Prisoner voting consultation: analysis of responses

3. Practicalities of prisoner voting

3.1 The consultation paper explains that prisoners would not be entitled to vote in person but would be able register for a postal or a proxy vote, in a similar way to remand prisoners who are currently eligible to vote. Prisoners would be registered to vote by Declaration of Local Connection (DLC) to a previous address or local authority, rather than the prison address, thereby avoiding both local distortion of voter numbers and electoral results, and the impracticalities of having to deal with ballots from wards and constituencies all over the country in one polling station located in a prison.

3.2 Prisoners wishing to register to vote would need to submit a paper form to an Electoral Registration Officer (ERO) to register. Postal votes would be sent to the prison address which prisoners have provided to EROs. Postal vote packs would be treated as privileged correspondence, and so Scottish Prison Service (SPS) staff would not open the packs when they enter or leave the prison.

Question 5: Do you have any comments on the practicalities of prisoner voting?

3.3 A total of 162 respondents answered Question 5. However, around 1 in 4 of these, all individual respondents, expressed a view that prisoners should not be allowed to vote at all, sometimes also adding that resources should not be devoted to this issue. These respondents did not raise matters specific to the practicalities of prisoner voting.

3.6 Amongst other responses at Question 5, around 1 in 3 respondents (primarily individuals) suggested that a postal or proxy voting approach would be their preferred one. As noted in Chapter 1, this cannot be seen as indicative of overall levels of support for this approach but simply reflects the proportion of respondents who raised the issue.

3.4 Respondents who noted their support for postal or proxy voting sometimes also noted that declaration of a connection to a previous address:

• Would be desirable, including as a means of retaining connection to a local community.
• Would avoid undue influence on electoral results in areas where there are prisons.
• Would be more practical to implement than setting up polling stations in prisons.

3.5 A number of detailed points associated with the organisation of postal and proxy voting are discussed below.

3.6 In contrast to those advocating postal or proxy voting, around 1 in 8 respondents, again predominantly individuals, suggested that voting could take place at polling stations within prisons. Where specified, respondents suggested these ballots should be for the prisoner's normal place of residency.

3.7 The importance of security or secrecy around the voting process was raised by around 1 in 6 respondents, including a small number of Electoral Body or Group respondents and a Legal or Justice Sector Body respondent. Several respondents suggested a potential risk of intimidation or coercion, or that this must be avoided. Commenting on the fundamental principle of the secret ballot, one Electoral Body or Group respondent noted:

Whatever the voting method, it needs to maintain and protect that secrecy as fully as possible. The voter's choice must be anonymous, so that attempts to influence the voter by intimidation, blackmail, or "treating" are eliminated.

3.8 Issues associated with access to electoral information for prisoners were highlighted by around 1 in 6 respondents from a diverse range of respondent types, but from Third Sector Organisation respondents in particular. Specific suggestions included that political parties could issue written campaign materials to prisoners in the same way as other to constituents, and that candidates might even engage in hustings within prisons. For example:

…meaningful exercise of the human right to vote would also require opportunities to engage with the process of elections, i.e. hustings, opportunities to question candidates (either in person or virtually) and access to manifestos and media coverage of the election period. (Third Sector Organisation respondent)

3.9 It was also noted, however, that that since access to online materials for prisoners is very limited and varies between prisons, scope for online campaigning would be restricted. The need for electoral information to be provided in an accessible format was highlighted.

3.10 The importance of measures to ensure that eligible prisoners are made aware of their right to vote or encouraged to engage with the electoral process were also identified, largely by organisational respondents, and by Electoral Body or Group and Third Sector Organisation respondents in particular. Suggestions included holding 'mock' elections within prisons.

3.11 The need for some prisoners to be provided with practical support was suggested, for example if they experience mental health problems, have literacy issues, learning difficulties or are suffering from dementia. It was also noted that proposals for postal voting require literacy of a higher level than that required for voting at a polling place. Appropriate training and awareness-raising for prisoner officers was suggested, and the right to independent advocacy for those covered by the Mental Health (Care & Treatment) (Scotland) Act 2003 was highlighted.

3.12 Since the franchise for Scottish Parliament and Local Government elections extends to 16 and 17-year olds, it was noted that provision of information and support to young prisoners should also be considered.

3.13 A small number of respondents observed that for the proposals on prisoner voting to make a real difference there will need to be active support from prison authorities. Commenting on the currently very low level of voting amongst remand prisoners, one Religious Body or Group respondent expressed a view that, at present, there is "no effort to encourage voting".

3.14 The remainder of the analysis at Question 5 concentrates on the administration of the voting process and draws heavily on a small number of substantial responses made by Electoral Body or Group respondents in particular. As a result, few of the points made below are raised by more than one or a small number of respondents.

