Electoral reform consultation

Chapter 2 – Voting

Increasing registration

Background and discussion:

The Scottish Government is committed to work to increase voter registration and active participation in elections by under-represented groups, including non‑UK citizens and young people.

"We are committed to the fullest possible democratic participation in Scotland. Turnout at the 2021 Scottish Parliament election was the highest ever, but some groups are less likely to register or vote, including 16- and 17-year-olds and foreign nationals. We want to encourage more people to register to vote, to stand as candidates and to remove the barriers some people experience so they can vote independently." Scottish Government and Scottish Green Party - Shared Policy Programme, September 2021

A person living in Scotland must register to vote if they are eligible and asked to do so by an Electoral Registration Officer (ERO). If a person is asked to register and does not, they could be liable for a fine.

EROs work at a local level to increase voter registration and to target their resources at individuals who may have moved residence to ensure they get the opportunity to register.

However, it is estimated by the Electoral Commission that the electoral register in Scotland is roughly 83% complete, meaning 17% of the population who are eligible to vote are either not registered or are not registered correctly. There is significant variation between different groups.

Completeness of the electoral register in Scotland

The Electoral Commission produce a Completeness and Accurate Report on the registers of the Great Britain every four years. The most recent report considered the completeness and accuracy of the registers in December 2018.

The report estimated that 17% of eligible voters in Scotland are either not registered or not correctly registered at their current address – meaning they have moved home - representing between 630,000 and 890,000 people.

Registration levels are significantly lower among young people aged 18-34, with only 68% in Scotland registered, compared to 92% of people aged 55 and over in Scotland.

Home movement remains a key driver of under registration with those who have lived at their current address for less than one year much less likely to be registered (32% in Scotland) than those who have lived there for 16 years or more (94%) Registration was highest among those who own outright (95%), compared to those in households buying with a mortgage (87%), social renters (81%) and private renters (49%).

Registration among EU and Commonwealth citizens (58%) was lower than UK and Irish citizens (85%). It is important to note that the report was published before the Scottish Elections (Franchise and Representation) Act 2020 ("the Franchise Act") extended the franchise to citizens of all countries who are resident in Scotland and have leave to remain in the UK. This means we do not have data for registration amongst this group of newly eligible voters.

While the Electoral Commission's report found that registration levels were not significantly different from previous years, the Scottish Government is keen to grow registration, particularly among under-registered groups such as younger people, foreign nationals and private tenants.

Reform of the Annual Canvass

The Annual Canvass is the process of gathering information on potential additions and changes to, and deletions from, the register. The purpose for the canvass is to maintain an up-to-date Register of Electors and ensure that all individuals in a household who are eligible to vote are registered to do so. As part of the Canvass, EROs contact all residential addresses in their area to help establish if the information they hold on the electoral register is complete and accurate.

In 2020 the Scottish Government, along with the UK and Welsh Governments, delivered a reform of the annual canvass. These reforms gave EROs greater discretion to target their resources at properties where additions or deletions to the register are more likely to be required. The first evidence of the impact of these reforms will be known when the Electoral Commission publishes its report on the Completeness and Accuracy of the registers as at December 2022.

Electoral Commission's views

The Electoral Commission have commented that registration should be further modernised, this is from the Electoral Commission's Report on the 2018 registers:

"Our vision of a modern electoral register is one which:

• Uses trusted public data to keep itself accurate and complete throughout the year without relying solely on action by individuals; and
• Makes it as easy as possible for electors to ensure their own registration record is accurate and complete, particularly ahead of elections and referendums."

The Digital Registration Service is run by the UK Government. It is able to offer different user journeys for English, Scottish and Welsh voters as there are some key differences in who can vote in the elections held in the different countries.

In Scotland 16- and 17-year-olds were able to vote in the Independence Referendum in 2014 and to vote in Local Government and Scottish Parliament elections since 2015.

This means that encouragement to register to vote can take place in schools and there is evidence to suggest that if you vote the first time you are eligible then you are more likely to vote again (Jan Eichhorn report).

EROs have a statutory duty to encourage people to register. EROs are keen to use the data from the recent census to ensure foreign nationals are aware of their voting rights and the need to register to vote.

The Scottish Government is interested to hear views on what could be done nationally or locally to increase registration levels. nationally or locally to increase registration levels

Question 12: What do you think could be done nationally or locally to improve registration levels, especially among under-represented groups such as younger people and foreign nationals?

Improving the accessibility of voting

Overview

Under current electoral law, provisions to support people with disabilities to vote are limited and very specific. Returning Officers are required to provide a number of items to support voters with sight loss including a large print ballot paper and a device for use by blind and partially sighted people to support them to vote at the polling station. The device has been prescribed in legislation(see Rule 25 of the Scottish Local Government Elections Order 2011 and rule 38 of the Scottish Parliament (Elections etc.) Order 2015) and is commonly known as the Tactile Voting Device (TVD).

