Draft Representation of the People (Postal Vote Handling and Secrecy) (Amendment) Regulations 2023
(5 months, 3 weeks ago)
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The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Jacob Young)
I beg to move,
That the Committee has considered the draft The Representation of the People (Postal Vote Handling and Secrecy) (Amendment) Regulations 2023.
It is a pleasure to serve under your chairmanship, Dr Huq, and to introduce these important regulations.
In our manifesto, we committed to ensuring the ongoing integrity of our democratic process by stopping postal vote harvesting, and we are delivering on that commitment. Postal vote harvesting is the practice of third parties collecting the votes of a large numbers of postal voters. Last year, Parliament passed the Elections Act 2022, which introduced some significant changes to electoral procedure in the UK such as voter identification, improvements to the security of postal and proxy voting, and online applications for absent votes, and I am delighted to introduce a statutory instrument, that flows from that Act and implements three measures concerning the handling of postal votes and the secrecy of absent voting. The changes aim to tackle the practice of collecting, or harvesting, the votes of large numbers of postal voters and to enable electors to cast their votes confidently and securely outside of the polling station.
The first measure introduces a ban on political campaigners handling postal voting documents issued to another person. The second sets out that, in addition to their own postal vote, an individual will be able to hand in the postal votes of up to five other electors, either at a polling station or directly to the returning officer, which is typically achieved by handing them in to the returning officer’s staff at the council office. The third measure extends existing secrecy provisions for those voting in person in a polling station to those voting by post and by proxy. The measures implement recommendations set out in the 2016 report into electoral fraud published by Lord Pickles, and are designed to improve the security of absent voting and make it less vulnerable to potential fraud.
Let me set out the measures in the statutory instrument in more detail. Currently, there are no restrictions on who may hand in postal votes or how many may be handed in by any single person, and there is no record of who has handed in a postal vote. That is unacceptable, because it creates opportunities for unscrupulous individuals to undermine the integrity of postal voting. For example, there is a concern that voters could be coerced into completing their postal voting statement before handing the unmarked ballot paper to be filled in elsewhere by someone else, or that completed ballots could be tampered with out of sight of the voter and the returning officer. Tackling the collection, or harvesting, of votes in this way delivers on a manifesto commitment that we are determined to deliver on.
Furthermore, even when acting legitimately, people seen handing in large numbers of postal votes create the perception and suspicion of impropriety, which can be damaging to public confidence in the electoral system. We want to address that while striking the right balance between security and propriety and keeping the electoral process accessible. Under the draft regulations, in addition to their own postal vote, a person will be able to hand in the postal votes of up to five other people either at a polling station or to the returning officer via the council office. We consider that that is a reasonable limit that will support the integrity of postal voting. A person handing in postal votes will be required to complete a form that includes information such as their name and address, the number of persons whose postal votes they are handing in, and the reason for this. Postal votes in excess of the limit or not handed in in accordance with those requirements will be rejected.
Cat Smith (Lancaster and Fleetwood) (Lab)
If a member of the public or an elector turned up at a polling station with more than the permitted number of postal votes, how would it be decided which one of those postal vote packs was to be rejected?
Jacob Young
My team will help to clarify that so that I can respond to the hon. Lady in my closing speech, but I believe the situation is that a person will be able to hand in one of those postal votes—presumably deemed to be their own—and the others would be rejected. Only one of those postal votes would count in that situation.
Jacob Young
That would be for the individual to know themselves, but I am happy to try to bring clarity to the hon. Lady’s questions in my closing speech.
The regulations will update all relevant prescribed forms to ensure that the new limits are set out clearly for electors. That information should help electors to plan accordingly and to return their postal votes via the post where possible, and if they are handed in, they will know the permitted number that they can submit. After the poll, the returning officer will put together lists of rejected postal ballot papers, and the electoral registration officer will, where possible, write to those whose postal votes have been rejected to notify them and give them the reason, or reasons, why. That will ensure that postal voters are informed of the rejection of their postal vote and can, if necessary, act to avoid the same thing happening at future polls.
The Government’s concerns about vote harvesting are magnified further when it is carried out by a political campaigner, which is why the Act, supported by the regulations, bans such individuals from handling postal vote documents that are issued to another person, unless the political campaigner is a family member or their designated carer. The ban is supported by a new offence, which carries a maximum penalty of up to two years in prison, a fine or both. The regulations apply an equivalent new ban and related offence to other kinds of elections not directly covered by the Act, such as police and crime commissioner elections.
