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Representation of the People (Postal Vote Handling and Secrecy) (Amendment) Regulations 2023

Volume 833: debated on Tuesday 24 October 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Representation of the People (Postal Vote Handling and Secrecy) (Amendment) Regulations 2023

Relevant document: 53rd Report from the Secondary Legislation Scrutiny Committee

My Lords, I beg to move these regulations, which were laid before the House on 11 September. 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. Last year, Parliament passed the Elections Act 2022, and I am delighted to be able to bring forward a statutory instrument flowing from that Act.

The instrument implements three measures in the Elections Act relating to UK parliamentary elections and other types of polls concerning the handling of postal votes and the secrecy of absent voting. These changes intend to tackle the practice of collecting the votes of large numbers of postal voters and support electors to be able to cast their vote confidentially and securely outside of the polling station.

The first element introduces a ban on political campaigners handling postal voting documents issued to another person. The second measure sets out that an individual, in addition to their own postal vote, will be able to hand in the postal votes of up to five other electors at a polling station or to the returning officer at, for example, a council office. Thirdly, existing secrecy provisions in force for those voting in person in a polling station are being extended to postal and proxy voters. These measures implement recommendations in the report into electoral fraud published in 2026 by my noble friend Lord Pickles entitled Securing the Ballot. They are designed to improve the security of absent voting and make it less vulnerable to potential fraud.

I will set out the measures 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 postal votes. We do not consider this acceptable 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 ballot paper unmarked to be taken away and 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 of votes in this way is a manifesto commitment that we are keen to deliver on.

Furthermore, even if acting legitimately, people seen to be handing in significant numbers of postal votes creates the perception and suspicion of impropriety, which can be damaging to public confidence in the electoral system. We are intent on striking the right balance between being mindful of security and keeping the electoral process accessible. Under these regulations, a person, in addition to their own postal vote, will be able to hand in the postal votes of up to five other electors at a polling station or to the returning officer—for example, at a council office. I highlight that the setting of this limit has been informed by the helpful input from your Lordships during the debates on the Elections Act, in particular the input from the noble lord, Lord Scriven.

A person handing in postal votes will be required to complete a form setting out certain information, including 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 these requirements will be rejected.

These regulations will also update all relevant prescribed forms to make sure the new limits are set out clearly to electors. This information should help electors to plan accordingly and return their postal votes via post where possible, although if they are handed in, they will know the permitted number that may be handed in.

After the poll, the returning officer will put together lists of rejected postal ballot papers, and the electoral registration officer, where possible, will subsequently write to the persons whose postal votes have been rejected under the postal vote handing in requirements to notify them that their vote was rejected and the reason, or reasons, why. This will ensure that postal voters are informed of the rejection of their postal vote and can, if necessary, act to avoid this at future polls.

The concerns about postal vote harvesting I have set out are magnified when being carried out by a political campaigner. The Act, supported by these regulations, therefore sets out a stricter approach for such individuals. It introduces a ban on political campaigners handling postal voting documents that are issued to another person, unless the political campaigner is a family member or designated carer of that other person. The ban is supported by a new offence. These regulations apply an equivalent new ban and related offence to election types not directly covered by the Act: for example, police and crime commissioner elections.

Currently, requirements protecting the secrecy of a person’s vote are in place for people voting at a polling station, but it is essential that electors opting for an absent vote are also protected by the same secrecy provisions. The secrecy of the ballot is fundamental to the ability of voters to cast their vote freely, without pressure to vote a certain way, and this should apply regardless of 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 who a postal voter is voting for at the time they are completing their ballot paper, or to communicate any such information obtained at that time. The offence does not apply to opinion polling activity asking how a postal voter has voted or intends to vote, to avoid criminalisation of legitimate opinion pollsters.

As well as protecting postal voters, the measure also provides that a person voting as proxy for another elector at an election must not communicate at any time to any person, except to the elector for whom they are voting as proxy, any information as to the candidate for whom that person is about to vote or has voted as proxy. As with the political campaigner handling ban, the Act makes these secrecy changes in respect of some elections, and the regulations make equivalent changes to other types of elections.

These 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 other voters. I hope that, following my setting out of the details of the statutory instrument, the Committee will appreciate its careful and considered design for supporting absent voters. I commend these regulations to the Committee.

