Representation of the People (Postal and Proxy Voting etc.) (Amendment) Regulations 2023
Lord Mott (Con)
My Lords, in moving this Motion, I will also speak to the Representation of the People and Recall Petition (Northern Ireland) (Amendment) Regulations 2023 and the Local Elections (Northern Ireland) Order 2023. I ask that the three statutory instruments, laid before the House on 6 July and 4 September, be approved. The changes set out in these instruments deliver on our manifesto commitment to protect the integrity of our democracy, as legislated for by Parliament through the Elections Act 2022.
I will set out the key provisions of the instruments, turning first to the Representation of the People (Postal and Proxy Voting etc.) (Amendment) Regulations 2023. The Elections Act introduced a requirement to reapply for a postal vote at least every three years in Great Britain. This will help electors stay alert about the arrangements that they have in place, ensure that a person’s eligibility to vote by post is reviewed on a regular basis and reduce the risk of redundant postal ballots being issued. To make this transition as smooth as possible, this statutory instrument allows existing long-term postal voters’ arrangements in Great Britain to continue until 31 January 2026, giving those postal voters more time to make a fresh application under the new system.
Existing postal voters will be clear on when and how they need to make a new application, as electoral registration officers are required by the instrument to make those whose postal vote is due to expire aware in advance and outline the new application process. This will then remain an obligation on EROs for future postal voters. I appreciate that this will mean a change for long-term postal voters, but empowering them to stay informed and in control of their vote is a positive step. This measure will also help to prevent voters from being unduly pressured into having a postal vote and using it under duress.
There is concern that, under existing arrangements, electors can be coerced into appointing a proxy to control how they vote. The new arrangements will ensure that the scope for fraud is reduced by limiting the number of electors for whom a person may act as a proxy. The instrument therefore introduces a limit to the number of electors for whom a person may act as a proxy to four, of which no more than two can be domestic electors—that is, an elector who is not registered as an overseas or service voter. It will update all relevant prescribed forms to make sure that the new limits are set out.
This statutory instrument also introduces an identity check at the point of application or reapplication for a postal or proxy vote. The elector will be required to provide their national insurance number, which will be checked against DWP data, or, where they cannot, they will need to give a reason why as part of the application. Where an individual does not have a national insurance number, the electoral registration officer may request other specified documentary evidence or an attestation to demonstrate their identity. This process is one that electors are already familiar with and has been in place for the register to vote service since 2014.
The success of the register to vote service is an example of how we have made sure that our elections are modern and accessible. We are building on that work with this instrument. It creates a new digital route for electors in Great Britain to apply online to vote by post or by proxy. The digital service for applying for absent votes will be launched when the regulations come into force. I can assure noble Lords that, as was the case for the voter authority certificate service, the user journey and the administrator-facing portal are being carefully developed and will continue to be improved during the public beta phase to ensure that they meet the high standards expected of all government services.
The revisions of postal and proxy rules will apply to all elections reserved to the UK Government in Great Britain, as will the online application service. The proxy voting rules will also apply in Northern Ireland and the digital service will be introduced in Northern Ireland at a later time.
I turn now to the two statutory instruments making provisions specific to Northern Ireland elections. These instruments implement the same proxy limits as set out for elections in Northern Ireland. The Elections Act places a duty on the chief electoral officer to provide lists of dates of birth to polling stations in Northern Ireland for the purposes of checking a voter or proxy’s exact date of birth in specific circumstances.
These instruments ensure the protection of the sensitive personal information that the lists contain so that only the police and the courts may access them. Existing legislation allows the retention of entries on the Northern Ireland register following a canvass. This instrument extends that provision, which will avoid a cliff-edge loss of electors from the register. I assure your Lordships that data checking carried out by the chief electoral officer has given a high degree of confidence that the voters concerned are entitled to remain on the register. The Electoral Commission is supportive of extending the period of retention.
These two instruments will strengthen the integrity and security of our absent voting, while ensuring that our processes remain accessible for voters and in step with modern standards. I commend them to the Committee.
