Representation of The People Act 1983 Remedial (Scotland) Order 2025: statement on responses received
Statement detailing analysis of responses to the Scottish Government's statement, following the representations received.
Statement of the Scottish Ministers under Section 14(4) of The Convention Rights (Compliance) (Scotland) Act 2001
This statement is laid before the Scottish Parliament in accordance with section 14(4) of the Convention Rights (Compliance) (Scotland) Act 2001.
Introduction
1. This statement contains a summary and analysis of the written observations received in response to public notice of the content of the Representation of the People Act 1983 Remedial (Scotland) Order 2025 (“the Remedial Order”) and specifies that no modifications will be made to the Order.
Background
2. The Remedial Order modified the law relating to Scottish Parliamentary elections and local government elections in Scotland. It removed an incompatibility with the European Convention on Human Rights (“ECHR”) in relation to section 3A of the Representation of the People Act 1983 (“1983 Act”), which applies to offenders detained in mental hospitals under specified orders and directions in Scotland.
3. In the case of Hirst v. United Kingdom (No. 2), Application no. 74025/01, 6 October 2005, the European Court of Human Rights concluded there had been a violation of Article 3 of Protocol 1 to the ECHR by the United Kingdom insofar as section 3 of the Representation of the People Act 1983 imposed a blanket restriction on convicted prisoners detained in prison from voting.
4. In making the Remedial Order, the Scottish Government considered a similar restriction in section 3A of the 1983 Act, which applied to forensic mental health patients detained in mental hospitals under specified orders and directions in Scotland, was incompatible with Article 3 of Protocol 1 and Article 14 of the ECHR.
5. The voting ban in section 3A(3) of the 1983 Act was a general automatic disenfranchisement of detained forensic mental health patients. A discernible and sufficient link is required between the sanction and the conduct and circumstances of the individual concerned. The ban prevented forensic mental health patients from voting where mental health patients detained under civil orders and prisoners would be able to vote in analogous circumstances, as provided for following the Scottish Elections (Franchise and Representation) Act 2020. As such, the Scottish Government considered that section 3A(3) of the 1983 Act was in breach of Article 3 of Protocol 1 and Article 14 of the ECHR.
6. The Remedial Order was brought into force to address this ECHR incompatibility. It does so by making temporary modifications to the law to enable some persons subject to section 3A(1) of the 1983 Act to vote in local government elections in Scotland while they are detained in pursuance of a relevant order or direction, provided any conditions specified are met.
7. The Remedial Order enables all individuals subject to a temporary compulsion order under section 54 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) to vote. It also removes the restriction on voting by persons during the time their personal welfare is placed under the guardianship of a local authority (or such other person approved by a local authority) under section 58 of that Act.
8. The Remedial Order also enables persons detained under section 53, 57(2)(a) or 57A(2) of the 1995 Act to vote, provided that the offence for which they have been convicted or charged is not be punishable by more than 12 months’ imprisonment. Those people will not have been sentenced so their deemed liability for the offence for which they have been convicted or charged is to be taken into account. If a person has been convicted or charged with more than one offence, their liability is to be equal to the aggregate length of the total maximum terms of imprisonment for each offence as if sentenced consecutively.
9. A person subject to a compulsion order under section 57(2)(a) of the 1995 Act must not also be subject to a further restriction order under section 57(2)(b) of that Act to be legally capable of voting. Similarly, a person subject to a compulsion order under 57A(2) of that Act must not be subject to a further restriction order under section 59 of that Act.
10. The Remedial Order enables persons subject to directions under 59A of the 1995 Act and section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 where they are serving a sentence of 12 months or less to vote.
11. Section 11 of the Scotland Act 1998 provides that those entitled to vote in Scottish Parliament elections are those entitled to vote, and registered, as local government electors. Therefore, the modifications made by the Remedial Order in respect of the local government franchise also applies to the Scottish Parliament elections.
12. The Remedial Order came into force on 19 November 2025 according to the procedure prescribed in section 14 of the Convention Rights (Compliance) (Scotland) Act 2001 (the “2001 Act”). Section 14(2) provides that the Scottish Ministers must, after making such an order, give appropriate public notice of its contents, and invite written comments to be made within 60 days.