My Lords, I put on record my welcoming of the regulations and, as I indicated during the passage of the Act, my support for the broad range of the proposals in relation to controlling postal votes and the fraud which has gone on. I say that without any shadow of a doubt, as on one occasion I went to Tower Hamlets to campaign in a by-election and, as I got out of the Tube, I was confronted by people exchanging voting forms in front of me. I hesitate to imply that Tower Hamlets has been the cause of much of this legislation, but it seems to have been on occasion. However, to ensure that it is not the sole location identified, Richard Mawrey, who sat in judgment on the Birmingham case several years ago, said that the events in Birmingham in relation to voting fraud gave banana republics a bad name. He was essentially taking a view primarily in relation to postal votes, but also to other elements of fraud.

I will make a quick comment in relation to my noble friend’s opening comments. I think that he referred to 2026. It would be rather perceptive of us to be discussing something that arose from a report published in 2026. I think that he meant—and that everybody in the Moses Room knows he meant—2016.

I return to a point that I made in discussions on the last statutory instrument that we discussed. Yet again we have proof of the serious need for the consolidation of elections law. We are passing a series of regulations in relation to one election, but we have to have another set of papers in relation to another election and another election. The Elections Act 2022 is a mere 176 pages long. The regulations that we have in front of us today, which are only one of a series of sets of statutory instruments that we are facing, are 194 pages long. Last week, we considered two SIs, one of which was 34 pages long and another of which was 50 pages long. The vast majority of cases from which this arises is because we are covering different elections under different pieces of legislation, of which there has been no consolidation. We would not need this vast proliferation of paperwork if we had a consolidated piece of legislation.

Having said that, I will say that I think statutory instruments have grown. I did some research with the Library in relation to the amount of pages of statutory instrument documentation required on voter ID when it was introduced in Northern Ireland and the comparison with when it was introduced in England. Unfortunately, I have not finished that research, but I have a strong suspicion that, rather like Topsy, these things are just growing.

I will make just two other points. I welcome this legislation because, when I proceeded with the Ballot Secrecy Act, large numbers of people said to me that I was tackling the question of intimidation, overseeing other people’s voting in a polling booth, but asked what I was going to do in relation to postal votes—and I said that that had already been dealt with. The two pieces of legislation go hand in hand, and they are beneficial to achieving free and fair elections.

In conclusion, I remind my noble friend that, when I spoke last time on the statutory instrument, I made a request for a meeting to discuss the correspondence that I have had with the department—and I sought an indication of the date on which counsel’s opinion had been transferred from the Electoral Commission to the officials. As yet, I have not even received information in relation to the date of transfer which, after all is said and done, is merely a question of looking at the top of an email.

My Lords, it is a pleasure to follow the noble Lord, Lord Hayward. I wish to add my support to the comments that he made about the consolidation of election law. We are way behind the curve—the Minister is nodding—and we really need to look at the consolidation of electoral law.

I turn to this statutory instrument and thank the Minister for laying out the reasons behind it and its intention. Everybody wishes to reduce or completely stop the use of fraud in postal votes and stop people’s votes being stolen by others in our democracy. Some provisions in the regulations will help with that, such as those on political actors handling postal votes. However, I believe the main thrust of these regulations, which is about the handing in of postal votes at the polling station or electoral offices, is doomed to failure because it is impractical. I shall explain why and look forward to an answer.

Let us assume that I am a fraudster and I understand electoral law. I go out and harvest postal votes. I will know not to hand them in to the polling station—I will do it before election day—or to the electoral office. I will put them in a Royal Mail box. Will this statutory instrument achieve its number one aim of reducing electoral fraud? Practically, it can be circumvented just by putting the votes into a Royal Mail box. Let me show the Committee the stupidity of this through my city of Sheffield. I could go to the town hall, where within a couple of metres of the post box for the electoral office—just around the corner, probably 60 metres—there are two Royal Mail boxes. I would put my 100, 50 or 30 harvested postal votes into the Royal Mail box because why I got them or why I am handing them in will not be checked. It is completely outside the law. This will not stop the harvesting of postal votes and fraudulent people getting them back into the system.