Baroness Bennett of Manor Castle (GP)
My Lords, I thank the Minister for that comprehensive introduction. We have to think about the context in which we are considering these statutory instruments. I will contain my remarks to the first one, about postal and proxy voting overall.
The context is that, just this month, the Electoral Commission’s report on the May elections noted that there had been a significant exclusion of people who wanted to vote from being able to vote by the process of voter ID. The Electoral Commission concluded that poorer people, people with disabilities and those from minoritised communities were significantly over- represented among that group. The Electoral Commission said that hundreds of thousands of people could be excluded from exercising their vote in the next general election. I note that, like many Members of your Lordships’ House in debates on the Elections Act, the commission made urgent recommendations to allow for a wider list of documents for voter ID and to allow other voters to attest to the identity of a voter who is with them at the time. In this context, can the Minister explain why, in its reflections on the election, the Department for Levelling Up, Housing and Communities failed to mention any of the Electoral Commission’s criticisms and described the rollout as “very encouraging”?
That is important in the context of these changes, which I now come to the detail of. First, under Section 3 of the Elections Act, we are looking at a time limit of three years for postal voting, when there is currently no limit. It is possible to look at this in two ways. The first is people being reminded that they have a postal vote. I am sure that some Members of your Lordships’ House have knocked on people’s doors and said, “Have you got a postal vote?”, and they reply, “Oh, I think so. I am not sure”. Obviously, people being reminded of where they are and being reminded to renew is not a bad thing. However, I also think of the many, often but not always elderly, voters who have a pattern: they know exactly what their involvement in elections is and they have been doing it for decades. This is a disruption that could see them lose their right to vote, if they are unable to leave the house to go to a polling station on polling day and they expect their postal vote to turn up, but it does not—and, the day before, they ring the council and it is all too late.
In that context, I have a specific question regarding the operation of Section 3. Will local election returning officers be able to use methods other than post? We all know that, these days, hardly anything arrives in the post except flyers and advertising leaflets. People tend to throw the whole lot in the bin sometimes. Will there be text messages and emails, or will they be encouraged to knock on doors, if they have sufficient capacity? What is envisaged about that three-year reminder?
I come to Section 6 of the Elections Act, about the limit of four on the number of proxy votes. Again, this goes both ways: you can imagine a situation where a family has genuinely sat down and agreed how they want their votes to be exercised by proxy, where this could exclude people from exercising their vote. But I also see the concerns here, so Section 6 is perhaps something to keep an eye on to see how many complaints come in and what the situation is.
Finally, because I do not get to do it very often, I welcome the Government’s move to enable absent vote applications to be made online rather than the current paper process. This is an obvious small piece of improvement. However, will the paper process remain for people who are unable to navigate the online process, as is still the case for many people? I also welcome the digital identity checks for absent voter applications. Again, that seems to be a modernisation.
Introducing the SI, the Minister said that the Government want a modern, accessible system. This SI makes a couple of small steps forward, but we cannot forget the context: hundreds of thousands of people are going to be excluded from voting in the next general election unless the Government change the arrangements for voter ID.
Lord Hayward (Con)
My Lords, before I make any comments, I wish my noble friend Lady Scott well since she handles election matters in most circumstances. I think the whole Committee would wish to do so. Although she was not necessarily due to handle this Committee, I think it is appropriate in these circumstances so to do.
I will follow the comments by the noble Baroness, Lady Bennett, in relation to elections by looking at elections in the context of two major changes that we are seeing. The noble Baroness, Lady Bennett, touched on one: the range of changes we are seeing in relation to elections law as part of the Elections Act, which I broadly support.
The other is that we are watching the development of election events, almost. Historically, people used to register on the electoral roll and that was an ongoing process. What we see nowadays is an immediate massive surge in registration at the point of an election, whether a local or a general election. The implications of that are that EROs and elections administrators face an enormous burden. We should not underestimate that burden, particularly because as legislators we are imposing ever more elections on the system. One thinks of mayors and regional mayors, and we now have environmental plans. Two years ago people in Liverpool went to vote in five different elections; they had multiple votes to cast. That is likely to continue. Therefore, the burden on elections administration is very substantial indeed and seems to be ever growing.
