Postal Vote Counting at the Rochester & Strood Byelection

Nick Robinson on the BBC at the Rochester by-election count on 20th November 2014 refers to “… people sneaking a look at postal votes…”. It is now clear that this is another reference to postal voting agents taking tallies of postal votes at postal vote opening sessions in the days before the count. More worryingly, I now know from FoI requests that no allegation was made to the police, despite the Acting Returning Officer being aware, the Electoral Commission being aware and both Medway Council’s legal team and the Electoral Commission informing the Acting Returning Officer’s staff that the practice was a breach of S66 of the Representation of the People Act 1983.

On November 18th 2014 a member of the Acting Returning Officer’s staff at the Rochester & Strood Byelection submitted an electoral guidance query to the the Electoral Commission which was logged.

“[Redacted] at Medway was concerned that agents at postal vote opening sessions were making a tally of votes polled and that this was in breach of S66 as confirmed by Medway’s legal team. Agents for UKIP and Labour said they were advised that this wasn’t in breach particularly as they were not communicating this information. [redacted] wanted confirmation.”

The Commission reply was logged as:

“Clarified and confirmed with [redacted] not acceptable to tally at PV opening and covered in guidance, also cases of CPS issuing warnings about this behaviour.”

The standard Memorandum of Understanding: Agreement on joint planning for elections and reporting and investigating electoral malpractice between police forces and Acting Returning Officers includes at section 5.1:

5.1 Electoral registration officers/(acting) returning officers take allegations of electoral malpractice seriously. Where suspicions are aroused and, after checking information held by the local authority, deemed worthy of referral to the police for investigation, the electoral registration officer/(acting) returning officer should report the matter to the police officer acting as the single point of contact (SPOC) in order to assist where possible. The (acting) returning officer, or their appointed representative, will advise the police on procedures that should be undertaken to obtain witness evidence from local authority appointed staff and/or other necessary evidence.

If being told by their own legal team and by the Electoral Commission that the practice they have observed is illegal does not make it “worthy of referral” it is hard to imagine what would. The suspicion is that it was not referred by the Acting Returning Officer to the police to avoid negative publicity.

Posted in postal voting Tagged with: , , , , ,

“No evidence of criminality has been uncovered”

As reported in The Herald, the police investigation into allegations of postal vote tallying, with Police Scotland announcing “After an assessment no evidence of criminality has been uncovered and we do not intend to report anyone in relation to offences under the Act.” Other than making it clear that there will not be prosecutions, it is still unclear whether there was widespread tallying of postal votes in the referendum. As Martin Williams notes in The Herald: “Police Scotland did not respond to questions asking for the rationale of their assessment”.

The announcement seems to have been interpreted as a statement that the police investigation did not find any evidence of postal vote tallying in the referendum. An alternative interpretation is that the Crown Office accepted the Labour Party argument that taking tallies of postal votes was not an offence. However the use of the term “criminality” may be significant. In everyday usage “criminality” is almost synonymous with “crime”, but its narrower meaning has an implication of being related to the state of mind of the person who commits the illegal act, so an act can be criminal, but because of the person’s state of mind there is no criminality. The use of the term avoids the latinate term mens rea, literally “guilty mind”, defined in the Oxford Dictionary of Law as: “The state of mind that the prosecution must prove a defendant to have had at the time of committing a crime in order to secure a conviction”. For the last year the argument has been put forward by those under investigation that it was believed that taking postal vote tallies was not illegal, and if it was argued that it is illegal, then the belief that it was not illegal would mean that there was not mens rea, so there would be “no evidence of criminality”. The obvious counter-argument to this is that the practice in Scotland has been taking place since at least 2007 and no member of any party has ever mentioned it on the record, which seems to imply it takes place with a “guilty mind”. The Millar legal opinion may not have been obtained due to postal voting agents being challenged at an English election, but instead may have been sought to bolster an argument of no mens rea in the face of the Scottish investigation. Without the precedence of previous prosecutions or clarity in the legislation it is still unclear whether the practice of tallying is illegal, and if the practice is illegal, it is unclear how stringent is the requirement in Scots Law to establish mens rea to gain a conviction.

All of this is an arcane debate in electoral law, but the police comment’s ambiguity and their apparent refusal to answer further questions means that after a year-long investigation the public are none the wiser about whether the police found evidence of postal vote tallying.

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A Conspiracy Theory

After almost a year the police investigation into Ruth Davidson’s comments about the taking of tallies in the Scottish referendum has finally concluded and a report has been submitted to the Crown Office. This event seems only to have been covered by The Herald, The National and The Scotsman. Very little about the progress of this investigation has leaked out into the public domain; all three articles reporting on the conclusion of the investigation frame it as being about Ruth Davidson.