It is also impractical for another reason. In the example I have just given in Sheffield, let us say that I am an upright citizen who believes in saving the taxpayer money. I decide to put in my one postal vote, which is my mother’s, but because I do it after the electoral office is closed my mother’s vote will not be counted, even though the 50 that have just been put into the post box around the corner by the harvester will be valid. I do not think that those who have drafted this statutory instrument understand the logistics of elections. What are the Minister’s and the Government’s views on that differential?

While I support the reduction of postal vote fraud, for those reasons I believe these regulations are flawed and impractical and will not have the desired effect. I look forward to hearing the answers from the Minister, which may alleviate my concerns, but I think that the regulations will not stop vote harvesters and that the votes of some people who genuinely cannot get to the polling station on the day or to an electoral office between nine and five will be invalid, simply because of the difference of a couple of metres in where somebody decides to hand in their postal ballot.

My Lords, I shall add one further issue that concerns me, partly from what the Minister said in his introduction and partly from my reading of the instrument. It relates to the definition of “political campaigner”. This appears several times in the statutory instrument. Is a person who is a friend of an independent candidate a political campaigner? The regulations permit an individual to hand in up to five postal votes of other voters at a polling station, but a political campaigner cannot handle a postal vote. Therefore, the definition of a “political campaigner” matters. Does it include a friend of a candidate who is independent of any political party? Is that person a political campaigner?

My Lords, it is pleasure to hear from noble Lords, in particular the noble Lords, Lord Scriven and Lord Hayward. I felt a bit nostalgic at the “Back to the Future” moment, when the report by the noble Lord, Lord Pickles, from 2026 was announced. I thought that there might have been an election and a new Government, with the noble Lord promoted to look at elections.

Like other noble Lords, we on these Benches also support the intention to reduce voter fraud. I thank the Minister for introducing the SI. I will raise an important point for noble Lords to consider. From my understanding, the Government have not consulted relevant stakeholders on this issue. I assume that there would have been some consultation to bring the regulations forward, but the Association of Local Authority Chief Executives and Senior Managers—ALACE—has not been consulted. That concerns me, and must concern other noble Lords.

Since, from my understanding, the Government have not consulted ALACE, I will pick up on its points of concern and help the Minister on some of them. I do not want to repeat noble Lords’ points, but ALACE is concerned that the regulations will create more work for polling station staff. If significant numbers of postal votes are handed in on polling day, this might cause unnecessary delays for other electors, particularly at a general election. What does the Minister think about that concern?

What are the Government’s thoughts on the imposition of new duties and responsibilities on polling station staff, and on reception staff at council offices, who will have to decide whether to reject postal votes? What about the unnecessary disfranchisement of some electors, who will have completed postal voting packs correctly, including by providing their signature and date of birth on the postal vote, but which also have to be returned with the ballot paper?

The Opposition have a number on questions. 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? Is the relationship between proxy and elector not important in preventing coercive proxy voting? 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?

Postal voting is an important means to ensure elderly people with mobility or financial issues are not prevented from exercising their democratic right to vote. Given that the elderly are more likely to face problems navigating a digital application compared with the more familiar written form, is there a concern that the move to digital applications may act as a hindrance to ensuring that the elderly can vote? What is the Government’s assessment of the number of proxy voters abusing this system to coerce others and steal their vote, compared with the number of proxy voters who need to use the system and do so fairly? With voter turnout at a relative low compared with the previous century, what is the Government’s assessment of the impact that additional requirements to vote will have on voter turnout?

Finally, the introduction of photo ID has resulted in clear evidence that some electors have been denied a vote as a consequence. Does the Minister recognise this in relation to these regulations? How will the Government ensure the regulations do not compound that situation? I look forward to his response.

My Lords, I thank noble Lords for their many thoughtful and specific questions. It reminds me a little, going back to a previous career, of when I had rooms full of volunteers asking me very similar questions about guidance that had come out, which we had to then deal with. For the record, I also thank my noble friend Lord Hayward for correcting me earlier; yes, of course it was 2016. Perhaps my dyslexia kicked in and I got ahead of myself, but for the record it was not in fact 2026.

I will address some of those questions head on. Others I may need to consider and come back to noble Lords on, because they were quite detailed. The first thing I want to deal with directly—I did nod quite strongly when this issue came up during consideration of some SIs last week, and that has always been my view—is consolidation of electoral law. I worked in political parties for three decades, and I know others in this room have also been very actively involved over a much longer period.