13. In accordance with section 14(3) and (4) of the 2001 Act the Scottish Ministers must consider all written observations made; and lay a statement before the Scottish Parliament summarising these comments and specifying the modifications (if any) they consider it appropriate to make to the Remedial Order.
The consultation process
14. The public notice of the contents of the Remedial Order was published on the Scottish Government’s website on 19 November 2025 and written observations (“responses”) requested by 1 February 2026. Notice was sent to electoral stakeholders including the Electoral Commission, the Electoral Management Board for Scotland and the Electoral Registration Committee of the Scottish Assessors Association. It was also sent to stakeholders with expertise in the area of mental health including the Mental Welfare Commission for Scotland and the Royal College of Psychiatrists in Scotland. COSLA, the Scottish Human Rights Commission and the Law Society of Scotland were also contacted (see full list in Annex a).
Responses
Findings
15. This section discusses responses received to the Remedial Order, and specifies the modifications (if any) that the Scottish Ministers consider it appropriate to make to the Order in light of them.
Responses and analysis
16. Responses were received from the Royal College of Psychiatrists in Scotland and the Law Society of Scotland (copies attached at Annex b). Both responses welcomed the changes made by the Remedial Order and made additional observations. Both considered that the Remedial Order could go further, focusing on the prohibition on voting where a detained patients’ voting rights are determined by their deemed liability on the basis of the maximum possible sentence for the offence for which the person was convicted or charged and called for further consideration.
17. The Royal College of Psychiatrists in Scotland urged the Scottish Government to:
a) provide clear operational guidance and resources for implementation of the change;
b) provide confirmation that no additional assessment of mental capacity to vote was required for anyone being enfranchised;
c) commit to a transparent review of the principles behind voting restrictions; and
d) engage meaningfully with mental health services and advocacy groups in shaping future legislation.
Scottish Government position
18. In relation to the Royal College of Psychiatrists in Scotland’s comments on practical implementation and resource implications, the Scottish Government is working with the Electoral Commission and Electoral Registration Officers on how best to engage with newly enfranchised voters and hospitals and mental health practitioners in supporting patients to register, and then exercise their right to vote. This includes modification of the form to be used in registering to vote. The Government acknowledges that clear guidance and resources are needed as part of this process. It also acknowledges the specific request that that guidance explicitly confirm that staff are not expected to assess voting competence. The Government can confirm that there is no mental capacity requirement for any persons to register and exercise the right to vote.
19. The Government notes the comments of both consultation respondents in relation to the maintenance of a prohibition on voting where the maximum possible sentence that could have been imposed for the offence in question is in excess of 1 year. It acknowledges the position of the Royal College of Psychiatrists in Scotland that:
“In conclusion, deemed liability may be a proportionate approach for persons convicted of an offence but it appears harder to justify this blanket restriction for
- persons found unfit to stand trial or not criminally responsible and not subject to a restriction order.
- persons detained in hospital for longer than the custodial sentence a court would otherwise have imposed, due to clinical need, lack of community resources, or risk management decisions.”
20. The Government also notes the comments of the Law Society of Scotland that the Remedial Order only partially implements the relevant recommendation of the Scottish Mental Health Law Review. This is in the context of forensic patients compared to persons convicted persons in certain circumstances. The Society explained:
“…where the patient is given a compulsion order, we don’t know what prison sentence the person would have received – only the maximum sentence for the offence. Therefore, a person who received a 6 month prison sentence, for an offence with a maximum possible sentence of over 12 months, will retain the right to vote, but would remain disenfranchised if they received a compulsion order for the same offence.”
21. The Scottish Government acknowledges that convicted prisoners’ voting eligibility is determined by sentence length, and that voting eligibility for some forensic mental health patients detained under certain orders are assessed by reference to the maximum sentence available for the offence, as no specific prison term applies to such orders. The 12‑month threshold reflects the sentencing structure in Scotland and broadly aligns with the approach taken for prisoner voting.
22. The Government is grateful for the responses from the Royal College of Psychiatrists in Scotland and the Law Society for Scotland. The Government does not, however, consider it appropriate at this stage to make any modifications to the Remedial Order. As stated in the Policy Note which accompanied the Remedial Order, the Order is subject to a sunset provision and its effects will expire on 28 February 2030. The Government considers that any permanent change and any further change in the law should be preceded by a full public consultation. The intention is that long-term provision will be made by primary legislation in the next Parliament.
