Prisoners will be permitted to vote in the Shetland By-Election caused by the resignation of LibDem Tavish Scott.
A committee of the Scottish Parliament, however, is concerned that it was not given advance notice of this change.
A rarely used ‘Remedial Order’ allowed the Scottish Government to make this change, however, the Delegated Powers and Reform Committee (DPLR) of the Scottish Parliament was not informed and unable to conclude whether this was appropriate or not.
Graham Simpson MSP, Convener of the DPLR Committee, said:
“We only received notification of this Remedial Order the day before it came into effect and this meant we did not have adequate time to assess the proposed change.
“Although we are currently in recess, it is essential for the integrity of the Parliament that suitable scrutiny of any legislation takes place.
“That’s why it is essential that our concerns are addressed.”
The committee has sent a letter to Michael Russell, , Cabinet Secretary for Government Business and Constitutional Relations. In the letter Michael Russell was reminded that it was the duty of the DPLR committee to scrutinise the use of powers by government.
It went on to say:
You wrote to me on the day the remedial Order was made and laid, which was the day before it came into effect. The Committee has not had an opportunity to express a view on whether the use of a remedial Order was appropriate in this case.
While the Parliament could choose not to approve the Order, as you know this would only take effect after 120 days, which is well beyond the date of the by-election. There is therefore little point in the Committee meeting during recess to consider this further.
Clearly, governments have to act swiftly, for example in times of national emergency. However, I would be grateful if you could explain to the Committee why the Government chose not to give more advance notice of what it was intending to do so that the Committee could have had at least some chance to express a view.
I have to say that I find this most frustrating. In terms of the necessity for the instrument, the Scottish Government has clearly taken a different approach to the UK Government in relation to prisoner voting in recent by-elections.
Can you explain why this is the case?
In relation to the remedial Order itself, I would also be grateful if you were able to respond to the following questions:
• In the light of the fact that the Scottish Elections (Franchise and Representation) Bill has just started its parliamentary journey, was there an option of leaving things as they were until that Bill has completed its passage?
• We understand from reports that fewer than five prisoners are affected by the Order. While the numbers are irrelevant, did the government assess the risk of action being taken against it by these individuals?
• Media reports have suggested that the Scottish Government intends to revoke the remedial Order following the by-election. Is this your intention and if so, when might the revoking instrument be laid?
The Committee has asked for a response by Friday 23 August and has requested that Michael Russell explains his reasons in person when he appears before them on Tuesday 10 September .
The Scottish Government has argued that the inclusion of prisoners in the franchise was reflecting the intention of legislation currently making its way through the Scottish Parliament – the Scottish Elections (Franchise and Representation) Bill. Michael Russell states that it is to comply with the European Court of Human Rights.
Michael Russell said:
“The courts have been crystal clear – the blanket ban on prisoner voting is not compliant with the ECHR.
“Whether people agree with that or oppose it, one thing everyone should agree on is that elections must be compliant with the law.
“And, unlike the UK Government, who did not rectify this issue for more than a decade, the Scottish Government is legally obliged under the Scotland Act to comply with the ECHR.
“The timing of the by-election means action must be taken now, on a temporary basis, to ensure Scotland does not breach the ECHR.
“The Order will then be repealed prior to the full parliamentary debate on legislation to put in place a long-term solution to the issue.
“The resignation of the sitting Shetland MSP means that we have to move quickly to bring the resulting by-election into line with the law.
“This is a pragmatic, short-term solution, and our intention is that Bill currently before Parliament, if passed, will provide the longer-term solution.”
Anyone serving a sentence of 12 months or less and who can satisfy an Electoral Registration Officer that they would be ordinarily resident in the Shetland Islands if it weren’t for their imprisonment, will be eligible to vote.
It is thought that it applies to 5 people in Shetland.
The Scottish Elections (Franchise and Representation) Bill was only introduced to the Scottish Parliament on 20th June 2019
The Shetland By-Election will take place on 29th of August.