The 2026 Scottish Parliament General Election: Entitlement to Vote – Part 1

As the result of changes made in 2025, the franchise for the upcoming election to the Scottish Parliament has been expanded.

As part of our series on Scottish election law, this article considers the extent of the change, the implications for bodies involved in delivering it, and the scope for future reform.

2025 Changes

The Representation of the People Act 1983 initially imposed a blanket ban on voting by those detained after their conviction for a criminal offence. However, as a result of changes made by the Scottish Elections (Franchise and Representation) Act 2020, individuals sentenced to 12 months or less in prison were allowed to vote in Scottish Parliament and local government elections.

Further changes have now been made by the Representation of the People Act 1983 Remedial (Scotland) Order 2025. The aim was to apply the carveouts from the ban more consistently, including to some individuals detained in hospitals. The Order allows voting by individuals who are subject to any of the following:

Temporary Compulsion Orders

• made under section 54 of the Criminal Procedure (Scotland) Act 1995,
• where an individual is deemed unfit for trial and required to stay in hospital for treatment.

Interim Compulsion Orders

• made under section 53 of the 1995 Act,
• where an individual is convicted of an offence punishable by imprisonment but instead required to stay in hospital for examination,
• provided the offence was not punishable by imprisonment exceeding twelve months.

Compulsion Orders

• made under section 57 and 57A of the 1995 Act,
• where an individual is convicted of an offence punishable by imprisonment but instead required to stay in hospital or in the community for treatment,
• provided the offence was not punishable by imprisonment exceeding twelve months.

Guardianship Orders

• made under section 58 of the 1995 Act,
• where an individual is convicted of an offence punishable by imprisonment but instead placed under the personal welfare guardianship of their local authority.

Hospital Directions

• made under section 59A of the 1995 Act,
• where an individual is sentenced to imprisonment but required to stay in hospital for treatment until treatment is no longer required (and the individual is returned to prison), or the prison sentence ends (and the individual is released).

Transfer for Treatment Directions

• made under section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003,
• where an individual is serving a prison sentence but is transferred to hospital for care and treatment.

Practical Implications

Despite the range of directions and orders affected, the Scottish Government estimates that only around twenty people will be enfranchised as a result of the new changes. While the implications for these individuals are significant, the 2025 Order is therefore unlikely to substantively affect the outcome of elections in Scotland.

There are, however, practical considerations for those involved in the care, detention, and registration of the affected individuals. Electoral Registration Officers must take all necessary steps, so far as it is reasonably practicable, to ensure they are registered. Hospital staff will also be involved in supporting the individuals to register for and exercise the right.

Generally, those now entitled to vote as a result of the 2025 Order should be registered, or continue to be registered, as residing at their previous address rather than their place of detention. Those who are detained will only be entitled to vote by post or by proxy, not in person.

As explained previously in this series, the election is due to be held on 7 May 2026. The deadline to register to vote will therefore be 20 April, and the deadlines to register to vote by post or by proxy will be 21 and 28 April respectively.

Future Reform

The Scottish Government introduced the 2025 Order under section 12 of the Convention Rights (Compliance) (Scotland) Act 2001 (“the 2001 Act”) because it took the view that 1983 Act unjustifiably discriminated against individuals detained in hospitals in relation of their right to vote in free elections and that the 2025 Order would remedy this breach of the European Convention of Human Rights. To ensure the provisions would be in force for the 2026 election, the Scottish Government used the expedited procedure for urgent action set out in section 14 of the 2001 Act.

While this allowed the Scottish Government to make the change quickly, it limited the scope for stakeholder consultation and parliamentary scrutiny before the 2025 Order was introduced. The Scottish Government was therefore required to invite parties to submit their views on the 2025 Order and may now make modifications in response to these. The Scottish Government also decided to make the 2025 Order subject to a ‘sunset’ provision, and it will expire on 28 February 2030. The current Scottish Government intends to consult on the issue after the 2026 election and (if returned to office) to bring primary legislation before the Scottish Parliament for debate before the 2025 Order expires.

If you are involved in implementing the 2025 Order or interested in engaging with any forthcoming consultation on this subject, please do contact Christine O’Neill, Evan Adair, or your usual Brodies contact.

If you want more information on the election, previous instalments in our series have looked at the fundamental legal framework, its impact on primary legislation currently being considered by the Scottish Parliament, and the restrictions on pre-election activity by the Scottish Government.