2. Introduction & Background
Since 2 April 2020, the Scottish Elections (Franchise and Representation) Act 2020 has allowed prisoners serving sentences of twelve months or less to register and vote in Scottish Parliament and local government elections. This right applies where a person would have been ordinarily resident in Scotland if it were not for their imprisonment.
The Act does not affect the rights of civil prisoners and people on remand (e.g. people detained in prison awaiting trial or sentencing), as they are already entitled to vote.
Section 6 of the Franchise Act placed a legislative requirement on the Scottish Ministers to review the operation of the prisoner voting provisions with a view to considering whether the 12 month sentence threshold is appropriate, and to lay a copy of the report on that review before the Scottish Parliament no later than 4 May 2023. This duty was added to the Act in the context of discussion over the length of the 12 month threshold, with some arguing that enfranchising prisoners serving longer terms, e.g. 3 or 4 years, would be more likely to assist rehabilitation.
Partially in response to this requirement as well as a general commitment to ongoing monitoring and evaluation of the policy, the Scottish Government alongside partner organisations, including the Scottish Prison Service and the Electoral Commission, agreed to conduct a survey of prisoners eligible to vote in the 2022 Local Government elections.
All eligible prisoners were therefore invited to complete a short voluntary survey which was distributed in May 2022. The survey asked questions on a number of areas including; historical voting habits; whether eligible prisoners had registered to vote from prison; whether they had voted and whether they felt they had sufficient information to exercise their right to vote.
This report sets out the key findings from the survey as well as providing background information and possible course of action regarding prisoner voting.
There has been in effect a longstanding blanket ban on convicted prisoners voting in all elections in the UK. The legal basis for this is the Representation of the People Act 1983, with Section 3 of the Act setting out in particular that any convicted person is "legally incapable" of voting at any election while detained in pursuance of their sentence or while unlawfully at large.
The European Court of Human Rights (ECtHR) found in 2005 that the UK's blanket ban on convicted prisoners voting in elections was in breach of Article 3 of Protocol 1 of the European Convention on Human Rights (ECHR).
With the Scotland Act 2016, responsibility for the franchise for Scottish Parliament elections and Local Government elections was devolved to the Scottish Parliament. This included responsibility for ensuring compliance with the ECHR in relation to these matters.
In 2019 the Scottish Government conducted a public consultation on who should be entitled to vote, and whether it should be linked to factors such as type of crime committed, and length of time remaining on custodial sentence. The consultation did not include options on whether to maintain a blanket ban on prisoner voting, nor on enfranchising all prisoners. The reason for this being that the status quo of prisoners being ineligible to vote had previously been deemed by the Scottish Government to be inconsistent with the ECHR and allowing all prisoners to vote was determined not to be necessary to ensure compliance with the ECHR. The results of this consultation were published on the Scottish Government website.
Following the consultation the Scottish Elections (Franchise and Representation) Act 2020 was enacted allowing offenders normally resident in Scotland serving sentences of 12-months or less to vote in Scottish Parliament, local government and national park elections.
With regards to the practicalities of implementing prisoner voting it was agreed that prisoners would vote via postal or proxy vote, rather than in person. In principle prisoners should register to vote using a previous address, as opposed to the prison address itself. However there is a provision to allow prisoners to use the address of the prison where no other alternative address is available.
Prisoners wishing to register to vote are required to send a paper form to an Electoral Registration Officer ("ERO") to register. Postal votes would then be sent to the prison address which prisoners have provided to EROs.
The first national election at which eligible prisoners could vote subsequent to passing of the legislation was the 2021 Scottish Parliament election. EROs reported that there were 38 eligible prisoners registered to vote at the 2021 election and 49 registered to vote at the subsequent 2022 Scottish Local Government election. This compares to an estimated eligible population of around 526 at the time of the election.
While it is difficult to access comprehensive comparative data from other similar countries as a reference point, there is publicly available data on prisoner voting in the Republic of Ireland where all prisoners were given voting rights following the passage of the Electoral (Amendment) Act 2006. Data from the most recent comparable election in Ireland (2019's Local Government, European and Divorce Referendum election), suggests that of the approximately 3,904 prisoners, 224 registered to vote (5.7%) and 143 cast a vote (3.7%).
With regards to other United Kingdom elections, convicted prisoners detained in a prison or mental health hospital are banned from voting in UK Parliamentary elections and in local government elections in England, Wales and Northern Ireland. Further information regarding prisoner voting across the UK can be found here: CBP-7461.pdf (parliament.uk).
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