Currently, requirements protecting the secrecy of a person’s vote are in place for people voting in a polling station. It is essential that electors opting for an absent vote receive equal protection under the law. The secrecy of the ballot is fundamental to our democracy, and the ability of voters to cast their vote freely without pressure should apply equally, whether they are in a polling station or marking their ballot at home. Therefore, it will be an offence for a person to seek information about whom a postal voter is voting for when they are completing their ballot paper or to communicate that information. However, the offence does not apply to legitimate opinion polling activity asking how a postal voter has voted or how they intend to vote. As well as protecting postal voters, the measure provides that a person voting as a proxy for another elector at an election must not communicate to a third party for whom that person voted. As with the ban on vote handling by political campaigners, the Act also makes secrecy changes to other types of election.
Cat Smith
I hope I am not testing the Minister’s patience, but something that struck me when reading the regulations was the lack of clarity around the definition of a political campaigner. While it might be obvious if someone walked into a polling station wearing a rosette that they were a political campaigner, if they removed that rosette, would they therefore not be a political campaigner—or is a political campaigner anyone who has delivered a leaflet for a candidate or political party or who has voiced support for a certain political party on their own private social media? I wonder how we will define “political campaigner”, because it strikes me that doing so will be particularly challenging.
Jacob Young
The definition of a political campaigner for the purpose of the new postal vote handling offence and the exemptions that apply to that offence is set out in the Elections Act 2022. After the debate, I am happy to write to the hon. Lady with the exact part of the Act that specifies that.
In conclusion, the measures are sensible safeguards against the potential abuse of absent voting and will reduce the opportunity for individuals to exploit the process and steal the votes of others. I hope that in setting out the details of the statutory instrument the Committee will appreciate its careful and considered design for supporting absent voters and strengthening the electoral process, which is the foundation of our democracy. I commend the regulations to the Committee.
Florence Eshalomi (Vauxhall) (Lab/Co-op)
It is an honour to serve under your chairship, Dr Huq. I thank the Minister for his introduction outlining why we are here. As elected Members of this House, we should all support aims to make our elections as free and fair as possible. I think about why I got involved in politics, and why I got involved stood for election as a local councillor: it was because I wanted to represent my community which, I felt, simply did not have enough of a voice in decisions. It would be disgraceful to see my or any other community denied a voice in our system by fraud in favour of another candidate.
The Minister will be pleased to know that we do not intend to oppose the measures, but I want him to consider seriously the potential for unintended consequences if the regulations are not implemented with sufficient care. I would welcome his assurances on these matters. I refer to the question from my hon. Friend the Member for Lancaster and Fleetwood. I, too, am concerned about the definition of political campaigners. In its report on electoral reform, the Law Commission acknowledged the stickiness of regulation in this area and highlighted feedback from respondents:
“(1) regulation would criminalise helpful and otherwise unavailable assistance for those voters who need it;
(2) regulation would be difficult to enforce and breaches hard to detect—putting off honest campaigners without deterring dishonest ones; and
(3) regulation would be an overreaction in the light of the available data on fraud.”
The Law Commission said that it
“could not recommend legal regulation”
in respect of measures such as those we are discussing without addressing existing electoral offences such as undue influence in a more effective manner.
Returning to the Minister’s response to my hon. Friend the Member for Lancaster and Fleetwood about the definition of a political campaigner, the definition in the regulations includes
“members of registered political parties who carry on activities designed to promote a particular outcome at the election.”
My local party in Vauxhall has significantly more than 1,000 members and, at elections, many of them put up posters in their windows. They occasionally comment online. That is enough to draw them into the definition of a political campaigner. Many of my constituents, along with many hon. and right hon. Members, are renters or are in cohabiting relationships but are not married or in a civil partnership; they would not be covered by the exemptions in the regulations. I should make it clear that the Labour party has signed up to the Electoral Commission’s code of conduct on campaigners for many years which, by agreement, bans campaigners from handling completed postal ballots. Our internal guidance also clearly states that under no circumstances should campaigners handle completed postal ballots unless electors have absolutely nobody else to return them for them and only then with the prior agreement of the returning officer.
It is easy to imagine that a party member, for example, who does not generally involve themselves in day-to-day campaigning and has therefore never seen this guidance and who simply wants to hand in a postal vote for a sick housemate or partner could end up being caught by the regulations. The Minister has outlined the fact that the penalty could be imprisonment for up to two years, just for trying to help a colleague or a family member to exercise their democratic right to vote. In short, I am not sure how far the regulations draw a distinction between a political campaigner—in the sense of someone with a red or blue rosette knocking on a door as part of an organised activity—and someone who happens to be an ordinary party member who is acting in a personal capacity.