The noble Baroness, Lady Bennett, referred to the Electoral Commission’s comments in relation to voter ID. There has been pressure from other directions. The Electoral Commission not only referred to possible qualifications in terms of documents that may be produced but made other recommendations. I would appreciate an indication as to whether the Government intend to work with the Electoral Commission and other bodies to introduce any of the changes that are referred to in its report before a general election or the next local elections. The other day I discussed this with the noble Lords, Lord Rennard and Lord Wallace, and the timetable would be very tight, but it is another part of the burden that we are imposing on electoral officers in councils.
I do not know whether the noble Lord, Lord Bruce, is going to raise the burden of overseas voter registrations —which will come at some later stage—but, just in case he is not, I do so on behalf of the noble Lord, Lord Wallace, while I have the floor. It is a fairly complex matter. I have been in communication with the Government because, with all-party support, I was lucky enough to get the Ballot Secrecy Act through this House and the other—it has become legislation. That is another burden that will be imposed on electoral officers in councils.
I have written to my noble friend Lady Scott about my legislation and she has indicated that there will be an SI at some stage. Can my noble friend indicate when that will come forward, as that will be yet another piece of legislation? When writing to my noble friend Lady Scott, I raised the Ballot Secrecy Act; I do not expect my noble friend the Minister to respond to this, but I questioned whether the briefings provided were accurate and consistent and raised other issues around elections, referenda, recall petitions and the like. I got answers to questions I had not asked, rather than to those I had. In one case, I did get an answer—I did not like it, but I accepted it—but in two others I got answers to questions I had not asked. My noble friend Lady Scott has offered to discuss this further with me. At this point I formally say, “Yes, please”, whether that is with her or another Minister, and with officials.
Lord Dodds of Duncairn (DUP)
My Lords, I want to address the point about the retention on the electoral register in Northern Ireland of the 100,000 electors who would otherwise be removed from the register at the end of the retention period—that is, 1 December this year—but who will remain on the register for a further year under the draft representation of the people and recall petition regulations.
I think the Minister indicated that people were satisfied, the Electoral Commission included, that those people were eligible to remain on the register. I would be grateful if he could just elaborate on how that has been established. If it has been established that they are eligible to be on the register other than by sending in the completed return, what lessons can be drawn from that in terms of people being registered generally? If that can be done easily, and these people can be checked, can we learn something from that process?
I note that the Secondary Legislation Scrutiny Committee asked the Northern Ireland Office about a more permanent solution to this issue, and the NIO responded that it was working with the Chief Electoral Officer for Northern Ireland on a plan to get these individuals successfully re-registered, including engaging with the Northern Ireland political parties, registration drives, writing to the individuals concerned in the latter half of next year, and so on.
Can the Minister indicate whether any consideration has been given to the ideas the Electoral Commission was talking about even in today’s newspapers in Northern Ireland, about providing a means by which, for instance, when people register for new driving licences, and so on and so forth, information can be shared in some way, either directly or indirectly, to speed up the process of registration? Today in the newspapers the Electoral Commission was talking about a fifth of all eligible voters in Northern Ireland—300,000 people—being either wrongly registered or not registered at all, and it suggests that this is one way of increasing the number of people registered. But I note that when the NIO responded to the Secondary Legislation Scrutiny Committee, it did not mention that particular idea among the various initiatives that it talked about. Instead, it talks about
“asking the Electoral Commission … to use all their available communication avenues to encourage anyone who has not recently registered to do so”.
I would be grateful if the Minister, when he comes to respond, could deal with those points.
Lord Bruce of Bennachie (LD)
My Lords, I thank the Minister for introducing and explaining the purpose of these instruments.
To take a step back—the noble Lord, Lord Hayward, made these points—the process of registration and indeed now voting with ID is becoming more complicated, both for the voter and for those who administer elections. Some of us have some degree of suspicion about the Government’s motives, which is why it is important to scrutinise these things and ensure that what is being done is administratively sound rather than politically expedient. The noble Baroness, Lady Bennett, alluded to the concerns raised over the local elections.
