Representation of The People Act 1983 Remedial (Scotland) Order 2025: statement of reasons
This Order extends voting rights in Scottish Parliament and local council elections to some people detained in hospital on mental health grounds to comply with human rights law.
Convention Rights (Compliance) (Scotland) Act 2001
Statement of Reasons
This Statement of Reasons is provided by the Scottish Ministers in accordance with section 14(2)(b) of the Convention Rights (Compliance) (Scotland) Act 2001 (“the 2001 Act”).
The Scottish Ministers have made the Representation of the People Act 1983 Remedial (Scotland) Order 2025 for the following reasons:
On 7 May 2026 a general election to the Scottish Parliament will be held. The Parliament is a legislature to which Article 3 of Protocol 1 (“A3P1”) of the European Convention on Human Rights (“ECHR”) applies. The Scottish Government and Scottish Parliament require to ensure that the franchise for elections to the Scottish Parliament are compatible with A3P1, and the ECHR, as interpreted by the European Court of Human Rights (“ECtHR”). Furthermore, Article 14 ensures the rights enshrined by the ECHR must be enjoyed free from any unjustified discrimination (See for instance X v Mental Health Tribunal for Scotland [2022] CSOH 78). This requires that they address the ban on voting in Scottish Parliament elections by “forensic” mental health patients who are detained in hospital or other settings in the complex range of circumstances of the orders and directions listed in section 3A(3) of the Representation of the People Act 1983 (“the 1983 Act”).
The disfranchisement of detained forensic mental health patients originally mirrored that of all those convicted and sentenced to imprisonment for any length of time. In 2005 the ECtHR found in Hirst v United Kingdom (No 2) that the UK blanket ban on prisoner voting was in breach of A3P1, which provides that signatory states: “undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” This has been interpreted to give individuals the right to vote and to stand for election. The breach of A3P1 in respect of prisoner voting was remedied by Part 3 of the Scottish Elections (Franchise and Representation) Act 2020 which enables convicted persons detained in prison on a sentence of 12 months or less to vote in Scottish Parliament and local government elections.
The current voting ban in section 3A(3) of the 1983 Act is 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 current ban prevents 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 considers it appears section 3A(3) of the 1983 Act is in breach of A3P1 and Article 14 of the ECHR.
Legislative change is required to deal with this incompatibility of the franchise. Following the necessary policy and legal analysis of the detailed circumstances provided for, a Compliance Order under section 12 of the Convention Rights (Compliance) (Scotland) Act 2001 which is made under the urgent procedure is the most appropriate mechanism to deliver a solution which is workable to allow for election administration in time for the general election to the Scottish Parliament on 7 May 2026. The modifications to the existing law made by the Order are temporary as the Order is time-limited and will expire on 28 February 2030. The Scottish Government would also plan to bring forward a Bill in the next Session of Parliament to give the Parliament the opportunity to consider the issues more fully and in light of further consultation.
Under the urgent procedure the Order will come into force on the day on which it is made. This is considered necessary in order to allow preparations to be made to permit newly enfranchised persons to exercise the right vote in the election on 7 May 2026. Once the change is in force, the Electoral Commission will commence work on guidance and changes to forms in order to facilitate the new voting rights. Electoral Registration Officers will also begin the process of ensuring that the newly enfranchised persons can register to vote. The deadline to register to vote ahead of the 7 May 2026 election is 20 April 2026. In addition, detained persons cannot vote in person and the standard deadlines for arranging a postal or proxy vote occur on 21 April and 28 April respectively, with applications for a proxy vote at the particular election remaining opening until 5pm on the date of the poll. Commencement as soon as possible will allow communications to voters to assist them with registering to vote and arranging a postal or proxy vote. As the Order will not apply to council by-elections prior to 7 May and Scottish Parliament by-elections cannot be called in the six months prior to a general election to the Scottish Parliament, commencement of the Order at the point it is laid is not expected to have any negative impact.
Therefore, the Scottish Ministers consider that there are compelling reasons for making an Order under section 12 of the 2001 Act as distinct from taking any other action.
