The next item of business is stage 3 proceedings on the Scottish Elections (Reduction of Voting Age) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, which is SP bill 66A as revised; the marshalled list, which is SP bill 66A-ML as revised; and the list of groupings, which is SP bill 66A-G.
The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.
After section 1
Group 1 is on power to make provision in connection with legal capacity of detained 16 and 17-year olds to vote. Amendment 5, in the name of Alison McInnes, is the only amendment in the group.
Today, members will rightly celebrate the fact that we will finally grant 16 and 17-year-olds the right to vote in Scottish Parliament and local elections in Scotland from next May. We all agree that that is long overdue. However, with that opportunity come both moral and legal obligations. The bill will not extend the franchise to every 16 and 17-year-old: as it stands, around 100 young people held in young offender institutions will still be denied the right to vote.
Those young people are already among the most disengaged youths in our society. We know that to reduce reoffending we must do more to ensure that offenders are equipped and prepared to rejoin our communities, and part of that is ensuring that they are more aware of their responsibilities as citizens. Why, then, are we choosing to reinforce the sense that they are alienated and that we have given up on them? Why are we saying that their rights do not count?
Amendment 5 would enable Scottish ministers to lift the blanket ban on those young offenders voting by amending its source, which is section 3 of the Representation of the People Act 1983. Thereafter, through regulations and after consultation, the amendment would enable ministers to make their own arrangements, compliant with the European convention on human rights, and to decide which young people in penal institutions should be granted the vote. That decision could be based on various considerations, including the nature of the offence, the length of the sentence or the time still to be served.
The blanket ban in the UK and Scotland on prisoner voting is not legal, fair or progressive. The ban is shamefully unique among developed democracies in Europe, and the courts have repeatedly found it to be in breach of the European convention on human rights. The Scottish Parliament’s founding principle of respect for human rights, enshrined in section 29(2)(d) of the Scotland Act 1998, requires us to ensure that any legislation that we pass is compatible with the ECHR. However, if the bill were to be passed without the inclusion of amendment 5, Parliament would risk doing just the opposite.
The bill amends section 2 of the 1983 act, on the voting age, but it is not clear what, if anything, in the section 30 order would prevent the Scottish Parliament from also disapplying section 3. Indeed, we must remember that the 1983 act is silent on the subject of 16 and 17-year-olds. That is why it is so important that amendment 5 is debated and the Parliament’s competence and obligations in the area put to the test.
The cabinet secretary will no doubt seek to persuade Parliament to vote against amendment 5, conveniently relying on the view that the section 30 order is narrowly drawn. It is a plausible argument and has some merit, but in his response to the amendment, the cabinet secretary must not only rely on that rather timid argument, but explain why the Government is satisfied that the bill does not contravene the ECHR.
Today is an opportunity to be bold, to take a different approach and to show that Scotland upholds everyone’s human rights, even when some might find that distasteful.
I move amendment 5.
There is a debate to be had regarding whether some offenders in custody should be eligible to vote in elections and what the criteria for eligibility should be. For example, should short-term prisoners or offenders who are coming to the end of their sentence as part of their rehabilitation programme be eligible to vote? For those who make a country’s laws, there is also a strong argument that when someone is imprisoned for a serious infringement of the law, part of their punishment is the suspension of the right to vote for part or all of the period of detention.
However, the bill before us is not the vehicle for a rehearsal of those arguments; the bill is about 16 and 17-year-olds being able to vote next year. Amendment 5 would enable the franchise to be extended to 16 and 17-year-old offenders in prison, but not to older offenders in prison. I suspect that that could be the basis of a human rights challenge or an argument about age discrimination with regard to offenders over the age of 18 who, unlike younger offenders, would not be able to vote.
We will therefore vote against amendment 5, although we agree that the question whether all offenders in prison should be disenfranchised for the entire period of their imprisonment needs to be thoroughly examined in another forum.
Alison McInnes’s amendment 5 raises two issues: one is the technical issue about human rights, to which she referred; and the other is a more general issue of principle, to which Elaine Murray referred.
On the technical issue, my recollection is that it was exhaustively and comprehensively investigated when we debated lowering the voting age for the independence referendum, and that reassurances were given that such a proposal was compliant. I therefore consider that the human rights argument in this instance is not well founded.
The issue of the general principle is an important one; it is quite simply the issue of whether, in the case of somebody who has had their liberty removed from them because they offended against society and the court saw fit to detain them, one of the consequences should be a suspension of their right to vote. In my opinion and that of my party, it is reasonable to take the view that that right should be suspended, and I think that that view is supported by the broader spectrum of public opinion. For that reason, my party will not support amendment 5.
The issue of prisoner voting is determined, defined and constrained by the terms of the Representation of the People Act 1983, section 3(1) of which provides that a
“convicted person ... detained in a penal institution in pursuance of”
their
“sentence is legally incapable of voting”
in any election in the United Kingdom.
The Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc) Order 2015 does not give the Scottish Parliament the legislative competence to alter section 3 of the 1983 act or to make any other provision about when someone is or is not “legally incapable of voting”. It therefore remains outwith the Scottish Parliament’s legislative competence for us to make provision in respect of participation in elections for people of any age—the issue that Dr Murray raised—who are in prison “in pursuance of” a sentence; existing United Kingdom law determines that entitlement.
I hope that, as a consequence of that explanation, it is understood by members that even if Parliament considered that what amendment 5 proposes would be a desirable thing to do, it would be outwith the Parliament’s legislative competence to act in that way. On that basis, and on the basis of the policy question, the Scottish Government opposes Alison McInnes’s amendment 5.
Alison McInnes asked me to consider the issue of compatibility with human rights legislation, and she raises an important question in that regard. I understand the arguments that Alison McInnes and others have made about the European convention on human rights, but I think that there are strong and clearly stated arguments as to why the bill is entirely compatible with the ECHR.
Section 29(2)(d) of the Scotland Act 1998 provides that any provision in an act of the Scottish Parliament that is not ECHR compliant is outwith competence; provisions must be ECHR compliant to be within competence.
The Scottish Elections (Reduction of Voting Age) Bill does not contain any provision that is outwith competence. Apart from the reduction in voting age, the franchise is a reserved matter. The narrowness of the section 30 order—about which I make no complaint, I should add—constrains Parliament to consideration of the reduction in the voting age and associated provisions. It does not provide Parliament with a general power to amend the eligibility provisions and the questions of franchise, which remain a reserved matter in terms of section 3 of the Representation of the People Act 1983.
In addition, the bill as introduced attracted a certificate of legislative competence from both the Scottish Government and, more important, the Presiding Officer. The bill does not and cannot make any provision that interferes with reserved matters. The matter of prisoner voting is reserved by section 3 of the 1983 act and its effects.
The Scottish Parliament does not have the necessary powers to change the position on prisoner voting. Once the remaining powers in relation to Scottish parliamentary elections and local elections are devolved to Parliament through the Smith process, which is of course the subject of the Scotland Bill that is currently being considered by the House of Commons, it will be for the Scottish Parliament to consider whether to change the current position on prisoner voting. However, the Scottish Government has no proposals to amend the rules on prisoner voting.
On the basis of two points—the point about policy that I have just set out and the point about legislative competence—the Government opposes Alison McInnes’s amendment 5.
The section 30 order hands this Parliament the power to legislate for 16 and 17-year-olds—not just some 16 and 17-year-olds. The Law Society of Scotland does not agree with Mr Swinney’s interpretation of whether it is competent to use the section 30 order to do what my amendment proposes. It is appropriate, I think, to test it.
Following a meeting earlier this month with Liberty, the First Minister said:
“Scotland and the United Kingdom have a strong record on human rights”.
When it comes to prisoner voting, however, that is simply not true. We are not just stubbornly trailing behind international best practice; Scotland and the UK are breaking international law. The Scottish National Party and other parties represented in the Parliament should not pick and choose which human rights to uphold and which to brush under the carpet because they might generate uncomfortable headlines.
Ms Goldie mentioned the petition for judicial review following the Scottish Independence Referendum (Franchise) Act 2013, saying that the matter had been properly tested. Of course, that is a different issue, as the question, and the ruling, which went all the way to the Supreme Court, made quite clear. The ruling from Europe did not relate to referendums; it was limited to elections.
It is not good enough to blame a legal catch-22. We need to break the impasse. Mr Swinney uses the reductive, circular argument that we are not allowed to make laws that do not comply and that, therefore, if we have made a law, it complies. That is not sensible at all.
Will the member give way?
No—I am just closing.
I appeal to the First Minister and the Cabinet Secretary for Justice: do not be timid about this; do the right, progressive thing.
Members should vote for amendment 5 and, if need be, we can allow the courts to decide whether we have overstepped the scope of the section 30 order. Scotland will be the better for that, and we will have shown that the Parliament is prepared to stand up for human rights and to take a different approach from that taken by Westminster. [Interruption.]
Order, please.
I hear sedentary interventions about the rights of all 16 and 17-year-olds being taken away, but that will not happen. As we have seen before, when there is a challenge to such a piece of legislation, it is expedited all the way through the courts within weeks.
The question is, that amendment 5 be agreed to. Are we agreed?
Members: No.
There will be a division. As this is the first division, I suspend proceedings for five minutes.
15:44 Meeting suspended.
We will now proceed with the division on amendment 5.
