There are ways that we can pull that into existing interactions that we have with refugee communities and people in the asylum system. Additionality costs a bit of money, though. That is speaking not just for us but for other people who will be engaging with those communities. I would be interested to know what that will be. It is not loads of money, but it can be used in different ways. I would be slightly worried if all the money was used on paper resources or online interventions.
I am new to the committee, so I am picking up on a number of points. Will any of the money that is proposed be allocated to local government, or will it all go to the Electoral Commission? There is some money in the financial memorandum that will go to local government, but my understanding is that that money is not for awareness-raising work; it is more to help with the practicalities of administering new voters through voter registration and on voting day.
You have mentioned downloadable resources and such like. I think that it is inevitable that there will be a piecemeal and patchy approach. That might work for some organisations in some areas but, given the list of priorities that councils have, I think that doing that work will fall way down the list.
Given the structure of UK immigration law, such migrants are often highly educated people who might be engaged in the political process and not need assistance. From my experience, I do not think that we will need to inform that group of people of their rights, because they will know.
Therefore, the funding should definitely be targeted at the groups that committee members have spoken about. We move on to the right of EU citizens to be granted leave to remain. The obvious question is: can we be sure that all EU citizens will be granted the right to remain in the UK? No, we cannot be sure of that, because the proposal that has come from the political settlement in Westminster is a system whereby European citizens require to apply to secure their right to remain here.
There is an end date to that entitlement, so there is an end date to the application process. People who do not apply for, or successfully receive, the leave to remain beyond the end date will become illegally resident and subject to the hostile environment.
That is the current proposal. We received evidence that 50, EU citizens have applied through the settled status scheme, but that that is only a quarter of the number of EU citizens who probably live in Scotland. How do we ensure that all EU citizens continue to have an uninterrupted right to vote? Just 48 hours ago, a statement of substantial changes was tabled. Such changes do not need to be made through primary legislation, so they do not require parliamentary scrutiny.
The parameters of when somebody should be granted leave to remain, or when they will qualify for indefinite leave to remain, can be subject to change at quite short notice.
Again, to highlight those reserved versus devolved areas of work, the Scottish Government has been vocal in articulating to European people in Scotland its intention to continue to welcome Europeans to Scotland.
As you will be aware—I think that it was announced again in the latest programme for Government—the Scottish Government puts money towards information and advice to assist the European citizens who are here now to engage with the settlement scheme process. The Scottish Government also engages with Westminster on the future rules for settlement. It is all about getting people the face-to-face support that they need to complete the application process that has been mandated by the Westminster Government.
We cannot make guarantees, but the Scottish Government will be carrying out work in the next two years to ensure that where rights are available, people get the support that they need in order to achieve those rights, particularly the more vulnerable and at-risk European citizens. Jamie informed us that he would be delayed but he is with us now. I am mindful of the short time that we have left. Do the guests have any other views on the proposal to allow foreign nationals with an indefinite right to remain in the UK to stand as candidates in Scottish elections and hold office following those elections?
Is there anything specific that you want to add to what you have already given us? I thought that we had to finish earlier, so I think that I managed to cover that point earlier—. I think that it is inconsistent. I understand that the immigration rules in this interaction are very arcane.
I would be more than happy to explain objectively what I mean another time, by providing examples of where it seems inconsistent. That is very helpful. You engaged well with the committee. I will give each of our guests a couple of minutes—which they do not have to take—to give us a wee preamble about their position.
We will then take questions from members. Thank you for inviting us to give evidence. In the simplest sense, the issue can be looked at as a need to ensure compliance with article 3 of protocol 1 of the European convention on human rights—a matter that has been outstanding since There is no doubt that the law needs to be amended to give some prisoners the right to vote in order to ensure compliance with the ECHR, so the question is about how far to go in terms of providing that right to vote.
The European Court of Human Rights has not prescribed exactly how that should be done. It leaves a wide margin of appreciation, which means that it is the job of national legislatures to decide what is most appropriate for the national context. Our statutory mandate is to protect and promote human rights, so the approach that we have taken in looking at the bill is to think about what human rights standards say about whether prisoners should be given the right to vote and the guiding principles that can be used to determine how that should be done.
