Response to the Welsh Government White Paper Reforming Local Government: Resilient and Renewed

In the White Paper the Welsh Government said that it will consider a review of postal voting procedures and the use of all-postal elections. The following information is included to provide background and context to help assist Welsh Government in developing its proposals.

Since 2001, in response to concerns about falling participation rates, anyone on the electoral register in Great Britain has been able to apply to vote by post instead of in person at a polling station, without providing a reason or attestation.

Postal voting is an increasingly popular method of participation for electors across Great Britain. For example, at the May 2016 National Assembly for Wales elections, postal votes were issued to approximately 396,000 electors, representing 17.6% of the total electorate. Turnout among postal voters is consistently higher than
people who vote at polling stations: 74% of postal votes in the constituency and regional elections were returned compared to a turnout of 40% among those voting in person at a polling station. Overall, postal votes accounted for 28% of all votes cast at the May 21016 elections in Wales.

At the most recent UK Parliamentary general election in May 2015, postal ballot packs were sent to approximately 7.6 million electors across Great Britain, representing 16% of all registered electors. 85.6% of postal voters returned their postal votes, compared with a turnout of 63% amongst those voting in person at a polling station.

Since 2007 electors who apply to vote by post in Great Britain have been required to provide their date of birth and a sample signature on their application. These personal identifiers must also be provided on the postal voting statement returned with the completed postal ballot paper, and these are then compared with
the identifiers held on record, providing a check that the ballot paper has been completed by the elector themselves. These checks mean that, ultimately, Returning Officers (ROs) will not count postal votes where they are not satisfied that the postal voting statement has been completed by the elector it was issued to.

We have suggested opportunities to strengthen postal voting further in our response to Sir Eric Pickles and as part of our response to the Law Commissions’ review of electoral law.

We suggested that the following activities (regardless of who carries them out) should be more clearly defined as offences under electoral law:

• It should be an offence to compel someone to apply to vote by post or appoint a proxy (or to prevent them from doing so) against their will.
• It should be an offence for anyone to alter an elector’s completed absent vote application form.
• It should be an offence for anyone to take an elector’s uncompleted postal ballot pack from them. 
• It should be an offence for anyone to open (except for a lawful purpose e.g. for the Royal Mail to direct the envelope to the correct Returning Officer) or alter the contents of a completed postal ballot pack, including either the ballot paper or the postal voting statement, before it has been received by the Returning Officer.

These offences would apply equally to campaigners and others (including family members, for example) and it would be for the courts to determine the appropriate type and level of punishment, taking into account the specific circumstances of each individual case. We expect that this would mean, for example, that campaigners, agents or candidates would receive more significant penalties including, if appropriate, being barred from standing for election for a period, reflecting the position of responsibility that campaigners hold.

We also support, and will work with the Law Commissions to clarify the definition of the law on undue influence, and to ensure the definition of offences protecting the secrecy of the ballot extend to postal ballot papers.

All-postal voting

Following all-postal voting pilot schemes across four English electoral regions at the 2004 local government and European Parliamentary elections, we noted that turnout had been just over five percentage points higher in those regions with all-postal voting than in regions where postal voting was available on demand in addition to polling stations.

Nevertheless, our research with voters and non-voters in areas where the 2004 pilot schemes were held found strong public support for retaining the ability for people to choose to vote in person at a polling station.

We therefore recommended in 2004 that all-postal voting should not be pursued for use at future UK statutory elections, and this remains our position.

In the White Paper the Welsh Government said that they will consider whether local Returning Officers/Electoral Registration Officers would be allowed to trial the reforms set out in the paper in different ways to better meet the needs of different communities and locations.

Between 2000 and 2007 the UK Government encouraged local authorities in England to undertake pilot schemes to test new methods of voting and voting arrangements at local government elections with a view to adopting them more widely if successful. In Wales, the fact that the local elections in 2004 were held at the same time as the European Parliamentary elections meant that pilots could not take place, although there was an all-postal pilot scheme undertaken in Monmouthshire in 2002.

The Electoral Commission had a statutory role in evaluating every electoral pilot scheme and published evaluation reports on individual pilots. More recently we have evaluated electoral registration pilot schemes and are currently working with the UK Government on its proposals to pilot voter ID in polling stations at the May 2018 local government elections in England.

The Welsh Government should ensure that any pilot schemes are rigorously designed to ensure they are capable of providing robust evidence to support future policy decisions, and we would be happy to work with the Welsh Government on this.

Undertaking electoral pilots is not the only mechanism for developing new policy for elections, and the Welsh Government may wish to consider alternative options.

Electronic voting and counting

The Commission evaluated all of the pilot schemes on electronic voting and counting since 2002, as required under the Representation of the People Act 2000. Our general conclusions were that e-counting has the potential to increase both the efficiency and accuracy of the counting process and that e-voting increased convenience for voters. However, we made a number of recommendations, including that:

• Any future e-voting or e-counting projects needed to be based on more substantial testing of the security, reliability and transparency of proposed solutions, either through an accreditation and certification process, or a more detailed and thorough procurement process.
• Sufficient time must be allowed for the planning of e-voting and e-counting projects.

