnie.

The motion is surprising because, as we have heard, the issue of prisoner voting was decided by a supermajority in the Parliament last year. To revoke that now would be incompatible with our human rights obligations—which the Conservatives undoubtedly know, despite Liam Kerr’s spin on the Hirst case. The motion is baffling because it throws into question the Conservatives’ whole attitude and approach towards building an effective, rehabilitative justice system that is fit for the 21st century, which is the aim for which most countries in the world now strive.

Prisoner voting has focused on human rights as an important part of the rehabilitation process. Similar action on prisoner voting has been taken in other parts of the UK, and widely across the world, as a progressive step towards reshaping the justice system into a humane and civilised institution. The European Court of Human Rights has stated:

“The right to vote is not a privilege. In the 21st century the presumption in a democratic state must be in favour of inclusion.”

Do the Tories seriously want our Government to endorse such a regressive step and for our country to be isolated by their short-sighted view of rehabilitation in our justice system? That is not soft justice, as they are fond of saying; it is rough justice.

The Scottish Elections (Franchise and Representation) Act 2020 sent an important message about our willingness to welcome short-term prisoners back into society. It was the first bill in the Scottish Parliament to require the support of a supermajority of two-thirds of members. The Parliament voted in favour of the bill by 92 members to 27, with only the Tories voting against it.

Changing the law on prisoner voting now would also disrupt preparations for the forthcoming election. Changing the franchise would mean committing to using the short time remaining in this parliamentary session to rush though a new bill to reverse the 2020 act. I imagine that the Conservatives know that, but they still lodged the motion. Of course, populism and soundbites are par for the course for that party—a sure sign of desperation, as the minister said.

Surely promoting responsible citizenship, within the context of the wider objectives of reintegration in order to reduce reoffending, should be our goal if prison is to mean anything. We now know much more about the reasons why people take the wrong path into crime and end up being incarcerated. That path often starts with childhood trauma, a lack of early intervention, deprivation, abuse, neglect and many other barriers that are not easily overcome. Exclusion from the electoral process would add to their sense of marginalisation in a way that would hamper efforts to encourage rehabilitation and reduce the risk of reoffending. Is that really what the Conservatives want?

It is hard to understand just why Douglas Ross and the Scottish Tories find Scotland meeting its human rights obligations “appalling”. In addition to the UK, the only Council of Europe countries that have a blanket ban on prisoner voting are Armenia, Bulgaria, Estonia, Georgia, Hungary and Russia. In contrast, the Council of Europe states that have no—or virtually no—such restrictions are Croatia, the Czech Republic, Denmark, Finland, Ireland, Latvia, Lithuania, Norway, Slovenia, Spain, Sweden and Switzerland. The Welsh Government has accepted that prisoners serving custodial sentences of less than four years should be granted the right to vote in elections to the devolved Welsh Parliament.

The Conservatives might like to pretend that they are the party of law and order, but the evidence shows that it is the SNP’s decisions in Government that have had a positive impact. The Scottish Government’s firm focus on early intervention, crime prevention and the rehabilitation of offenders has meant that we now have less crime and fewer victims than a decade ago—and those are the key indicators of what works.

Alongside reforms strengthening the rights of victims and vulnerable witnesses, the draft budget delivers increased resource funding of more than £18 million for services to support victims of crime and deliver measures to improve their experience of the justice system.

The Tories would do better to use their time to work with the Government to progress a rehabilitative prisons system, rather than lodge pointless motions such as the one that we are debating.

Photo of James Kelly James Kelly Labour

Like many other members across the chamber, every day I receive numerous emails about people’s concerns. Particularly in light of the pandemic, they are worried about their own and their families’ health, businesses, jobs, the impact of not being able to attend school in person on pupils’ education, and the impact on the economy. Members are seeing concerns about many such issues coming into their mailboxes, but I have not had one email about prisoner voting. It is therefore surprising that the Conservatives have chosen to use their time today on that issue—an hour of parliamentary time that could have been much better used to discuss issues that are much more important to the Parliament and to people throughout Scotland’s communities.

