Meeting of the Parliament

Meeting date: Thursday, February 20, 2020

Official Report 1246KB pdf

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Scottish Elections (Franchise and Representation) Bill

The next item of business is the stage 3 debate on motion S5M-20922, in the name of Michael Russell, on the Scottish Elections (Franchise and Representation) Bill. I inform members at the outset that we are short of time and it may be the case that decision time will be later than 5 o’clock.

I thank all the members who have engaged with the Scottish Elections (Franchise and Representation) Bill today and throughout its parliamentary progress. My thanks go to the Standards, Procedures and Public Appointments Committee for its scrutiny and to electoral professionals for sharing their expertise. Many others, such as the Scottish Prison Service and the Scottish Refugee Council, worked constructively with the Government to develop what is historic legislation. It has two significant aspects: one is the expansion of the franchise, which I will come to in a moment; the second is prisoner voting.

Fifteen years ago, the grand chamber of the European Court of Human Rights stated in its Hirst judgment:

“the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion”.

Member states of the Council of Europe are afforded a margin of appreciation about how they achieve compliance with the European convention on human rights, and each country has adopted its own position. The Governments in Wales and at Westminster have taken their own views, based on their own circumstances. I have highlighted that the very limited approach of the United Kingdom Government only allows those on temporary release on polling day to vote. Although I accept Mr Tomkins’s point about the Council of Europe, the UK Government’s position has not yet been tested in court. However, we are not here to speculate on the outcome of such a test; rather, our duty is to take action that is proportionate, justifiable and tailored to our system.

In 2018, the Equalities and Human Rights Committee recommended that all prisoners should have the right to vote. Last year, the Standards, Procedures and Public Appointments Committee did not reach a consensus, and we have discussed a variety of proposals as the bill has progressed. The bill, if passed, will set the threshold for prisoner voting at those who are serving sentences of 12 months or less. Twelve months was the most popular response in our consultation and it has a firm basis in our justice system. It is the maximum sentence that can be imposed in a case that is heard without a jury.

I remind members that, as the Presiding Officer reminded us before the meeting was suspended briefly, this is the first time in Holyrood’s history that a bill will need not just a majority but the support of two thirds of all members who have been elected to this Parliament in order to be passed.

If the bill is not passed tonight, we will still be obliged to ensure that all future parliamentary elections are ECHR compliant. A remedial order was required last year to bring the franchise for the Shetland by-election into line with the convention. That was not a move that I wished to take, but I felt compelled to take it. Without the bill, we would have no choice but to lay another order in respect of prisoner voting in Scottish Parliament elections. I do not want to take such an action unless it is absolutely unavoidable. I recognise that prisoner voting is an important, emotive issue, and it is one on which I want the settled will of the Parliament to be expressed. I hope that that will be reflected at decision time tonight.

Although the bill’s provisions on prisoners are driven by the compelling need to meet human rights obligations, our proposals on foreign nationals are driven by the reality and, I believe, the aspiration of modern Scottish society. European Union and Commonwealth citizens already have the franchise, but we must also recognise the enormous contribution that is made to our country by people from all over the world. That is why we are extending the right to vote in devolved elections to all foreign nationals who are resident in Scotland and have leave to remain.

Some have argued in the chamber—and, no doubt, some will argue this evening—that voting should be rooted in strictly traditional ideas of citizenship. I believe that it must be based on active participation in society. The extension of voting rights is especially meaningful in the atmosphere of uncertainty surrounding the UK Government’s plans for the immigration system.

The point that the cabinet secretary has moved on to is very important. My question to him is this: if the link between the franchise and citizenship is to be broken—we can take different views about that, but it will be broken by the bill—what is citizenship for?

That is a very interesting question, which Mr Tomkins raised at a previous stage. I would be happy to have that debate but, given the circumstances that we are in and the atmosphere of uncertainty over Brexit and immigration reform, I am happier to essentially recognise that the need for change is there. However, that does not exclude the debate that Mr Tomkins wants to have, and I would be happy to have it. It is part of the debate about modernising our society. I would argue that it is perhaps best expressed by having a modern nation to have that modern debate, although I do not believe that we presently live in a modern nation, given where the UK is. I do not want to dismiss that debate; I am simply not going to enter it now, because I do not have the full answers yet. However, we have an answer in terms of what we are attempting to do to modernise Scottish society.

We tried to cut through that uncertainty with our proposals for a new Scottish visa. However, as members will know, in a modern society, Scotland may accept that, but the UK dismissed it with contempt. That only serves to underline the importance of using the powers that we have to send the message that Scotland is open, is welcoming and is home to all those who choose to settle here. I am pleased to have introduced a bill that sends that message to the refugee community. I regret that we have not been able to find a workable way of extending voting rights to asylum seekers at this time, but I hope that that will not lead to any accusations that we do not wish to try to do so, that we are in some way dismissive or contemptuous of asylum seekers or that we are timid. We are going much further than almost any other country has done, and that should be recognised and celebrated.

The issue of who may stand as a candidate is related to that. There is a logic to the idea that candidacy rights should reflect voting rights, but the bill’s passage has illustrated that that is not so straightforward to achieve. We cannot, for example, pass legislation that affects the employment status or capacity of foreign nationals in the UK. If we did so, we would take ourselves outwith legislative competence. I would like to be permanently within legislative competence because this Parliament had all the powers, but we are where we are.