23. It is proposed that a consultation on electoral reform following the election on 7 May 2026 will consider questions raised by consultees and all other aspects of the prohibition in section 3A of the 1983 Act, including the historical rationale for disenfranchisement. That consultation could highlight the points made by both the Royal College of Psychiatrists in Scotland and the Law Society for Scotland. The Government would welcome the further involvement of mental health professionals, advocacy groups and those with lived experience in that process.
Annex a - list of organisations contacted
The following organisations were asked if they wished to submit representations on the Remedial Order:
- Scottish Parliament Political Parties Panel
- Electoral Commission
- Electoral Management Board for Scotland
- Scottish Assessors Association, Electoral Registration Committee
- Law Society of Scotland
- COSLA
- the Scottish Human Rights Commission
- the Electoral Reform Society
- The Mental Welfare Commission for Scotland
- Community Justice Scotland
- Association of Electoral Administrators
- Edinburgh Napier’s Centre for Mental Health Practice, Policy and Law Research
- Royal College of Psychiatrists
- Office of the Public Guardian
- Additional Support Needs Tribunal
- University of Edinburgh School of Social and Political Science
- University of Glasgow School of Health and Wellbeing
- Scottish Association for Social Workers
- Scottish Independent Advocacy Alliance
Annex b - responses
Response From The Royal College Of Psychiatrists In Scotland
Legislative Oversight Forum
The Royal College of Psychiatrists in Scotland (RCPsychiS) Legislative Oversight Forum (LOF) was established in 2020 following a decree by Scotland Devolved Council.
The LOF is a gathering of highly experienced and knowledgeable psychiatrists who have daily experience of applying mental health incapacity and safe-guarding laws when providing care and treatment. It seeks to provide a point of reference within and outside of the College. The LOF meets on a monthly basis to discuss current and proposed legislative changes which could impact the practice of psychiatry in Scotland.
Our views
We welcome the Scottish Government’s efforts to ensure compliance with the European Convention on Human Rights through the Representation of the People Act 1983 Remedial (Scotland) Order 2025. Extending voting rights to individuals detained on mental health grounds is an important step toward upholding equality and human rights. However, following discussion among our members, we wish to raise several points for consideration:
Practical implementation and resource implications
The Order places responsibility on hospitals and mental health services/staff to support patients in registering and exercising their right to vote, primarily through postal or proxy voting. While we fully support enabling participation, this introduces additional administrative and advocacy responsibilities for already overstretched clinical teams. Clear guidance and resources are needed to ensure that staff can facilitate voting without compromising patient privacy or therapeutic priorities. Consideration should also be given to funding or support for these additional tasks, particularly in secure settings, where processes are more complex and time consuming.
Safeguarding rights and autonomy
Our members feel that voting rights should not be contingent on additional, specific assessments of capacity in this context (I.E – more assessment of ‘capacity to vote’ additional to existing capacity assessments already caried out).
We recommend the position that there is no additional test for capacity to vote (once standard capacity assessment has been carried out) beyond understanding the purpose of voting and expressing a preference. This approach respects autonomy and avoids discriminatory practices. We ask that guidance explicitly confirms that staff are not expected to assess voting competence.
Any communication materials for patients must be accessible and sensitive to mental health needs.
Deemed liability
The explanatory notes state that the purpose of the order is to give voting rights to persons convicted of less serious offences, defined as those carrying a maximum penalty of less than 12 months imprisonment.
Where a person is detained under sections 53, 57(2)(a) or 57A(2) of the Criminal Procedure (Scotland) Act 1995 and has not been convicted or sentenced, eligibility to vote is determined by “deemed liability”. This means that the maximum possible sentence for the offence charged is used as a proxy for seriousness, rather than the person’s actual disposal or culpability.
Where a person has been convicted of an offence but given a hospital disposal, the justification for offence-based restrictions appears reasonable because criminal responsibility has been established. However, it raises particular concerns in cases involving unfitness to stand trial or acquittal on the grounds of mental disorder.
