Response to the consultation on street vote development orders by the Department for Levelling Up, Housing and Communities

Question 1: Do you agree that to be a member of a qualifying group an individual must be registered at an address in the street area to vote in a local council election on the date the proposal is submitted for examination? If not, please provide details.

Determining who is eligible to be a member of a qualifying group is a matter for the UK Government to decide. We note that, to be a member and submit a proposal, an individual must be registered in the local government register at an address in the ‘street area’ (paragraph 17), thereby making eligibility contingent upon electoral registration rather than solely residence.

Residence has a particular meaning in electoral law and is not equivalent to residence for other purposes, such as income tax or council tax. Using the local government register to determine eligibility means that some residents in the ‘street area’ may be excluded from being a member of a qualifying group (e.g. resident EU citizens who are ineligible to vote in local elections).

Further, eligible voters may be registered to vote at more than one address without having to specify a ‘primary residence’, and for polls other than UK parliamentary elections in England, they may choose to vote at each address, provided they are voting in different areas. The Government should ensure the legislation for SVDO referendums is clear on whether being registered to vote in two different local government registers would disqualify someone from being a member of a qualifying group.

Finally, some eligible residents may have chosen to register as an anonymous elector. Anonymous registration is available to electors whose safety would be at risk if their name or address were listed on the electoral register. The consultation paper does not specify whether an anonymous elector could be a member of a qualifying group. If they can, the Government should ensure that the regulations specify how that process will be managed, given the requirement to protect their identity.

Question 38: Do you agree with our proposals on the examination process? If not, please provide details.

We understand that, where a proposal passes examination, the examiner would instruct the local authority to organise a referendum on the proposal (paragraph 64). However, the paper does not specify whether there is a specific timeframe within which the referendum must be called, following the examiner’s instruction, and whether the local authority would have some discretion in choosing when to schedule the referendum, for example to enable it to take into account other electoral activities.

The Government should ensure that any timeframe it chooses is realistically deliverable by electoral administrators. Existing practice for NPRs, as set out in the Neighbourhood Planning (Referendums) Regulations 2012, may offer a useful example in this regard: Regulation 2A prescribes the date by which a referendum must be held as the date 56 days from the day a local planning authority publishes its decision; a longer period of 84 days is allowed for business referendums. For the referendum period, we would expect there to be a minimum of 28 working days between when voters are notified and when the referendum takes place, in line with existing practice for NPRs.

In the case of combined polls, Regulation 11 of the 2012 Regulations allows for a referendum to be held on the same day as an election (if deemed fit by the Returning or Counting Officer), if that referendum was due to be held within 28 days of another election occurring. To reduce the burden on electoral administrators and enhance simplicity for voters, we would recommend adopting a similar approach to combination of polls for SVDO referendums.

Question 41: Do you agree with our voter eligibility proposals? If not, please provide details. 

Determining the franchise for SVDO referendums is a matter for the UK Government. The paper mentions that both residents and individuals nominated to vote on behalf of non-domestic rate payers in the ‘street area’ would be eligible to vote (paragraphs 66 and 67). However, while the local government register would be used to determine residents’ eligibility, the UK parliamentary register would be used for business owners. The Government should explain clearly why two different registers would be used to determine voter eligibility. The Government should also set out more clearly its rationale for including business voters, given this is not explained in the consultation paper.

Non-domestic rate payers are not included in the electoral register – whether for local government or UK parliamentary elections – given that they are not considered to be residents for the purposes of electoral registration. To ensure the proposal is workable for administrators, the Government should clearly specify, in the draft regulations, how a register for non-domestic rate payers should be compiled, including whether such individuals would have to register to vote themselves or whether the register would be compiled from other data sources without any action being taken by the non-domestic rate payer. In the latter case, the Electoral Registration Officer (ERO) and the officers responsible for running the referendum must be given clear powers to obtain the necessary information.

From an integrity perspective, the paper does not specify whether someone who is a non-domestic rate payer for more than one non-domestic property, would receive a vote for each property, or whether there would be a cap on the number of votes they could cast as a non-domestic rate payer. Further, if an individual is both a resident in a street and a non-domestic rate payer in that area, it is possible that they would be able to vote twice in the referendum (once as a resident and once as a business owner), especially given that two different registers would be used to determine that person’s eligibility. The Government should explain how its proposal to allow individuals nominated on behalf of non-domestic rate payers to vote in a referendum would be consistent with well-established principles in electoral policy and legislation to prevent multiple voting.

Question 42: Do you think any other individuals should be eligible to vote in a referendum? Please provide details if applicable.

There is no mention in the paper of anonymous electors and how their eligibility would be determined and their participation guaranteed in a way which maintains their anonymity. The Government should ensure this is covered in the draft regulations in a way which is consistent with existing practice for elections and referendums.

Question 43: Do you agree that street vote development order referendums should be conducted via postal voting only? If not, please provide details.

While we understand the Government’s argument for proposing that SVDO referendums should be conducted via postal voting only, we have significant concerns about the accessibility, security and workability of this proposal, for both voters and electoral administrators.