The Scottish Government continues to progress our commitment, made in the 2021-22 Programme for Government, to improve the accessibility of elections with a particular focus on people with sight loss. We explore solutions with stakeholders such as RNIB Scotland to support people in exercising their right to vote.

As well as community organisations, we work with the administrators in local authorities who run elections in Scotland. The Electoral Management Board for Scotland ("EMB") brings together Returning Officers and the wider electoral administrator community to ensure ongoing focus is given to making voting accessible, through staff training and direct engagement with community organisations.

The Scottish Government has also sought to improve accessibility through recent Scottish Parliamentary legislation. The Scottish Elections (Reform) Act 2020 brought in measures to allow for future innovations that improve accessibility in the running of elections. The Act also brought in a duty on the Electoral Commission to specifically report on measures taken to support voters with disabilities at elections in Scotland to reflect the importance placed on this activity. In addition, statutory instruments made ahead of the Scottish Parliament and Local Government elections (referred to as "devolved Scottish elections" in this Chapter) in 2021 and 2022 provided spending exceptions for costs associated with making campaign events more accessible to people with disabilities.

Providing Support in Polling Stations

Until recently, UK-wide legislation required all polling places to be equipped with Tactile Voting Devices (TVDs), to help people with sight loss to cast their vote. However, the UK Parliament legislated in the Elections Act 2022 to remove the specific requirement to provide TVDs, and replaced this with a wider requirement to provide reasonable equipment to make it easier for people with disabilities to vote independently and secretly. This Act also places a duty on the Electoral Commission to produce guidance for Returning Officers, which will include a minimum standard of equipment available. The change brought in by this legislation applies to UK General Elections but not to devolved Scottish Elections, which continue to use the previous standard specifying TVDs in all polling stations.

In its Report on the May 2022 Scottish Council Elections (published September 2022), the Electoral Commission noted the developments in UK legislation and commented:

"The Scottish Government should monitor the impact of this legislation and consider whether similar provisions should be introduced to support the participation of disabled voters at devolved Scottish elections."

The Electoral Commission is consulting on its draft guidance on Accessibility. While this has still to be finalised, the draft envisages keeping the TVD as a minimum standard, along with a range of other accessibility provisions.

The joint Law Commissions' report on Electoral Law (published March 2020) also suggested flexible minimum standards and avoiding overly prescriptive law:

"8.63 Our view remains that a reformed law on polling should make clear the position that voters primarily vote unaided. Returning officers should be required by law to provide each polling station with a facility enabling a blind or partially sighted voter to vote by themselves. We remain of the view that any satisfactory and approved piece of equipment should be capable of being used at any election, and do not think that detailed descriptions of existing devices in secondary legislation are necessary. This also has the benefit of accommodating the use of new and improved technology or devices as they are developed"

In considering our own approach to this issue, the Scottish Government is conscious that not all people with sight loss find the TVD easy to use. For example, support is needed to align it correctly on the ballot paper, and users need to know the order of candidates, which the TVD does not help with. We are aware new technologies to assist interaction with written material continue to be developed.

We see merit in the Law Commissions' argument that a more flexible approach to the provision of voting aids, moving away from strict rules in legislation, would be help enable newer solutions to be introduced alongside the TVD (for example text readers, digital and audio solutions and tactile ballot paper designs).

Equally, we recognise some voters have concerns that removing the legislative requirement for TVDs may lead to people who need voting aids finding their options reduced rather than enhanced. An alternative approach, which would still be more flexible than the current rules, would be to continue to require a form of tactile voting aid in polling stations but remove the existing detailed device description. Alongside guidance, this would retain a minimum standard but give administrators more options to respond to new technologies and the specific needs of their areas.

In taking either of the approaches outlined above, we would also propose to require the Electoral Commission to produce guidance for Returning Officers. This would explain the minimum standard of equipment expected but would also cover other approved support that might be provided to help voters. We believe that flexibility, backed up with official guidance, will build-in futureproofing for new technology and other developments.

While the focus above has been on voters with sight loss, the Scottish Government is also determined to ensure that all people with accessibility needs can benefit from new developments and technology as it evolves. We believe that a more flexible approach in legislation, together with practical innovations, may help deliver further improvements. This approach also aligns with the joint Law Commission recommendation mentioned earlier (para 2.2.9) – that legislation should be flexible, futureproof and responsive as new solutions emerge.

