A further FoI request to the Electoral Commission (FOI 81 15), not submitted by me, seeking information on correspondence on counting of postal votes has uncovered some more information in how the Electoral Commission responded to allegations of postal vote tallying in the referendum and to the Labour Party’s legal opinion that tallying is legal. The emails show that in the week following the referendum the Electoral Commission liaised with Police Scotland and with Crown Office to respond to the initial allegation following Davidson’s comments in a way that was agnostic to whether the practice was or was not illegal.
The Commission emailed the Labour Party on 12th March stating that the Commission’s view was that the taking of tallies at postal vote openings was an offence, but the Labour Party, Director of Audit emailed the Commission on 25th March seemingly unaware of this clarification or the revision to the guidelines.
The heavily redacted CRM log of 27th March seems to be a reference to a party other than Labour, though it is unclear to whom it refers.
24 September 2014, 4.30pm
Someone emailed a list of Electoral Commission staff and redacted names
Subject: RE: Alleged Breach of Requirement of Secrecy by [redacted] Postal Ballot Agents
Apologies for the delay on this as we’ve been speaking with Police Scotland and COPFS to agree an approach which will help to manage the inevitable high volume of interest in this issue.
We’ve provisionally agreed the following lines:
For the media:
“Schedule 7, paragraph 7 of the Scottish Independence Referendum Act 2013 sets out the rules which cover the requirement of secrecy for those attending the opening of postal ballot paper envelopes. Any breach of these rules would be for the police to investigate and, as such, any complaints we have received in relation to this matter have been brought to the attention of the Police Service of Scotland.”
For public enquiries (in which a member of public alleges an offence has been committed):
“Schedule 7, paragraph 7 of the Scottish Independence Referendum Act 2013 sets out the rules which cover the requirement of secrecy for those attending the opening of postal ballot paper envelopes. Any breach of these rules would be for the police to investigate and, as such, the allegation referred to in your e-mail has been passed to the Police Service of Scotland.”
If anyone has any major issues with these lines, could you let me know asap please?
15 January 11:53
Internal Electoral Commission email from Bob Posner, Director of Party and Election Finance
Subject: Party Reps Tallying Votes at Counts
Attached is a QC advice obtained by the Labour Party. Gerald Shamash, their lawyer I and party officials gave me a copy of it yesterday with a request that we indicate back to them whether we agree with the advice (which they like and agree with) They intend to share the advice with some other parties and either share or inform of its content to the Cabinet Office, probably AEA and SOLACE too. They did not say when they would do this.
The topic is ‘tallying’ by party reps at counts. Is it lawful? The advice says it is. I was informed that the advice was triggered because [redacted] of Cabinet Office said at a meeting ROs would not for the May polls be permitting tallying at postal vote openings. The Labour party (and no doubt others) want to tally as usual.
I said we would have a read of the advice and let them know (back to Gerald Shamash possibly) if we wished to comment and if we did what that was. Over to EA to consider with legal colleagues. Worth in the meanwhile acknowledging back to Mr Shamash we are reviewing it? Kindly keep me in the loop.
15 January 14:29
Internal Electoral Commission email from Tom Hawthorn, Head of Policy to Bob Posner, Director of Party and Election Finance
Subject: RE: Party Reps Tallying Votes at Counts
Given the equivalent provision is subject to an ongoing police investigation in Scotland, shouldn’t we exercise some caution here?
Presume we can contact Gerald using details on CCM.
15 January 15:58
Internal Electoral Commission email from Bob Posner, Director of Party and Election Finance to Tom Hawthorn, Head of Policy
Subject: RE: Party Reps Tallying Votes at Counts
Agree Tom. I did point out to them that the police investigation is live. We can come to a view on the QC Advice, and depending on what it is decide if that affects any response we would be comfortable making.