However, following stage 2, we have identified areas in which we could rightly go further, and we have brought them into the bill. For example, although EU nationals with settled status could stand as candidates under the bill as introduced, those with pre-settled status could not. However, those people are European Economic Area nationals and, as a result, we have been able to take the matter forward in a progressive way.

The bill reflects the reality of modern Scotland. However, no franchise is static. All franchises continue to grow, expand and develop. No doubt, franchise reform will continue in the chamber at some stage, perhaps in the not-too-distant future. I hope that those reforms will continue to reflect what the bill reflects: a Scotland that is committed to the treaties that safeguard our human rights, which wants to give a democratic voice to some of the most marginalised in our communities, and which welcomes those who seek to join our society. To make that vision a reality, we require the support of 86 members. I hope that members will recognise it as something that they wish to be part of, as they vote for the first time in a supermajority division.

I move,

That the Parliament agrees that the Scottish Elections (Franchise and Representation) Bill be passed.

16:15  

The bill has two major functions: reforming the franchise in relation to residence and nationality, and bringing about prisoner voting. Having engaged with the bill at all stages, I would like to again extend my thanks to the legislation team and to the Standards, Procedures and Public Appointments Committee clerking team for all their support as we have progressed.

There is, of course, a far longer history behind our consideration of prisoner voting. We will be conscious of the decisions of the European Court of Human Rights, which loom over the choices that we make. However, equally, there are members in the chamber who have a sincere and long-standing commitment to enfranchising criminals who are still serving their sentences. On that point, I straightforwardly disagree.

Looking back, we can consider the period in the run-up to the 2014 referendum, when Scottish National Party members lined up to condemn prisoner voting and to object to the decision of the European Court of Human Rights. In 2013, the current First Minister refused to countenance it, saying:

“if somebody commits a crime that lands them in prison, they break their contract with society and therefore lose some of the rights that the rest of us take for granted.”—[Official Report, 14 May 2013; c 19707.]

Unbelievably, I agree with her. It is a position that many people beyond the chamber still hold. Indeed, it is a popular one, as the former justice secretary Kenny MacAskill, who is now a newly elected SNP MP, recognised. He believed, it seems, that allowing prisoners to vote was the right thing to do, but the arguments in the corridors of St Andrew’s house seemed to be solely against it, focused as they were on newspaper headlines and the effect on the opinion polls ahead of the referendum vote. Mr MacAskill called that position “shameful”, and we can see why.

As I have said, many members and parties have sincere and moral positions on prisoner voting—in some cases, those are absolute; in other cases, they are qualified. Some believe that it should be restricted to less serious offenders, or to those who are undergoing rehabilitation with a view to soon re-entering the community. For others, the material point is compliance with the decision of the European Court of Human Rights. The bill does a poor job of satisfying any of those points. It does not address rehabilitation, it does not merely implement the decision of the courts, and it does not successfully exclude people who may have received relatively short sentences but who committed significant and unpleasant crimes.

If we are to accept the argument of the European Court of Human Rights that a blanket ban is a disproportionate interference with human rights, we should perhaps reflect on the circumstances here in Scotland. To be sentenced to imprisonment, even for a relatively short period, generally means that a serious offence has been committed, or that a person has a lengthy history of more moderate offending that has reached a head. A proportionality test is already built in. If we must accept the ruling of the court—and the Scottish Government has been reticent on that point for many years—we should not gold-plate the requirements that the ECHR places on us.

The UK Government has accepted—unhappily—that some movement has to be made on prisoner voting. It has set out a position that I would be tempted to term “minimal compliance”, and the Council of Europe has accepted it. The Scottish Government has not accepted that position and has voted against it today.

There can be little hiding from the fact that the bill will bring prisoners into our elections. That will be a consequence of a decision made at Holyrood, not of compliance with a court in Strasbourg.

As I have said, many people simply disagree with the proposal that prisoners—people who have stepped beyond the rules set by our society—should have the right to vote for the people who set those rules while they are still being punished and have yet to be rehabilitated and reintegrated into our community. Rehabilitation is necessarily a process, but it is not complete by day 1 of a short sentence. Even if the bill is to be passed today, several things could have been done to make it safer. I pressed two amendments. One was a commonsense approach that would have ensured that any election events taking place on the prison estate as a result of the bill were safe and did not disadvantage candidates who might for a variety of reasons not wish to campaign in a prison setting. It would also have ensured that proper risk assessments would be carried out, with prison governors given a role to protect candidates, prisoners and prison staff.

The second amendment called for a review of the bill’s effect after the next round of elections. We should be mindful of the significance of changing our electoral franchise materially and I believe that the bill should be given the proper post-legislative attention that it merits.

On the question of the franchise for foreign national voters, I accept that there are arguments on both sides. In some cases, residence may demonstrate an attachment to place. However, it seems to me that citizenship is not an irrelevant consideration. For people who come to Scotland and live here for a sufficient amount of time, gaining citizenship demonstrates not only a right to residence but an involvement with the civic life of the country.

Today will mark the end of a rather uncomfortable process through which convicted prisoners who are spending time in jail will be brought in as part of our democracy. Some people may pay little attention to it. The numbers involved—just over 900 prisoners, spread around Scotland—may not have a huge influence on the results of any given election. However, it was also a process through which the SNP Government has, in forcing through prisoner voting, U-turned on its previous position, jettisoned its principles and put itself firmly at odds with the views of the voters whom we in this place serve.