Our key objective is to ensure that voters who face barriers have appropriate and up-to-date options that support them to vote, and that Returning Officers have guidance to draw on. We will ensure that a broad range of accessibility improvements are considered for possible introduction in Scottish elections by working with the EMB, the Electoral Commission and representative bodies. In some cases, such as remote or digital voting, formal pilots and statutory reviews will still be required. However, we hope that in many cases improvements can be introduced more rapidly.

Companions

Companions, or people who help voters needing additional support in the polling station when casting their vote, are an important option for those who face such barriers. Help from a friend, relative or carer can be essential in overcoming issues like navigating the polling station or understanding a ballot paper. Across all elections in the UK, a companion is only allowed to support two voters per election.

The historical reasons for this policy relate to concerns over the potential influence any one person might have on multiple voters. However, there may be circumstances where this impedes the needs of voters themselves - for example multiple members of one family might need support but have only one relative available. Professional carers may also be best placed to support their clients at the polling station, with distinct understanding of their individual needs, but would be prevented from supporting more than 2 clients and/or members of their own family under the current system.

The Scottish Government is minded to increase the number of voters a companion can support in Scottish elections to 5. It would like your views on whether this increase strikes a good balance between practical considerations and concerns over undue influence.

Digital Poll Cards

We are interested in hearing views on whether having an option in the future of receiving poll cards digitally, instead of by post, might assist the accessibility of elections. This could be sent to a registered email account or to a mobile phone. Such an innovation would take advantage of modern technology to offer an additional way of receiving poll cards which some voters may find more convenient and environmentally friendly.

Members of the sight loss community tell us that receiving their poll card by post often forces them to rely on carers, friends and family, as they are unable to determine the card's purpose without help. Due to the increasing use of reader technology, a digitally accessible poll card would be easier to use for most of this community, as devices could read out the details on the card. A digital poll card would be harder to lose and easier to access at the polling station.

Digital poll cards could also be useful for groups of voters, including those temporarily away from home (such as students) and those who live in flats or shared accommodation, who may prefer this option.

Paper poll cards, for those who prefer not to have them delivered electronically, would remain an option. A wider choice for voters on the approach which best suits their circumstances seems appropriate for the modern age.

Systems to administer the production of digital poll cards would need to be developed, tested and maintained, and costs would need to be assessed. Returning Officers would also need to continue to offer paper poll cards for those who prefer them. In the current circumstances it may not be possible to prioritise this development, but we would propose futureproofing the law now so that it is an option that can be pursued.

Question 13: The Scottish Government intends to amend the rule requiring only a specific form of Tactile Voting Device to be provided in polling stations, to allow more flexibility and ensure the accessibility support offered can be adapted to take account of future innovations. It also intends to place a duty on the Electoral Commission to provide guidance that includes minimum standards. Which of the following options would you prefer:

• The current legal requirement for a specific Tactile Voting Device is replaced by a general requirement on Returning Officers to provide appropriate support.
• The current legal requirement for a specific Tactile Voting Device is replaced with a requirement to provide a non-specific form of tactile support.
• No change to current legislation
• Other

Question 14: Should the limit to the number of times one companion can support voters in casting their votes:

• Remain at two people per election
• Rise to five people per election
• Be changed to another number

Question 15: Should there be an option in the future to request a digital poll card instead of a paper poll card for Scottish elections?

Question 16: What more could be done to improve the voting experience for individuals with particular accessibility needs or requirements?

Clarification of undue influence of a voter

Why is a change being proposed?

Offences were introduced in the 19th century as a response to contemporaneous problems: violence, intimidation, treating votes as a commodity to be sold or bought, and the view that elections could be influenced by those with land or some other source of power.

The Victorian reforms sought to ensure that elections were truly expressions of the democratic will of those who are voting by prohibiting bribes, buying of votes with money or employment; gifts in the form of food or drink; and intimidation and undue influence. These prohibitions still exist.

What is being proposed?

The existing offence of "undue influence" can be summarised as:

• pressure and duress: to include any means of intimidation, whether it involves physical violence or the threat of it;
• trickery: to cover devices and untruths, such as publishing a document masquerading as part of a rival campaign's; and
• abuse of a position of influence: where a special relationship of power and dependence exists between the person exerting the influence and the voter, such as one member of a family telling other members how to vote.

The Law Commissions' publication Electoral Law: a joint final report (2020) recommended that "undue influence should be restated". The Law Commissions jointly concluded that the three components should all be retained and should be restated as offences of intimidation, deception and improper pressure.

The UK Government took forward the Law Commissions' recommendation in the Elections Act 2022 and the Scottish Government proposes to do the same.

The proposal

The proposal is that the Scottish Parliament should legislate to clarify what constitutes undue influence in order to make the legislation easier to interpret and enforce. It will do so by using modern terminology, and by clearly separating out the types of conduct that can cause undue influence.

