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Representation of the People Act 1983 Remedial (Scotland) Order 2025(SSI 2025/353)
09:00
Our next agenda item is consideration of the Representation of the People Act 1983 Remedial (Scotland) Order 2025, which is subject to the affirmative procedure.
We have an opportunity to take evidence from the Minister for Parliamentary Business and Veterans before we go on to consider whether to recommend to the Parliament that the Scottish statutory instrument be approved.
I welcome to the meeting Graeme Dey, Minister for Parliamentary Business and Veterans, who is joined today by Scottish Government officials Iain Hockenhull, who is head of elections, and Lorraine Walkinshaw, who is a solicitor.
I invite the minister to make a short opening statement.
Good morning. The order that is before us today responds to a European convention on human rights compliance issue that has been identified in relation to voting rights for Scottish Parliament elections.
Section 3A(3) of the Representation of the People Act 1983 prohibits some people who have been detained on mental health grounds related to criminal justice from voting in elections in the United Kingdom. This is a blanket ban that is similar to the one that used to be in place for prisoner voting. The Scottish Government considers that the changes made by this order are required for convention compliance ahead of the election on 7 May 2026.
The order makes minor changes to maintain consistency with the exceptions made for prisoner voting in 2020. A person who has been detained on a mental health ground but sentenced to 12 months or less will be able to vote. A person who has been charged or convicted of criminal conduct but has received a mental health detention rather than a prison sentence will be able to vote only if the maximum sentence or sentences possible would have amounted to 12 months or less.
A further category that has been granted voting rights is that of persons who are subject to a temporary compulsion order. For these people, there has not yet been any finding of fact as to the alleged conduct in their case. They are therefore in a similar situation to remand prisoners, who are currently able to vote in all UK elections. Similarly, persons who are subject to guardianship orders retain the right to vote, as these orders do not permit detention.
The order came into force on 19 November last year but applies only to elections between 7 May 2026 and 28 February 2030. This is intended to ensure that affected people can vote in the Scottish Parliament election and subsequent by-elections, and also that a full consultation can be held on the matter, with the next Parliament considering a permanent change to the law.
Although I will not be returning as Minister for Parliamentary Business and Veterans after the election, members will recall that I wrote to the committee on 30 January, highlighting a number of proposed topics for a public consultation on electoral reform ahead of future possible legislation.
In summary, the order makes limited changes that are considered necessary for ECHR compliance ahead of May’s election. It is subject to a sunset clause, as it is considered that the next Parliament should reach a settled view on the law in this area.
I am happy to take any questions.
I am grateful for your opening remarks, minister. Before I turn to questions and comments from committee members, I want to clarify something.
We are talking about the election that is happening in nine weeks’ time, but this order came into effect in November last year, so there has been an understanding among the Electoral Commission and the wider electoral community of the intentions. Therefore, it is not a change that will be implemented when this SSI passes through the chamber, should it do so. Is that correct?
Correct.
Therefore, subject to the SSI passing, there are no surprises for the coming election.
Absolutely. That was always the understanding, subject to the Parliament agreeing to the instrument. The order coming into effect in November last year has allowed work to be done in advance of this year’s election. The creation of a relevant registration form is one example of that. There is dialogue with the electoral authorities because, clearly, there is work to be done to identify the nuts and bolts of how this works in practice. That work has been going on, subject to Parliament’s approval.
I have a question, minister. In England and Wales, they have found a compromise: they do not let prisoners vote unless they are released on a temporary licence. Why did the Scottish Government not seek some sort of compromise, such as that presented?
With prisoner voting?
Yes. This instrument is also about prisoner voting—these people are still detained.
The decision was reached in 2022 and predates my time. The Parliament voted for that position. In so doing, this anomaly arose, which we are now trying to address.
I am not trying to duck the question, but I was not in charge of, or involved with, the bill at the time. That decision was supported by Parliament a few years ago.
I have a statement that I want to make later. Is that okay, convener?
Absolutely. That is fine.
I have one further question with regard to the evidence received from the Royal College of Psychiatrists, which set out a number of areas on which it was seeking assurance. In particular, it stated that clear guidance and resources must be part of the process, which I think is acknowledged by the Government. Given that we are now nine weeks from the election, is that guidance in place? As far as you are aware, minister, has it been satisfactorily received by those who may have to be involved?
I will bring in Iain Hockenhull with the detail, but my understanding is that work has been done. The trigger for progressing all of the activity will be the signing off of the form and the passing of the SSI, if that is what Parliament decides to do. We have been engaged with the UK Government on the form, and I understand that the finalised version of it is currently with ministers in the UK Government.
