Elections Bill

Lord Stunell Excerpts

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

[Lord True (Con)]

My Lords, these amendments investigate some of the safeguards for postal ballots introduced in the Bill. I welcome the underlying sense of the comments made: the Committee recognises that, as we move through the suite of arrangements which the Government suggest to protect electoral integrity, there is more support here than there was for the first measure.

Clauses 3 to 7 require voters to apply more frequently for a postal ballot, ban political campaigners from handling postal ballots, introduce, as the noble Lord, Lord Scriven, just explained, new limits on the number of postal ballots that can be handed in, limit the number of electors for whom someone can act as proxy and increase secrecy protections for absent voters. As has been said, all these changes implement recommendations in the report by my noble friend Lord Pickles into electoral fraud, which suggested addressing weaknesses in the current system. We submit that they are sensible safeguards against known vulnerabilities and, taken together, they will reduce the opportunity for unscrupulous individuals to exploit the process and steal votes, as we have seen in Tower Hamlets—often referred to in your Lordships’ House—but also in other locations mentioned during debates in the other place, such as Peterborough, Birmingham and Slough.

I noted the points made by the noble Baroness, Lady Hayman of Ullock, on her amendments and her amendment probing the expiration period of postal votes, in which the noble Lord, Lord Scriven, also expressed an interest. Currently, an elector may have a postal vote on an indefinite basis as long as they provide a signature sample every five years. The noble Lord, Lord Collins of Highbury, has benefited from this.

The Pickles report recommended that voters should reapply for a postal vote at least every three years as a safeguard to prevent postal voter fraud. More frequent applications would not only enable EROs to regularly assess a person’s application and confirm whether they are still an eligible elector but give an opportunity for someone who was initially pressurised—that is obviously not the case for the noble Lord—into having a postal vote to break out of that situation and thus not have their vote influenced on an ongoing basis. Additionally, ensuring that electors’ details are kept up to date and that each postal voter’s signature is refreshed more frequently will reduce the likelihood that their postal vote is rejected should their handwriting change over time. You have only to ask my wife to hear how illegible mine has become in recent years.

The Government consider that the timeframe of three years still enables a person to have a postal vote for a reasonable length of time, while ensuring the person normally replies during every Parliament.

[Lord Stunell (LD)]

I thank the Minister for giving way. I understand the logic he is setting out. Do the Government intend that that this three-year renewal process will also apply to overseas voters added to the list to assess their eligibility and so on?

[Lord True (Con)]

My Lords, had the noble Lord not made a very legitimate intervention, I would have read the next sentence. While an indefinite postal vote presents a significant security concern, we must also recognise that annual applications for overseas electors goes too far in the other direction and creates an excessive burden for administrators. That was perhaps the implication of his intervention.

Therefore, in order to ensure that arrangements remain harmonious across domestic and overseas electors, we will extend the registration period for overseas electors from one up to three years and tie the three-year postal vote cycle in with the new three-year cycle for renewal of overseas electors’ declarations. Overseas electors will be able to reapply or refresh their absent vote arrangements as appropriate at the same time as renewing their declaration. This alignment between absent vote and renewal arrangements will encourage overseas electors to remain on the register.

We recognise that this means more time spent on processing by electoral administrators. To balance that, we are working to introduce an online application process. This will benefit electors and is very much welcomed by administrators in reducing handling of paper and enabling automation.

Of course, the Government recognise the importance of having transitional provisions in place for existing long-term postal voters, so under the Bill those voters will continue to be able to vote by post until either the 31 January following the commencement of the provision or, if this is sooner, the 31 January following the commencement date by which the postal voter would normally be expected to provide a fresh signature. These arrangements will ensure that the change is phased in over a reasonable period of time. Electoral registration officers will be required to send a reminder to existing postal voters in advance of the date they cease to have a postal vote and provide information on how to reapply for a postal vote.

The amendments tabled by the noble Lord, Lord Scriven, to Clause 5 seek to prevent the powers of the clause to limit the number of postal votes that can be handed in from being used to impose any limitations on handing in via a council posting box and set a minimum of five for any limitation imposed in secondary legislation. There is significant concern that permitting a high number of postal votes to be handed in could facilitate electoral fraud and undermine the integrity of elections. This has been a long-standing issue in elections and has undermined confidence in the system. It does a disservice to many legitimate electors who make use of postal votes for valid reasons. Setting a limit on the number of postal votes that can be handed in is therefore necessary in our judgment. This clause will allow regulations to require persons handing in postal votes to complete a form giving details of the numbers they have handed in, which will help promote compliance with the new requirements and aid investigations into allegations of fraud.

