Following a Freedom of Information request asking the Cabinet Office for copies of any communications relating to postal vote tallies, I have received a copy of this email exchange between the Labour Party and the Cabinet Office in January 2015, and also a reference to the practice at an Electoral Integrity Roundtable in February 2015. The correspondence implies that Paul Docker, Head of Electoral Administration at the Cabinet Office, had raised the issue of postal vote tallying with parties following the Acting Returning Officer at a byelection warning Labour Party postal vote agents to desist from tallying, which I believe to have been the Rochester & Strood parliamentary byelection held on 20th November 2014. The emails allude to the Millar legal opinion, but it is still unclear whether the trigger for Labour seeking the opinion was the Police Scotland investigation or the warning in the byelection.
On 6 January 2015 Mike Creighton, the Labour Party’s Director of Audit, Risk Management and Property emailed Paul Docker, Head of Electoral Administration at the Cabinet Office.
On 6 January 2015 at 18:16, Mike Creighton
wrote: Hi Paul – happy new year and all that. Let’s hope it goes smoothly.
I understand that at a meeting with political parties before Christmas to deal with Royal Mail issues, you raised the unrelated question of sampling at postal vote opening. I’m told that you were quite clear that you believe this practice to be unlawful and that AROs would be prepared to call the police should anyone be attempting to sample votes at PV opening.
I wonder if you have time for a coffee next week to talk about this. I have Leading Counsel’s opinion which says rather the contrary – and in some detail. It would probably be useful if we had a chat about this before we get to the Integrity Roundtable where I think the issue may be raised. Gerald Shamash, who instructed Counsel for me and who I think you know, is happy to come along to discuss the finer points. I’d be happy to leave you with a copy of the opinion at that time for you to consider more fully and before I make it more widely available.
Audit, Risk Management and Property
The Labour Party
One Brewers Green
London SW1H 0RH
Paul Docker replied…
On 6 Jan 2015, at 19:14, Paul Docker
Happy New Year to you also.
It isn’t my place to tell people what to do or what the law means so not really expressing my own view. I passed that point on, as I said at the mtg, in the spirit of being friendly and reporting what I had heard at a recent byelection where the RO had sought legal advice and had been on the verge of calling the police before the party concerned desisted from what the RO found to be unacceptable.
They posted RPA 1983 s66 up and I think may have specifically referred to 4(d) ‘attempting to ascertain the candidate for whom any vote is given…’
I would presume that any advice you have has specifically addressed that point.
Returning Officers are getting increasingly troubled by activity at postal vote openings and counts and that, combined with social media, there is now a much increased chance of people landing themselves in hot water through ‘publishing’ predictions ahead of close of poll which clearly is illegal.
As I said at the outset, it isn’t for me to say what is right or wrong and there may be different interpretations of the law which would be for a court to resolve but you are right that it could come up as an issue at the next Integrity mtg and it is doubtless something that will raise it’s head in the form of a query, if not in actuality, in May so I am happy to discuss the policy / legislative point if it helps towards us all having some clarity on it and potentially avoids issues later on.
I believe the “recent byelection referred to was the Rochester & Strood parliamentary byelection. Mike Creighton replied…
From: Mike Creighton
Date: 6 January 2015 at 20:21
Subject: Re: Postal Vote Opening
To: Paul Docker
Thanks for the clarification I couldn’t really imagine you laying down thew law at that meeting. I’m well aware of the byelection in question since it was me the ARO was having an email debate with about S66 and which, in part, prompted me to get Counsel’s opinion. At the time I was very sure of my ground but I finally agreed to call off our scrutiny to avoid unnecessary embarrassment for the ARO in a byelection where our interest was not at its highest.
Counsel’s opinion does address 4 (d) among other issues, including the very important few words which follow those which you quote.
I take the point that it is not for you to interpret the law, but the offer remains to bring you up to speed with our interpretation of the law should you wish. Clearly this is not a trivial issue if AROs are going to try to get the police to act, in our view, against the law on this issue. For the avoidance of doubt, let me make it clear that we are absolutely committed to “maintain and aid in maintaining the secrecy of voting” as required by the legislation. But neither we nor anyone else should put a construct on the words of the Act which is not there.
I will make the same offer to the Electoral Commission to share our advice, since presumably they do have to interpret the law to make sure they give the correct advice to AROs on the issue, and to the police.
Director of Audit and Risk Management
Postal vote tallying is mentioned in the draft notes of the next Electoral Integrity Roundtable.
Notes from Electoral Integrity Roundtable – draft for comment
Date: 13 February 2015 Time: 11:00 – 13:00
Location: 1 Horse Guards Rd, London SW1A 2HQ
Action point 3: The Electoral Commission to produce a note on what is acceptable practice in regard to sampling at postal vote opening sessions. [Postmeeting note: The Commission’s Electoral Administration Bulletin Issue 86, 18 March 2015 carried the Commission’s view under ‘May polls 2015: tallying at postal vote openings’ http://www.electoralcommission.org.uk/__data/assets/pdf_file/0007/183148/Electoral-Administration-Bulletin-86S.pdf ]
The postmeeting note includes a link to the Electoral Commission bulletin that stated: “We have been asked for our view on the legality of tallying at postal vote opening sessions, and we can confirm that it is our view that the legislation prohibits it.”