Looking to what the European court has said about the matter and to international standards at the United Nations level, it is possible to discern some guiding principles that can be used to inform the debate. On the purpose of imprisonment, it is clear that the deprivation of liberty that comes with imprisonment is a punishment and that other human rights will necessarily be impacted by that—the right to family life, for example, and the right to autonomy—but there should not be additional restrictions where those are not necessary.
That brings us to the question whether the right to vote is one that needs to be restricted alongside imprisonment. It is also clear from looking at the human rights framework that the purpose of imprisonment is more about rehabilitation and less about punishment.
Secondly, the European court has been clear that the starting point is a presumption in favour of maximum suffrage. The starting point is that everybody should be allowed to vote and they should only be excluded when there are rational reasons to do so. In that sense, we need to look at the aim behind excluding prisoners from being able to vote and, if we are going to exclude them, we then need to look at the most proportionate way of doing that. The aim that is before us is being presented as the legitimate one of preventing crime: if prisoners know that they will lose their right to vote, that will act as a deterrent to crime.
We have some questions about whether that is a rational aim, and whether removing the right to vote acts as an effective deterrent. With regard to the way in which you might go about restricting the right to vote, the proposal is to determine that right by the length of the sentence and whether it is less than 12 months.
The question is whether that is the most proportionate way of doing it. We can look at some international comparators that have greater proportionality when identifying which prisoners should be allowed to vote and which should not. For example, we could have judges who make the decision when sentencing or identify offences that have some connection with the operation of the electoral system. Overall, we see the bill not just as an opportunity to ensure compliance with the ECHR or to ensure that we tick it off because it is something that the European Court of Human Rights has decided needs to be remedied.
The bill is an opportunity to look at the situation anew and come up with a principled stance on prisoner voting. If the Scottish Government and Parliament want to show human rights leadership, the best way to do that is to look at the human rights standards and principles and use them to inform the debate about what should be done. We at the Law Society come at the bill from a different angle from that of the Scottish Human Rights Commission, principally because the bill is quite an important one—it covers lots of areas of enfranchisement and relates to the competence of the Parliament to legislate.
As members will know, in the Scotland Act , responsibility for elections in Scotland was devolved to the Scottish Parliament, and this is the first orderly opportunity for legislation to be made in connection with those additional powers. That is why we think that there is an issue across the bill and with the questions relating to prisoner voting in particular, in terms of the competence of the Parliament to enact legislation.
We have no doubt at all that the Parliament has the competence to do what it is being asked to do by the Government with the bill. That is important because of the provisions in the Scotland Act relating to the general competence of the Parliament. Having the capacity to legislate on elections means that the crunch point of compliance with the ECHR comes into sharp relief. Cathy Asante identified that issue in terms of the way in which it affects prisoner voting, compliance with the trail of court decisions from Hirst v United Kingdom in to the present day and the way in which other jurisdictions in the United Kingdom have approached the matter.
Of course, up until devolution, we were bound by the approach that the UK Parliament and UK Government took towards the extension of enfranchisement to prisoners. That is where we are coming from. I am happy to take questions as we go along. We strongly agree that it is important to go beyond the minimum requirements of the European convention on human rights.
We see the bill as an important first step towards the far more ambitious aim that we would like to see of giving all prisoners the right to vote. We think that the central issue is one of citizenship. Do we see prisoners as citizens and members of the polity with rights to engage in its affairs, or do we see them as outsiders with no part to play? For reasons of both democratic recognition and rehabilitation, we feel strongly that prisoners should still be seen, understood and treated as citizens.
They are in prison and they are being punished, but still they are members of the polity and therefore should have the right to vote at elections and vote for their own future. In the end, we would like the right to vote to be extended to all prisoners, not just those who are serving sentences of less than 12 months. My second point concerns practicalities. It is important that the right to vote is more than just a formal right that is not really used.
It matters that prisoners are able to use that right, which means that they need to be assisted and encouraged to do so. That will involve resources of various kinds to ensure that it is possible for them to get the information that they need to engage in debates so that they can use the right to vote fruitfully.