Before I call James Kelly, I can advise members that decision time is likely to be moved to 5.15 pm. I will advise better nearer the time, but the division bell will ring accordingly.

16:21  

I welcome the opportunity to open the debate for Scottish Labour on this important piece of legislation. There are two central parts to the bill: the extension of the franchise to include foreign nationals who are now resident in Scotland, and prisoner voting, which has been the subject of much debate this afternoon.

On prisoner voting, it is important to reflect on what has happened in the Parliament over the past six or seven years. The issue was considered ahead of the 2014 referendum and at that time the Government opposed extending the franchise to include prisoner voting, with Scottish Labour’s support. I spoke in the debate, from the seat that Mr Halcro Johnston is now sitting in, and I opposed prisoner voting. I suppose that a fair challenge to me and to the Government would be to ask what has happened to change our position.

I will submit two central reasons, the first of which is the European court judgment. Although it was around at the time of the previous debate, the bottom line was that various Governments, including the UK and Scottish Governments, danced around it and delayed any proper interaction with that judgment. That position cannot be sustained and we need to put in place a proper solution that extends the franchise to include at least some prisoners. It must be a serious and proportionate response, not the one that was put forward in the Tory amendment.

Will the member take an intervention?

Let me make my point about the Tory amendment, which would have allowed only those prisoners who were out on licence to participate in the elections.

Why does Mr Kelly think that we cannot stop at that level?

I will develop that point; I am trying to be helpful. As I said, I opposed the proposal in 2013 and one reason why I have changed my position is that I believe that we have to interact seriously with the European court judgment.

I will explain my second reason. As someone who held the justice portfolio previously and has recently returned to it, I have observed many of the justice debates, and it strikes me that, even among Tory members, many calls have been made for support to be provided for rehabilitation. I believe that giving prisoners with sentences of 12 months or less a vote in Scottish elections will help the process of establishing them as more responsible citizens who will make a greater contribution to society when they leave prison. I think that that represents a reasonable contribution to the rehabilitation process, alongside all the other rehabilitation techniques that we speak about in the chamber. For those reasons, I and Scottish Labour believe that the position that is established in the bill that we will vote on at decision time is the correct one.

The extension of the franchise to foreign nationals who are resident in Scotland is logical. People who reside here contribute to our economy and our communities, and they often work in caring professions such as those in the health service. Therefore, it is only right that we extend to them the right to participate in elections, to take part in the democratic process and to have a choice when it comes to the representatives who are picked and the Government that is elected.

My final point is one that I will expand on when I sum up. Allied to all the things that I have mentioned, there needs to be a process of voter registration and voter education.

As Mr Russell rightly said, the Scottish Elections (Franchise and Representation) Bill is an important bill that needs to achieve a two-thirds majority at decision time, and I hope that at least 86 MSPs will support it.

16:26  

The bill delivers important protections for the rights of EU and Commonwealth citizens and an extension of rights to refugees and others who have residency in the UK. Of course, Green members warmly welcome that tangible extension of rights; it is also an important symbol of how we increasingly base the definition of citizenship in Scotland on residency.

The Government has rightly used powers that were granted to the Parliament under the Scotland Act 2016, but I remain disappointed that it has not pushed right up to the limits of devolution by extending franchise and candidacy rights further. There will still be barriers to the rights of people in our communities, which will act against integration. Some of those barriers will be the result of choices that the Parliament has made this afternoon. Rather than having anything to do with immigration status, those choices represent a clear flinch away from administrative complexity.

Throughout the progress of the bill, the cabinet secretary has said repeatedly that the best is the enemy of the good, but it was clear in the vote earlier this afternoon on the proposed extension of the franchise to asylum seekers that there would have been a supermajority in favour of that change if the Government had actively chosen to resolve in advance the policy complexities that were flagged up months ago. Surely it cannot be beyond the capabilities of Government to work with electoral registration officers to take a 55,000-person franchise extension and add a further 5,000 people who have similar residency status issues.

The cabinet secretary will be relieved to hear that I am ready to move on, but I hope that the Government is, too. The debate about asylum seeker voting rights has been important but, of course, democracy is not just about single electoral events at which representatives are selected; it is also about participation. Maybe community councils could be opened up to asylum seekers who are resident in communities but who are not on the electoral register; maybe citizens juries and assemblies could include asylum seekers. Perhaps the Government can find a way to revisit the issue of the franchise sooner rather than later.

Will the member take an intervention?

If I have time—I am sorry; I do not think that I do.

On candidacy rights—

Excuse me, Mr Ruskell. I do not remember answering. I can give you time to take the intervention.

I have a very short question. How can somebody who is not a citizen play a meaningful role in something called a citizens assembly?

Because they are resident. If our citizenship is based largely on residence, the fact is that those people will be in communities. They have views, access services and contribute to society. They have voices and we want to hear those voices, because they might actually make our society a better place for them and for the rest of us.

On candidacy rights, the concerns about those who have limited leave to remain not seeing out terms is a red herring. Many people are granted repeated periods of temporary leave to remain over many years. In many ways, their circumstances are similar to those who face financial or health insecurity but still stand for election. Diverse proportional electoral systems with lists and multimember constituencies can handle departures, whatever the cause.

On prisoner voting, the one-year cut-off point is open to challenge. If the Government was confident of its position in the bill, it would not have accepted Mr McArthur’s amendment to keep the door ajar. Many will be watching this space and I am sure that some will consider jumping into it.