It is proposed that the following activities should be considered undue influence, when carried out for the purpose of forcing a person to vote in a particular way, forcing them not to vote at all, or otherwise interfering with their free exercise of their vote:

a) The use or threat of physical violence;

b) Damage or destruction to property (or the threat of such damage or destruction);

c) Reputational damage (or the threat of such damage);

d) Causing or threatening to cause financial loss;

e) Causing spiritual injury or exerting undue spiritual pressure. 'Undue spiritual pressure' refers to a level of improper or inappropriate pressure which goes beyond the free expression of opinions on political or other matters that have implications for the principles of a religion;

f) Any other act or omission designed to intimidate a person which is not already covered above;

g) Any act or omission designed to deceive a person in relation to the running of an election

The updated and revised offence of undue influence will continue to be classified as a "corrupt practice". As legislation already sets out, a person who is convicted of the corrupt practice of undue influence is liable to up to one year's imprisonment, a fine or both prison and a fine. This person (or a person who is named personally guilty of the corrupt practice in the report of an election court) will also be incapable of being elected to or holding certain elective offices for five years; if the person already holds elective office, they would be required to vacate that position.

The intention is also that if a person is guilty of undue influence in relation to a Scottish Parliament or Local Government election, they will not be allowed to stand for election or to hold any elective office.

Question 17: Do you agree that the offence of "undue influence" should be made easier to understand and enforce?

Absent Voting

Summary

• To seek views on whether the right to apply for an emergency proxy should be extended to the companions of people who are required to travel for medical treatment, where that travel would mean that the companion would not be able to vote at their normal polling place.
• To consider whether a limit should be placed on the number of voters for whom an individual can act as proxy (similar to UK Elections Act 2022 changes for reserved elections).
• To seek views on whether a limit should be placed on the number of postal ballots which can be handed into a polling station by any individual.

Proxy Voting

Currently anyone who is entitled to vote can apply for an absent vote. There are two types of absent vote: postal votes or proxy votes. Voting by post means that the voter receives their ballot paper, by post, before polling day. The voter can then complete and return their ballot paper either by posting it to the Returning Officer or by handing it in to a polling station in their local area. To be included in the count, postal votes must be returned to the Returning Officer before 10pm on polling day.

A proxy vote is where a voter appoints someone else to vote on their behalf. That person can then choose to either vote in person at the voter's normal polling station or by post. Whichever way they choose, they are voting on behalf of the voter who appointed them. A person appointed as a proxy must be at least 16 years of age and must either be on the electoral register or be in the process of applying to be on the elector register.

An absent vote allows someone who will not be at home on polling day, perhaps due to being on holiday, to vote. However, whilst anyone can apply for a postal vote or a proxy vote for a specific election, those wishing to apply for a proxy vote for more than one election must fall into one of the eligible categories. These categories are those who:

• have a long-term disability;
• are away on an educational course;
• are away for work;
• work overseas for the British Council or as a Crown servant;
• are serving overseas in the Armed Forces; or
• are detained or remanded in custody for 12 months or less

For the purposes of a proxy vote for more than one election, disability means a long-term condition. It is our intention to update the language used to make this clearer.

Emergency Proxies

Because of the time needed to check and authorise applications for absent votes, there are statutory deadlines for applying. An application for a postal vote must be made approximately 2 weeks before polling day (which also allows time for the postal ballot paper to be issued and returned by post) whilst an application to appoint a proxy must be made at least a week before polling day. However, through no fault of their own, there is always a risk that voters may become unable to vote shortly before polling day. Should such a situation arise, a voter may be able to apply for an emergency proxy up until 5pm on the day of the poll.

Access to an emergency proxy is restricted as, due to the lack of time to check and confirm an application before the day of poll, emergency proxies are only available to those whose need for a proxy arose after the deadline for applying for an ordinary proxy. This includes those:

• Who have a sudden medical disability;
• Who unexpectedly have to be away for work reasons;
• Who are sentenced to a prison term of 12 months or less;
• Who need to change their existing proxy, due to their original proxy no longer being able to vote

At the 2021 Scottish Parliament and 2022 Local Government elections, those who had Covid or who were required to self-isolate due to contact with a person having Covid, were able to apply for an emergency proxy. However, this temporary extension to the emergency proxy scheme has now ended due to the change in Government advice on what to do when you have Covid.

The Electoral Commission has asked the Scottish Government to consider expanding the categories of voters who are entitled to apply for an emergency proxy to include those who find themselves unable to vote because they are in a position of acting as a companion for someone who needs to be accompanied to an unplanned medical appointment.

Under the current provisions, the person with the medical appointment would be entitled to apply for a proxy vote, if they are registered to vote, however their companion is not able to apply for a proxy vote, as they are not covered by the categories set out in paragraph 1.5 above.