Of course, the Scottish Prison Service is under heavy pressure all the time, so if the right to vote is extended, and if it is to be a serious right, we need resources to make its implementation practicable for the SPS. Thank you for the opportunity to present to the committee.
At the start, I will not outline the facts of the legislation, which my colleagues have already touched on, but instead discuss the people on whom it will impact. Prisoners are, as I am sure that members will understand, largely a group of people who have been excluded and deprived throughout their lives in all sorts of circumstances.
The decisions that are made around them have been very much driven by emotion and the values base of others, who very often will not have had the same experiences. We need to ensure that the system is proportionate and fair but also rational.
We can look at the progressive approach from the Parliament in recent years with regard to the presumption against short sentences and so on. There are loads of examples of people who have been convicted of the same crime being sentenced differently at different diets, with one being excluded while another is not.
There is a randomness there. We can also look at people who are in prison for a long time for much more serious crimes. However, to take a rational view, those people still have a stake in society. They have families outside who may be impacted in the education system, for instance, and they have a right to have an interest in their children or spouses.
There are examples of people who have been absolutely written off in newspapers throughout Scotland and the UK.
There are columnists who have been long-term prisoners—they are now out of prison and are playing a meaningful part in society. In previous discussions, they would have been written off through civic death and seen as not worthy of having the right to vote, but they are now out there.
This is my plea: please do not fudge this. The right to vote is a human right. If we want an inclusive Scotland, we should provide all prisoners with the right to vote. The witnesses have all intimated that they are ready to answer questions. I want to ask a general question that might assist the general public. It is a Brexit question. The bill is being driven by the European Court of Human Rights. If we were to come out of the European Union having already implemented the provisions in the bill, what would be the effect?
Is there a likelihood or possibility that either the Scottish Government or the UK Government could default back to the current situation and take the right to vote away from prisoners? I am happy to answer that question, as it is really important to clarify the point for public understanding in particular. The European Union is completely separate from the Council of Europe under which the European convention on human rights sits, so we are actually dealing with two separate European systems here.
When, or if, we come out of the European Union under Brexit, that would not have any automatic impact on our membership of the Council of Europe.
There is no automatic correlation between those things. There have been debates about changing the Human Rights Act or our membership of the Council of Europe, but those are separate debates and currently there are no plans on the table to change the legal position. That is correct. Leaving the European Union under Brexit would have no effect on our membership of the Council of Europe. As members know, however, there has been a long, grumbling debate about the relationship between the United Kingdom and the European convention on human rights, which may at some point in the future crystallise around a Government deciding what it wants to do about membership of the Council of Europe and the European convention on human rights.
I say that with one proviso about the crossover points in connection with the European Union. The Charter of Fundamental Rights of the European Union contains certain provisions that are relevant to this debate, but only in connection with matters relating to the European Union—for example, the restrictions on people being capable of voting in a European election.
In that case, the Court of Justice of the European Union ruled that French law, which deprived certain convicted persons of the vote, was not an unlawful breach of the right of European citizens to vote in elections for the European Parliament. There is a crossover, but I wish to advance the idea that we may have experienced the last vote for the European Parliament that this country will hold—at least for the meantime.
Therefore, the matter might not crop up again. However, I do not need to tell you that that is a highly contentious area, and it is probably not up to me to pontificate too much on it. That raises one question in my mind.
If a UK Government decided that it would introduce legislation to take us out of the jurisdiction of the European court and out of the ECHR, would Scots law still stand? Would Scottish law need to be changed also, or is there an overarching factor in the explanation that you have given? If a future UK Government repealed the Human Rights Act , domestic litigation in connection with the convention would not apply.
Those are two possible outcomes of an approach to human rights that a future Government may adopt. Beyond that, we are getting into the realms of significant speculation. It would be a shame to focus only on compliance with the convention on human rights. That is a minimum requirement that we need to meet. Here is a chance to think beyond that and to think for ourselves about how we should treat prisoners when it comes to voting. Should we do rather more than what is required, minimally, under the convention?
The Howard League Scotland is saying that we should go beyond that and think about enfranchising all prisoners, but not just because that brings compliance with the requirements of the convention.
