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Representation of the People (Proxy Vote Applications) (Coronavirus) Regulations 2021

Volume 811: debated on Thursday 18 March 2021

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Representation of the People (Proxy Vote Applications) (Coronavirus) Regulations 2021.

Relevant document: 48th Report from the Secondary Legislation Scrutiny Committee

My Lords, across all parties and none, we are all resolved that democracy should not be cancelled because of Covid. The Government have confirmed that the election scheduled for May will go ahead and are providing a package of measures to support the statutorily independent returning officers to deliver these elections successfully and with the right precautions in place. Those measures were set out in a delivery plan published by the Government on 5 February.

These draft regulations would temporarily change the eligibility criteria for emergency proxy applications, so that electors who are self-isolating due to coronavirus on election day have an additional option to vote remotely. The provisions in this SI would also allow those with an existing proxy to change the person acting as their proxy if their original proxy were affected by coronavirus.

The last opportunity for a routine proxy application is at 5 pm six working days before election day. After this deadline, the only other option to create a new absent voting arrangement is to apply for an emergency proxy vote. Emergency proxy applications on medical grounds are usually required to be attested by a medical professional. Not everyone will be able to seek such attestation—for example, those who become symptomatic with Covid too late to take a test. The statutory instrument would remove this requirement for those affected by Covid. Removing attestation will also avoid adding more pressure on already busy medical professionals.

Furthermore, if an elector was informed that a member of their household tested positive for coronavirus but they were unable to evidence that they also had the virus, under current regulations the elector would be ineligible to apply for an emergency proxy vote even though they ought to remain at home. This statutory instrument will remove these limitations for those affected by Covid-19 and provide a more flexible approach for those who ought to remain at home on election day.

The changes proposed would mean that, if an elector believed that their particular circumstances would lead to an increased risk of transmission of the coronavirus to themselves or others in a range of circumstances, they would be eligible to apply for an emergency proxy vote. For example, an elector who has been made aware they may have been exposed to the virus at home or work in the days leading up to the election can apply for an emergency proxy vote even if they are not yet showing symptoms.

Beyond removing attestation, the usual security measures for absent voting applications—such as the signature requirement, providing date of birth, and the requirement that electors declare that they understand that all the information provided is true and that providing false information to an ERO is illegal—remain in place.

Electors who are granted emergency proxies will be included in the absent voting lists, which are available to candidates and agents on request, for the express purpose of ensuring scrutiny and integrity.

These temporary changes are both necessary and proportionate to ensure that those affected by coronavirus can still exercise their right to vote. This SI does not affect the regulations regarding any other route for emergency proxy applications. Almost all provisions in it will expire at the end of February next year, so will not apply to any regularly scheduled elections, such as those in May 2022.

The only permanent provisions in this SI simply clarify and add certainty to the existing position that electors with long-term proxy arrangements, such as those with a disability, can replace the person acting as a proxy without having to go through the entire application process again. Going through the full application process would require an elector to prove their eligibility for a long-term proxy vote again, simply to change the person who was their proxy; that should not be necessary.

The statutory instrument has been considered by both the JCSI and the SLSC, neither of which has drawn the attention of the House to it. For the avoidance of doubt, I should state that we have consulted the Electoral Commission, which is supportive of the proposed changes. We also shared a draft of the SI with the Association of Electoral Administrators, SOLACE and officials in the Welsh Government.

There is broad support among stakeholders for the proposed changes in the instrument. Both the Welsh and Scottish Governments have put similar measures in place for the polls on 6 May for which they are responsible. It is important that we are able to offer voters consistency of approach wherever possible, and I am pleased that all three Governments are working to support voters in this way. I hope that noble Lords will welcome these proposals. I beg to move.

My Lords, I am pleased that the title contains “draft”, because I have some thoughts that I hope my noble friend the Minister might take on board. I am not clear why we need an expiry date of 28 February 2022. Surely we do not know whether isolation will continue for some unknown period. There is talk of a third wave and another lockdown and so on, so I do not know why this cannot be left open-ended. Then, when it is clear that we are through the coronavirus pandemic, we can by all means determine to remove this facility altogether.

Self-isolation is only for 10 to 14 days, depending on the circumstances. That is a pretty short timeframe, really. I have fought local elections, general elections and other elections, and part of me wonders whether there is not a degree of overkill.

After paragraph (3A), there are four categories to be inserted. I have no problems with new sub-paragraphs (a) or (b), but what is said in new sub-paragraph (c) is true for almost everyone, so in a sense it depreciates the currency. I have a question mark over new sub-paragraph (d), because there is a danger of its being made too easy to get a vote. This could be open to abuse.