Finally, I want to address candidacy rights for young people between the ages of 16 and 18. I am in no doubt about the capabilities of young people in leading our world. We only have to see the contrast between Greta Thunberg and Donald Trump to see that maturity and childishness can take unexpected forms. However, I recognise that matching the franchise with candidacy rights for young people requires careful thought and consideration, especially when it comes to safeguarding issues. The thinking has started and I hope that the next Government can be bold and formally revisit the issue.

Indeed, the whole process of electoral reform and revitalisation of our democracy has barely begun. There is much work to do, and it will require vision, a bold Government and a Parliament that is willing to challenge and push the boundaries further and further.

16:31  

As the cabinet secretary acknowledged, inclusion has been a common theme during today’s debate and earlier debates on the bill. I am grateful, therefore, to have an opportunity to contribute on behalf of the Scottish Liberal Democrats and I pay tribute to the Standards, Procedures and Public Appointments Committee for its efforts in leading the scrutiny of such important legislation.

We need only cast our minds back to the previous parliamentary session, when amendments on prisoner voting from my colleague Alison McInnes were twice voted down, to see how far we have come to reach this point. I acknowledge the candour that was shown by James Kelly in talking about his journey in that respect. The legislation bears witness to the fact that even the most hardened narratives can be shifted if people are willing to make arguments or cases that are not easy or popular. In a week when self-defeating immigration policies rooted in xenophobia have been proposed, that is an important point to remember and cling to.

The UK is a nation of immigrants and we should be proud that people want to come to our country and work in our national health service and our schools, and to be part of our society. Those who want to make Scotland their home should be helped in their efforts to make a contribution to their new community. If someone has been forced to flee their home to escape war and persecution, they should not be confronted with needless barriers to integration. We should be tearing down walls, not building them. Extending voting to those who are legally here will help in a small but important way to do that.

Diversity in the UK should be celebrated. Our political institutions draw strength from the extent to which they reflect the people they are there to represent. Scottish Liberal Democrats are internationalists. We believe passionately in the values of human rights, democracy and equality. I am hopeful that the bill will play an important part in progressing those values in this country.

It is quite clear that the current blanket ban on prisoner voting flouts international law. The truth is that no other developed European democracy does that. It is not fair or progressive and it is not in the interests of rehabilitation. We know that if we are to reduce reoffending, we need to make people more aware of their responsibilities as citizens, rather than alienating them further.

I am not entirely convinced that drawing a line at 12 months is sufficient to meet ECHR obligations, but I am grateful to the Government for accepting my amendment for a review, to leave the door open to further change if necessary.

In any case, Scotland should not make a habit of settling for the bare minimum on human rights, as we did with the age of criminal responsibility last year, despite my party’s best efforts. Human rights are not pick-and-mix principles; they apply to everyone.

Prisoner voting rights are unrestricted in many developed nations across the world, including Austria, Canada, Denmark, Norway, the Netherlands and Sweden, to name but a few. Despite some of the rhetoric that we have heard this afternoon from Conservative members, those democracies have not collapsed in on themselves. Instead of stubbornly trailing behind international best practice, Scotland should be pushing it. Although the bill will not put us at the forefront, I remain hopeful of more progress in the future, which will build on the welcome steps that we are taking today. On that basis, Scottish Liberal Democrats will support the bill at decision time.

I advise members that we are still running behind time. Therefore, I invite the cabinet secretary to move a motion, under rule 8.14.3, that the debate be extended by up to 30 minutes.

Motion moved,

That, under Rule 8.14.3, the debate be extended by up to 30 minutes.—[Michael Russell]

Motion agreed to.

We move to the open debate and speeches of up to four minutes.

16:36  

Over the course of this parliamentary term, members of the Standards, Procedures and Public Appointments Committee, of which I am the convener, have delved into poignant questions that have been posed by the Scottish Elections (Franchise and Representation) Bill.

As the bill’s name suggests, the questions revolved around core elements of democracy: the role of the social contract, obligations of the state, protection of voting rights and extension of the franchise. Those are all complex points of discussion and I take this opportunity to thank my fellow committee members and the clerking team for their dedicated and sincere engagement with those points over the past months. A good deal of work has gone into the creation of the bill and I am pleased with the outcome so far.

We have collectively pushed on to find the most appropriate, legally compliant and just way forward. In saying that, it should be noted that not all committee members agreed on every element, but any disagreement was carried out in a dignified and civilised manner and I thank the committee members for that. I echo the cabinet secretary’s hope that a two-thirds majority, at the very least, agrees to the bill.

The need to bridge a legal contradiction that has arisen between the Scotland Act 2016 and the blanket ban on all prisoners voting necessitated the creation of the bill. The blanket ban has only a short historical precedence; in fact, until the 1960s—relatively recently—many prisoners in the UK were enfranchised. Now, our current law is at odds with the conclusions of many legislators in other healthy democracies and is in conflict with the ECHR and the Scotland Act 2016.

Following Scottish Government consultation and committee engagement, the bill amends current legislation to extend the franchise to prisoners who are serving a sentence of less than a year. That conclusion has been reached on the basis that there should be a relationship between the seriousness of a crime and the ability to vote. What is notable about the cut-off point is that 12 months is the maximum sentence that can be imposed in a summary trial. A summary trial does not involve a jury and considers only crimes of a less serious nature.

