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

Debate between Lord Scriven and Lord Hayward

Tuesday 24th October 2023 Grand Committee

[Lord Hayward (Con)]

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.

[Lord Scriven (LD)]

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.

Elections Bill

Debate between Lord Scriven and Lord Hayward

Lords Hansard - Part 2 & Committee stage
Monday 21st March 2022 Lords Chamber

[Lord Hayward (Con)]

My Lords, earlier this evening the noble Lord, Lord Adonis, made reference to the original secret ballot of the 19th century. To a large extent, what we have seen over the last 150 years is what should happen: a ballot should be secret, in that one person goes into the polling booth alone, marks their vote and then casts it in the ballot box. Unfortunately, because of a series of interventions, with the Electoral Commission and others denying who is interpreting the legislation in whichever way, this issue has been called into question. I am going to cite Tower Hamlets again, but I know that this problem is broader than that. Too regularly, presiding officers in polling stations are faced with a problem whereby people attempt to accompany somebody else into the polling booth, effectively to influence the casting of that ballot.

I can do no better than to quote research undertaken in 2018 by Democracy Volunteers, an organisation of lawyers who operate a system of reviewing the processes of elections, within Tower Hamlets and other similar locations. I make no apologies for quoting the research in full:

“QUESTION 9. Was there evidence of ‘family voting’ in the polling station? … In 58% of polling stations our observer teams identified so-called ‘family voting’. OSCE … describes ‘family voting’ as an ‘unacceptable practice’. It occurs where, generally, husband and wife vote together. It can be normalised and women, especially, are unable to choose for themselves who they wish to cast their votes for and/or this is actually done by another individual entirely. It is a breach of the secret ballot. We identified this in 58% of polling stations (74 separate occasions). As family voting, by definition, includes more than one person this means that we observed this 74 times in the 764 voters we observed. This means that over 19% of all the voters who we observed were either engaged in, or affected by, this practice.”


This is the key qualification:

“We would, however, like to add that the vast majority of cases of this were prevented, or attempts were made to prevent it. However, we believe that this constitutes an unacceptably high level of family voting in an advanced democracy and further steps should be taken to discourage and prevent it. However, this activity is generally not the fault of polling staff, in fact we commend the staff for being so active in their attempts to prevent it.”


As one of the observer teams said:

“Family voting is a definite concern in Tower Hamlets. At the best-run polling stations, the Presiding Officers kept an active watch for potential cases and took steps to prevent it happening. They took care to issue ballot papers to family members one at a time, and then direct them to polling booths in different parts of the room. With three members of polling staff, this meant that while two clerks checked the register and issued papers, the”


polling officer

“could remain vigilant for possible family voting or other problems. All the observed cases of family voting took place when the”

polling officer

“was absent or distracted, or their attention was elsewhere.”

There is no criticism here of the polling staff; they try to do their best. But I am afraid, as this report from Democracy Volunteers identifies, that this is a far too pervasive problem, and we need clear guidance. Most people believed that we had clear guidance for a century and a half, but because of varying interpretations, my amendment is an attempt to ensure that we move away from this practice and back to what was originally intended.

As the noble Lord, Lord Khan, identified, I have tried to allow for those people who need accompaniment. As we heard from the noble Lord, Lord Holmes, in a previous debate, there may be other people in similar circumstances who need assistance. Generally, the assistance will come from a polling officer, but there may be special reasons why somebody needs accompaniment from a member of the family. However, these should be virtually unique occasions, not—as the report from Democracy Volunteers identified—a pervasive problem. I therefore believe that my amendment is attempting to tackle a problem which is quite widespread and needs clarification, and that it is in the best interests of conducting elections across the country.

[Lord Scriven (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Hayward. As an aside on families and secrecy of the ballot, I have had to ask somebody to be a proxy only once: during the very fraught referendum on Brexit, I had to ask my husband. I can tell your Lordships that, to this day, I still do not know which way I voted. I think I know which way I voted, but the secrecy of the ballot is absolutely sacrosanct, and I do not know.

On a more serious point, these Benches support the raft of amendments in the name of the noble Baroness, Lady Hayman, and those in the name of the Minister that support the secrecy of the ballot. The only difference we have with the noble Lord, Lord Hayward—this has been an ongoing issue with him—is that if guidance has to be given on such issues, it probably would be better coming from the independent Electoral Commission rather than the Secretary of State, although we do not dispute that such guidance would be helpful. However, we understand from previous discussions and debates with the noble Lord, Lord Hayward, why he seeks the Secretary of State giving such guidance, but if it was to come, we feel that it should come from the Electoral Commission. With those points, we support these amendments.