If we are honest, this could be a real travesty, because it could mean that votes would be lost and legitimate voters denied their voice. Can the Minister therefore outline what safeguards are in place to ensure that that would not be the case and what efforts are being made to ensure that legitimate voters do not lose their voice as a result of the regulations? Can he make sure that the burden of proof is on prosecutors to show that such a person intended dishonestly and illegally to influence a decision? This point may be lost if it is not made explicit, and we have to be clear about it.
The Minister outlined the reasonable limit of five. I would welcome clarity on where the limiting of the number of postal voters to five came from. I have struggled to find any concrete reasoning behind that number, bar what is described in debate on the statutory instrument in the other place as
“helpful input from your Lordships”—[Official Report, House of Lords, 24 October 2023; Vol. 833, c. GC56.]
Although we respect the Lords, it is important that we do not pluck an arbitrary number out of the sky when it comes to such an important decision.
My hon. Friend the Member for Lancaster and Fleetwood pushed an amendment when the Elections Bill was in Committee so that we would have the required public consultation on regulations in what is now section 5 of the Act. While the Government may have their reasons for rejecting that, it is important for the Minister to clarify the exact journey that they went on to reach the maximum limit of five. I would like to put on record the concerns of Lord Khan of Burnley, who said:
“What will happen to those who are already registered as a proxy voter for more than four electors or more than two domestically residing electors?”
He also said:
“Will there be special circumstances by which a proxy can act as such for more than four electors, should they be family members who are unable to vote themselves and the chosen proxy is the only trustworthy option for them?” ”—[Official Report, House of Lords, 24 October 2023; Vol. 833, c. GC61.]
These are real consequences affecting people’s ability to exercise their democratic right to vote.
Finally, the Minister may be aware that this regulation is the latest in a line that adds layers to our voting system. While those layers may have security advantages, they risk overloading election officers, who are already stretched by changes such as the requirement to bring in photo ID for voters. Can the Minister outline what discussions he has had with the Association of Electoral Administrators about the extra load that the regulation will impose on their work?
Ms Anum Qaisar (Airdrie and Shotts) (SNP)
The SNP supports the intention to reduce voter fraud and ensure the secrecy of the ballot, which is fundamental to democracy. That should not come as a surprise to anyone; it is what all Members of the House should be aiming for. Safeguarding the legitimacy and integrity of democracy is fundamental to securing the trust that is necessary for it to function. Accordingly, we do not necessarily oppose the changes in this SI in principle. That said, it seems to run against some of the measures in the Elections Act, to which it applies.
The Elections Act is flawed and riddled with problems. The voter ID requirement introduced in this Act disenfranchised tens—if not hundreds—of thousands of voters, especially those from vulnerable minority groups. The Act, far from protecting the rights of all to vote independently and secretly, undermined the freedom and protections for, specifically, blind and partially sighted people when voting. It also undermined the independence of the Electoral Commission, weakening trust in elections. It therefore rings hollow that the Tories are now seeking to protect the independence of the vote. It would have been far better to use this opportunity to undo the severe harm that the Elections Act did.
I am not without concerns regarding the SI itself, but the primary focus of these regulations, which amend the handling of postal votes at the polling station or electoral offices, is impractical. These amendments introduced by the Lords last month are surely destined to fail. The No. 1 aim of this SI is to stop election fraud. However, if somebody wanted to commit voter fraud, what would stop them harvesting postal votes and not handing them into the polling station or electoral office, but simply putting them in a post box, which might be only metres from the polling station? I would appreciate clarification from the Minister on that point.
Alternatively, not everyone can get to a polling station on election day or to an electoral office between 9 am and 5 pm. We have all stood in general elections, or, in my case, a by-election, and we know that, on election day, it is simply not possible for all voters to get out, for a number of different reasons. Will the votes of those people be invalidated simply because they decided to hand in their postal ballot instead of mailing it? Will the difference of a couple of metres, when somebody decides to hand in their postal ballot, decide a person’s disenfranchisement?
The Association of Local Authority Chief Executives has also raised concerns about the SI. It says it will put extra strain on polling staff and create extra work for them. Members of staff will have increased duties and responsibilities under this SI to accept or reject postal ballots. As has been asked previously, who will decide whether to reject them? I would also appreciate clarification from the Minister on whether the UK Government will foot the bill for training staff in their new responsibilities, or will that fall to councils? What measures will the Government put in place to provide extra funding for these staff, or are they not planning for that?
We know that postal voting is often used by those who are vulnerable, such as folk who are disabled or elderly. Although the Government should be mindful of security, they must keep the electoral process accessible. I know that I am saying that to a Conservative Government that have been looking to disfranchise various parts of society during their tenure since 2010. Given that elderly and disabled people are more likely to have difficulty with online applications, does the Minister not share my concerns that that could prevent them from being able to vote? What happens to constituents who are struggling with the cost of living crisis and who cannot afford to buy more mobile data so that they can go online and vote?