For
Finnie, John (Highlands and Islands) (Ind)
Harvie, Patrick (Glasgow) (Green)
Johnstone, Alison (Lothian) (Green)
McArthur, Liam (Orkney Islands) (LD)
McInnes, Alison (North East Scotland) (LD)
Scott, Tavish (Shetland Islands) (LD)
Urquhart, Jean (Highlands and Islands) (Ind)
Wilson, John (Central Scotland) (Ind)
Against
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Baxter, Jayne (Mid Scotland and Fife) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Gavin (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Buchanan, Cameron (Lothian) (Con)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Davidson, Ruth (Glasgow) (Con)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Goldie, Annabel (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alex (North East Scotland) (Con)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacKenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McCulloch, Margaret (Central Scotland) (Lab)
McDonald, Mark (Aberdeen Donside) (SNP)
McDougall, Margaret (West Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Pentland, John (Motherwell and Wishaw) (Lab)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division on amendment 5 is: For 8, Against 86, Abstentions 0.
Amendment 5 disagreed to.
Section 15—Looked after children: promoting awareness and providing assistance
Group 2 is on persons in relation to whom duty to promote awareness and provide assistance applies. Amendment 1, in the name of the Deputy First Minister, is grouped with amendments 2 to 4.
These amendments arise from evidence given to the Devolution (Further Powers) Committee by the centre for excellence for looked after children in Scotland.
Although CELCIS welcomes the provision in section 15 to place a duty on local authorities to ensure that looked-after children were aware of, and given assistance with, the appropriate arrangements to register as local government electors, it argued that the duty should be extended.
Section 15 currently covers young people who are looked after by a local authority under the terms of section 17(6) of the Children (Scotland) Act 1995. CELCIS suggested that the provisions in the bill should be extended to include young people who were formerly looked after and are now either continuing in the care placement or receiving aftercare services.
Having considered the issue, including during its oral evidence session on 23 April, the committee expressed sympathy for the proposed extension in its stage 1 report. However, the committee felt that
“consideration needs to be given as to how a local authority could be expected to deliver on such a duty”.
During the stage 1 debate, I said that Scottish Government officials would discuss the issue with the Convention of Scottish Local Authorities to determine whether there was a proportionate and practical approach that could assist, while avoiding unreasonable burdens on local authorities. I am pleased to say that COSLA has since confirmed that local authorities would be happy, in principle, to support young people who are continuing in care or who have left care in registering to vote.
However, like the committee, COSLA was keen to ensure that the extended duty should be framed in a way that recognises the practicalities of delivering aftercare and that account should be taken of any practical issues with the delivery of the duty.
The amendments that we have lodged for consideration by Parliament at stage 3 are designed to extend the duty to the relevant group of young people while allowing local authorities to decide how best to put the extended duty into practice.
After it has promoted awareness of the relevant registration arrangements among members of the relevant group, it will be for the local authority to
“take such action as the authority considers necessary”
to help them register.
Our discussions with COSLA have identified the need for clear and practical advice in that area. We have agreed to develop such advice, in consultation with local authorities, CELCIS and others.
Statutory guidance on corporate parenting duties under the Children and Young People (Scotland) Act 2014 will be published next month. That guidance has been produced in close collaboration with local authorities and relevant stakeholders, and I would expect the guidance on electoral registration to be produced in a similar manner.
It is right that, where there is an identified need for assistance to ensure that young people are able to register to vote, that assistance is given to them. In particular, and as CELCIS said,
“Where young people are in receipt of aftercare services, it is consistent with the intention of the Children and Young People (Scotland) Act 2014 that the ‘advice, guidance and assistance’ referred to in the Act should include help for the young people concerned to register as local government electors”.
It is also right that, for the arrangements to be effective, we need to make sure that local authorities can deliver. Therefore, subject to Parliament agreeing to the amendments, the Scottish Government will work with all those concerned to develop effective guidance.
I move amendment 1.
We welcome the amendments because they clarify the duty on local authorities to advise and assist looked-after children in using their right to vote, and they do so in a proportionate and practical way.
As the cabinet secretary said, CELCIS provided very detailed evidence to the Devolution (Further Powers) Committee. It noted, among other things, that last year
“local authorities varied considerably in the extent to which they helped looked-after young people, who live in quite complicated situations.”—[Official Report, Devolution (Further Powers) Committee, 23 April 2015; c 17.]
CELSIS did not intend to suggest that any councils were other than keen to be helpful and to provide appropriate assistance.
What the Deputy First Minister has described is an appropriate approach: it leaves discretion with local authorities, and it allows young people who have moved on but would still benefit from advice and assistance to access it. Voting may not always be a young person’s highest priority when they move into a new tenancy, for example, but having access to those citizenship rights can help to address the disadvantage that those young people often face.
I welcome the productive outcome that has been achieved as a consequence of input from CELCIS and agreement across the chamber.
Amendment 1 agreed to.
Amendments 2 to 4 moved—[John Swinney]—and agreed to.
That ends consideration of amendments.