As the committee members did not all agree on everything, the committee found a balance of a 12-month cut-off, which reflects the outcome of the Scottish Government consultation. The balance also provides the Scottish Parliament with a way forward that is compliant with our specific ECHR duties under the 2016 act. In addition, that way forward maintains the extremely important link between the right to vote and the fulfilment of the social contract. Aside from those elements, the bill brings about other changes that will make the extension of the franchise reflect Scottish society in the globalised 21st century. An elevating element of the bill is to allow qualifying foreign nationals to vote. Such a legislative change means that the evolution of migration and its impact on the make-up of Scottish society is recognised.

Importantly, the change also ensures that EU nationals who are living in Scotland with settled status will still be able to vote in post-Brexit elections. Moreover, the legislation empowers refugees with leave to remain by extending the franchise to them. Anyone who has the right to remain will have the right to vote in Scotland, which is an incredible step forward.

Voting for legislation that takes crucial steps towards empowering vulnerable or socially disenfranchised groups is a powerful moment for legislators. Today, we have the opportunity to vote for a bill that will make our voting landscape brighter and more reflective of the inspiring and evolving society that defines Scotland. I hope that everyone will join me today in making that a reality.

16:40  

I shall not vote for the bill, as it proposes to give the vote to prisoners who are serving sentences in prison.

I address my comments, not so much to the likes of Alex Cole-Hamilton, who has been consistent that the vote should be given to prisoners simply because—and I paraphrase here—they should have their voices heard and influence how the country is run. I fundamentally disagree with that premise, because I cannot accept that those who commit crimes of such severity that, despite the presumption against short sentences, the desire to give community disposals and the increase in electronic monitoring, they still go to prison, should be granted the vote over the rights of the victims that they offended against. However, I accept that that position will not be swayed by recourse to the cold reality of legal argument.

Furthermore, I shall not expend time addressing those whose position crumbles in the face of facts, yet will not change their vote. I have in mind those such as Gil Paterson, who rehearsed today during the debate on amendments what he said at stage 1:

“in my opinion, those who have been convicted of more serious crimes, particularly those of a sexual nature, violent crimes and crimes that harm people, have forfeited their right to vote.”—[Official Report, 28 November 2019; c 93.]

That accords with the Government’s position that voting rights should be extended only to those convicted of less serious offences. That is spot on. In 2018, nearly 9,500 people received a custodial sentence of 12 months or less. Of those, more than 100 were convicted of attempted murder or serious assault, 98 were sexual offenders and 329 were convicted of handling offensive weapons. Mr Paterson is right—they should forfeit their right to vote. Nevertheless, he voted at stage 1 to give them the vote and, in doing so, he made it clear that logical argument would not change his position.

Presiding Officer, I address my comments to those who seek the sanctuary of the European convention on human rights and say, “Look, I don’t like it but we must go to 12 months to be compliant.” That argument is fundamentally flawed, because nowhere does the convention accord an individual right for prisoners—or anybody—to vote. That makes sense, because when someone is punished by imprisonment for committing a crime, certain of their rights are curtailed, such as the rights to freedom and privacy, as well as the right to vote. For 23 years, until the Hirst case in 2005 discovered it, there was no such right.

Leaving aside the difficulties in that case, which Adam Tomkins highlighted at stage 1, there was no respect in that judgment for the margin of appreciation on which the convention system depends. That margin is part of our law. At an earlier stage, the Law Society of Scotland made it clear that

“the franchise of prisoners may be restricted, provided that the restriction is proportionate”

to achieving

“a legitimate aim”.

The cabinet secretary is an authority for that. He stated that

“Members who are familiar with the Hirst ruling know that the court allows member states a wide margin of appreciation”

and that

“there is no one-size-fits-all approach to ensuring compliance”.—[Official Report, 28 November 2019; c 64.]

He is correct. That is why the United Kingdom’s solution to the Hirst case—to give the right to vote to prisoners who are released on temporary licence or on remand—has been accepted as a solution by the Committee of Ministers, which is the enforcement agency of the Council of Europe.

The inescapable conclusion is that this Parliament is not mandated to enfranchise this category of prisoners and is going further than is necessary or desirable in order to meet the Hirst requirements. Therefore, those who claim to vote for the legislation because of an obligation to comply with the law are misguided. They are making not a legal but a purely political decision.

Let there be no doubt that any member who votes for the bill at decision time tonight is voting to prioritise giving prisoners the vote over the human rights to life, to freedom from torture and to freedom of family life for victims and their families. They are doing so, not because they are required to by any law or legal principle, but because that is where their priorities lie. Let them live with the consequences and their consciences.

16:44  

I am pleased to speak in the stage 3 debate on the Scottish Elections (Franchise and Representation) Bill. In the stage 1 debate, I commended the committee for its report on the bill. I reiterate that and I commend the work that the committee has done to take the bill through to stage 3. I welcome the direction that has been taken by the bill and I believe that it will strengthen and improve the administration of devolved elections here in Scotland.

Increasing participation in elections by encouraging people to vote and stand for election should be a key priority for any well-functioning democracy and I am glad that the bill will help in that regard. I welcome Scotland taking measures that will give the right to vote to more people who live, work and make their homes here.

