Scottish Ministers have made the Representation of the People Act 1983 Remedial (Scotland) Order 2025 at 8.41 a.m. on 18 November 2025, laid it before the Scottish Parliament at 2.00 p.m. the same day, and brought it into force on 19 November 2025. Using the urgent procedure under the Convention Rights (Compliance) (Scotland) Act 2001, the instrument requires parliamentary approval within 120 days, excluding periods of dissolution or recess longer than four days, and it expires on 28 February 2030. It does not affect any local government by-election where the poll is before 7 May 2026.
Ministers state that action is necessary because section 3A of the Representation of the People Act 1983 on the disfranchisement of offenders detained in mental hospitals is, or may be, incompatible with Convention rights. The Order narrows the effect of section 3A for devolved elections. Because section 11 of the Scotland Act 1998 links the Scottish Parliament franchise to the local government franchise, these changes apply to both local and Holyrood elections. UK parliamentary elections are unchanged.
Article 3 reads in new subsections 3A(3A) to (3C) for Scotland. A detained person is not legally incapable of voting at a local government election in Scotland by virtue of section 3A(1) while detained under specified criminal justice mental health disposals, provided set thresholds are met. This includes an interim compulsion order under section 53 of the Criminal Procedure (Scotland) Act 1995 where, in respect of the offence, the person would not be liable to a custodial sentence exceeding 12 months; an order under section 54 on unfitness for trial; and a compulsion order under section 57(2)(a) where the person would not have been liable to more than 12 months and is not simultaneously subject to a restriction order under section 57(2)(b).
Eligibility also extends to a hospital direction under section 57A(2) where the person is neither liable to imprisonment exceeding 12 months nor subject to a restriction order under section 59; to a hospital direction with sentence under section 59A where the sentence imposed does not include a term exceeding 12 months; and to a transfer for treatment direction under section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 where the person is not serving a sentence including a term exceeding 12 months. In addition, a person whose personal welfare is placed under guardianship by a local authority under section 58 of the 1995 Act is no longer restricted from voting on that ground while the guardianship order is in force.
New subsection 3A(3B) explains how liability is assessed where multiple offences are concerned in interim compulsion and compulsion order cases. Maximum penalties are aggregated as if consecutive sentences were imposed; if the combined maximum exceeds 12 months, the exception does not apply. New subsection 3A(3C) treats consecutive or concurrent sentences imposed at the same sitting-or at different sittings with no release between them-as a single term in hospital direction and transfer-for-treatment scenarios.
A new residence provision inserted after section 7AA of the 1983 Act confirms that detention under these orders does not interrupt residence for registration purposes if the person intends to return to the address on release and no court order prevents this, or where the address remains their permanent home but for the detention. For these provisions and for section 7B, a “detained person” is defined by reference to the new subsection 3A(3A)(a).
Section 7B on declarations of local connection is updated to include detained persons covered by the new rules, not only convicted prisoners. Textual amendments extend references to a “penal institution” to “penal institution or other place”, enabling registration via a declaration of local connection where ordinary residence cannot be used and ensuring accommodation in hospitals can be recognised administratively without being treated as an ordinary residential address.
The method of voting for these categories is absent voting only. Schedule 4 to the Representation of the People Act 2000 is modified so that, at Scottish local government elections, prisoners enfranchised under section 3(1A) and detained persons covered by the new section 3A(3A)(a) may vote only by post or proxy where otherwise entitled. A person falling within either category on polling day cannot act as a proxy.
Parallel modifications are made for Scottish Parliament elections through amendments to the Scottish Parliament (Elections etc.) Order 2015. These provide for postal or proxy voting only, allow the Constituency Returning Officer to send poll cards to the place of detention, align the proxy restrictions, and adjust the absent voting framework so that forms and processes reflect detention in hospitals as well as penal institutions.
Further consequential amendments are set out in the schedule. The Representation of the People (Scotland) Regulations 2001 are updated so registration officers can request appropriate evidence for declarations of local connection where relevant, are not required to continue reminder activity for invitees covered by section 3(1A) or the new section 3A(3A)(a), and can mark names consistently with the new category. The Absent Voting at Local Government Elections (Scotland) Regulations 2007 are adjusted so application content and closing date provisions capture detention in “other places” alongside penal institutions.
Article 8 provides that any elector entered on the local government register by virtue of the new subsection 3A(3A) remains registered until Article 3 expires on 28 February 2030. When the provision lapses, the registration officer must remove the entry unless the elector qualifies on another basis. The instrument is signed on behalf of the Scottish Ministers by Graeme Dey at St Andrew’s House.
For administrators, the operative date is 19 November 2025, with local by-elections before 7 May 2026 unaffected. Electoral Registration Officers should ready updated templates, postal and proxy guidance, and information-sharing arrangements with hospital managers and the Scottish Prison Service for verification of orders and directions. Detainees who qualify should plan for postal or proxy applications; in-person voting is not available to these categories under the Order.