From an accessibility perspective, an all-postal referendum would remove choice from voters about how to participate. Our research on the accessibility of elections has highlighted that some people face barriers when voting by post, including understanding the postal voting instructions and how to return their postal vote, especially if such information is not provided in an alternative format (e.g. Braille or audio). This is likely to have a greater effect for some voters, including disabled and blind and partially sighted voters, who may struggle to vote without the assistance of a companion or Presiding Officer (as would be the case at a polling station), or to access the postal voting materials. The Government should carry out an Equality Impact assessment on this proposal and review how accessibility can be guaranteed in an all-postal poll to ensure that everyone who is eligible can participate.

In terms of security, the consultation paper does not explain whether and how postal voters’ identities will be verified to guarantee the same standards of security and integrity as for other polls. Any person currently making an application for a postal vote must provide personal identifiers (date of birth and signature), which are later used to verify their identity when they return their postal vote.

Personal identifier checks on returned postal ballot packs have been an established security feature for all UK elections for almost 20 years. The Government should confirm whether it intends to ensure these checks will be applied for postal votes at SVDO referendums; we strongly recommend that security standards should not be lowered for these polls by removing these checks. 

If personal identifier checks on returned postal ballot packs were to be required at an all-postal SVDO referendum, there would still be significant workability and resource implications for EROs and the officers responsible for running referendums. In order to check and verify the personal identifiers on returned postal ballot packs, electoral administrators will need to have access to the personal identifiers for all eligible electors. At the May 2023 local elections in England, only 19% of electors had applied to vote by post, which means that EROs are unlikely to hold the necessary personal identifiers for more than 80% of the eligible electorate for an all-postal SVDO referendum. 

Maintaining established security checks for an all-postal SVDO referendum would therefore require EROs to collect personal identifiers from all eligible electors in advance of the poll. There would need to be a clear legislative process and powers for EROs to do this, which will take time to implement and is likely to increase the administrative burden. 

Finally, the Government should confirm whether the new online absent vote application and postal vote handling requirements introduced by the Elections Act will also apply to SVDO referendums, as they already do for NPRs and BIDs.

Question 44: Do you agree with our proposed referendum question? If not, please provide details.

Any referendum question should be intelligible to voters and avoid confusion – it should be easy to understand, to the point, and unambiguous. It should present the options clearly, simply, and neutrally, and it should avoid encouraging voters to consider one response more favourably than another or misleading voters. 

The Government should assess the proposed referendum question to ensure it is intelligible. We have published guidelines for assessing referendum questions, which the Government may usefully take into account. This process could include commissioning user research to examine the wording of the proposed question. 

Beyond the wording of the referendum question, the Government should consider how information will be made available to voters in relation to SVDO referendums. Existing practice for NPRs may be useful in this regard: Regulation 4 of the Neighbourhood Planning (Referendums) Regulations 2012 specifies what information must be made available in relation to NPRs. This includes the date when the referendum will be held and how to take part; the question to be asked; who is entitled to vote; what the expense limits are; and draft documents relating to the proposal to be voted on.

Question 45: Do you agree with the proposed approval thresholds? If not, please provide details.

Question 46: Do you have any views on whether the 2nd threshold should be applied at the relevant local authority’s discretion? If yes, please provide details.

The Government should explain why it is proposing to deviate from existing practice at similar hyper-local polls (e.g. NPRs or BIDs) by requiring a super-majority of eligible electors (60%) and a second household threshold for a proposal to be approved at a referendum. For example, other local referendums only require approval by a majority of those who have voted, rather than a higher threshold of all those who were eligible to vote. An inconsistent approach may increase the risk of confusion for voters and complexity for electoral administrators. 

The proposed second threshold (requiring at least one voter in at least half of the voting households in the street area to have voted in favour) would undermine the secrecy of the vote. It would require the local authority or the Counting Officer to identify how individual voters had voted. If campaigners and accredited electoral observers were allowed to attend and observe the count, they would also be able to identify how individual voters had voted. 

Removing the absolute secrecy of the vote may mean that eligible voters could be vulnerable to intimidation or undue influence by, or on behalf of, unscrupulous actors, who may benefit from a particular outcome and may choose to intimidate or influence how people vote in the referendum. 

The Government should also explain why it would consider allowing this threshold to be applied at the discretion of a local authority, and on what basis and how the authority would choose to do so.

Question 53: Do you agree that the referendum should be paper-based and non-digital? If not, please provide details.

We agree that voting in the referendum should be paper-based, in line with current practice for all other statutory public polls in the UK. As highlighted in response to question 43, the Government should consider how it will ensure that everyone who wishes to participate in the SVDO referendum is able to do so. This might include making information about the referendum available in alternative formats, including digitally. 

In relation to registration, the Government should confirm that eligible residential voters would be able to apply to register both online and on paper (given the changes introduced by the Elections Act). The online register to vote service is not currently available to individuals nominated to vote on behalf of non-domestic rate payers, and the Government should consider whether the current online service could be adapted to allow non-domestic rate payers to register to vote and provide personal identifiers required for postal voting.