During the debate on amendments, Professor Tomkins raised concerns regarding the concept of citizenship. I draw his attention to a briefing for the debate that came through this morning, from the Scottish Refugee Council. It states:

“As it stands, the vast majority of refugees cannot vote in any election in the UK until they have acquired British citizenship. Refugees from former Commonwealth countries are the only exception, as they are considered ‘qualifying foreign nationals’ for the purpose of elections. We believe that the requirement to obtain citizenship in order to vote creates an unreasonably high barrier to political participation for refugees. Not only is the citizenship process expensive and complex”

—and it is—

“it can only be applied for after a minimum of six years residence in the UK. Many refugees living in Scotland do not have British citizenship and live here either with leave to remain as a refugee (five years leave) or indefinite leave to remain.”

I welcome the fact that the bill is set to change all that by enfranchising everyone who is lawfully resident in Scotland, regardless of nationality.

As I said, foreign nationals who make their homes in Scotland contribute greatly to our society. It is only right that those who are legally resident in Scotland and who contribute to our society in Scotland should have a say on the decisions that affect their daily lives.

I am pleased to support the bill and I hope that it sends a message that Scotland is a welcoming, inclusive country, where everyone is treated equally, no matter where they are from. I hope that the bill has a positive impact in showing those who are lawfully resident in Scotland that they have a voice and that this country is their home. I also hope that it helps with further integration in our communities, and that it helps to deliver the inclusive Scotland that I believe all of us in this chamber want to achieve.

16:47  

Our making use of the powers over elections and franchise provisions that were devolved to the Scottish Parliament by the Scotland Act 2016 is essential to the creation of a fairer and more inclusive Scotland. The proposals in the Scottish Elections (Franchise and Representation) Bill will—in my opinion—enhance democracy in Scotland, and enhance Scotland’s standing among the world’s democratic nations.

The decision by Parliament to lower the voting age to 16 has already had a significant and positive impact on political activity, through bringing appreciation of and involvement in the political process to Scotland’s younger voters—which is in stark contrast to their experiences elsewhere in these islands.

There is no doubt that issues including climate change and Brexit will have much more severe long-term implications for the younger generations, so their strong voice should be heard. In Scotland, because of franchise changes that have already been made, that can happen through the ballot box.

It has always shocked me that the so-called universal franchise in the UK is so restrictive. For example, EU citizens who make their homes and raise their families here, and who contribute to the economic and social wellbeing of this country were denied the right to vote in a referendum that will remove the UK from the European Union. People who have a legal right to residency in Britain should also have the right to vote. I am pleased that the bill will at least provide foreign nationals with that right, and with the right to stand for election in Scottish Parliament and local government elections. It is telling that 92 per cent of organisations and 78 per cent of individuals who responded to the Scottish Government’s consultation support the reform. To me, that says that we are going in the correct direction, towards creating a better and more inclusive society.

Although my heart says that we should incorporate asylum seekers in the new provisions, I have to agree with the comments that the cabinet secretary, Michael Russell MSP, made on 10 October 2019, when he articulated the problem to the Standards, Procedures and Public Appointments Committee in an evidence session, and which he backed up today very well. In essence, he said that, under UK jurisdiction, it would be extremely difficult to grant the right to vote to people who have no right to be in the UK in the first place. However, if migration is devolved to the Scottish Government or if Scotland becomes an independent nation, I am sure that that will change for the better.

The proposal to give voting rights to prisoners who are serving sentences of 12 months or less is just about correct. I am particularly interested in such sentences. I believe that women who have, perhaps repeatedly, committed low-level crimes to help their families should not be incarcerated; I find it barbaric. However, the fact that such women will be entitled to vote goes a little way towards dealing with how I feel about that issue. Such women are in poor circumstances that have often been brought about by society and by pressure that we put on them by, for instance, cutting financial support to which they should be entitled.

As well as achieving compliance with the European convention on human rights, the provisions fulfil our desire for rehabilitation of prisoners, particularly those who are on short sentences and who have committed less serious crimes, while excluding those who have been convicted of serious crimes and who are a danger to our progress towards being a better and safer society. The majority of people in Scotland want that to happen.

16:52  

Much of the debate has focused on prisoner voting. It is perhaps a sign of the progress that Parliament has made that, in 2020, we have arrived at a position in which we are prepared to support prisoner voting, or a partial extension to prisoners of the right to vote. I explained in my opening speech the reasons why I opposed such a measure in 2013 and why I support it now. Many members who will vote tonight took part in that vote in 2013. That shows that we are a democratic institution in which members are prepared not just to accept their legal responsibilities, but to examine issues in order to arrive at a position.

Jamie Halcro Johnston outlined a situation involving Kenny MacAskill and a lot of nervousness behind closed doors. That is possibly accurate, but we are where we are now.

Liam Kerr said that he feels that many members are hiding behind the European court judgment and saying that we need to do something to comply with it. However, from looking at the debates that have taken place on the issue, not just in the chamber but in committees, and from speaking to members around Parliament, that is not my experience.

This is a difficult issue for MSPs of all parties; members will have debated it in their party groups. Ultimately, the consensus at which Parliament will arrive will not only be the right one, but will be one that MSPs are comfortable with. In that regard, it is helpful that a supermajority in favour of the bill is required, because this is a big change. It is a change from our previous position that will require the support of 86 MSPs at decision time for the bill to become law. That shows that the arrangements around such legislation are robust.

I accept the point that Mr Russell made earlier on balance. I am sure that he will correct me if I am wrong, but I think that he said that based on the current prison population, 695 prisoners out of a population of just over 6,000 would be covered. I think that that is right and proportionate.

