Postal Vote Sampling: “Labour Party would not advise campaigners they should not undertake this activity”

The Electoral Commission have just published the minutes of their Parliamentary Parties Panel meeting on 3rd March which triggered the sharing of the Labour Party’s legal opinion included and discussed in a previous post.

At this meeting Mike Creighton, Labour Party Director of Audit and Risk Management is minuted as arguing “the Labour Party would not advise campaigners they should not undertake this activity which he believes is important for maintaining confidence in elections. This seems to be an admission that the Labour Party have been systematically taking tallies of postal votes at postal vote openings, although until now they have avoided admitting this publicly. Exactly how a practice that the Electoral Commission has consistently argued is illegal can simultaneously be a secret and “important for maintaining confidence in elections” is unclear.

The full section of the minutes is:

“4. Postal vote sampling

4.1 Mike Creighton [Labour Party, Director of Audit and Risk Management] raised the issue of permissibility of postal vote sampling as outlined in Section 66 of the Representation of the People Act 1983. Andrew Scallan [Electoral Commission, Director of Electoral Administration] confirmed that the Electoral Commission had looked at its guidance in light of the request to do so by the Labour Party but in its view, the guidance was correct. He noted that there was an ongoing case in Scotland that police were looking into; Bob Posner [Electoral Commission, Director of Party and Election Finance and Legal Counsel] stated that the police were looking at the evidence as a basis for their investigations.

4.2 Creighton stated the Electoral Commission’s guidance does not touch on sampling of postal votes and that it was the opinion of their legal counsel that sampling was not precluded by Section 66. He urged the Electoral Commission to take action now to prevent the possibility of police being called to counts, as the Labour Party would not advise campaigners they should not undertake this activity which he believes is important for maintaining confidence in elections. Scallen responded that Electoral Commission guidance was based on considered legal opinion and that they could explain more fully why this line has been taken. Creighton stated that criminal law is not open to interpretation and focused on the wording of the law, and asked the Electoral Commission to look again at its guidance. Peter Wardle [Electoral Commission, Chief Executive] said that the Electoral Commission would consider the parties’ request for its guidance to be clearer in relation to sampling; and would share any updated guidance as soon as possible. He noted, however, that he could not offer the parties any comfort that the effect of the Electoral Commission’s guidance would change as a result of this further consideration. However, he said that the Electoral Commission would explain its reasoning. Action: Electoral Commission will share with the parties the outcome of its consideration of the issue.

4.3 Matthew Richardson [Ukip, Secretary] asked whether political parties should seek further legal opinions on the matter, or seek a Declaratory Relief from the High Court. Wardle suggested that the first step should be for the Electoral Commission to follow up as set out above. As with all Electoral Commission guidance in this area, parties and Returning Officers were able to take their own advice and form their own view, and the Electoral Commission accepted this. However, the Electoral Commission aimed to produce definitive and clear guidance wherever possible.”

This is significant because it is at the heart of the police investigation, still ongoing, into this practice in the Scottish referendum, as implied by comments made by Ruth Davidson on tv on the night of the referendum. If postal vote sampling is considered legal by the Labour Party it raises questions about what all the parties in Better Together knew about the breakdown of postal votes at the time of the “vow”, which came after the start of the opening of postal votes. The panic to promise extra powers to the Scottish parliament may not have been solely due to a single rogue Yougov poll, but also influenced by having access to postal vote data that most experts (Electoral Commission, Crown Office and Police Scotland to name three) believe would have to have been illegally collected.

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