It means going beyond that and thinking for ourselves about how we should see and treat those people. I would not want to focus only on what is required to comply with the convention on human rights. I will develop a question on that very point, but I will first ask you for your view on the approach that has been taken under the bill, whereby the right to vote is linked to the length of sentence.
In my opening statement, I explored whether, separate from the bill, it is right or wrong to exclude people.
We expect parliamentarians—lawmakers—to have a rational and mature view that is about the good of all communities. Arguments can be made one way or the other about the exclusion of people, but the fundamental thing is that people are part of a positive and thriving society in Scotland.
Other than a very small number of prisoners, those on long sentences will return to their communities one day and they have a stake in them. They are denied their vote at this time for reasons of punishment. It is not about risk or because they pose a threat to wider communities. It is a value-based judgment. We want people to have a positive reason to rejoin their communities.
I have a fundamental point, which is linked to that. Does anybody believe in that? I did not raise my hand because I believe in it. I struggle to see what the connection is and why that particular right is seen as the one that has an impact on victims or is a deterrent to crime. I am quite confused about the rational connection there. That argument appears to stand up to rigour better than the argument about the removal of the vote deterring crime.
If we think about the standard aims that punishment might be thought to have—retribution, deterrence, incapacitation and rehabilitation—and ask whether losing the right to vote serves any of those aims, it is hard to see how it does. It does not do that for retribution; we believe that it does not deter; it does not help to incapacitate; and, if anything, it works against rehabilitation, because having the vote helps to rehabilitate.
Therefore, losing the right to vote does not serve any of the standard aims of punishment and it works against at least one of them. Are there any examples of a situation in which a civic death would be appropriate?
I am thinking of examples such as when somebody has committed a crime against a democratic institution or been part of a democratic institution and shown gross criminality or misconduct.
Again, that shifts the issue around risk to the public, because that person would not stand for election, but they would vote in elections. That is one example. Are there any situations for which a civic death would be appropriate and proportionate? Let us compare it to driving. A driver can lose the right to drive because, if they drive badly enough, they will lose their licence.
Driving is not a basic right; it is not quite a privilege, but it is a fungible right. The argument then is that they should not lose that right, even if they misuse it. That might invite monitoring or warnings, but they should not be able to lose it, even through electoral malpractice. Perhaps another case, in the extreme, would be a self-avowed terrorist whose aim was precisely to destroy the political community. We might say that that person has ruled themselves out from taking part, so perhaps that might be a case.
However, even in the case of electoral malpractice, it is important that the person preserves the right to vote and is encouraged to use it appropriately. In that example, it could almost be a restorative element if somebody had acted against democracy but they were given the right to vote so that they valued democracy. That is why it is important that the right to vote be made a real right by prisoners being encouraged to use it properly.
That involves making sure that they have the information that they need to use the vote, room for political debate and so on. That is important if we want to make the right to vote a genuine rehabilitative measure.
On the point about civic death being applied to certain types of crime, we have seen that in legislation in other countries. Offences against the state or the judicial system would be in the category that Mr Ruskell was talking about. I would contrast that example with the case of Murat Vural v Turkey. He was given an extraordinary sentence of 23 years and that sentence also excluded him from voting.
That was a violation of article 3 because it was disproportionate. It is a question of balance—one needs to deal with the issues of the margin of appreciation and proportionality. Since we have moved away from applying the death penalty in any circumstance, issues relating to civic death do not really apply in the same way as they might have done some time ago. I am trying to understand the logic behind this. Why is voting specifically separated out from other losses of rights that happen with imprisonment?
Prisoners lose the right to family life as well as all sorts of other things. Voting is just one of several rights that are lost with imprisonment. What is the logic of separating out voting? There is a long list of things that people are deprived of in prison. Imprisonment is essentially loss of liberty. Along with that, inevitably, go other kinds of loss. If someone is imprisoned, they cannot maintain an ordinary family life so, inevitably, there is an impact on family life.
However, the right to vote is not an inevitable loss when someone is imprisoned—it can be maintained. The starting point is that imprisonment is loss of liberty. We then need to ask what other rights must be constrained or can be maintained once someone is imprisoned. That seems to be the way forward. From that point of view, the right to vote can be maintained, even while someone is imprisoned.