James Chalmers, professor at Scotland’s second most prestigious law school, is quoted in the National as saying: “Ruth Davidson was not a ‘person attending the proceedings’ so it seems unlikely she could be accused of any offence. The police report is likely to be concerned only with the person or persons present at the postal votes being opened who passed that information on to her.”

The first part of Chalmers’ statement is correct, but the second part is questionable. The implication of Davidson’s claim that “there are people in the room who have been sampling those ballot boxes, taking tallies, and their reports have been very positive for us” is that there was a coordinated exercise to take tallies and centrally analyse the results. Prosecuting activists who were told to do it, told it was legal and not prevented from doing it openly by counting staff might be iniquitous. However if the practice was coordinated and postal vote agents were asked to take tallies, the people coordinating and asking could potentially be prosecuted for inciting electoral fraud and conspiracy to commit electoral fraud. Two political parties, one in private and the Labour Party in public, have responded to these and related allegations by arguing that the practice is legal. The only people arguing that the law is unclear are people associated with parties potentially being investigated for the offence. At the moment it is unclear whether the police have uncovered sufficient evidence for COPFS to launch prosecutions for either tallying or organising the tallying, but having the headquarters of parties arguing that the practice is legal while the Electoral Commission argues that it is illegal creates a strong public interest in bringing a prosecution to clarify the law.

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Davidson: “I wasn’t in any rooms where that was happening.”

The police investigation into allegations of postal vote sampling in the Referendum has now completed and a report passed to the Crown Office. In an interview for the Sunday Herald, Paul Hutcheon asked Ruth Davidson about the references she made on television alluding to Better Together taking tallies of postal votes.

Davidson is quoted by Hutcheon as saying: “Well, I mean, I wasn’t in any rooms where that was happening. There are people who are mandated to do that. I was never registered with any of the local authorities to be there. I know that other politicians who were… To be honest, by that point, I think that was about half past ten at night, and I had been up for two [or] three straight days and two nights. I probably don’t know what I was saying at that point.”

Again this is a non-denial denial that Better Together were taking tallies of postal votes and sharing them.

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Electoral Commission Input to Law Commissions’ Review of Electoral Law

The Electoral Commission have recently submitted a paper (published on September 10th) on legislative issues that arose in relation to the May 2015 elections to the Law Commissions’ Review of Electoral Law. The first issue listed is the tallying of votes at postal vote opening sessions and at the count. The paper restates the submission that the Commission state was made in March 2015 (but only published on April 7th) by the Electoral Commission to the Law Commissions’ review of electoral law arguing that tallying of postal votes is illegal and should be illegal, but its illegality should be more explicit in legislation.

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Further Information on Electoral Commission Released under FoI

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

Hi Folks

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?

Thanks

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.

Bob

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.

T

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.

Bob

16 January 12:59
Internal Electoral Commission email from Louise Footner, Senior Lawyer to Bob Posner, Director of Party and Election Finance

Bob

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.

Louise

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.

Tom

19 January
Louise Footner, Senior Lawyer, Electoral Commission emailed Gerald Shamash, Labour Party.

Dear Gerald

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

Louise

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.

6 March
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.

12th March
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.

Dear [redacted]
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.
Yours sincerely
Andrew Scallan
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.

25th March
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.

26th March
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.

26 March
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].

Posted in postal voting Tagged with: , ,

Cabinet Office Discussed Postal Vote Tallying with Labour Party in January

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.

Cheers

Mike Creighton
Director
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 ​wrote:

Hi ​Mike

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.

Regards

Paul

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

Hi ​Paul

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.

Best wishes

Mike Creighton
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.”

Posted in postal voting Tagged with: , , , , ,

“The Labour Party (and no doubt others) want to tally as usual”: Electoral Commission in January

The Electoral Commission was passed a copy on January 14th 2015 of the Labour Party’s legal advice arguing that the counting of votes at postal vote openings was legal. This is confirmed in the following internal email from Bob Posner, the Commission’s Director of Party and Election Finance and Legal Counsel. The comment in the email that “The Labour Party (and no doubt others) want to tally as usual implies that the Electoral Commission were aware that the counting of votes at postal vote openings was an established practice. As far as I am aware the Commission did not respond to this advice until the Labour Party brought it up at the Parliamentary Parties Panel in March.

GeraldStramash

Posted in postal voting Tagged with: , , , , , ,

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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Labour Party Argued in December that Postal Vote Counting Was Legal

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.

Advice1

Advice2

Advice3

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.

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