In elections I have taken part in, I have known there to be personation. Indeed, there was an article about it in the Times or the Telegraph after the 1966 general election, in which I was the Conservative candidate in Islington North. I fully admit that I had no hope of winning in Islington North, which is now Jeremy Corbyn’s seat, but as a keen young candidate I made sure that we had tellers on the doors, and we watched carefully what was happening. Afterwards I was in the pub talking with my key workers, and two of them said, “You know, we’re quite sure we saw that chap come at 7.30 and the same chap appeared again at 9 o’clock.” I said, “That’s funny you say that, because I felt the same.” I thought no more of it other than that, as people who know that part of London will know, there is an extensive Irish community there with large families. The long and the short of it was that some journalist from either the Times or the Telegraph was watching carefully, and along appears an editorial saying that there were clearly personations, where people had left the voting card in a house or residence where there were multiple voters, and a chap had taken a card not just for himself but for several other people in that house who were registered to vote.

On general elections, there is still some personation. I have seen it in a couple of seats and indeed—dare I mention it?—I have been on a number of overseas monitoring roles, and there is certainly less personation in general elections that I have watched in Sri Lanka than in parts of the UK. I am not at all sure what the principles are. People who are ill get a postal vote and it is done with great rigour, as my noble friend mentioned. It is done properly and carefully. Proxy votes, on the other hand, are a little more open to creative illegality. This SI talks about “long-term proxy arrangements”. Why should there ever be a long-term proxy arrangement when you can get a postal vote? There is a real danger here with a low turnout or tight majority.

My first general election majority was 179. I lost on the first count, then crept in with about two or three votes on the second count, and ended up with 179 on the third count. At my second election in October 1974, I crept in with 141. In local elections, as we all know, there are some very low turnouts and very tight majorities. Single figures are quite common; majorities of 20 to 25 are very common. If, as a result of this proposal, you have people applying for proxy votes, there is no doubt that it will dramatically improve the turnout. There will probably be people who were not going to vote in the first place, but because they know they can get a proxy vote they will turn out.

I am a bit fearful about what is proposed here. This needs to be watched carefully and, frankly, I am not in favour of it at all. Maybe I am in a minority. However, as someone who has experienced elections in some depth—I note that the Liberal spokesman has also witnessed a fair number of local elections—I wonder whether this is a step too far.

My Lords, I thank the Minister for answering my Written Question on Monday about absent voting arrangements. I am grateful to him for confirming that

“The law does not require applicants to verify their identity or address when applying for a postal or proxy vote”.

The regulations that we are considering today require little debate. In the circumstances of the pandemic, it is right to allow people to appoint someone as a proxy voter for them as late as 5 pm on polling day. But other measures could have been taken to ensure that everyone entitled to vote was able to do so. We have seen in the most recent Dutch elections this week that polling stations were opened for three days to help more people to vote without the risk of queues and crowding. Our Government are limiting increased access to voting to this very modest measure.

My concern is that some local authorities may act against the clear intention of these regulations and existing legislation about proxy voting, and try to suppress the right of voters to participate in this way or by post. The Minister will no doubt be aware that the local council in Woking has been advising potential proxy and postal voters that they should provide proof of identity with photo ID and proof of residence. People not providing this are threatened with consequences, and only in the very small print does the documentation admit that applications will be processed even if the photo ID and proof of residence is not provided.

Does the Minister think that local authorities should be free to imply incorrectly that there are such requirements to obtain a postal or proxy vote? Does he accept that such barriers may discriminate against groups such as young people who may not yet have passports or a driving licence, and who may not have utility bills addressed to them personally? Is not this a classic attempt at voter suppression of the kind that we have become familiar with seeing from the Republicans in the United States? Will the Minister work with the Electoral Commission, the Association of Electoral Administrators, SOLACE and others to advise local authorities that they should proceed exactly as set out in these regulations and other legislation, and not seek to impose additional barriers to make it harder for people entitled to vote to participate in the elections? Does he think that the Electoral Commission may need greater powers to enforce standardisation of best practice consistent with the law for electoral administrators issuing application forms concerned with electoral registration and absent voting?

The Minister helpfully replied to me on Monday to say that electoral registration officers

“do not have the power to reject or refuse an absent vote application if the applicant does not provide additional proof of identity or residence”.

Will he therefore prevent local authorities such as Woking Borough Council effectively taking the law into their own hands in such matters and seeking to exclude some of those people on the electoral rolls from being able to participate in elections? I have heard today from the Electoral Commission, which advises that local authorities should not imply that this is the case. I hope that the Minister will work with the commission to make sure that this practice is ended in the Woking borough and not begun elsewhere.

My Lords, I support the regulations. As the noble Lord, Lord Rennard, and the Minister said, they do not need a huge amount of discussion. They are very welcome, as they will enable people to have further opportunities to participate in the elections in May, and I welcome them.