As others have pointed out, the issue was well debated and looked at thoroughly at the committee stage and through all the other stages when considering a change to the law in relation to prisoner voting. The legislation was not, as Mr Kerr said, rushed through; it takes quite something for legislation in the Parliament to be not only passed by a supermajority but supported by four out of the five parties in the Parliament. It was very much a considered position that the Parliament reached this time last year. I spoke in that debate and the arguments that I submitted in support of changing the law stand the test of time. We could not simply continue to ignore the need for compliance with the European ruling and we also could not tinker around the edges. A responsible Government and a responsible Parliament must ensure that we have an area of broad compliance.

Valid arguments for a change to the system were made by many, including the Howard League for Penal Reform. Those arguments were valid because of the case that has been made for the importance of rehabilitation. When I was a member of the Justice Committee, we heard about that a lot, and I heard Mr Kerr talk about the benefits of rehabilitation. He seems to have turned his face against that today in support of the motion.

It is regrettable, when there are so many big issues to discuss and it is such an important time for the country and the Parliament, that the Tories sought to use an hour of our debating time on an issue that was resolved a year ago and, in practical terms, could not be altered over the next month. The reality is that the Parliament reached a settled view on the issue and it is not something that will be altered at this point in time.

What the Tories have done here is just naked electioneering. They are basically tub thumping to a small group of right-wingers in the country and it is an election tactic that will fail. Ultimately, when it comes to the election, the issues that matter are the issues that will make a difference in people’s lives. How do we ensure, post-pandemic, that people have proper jobs and have support in their jobs and in their businesses? How can we ensure that the health service is fit to deal with the many people who have had delayed appointments? How can we support our pupils and students in education? Those are the issues that the Parliament should be debating, not a tub-thumping motion from the Tories, and I hope that the motion is rejected at decision time.

Photo of Fulton MacGregor Fulton MacGregor Scottish National Party

It is another day and we have another Tory debate on justice. As others have said, we have had a few over the years, but this one must be up there as one of the most ludicrous and odious.

As the cabinet secretary and others have highlighted, it was just last year that the Parliament agreed to allow prisoners on short-term sentences to vote in order for our legislation to be compatible with the European convention on human rights.

Prisoners on sentences of 12 months or less are likely to be released during the next session of the Parliament. Why should they not get a vote when they will have already served their punishment? Rehabilitation is important for our communities. If the Tories are serious about it—as Liam Kerr said that they are—and if they are serious about helping to break the pervasive cycle of reoffending, we must all foster a culture of respect and tolerance. That starts with the Government. Prisoners on short sentences will be expecting to be released during the next year. What message will it send to them if we tell them that they cannot vote—that they are not good enough to vote?

I do not mind saying that, personally speaking, I would go further. I think that any prisoner who is likely to be released during the next parliamentary session should have the right to vote, for much the same reasons that I have already outlined, but I would also be open to this place having a conversation about going even further, so that all prisoners have the right to vote.

It seems only right that people should be able to vote for the Government that will ultimately make decisions about the institutions in the country where they live. Surely, the Covid-19 situation has taught us all that. The recent Covid-19 outbreaks in several prisons are an obvious illustration of the importance of that. Like everyone else, prisoners must have the right to have their say on how the Scottish Government, the United Kingdom Government and the local authority where they would vote have handled the pandemic, for example.

The Tories forget that it is not just about the prisoners who are affected; those prisoners are someone’s dad, mum, brother, sister, son, daughter and friend. As John Finnie eloquently put it, why should a prisoner not have the right to have a say on their child’s education, for example? Those people are often the victims of horrendous circumstances, including poverty.

I know that extending the franchise to all prisoners is likely to be controversial and that there are numerous and competing ethical considerations to take into account, so I do not want what I am saying to be misconstrued. I am saying that I would like the Parliament to have a discussion on the issue in future and come to a balanced view.

Whenever there is a change to or extension of the franchise, there is always some opposition. Not long ago, during the independence referendum, when 16 and 17-year-olds were to be given the vote, I remember having discussions about that with people in the streets of Coatbridge and Chryston and hearing arguments that 16 and 17-year-olds were too young and had no life experience and so on. Those views have been shown to be unfounded, and I think that we can all be proud of that move.

Going further back, in the early 1900s, there were personalities and voices, which were often persuasive, arguing what a disaster it would be to give women the vote. The American William T Sedgwick was one such voice. He said:

“It would mean a degeneration and a degradation of human fiber which would turn back the hands of time a thousand years. Hence it will probably never come, for mankind will not lightly abandon at the call of a few fanatics the hard-earned achievements of the ages.”

