Elections Bill

Baroness Scott of Bybrook Excerpts

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

We know, as the noble Lord the Minister has indicated, the abuses that have taken place in terms of harvesting postal votes, forced registration in households and those sorts of things that we need to stamp out to ensure the integrity of our electoral system. In doing so, we want to make sure that we are not using a heavy hand and that people who may do something innocently are not criminalised. I hope that the Minister understands why we have tabled this series of amendments: it is to probe and get a better understanding of how we would deal with those sorts of innocent situations that should be dealt with more clearly by guidance. I beg to move.

[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.

[Lord Collins of Highbury (Lab)]

I thank the Minister for her response and, in light of her comments, beg leave to withdraw the amendment.

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[Lord Wallace of Saltaire (LD)]

My Lords, I have a question more out of ignorance than expertise. I am old enough to have gone round as a young man in the days when different parties competed in treating the matrons of care homes, and relying on them to collect all the votes up and make sure that everyone voted in the right direction. I am sure that that no longer happens—let us hope that it is something that we left behind in the 1960s. However, this raises questions about care homes. How are people assisted to vote? Who posts their votes for them or holds their proxies? I wish for a little assurance about this.

[Baroness Scott of Bybrook (Con)]

My Lords, in answer to that question from the noble Lord, Lord Wallace, keeping the numbers at four and not allowing anybody to have as many proxy votes as they like will help control this sort of behaviour. We all know that it happened in the past.

I will get an answer on why postal votes are to be in guidance and proxy votes are in the Bill, and write to the noble Lord, Lord Scriven.

I turn to the amendments concerning the measure in the Bill designed to strengthen the current arrangements for proxy voting. Currently, somebody can act as a proxy for up to two electors and for an unlimited number of close relatives in any constituency in a parliamentary election, or any electoral area at a local election. This can give rise to situations where somebody could cast an extremely large number of proxy votes, over which they could also exercise undue influence. This is where the issue of care homes and such like comes into play.

The Bill introduces a new limited of four on the total number of electors for whom a person may act as a proxy in UK parliamentary elections or local government elections in England. Within this figure, no more than two may be domestic electors—that is, electors who are not overseas electors or service voters. All four may be overseas electors or service voters. This approach will tighten up the rules on proxy voting, while also providing appropriate support for overseas electors and service voters wishing to appoint a proxy.

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[Baroness Scott of Bybrook (Con)]

My Lords, as has been said, these amendments are to Clause 7, which concerns the important issue of the secrecy of the ballot for postal and proxy voters. The clause extends the requirements currently in place to protect the secrecy of voting for persons voting in polling stations to postal and proxy voting. These sensible change implementations are an important recommendation from the Pickles report.

First, in bringing forward government Amendments 98, 99 and 101 to 103, we have listened to feedback from political parties about the scope and effect of the provisions as drafted. Currently, the clause includes provisions that make it an offence for a person to obtain, attempt to obtain or communicate to anyone information about whether a postal voter has voted or about the candidate for whom they have voted. As drafted, this applies for the whole period that the elector is in possession of their postal ballot paper, which could be up to three weeks.

We now recognise that this approach goes beyond what is helpful to protect the voter and strays into unnecessarily criminalising not only legitimate political activity to engage electors in campaigns but important public information, such as opinion polling. The amendments would limit the scope of these provisions by providing for it to be an offence for a person to seek information about for whom a postal voter has voted at the time they are completing their ballot paper, or to communicate such information obtained at that time. Campaigners could therefore seek and communicate information that they obtain outside this period. This is in line with the protection for voters in polling stations, who are protected when they are in that polling station.

The amendments would also remove the restriction on asking whether a postal voter has voted so that campaigners can ask a postal voter whether they have voted, to encourage them to do so. Further, under the amendments, the offence would not apply to opinion-polling activity asking how a postal voter has voted, or intends to vote, to avoid criminalising opinion pollsters. The amendments seek to address the unintended consequences that the provisions, as they stand, would have. They would narrow the scope of the provisions so that they do not prevent legitimate campaigning by political parties and candidates outside the time when a person completes their postal ballot paper or legitimate opinion polling at any time.

I reassure noble Lords that the measures will improve the integrity of the postal vote process by reducing the opportunity for individuals to exploit the process and coerce other voters. They will give greater confidence in the integrity of absent voting; I therefore urge the Committee to accept these amendments.