We need to be clear that what is being proposed here, first, is fair and objective in increasing efficiency and, secondly, will not make it more difficult for people to register or to vote. Millions of people are not registered. Sadly, Scotland has the lowest number of registered voters at only 81%. Clearly, if being on the register or being a postal voter has to be renewed, for example, that might make it more difficult to maintain that degree of participation. All voters should be encouraged as far as possible to register and to vote; no regulations should be brought in that discriminate against any particular class of voter, if I can put it that way. The feeling at the moment is that this is not the Government’s position.
In passing, on the limitation of proxy voters to four, two of whom could be domestic voters and two overseas, I hope the Minister will forgive me if I say that I sometimes think the Government are more interested in getting votes from overseas people who do not live here than making sure that people who do live here actually vote. To that extent, I am not sure whether restricting the proxies to two domestic voters has practical implications that will effectively exclude people who are currently able to vote perfectly legally and properly. It is a question of whether the bureaucracy is excessive or justified and proportionate.
The proposals seem reasonable on the face of it. However, the Minister said in his introduction that, although we will have an extension for a year, thereafter people will have to renew their postal vote on a regular basis. I guess people will get used to that over time but, with regard to the committee’s report and the quote it got from the Government about the role of the political parties in encouraging people, that is of course a legitimate thing for political parties to do but it is also the responsibility of the state to ensure that people can vote and know how to register to vote.
However efficient political parties are, none of us speaks to every voter, much as we might wish we could, and therefore we require other things. I seem to recall that, years ago, the postman used to be part of the process of registration. That was a standard process; they would knock on the door one day—possibly more than once—and ask to check the register. That is not being done now; door-to-door registration seems to have gone. Online registration is fine, subject to safeguards, but we need to get to a situation in which registration is understood, simple, quick and straight- forward. It is important to eliminate personation, fraud and misrepresentation but, as has been said on a number of occasions, the evidence across the country—although Northern Ireland possibly had problems in the past, and maybe still does—is that the problems are relatively small.
The noble Lord, Lord Hayward, shakes his head, so let me concur: it is of course important that the procedures are robust, but not so robust that they act as a deterrent and a discouragement. We need people to vote. My parting shot is that the behaviour of politicians has been such that the motivation to vote has been diminished quite substantially. There was an interesting report today by the Institute for Government saying that this Government—not today’s Government but the Conservative Party in government—have pushed the boundaries of our constitution, unwritten as it is, beyond acceptability; I think that is how it expressed it. Some of us feel that is exactly what has been going on—not in these particular instruments but in the backdrop to them.
One other question we are not debating today concerns the rights of EU citizens. We have an extraordinary situation whereby Commonwealth citizens from anywhere in the Commonwealth who are resident in the UK have an automatic right to vote and stand in any election, whereas European Union citizens previously were allowed to vote and stand in local or subsidiary elections to the Westminster on. I note that Scotland and Wales have legislated that that right should continue, but the Government apparently want to reduce their eligibility in England. It is outside the terms of this debate, but it would be interesting to know whether the Government really intend to go with that. It would seem a bit odd if, because they can do so, Scotland and Wales take a different course. The question arises: does Northern Ireland, with an Assembly, have the right to follow Scotland and Wales if it wishes to do so? It may not wish to do so, but does it have the right?
With those comments, I say that, although we can understand the purpose behind this, the Government should recognise that there is genuine concern about where all this might be leading. It is making life much more complicated for everybody. The Electoral Commission has not always covered itself with glory. Indeed, one of my reservations about the Electoral Commission is that, in some ways, understanding of the gritty political process seems to be a little absent.
Lord Khan of Burnley (Lab)
My Lords, I too send my best wishes to the noble Baroness, Lady Scott, who is not here today, as the noble Lord, Lord Hayward, mentioned. We wish her the best of health. This is a very interesting debate, and I thank the noble Lord, Lord Mott, for sharing the intent of these instruments.
We on these Benches support both Northern Ireland instruments, which are uncontroversial implementations of the Elections Act 2022. As other colleagues mentioned, the draft representation of the people regulations would bring changes regarding postal and proxy voting, otherwise known as absentee voting. We do not seek to refight the battles that took place over aspects of the regulations during the passage of the Elections Act 2022. However, we have concerns, particularly about time-limiting absentee voting methods and the confusion they may cause voters who rely on absentee ballots to cast their vote.