He was clearly an articulate and educated individual. Although his legacy includes the founding of the joint MIT-Harvard school of public health, among other things, his views on suffrage have not aged well. That perhaps demonstrates to us as parliamentarians the need to be bold and radical on the franchise from an earlier point.

It is clear that the Tories do not want us to fulfil our human rights obligations, but how much further do they want us to go? I presume that they believe that prisoners should have fresh air to breathe—that seems obvious—but what about water and food? I think that they would probably agree that prisoners should have those. However, where do we draw the line? What about family contact and access to medical treatment? Are prisoners deserving of that? I ask Liam Kerr, or whoever is summing up the debate for the Tories, to let us know. If the Tories are saying that prisoners cannot have a vote, they are in essence saying that there is a line somewhere, so maybe we could get some answers on that.

Let us be bold and imaginative in our rehabilitation efforts. Giving the vote to prisoners who are serving short sentences of 12 months or less is the very least that we can do. I urge members to reject the Tory motion and accept the Government amendment.

The Deputy Presiding Officer:

We move to the closing speeches. I again remind members to stick to their time.

Photo of Alex Rowley Alex Rowley Labour

I am pleased to close for Labour in this Scottish Tory party debate, and to highlight the Tories’ absolutely blatant politicking ahead of the upcoming Scottish Parliament elections. Before I even touch on the substantive issue, it is worth pointing out that, as members have said, the Parliament has already debated the issue and decided by a supermajority—in fact, it was the first time that a supermajority was required in the Parliament—to grant the extension of voting rights to prisoners serving a custodial sentence of 12 months or less. When the Scottish Government consulted on the issue, the response mirrored the vote that we had in the Parliament, with two thirds of respondents supporting the extension of the franchise.

It is not surprising that the Tories have brought the debate today, because they have a long-standing approach of not supporting the extension of the voting franchise. The only reason why the Tories have used parliamentary time for the debate is to try to stir up controversy. It is in fact shameful of them to be politicking in such a bare-faced way.

In the stage 1 debate on the Scottish Elections (Franchise and Representation) Bill, I said that I concurred with the views of the Standards, Procedures and Public Appointments Committee that policy on prisoner voting should be

“driven by principle and evidence.”

The Parliament decided that the blanket ban on prisoner voting was unsustainable, particularly given that it put our country at odds with the European convention on human rights. At the time, the Scottish centre for crime and justice research pointed out that Denmark, Sweden, Norway, Finland, Switzerland and Ireland had no ban on prisoners voting in elections. The extension of the franchise simply brought us into line with other modern 21st century nations. The Tories have come here to hold a debate about whether to comply with human rights obligations. It is a reprehensible electoral ploy, and I have no doubt that the Scottish public will see straight through it.

Central to the debate is the issue of what benefit we would achieve as a society by removing the right to vote from short-term prisoners. The purpose of prison is not simply punishment but rehabilitation. Active participation in civic society could well help with the rehabilitation aspect of prison’s purpose.

Photo of Liam Kerr Liam Kerr Conservative

Will the member take an intervention on that point?

Photo of Alex Rowley Alex Rowley Labour

I am sorry, but I have no time. Liam Kerr has brought forward a short debate of four-minute speeches in order to score political points, so there is no time to debate that point further.

All around the world, we see good practice on how to better deal with crime. Scotland has the highest prison population rate per head in western Europe, and we need to learn from the good practice that we see in other countries, instead of using prisoners to score political points.

The Tories are determined to frame the current approach in Scotland as a soft-option approach, but it is not—it is an approach that respects human rights and helps to reduce reoffending by criminals and to prevent crime from being committed in the first place. The lock-them-up-and-throw-away-the-key approach does not work. Instead of grandstanding in the chamber, the Scottish Tories should take a long hard look at whether they want to help to tackle crime or whether they simply want to punish offenders and have no interest in rehabilitation or in tackling the root causes of crime in this country. Looking at those issues would be a better use of our time.

Photo of Michael Russell Michael Russell Scottish National Party

I always feel that parliamentary sessions suffer the same problems as aircraft do, in that the real difficulty is in take-off and landing. The parliamentary session itself can go fine, but the beginning and the end are always problematic. The beginning is problematic because the previous election is still being fought, and the end is problematic because—as Rhoda Grant said is now the case—the next election is already being prepared for. It is regrettable that the Tories holding this debate is an electoral ploy.