But many other things could be maintained in prison, if we think of open prisons—for example, the right to access newspapers and television and all sorts of things. All those rights should be maintained—unless there is a good reason to do with punishment, incapacitation or deterrence to suspend them—if we start from the position that every right should be maintained as far as that is consistent with imprisonment and its purposes. The rights that Tom Mason mentioned may be curtailed or restricted, but they are not lost when someone is imprisoned.
The connection with family is so significant that the Scottish Prison Service has created family facilities in visiting centres, for example. The issue is whether withdrawing the right to vote is the right thing to do. There is an emotional question in separating out crimes that are so serious or so abhorrent that we should take away the right to vote.
However, it is very difficult to make that distinction. There are many people in our prisons who have been convicted of homicide but whose cases have circumstances around them. They are not evil people; they have made very bad decisions in their lives, or maybe there were not even decisions and they are there due to the circumstances. The idea that we can be rational in separating out prisoners in a judgmental way is questionable.
I just want to confirm that prisoners still have the right to stand for election. Famously, Bobby Sands stood for election and was elected, and I believe that the situation has not changed. Prisoners have the right to stand, but not the right to vote. Is that correct? May I comment on the difference between taking away, in the ordinary course of events, the right to a family life and taking away the right to vote? I have not studied this in depth, but I suspect that there is still a sort of shadow of the franchise being something that is given rather than something that is inherent.
Throughout this year, we are celebrating years of women having the vote. We are very close in time to a period when women did not have the vote, and the shift from year-olds to year-olds having the vote happened within the lifetime of those who are seated round the table—unless there is someone here who is very young. I think that the difference is that the right to a family life has always been considered to be inherent in a person, and the removal of that right if someone commits a crime means that society is showing them the element of punishment, or retribution.
I think that that is where the issue comes about. It is difficult to discern how we arrived at the position and how we make the connection. It is interesting to look at other countries across Europe where the connection is not made. I believe that there are 21 European countries in which there is no ban on prisoners being able to vote, so there seem to be completely different approaches to the question of prisoners and this specific right.
We do not have a written constitution in this country, although people are interested in debating that. Many politicians from states that did not have universal suffrage felt the legislation aimed to pressure state governments into allowing excluded people to vote.
There were also arguments that should it pass women would neglect their traditional family roles in favour of politics. Despite this, most opponents made it known that they would agree to parts of the Bill dealing with women for the sake of political uniformity between the colonies.
The same concession was not granted to non-European people and their inclusion was rejected. By 12 June the legislation, with restrictive amendments, had passed through both the Senate and the House of Representatives and been given royal assent by the Governor-General. Women in Australia over the age of 21 could now vote in elections and stand for the Australian Parliament, although many still did not have the right to do the same in their home states.
First Nations men and women only gained the right to vote in federal elections in after an amendment to the Commonwealth Electoral Act. While women voted and ran in elections from , it was not until that the first of them won seats in the Australian Parliament — Enid Lyons in the House of Representatives and Dorothy Tangney in the Senate. As Australia was one of the first places in the world to allow women the vote, Australian suffragists were called upon by women in other countries, especially England and the United States, to provide advice.
Many, including the popular Vida Goldstein, travelled to the US and UK to speak at public forums and to attend rallies and marches for the British suffragists. The banner pictured above was created by Australian artist Dora Meeson and was first carried by Goldstein and other Australian women in a march in London in At the time, women who supported enfranchisement were called suffragists. Suffragettes referred to more militant suffragists, such as the Pankhursts and their supporters.
The National Museum of Australia acknowledges First Australians and recognises their continuous connection to country, community and culture. Between the Reform Act and the Representation of the People Act, democratic reform grew at a faster pace than at any other time. The electoral system had remained the same since it was put in place by the Reform Act.
But it came under increasing pressure throughout the s and 50s from the reformist movements. By the mids, Parliament was in the process of extending the vote to the working class. In , all voters had to be male adults over 21 years of age. The right to vote was still based upon a property qualification. By the early s around 1. Commonwealth Franchise Act Act No. Date of repeal. Commonwealth Electoral Act
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