We have concerns regarding the implementation of a three-year limit on postal voting, which this instrument helps to bring into force, as set out in the Representation of the People (England and Wales) Regulations 2001. There will likely be some confusion from many who are accustomed to the current voting system. Furthermore, the unexpected lapse could inadvertently result in their becoming disfranchised. The regulations would bring in a requirement to notify the absentee voter about the expiry of a postal vote and when it will come to an end, but that may not be enough. Will the Minister clarify what steps will be taken to ensure that no one becomes disfranchised as a result of the new regulations?
The changes will place an increased workload on election services staff, who do a fantastic job making sure that our elections run smoothly. The Association of Electoral Administrators is already reported to be struggling due to recent changes and the staffing crisis. What action are the Government taking to ensure that electoral services staff are getting the resources they need to ensure that our elections continue to run smoothly?
We welcome the modernisation of the absentee voting system via a new online digital system. This is expected to help increase the accessibility of postal and proxy voting, making it easier for people to take part in democracy. Across the country, this will provide easy access to the absentee voting system. However, there are potential concerns regarding the implementation stage. Will the Minister update the Committee on progress regarding the implementation of the new digital system? When will it be ready to launch? Crucially, what safe- guards are in place to ensure the full security of electoral record data? The media reported in August that confidence in the UK’s electoral regulator has been thrown into question—a point made by the noble Lord, Lord Bruce —after it emerged that a hostile cyberattack accessing the data of 40 million voters went undetected for a year, and the public were not told for another 10 months. It is not known who the attackers were. Was it a foreign country or a criminal gang?
I will finish by making a point in relation to the digital process. There is a digital process in Northern Ireland already, I believe. There have been some concerns about people losing their digital number. It is not like resetting a password: if you lose your digital number, you have to make contact with the Electoral Office for Northern Ireland. It can take days before your digital number is returned to you. What lessons have been learned from that? Is there any way to make sure that we improve and speed up the process? Ultimately, the concerns raised by noble Lords—
Lord Weir of Ballyholme (DUP)
I know from speaking to colleagues across Northern Ireland that the digital registration number—the DRN—has been probably the single biggest problem in recent elections. It is important to note that concern has been raised at times in relation to the Electoral Commission; again, that is something we are keen not to see repeated. There has also been slowness among those dealing with registration in getting back to people and saying that there has been an error with the DRN or that a DRN has not been supplied. The end result is that, if someone is looking to register relatively close to an election, by the time they realise that something is faulty with their application, it has gone beyond the time. It is important that there is a level of recognition there and that we learn from experience to head off that problem.
Lord Khan of Burnley (Lab)
The noble Lord makes a critical point. We have to make sure that these issues are dealt with in a speedy, efficient manner; otherwise, it damages democracy and people lose faith in the system.
Noble Lords have made a number of good points in this debate. I want to touch on what our in-house expert, the noble Lord, Lord Hayward, said about the idea of repetition. How do we ensure that people are getting their forms in and know whether they are on the electoral register? What are the Government doing to ensure that we can save time, be more efficient and make it easier for people to vote?
That is a number of questions for the Minister. I look forward to his response.
Lord Mott (Con)
My Lords, I thank everybody who has taken part in this debate for their time and incredibly valuable contributions. It is always slightly concerning for a Minister to stand here, having had only 31 years’ experience of working for a political party, when my noble friend Lord Hayward is also in the Room. I am very aware of the level of expertise and knowledge here today.
The noble Lord, Lord Bruce, mentioned regulators, the Electoral Commission and understanding the nitty-gritty of how a political campaign works and how political campaigns operate on the ground. I do not know his former election agent but I am delighted that she will be joining the Electoral Commission.
I thank my noble friend Lord Hayward and the noble Lord, Lord Khan, for passing on their best wishes to my noble friend Lady Scott; I will take them to her personally. I should also put on the record my thanks to the noble Baroness, Lady Bennett, for welcoming “some” of what the Government are currently looking to do. I am a great believer in small steps, and I am very happy that we are making some progress.
