Delegated Powers and Law Reform Committee

Meeting date: Tuesday, September 10, 2019

Official Report 561KB pdf

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Representation of the People Act 1983 Remedial (Scotland) Order 2019 (SSI 2019/261)

We move on to item 4. We have before us Michael Russell, the Cabinet Secretary for Government Business and Constitutional Relations, who will give evidence on the Representation of the People Act 1983 Remedial (Scotland) Order 2019. He will give evidence later on the Referendums (Scotland) Bill. He is accompanied by three Government officials: Penny Curtis is head of the elections and freedom of information division; Iain Hockenhull is bill team leader in the elections team; and Ewan McCaig is a solicitor. I welcome you all.

I understand that the cabinet secretary wants to make some opening remarks.

Thank you, convener, and thank you for the opportunity to discuss the remedial order that we made under convention rights legislation and which enabled limited prisoner voting in the Shetland Islands by-election. I am grateful to you for your letter setting out a number of questions about the order and I am happy to address them.

I would like to put on record that I am sorry that I was unable to provide advance warning of our intention to make the order—as you know, I wrote to you on the day when the order was made, on 1 August, to give you information about it. The reason was, of course, the timescale and nature of the recess: the official notice of the by-election was given on 15 July, which meant that a very limited period was available in which to arrange for limited prisoner voting at the election. Given that the election registration deadline was midnight on Tuesday 13 August, it was imperative that we take action as quickly as possible, to allow qualifying prisoners to register. All consideration occurred during recess, which limited the scope for engagement.

With the Scottish Elections (Franchise and Representation) Bill already before Parliament, I decided to apply to the by-election the scheme under that bill to enfranchise prisoners serving sentences of 12 months or less. I have been very clear, as all my colleagues have, that the blanket ban on prisoner voting is not fit for purpose. That is also the legal situation with the European convention on human rights; the ban is not compliant or compatible with the ECHR as it applies to Scottish Parliament elections. In my view, under those circumstances, it was not optional but essential to ensure ECHR compliance in relation to the by-election.

I would be very happy to go into the detail of that, why the decision was made and how it operated.

Thanks very much for that. Is it your view that that was the only course of action that you could have taken?

No. There were three possible courses of action, one of which was to do nothing. I say strongly that doing nothing would have put the Scottish Parliament and the election in breach of the convention and was completely unacceptable.

The second possible course of action was to have emergency legislation. Let me put it this way: members might not have been sympathetic if I wished to recall Parliament on or around 1 August in order to have an emergency bill.

The third option was to find some form of secondary legislation that we could undertake. Obviously, we could have worked under the Human Rights Act 1998, but it seemed to me—this is probably incontrovertible—that the convention mechanism was tailor made for the circumstances, in which a breach of the convention had to be rectified as a matter of urgency. That approach has been used in the Parliament before, in 2003, for a sexual offences issue. I thought that that was the right approach, and that is why we used the legislation. It is clear that we can debate whether it was the right approach, but I am not entirely sure that any of us would have been happy with a recall.

You may well be right.

You referred to the letter that you sent to me and therefore the whole committee. I think that it arrived the day before the order came into force.

Yes, it did. It was sent on 1 August, which was the day on which the order was signed.

Was it not possible to have given us any more notice that this was coming?

The issue during the recess was coming to the right decision and implementing it in a very short period of time. The date of the by-election was not ours or yours to give, and it was brought about very quickly. We had to decide on the right route and how to move forward on it, and we did not take that lightly. Once we had identified and decided on the right route, I thought that it was important to tell the committee that that had been done. We are talking about an act of Government; scrutiny follows thereafter. Normally—I am sure that we will come to this—there would be immediate scrutiny, but on this occasion it was not possible to have that.

So it was not possible to give us any more time—not even a day or two.

No. I think that we told you when we could tell you. We told you the day before the order came into effect. We thought that we had to use secondary legislation.

Okay. All this really stems from the Hirst case, which involved the UK Government and looked at whether not allowing prisoners to vote was compatible with the ECHR. I presume that you are aware that the UK Government came to an agreement with Europe and that what you did in the remedial order is not the same as that agreement, which was that:

“a. prisoners on remand could vote;

b. prisoners committed to prison for contempt of court could vote;

c. prisoners committed to prison for default in paying fines could vote;

d. some prisoners released on temporary licence could vote;

e. prisoners released on home detention curfew could vote; and

f. prisoners would be notified of their disenfranchisement at the time of sentence.”

The Committee of Ministers of the Council of Europe accepted that and said that that was enough to be compliant with the ECHR, but you appear to have gone beyond that agreement, despite the fact that we have a bill in front of the Parliament that has not been dealt with. Why did you go beyond that when it appears that you did not need to do so?

I will put the issue in context. The UK’s decision has not yet been tested—I understand that it is expected to be—and it is hardly proportionate to the nature of the crime; for example, people on temporary release can vote, even if their crimes are much more serious than anybody who would be enfranchised as a result of our proposals.

Taking the UK’s approach is not a safe way to proceed and would inevitably result in challenges. My job must be to decide on the safest option. Our 12-month proposal is in the bill and that is why it is in the order; I did not go an inch or iota further than the proposal. It is interesting to note that the proposal in Wales is for sentences of four years. There is a range of views about the issues, which will be tested in the passage of the Scottish Elections (Franchise and Representation) Bill. I had to make a change for the by-election, and my view was that I had to mirror the Government’s proposal for the bill—not go further, but not resile from it into areas that would be broadly unsafe.