However, I heard the point the noble Lord, Lord Scriven, made about the number, and his suggestion of five. We will keep his suggestion in mind as we continue to work with the Electoral Commission and electoral stakeholders on the issue as we develop the legislation. However, we will maintain the position that the permitted number should be confirmed in secondary legislation, giving time for further consultation. This is the right place for such details and allows flexibility for change should it be needed later if the figure initially established does not prove to be right in practice. I hope that with those assurances noble Lords will feel able to withdraw or not move their amendments.

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[Baroness Scott of Bybrook (Con)]

My Lords, these probing amendments seek to test the defence for political campaigners set out in Clause 4, which bans said campaigners from handling postal votes issued to other persons. Clause 4 is designed to address activities and behaviours that have been a cause for concern at previous elections, such as the practice of postal vote harvesting whereby voters are coerced or tricked into completing their postal voting statement before handing over their papers with the ballot paper unmarked to campaigners to be taken away and filled in elsewhere.

Amendment 93 seeks to provide that a person commits an offence only if they knowingly handled a postal vote issued to another person. The clause currently provides that it is a defence for a political campaigner charged with the offence to show that they did not dishonestly handle the postal voting document for the purpose of promoting a particular outcome at an election. This Government entirely share the concern that no offence should criminalise innocent behaviour. For this reason—

[Lord Stunell (LD)]

I thank the Minister for her explanation. In preparing for this particular debate, I looked at the defence that is set out on page 2 of the Bill—I thank the Minister for reading that into the record. It further says, in new Section 112A(5), inserted by Clause 4, that

“the court must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.”

The burden of proof there is upon the prosecution. I mention this because, as a political campaigner who quite often gets asked to take a postal vote and hand it in on behalf of an elector, it is clearly of considerable importance to know that we are—if you like—excluded from the purview of this particular offence.

[Baroness Scott of Bybrook (Con)]

I think that all of us campaigners have been asked the same question many times on the doorstep.

This Government entirely share the concern that no offence should criminalise innocent behaviour. We have been especially careful to target the wording of the new offence to ensure that it is reasonable and proportionate where somebody acts with honest intentions. For these reasons, the Government consider that the offence provisions are appropriately worded and are therefore unable to accept that amendment or the others in this group.

In fact, against the concerns of Amendment 94, new Section 112A(2) of the Representation of the People Act 1983, inserted by Clause 4, already provides that a person who handles a postal voting document for use in a relevant election does not commit an offence if they are responsible for or assist with the conduct of that election and the handling is consistent with the person’s duties in that capacity.

Amendment 95 seeks to exempt legal guardians from the offence. There is an exemption in the clause for a political campaigner, if they are close family—

“spouse, civil partner, parent, grandparent, brother, sister, child or grandchild”—

of the other person whose postal vote they are handling. Legal guardians are not included, as they do not have the relevant powers when acting for adults, and their powers are primarily to do with decisions about a person’s medical care and their finances.

Amendment 96 also seeks to change the definition of political campaigner for the purposes of postal vote handling offences to include those who have donated to a campaign. The definition in the Bill is comprehensive and includes candidates, electoral agents and members of a registered political party who carry on an activity designed to promote a particular outcome at an election. Donating to a campaign is not the same as actively canvassing. Therefore, I am not persuaded that it should be amended to such a disproportionate extent. For this reason, I beg that the amendment is withdrawn.

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[Lord Adonis (Lab)]

I will elaborate on the noble Lord’s point. There is a difference here, in the ordinary reading of the words, between pressure and intimidation. I took the noble Lord, Lord Hayward, to be referring to intimidation, which is clearly something that we want to guard against. But what constitutes spiritual pressure? As noble Lords have just said, would a sermon in a church constitute pressure? A reasonable person might think that it would; after all, it is not serving much of a purpose if there is no pressure. This is a lay man speaking, but I think there is a difference between pressure and intimidation. We want to guard against intimidation, but we absolutely do not want to curb freedom of religious speech.