16 January 12:59
Internal Electoral Commission email from Louise Footner, Senior Lawyer to Bob Posner, Director of Party and Election Finance
Thanks for forwarding this opinion. The advice sets out the arguments for one interpretation (ie that tallying does not contravene the secrecy provisions). We will review in legal and discuss with EA. Whilst agreeing with you and Tom as to the need to be circumspect until the Procurator Fiscal’s investigation is completed, legal and EA have already identified this as an area where we may be required to give a view fairly quickly once the investigation is complete. So its something we are already starting to look at, and will discuss before a final view is reached
This also came up at the SOLACE conference yesterday.
I’m happy to send a holding response to Gerald Shamash.
16 January 15:16
Internal Electoral Commission email from Tom Hawthorn, Head of Policy.
Subject: RE: Party reps tallying votes at counts
Just FYI, I spoke to Andy earlier today and he said that he would try to speak to the Crown Office to see what timescales they’re working to.
Louise Footner, Senior Lawyer, Electoral Commission emailed Gerald Shamash, Labour Party.
Bob Posner has passed to me your QC’s opinion on the issue of tallying votes at a postal vote opening session. I just wanted to acknowledge safe receipt of your opinion, which we will consider carefully. We will come back to you once we have considered this issue further.
In the meantime we will of course keep the opinion confidential.
With kind regards
3 March 2015
At the Electoral Commission’s Parliamentary Parties Panel the Labour Party representative brought up the legal opinion in an open forum with published minutes. The minutes include:
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.
Bob Posner, Legal Counsel & Director of Party and Election Finance at the Electoral Commission emails Labour Party, Director of Audit, Risk Management
Further to the PPP meeting earlier this week where you raised the issue of sampling of postal votes, I wanted to let you know that the Commission will be writing very shortly to set out its views on this matter. We hope to be able to let you have our views, with reasons, early next week.
The Commission had been aware of the Labour Party’s claim that postal vote tallying was legal since 14th January, but appears to have only been spurred into a response by the Labour Party raising it in the Parliamentary Parties Panel on 3rd March, by which time the Commission’s guidance to Returning Officers had been sent out without mentioning postal vote tallies.
Andrew Scallan, Director of Electoral Administration, Electoral Commission responded to Labour Party with Commission’s response to the Millar legal opinion. This letter was released under an earlier FoI request.
Further to the Political Parties Panel meeting last week I am writing to follow up the discussion we had around the tallying of votes at an election count and a postal vote opening session. Thank you for providing us with Gavin Millar QC’s advice on s66 Representation of the People Act 1983 (RPA 1983), which we have considered carefully.
We agree with Mr Millar’s view that there is nothing in the legislation to prevent the tallying of votes at an election count. By ‘tallying’ I mean the practice of keeping a running total of the way votes have been cast as they are counted. However, we consider that the legislation does prohibit the same practice at a postal vote opening.
We have looked again at our guidance for candidates and agents and propose to amend it by the end of the week to make this latter point more clearly. I thought it might be helpful to explain the reasoning behind our position in relation to the postal vote opening session. The law relating to the opening of postal votes is different from the law relating to conduct at the count.
At a postal vote opening it is not permissible to “attempt to ascertain the candidate for whom any vote is given in any particular ballot paper or communicate any information with respect thereto obtained at those proceedings” (s66(4)(d) RPA 1983).
We consider that the reference to ‘any particular ballot paper’ in the first limb of this provision 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. In contrast, at the count, there is no specific prohibition against attempting to ascertain the candidate for whom any vote is given on a particular ballot paper. Consequently, the associated rules for the conduct of the count require the votes to be counted face up. It is therefore clear that those attending the count will be able to see how votes have been cast on individual ballot papers and there is nothing to stop individuals from keeping a tally of that information. The distinction is logical since polling will of course have closed
by the time the count commences, which is not the case for most postal vote opening sessions. We hope this explanation is helpful in understanding our position. More generally, I would also mention that the Returning Officer is responsible for the effective and proper running of a count or a postal vote opening. Circumstances at an event can differ and if the Returning Officer is not satisfied with any behaviour they can remove the person(s) involved from the venue. I am sure we would all, in most circumstances, anticipate supporting the Returning Officer’s actions in this regard. Thank you very much for raising this issue with us.