The proposal

The Scottish Government is of the view that those who have to accompany someone to a medical appointment should not lose their right to vote, due to no fault of their own. The Scottish Government is therefore proposing that emergency proxies should be made available to the companions of those who are required to travel for medical appointments or treatment at short notice, where that travel would stop them being able to vote at their normal polling place.

Question 18: Do you think that we should extend the right to emergency proxies to the companions of anyone who has to attend an unexpected medical appointment or treatment which would prevent them from voting at their normal voting place?

Acting as a proxy

The current position is that, at a devolved election in Scotland, an individual cannot vote as proxy on behalf of more than two voters unless they are the spouse, civil partner, parent, grandparent, brother, sister, child or grandchild of the voter. The intention of this restriction is to avoid a single person being in the position of being able to vote as a proxy for a large number of people.

The Elections Act 2022 introduces a new limit of four on the total number of electors for whom a person may act as proxy in UK Parliamentary elections or Local Government elections in England. Of these four voters, no more than two can be voters who are normally resident in the UK. The Elections Act changes remove the exemption for close relatives.

The changes in the Elections Act 2022 do not apply to devolved elections in Scotland. Therefore, the existing restriction on only being able to act as a proxy for two voters who are not close relatives remains the position.

The Scottish Government does not see any reason for making a change to the existing position in Scotland. Overseas voters (other than those on service duty) are not eligible to vote at devolved elections in Scotland, so the increase in the number of overseas voters that a proxy can vote for is not relevant for devolved elections. We are also not aware of any concerns amongst election officials in Scotland that individuals are acting as proxy for significant numbers of close relatives.

The proposal

The Scottish Government is proposing that the position will remain that an individual can only act as a proxy for two voters who are not a close relative.

Question 19: Do you have any comments on changes to proxy voting in Scottish Parliament or Local Government elections?

Postal voting

The current position is that anyone who has a postal ballot can either return the completed postal ballot pack to the Returning Officer by post or they can hand it in to a polling station either in person or by asking someone to hand it in on their behalf. There is currently no restriction on the number of postal ballot packs which any individual can hand in to a polling station.

The Elections Act 2022 makes provision for regulations to be made which will require the rejection of postal ballots handed in on behalf of more than the maximum number of electors (in addition to the individual's own postal ballots). The maximum number of other electors will be set out in the regulations. This provision will only apply to UK Parliamentary elections in Scotland. It will not apply to devolved Scottish elections. The Scottish Government has not been made aware that the handing in of bundles of postal ballots is an issue in Scotland.

In addition, the Elections Act makes it an offence for political campaigners to handle postal voting documents unless it forms part of their employment, such as a postman delivering postal ballot papers, or they are the spouse, civil partner, parent, grandparent, brother, sister, child or grandchild or carer of the person who is voting by post.

The UK Government indicated that its changes would reduce both the occurrence and perception of postal vote fraud. Taking the view, that in theory, the ability to hand in of large numbers of postal ballots could enable an individual to vote on behalf of a number of people

The Scottish Government does not see compelling reasons for making similar changes for devolved elections. Every postal ballot must have the voter's personal identifier checked and verified before the ballot papers are forwarded to the count. The Scottish Government is of the view that the personal identifier checks are sufficient to confirm that a postal ballot has been completed by the correct voter and so the danger of someone, including political activists, voting on behalf of others is very unlikely.

The proposal

The Scottish Government is therefore proposing that we will not place any restrictions on the number of ballot papers which an individual may hand in at a polling station at devolved elections or introduce restrictions on the handling of postal votes by political campaigners.

Question 20: Do you have any comments on the handing in of postal ballots?

Voting rights

Summary

• The Scottish Government is seeking views on whether certain persons detained in hospital in connection with offending behaviour should continue to be denied voting rights in Scottish Parliament and Local Government elections.
• The Government is also interested in any other views on voting rights, including in relation to persons seeking asylum.

Background

In 2020, as a result of the Franchise Act, voting rights in Scottish Parliament and Local Government elections were extended to a number of groups who previously could not vote in Scotland, including refugees, foreign nationals who have permission to enter or stay in Scotland, and prisoners serving sentences of 12 months or less. There remain a small number of people who live in Scotland who do not have voting rights, including under 16s, some persons detained under mental health legislation, persons subject to a disqualification such as prisoners serving sentences of more than 12 months and those seeking asylum.

Certain people with a mental disorder (see section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003) may be placed on an order or direction under the Criminal Procedure (Scotland) Act 1995 ('the Criminal Procedure Act'). This will be in the context of conduct contrary to the criminal law. For example, section 59A of the Criminal Procedure Act provides for "hospital directions" in circumstances where a person has been convicted of a criminal offence and sentenced to imprisonment. The hospital direction means that the person is detained in hospital until they are well enough to transfer to prison to serve the remaining time on their sentence. With some orders, such as a compulsion order, a person may be detained in hospital for mental health care and treatment but there is no associated prison sentence.