Establishing an entitlement to vote

3.15 A requirement to provide clear guidance on who can apply to vote and a process for verifying eligibility were identified as essential, with close working between Government, the Scottish Assessors Association and the SPS to allow smooth transfer of relevant information suggested to be key. It was also argued that the process must be made as efficient as possible for EROs. Specific points were made with regard to confirming both length of sentence and nationality requirements.

3.16 Potential models for a new prisoner voting system were suggested to include existing process in place for remand prisoners or for Service voters, and those in place in other jurisdictions.

3.17 A number of issues were highlighted concerning identification of the ward or constituency in which an eligible prisoner's ballot would be counted, including a suggestion that many prisoners will not have been on the electoral roll prior to imprisonment. In particular, arrangements for cross boundary situations (including Scottish prisoners in English prisons) and for prisoners who have been homeless were queried. One respondent pointed to the proportion of the prison population falling into these categories:

Within the Scottish Prison service… there are individuals from outwith Scotland, individuals with "no fixed abode" and some where there is no identifiable address on record. Recent statistics suggest that these three groupings equate to over 12% of the prison population, "no fixed abode" equating to over 8% alone. (Community Justice Partnership respondent)

Registration process

3.18 It has been noted above that respondents sometimes pointed to the importance of eligible prisoners being informed of their right to vote and provided with help to do so if necessary. Further points on registration to vote included:

• A specific application to register form should be developed for prisoners which could also incorporate a DLC^[11] and a postal or proxy vote application. The process should be as straightforward as possible for prisoners.
• If the registration process requires attestation by a prison officer to confirm a prisoner meets eligibility criteria, the level of prison staff authorised to do this could be prescribed.
• Consideration could be given for applications to be received through the prison record system, allowing information to be checked against records already held by the prison service.
• The registration process should be allowed to take longer than usual because it cannot be done online. Further, prisoners may not have easy access to information needed to verify their eligibility.
• Since prisoners will be registered via a DLC, EROs should not be obliged to follow up the non-return of an application form with a personal visit, as is usually the case. Likewise, changes to normal procedures for EROs to hold registration hearings may be necessary.
• The usual requirement for EROs to provide an annual renewal reminder to a voter with a DLC could be waived for prisoners.
• A suitable marker for prisons on the registers should be considered, but also that there may be data protection issues associated with prisoners being on local registers.

3.19 With respect to the proposed DLC for prisoners, one Electoral Body or Group respondent noted that requiring prisoners to be removed from the register at their home address and to reapply to register as a prisoner via a DLC could prove very bureaucratic for short sentences. As an alternative it was suggested that prisoners serving only short terms could remain registered at their home address.

3.20 Points on the annual canvass / census included both that current legislation excludes prisons, and that prisons should not be included in future.

Issues specific to postal votes

3.21 Issues around timing were identified as important for postal voting in view of the relatively short period between issue of postal ballots and the deadline for returning a completed ballot: arrangements for processing or distributing prisoners' mail would need to facilitate this. It was noted that the usual right to hand a postal vote into a polling place would not apply to prisoners.

3.22 Other points on postal votes included that:

• An approach would be required to deal with the replacement of lost or spoilt votes.
• Prison authorities would need to facilitate provision of a sample signature to the ERO.
• Consideration should be given to risk of postal packs being misdelivered to prisoners of the same name within the same prison.

Issues specific to proxy voting

3.23 A small number of points were raised specific to proxy voting, including a suggestion that a current loophole should be addressed:

…there is currently nothing to prevent someone with a Proxy vote in place prior to imprisonment… from continuing to benefit from that Proxy being exercised on their behalf during their period of imprisonment. (Local Authority respondent)

3.24 With respect to attestation of a proxy vote application, it was suggested both that consideration be given to whether this is necessary and that it should not be required, since being in prison provides the voter with a sufficient reason for not being able to attend a polling station.

3.25 Other points on proxy voting included that:

• There would need to be a mechanism for the prisoner to instruct the proxy how they wished their vote to be cast, with implications for protection of the secrecy of the ballot.
• Some prisoners may not have a friend or relative trusted to vote on their behalf.

Other points

3.26 Finally, while not arguing against prisoner voting, a small number of respondents noted the administrative challenges and potential level of resource required, with implications both for the SPS and those responsible for the organisation of the electoral process. In particular it was suggested that registration of prisoners will be a new duty for EROs and should be funded accordingly.

3.27 With respect to timing of the proposed changes, an Electoral Body or Group respondent requested that:

Should any reforms be introduced we ask the Scottish Government to ensure that any changes in legislation relating to elections are made well in advance of the polls in which the changes will take effect.

3.28 Specifically, it was argued that since EROs will need time to plan and implement changes, at least 6 months should be allowed between legislation being passed and it being required to be complied with.

3.29 Further consultation with relevant electoral stakeholders was also proposed.