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

Florence Eshalomi Excerpts

Monday 13th November 2023 General Committees

[Florence Eshalomi (Vauxhall) (Lab/Co-op)]

It is an honour to serve under your chairship, Dr Huq. I thank the Minister for his introduction outlining why we are here. As elected Members of this House, we should all support aims to make our elections as free and fair as possible. I think about why I got involved in politics, and why I got involved stood for election as a local councillor: it was because I wanted to represent my community which, I felt, simply did not have enough of a voice in decisions. It would be disgraceful to see my or any other community denied a voice in our system by fraud in favour of another candidate.

The Minister will be pleased to know that we do not intend to oppose the measures, but I want him to consider seriously the potential for unintended consequences if the regulations are not implemented with sufficient care. I would welcome his assurances on these matters. I refer to the question from my hon. Friend the Member for Lancaster and Fleetwood. I, too, am concerned about the definition of political campaigners. In its report on electoral reform, the Law Commission acknowledged the stickiness of regulation in this area and highlighted feedback from respondents:

“(1) regulation would criminalise helpful and otherwise unavailable assistance for those voters who need it;

(2) regulation would be difficult to enforce and breaches hard to detect—putting off honest campaigners without deterring dishonest ones; and

(3) regulation would be an overreaction in the light of the available data on fraud.”

The Law Commission said that it

“could not recommend legal regulation”

in respect of measures such as those we are discussing without addressing existing electoral offences such as undue influence in a more effective manner.

Returning to the Minister’s response to my hon. Friend the Member for Lancaster and Fleetwood about the definition of a political campaigner, the definition in the regulations includes

“members of registered political parties who carry on activities designed to promote a particular outcome at the election.”

My local party in Vauxhall has significantly more than 1,000 members and, at elections, many of them put up posters in their windows. They occasionally comment online. That is enough to draw them into the definition of a political campaigner. Many of my constituents, along with many hon. and right hon. Members, are renters or are in cohabiting relationships but are not married or in a civil partnership; they would not be covered by the exemptions in the regulations. I should make it clear that the Labour party has signed up to the Electoral Commission’s code of conduct on campaigners for many years which, by agreement, bans campaigners from handling completed postal ballots. Our internal guidance also clearly states that under no circumstances should campaigners handle completed postal ballots unless electors have absolutely nobody else to return them for them and only then with the prior agreement of the returning officer.

It is easy to imagine that a party member, for example, who does not generally involve themselves in day-to-day campaigning and has therefore never seen this guidance and who simply wants to hand in a postal vote for a sick housemate or partner could end up being caught by the regulations. The Minister has outlined the fact that the penalty could be imprisonment for up to two years, just for trying to help a colleague or a family member to exercise their democratic right to vote. In short, I am not sure how far the regulations draw a distinction between a political campaigner—in the sense of someone with a red or blue rosette knocking on a door as part of an organised activity—and someone who happens to be an ordinary party member who is acting in a personal capacity.

If we are honest, this could be a real travesty, because it could mean that votes would be lost and legitimate voters denied their voice. Can the Minister therefore outline what safeguards are in place to ensure that that would not be the case and what efforts are being made to ensure that legitimate voters do not lose their voice as a result of the regulations? Can he make sure that the burden of proof is on prosecutors to show that such a person intended dishonestly and illegally to influence a decision? This point may be lost if it is not made explicit, and we have to be clear about it.

The Minister outlined the reasonable limit of five. I would welcome clarity on where the limiting of the number of postal voters to five came from. I have struggled to find any concrete reasoning behind that number, bar what is described in debate on the statutory instrument in the other place as

“helpful input from your Lordships”—[Official Report, House of Lords, 24 October 2023; Vol. 833, c. GC56.]

Although we respect the Lords, it is important that we do not pluck an arbitrary number out of the sky when it comes to such an important decision.

My hon. Friend the Member for Lancaster and Fleetwood pushed an amendment when the Elections Bill was in Committee so that we would have the required public consultation on regulations in what is now section 5 of the Act. While the Government may have their reasons for rejecting that, it is important for the Minister to clarify the exact journey that they went on to reach the maximum limit of five. I would like to put on record the concerns of Lord Khan of Burnley, who said:

“What will happen to those who are already registered as a proxy voter for more than four electors or more than two domestically residing electors?”