Madam Deputy Speaker—apologies, Dr Huq; I have given you an upgrade there—we do not oppose the SI, but we are not convinced that it is fit for purpose or that it will solve election fraud. It will make the process more difficult, more complicated and more inaccessible. I hope the Minister will answer my questions in his closing remarks.
Cat Smith
I do not usually speak from the Back Benches on SIs, but as the spokesperson for the Speaker’s Committee on the Electoral Commission, I have the duty of answering questions on the Floor of the House on electoral matters, and there are a couple of things I would like some clarity on, because I suspect I will be answering questions on the consequences of this legislation quite soon.
I want to begin with the consultation process on this legislation. I have been made aware that the Electoral Commission has been consulted, but that is the extent of the external bodies that have been consulted. I make a plea to the Minister to pause slightly and consult a little more widely than just the Electoral Commission, because local authorities that have to deliver elections on the ground have some strong opinions on this legislation. I certainly think there would be time, should the Minister so wish, to consult the Association of Electoral Administrators, the Society of Local Authority Chief Executives and other organisations that are able to provide clear insight into how we can secure the ballot, but in a way that is both secure and inclusive and does not disfranchise people. I suspect there will be people around tea tables up and down the country right now discussing how an unelected Prime Minister plucks out a failed politician and makes him Foreign Secretary. Trust in our democracy—and our democracy as a whole—is incredibly precious, and we must protect it.
The pressure on local authorities is significant. I know that, as a local government Minister, the Minister will have frequent conversations with local authorities around the country, hearing about how stretched they are, but this legislation is putting a lot of pressure on our returning officers, who are often volunteers who give up their time to staff polling stations to ensure everyone can take part. Up until now, they have been in charge of issuing ballot papers based on whether the name matches the name on the electoral roll and, more recently, on whether the ID does as well.
This legislation is about rejecting a completed ballot paper, which is a completely different requirement that we are putting on people who are often volunteers. I would also say that we are putting these duties on council reception staff, who are not trained in electoral law and did not necessarily step up to do that job thinking that this duty was part of the package. We are asking people working on reception desks in county offices up and down the country to make that assessment as well. I think that that needs to be considered, and I urge the Minister to do further consultation with local government.
On the recruitment and retention of polling staff, could the Minister say anything in his closing remarks on what he is doing to improve that? I know it is of great concern to an awful lot of individuals.
Looking to the evidence, could the Minister also tell me how many fraudulent postal ballots have been taken into, first, polling stations and, secondly, town hall counters or reception desks, and how many have been dropped into Royal Mail post boxes? That, ultimately, is the massive loophole in this legislation. Postal vote harvesting is a crime, and it is not a victimless crime, because votes being stolen is a crime. I do not dispute that, and I do not think anyone in this room would, but if someone harvesting postal votes can drop 20 or 30 completed postal packs into a Royal Mail post box and get those votes counted no bother, and we disfranchise a person with six sick relatives who turns up on the day to hand in those votes at the polling station only to realise they cannot do that, are we not taking legitimate votes from legitimate voters while allowing fraudsters to go in through the backdoor? It is like building a massive fence around the property but not putting any gates at the front.
I also want to know what will happen to postal vote packs that are dropped through council letterboxes. If it is not clear whether a postal vote has come via Royal Mail delivery or has been hand-delivered through a council letterbox, how on earth is a council officer meant to differentiate between those two things? One would require the checks and one would not. I would love to know how the Minister sees a way through that.
Finally, the best way to strengthen our democracy is to increase participation. The best way to secure every ballot is to ensure that everyone turns out to vote. If everyone turned out and voted, and voted freely and not under pressure, we would have a legitimate election in which votes could not be stolen because they would all be used. I will finish by asking the Minister what steps he is taking to strengthen democracy by increasing participation in it.
The Chair
Jacob Young
Thank you for calling me, Dr Huq. I thank all hon. Members for their thoughtful consideration and input today. I will take this opportunity to provide further clarity on some of the points raised, including by the hon. Member for Lancaster and Fleetwood just now.
On the question of whether a ballot can be handed in through a council letterbox versus into a post box, a postal voter may return their vote only by post or by handing it directly to a returning officer or their returning officer’s team. In the past, it appears that individuals were informally allowed to put their postal votes through a council letterbox as a way of returning their vote. However, where a person puts a postal vote into a council letterbox, it is not counted as having been returned by post, for example via Royal Mail. The new handing-in requirements will therefore apply to such votes. Postal votes handed in through a council letterbox cannot be treated as being in accordance with these requirements and will therefore not be counted in the election to which they relate. The postal voting statement that postal voters receive with their postal ballot paper will notify postal voters of the new requirements and caution them not to put any postal votes in a council letterbox, for this reason.
