On 29th December the Labour Party received legal advice from Gavin Millar QC of Matrix Chambers that the tallying or counting of postal votes at postal openings was not an offence under the Representation of the People Act. Why they requested this advice is unclear at the moment, but the cost and the potential reputational risk when this information entered the public domain implies they must have had a significant justification. It does suggest that committing electoral fraud by counting postal vote papers may be institutional in the UK Labour Party.
The Labour Party submitted this opinion to the Electoral Commission, who replied to them on 12th March that this was not the view of the Commission:
We consider that the reference to ‘any particular ballot paper’ in the first limb of this provision [RPA S66(4)] is to an individual ballot paper. The first limb of this provision therefore prevents those present at the postal vote opening from attempting to ascertain the way individual ballot papers are marked. This interpretation is consistent with Regulation 84 Representation of the People (England and Wales) Regulations 2001 which stipulates that, when opening the postal votes, the Returning Officer “shall keep the ballot papers face downwards and shall take proper precautions for preventing any person from seeing the votes made on the ballot papers”.
It is therefore clear that, at a postal vote opening, ballot papers are to be kept face down and individuals are not permitted to look at the ballot paper to attempt to see how it is marked. In the context of tallying, therefore, it is not the act of counting itself that is prohibited, but the necessary prerequisite of looking at the individual ballot papers to see how they are marked.