Currently the London Mayoral, London Assembly and Scottish Council elections are counted electronically. We have made assessments of the use of ecounting at these elections in our most recent election reports: Scotland Elections Report May 2012; The May 2016 Mayor of London and London Assembly elections.

We recommend that in considering the use of e-counting, an assessment should be made of the effectiveness, value for money and risks associated with this approach. 

Holding elections on different days

Holding elections on different days was piloted in the form of advance voting at the May 2007 local elections in England. Our evaluation of these pilots highlighted feedback from elections staff and other local stakeholders, together with evidence from local survey research, which suggested that the majority (74%) of users of advance voting would have voted even without the facility. Turnout across the areas with advance voting pilot schemes was broadly consistent with the last comparable elections in those areas. In addition, repeat piloting of advance voting did not necessarily lead to higher levels of usage, which remained low. We concluded that it was unlikely that the advance voting pilot schemes had anything more than a very limited effect on turnout, although it was likely that it did provide greater convenience for some voters.

The UK Government undertook a consultation on weekend voting in 2008. We are not in principle opposed to weekend voting, although any change should only be made if there is clear evidence that it would be of significant benefit to electors. At present, the evidence on this issue provides an insufficient basis on which to reach a definitive conclusion and we therefore believe that further work is necessary, e.g. to establish the practical implications of any change including the degree to which it could impact differently on people, turnout and resources. Until all these issues have been properly examined and assessed, we recommend that polling day should continue to fall on a weekday.

We recommend that polling day should continue to be held on a weekday until there is evidence that weekend voting would be of significant benefit to electors.

Voting at places other than polling stations

In 2003 Windsor & Maidenhead piloted a scheme to enable voters to vote at a number of different locations including railway stations and supermarkets. We concluded that it was difficult to assess the extent to which those who used the facilities were existing voters or people who would otherwise not have voted. No similar pilots have been conducted in the UK since then and therefore the current evidence base is limited.

Automatic voter registration

In our March 2017 report on the December 2016 electoral registers we restated our position that it is now time to move away from a system which relies on electors taking steps to register themselves, and instead develop automatic or direct enrolment processes which have the potential to deliver more accurate and complete
electoral registers more efficiently than current resource intensive canvass processes.

In our July 2016 report, which contains a number of recommendations to modernise the electoral registration process, we set out our vision of a modern electoral register as one which:

• Uses trusted available public data to keep itself accurate and complete throughout the year without relying solely on action by individuals; and
• Makes it as easy as possible for electors to ensure their own registration record is accurate and complete, particularly ahead of elections and referendums.

The Modernising Electoral Registration Programme within Cabinet Office is taking forward several projects which could contribute towards realising this goal of a modern, efficient registration system. The Commission is committed to supporting them and working with them as appropriate in delivering these projects.

We have also recommended that electors should be able check their registration status at the beginning of the online registration application process which would reduce the action required by voters to keep their register entry up to  date, and would also reduce the impact on EROs of processing duplicate applications. The Modern Electoral Registration programme is currently looking at what might be put in place to address this and we will continue to work with them on this issue.

We would support and encourage the Welsh Government to explore automatic registration. Consideration will need to be given to the challenges and issues involved in making these changes for the local government register without equivalent changes to the parliamentary register.

Data sharing

In our guidance we advise that the following records may help EROs identify new electors:

• Council tax
• Council tax reduction (formerly council tax benefit)
• Housing benefit
• Register of households in multiple occupation (HMOs)
• Records held by the registrars of births, deaths and marriages
• Lists of residential and care homes / shelters / hostels
• Lists of disabled people receiving council assistance
• Land Registry/Registers of Scotland
• Planning and building control
• List of new British citizens held by the registrar

In order to facilitate the registration of certain groups of electors, such as students, we are aware that some EROs in Wales have developed data sharing agreements with universities, for example.

The current Digital Economy Bill, includes provisions which are intended to make it easier for public bodies to share data they hold in order to improve the delivery of public services to citizens. When the Bill receives Royal Assent we will explore further with the Cabinet Office Modernising Electoral Registration Programme what opportunities there are for using these provisions to improve the compilation and maintenance of electoral registers, in particular using appropriately reliable data so that EROs can better identify people who are not accurately registered.

We would support and encourage the Welsh Government to explore options for improved data sharing with EROs, particularly by other government agencies or service providers from whom EROs are not currently entitled to receive data. We would also remind Welsh Government of the responsibility EROs in Wales have to maintain the parliamentary register.

Single electronic register for Wales

In 2005, the UK Government Department for Constitutional Affairs considered the implementation of a single electronic register via the Co-ordinated Online Record of Electors (CORE).

In 2006, legislation was made in the Electoral Administration Act (2006) for one or more Co-ordinated On-line Record of Electors schemes. However, no CORE scheme was, or has since been, established.

We are not aware that a single electronic register is currently being considered by the Cabinet Office as part of their Modern Electoral Registration Programme. We would be prepared to work with Welsh Government on this should it decide to take this forward.