2.4.3 The Criminal Procedure Act can require an individual to be treated in hospital or, occasionally, in the community. Sometimes the order includes additional restrictions for the individual. An individual may be subject to a number of different orders before final disposal of the case, which may be by Compulsion Order (CO), Compulsion Order and Restriction Order (CORO), or hospital direction. And sometimes a person may be sentenced to prison but then during their sentence transferred to hospital to receive care and treatment (via a transfer for treatment direction under mental health legislation). An overview of Criminal Procedure Act orders is set out in the Mental Welfare Commission for Scotland Mental Health Act Monitoring Report 2020-21. The Report notes that there "were a total of 50 mental health disposals in 2020-21, given as a final disposal by the court, which was lower than the average for the previous 10 years which was 60."

Section 3A of the Representation of the People Act 1983 ("Disfranchisement of offenders detained in mental hospitals") removes voting rights from certain people detained on mental health grounds. This includes people detained under a CO or a CORO. Section 3A was inserted into the 1983 Act in 2000, following the Report of a Working Party on Electoral Procedures published on 19 October 1999. The UK Government in its response to that Report commented:

"We have accepted the Working Party's recommendation that the restrictions on the use of mental hospital addresses for registration purposes should be removed, except in the case of patients convicted in the courts but detained in hospital in place of sentencing."

Section 3A is focused upon persons who are detained. As a result, persons subject to compulsory care and treatment under the Criminal Procedure Act mental health orders but living in the community would not be deprived of a vote by this section, although to vote they would still need to be on the electoral register. If a person is living in the community for only short periods, they may face practical challenges in registering to vote in time for an election.

Since 21 February 2020 prisoners sentenced to terms of 12 months or less have been eligible to vote in Scottish Parliament and Local Government elections. It could therefore be argued that certain people detained on mental health grounds and disenfranchised by section 3A should also be allowed to vote. However, it is understood that most people disenfranchised by section 3A are not typically detained for a finite, definite period, but that the period of detention is instead subject to periodic review and may be extended where necessary. For example, a person subject to a CO could be subject to restrictions for six months, with scope for a further six-month extension, after which it could renew annually after review. It is understood that a CORO would not normally feature a set time limit at all. This may make it difficult to draw a direct comparison with those prisoners granted voting rights.

In summer 2022, the Scottish Mental Health Law Review conducted a consultation that included a question on these voting rights. In September 2022 the Review concluded in its Final Report (see page 479):

"We think that voting rights should be extended to be people detained under mental health legislation. This is part of the necessary cultural change required to recognise individuals as rights-bearers and tackle the stigma too often associated with mental ill-health.

We recommend:

Recommendation 10.20: That voting rights should be available and the blanket disenfranchisement ended for individuals detained under forensic orders provided for under of the Representation of the People Act 1983 should be ended.

Within 3 – 5 years – appropriate legislation should be introduced, together with a comprehensive communications policy to raise awareness of the change."

Potential issues

The Government would welcome the views of consultees on the restriction on voting rights set out in section 3A. Applying a 12-month threshold as is now in place for convicted prisoners would appear to raise difficult questions where a person is detained subject to periodic review. On the other hand, removing the restriction set out in section 3A entirely would allow any person detained on the grounds set out in section 3A to vote, potentially including people who have been found guilty in a court of law of serious offences which may have resulted in lengthy jail sentences, if they had not been committed for treatment under the Criminal Procedure (Scotland) Act 1995.

Other franchise matters

Excluding short term visitors such as tourists, asylum seekers are now the main group of foreign nationals aged 16 or over living in Scotland without voting rights. The Scottish Government and Scottish Green Party - Shared Policy Programme (2021) expressed a shared ambition to extend voting to asylum seekers living in Scotland, but recognised "the difficulty in achieving that within the current asylum system which would require UK Government cooperation."

The question of extending voting rights to asylum seekers was debated during the passage of the Franchise Act. The Stage 1 Report of the Standards, Procedures and Public Appointments Committee noted the evidence presented by organisations such as the Scottish Refugee Council and summed up the debate on this issue, recognising the practical barriers to enfranchising asylum seekers and calling on the Scottish Government to urgently examine whether the franchise could be extended to asylum seekers living in Scotland.