I want to differentiate between the Tories’ position today and the position of those who honestly and strongly believe that prisoner voting is wrong, on which Liz Smith provided evidence. I doubt whether I shall ever be number 1 in Mr Halcro Johnston’s fan club. I noticed in a piece in

Holyrood magazine that Peter Chapman described me as “abrasive” and “arrogant” and said that he dislikes me. I probably just have to live with that disappointment. His remarks might have had something to do with the fact that I called him the “Doric Donald Trump”. Anyway, it does not really matter.

I want to make a genuine differentiation between the Tories’ position in today’s debate and Liz Smith’s position. I accept what she argued, but I disagree profoundly with it. When the Scottish Elections (Franchise and Representation) Bill was introduced, I did not have a hard and fast view, but I now have a view that accords much more closely with what Alex Rowley said. If we look at the global situation, we discover that bans on prisoner voting are very much a product of history—penal history, in particular. If we look at other countries that have progressed beyond that and learned from their history, we can see that that has been beneficial. I know that Liam Kerr will rise to his feet and say that there is no evidence for that, but I think that there is increasing evidence that there are countries in which that process of learning from their history has been beneficial.

I want to differentiate between Liz Smith’s position and the question why the issue is being raised now. Why would the Tory party bring such a debate to the chamber now? Why would it do so when there is nothing that it can do about the situation? Well, there is something—as I made clear in my opening speech, it could have introduced a bill and tried to get it through in the next four weeks. Then Liam Kerr would have been able to look in the eye the victims whom he talked about and say, “We did everything we could, but in the end the Parliament turned us down.”

However, that is not where we are. Alex Rowley made that clear and John Finnie made it even clearer. I know that I am not the subject of a Tory fan club but—my goodness!—there must be models of John Finnie with pins being stuck into them this afternoon, after his speech.

The debate is about naked politics, as was shown by Liam Kerr’s opening speech. If members want evidence, that is where they should go for it. Liam Kerr’s description was that the SNP “pushed through” the measure, although it was passed by Parliament by 92 votes to 27 across all the parties. No doubt the Tories would say that I do not have a modest view of my own abilities, but even I could not push a bill through in that way. The bill was decided upon by Parliament.

Mr Kerr also said—rather, Mr Kerr did not say it, but coverage of the matter has included Tory assertions that the SNP is planning to give votes to murderers and rapists. That is untrue. The measure is very limited; it is limited, and deliberately so, to prisoners whose sentences are 12 months or less. Parliament discussed the matter at great length, as Mr Kelly mentioned, and decided that that was the right place to pitch it.

Thirdly, there was—again—an attack from the Conservatives on what they call the SNP’s “soft-touch” justice policy. This debate is not about the principle of the measure or the fact that Parliament voted for it; it has been politically targeted. Mr Rowley was correct: the reason why we are debating the matter in very limited time today is that the Conservatives think that there is electoral advantage in so doing. They are not taking a single step towards actually making anything happen.

That is why I repeat that the debate is, as I said in my opening speech, a cruel deception. It is not only shameful to do that in Parliament; it is also a deception of victims, because it tells them that something can be done, and that the Tories intend to do something that they both cannot do and have not taken the necessary steps to do. That is the shame of it. They could have done that—they would have been roundly defeated, but they could have done it. They did not.

If members are going to come with such a naked political ploy, they should not give the game away in the opening speech, as Mr Kerr did, because all the rest of it is just

“sound and fury, signifying nothing.”

The Deputy Presiding Officer:

I call Jamie Halcro Johnston to wind up the debate. You have six minutes, Mr Halcro Johnston.

Photo of Jamie Halcro Johnston Jamie Halcro Johnston Conservative

Thank you, Presiding Officer.

We meet today ahead of a parliamentary election that will be far from normal. It has already been radically altered by the on-going pandemic and the restrictions on campaigning. However, from a legal perspective, the most pressing difference is that the franchise will be, for the first time in a national election in Scotland, open to convicted prisoners who are under sentence. I say “national election” because, as Liam Kerr pointed out, the Shetland by-election was the first step towards prisoner voting. In that case, it was brought in by ministerial order rather than by primary legislation.