Liam McArthur’s amendments that were agreed to will provide the ability to review arrangements after Scottish Parliament and local elections have taken place.

There have also been good contributions on non-Scottish citizens who are legally resident here being part of the franchise. Alex Rowley made a very good speech on that. It is right, if we are a modern country and if we are asking people to live and work here, and to contribute to our community and economy, that those people have the vote.

Scottish Labour will support the bill at decision time. It makes important changes and will send the powerful message from the Scottish Parliament that we are extending the franchise.

16:56  

The cabinet secretary, Mr Russell, described the bill earlier as a

“significant—in fact, a massive—step forward”

and later described it as “a historic change”, which I think it is. It is a historic change that goes to the heart of something that Bill Kidd said in his opening remarks when he talked about the role of the social contract. That is what I will talk about in my closing remarks.

The Scottish Conservatives will oppose both parts of the bill, for the same fundamental reason: we do not think that the franchise should be extended to foreign nationals on the basis of residency and we do not think that the franchise should be extended to prisoners who are serving terms of imprisonment in Scotland. The reason why we think that ultimately boils down to the fact that we think that voting and the franchise are intimately associated with citizenship.

There is an alternative view, which has been eloquently put in the debate by Mark Ruskell and Liam McArthur in particular. They take the view that there is no relationship any more, in the modern world, between citizenship and voting; that the historic link between the franchise and citizenship—which they must surely acknowledge as a matter of history—has now been broken; and that the right to vote is just like any other human right, in that it is basic and universal and shared equally by us all.

However, that is not the view on voting that we in the Conservative Party take. It is also not the view on voting that is taken in the European convention on human rights. As Liam Kerr correctly said, there is no right to vote in the European convention on human rights, because those who wrote the European convention on human rights understood that the right to vote—fundamental as it is to our social contract—is not a human right, because we do not share it universally. It is a right that is associated with citizenship.

The United Kingdom is not and never has been a country that insists that someone must be a British citizen before they can vote here. We extend the franchise to Irish citizens and citizens of Commonwealth countries who are lawfully resident in the United Kingdom, because they have citizenship that is intimately associated with the United Kingdom. The bill goes so much further than that in breaking the link altogether between citizenship and the franchise.

If that is what we want to do—fine. I completely respect the position of Mr Ruskell and that of Mr McArthur, which is that the historic link between citizenship and the franchise is no longer material and that we should treat voting as a universal human right. That is fine and is a perfectly respectable position. However, the passage of the bill poses an interesting and profound question that the Scottish Parliament will need to address in the near future: what do we think citizenship does and what value does it add to residency if it is not partly encapsulated by the right to participate in and vote in elections and referendums in this country?

I do not think that citizenship is all about voting—there is much more to citizenship than that. However, I do not want to break that link between citizenship and the franchise. That is the reason of principle—the philosophical reason—why we will oppose the bill tonight. I fully understand that that is not the only principled position that one can take on modern electoral law, but that is our position and has been throughout the passage of the bill.

I will say a few more things about prisoners’ right to vote and the Hirst judgment, which Liam Kerr so expertly demolished in his remarks. I have already said that there is no right to vote in the European convention on human rights, so the Hirst judgment rests on a double legal error: first, it pretends that there is a right to vote under the ECHR and secondly, it says that the then UK legal position was a blanket ban on prisoner enfranchisement. Several members have used the expression “blanket ban” this afternoon and they are—as was the European Court of Human Rights—with respect, wrong to do so. There is no blanket ban and there has never been a blanket ban on prisoners voting in the United Kingdom: prisoners on remand can vote and prisoners who are incarcerated because they are in contempt of court can vote; they have never been disenfranchised. That is not a blanket ban. It is a general prohibition on voting, to which there are specific exemptions.

The European Court of Human Rights should never have gone anywhere near the issue because there is no right under the convention and no pan-European consensus on the matter, and because it should have given the United Kingdom the margin of appreciation that we are due as a member state of the Council of Ministers.

Will the member give way?

I am in the last few seconds of my speech, so I do not have time.

The European Court of Human Rights should never have gone anywhere near the issue for all those reasons. However, the solution does not rest in enfranchising all prisoners in Scotland who are sentenced to terms of imprisonment of up to a year. Minimal compliance with that doubly rotten judgment, which is what the United Kingdom is avowedly doing, is still compliance.

Mr Russell says that it is all very well for the Committee of Ministers to sign it off, but it could still be challenged in court. My question for the cabinet secretary—if he is still with us—is this: can he tell us of a case where the Committee of Ministers has accepted the position of a member state but where that position has nonetheless been challenged successfully in court? There is no realistic prospect of the UK’s position being successfully challenged in court, given the view of the Committee of Ministers. Those are the reasons of principle on which the Conservatives rest this evening.

17:03  

I will follow on from what we have just heard from Mr Tomkins in a positive sense, because members hold genuinely different views, and there are different views on what the position is under ECHR. Since Hirst, the European Court of Human Rights has reiterated that the right to fair and free elections includes the right to vote. There is a margin of appreciation, but that is not unlimited. A blanket ban is outside that margin and that is where we are today.