The new registration form, which is specifically designed around the group of people affected by the order, has been discussed with and prepared by the Electoral Commission. We have also discussed it with the UK Government. It has been revised as a result and it is currently with the UK minister, who has to give formal approval for this type of form.
On next steps, although we have had initial discussions with electoral registration officers, we would like to further discuss with them, and with colleagues who work on mental health policy, the appropriate hospitals and other agencies, such as the Mental Welfare Commission for Scotland, for communicating with and getting the message out to alert people, while not alerting the wrong people; that is, people who are not enfranchised by this change. We do not want to create false hope. It is about getting the message across clearly.
“False hope” might be an interesting phrase. Do we know how many individuals this order will affect?
We believe it to be in the region of 20 people. This is a very complex area, which is why I was reluctant to go for a permanent solution at this stage. As we are required to act for compliance reasons, we have come up with something that addresses the situation for the period of the election and allows the next Parliament to get into the detail so that we have a permanent solution that captures all the different strands.
That is helpful.
Further, not that the next Parliament or Scottish Government would ignore it, but the sunset clause means that it will be in people’s diaries and that it will be dealt with, along with a number of other electoral items that we have discussed in the past.
I will make a useful point here, for clarity. As part of considering the options that I had, I had informal discussions with the business managers of the other parties in the Parliament to get a view of what people considered the best way forward. The timing of the sunset clause came out of those discussions, in that it is sufficiently far away from the next election for the issues to be dealt with and, I hope, properly addressed in a permanent way.
That was very helpful. Thank you.
As members have no more questions, we will move to agenda item 3, which is the formal debate on motion S6M-20958. Members will be aware that only the minister and members can speak in the debate on the motion, which I invite the minister to move.
Motion moved,
That the Standards, Procedures and Public Appointments Committee recommends that the Representation of the People Act 1983 Remedial (Scotland) Order 2025 (SSI 2025/353) be approved.—[Graeme Dey]
Does any member wish to speak?
I do, convener.
I will not be supporting this SSI today, because of my party’s long-standing opposition to allowing prisoners to vote, regardless of the circumstances of their incarceration. Individuals who are imprisoned as a result of breaking the law should not be able to vote, and I would extend that view to prisoners in the general population, not just those in mental hospitals.
I would also remind the committee of a number of cases of prisoners convicted of serious offences being given relatively lenient sentences due to the soft-touch justice guidance implemented by the Scottish National Party. As a result of that, we might be allowing individuals convicted of such serious offences to participate in our democracy.
The capacity of individuals detained on mental health grounds needs to be considered, too. Indeed, the Royal College of Psychiatrists in Scotland has said that
“voting rights should not be contingent on additional, specific assessments of capacity”.
At the very least, the committee should be given more detail on how capacity to vote will be assessed.
We have frequently been told that we need to allow prisoners to vote in order to comply with the ECHR. I think that, at this point, my position on the ECHR will be clear to the committee, but it is also worth highlighting the fact that the convention itself does not require prisoners currently serving custodial sentences to be given the vote, as is the case in Scotland. In England and Wales, a compromise was made, whereby prisoners released on temporary licence were permitted to vote, yet the SNP made no attempt to reach such a compromise here.
In summary, I do not think that the public elected any of us to enfranchise prisoners, and we do not need to agree to this SSI to comply with the ECHR. For those reasons, I will be voting against it today.
If no other members wish to contribute, I invite the minister to respond.
I will be very brief, convener. I understand Ms Webber’s position on this issue, but what we are dealing with is an anomaly in a law passed by this Parliament. The law is there; we have an issue that we need to resolve temporarily, the next Parliament can return to the matter in full and come to a permanent solution. Obviously, all members of the Parliament will be able to feed their views in at that point.
I am grateful. The question is, that motion S6M-20958 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Maguire, Ruth (Cunninghame South) (SNP)
Roddick, Emma (Highlands and Islands) (SNP)
Whitfield, Martin (South Scotland) (Lab)
Against
Webber, Sue (Lothian) (Con)
Wells, Annie (Glasgow) (Con)
The result of the division is: For 3, Against 2, Abstentions 0.
Motion agreed to.
That the Standards, Procedures and Public Appointments Committee recommends that the Representation of the People Act 1983 Remedial (Scotland) Order 2025 (SSI 2025/353) be approved.
I now suspend the meeting for a changeover of guests.
09:13
Meeting suspended.
09:15
On resuming—