Franchise for Shetland by-election to be aligned with court ruling

The Scottish Government will take steps this week to align the franchise for the forthcoming Shetland by-election with the European Convention on Human Rights (ECHR).

The necessary action follows the 2005 European Court of Human Rights ruling that found the UK Government’s blanket ban on prisoner voting is a breach of human rights.

The UK Government did not rectify this breach before powers over the franchise for Scottish Parliament elections were devolved in 2017, and the Scottish Parliament and Scottish Government are legally obliged to comply with the ECHR.

As the Shetland by-election will take place prior to the Scottish Parliament updating legislation to address the issue, the Constitutional Relations Secretary, Michael Russell, will make a Remedial Order bringing the franchise for the by-election into line with ECHR in order to ensure the by-election is secure.

The provisions in the Order reflect the intention of the Bill currently before Parliament - the Scottish Elections (Franchise and Representation) Bill – which, if passed, will extend the same rights to future devolved elections in Scotland.

The Order will allow prisoners who meet the wider franchise criteria, and who are serving sentences of 12 months or less, to register for a vote in the by-election in time for the 13 August deadline.

It is estimated that the Order will extend the franchise to fewer than five people who, if they choose to register, would then be able to vote.

Mr Russell said:

“The courts have been crystal clear – the blanket ban on prisoner voting is not compliant with the ECHR.

“Whether people agree with that or oppose it, one thing everyone should agree on is that elections must be compliant with the law.

“And, unlike the UK Government, who did not rectify this issue for more than a decade, the Scottish Government is legally obliged under the Scotland Act to comply with the ECHR.

“The timing of the by-election means action must be taken now, on a temporary basis, to ensure Scotland does not breach the ECHR.

“The Order will then be repealed prior to the full parliamentary debate on legislation to put in place a long-term solution to the issue.

“The resignation of the sitting Shetland MSP means that we have to move quickly to bring the resulting by-election into line with the law.

“This is a pragmatic, short-term solution, and our intention is that Bill currently before Parliament, if passed, will provide the longer-term solution.”

Background

In 2005 the European Court of Human Rights found in Hirst v United Kingdom (No 2) that the UK blanket ban on prisoner voting was in breach of Article 3 of Protocol 1 (A3P1) of the European Convention on Human Rights (ECHR).

The franchise for Scottish Parliament elections was devolved by the Scotland Act 2016, and commenced in May 2017, and elections to the Scottish Parliament fall within the scope of A3P1.

The Scottish Government and Scottish Parliament are statutorily required to comply with the ECHR and ensure that the franchise for elections to the Scottish Parliament, including by-elections, is compatible with A3P1.

The Scottish Government consulted on allowing certain prisoners to vote from December 2018 to March 2019. It introduced the Scottish Elections (Franchise and Representation) Bill on 20 June 2019.

Section 12 of the Convention Rights (Compliance) (Scotland) Act 2001 allows Ministers to make a remedial order where necessary to ensure compatibility with the ECHR. In this case, an order would be made under the procedure for urgent cases. It will come into force on 2 August, allowing sufficient time for registration by any eligible prisoners.

Anyone serving a sentence of 12 months or less and who can satisfy an Electoral Registration Officer that they would be ordinarily resident in the Shetland Islands if it weren’t for their imprisonment, will be eligible to vote.