The hon. Member for Lancaster and Fleetwood mentioned further consultation with the Association of Electoral Administrators and others. We formally consulted the Electoral Commission on these regulations, as the hon. Lady rightly said, but we have since also engaged with the Association of Electoral Administrators, the Society of Local Authority Chief Executives and the wider election sector throughout the development of this policy and legislation, and we continue to do so as we approach implementation.
In terms of the justification for this policy, the hon. Member for Lancaster and Fleetwood referred to how many examples of postal vote fraud there have been, but I do not think that low levels of prosecution for fraud should deter us from introducing changes that protect the integrity of our elections. That is exactly what we are trying to do with this policy.
Jacob Young
I am happy to try to write to the hon. Lady with that statistic, as I do not have it in front of me today.
During my opening remarks, the hon. Member for Lancaster and Fleetwood asked what happens when someone hands in a number of votes that exceeds the total permitted number. To clarify, the individual will have to decide which of those postal votes is their own, and the election staff will have to take that decision at face value. If the person hands in the votes without the completed form, all the votes will be rejected—none will be accepted. I hope that provides the clarity the hon. Lady was seeking.
There has been a lot of discussion about the definition of a political campaigner. As I set out earlier, the definition of a political campaigner for the purpose of the new postal vote handling offence and the exemptions that apply to that offence are set out in section 4(2) of the Elections Act 2022. The Electoral Commission issues guidance to candidates at elections, and we expect that it will cover the new postal vote handling and handing-in requirements. We also expect that political parties will bring the new requirements to the attention of their members. We intend that the changes will be communicated to electors directly via forms, including the postal vote statement and poll cards, and through information made available to electors via gov.uk.
Additionally, information will be displayed on the Electoral Commission and other agency websites and in information provided by local authorities. We will continue to work with the Electoral Commission to develop this information and awareness. Also, when a person hands in a number of votes, they are given a form that requires them to confirm whether they are a political campaigner. That should provide the clarity the hon. Lady was seeking.
Florence Eshalomi
I understand what the Minister is trying to outline here, but does he agree with the concerns raised by the Law Commission about a clear definition of a political campaigner, and that there may be unintended consequences on innocent people who are just trying to make sure that their friends, family and other people have the right to vote?
Jacob Young
As I have set out, individuals will need to complete a form. They will need to define whether they are a political campaigner, so I do not agree with hon. Lady’s assertions. I think it will be clear to individuals whether they should be handing in postal vote forms.
In terms of the potential impact of these changes on electoral administrators, we are aware of the concerns that have been raised. We continue to work with the Electoral Commission and electoral administrators on the implementation of these measures, on ensuring that administrators have support to deliver them and on raising awareness among the electorate of the changes and new requirements.
A concern was raised by the hon. Member for Airdrie and Shotts about poll clerks having to reject postal votes. We consider it appropriate for presiding officers and poll clerks in polling stations to be able to make decisions on whether postal votes have been handed in in accordance with the rules and whether they should be accepted or rejected. It will be an objective matter as to whether the person handing in the votes has completed the accompanying form and has handed in the permitted number of postal votes.
We have provided for poll clerks to be able to make decisions on these matters in case the presiding officer is not available in a busy period or is indisposed due to unforeseen circumstances. In practice, the presiding officer may well decide to make all decisions on whether to accept or reject handed-in postal ballot packs, but we thought it helpful to enable poll clerks to make such decisions too.
The hon. Member for Vauxhall raised the question of five plus one. The number was decided on in the passage of the Elections Bill and goes back 20 years. Having six postal vote electors in a property starts to raise concerns about postal vote fraud. Hon. Members will know that there was a discussion during the passage of the Bill about the right number to use. Throughout various types of election guidance and so on, the number six is used, which is why we have chosen it.
The hon. Member for Airdrie and Shotts asked whether the cost will be met by central Government. Yes, it will be, through new burdens funding.
All hon. Members are deeply committed to preserving and enhancing the electoral processes that underpin our democracy—a commitment that has been underlined so vividly by the contributions to this debate. I thank everyone for the part they have played in this discussion, and I commend the regulations to the Committee.
Question put and agreed to.
Resolved,
That the Committee has considered the draft Representation of the People (Postal Vote Handling and Secrecy) (Amendment) Regulations 2023.