Director of Electoral Administration
25th March 15:33
Lawyer – Electoral Administration, Electoral Commission emails [redacted]
Subject: RE: Draft Response to Law Commissions’ consultation paper
In our paragraph 5.23 should we not be taking a position on tallying and external communication of the progress of counting? Certainly, leaving aside postal ballots, the tallying of ballots is a well established practice and I cannot see the objection to it.
Labour Party, Director of Audit, Risk Management emails Andrew Scallan, Director of Electoral Administration, Electoral Commission
I’ve had one report about postal vote opening from one electoral officer
She said that “the electoral commission has issued new guidance about being strict what happens during the verification”. She said she would be taking a strict view on what Parties will be doing in that room and that we would be asked to leave if we were seen to be tallying votes.
Have you actually issued any new guidance yet? If the electoral officer is correct then perhaps you would be kind enough to let me have a copy. I think we all agreed that tallying votes is not an offence.
Andrew Scallan to Labour Party, Director of Audit, Risk Management
Thank you for your letter of 13 March and email of 25 March You ask about the position in respect of information which ‘happens to be before’ a person attending the opening of postal votes, and state that those attending need to look at ballot papers in order to observe the opening of the postal votes. We believe the correct interpretation of the law is that it is designed to prevent those present at postal vote openings from seeing how any ballot paper has been marked. I accept that it might be the case that someone sees the mark on a ballot paper but that does not mean that they should be able to record it as in our view the law is drafted to prevent such knowledge being gained at all. We appreciate that it is an important aspect of the electoral process that candidates and agents are given the opportunity to attend and observe postal vote opening sessions. However, for the reasons that I set out in my letter of 12 March we do not believe that, in doing so, a candidate or agent is entitled to see how postal ballot papers are marked.
We therefore expect Returning Officers to conduct proceedings in such a way as to ensure that those observing a postal vote opening session are not able to see how particular ballot papers are marked. It follows that we would not expect Returning Officers to allow candidates or agents to tally up information about how votes are marked, regardless of how that information was obtained
As I mentioned in my letter of 12 March, the Returning Officer is responsible for the proper and effective running of a postal vote opening and is entitled to take appropriate steps to ensure the opening is conducted in accordance with the law. We amended our guidance following our last correspondence and it can be found at http://www.electoralcommission.org.uk/__data/assets/pdf_file/0015/173022/UKPGE-Part-5-Your-right-to-attend-key-electoral-events.pdf (see revised paragraphs 1.9 and 1.10). We do not consider it is necessary to amend this guidance further.
Labour Party, Director of Audit, Risk Management emails Andrew Scallan, Director of Electoral Administration, Electoral Commission
Thank you, but I note your updated guidance still talks – incorrectly and inaccurately in our view – about individual ballot papers. We will take further advice on your updated guidance.
27 March 14:44
Electoral Commission CRM log
Tallying at PV openings: [redacted] he’s just met with the agent for a sitting [redacted][redacted] MP (didn’t say who) to discuss the opening of PVs. The question arose regarding the tallying of votes and the agent informed [redacted] that the [redacted] disagree with the rule on legality of tallying at PV opening sessions and are taking legal advice on the matter. I advised [redacted] that we provided further on this in Bulletin 100; he did say that he thought he’d distributed his C&A copies before that but will review Part 5 accordingly and just wanted me to forward to everyone for your information in case anything controversial rears its head at other PV openings where [redacted] are prevalent. He then emailed:- Dear Electoral Commission As discussed with [redacted] have just met with my candidate’s agent to go through nominations etc as he wasn’t able to attend the briefing I had a couple of weeks ago. During this meeting I went through my notes from the briefing I held and mentioned the ruling that stated keeping a tally of how postal votes were marked at the opening of postal votes was not allowed. The agent said that the [redacted] did not agree with this interpretation of the rules and the national party were seeking clarification on this and that their current intention is to keep a tally. I did explain that this isn’t allowed however I didn’t push it further. Could someone please look in to this for me as I am anticipating this becoming an issue given the incumbent MP is a [redacted][redacted].