The amendments tabled by the noble Baroness seek to provide that attempting to communicate information about a person’s postal vote as well as actually communicating the information is covered in the secrecy offence. Also, the amendments seek to include in the offence obtaining or attempting to obtain information or communicating information about whether a person voting by postal vote has spoilt their ballot. The Government consider that these amendments are unnecessary, as I have explained. The amendments that the Government have tabled seek to bring the protection for postal voters into line with that for those voting in polling stations.

The amendments tabled by the noble Baroness would mean that there would be inconsistency in the requirements for voters in polling stations and postal voters, which would not favour them. I note that, currently, it is an offence for a person to obtain or attempt to obtain information or communicate information as to the candidate for whom a voter has voted in a polling station, and we are applying this to postal voters.

Spoilt ballot papers are not included in the existing provisions, which relate to the time when a voter is casting their vote. It is for the returning officer to decide if a vote has been spoilt and cannot be counted. That cannot be done before it is cast. To try to include such a provision could lead to uncertainty about the scope of the offence and the role of the statutory independent returning officer in making any such determination. The Government therefore cannot accept these amendments.

I turn to the amendment from my noble friend Lord Hayward, which would provide the Secretary of State with a power to issue guidance on the steps that presiding officers or clerks should take to ensure the secrecy of the ballot in polling stations. I reassure noble Lords that the Government take this and the concerns that have been raised very seriously. The Government’s view is that the secrecy of the ballot is fundamental to the ability of voters to cast their vote freely, without undue pressure to vote in a certain way. The Government fully endorse the principle that someone’s vote must be personal and secret, and that no elector should ever be subject to intimidation or coercion when voting. There are already provisions in place in electoral law to ensure the secrecy of voting in polling stations. The current legislation requires that voters should not be accompanied by another person at a polling booth except in specific circumstances, such as being a child of a voter, a formal companion or a member of staff.

Returning officers and their staff in polling stations are responsible for making sure that these requirements are upheld. In this way, they are supported by the Electoral Commission, which issues guidance to returning officers and polling station staff to help them to undertake their duties.

I note that the Electoral Commission guidance specifically advises polling station staff that they should make sure that voters go to polling booths individually, so that their right to a secret vote is protected. Therefore, I do not consider that it is the role of government to issue such guidance as provided for in the amendment. However, given the important concerns that have been raised on the secrecy of voting, Minister Badenoch will be writing to the Electoral Commission and the Metropolitan Police to confirm our common understanding of the position set out in legislation—that the only people who should provide assistance at a polling booth are polling station staff and companions who are doing so only for the purpose of supporting an elector with health and/or accessibility issues that need such support. We are confident that the Electoral Commission will be able to respond promptly, and I reassure the noble Lord and the rest of the House that we will report back on this matter.

For these reasons, I hope that the amendments from the noble Baroness and the noble Lord will not be pressed.

[Lord Khan of Burnley (Lab)]

My Lords, I thank the Minister for her response and the noble Lords, Lord Hayward and Lord Scriven, for their contributions. I want to say how impeccable the noble Lord, Lord Adonis, was in reading the Ballot Act 1872 in the space of this debate, and I congratulate him on his reading skills. In doing so, I beg leave to withdraw the amendment.

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[Baroness Scott of Bybrook (Con)]

My Lords, I thank the noble Baroness for speaking on behalf of my noble friend Lord Holmes of Richmond. We did debate his Amendment 118A, and we are in contact with him on the issues he raised, so I am happy with that.

Amendment 122A in the name of the noble Lord, Lord Mann, would require that the returning officers consider whether to appoint designated people to assist electors in completing their postal votes at home or at other locations for various reasons. I commend the spirit of this amendment in looking to improve the accessibility of elections for people who may struggle to mark their vote. We know that there are people who, for many reasons, do that, but I contend that it is not necessary, given the existing assistance avenues already in place.

When voting by post, it is important that the postal vote is completed by the person to whom it is given. When someone is unable to sign the postal vote, as is required, they may get a waiver of their signature. If they need help from the returning officer, they may attend a polling station where staff are empowered to assist electors to vote, or a companion can assist them in a supervised environment. If the person cannot attend a polling station, they may appoint a proxy to vote on their behalf. This proxy may themselves choose to vote by post. An elector may also appoint an emergency proxy to vote on their behalf up until 5 pm on the day of the poll in certain unforeseen circumstances.

For these reasons, while I understand everything that has been said, I ask that the amendment be withdrawn.

[Baroness Hayman of Ullock (Lab)]

As the Minister said, we had an extensive debate on this at our previous Committee sitting, so I beg leave to withdraw the amendment.