Before I respond to some of the more substantive points made today, let me say this: I believe that everybody taking part in this debate believes in democracy and fair elections. That is why we are here. I know that a number of noble Lords mentioned that in their contributions, but it is an important point to make before I getting into responding directly.
On the point from the noble Baroness, Lady Bennett, about voter ID, we are pleased and encouraged by the first rollout of voter identification in Great Britain. We are also pleased that the vast majority of voters in polling stations, 99.75%, were able to cast their vote successfully. We are incredibly grateful for the work that local authorities and other partners undertook in delivering this change.
Baroness Bennett of Manor Castle (GP)
I am pleased that the Minister qualified that figure by noting that it is the people in polling stations. What evidence do the Government have, or plan to gather, for people discouraged from even thinking about voting or going to the polling station? Of course, they are not included in that figure.
Lord Mott (Con)
I thank the noble Baroness for that intervention. I am going to make some progress in my comments. As set out in the legislation, the Government will be evaluating the implementation of voter identification to understand the impacts on the sector and electors and to aid ongoing implementation of the policy. That evaluation is ongoing and we will publish the first report of our evaluation in November. We will consider the recommendations made by the Electoral Commission as part of our evaluation.
The noble Baroness, Lady Bennett, also mentioned methods of communication. As I have just moved house and have applied to join a new register, I know that the level of communication from electoral administrators is incredibly strong, with text messages, emails and post in the more traditional way. I think we are seeing electoral registration officers around the country embracing all the different tools available to them but, in the end, how best to manage applications and contacts with electors is a decision for local EROs. From my recent experience, I know EROs have a very good understanding of how best to communicate with voters.
My noble friend Lord Hayward mentioned the burden on administrators. They do a very good job on behalf of us all. Officials have been working and will continue to work carefully and closely with the sector on planning the implementation of this policy. A first new burdens grant payment of nearly £400,000 was provided to local authorities in August for the implementation of the changes to postal and proxy voting, along with detailed methodology of how that funding allocation was made. Further grant funding will be provided in April 2024, once again supporting ongoing delivery ahead of the May 2024 elections. We have completed robust modelling of the policies, but we appreciate that introducing any new service could fluctuate. That is why we already have a process in place through which local authorities will also be able to claim additional new burdens funding retrospectively via a justification-led bid to facilitate them in carrying out new duties. We remain confident in their ability successfully to deliver these changes.
Electors can also check with their ERO if they are registered for a postal vote.
A number of noble Lords mentioned limits on proxies and whether they are necessary. The noble Baroness, Lady Bennett, saw both sides of this argument. I have a few comments to make on it. As many noble Lords will know, currently someone may act as a proxy for up to two electors and an unlimited number of close relatives in each constituency or each electoral area at a local election. This means they would potentially hold a large number of proxy votes at the same time, which clearly should not be the case. This could give rise to situations where a number of people could be coerced into appointing proxies who could then use those votes to affect the outcome of a poll. Limiting the number of people for whom someone may act as a proxy, regardless of their relationship, is a proportionate response to concerns about abuse or potential abuse of those votes.
The noble Lord, Lord Bruce, mentioned instruments relating to EU voting and candidacy rights. The instruments dealing with voting and candidacy rights will be debated by the House next month. However, I note that electoral law is excepted in Northern Ireland, while it is devolved as it relates to the Scottish Parliament and the Senedd in Wales.
My noble friend Lord Hayward talked about changes to the timeline for the transition period for existing postal voters. It is true that we originally intended to begin transition to the new arrangements this year. However, we took a decision to allow more time for voters and administrators. All existing postal voters now have until January 2026 to apply.
I turn to the comments and questions from the noble Lord, Lord Dodds, although I am very happy to write to him immediately after this debate and have further discussions about them. I note that there are concerns about the effect of the retention measures on the register and agree that the accuracy of the register and ensuring that only persons eligible to be registered are in fact registered is paramount to protect our democracy and confidence in the electoral system. However, as I mentioned, there are no concerns here that the electors being retained on the register are not entitled to be registered.