Every prisoner in Scotland should be given the right to vote in elections, according to an independent penal reform organisation.
Howard League Scotland believes that extending the vote to all prisoners is a human rights issue and says there was “questionable justification for the ban at its outset”.
This means that some prisoners will eventually be able to vote in both Scottish Parliament and local government elections.
The European Court of Human Rights (ECtHR) found in 2005 that the UK’s ban on any convicted prisoners voting in elections went against their human rights but the court did not state that all prisoners should be given voting rights.
The dispute erupted when the ECtHR ruled on a challenge over prisoner voting rights brought by John Hirst, who was serving life for manslaughter.
The court declared that the blanket ban on prisoners participating in elections violated human rights and was illegal. Despite similar judgments in subsequent cases, the UK initially refused to enforce the ruling.
During the standoff, Strasbourg formally accepted that member states should be given a wider “margin of appreciation” in enforcing human rights according to their national justice traditions.
However, the Council of Europe insisted that some identifiable categories of prisoners should be included in the extended franchise, though it did not specify how many prisoners should benefit.
The Scottish Parliament’s Equalities and Human Rights Committee recommended in May 2018 that a ban on prisoner voting should be removed.
The Scottish Government, however, does not believe it would be right to give all prisoners the vote and has been seeking views on its plan to only give the franchise to inmates serving short sentences.
A wide range of organisations and individuals have now submitted views on what the appropriate length of sentence should be, as well as ideas on how to address practical issues associated with giving prisoners the right to vote.
The existence of a universal franchise is an important measure of the strength of our democracy and of social equality. Howard League Scotland
Howard League Scotland said in its submission that extending the vote to prisoners was not simply about criminal justice, penal reform or rehabilitation.
It was about “creating a universal franchise for all adults in Scotland and ensuring democratic rights for all citizens,” the league argued. “The existence of a universal franchise is an important measure of the strength of our democracy and of social equality.”
The United Nations said in 2001 that a ban on prisoner voting amounted to an “additional punishment”. Prisoners were inflicted with “civic death”, the league added.
It also argued that by extending voting rights to all prisoners the Scottish Parliament would signal its commitment to “justice and fairness”, and make a bold statement on the international stage about the “inclusive and democratic character of its society”.
The Scottish Human Rights Commission (SHRC) said that the right to vote should not be linked to the length of sentence, agreeing that disenfranchisement constitutes an additional penalty.
In its submission, SHRC cited a report by the Equalities and Human Rights Committee (EHRiC), which said it seems unlikely that not being able to vote would deter people from committing a crime.
SHRC said it was persuaded by the EHRiC report, which concluded that not being able to vote “does not seem to be linked to protecting the public from the commission of other crimes.”
The EHRiC added that not being able to vote might could also impact negatively on an individual’s rehabilitation and, on the basis of this evidence, “it would seem that decisions on allowing prisoners to vote or not are more linked to issue of retribution or punishment than anything else”. SHRC agreed with this view.
Others arguing that all prisoners should be allowed to vote included Fergus McNeill, professor of criminology and social work at Glasgow University. He said the right to vote should be given unless someone’s offence relates to voting or political participation in some direct way – if the person is convicted of electoral fraud, for example.
However, other respondents to the consultation argued that dangerous and long-term inmates should be denied the franchise. They included the Faculty of Advocates and Law Society of Scotland who both say the cut-off point for prisoner voting should be sentences of four years or less.
The Law Society of Scotland suggested that the length of sentence was a matter for parliament to determine. “However taking into consideration the new presumption against prison sentences of a year or less, the proposals for a six or 12 month cut off would likely have a much smaller impact than estimated in the consultation paper,” the society said.
“If a ‘short-term sentence’ is considered something less than four years, perhaps that would be the right reference point.”
East Lothian Council said that anyone sentenced to six months or less should have the automatic right to vote and that all long term prisoners should vote “from the time they are no longer deemed as presenting a risk to the public”.
The Scottish Courts and Tribunals Service (SCTS) said that disenfranchisement applied as an additional penalty would require judges to apply principles on a case by case basis.
“This would result in an impact on the SCTS in respect of court time and relative court programming, associated staff training and accommodation resources, and costs involved in relevant IT changes,” SCTS added.
“It may be anticipated that such an order would be appealable as though it were a sentence of the court, with the associated costs to the SCTS of the appeal process. The SCTS would therefore welcome the opportunity to be kept informed of any developments, including, where required, contributing towards any financial memorandum or relevant impact assessment.”
On practicalities, the Electoral Commission cited the current process for registering HM Forces personnel as service voters as an example of a system used for a specific group of people who are not living at their usual UK address.
“HM Forces service voters are listed as ‘other electors’ on the register when they no longer have a connection to their qualifying address,” the Electoral Commission said.