The Government remain committed to the continued integrity of our electoral law and processes. That is why their immediate priority has been to implement the measures flowing from the Elections Act 2022. Electoral law is complex, as everybody in this room knows, but it is understood by those who administer elections and referendums. It is robust and we can, as we have in the past, rely on it and our electoral administrators to underpin free and fair elections, and have confidence in their results. That is not to say that legislation cannot and should not be revisited, revised and improved from time to time. It should, but that takes significant consideration and policy development and is not something to rush out and potentially get wrong. That is probably as clear as I can be today on consolidation of electoral law. It is certainly on my mind, and I am very happy to continue that discussion, as I offered to do last week.

On the point made by my noble friend Lord Hayward, the meeting will of course be arranged, and we will get back to him on the two points he raised directly in the Chamber last week. I put that on the record for him.

The noble Lord, Lord Khan of Burnley, had very well thought-through questions, as ever; we seem to be having these discussions fairly regularly. We note the concerns raised about the potential challenges of implementing the measures and the impact of new requirements on the administration of polling stations. We will continue to work with the Electoral Commission and electoral administrators on the implementation of these measures in order to ensure that administrators have the necessary support for their delivery, and on raising awareness among the electorate of the changes and the new requirements.

We also expect that political parties will want to 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 voting statement and poll cards, and through information made available to electors via GOV.UK. Additionally, information will be displayed on the Electoral Commission’s and other agencies’ websites, and in information provided by local authorities. We will continue to work very closely with the Electoral Commission to develop this information and awareness. If noble Lords feel that more needs to be done in that regard, I ask them to please make sure that they raise that with us on an ongoing basis.

In answer to the question from the noble Lord, Lord Shipley, on the friend of a candidate who was an independent, that situation is laid out clearly in the Act, but if they were helping and not acting to get them elected, that is okay. Again, it may be better if I confirm that in writing to the noble Lord, so that he has that laid out clearly.

I would be happy with a written statement from the Minister. The issue is an important one. The friend may be campaigning, as opposed to just handing in, but if the friend is campaigning for an independent candidate they may think of themselves as not being a political campaigner, which would ban them from doing so.

Indeed. I would be happy to lay that out clearly in writing.

The noble Lord, Lord Scriven, asked probably the most interesting question of all. Overall, the legislation and changes are there to deter. We are obviously very aware of some of the problems that have occurred around the country in the past. We want to make sure that we strike the right balance between being mindful of security and keeping the electoral process accessible.

On the point the noble Lord highlighted, I suspect, if we are being honest, that we simply do not have the data available to say whether there are groups of people picking up bundles of 20 or 30 postal ballot papers and distributing them across different postboxes in a particular electoral area. The honest answer from me today has to be: let us see how the legislation develops in practice. If we believe there is a significant problem, as the noble Lord described, obviously we will need to look at that.

I do not think that was quite my question. I am trying to understand, as it is not apparent to me from reading the statutory instrument, why a postal vote pack posted in a Royal Mail box will be treated differently from, or even preferentially to, one posted on the same day in a council postal box, which could be a couple of metres away from each other.

I will have to come back to the noble Lord on that in more detail. The point he made earlier concerns me. The potential for a bundle of ballot packs to be collected up and put through a door or letterbox is something that we really need to look at. I will take it away and look at it in more detail, and I will certainly come back to the noble Lord.

The noble Lord, Lord Scriven, is pursuing a key point. It has been the case in certain investigations that fingerprinting has been used to establish who has handled the ballot papers, which would cover an element of the aspects to which he referred but not necessarily all of them.

That is true. I know there is one example in the Pickles review that I was on the ground for: in Bradford, at the 2005 general election. I think I am right in saying that it was not just fingerprints but analysis of signatures. The police were able to identify and take action because the individuals who were filling in the ballot papers did them on top of each other. It was not just the signatures they could identify; they could identify them on every single one, which enabled them to prosecute. I saw that up close several years ago.

To close this discussion, I know that all noble Lords believe that preserving our democratic processes is paramount. I will certainly come back on the very important points raised, but I am pleased to be able to introduce these measures.

Motion agreed.

Committee adjourned at 6.38 pm.