[Lord Stunell (LD)]

This is unexpectedly lively, but the focus really is on new sub-paragraph (3)(e). I think most of us would say that there is, if you like, a simple lay person’s interpretation of new sub-paragraph (3)(a), (b), (c), (d) and, for that matter, the catch-all of new sub-paragraph (3)(f), which is

“any other act designed to intimidate a person”.

In the light of new sub-paragraph (3)(f), it may be that the difficulties of new sub-paragraph (3)(e) are best avoided by their omission, because if such spiritual injury was demonstrated, it would come under new sub-paragraph (3)(f).

I just point out that the preceding activities have “using or threatening”, “damaging or threatening”, “causing or threatening”, but new sub-paragraph (3)(e) has “causing spiritual injury”; not “threatening” to cause spiritual injury. Obviously, it depends on one’s personal understanding of what spiritual injury might consist of, but the threat is surely going to be offered far more often than the reality will be delivered, if I may put it in those terms, although it does not mean that it is not effective. There are some problems in the straightforward interpretation of what new sub-paragraph (3)(e) really says, why it does not say “threatening” to cause, as does new sub-paragraph (3)(c) and (d), for instance, and why it is necessary, separate from the catch-all of new sub-paragraph (3)(f):

“doing any other act designed to intimidate a person”.

I want to bring a little bit of local colour to new sub-paragraph (4)(e). In 1992, I stood for the Liberal Democrats in Hazel Grove. On the Sunday before polling day, every Catholic church in the constituency had a letter read out from the Society for the Protection of Unborn Children, which clearly expressed the view that a vote for me would be a major spiritual error. I failed to win that seat by 923 votes. I do not attribute the result to that letter, but noble Lords will understand that I had a sense of grievance for some time afterwards that this letter had been read out.

This brings me to my second critique of new sub-paragraph (4)(e)—it is a little bit in the eye of the beholder. If that provision had been there in 1992, I would have gone straight to the returning officer to say that this was a clear case. It would be an invitation for people to complain about things which were in fact simply within the bounds of free speech, fair comment, and so on—even if it was unfair in the opinion of the recipient.

There is a double problem. First, what is “spiritual injury”? Secondly, do we mean causing it, or threatening to cause it? Do we think that the injury is to the voter who is deterred from voting for a candidate, or to the candidate by virtue of the voter not supporting them? I suggest that we are not very clear what we are trying to pin down. The Minister might like to carefully consider what the disbenefit would be of removing new sub-paragraph (4)(e) and simply relying on new sub-paragraph (4)(f) to deal with cases where “spiritual injury”—or threats of it—was part of the reason there had been intimidation.

[Lord True (Con)]

My Lords, in Christian teaching, the alpha comes before omega, so I was a bit puzzled, like others, that Z comes before A. I was set up to answer the noble Lord, Lord Wallace, first, and I hope that the noble Baroness will not be offended if I do that.

In any case, both are seeking to probe the reference to “spiritual injury” and “undue spiritual pressure” in the clarified offence of “undue influence” of “an elector or proxy”. The “undue influence” offence is intended to ensure that all electors and proxies are able to cast their vote free from intimation and malicious interference. It is true that the 2015 Tower Hamlets petition, about which my noble friend Lord Hayward spoke eloquently, demonstrated that protection from undue influence remains highly relevant and important in 21st-century Britain. However, the existing offence of undue influence dates back to the 19th century. Indeed, the freedoms of religious authorities and priests to hold and express political views were first set out in a judgment in 1870, and those freedoms remain. However, the complexity and outdated terminology of the current offence makes it difficult for the police or prosecutors to apply it, leaving electors and proxies without necessary protection.

I was asked about convictions. According to our data, between 81% and 86% of allegations of undue influence lead to no further action at all, with only one court case initiated in the last eight years. While the defendant was found guilty of undue spiritual influence in the Tower Hamlets petition, Commissioner Mawrey highlighted insufficient clarity in the law, as well as the high bar which was required to convict someone of intimidation. The commissioner recommended that the offence of

“undue spiritual influence … be more clearly articulated”

and brought in line with 21st-century language and society, to ensure that it remains enforceable. The Law Commission, in its 2016 report into electoral law, similarly called for the offence to be restated more clearly. All respondents in the Government’s public consultation in 2018, entitled Protecting the Debate: Intimidation, Influence, and Information, agreed that the offence required greater clarity.