Did you need to go as far as you did? A year ago, the Committee of Ministers said that the UK proposals were

“an effective package to ensure compatibility with the Hirst judgment”.

Could you not have left it at that?

I obviously will not talk about legal advice, but the Committee of Minister’s view may not be the same as that of the courts, particularly the European Court of Justice, when it is tested. The obligation on me was to find the safest way to make the order, without going further than proposals that I had already made. The bill that is before Parliament includes the 12-month proposal—that is not uncontroversial; some people in this room wish to go further—and mirroring the legislation struck me as the right and safest thing to do.

I also made sure that the order would be time limited, by the mechanism that was used, so that it will lapse. The consideration was to not pre-empt Parliament’s decision, except in so far as to observe the convention because something had to be done for the Shetland by-election.

Thank you. Other members want to come in, and we will start with Stuart McMillan.

As you have said, the bill is before Parliament. If there were to be another by-election before the bill has passed through its parliamentary process, would you introduce another remedial order?

That would depend on its timing. I hope that there will not be another by-election and that we will have the opportunity to consider the bill and resolve what the mind of Parliament is on it. However, the law is entirely clear—we would have to do something, and the question would be the timing. I intend there to be full scrutiny in the normal time frame of any decision that we would take, but if another by-election were to take place in the recess, we may have to apply the same remedy. Given that there will not be another nine-week recess—as far as we know, unless Parliament is prorogued—before next summer, and that the bill will be through by then, it is likely that that will not be the case.

If another remedial order were to be required in the future, what could the Scottish Government do differently to ensure parliamentary scrutiny of the exercise of the delegated power before that scrutiny became redundant?

We have been clear that we welcome scrutiny. My letter to the committee said that I wanted to have this discussion and I responded to the convener’s letter to me. We are not saying that we do not want scrutiny. The sheer mechanics are that if we have three options—do nothing; have emergency legislation; or do this—and we take this option, then clearly there is a process of scrutiny. The fact of the matter is that any order comes into effect in a timescale and the timescale of these orders is 60 days, which does not include recess periods.

I want scrutiny, which is why I welcome discussion in the committee. We would endeavour to avoid such circumstances where we can, but it was physically impossible to avoid this set of circumstances, given the timetable of the by-election, which is not in our gift or that of the committee, and the nature of the problem that we had to resolve.

11:15  

The timing for scrutiny was not helpful to anybody. If another by-election were to take place, but the timing of it was different—in other words, it did not take place during a recess—what other options would be available to you, if the bill had still not been passed?

The options would be broadly the same, but as the bill is in process, one would hope that there would be enough time for it to be completed. The bill requires a supermajority, which is an issue. I would want the bill to be completed before any such question arose, and we would then judge it accordingly.

The by-election to which the order relates has passed. Why wait until the end of the 60-day period for observations before revoking the order?

I have no option. The order has to run until it is revoked. I cannot do anything about that. It is just there. It is not doing any harm, but equally, I cannot revoke the order now—it has to run its 60-day period for comment.

What regard is given to the comments that are made during that 60-day period?

I will give regard to any comment that is received. I understand that we have received no comments as yet. If we receive comments, we will look at them.

It is difficult to think what those comments might be. The committee is probably rehearsing the key issues that might arise, but there might be other comments. I cannot imagine what they would be, but we will consider any comments, whatever they are. I am obliged to do so under the order.

If you were in this situation again, would those comments feed into the process?

Oh yes. If someone has a bright idea about how to avoid this situation—I cannot see it myself—I would welcome it. I welcome all bright ideas, although we have not had one yet.

There is still time.

Indeed.

Out of interest, how many prisoners were affected by the order?

I cannot tell you. It would be wrong to inquire into individual voters and we do not do so. Given those circumstances, I cannot answer the question. Our estimate was that up to five individuals might be eligible to vote, but we do not know whether they voted because that would clearly be the wrong thing to ask.

Yes, and then you might be able to identify them.

Exactly, so I do not know how many people were affected. It is very difficult to tell. The assessment of who is eligible to vote would relate to prisoners who have postcodes in the Shetland area. There could have been other prisoners who are normally resident in Shetland and who gave another address at the time of conviction. There might be some prisoners who gave a Shetland postcode and address, but who are not normally resident in Shetland. The estimate from the Scottish Prison Service was up to five people, but we do not know whether they voted.

Had we chosen to proceed by recalling Parliament to enact emergency legislation, would that legislation have been subject to the supermajority requirement?

Yes.

So it would not have been a quick question of getting the Parliament quorate, but would have required enough members to meet the supermajority. Is that correct?

Yes, I think that I am right in that. It is an alteration to the franchise, so it would have required a supermajority, which would have been an additional hurdle.

Is it correct that a supermajority is not a majority of members present, but is a supermajority of all members?

Yes.

Yes. All my officials are nodding, so there seems to be unanimity among us on this matter—we are beginning to look like a quiz team. A supermajority would have required all members to be present, which would have been difficult to achieve. Some people may have been sunning themselves on Lanzarote or on study tours of the Arctic. Wherever they were, it would have been difficult to recall everyone.

Were you in either place, cabinet secretary?

No.

On that happy note, we will end this discussion.

11:19 Meeting suspended.  

11:20 On resuming—