Beyond the chamber, the decisions have—unsurprisingly—caused outrage and offence in equal measure. At the heart of the problem is that the Scottish Government’s proposal hinges on a one-year sentence barrier as a measure of seriousness. The reality is that that is a poor barometer. To reach the threshold for a custodial sentence in Scotland, a serious offence must have been committed or a consistent pattern of criminal offending must have come to a head. Custodial sentences, even relatively short ones, are not handed down lightly by the courts. As Liam Kerr said at the beginning of the debate, we can look at examples of people who have been convicted of serious sexual offences, homicides, assaults that caused severe injury and attempted murder who will find themselves enfranchised this year, from their prison cells.

If that is the Scottish Government’s attempt to find a compromise between the position that all prisoners should be able to vote, which is held by very few, and the view that prisoners should remain excluded, it fails. What message does that cobbled-together justification send to the victims of such offences, who are told that the crimes that were committed against them were not of a serious nature? They are being told that the crimes that were committed against them were not serious. Ministers know—or they should know—as well as the rest of us just how many severe crimes with significant lasting effects fall into that bracket.

Some will present the argument as a competition between a justice system that focuses on rehabilitation and one that focuses on punishment, but that is not my view. The UK Government, in addressing the ruling of the European Court of Human Rights, held that it is reasonable for people who are released on licence at the time of an election to vote. They are people who have been through the system, have worked with it and are gradually being reintegrated into their communities. To grant them the rights that come with being part of that community is a more rational step, as Liz Smith argued.

However, the Scottish Government has chosen to go further, and from day 1 to give the vote to prisoners on short sentences, when their involvement in wider society has, for good reason, been restricted. As Liam Kerr emphasised and Liz Smith touched on, there is not a shred of evidence that prisoner voting reduces reoffending.

We know from the situation in England that the extension was not essential, as ministers have sometimes tried to hint when they have been pressed. Upholding convention rights did not require enfranchising people in prison.

Although I recognise that some members have a long-standing moral commitment to prisoner voting, I find it hard to accept that the Scottish Government casts it as a moral argument. The First Minister herself spent the last election opposing prisoner voting. Halfway through this session, she opposed prisoner voting. Now, despite that opposition, the Scottish Government rails against those who believe that it is fundamentally wrong to allow prisoner voting.

Sadly, this is a Government that has presided for too long over a justice system that does not meet the expectations of society. Sentences are frequently handed down that do not reflect the nature of offences. In too many cases, people who go before the courts have lengthy histories of offending, but little evidence of punishment or rehabilitation. Too often, there is a clear progressive increase in offending before an act takes place that can no longer be ignored.

Even the words “Police Scotland” remind us of the many fiascos that have taken place in the short life of our single police force. As a consequence, metrics of crime—in particular, on categories of violent crime—have been rising. Victims of crime can take little that is positive from the actions of the Government.

I turn to some members’ speeches. My colleague Liam Kerr spoke about the range of offences that are dealt with through sentences of one year or less. Given the Scottish Government’s talk of seriousness, we should find that chilling. He has shown that the extension is, as I suspect we all know, not necessary in order to comply with the European ruling, contrary to what Michael Russell’s amendment suggests. Ministers and members should not hide behind the Hirst judgment to justify their approach. If they vote in favour of the amendment, they should be honest with themselves and the people whom we are elected to serve.

Liz Smith spoke about those who have committed a crime. They have broken a contract with society and, through their own actions, have chosen not to value the privilege of citizenship and have voluntarily put themselves outside the law. Liz Smith also argued that members who support prisoner voting do so in stark contrast to the majority of the public, 63 per cent of whom do not.

As the election approaches, prisoners have found a gold-plated view of their rights being put forward, while the rights of victims often go unconsidered. Conservative members have set out a different view—one that seeks to build safer communities, to make a solid investment in rehabilitation and to ensure that victims are given the support that they deserve. Above all, our view recognises that the justice system is essential and must deal properly with offenders at all stages, and should not make apologies for tackling crime.

As we look to the wider problems of some of our least advantaged communities, we see that safety is a core need. It is the right of every person in Scotland to feel safe in their own home and in the streets of their communities. Too many do not, and we should not need to be reminded that that is a disgrace.

I urge SNP, Labour and Liberal Democrat members to reconsider their previous support for prisoner voting, to put the interests of victims—not perpetrators—of crime first and to support Liam Kerr’s motion.