Thank you for inviting us to give evidence. In the simplest sense, the issue can be looked at as a need to ensure compliance with article 3 of protocol 1 of the European convention on human rights—a matter that has been outstanding since 2004. There is no doubt that the law needs to be amended to give some prisoners the right to vote in order to ensure compliance with the ECHR, so the question is about how far to go in terms of providing that right to vote. The European Court of Human Rights has not prescribed exactly how that should be done. It leaves a wide margin of appreciation, which means that it is the job of national legislatures to decide what is most appropriate for the national context.
Our statutory mandate is to protect and promote human rights, so the approach that we have taken in looking at the bill is to think about what human rights standards say about whether prisoners should be given the right to vote and the guiding principles that can be used to determine how that should be done. Looking to what the European court has said about the matter and to international standards at the United Nations level, it is possible to discern some guiding principles that can be used to inform the debate. The first is about the purpose of imprisonment and how that fits with prisoners’ human rights; the second is a principle of maximum suffrage; and the third is a need for proportionate rational reasons if the right to vote is to be restricted and what that says about what is in the bill.
On the purpose of imprisonment, it is clear that the deprivation of liberty that comes with imprisonment is a punishment and that other human rights will necessarily be impacted by that—the right to family life, for example, and the right to autonomy—but there should not be additional restrictions where those are not necessary. That brings us to the question whether the right to vote is one that needs to be restricted alongside imprisonment. It is also clear from looking at the human rights framework that the purpose of imprisonment is more about rehabilitation and less about punishment.
Secondly, the European court has been clear that the starting point is a presumption in favour of maximum suffrage. The starting point is that everybody should be allowed to vote and they should only be excluded when there are rational reasons to do so. In that sense, we need to look at the aim behind excluding prisoners from being able to vote and, if we are going to exclude them, we then need to look at the most proportionate way of doing that.
The aim that is before us is being presented as the legitimate one of preventing crime: if prisoners know that they will lose their right to vote, that will act as a deterrent to crime. We have some questions about whether that is a rational aim, and whether removing the right to vote acts as an effective deterrent.
With regard to the way in which you might go about restricting the right to vote, the proposal is to determine that right by the length of the sentence and whether it is less than 12 months. The question is whether that is the most proportionate way of doing it. We can look at some international comparators that have greater proportionality when identifying which prisoners should be allowed to vote and which should not. For example, we could have judges who make the decision when sentencing or identify offences that have some connection with the operation of the electoral system.
Overall, we see the bill not just as an opportunity to ensure compliance with the ECHR or to ensure that we tick it off because it is something that the European Court of Human Rights has decided needs to be remedied. The bill is an opportunity to look at the situation anew and come up with a principled stance on prisoner voting. If the Scottish Government and Parliament want to show human rights leadership, the best way to do that is to look at the human rights standards and principles and use them to inform the debate about what should be done.