It is considered that enfranchising asylum seekers would present a number of practical difficulties, in particular in relation to the integrity of the Electoral Register. Electoral Registration Officers have expressed concern that they would have difficulty in ensuring that entries for asylum seekers were accurate and up to date, in particular where an asylum claim has been unsuccessful. Home Office data records that around a third of asylum claims were ultimately unsuccessful over the 2018 to 2020 period. The most up to date figures for 2022 (year to June 2022) record that 76% of initial decisions were some form of grant of leave to remain. At the end of June 2022, there were 99,419 UK cases awaiting an initial decision. The situation is further complicated by the potential for asylum seekers in Scotland to move to other parts of the UK. While, for example, Ireland permits asylum seekers to vote in its Local Government elections, it has responsibility for its own asylum system.

Prisoners serving sentences of over 12 months are also not permitted to vote in elections. Section 6 of the Franchise Act requires Ministers to report to the Parliament on the operation of prisoner voting by 4 May 2023. As a result, this consultation does not directly address prisoner voting, although any comments consultees might have would be welcome.

Changing the franchise is what is known as a 'protected subject matter'. As a result, any Bill changing the franchise would require at least two thirds of MSPs (supermajority) to vote in favour for the Bill to pass.

Question 21: Should voting rights in Scottish Parliament and Local Government elections be extended to some or all persons detained on mental health grounds related to criminal justice?

Question 22: Do you have any additional comments on voting rights for persons detained on mental health grounds related to criminal justice?

Question 23: Should voting rights in Scottish Parliament and Local Government elections be extended to all people seeking asylum in Scotland?

Implications of UK Elections Act 2022 changes

What has changed?

The UK Elections Act 2022 made a number of changes to elections across the UK. Many of the Act's changes that will only apply in Scotland in relation to elections to the UK Parliament. This includes a requirement for voters to prove their identity in voting, changes to postal voting and changes in relation to people living overseas. The Scottish Government remains opposed to those changes and does not wish to see them adopted for devolved Scottish elections. This chapter therefore discusses the potential implications of those changes.

It is also worth noting that other changes under the Act will apply directly to devolved Scottish elections (Scottish Parliament and Local Government elections). For example, changes in relation to digital imprints are discussed separately in this consultation. Other changes were also made to devolved Scottish elections where the law is reserved to the UK Parliament, such as section 23 concerning financial information to be provided by political parties on applying for registration and sections 24 and 25 prohibiting entities from being registered political parties and recognised third parties at same time. The changes in sections 23 to 25 of the Act are not discussed further in this consultation.

Voter Identification

The Elections Act 2022 introduced photographic voter ID requirements for local elections in England and UK Parliamentary Elections in England, Scotland and Wales. In Northern Ireland voters have been required to produce personal identification before voting in polling stations since 1985, with photographic identification being required since 2003. The requirement for voter ID at UK Parliament elections which are held in Scotland is expected to be in place from May 2023 onwards.

Under this new requirement, voters will be required to show an approved form of photographic identification before collecting their ballot paper to vote at a polling station for UK parliamentary elections in Great Britain and at some other elections in England and Wales. A broad range of documents will be accepted including passports, driving licences, various concessionary travel passes and photocard parking permits issued as part of the Blue Badge scheme. Any voter who does not have an approved form of identification will be able to apply for a free Voter Authority Certificate. Further information is available on the UK Government's website.

The UK Government considers that this change will reduce the theoretical risk of someone impersonating a voter in order to vote instead of them, this is normally called 'personation'.

Various organisations and individuals have indicated concern about the impact of the introduction of voter ID on voters and have expressed concerns that it could have a disproportionate impact on certain communities.

Research by the Electoral Commission in 2015 found that around 3.5 million citizens (7.5% of the UK electorate) did not have access to photo ID. Requiring photo ID has the potential to discriminate against marginalised groups. The Electoral Commission's 2021 public opinion tracker found that more disadvantaged groups are more likely to not have ID, including the unemployed (11%), those renting from a local authority (13%) or housing association (12%), as well as disabled people (8%).

The Scottish Government has no intention to introduce ID requirements for devolved Scottish elections. However, the Scottish Government is concerned that the UK Elections Act 2022 voter ID requirements for UK Parliament elections will confuse voters and raise barriers to voting in devolved Scottish elections. Confusion could arise when a voter is required to have ID for a UK Parliament election but not for devolved Scottish elections. There is no evidence of significant electoral fraud to justify voter ID measures in devolved Scottish elections. The Scottish Government is of the view that the requirement to provide photo ID could act as a barrier or disincentive to vote, and this far outweighs the very low risk of fraud taking place.

A further concern which has arisen in relation to adoption of voter ID in Scotland includes pressure on polling station staff in policing the new requirement.

Postal Voting Renewals

Voters can apply for a postal vote for a specific election, a specific period or for all future elections.