There is a difference of opinion and there will always be a difference in opinion. We should respect each other in those circumstances. The only departure from that today came, regrettably, from Liam Kerr, who started out accepting the different views and then in his last few minutes went into the Tory law and order rant. I want to draw him back from that and towards a piece of evidence from Her Majesty’s Inspectorate of Prisons for Scotland. The HMIPS is a body that is not partisan in the matter and in its submission to the Standards, Procedures and Public Appointments Committee in September 2019, it said about people in prison:

“Their path into crime often starts with vulnerabilities not properly identified or responded to at the appropriate time or a lack of opportunities, sometimes linked to deprivation and other barriers that are not easily overcome. Exclusion from the electoral process may potentially only add to their sense of alienation and marginalisation in a way that may not help with efforts to encourage rehabilitation and reduce the risk of reoffending. That would not be in the best interests of society, even though that may not necessarily be fully recognised by the public.”

That is a very significant contribution to this debate.

We must recognise that our job is to take a proportional judgment between that position, which we respect, and the positions of others who are totally opposed to this, such as victims of crime. Not all victims of crime are opposed to it, but some are. We are trying to take that proportional position.

We are doing that in the context of franchise reform. No franchise is static; all electoral franchises are dynamic. There will be common ground. The Abbé Sieyès, the intellectual father of the French revolution, believed in direct, positive, participatory democracy. I am not trying to equate the Abbé Sieyès with Adam Tomkins, but he asked the question, “What is the nation?” Asking who is a citizen is an entirely legitimate thing to do.

The process of changing the franchise is not instantaneous. No franchise is ever fully formed; it continues to change and develop. What we decide here today will change in time and there will be different approaches. That is one reason why I backed Mr McArthur’s recommendation. It is right that we look at this again in future and ask whether there are changes that we still need. Those will not be considered in that review, but the equation between the right to vote and the right to stand is a legitimate issue that must be considered. We have not consulted on the right of 16 and 17-year-olds to stand, but that must be considered at some stage. Things keep evolving.

I do not say this unkindly, but one common theme in this debate has been the Conservative view that things should not change fast at all. The name “Conservative” gives that away. They think that things should not change. Radical voices will move us forward. That is why I respect Mr Ruskell’s ideas, but there is a job in the middle. That job is not to hold things back, but to make sure that they can be put in place in an efficient, effective and achievable way, because there is no point in doing things that are not achievable. That is what we have been trying to do.

Mark Ruskell urges me to get to the limits of devolution. I want to go well beyond the limits of devolution, but I want to do it in a way that is sustainable and that allows us to say to the people of Scotland that we have done it, and that it is going to happen. We cannot do that and say to people that we have done something on a wing and a prayer and hope that it might work. We are responding to advice, as it is our job to do, and moving forward.

We must also recognise—which I am sure that Mr Ruskell will accept—that we cannot do everything under devolution. That is why I believe in independence. We must do things fully and completely. We cannot design an electoral system that takes in substantial issues of migration without saying that we need to change the system of migration. We must recognise that there are things that we should be able to do but cannot do. I want to be bold; I do not want to be timid or timorous and I am not, but boldness is not just about words. Boldness is about achieving. It is about actions that stick. It is moving things forward constructively so that they will stick. That is what we have been trying to do.

I will finish on another quotation. I started with one from the evidence to the Standards, Procedures and Public Appointments Committee. Alex Rowley quoted the evidence from the Scottish Refugee Council. We must keep in mind that this is a radical and progressive bill. Sometimes the forces of progress in this Parliament are divided by questions, including by the constitutional question. It is possible for the forces of progress to come together and to say that we have some common view of what Scotland should look like and that it is not only defined by the constitution. Can we put elements of that into place now, even with the limits of devolution?

This is one of those moments when we have the opportunity to look at the type of Scotland that we would all like to achieve—the things that are important in our vision of Scotland and to put them in place.

The Scottish Refugee Council talked about the bill in those terms in its evidence in the briefing note to which Mr Rowley referred. It said:

“This Bill is a truly exciting piece of legislation, set to address a longstanding democratic deficit whereby thousands of New Scots have been unable to participate formally in Scottish democracy ... By granting voting rights to all those who are lawfully resident in Scotland ... this legislation”

reflects Scotland’s reputation for being

“a welcoming, inclusive country, where everyone is treated equally no matter where they are from.”

Given that, for the first time ever under devolution, we are dealing with legislation that requires a supermajority, the passing of the bill requires 86 or more progressive voices. I have never seen Mr Rumbles as one of those progressive voices—

Oh!

—but sometimes I am wrong. I know that that is a surprise—I see that Mr McArthur and Mr Simpson look shocked by that idea. Yes, sometimes I am wrong, and if there are progressive voices to be heard, I look forward to hearing them, including from all the Liberal Democrats, as forces for progress.

We need 86 or more progressive voices in this chamber who will say, “That is the type of Scotland that we want to deliver. No matter our views on other matters, let us deliver it.”

To conclude, I go back to where I started. There are different views about how democracy changes and there are different views on the society in which we wish to live. Some contend, as the Conservatives do, that we already live in perfection. Some of us believe that we live in imperfection, and that we need to continue to change and develop the society in which we live. However, from time to time, all of us in this chamber get the chance to show what we believe, to show whether we believe in having a progressive society and to show our philosophical view of what society is. Mr Tomkins has laid out eloquently some of the elements of his own vision, but tonight we have a chance to move in a progressive way.

I ask all members in the chamber to consider very carefully before they cast their vote, given the requirement for two thirds of members to show their progressive instincts, the issues of prisoner voting and the wider franchise, and to ask themselves what that says about their views of Scotland. I ask that members vote with their conscience on the matter. I shall support the bill at decision time; I hope that they do, too.