This substantial group of amendments provides a number of alternative approaches to the bill’s provisions on prisoner voting as they are drafted.
At the outset it is right to stress that the position of the European Court of Human Rights is not that there should be a specific threshold or a blanket ban, and that it is for each contracting state to determine the correct approach for that state.
Mr Halcro Johnston’s amendment 21, and the consequential amendments 23, 24 and 26, strike at the heart of the enfranchisement of prisoners in Scotland and, indeed, the bill’s intention to fulfil our wider obligations.
Amendment 21 would replace the Government’s proposal to enfranchise prisoners serving sentences of 12 months or less, by instead applying the guidance that is in operation in England and Wales. That would raise a number of serious concerns. First, that proposal would replace the proposed scheme upon which the Scottish Government has consulted and this Parliament’s committee has taken evidence. It would place the enfranchisement of our prisoners under the control of guidance that has been issued by the Ministry of Justice—and not just that issued in 2018, but any future guidance that the ministry might choose to set out. Of course, any such guidance would be intended for prisoners in England and not those in Scotland. Although there is much common ground between our systems, there are also many differences—for example, in the way that temporary release operates.
Although amendment 21 refers to prisoners in England and Wales, it is worth noting that the Welsh Government has committed to enfranchising prisoners who are serving sentences of under four years. Indeed, I note that the Welsh Assembly’s Equality, Local Government and Communities Committee described the UK Government approach as one of “minimal compliance”.
Even if amendment 21 were focused purely on the current approach of the Ministry of Justice, the UK Government’s response to the human rights case law on prisoner voting is a position that did not enfranchise any prisoners in custody, but focused instead on clarifying a number of points in relation to those on temporary release.
I welcome this committee’s stage 1 report on the bill concurring that the blanket ban is unsustainable, as it is against the European Convention on Human Rights. We, as a Parliament, are responsible for ensuring ECHR compliance on this and all other matters; that is a non-negotiable for us. One of the principal aims of the bill is to accept that responsibility, and to resolve the issue in a fair and proportionate way that sends a positive message about rehabilitation and civic responsibility. Amendments 21, 23, 24 and 26 seek to transfer that responsibility back to Westminster, without even a pretence of respecting the historical independence of the Scottish justice system, or any apparent concern that this Parliament is responsible for human rights compliance on the issue. I cannot commend that course. Therefore, I ask Mr Halcro Johnston not to press the amendments, and, if he does so, I urge the committee to reject them.
In contrast, the amendments of Mr Ruskell and Mr McArthur present alternatives to achieving the policy of enfranchising prisoners in Scotland at Scottish elections based on the length of sentence. Nonetheless, I maintain that our suggested course is the correct one, and I will explain why I am not minded to support either amendment at this time.
Mr Ruskell referred—I think—to the offences of house breaking and breach of the peace; I point out that, statistically, a very small number of people are sentenced to more than one year, which means that there will, obviously, be special sentencing conditions. The vast majority of people who commit those offences, and other offences in those sort of categories, are not sentenced to anything more than a year.
Mr Ruskell’s amendments go further than the Government’s proposal by seeking to increase the threshold to 48 months. I accept that that is, of course, being pursued by the Welsh Government, which has stated its intention to amend its Local Government Elections (Wales) Bill to enfranchise in Welsh local government elections prisoners and young people in custody who are serving a sentence of less than four years.
As Maureen Watt pointed out, four years is the threshold that is suggested by the Law Society of Scotland and the Faculty of Advocates. However, Maureen Watt also indicated—as did Gil Paterson and Neil Findlay—that it is an issue upon which views are divided. The committee also heard evidence calling for a removal of the ban in its entirety, while around one in three respondents to the Government consultation expressed the view that no prisoner should be allowed to vote. That underlines the challenge that we all face in settling on an approach that is principled and justifiable. I maintain that we have found that approach in the form of the bill as introduced. The 12-month threshold has a solid grounding in the Scottish justice system, in that 12 months is the maximum sentence that can be imposed in a case that is heard without a jury. In addition, it was the most popular period among those who responded to the Government’s consultation question on the sentence threshold, with a third of respondents choosing it.
It is worth noting that Mr Ruskell’s proposal would enfranchise the majority of prisoners in the custody of the Scottish Prison Service. Based on the prison population on Monday 13 January, a total of 3,327 prisoners would be enfranchised by a four-year threshold, while a smaller cohort of 916 prisoners would be enfranchised by the proposed one-year threshold.
I appreciate the rationale behind Mr McArthur’s amendment 16. Society’s views evolve, and, as other members have indicated, it may well be that a future Parliament decides to amend the threshold. However, we are back in the very unusual situation that we were in earlier this morning in which the Government is arguing against secondary legislation and committee members are arguing in favour of it. This is another area that should be done not by regulation, but by primary legislation. Given the range of views on the subject, and the strong feeling that it evokes, I consider that that would be the right place to do it. It is important that we have a full and frank debate on an issue of this magnitude, and it has encouraged very substantial debate. Therefore, I would not recommend that we use secondary legislation in that regard. Mr Ruskell and Mr McArthur have engaged very seriously on the issue, and there is—undoubtedly—debate to be had on the threshold.
The spirit of Jamie Halcro Johnston’s amendments does nothing to take the issue forward. Amendment 22 would undermine the integrity of Scottish elections because it would create a circumstance that is already in electoral law. The amendment deals with disqualification for people who are guilty of offences under electoral law. However, the Representation of the People Act 1983 already specifically makes provision for a person who has been found guilty by an election court of corrupt or illegal practices at an election to be barred from registering to vote or voting, being elected to Parliament, or holding any elected office. In the case of a person who has been convicted of corrupt practice, that prohibition applies from the date of conviction and ends after five years. For illegal practices, the period is three years. In our consultation paper on prisoner voting, the Government proposed that those provisions be retained, so there is no intention of changing them. Essentially, amendment 22 seeks to achieve something that already exists in law and can be activated, so it is completely redundant.
In summary, Mr Halcro Johnston’s amendments seek to undermine the responsibilities of the Parliament and the responsibilities that we have to take. I appreciate what Mr Ruskell’s and Mr McArthur’s amendments are trying to do, but the proposal that we have made is the right one at this time, and it should be supported.