In post-conviction cases, imprisonment was legally available and the hospital order represents an alternative to punishment. By contrast, for individuals found unfit to stand trial or not criminally responsible, they are not convicted of an offence and imprisonment is excluded as a disposal by the court. In these circumstances, basing voting restrictions on hypothetical punishment depends on an incorrect assumption that punishment could have been imposed and risks attaching penal consequences to detention that is intended to be protective and therapeutic rather than punitive.
Another concern is that deemed liability does not account for the indeterminate nature of hospital detention and may result in patients being disenfranchised for longer than individuals serving determinate prison sentences for comparable offences. While prisoners automatically regain liberty and voting rights at the end of their sentence, patients may remain detained for clinical reasons well beyond the period of imprisonment the court would otherwise have imposed. There is no mechanism within the order or tribunal process to review or restore voting rights in these circumstances, creating a risk of disproportionate, unreviewed, and potentially arbitrary restriction of a fundamental civic right.
The aim of the legislation is to exclude persons charged or convicted of serious offences. The exclusion of voting rights for persons who are subject to a restriction order under section 59 Criminal Procedure (Scotland) Act 1995 is consistent with this aim and we make no recommendations about this.
In conclusion, deemed liability may be a proportionate approach for persons convicted of an offence but it appears harder to justify this blanket restriction for
- persons found unfit to stand trial or not criminally responsible and not subject to a restriction order
- persons detained in hospital for longer than the custodial sentence a court would otherwise have imposed, due to clinical need, lack of community resources, or risk management decisions
We recommend that this is reviewed.
Underlying principles and clarity
Members expressed concern about the historical rationale for disenfranchisement, which appears rooted in punishment rather than capacity. The arbitrary nature of the 12-month sentence threshold was noted by our members and should be given consideration. This limit is not based on capacity, risk, or any rational measure of civic responsibility - it appears to be simply a punitive line drawn by legislation. Applying this arbitrary rule to those detained under mental health legislation reinforces stigma. It implies that their voting rights depend on an analogy to criminal sentencing rather than their status as citizens.
We encourage the Government to clarify the principles underpinning these changes and commit to a broader review during the next Parliament, as indicated in the sunset clause. Future legislation must also be informed by consultation with mental health professionals, advocacy groups, and those with lived experience.
Engagement and consultation
We note the constraints of the formal feedback process and the 60-day representation period. We strongly recommend ongoing engagement with stakeholders to ensure practical challenges are addressed and rights are upheld in practice.
Summary of views
In summary, while we support the intent of the Remedial Order, we urge the Scottish Government to: provide clear operational guidance and resources for implementation; confirm that no additional voting capacity assessment is required; commit to a transparent review of the principles behind voting restrictions; engage meaningfully with mental health services and advocacy groups in shaping future legislation.
We would be happy to contribute further to this discussion and assist in developing practical solutions.
Response from the Law Society of Scotland
In our response to the 2023 consultation on electoral reform we indicated that persons detained on mental health grounds related to criminal justice should be entitled to vote on the same basis as persons detained on mental health grounds under civil orders. We are therefore pleased that the Representation of the People Act 1983 Remedial (Scotland) Order 2025 has been laid before the Scottish Parliament.
We note that the Order makes those changes which the Scottish Government considers necessary for compliance with the ECHR. We further note, however, that the Order would only partially implement the relevant recommendation of the Scottish Mental Health Law Review and that forensic patients would still be at a disadvantage as compared to other convicted persons in certain circumstances. For example, the right to vote is restored if the person ‘is not liable to be sentenced, in respect of the offence for which the person has been convicted, to imprisonment for a term exceeding 12 months’. However, where the patient is given a compulsion order, we don’t know what prison sentence the person would have received – only the maximum sentence for the offence. Therefore, a person who received a 6 month prison sentence, for an offence with a maximum possible sentence of over 12 months, will retain the right to vote, but would remain disenfranchised if they received a compulsion order for the same offence.
We recognise the pressing need to address issues of ECHR compliance ahead of the 2026 Scottish Parliament Elections. We note that the Order is time-limited and that the Minister has indicated that the possibility of further changes should be consulted on with a view to primary legislation in the next Parliament. We consider that the above points should be considered in the context of any future consultation on widening the enfranchisement of forensic patients, and addressed in any future legislation.
I hope that the above is helpful. We would be happy to discuss further.