He also said:

“Will there be special circumstances by which a proxy can act as such for more than four electors, should they be family members who are unable to vote themselves and the chosen proxy is the only trustworthy option for them?” ”—[Official Report, House of Lords, 24 October 2023; Vol. 833, c. GC61.]

These are real consequences affecting people’s ability to exercise their democratic right to vote.

Finally, the Minister may be aware that this regulation is the latest in a line that adds layers to our voting system. While those layers may have security advantages, they risk overloading election officers, who are already stretched by changes such as the requirement to bring in photo ID for voters. Can the Minister outline what discussions he has had with the Association of Electoral Administrators about the extra load that the regulation will impose on their work?

--- Later in debate ---

[Jacob Young]

I am happy to try to write to the hon. Lady with that statistic, as I do not have it in front of me today.

During my opening remarks, the hon. Member for Lancaster and Fleetwood asked what happens when someone hands in a number of votes that exceeds the total permitted number. To clarify, the individual will have to decide which of those postal votes is their own, and the election staff will have to take that decision at face value. If the person hands in the votes without the completed form, all the votes will be rejected—none will be accepted. I hope that provides the clarity the hon. Lady was seeking.

There has been a lot of discussion about the definition of a political campaigner. As I set out earlier, the definition of a political campaigner for the purpose of the new postal vote handling offence and the exemptions that apply to that offence are set out in section 4(2) of the Elections Act 2022. The Electoral Commission issues guidance to candidates at elections, and we expect that it will cover the new postal vote handling and handing-in requirements. We also expect that political parties will bring the new requirements to the attention of their members. We intend that the changes will be communicated to electors directly via forms, including the postal vote statement and poll cards, and through information made available to electors via gov.uk.

Additionally, information will be displayed on the Electoral Commission and other agency websites and in information provided by local authorities. We will continue to work with the Electoral Commission to develop this information and awareness. Also, when a person hands in a number of votes, they are given a form that requires them to confirm whether they are a political campaigner. That should provide the clarity the hon. Lady was seeking.

[Florence Eshalomi]

I understand what the Minister is trying to outline here, but does he agree with the concerns raised by the Law Commission about a clear definition of a political campaigner, and that there may be unintended consequences on innocent people who are just trying to make sure that their friends, family and other people have the right to vote?

[Jacob Young]

As I have set out, individuals will need to complete a form. They will need to define whether they are a political campaigner, so I do not agree with hon. Lady’s assertions. I think it will be clear to individuals whether they should be handing in postal vote forms.

In terms of the potential impact of these changes on electoral administrators, we are aware of the concerns that have been raised. We continue to work with the Electoral Commission and electoral administrators on the implementation of these measures, on ensuring that administrators have support to deliver them and on raising awareness among the electorate of the changes and new requirements.

A concern was raised by the hon. Member for Airdrie and Shotts about poll clerks having to reject postal votes. We consider it appropriate for presiding officers and poll clerks in polling stations to be able to make decisions on whether postal votes have been handed in in accordance with the rules and whether they should be accepted or rejected. It will be an objective matter as to whether the person handing in the votes has completed the accompanying form and has handed in the permitted number of postal votes.

We have provided for poll clerks to be able to make decisions on these matters in case the presiding officer is not available in a busy period or is indisposed due to unforeseen circumstances. In practice, the presiding officer may well decide to make all decisions on whether to accept or reject handed-in postal ballot packs, but we thought it helpful to enable poll clerks to make such decisions too.

The hon. Member for Vauxhall raised the question of five plus one. The number was decided on in the passage of the Elections Bill and goes back 20 years. Having six postal vote electors in a property starts to raise concerns about postal vote fraud. Hon. Members will know that there was a discussion during the passage of the Bill about the right number to use. Throughout various types of election guidance and so on, the number six is used, which is why we have chosen it.

The hon. Member for Airdrie and Shotts asked whether the cost will be met by central Government. Yes, it will be, through new burdens funding.

All hon. Members are deeply committed to preserving and enhancing the electoral processes that underpin our democracy—a commitment that has been underlined so vividly by the contributions to this debate. I thank everyone for the part they have played in this discussion, and I commend the regulations to the Committee.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Representation of the People (Postal Vote Handling and Secrecy) (Amendment) Regulations 2023.