The noble Lord, Lord Naseby, had a valid point when he drew attention to the fact that these regulations have a sunset clause coming up next February. We all want to ensure that the pandemic is long gone when we get to May 2022 but of course we cannot guarantee that—so why do have the sunset clause? I am assuming that, if the pandemic has not gone by next May—if we have a third or fourth wave—the Government will have to introduce something like these regulations again. We do not want that but it may have to happen, and that is a fair point.

The noble Lord, Lord Rennard, raised Woking Borough Council. I have had involvement with Woking Borough Council before and I know that this is not the first time that this authority has decided to do its own thing, as it were. It is not right for local authorities, EROs or any other official of a council to think that they can act beyond the law as agreed by Parliament. The situation is that nobody needs to provide this information and Woking Borough Council is acting beyond its powers. I hope that the Electoral Commission, and the Government, will make it very clear to the council that it cannot do this and that it has to act strictly within the regulations as approved by Parliament —no more, no less.

As I said, this is not the first time this authority has done this, and I do not think that any other authority behaves like this. I understand that the noble Lord, Lord True, has confirmed to the noble Lord, Lord Rennard, what the situation is. I hope the Government can speak to the authority and make it very clear that it should not and cannot do what it is doing. In fact, the authority knows that it cannot do this, because, as the noble Lord said, it is in the small print that people do not need to provide that information. That confirms that the council knows that it should not be doing this. For me, that is poor practice, or sharp practice, and not something that any of us in this Committee would support.

Having said that, I fully support the regulations before the Grand Committee.

My Lords, I am grateful to all those who have spoken and acknowledge their great experience in electoral matters. I am not going to exchange election stories with my noble friend Lord Naseby, but I can assure him that the first majority I ever had was a lot smaller than his—not normally what people boast about, but that was the case.

Important points were raised and I shall try briefly to address them. My noble friend Lord Naseby said two things. The first was that he was concerned about fraud. We are all concerned about fraud. There is always a balance to be reached in these things. The noble Lord, Lord Rennard, implied that it is also important to ensure that people are enabled to vote, and that is ultimately what this statutory instrument is about. In the difficult circumstances we face now, with coronavirus, people who are affected by coronavirus at a late stage before the election must be enabled to vote. This is an exceptional circumstance and our judgment is that, whatever the risks my noble friend may fear, it is a reasonable stance that we are taking.

I repeat what I said in opening: it is an offence to provide false information. Electors granted emergency proxies will be included in the absent voting lists, which will be available on request to candidates and agents for scrutiny. We believe that the Government have reached a reasonable balance on that.

The other point my noble friend made was, in a sense, logically not quite on par. Like the noble Lord, Lord Kennedy of Southwark, he asked why this provision is just for a brief period. If I were concerned about fraud, I would not necessarily want to make it a permanent arrangement. I think there is a slight logical inconsistency in the questions, but I understand that my noble friend was coming at it from two different directions.

It is our belief and hope that conditions will have returned to normal by next year and that we should return to the broad established arrangements for elections. Obviously, if the worst happened—and we all pray that it will not—the Government would review it at the time. We believe that it is reasonable to place in the regulations a sunset clause and, indeed, we are often asked in other aspects of coronavirus debates to impose sunset clauses. I hope that answers also the point made by the noble Lord, Lord Kennedy of Southwark. I appreciate his support for the proposed SI, and that of his party, and equally the support put forward by the noble Lord, Lord Rennard.

The noble Lord, Lord Rennard, raised a point about a specific local authority. In my position responding to the Committee, I shall not highlight—or lowlight—any particular local authority. I made the position clear in response to a Question, as he was kind enough to say. Postal or proxy voters must by law supply their date of birth and signature at application, and again when they return their postal ballots at an election or referendum. The legal position is clearly set out in this statutory instrument and elsewhere in electoral law. I am sure that electoral registration officers, who are responsible for processing applications for postal or proxy votes and applying the legislative requirements, have a mind to the law. The points raised are properly for the electoral registration office of Woking Borough Council to respond to, but I take note of what he said. Good practice is good practice and the best practice in line with the law. That is as far as I will go on that matter.

I return to my gratitude to all noble Lords who have spoken, who raised germane and important points to which I have tried to respond. I, and I think they, believe that the instrument makes sensible change to support the effective administration of elections. It gives an option to those electors who must remain at home on election day to cast their vote remotely if they are affected by coronavirus, or to replace a proxy affected by coronavirus if they have already made arrangements to vote remotely.

I did not answer my noble friend Lord Naseby’s question on long-term proxy. Those with long-term proxies often have particular reasons and conditions for having them. In a free society, where a proxy vote is a perfectly legitimate way to vote, people have a choice. They can vote by proxy, in person—although such people cannot often do that—or by post. That is a choice for each elector.

I thank noble Lords most sincerely for their support for the statutory instrument and commend it to the Committee.

Motion agreed.

The Grand Committee stands adjourned until 3.30 pm. I remind Members to sanitise their desks and chairs before leaving the Room.

Sitting suspended.