Senior judges oppose proposal to let judges determine prisoners’ right to vote

High Court judges are unanimously opposed to proposals to let judges decide whether a prisoner should be deprived of the right to vote.

In a letter sent to Christina McKelvie MSP as convener of Holyroods’s Equalities and Human Rights Committee, the Lord President, Lord Carloway, said it was an issue for MSPs.

Lord Carloway, writing in September 2017, told Ms McKelvie that he had “consulted the senior judiciary” and there was universal opposition.

He continued: “There is a major problem of principle with the matter being determined by the court. The development of policy in this area is primarily a matter for Parliament, which is best placed, after due democratic consultation, to decide where the boundaries should lie.

“It is for Parliament to decide when and how someone may be deprived of their right to elect a parliamentarian. Unelected judges should not just invent the rules; they should only determine whether the rules have been lawfully applied. It is not for the judiciary to construct a scheme by developing case-law over time, with the uncertainty that such an approach would entail.

“It is essential that Parliament legislates in this field, setting out the key principles. Parliament could, for example, consider whether a person, who is sentenced to a particular period of years in custody, should lose his right to vote for that, or for an extended or shorter, period.

“Rather like the sex offender ‘register’ provisions, such a prohibition might operate automatically on sentencing and this would be clear to both the prisoner and the prison authorities. It is ultimately for Parliament to determine such a fundamental matter of democratic principle.”