However, the Elections Act 2022 introduces a requirement that postal voters for reserved polls in Great Britain (for the purposes of this consultation, effectively UK Parliament elections in Scotland) will only be able to hold a postal vote for a maximum of 3 years, and they will need to make a fresh application for a postal vote at least every 3 years if they wish to continue to vote by post.

The changes in the Elections Act 2022 do not apply to devolved elections in Scotland. Therefore, there is no requirement for anyone who has applied for a permanent postal vote for devolved elections in Scotland to periodically reapply. However, there is an existing requirement that anyone who has a permanent postal vote must provide a new signature every 5 years. This is because individuals' signatures change over time and the signature on record may no longer match an individual's current signature. If an individual refuses or fails to provide a fresh signature, then their name will be removed from the list of postal voters and they will have to vote at a polling station unless they reapply for a postal vote.

The current system for applying for and renewing postal vote signatures works well. While signatures - especially those for younger and older voters - can change over time, the Scottish Government considers the inconvenience to voters and administrators of requiring a new application every 3 years argues against making a change to require people to reapply for a postal vote every 3 years for devolved elections. There is also a risk that having to reapply for a postal vote every 3 years will work as a barrier to registering for a postal vote, particularly for those who find the process of completing forms a challenge. Those with postal votes are more likely to vote than those who vote in person, so the Government is of the view that maximising the number of voters with postal votes will maximise the turnout at elections.

The Scottish Government does not therefore currently intend to introduce a requirement that those who have a postal vote at devolved elections in Scotland should have to reapply for a postal vote every 3 years.

But the change for UK reserved elections means that voters will no longer be able to make one application for a postal vote in all elections. Instead, they will have to apply every 3 years for a postal vote for UK Parliament elections and refresh their signature every 5 years for devolved elections. This divergence may confuse voters and clear communications will be required to ensure that the public understand that there are different processes for UK Parliament and devolved Scottish elections.

The UK Government is also developing an online system which will allow voters to apply for a postal vote for reserved elections online. The Scottish Government is working with the UK Government to ensure that this system makes clear the different process for devolved Scottish elections, where a paper form will still need to be completed (although it is permissible to submit an image of a completed form by email).

Extraterritorial voting

The Elections Act 2022 modifies the right for British citizens living overseas to vote in UK Parliament elections. It removes the 15-year limit on overseas electors' right to vote in UK Parliamentary elections.

The right to vote when living permanently outside the UK only applies to UK Parliament elections. While removal of the 15-year limit does not apply to Scottish Parliament elections and Scottish Local Government elections there are implications for UK Parliament elections held in Scotland. Scottish Electoral Registration Officers have highlighted that registering voters absent from the UK for more than 15 years could require a significant fact-finding exercise.

The franchise for devolved Scottish elections is based on the principle that people who live in Scotland should be able to vote in Scotland. The issue of voting at devolved elections by those not resident in Scotland for Scottish Parliament and Scottish Local Government elections was considered by the Scottish Parliament's Standards, Procedures and Public Appointments Committee in its deliberations on the Bill which preceded the Franchise Act. The Committee's Report on the Bill concluded (by a majority) that:

"43. The Committee does not consider that British citizens who had previously been included on the register of Local Government electors and who now no longer live in Scotland should be given the right to vote in Scottish elections. The Committee does not believe that the case for allowing people who do not live in Scotland the opportunity to influence the result of Local Government elections or Scottish Parliament elections is strong enough."

Some people who are required to live outside Scotland, such as members of the armed forces, Crown servants and British Council employees, and their families, can still register to vote as though they were still resident in Scotland. This exemption does not apply to employees of private companies working outside Scotland unless it is only for a short period.

No change is proposed in this area for devolved Scottish elections.

What does this mean for Scotland?

The Scottish Government considers that the changes made to reserved elections in relation to voter ID and postal voting mean that it would be undesirable for a devolved Scottish election to be held on the same day as an election to the UK Parliament. Were the votes held on the same day, voters could be confused by the need to have proof of identity for one poll but not the other and the different rules on whether they have a valid postal vote.

This concern has informed the Government's wish to explore ways to reschedule devolved Scottish elections if they clash with an election to the UK Parliament, which are explored elsewhere in this consultation. The Government would also be interested in the views of consultees, especially electoral administrators, on practical difficulties in applying the new rules for reserved elections. Would there be merit in some form of presumption against a devolved Scottish election being held on the same day as an election to the UK Parliament? Rather than an outright prohibition, this could take the form of an expectation that, all things being equal, different elections would not occur on the same day.

Question 24: What issues do you think that the changes in the Elections Act 2022 to introduce voter ID and change postal vote renewals raise for elections held in Scotland?

Question 25: Should there be a presumption against a Scottish devolved election being held on the same day as a UK Parliament election (for example, a UK Parliament by-election on the same day as a national Scottish Parliament election)?