Prisoner voting: consultation

The proposal relates to Scottish Parliament and local government elections.

Elections to the UK Parliament

Successive UK Governments have explored a number of approaches to resolve the issue identified in the Hirst (No 2) case for elections to the UK Parliament. The Labour government elected in 2005 issued two consultations: one in 2006 and one in 2009. No proposals were brought forward before the 2010 general election.

On 10 February 2011, following a backbench business debate, the House of Commons passed a motion which supported the current situation in which no prisoner was able to vote except those imprisoned for contempt, default or on remand. The motion also noted the finding of the ECtHR in Hirst (No 2) that there had been no substantive debate by the UK Parliament on the issue and stated that decisions of this nature should be a matter for democratically-elected lawmakers.

A draft Voting Eligibility (Prisoners) Bill was published in November 2012 and pre-legislative scrutiny was undertaken by a joint committee of the House of Commons and the House of Lords. The committee reported in December 2013[5]. It recommended that all prisoners serving sentences of 12 months or less should be entitled to vote in UK parliamentary, local and European elections. In response, the Lord Chancellor and Secretary of State for Justice undertook to keep the matter under consideration[6], but no final bill was brought forward.

In 2017, David Lidington MP, then Lord Chancellor and Secretary of State for Justice, made a statement to the House of Commons setting out the UK Government's response to the ECtHR's judgment in Hirst (No 2). In it, he outlined a package of administrative measures[7] which would have the effect, in relation to elections which are reserved to the UK Parliament, that:

(a) Those who are in the community on temporary licence would be able to vote. Temporary licence is a form of discretionary and temporary parole aimed at the resettlement and rehabilitation of offenders.

(b) It would be made clear to those given custodial sentences that they will lose the right to vote in prison. The statement argues that this addresses a concern of the judgment in Hirst v United Kingdom (No 2) that UK offenders are not informed with sufficient clarity that they cannot vote while serving a prison sentence.

These proposals came into effect across the UK in summer 2018.

A prisoner released on temporary licence or on HDC has never been prohibited from voting under the terms of section 3 of the Representation of the People Act 1983 which restricts voting rights for a prisoner "during the time that he is detained in a penal institution in pursuance of his sentence." However, as set out in the UK Government's policy statement[8], previous prison guidance had led to an anomaly that offenders who are released back in the community on licence using an electronic tag under the HDC scheme could vote, but those who are in the community on Temporary Licence could not. The UK measures outlined addressed this and will allow around 100 prisoners to vote in elections reserved to the UK Parliament.

The Scottish Government proposal seeks to comply with the ECHR whilst also taking into consideration length of sentence which reflects, among other considerations, the seriousness of the case. To allow for a compatible solution, proposals aim to set a threshold length of sentence, below which prisoners should be entitled to vote.

A further key factor in developing a proposal that differs from the UK Government to ensure ECHR compliance for devolved elections in Scotland is the consideration of the Scottish Parliament Equalities and Human Rights Committee. In addition to the commitment to consider a plurality of views on the issue of prisoner voting as soon as possible, the Scottish Government has taken into account the recommendations of the Committee to legislate and examine the proportionality of a particular restriction on the right to vote for Local Government and Scottish Parliament elections.


Email: Elections Team

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