The Representation of the People Act 1983 Remedial (Scotland) Order 2019

EXPLANATORY NOTE

(This note is not part of the Order)

This Order removes the restriction on certain convicted persons detained in a penal institution from voting at the Shetland Islands by-election on 29 August 2019.

Section 3(1) of the Representation of the People Act 1983 (“the 1983 Act”) provides that a convicted person detained in a penal institution is legally incapable of voting at any parliamentary or local government election. In Hirst v United Kingdom (No. 2), Application no. 74025/01, 6 October 2005, the European Court of Human Rights concluded that the incapacity of convicted prisoners to vote in the United Kingdom, provided in section 3 of the 1983 Act is incompatible with Article 3 of Protocol 1 to the European Convention on Human Rights (“the Convention”).

The Scotland Act 2016 amended schedule 5 of the Scotland Act 1998 (which sets out the reserved matters) in relation to elections. Competence for the conduct of local government and Scottish Parliament elections, including the franchise at such elections (subject to some reservations set out in the amended Section B3 of Part 2 of that schedule 5) was devolved to the Scottish Parliament on 18 May 2017. As a result of the Scottish Parliament having competence over the franchise in Scottish Parliament and Scottish local government elections, the Parliament, and the Scottish Government, are required to ensure that the exercise of that franchise is compatible with the Convention.

The Scottish Elections (Franchise and Representation) Bill was introduced on 20 June 2019. Section 4 of the Bill provides that convicted persons in penal institutions sentenced to a term not exceeding 12 months will be eligible to register to vote as a local government elector in Scotland. Section 11 of the Scotland Act 1998 provides that those entitled to vote in Scottish Parliament elections are those who are entitled to vote, and registered, as local government electors. Therefore, the changes made to the local government franchise by the Bill will also affect Scottish Parliament elections.

The resignation of the constituency MSP for the Shetland Islands has triggered a by-election that will take place on 29 August 2019. To comply with Article 3 of Protocol 1 to the Convention, article 4 of this Order provides that a convicted person detained in a penal institution sentenced to a term not exceeding 12 months will be eligible to vote at the Shetland Islands by-election.

Article 5 and 6 make provision regarding where a convicted person is treated as residing. Article 8 provides that a convicted person is only entitled to vote at the Shetlands by-election by post. Article 7 provides that a convicted person who is registered to vote by virtue of this Order is only entitled to remain registered as long as is necessary for the purposes of voting as an elector at the Shetland Islands by-election.