In particular, the Commission’s view is that any changes to the franchise should be clear in sufficient time to enable all those who are newly eligible to vote to take the steps they need to successfully register and participate in the elections.

The Commission would work with the Welsh Government to ensure a smooth transition if the voting age is lowered. We recommend that any work should start a minimum of 6 months before the canvass starts prior to the election it affects. This is vital if there is the intention to ask local authorities to supply data on school children which was the approach adopted in Scotland ahead of the Scottish Independence Referendum. This work would include testing forms for EROs to use, updating our advice and guidance to administrators and producing a public awareness campaign that would be informative to young voters.

In Scotland the voting franchise was extended to 16 and 17 year olds for the local government elections in 2015. In order to encourage registration among this group we worked closely with Scotland’s Councils, Education Scotland and other interested groups. We would be happy to discuss this partnership work with Welsh Government further it this would be helpful.

In November 2016, we provided verbal evidence to the Scottish Parliament Local Government and Communities Committee’s inquiry into the purpose and appropriateness of providing payments or fees to Returning Officers in Scotland in relation to local government, Scottish Parliament, UK Parliament and European Parliament elections, and Counting Officers (COs) in relation to referendums.

We recognised the central role the ROs play in the democratic process and that they are critical to delivering well-run elections and referendums which produce results in which voters can have confidence.

ROs are not employed by councils when they deliver official election or referendum duties. They are independent statutory office-holders and they are accountable to the courts for the delivery of their official duties.

As set out in our evidence to the Scottish Parliament committee, we continue to support the important principle that ROs should be independent from both local and national governments when delivering their statutory electoral administration duties. We believe it is important that electoral administration should be solely in the hands of the RO and their staff, rather than local authorities. This is necessary to ensure that elections are effectively administered and in voters’ best interests, to secure the impartial administration of elections and avoid any perception of bias and to promote public confidence and trust in the process.

We recommend that any changes to the current management framework for the delivery of elections and referendums in Wales, including any changes to the funding of ROs, would need to be considered carefully to ensure that the independence and accountability of those responsible for delivering polls is maintained and not weakened. 

We note that the White Paper refers to the Welsh Government “considering a proposal to require candidates to make clear whether they were or are members of a registered political party, whether they were formally selected to stand for that party or not”.

The paper does not describe where or how candidates would be required to make this clear, but we note that the same section of the White Paper also outlines that “All candidates would also be required to publish election statements to a central website to allow voters easily to access information on the manifestos of all candidates”.

We would be interested to understand more about the context for considering the first proposal noted above, and how it is it envisaged that it could be implemented. In general, we support measures that increase transparency for voters and reduce any potential for confusion about whether a candidate is associated with
a political party or not.

In our report on the 2016 National Assembly for Wales election we restated our view that where a candidate stands for election for a political party, it should be clear to voters, from the ballot paper, which party the candidate represents. The legal provisions for registration of party descriptions present risks of confusion for voters and restrict the participation of political parties.

Local government election ballot papers allow a candidate to use either a registered party name or a registered party description on the ballot paper (subject to authorisation from the party). Under the Political Parties, Elections and Referendums Act 2000, we are required to manage one register of party names, descriptions and  emblems which parties and candidates can use for any type of elections or ballot paper. However, it is possible for a party to register a description which does not make reference to the party’s name, and to use that on a local government ballot paper.

We have therefore explored solutions to this problem and previously recommended that where a candidate represents a political party on an election ballot paper it should be clear to voters which party the candidate represents. In our report on the elections we also recommended that the Welsh Government and other
Governments in the UK should work with the Electoral Commission to reform the provisions on party descriptions.

We would also welcome the opportunity to discuss our longstanding recommendation that where a candidate stands for election for a political party, it should be clear to voters, from the ballot paper, which party the candidate represents.

In January 2015 we published the final report of our review on standing for election. This made a number of recommendations to update the rules around standing for election and make them clearer and fairer.

As part of our consultation, in thinking about more modern communication techniques we asked for views about making greater use of online candidate addresses rather than each elector being sent separate communications from a large number of candidates.

While there was some support for online candidate addresses, concerns were raised that not everyone had access to the internet and there may be reluctance, on the part of some electors, to source candidate information online.

We concluded that we would not be recommending changing the right to a postal mailing to a right to display information online, and that any move to online candidate communications as well as postal mailing should take account of internet use and the likelihood of candidate information being accessed online.

Whilst the Commission does not have a specific view on this question we would urge Welsh Government to consider that any decision relating to this question should place the interest of the voter at the heart of the decision. For example, what is the voters expectation in terms of their elected representatives and can this be achieved by representing voters at a variety of different levels, or does this additional work place the voter at a disadvantage.

Decisions about which voting system should be used for different elections are significant constitutional issues, and are matters for Governments and Parliaments. Our role is to ensure that appropriate administrative planning is undertaken by the relevant Returning Officer and that voters understand the systems used at the range of elections which take place in the UK, and that they can cast their vote in the way they intended.

However, we would note that allowing councils to decide which electoral system to use in their own area could create significant risks and challenges, particularly in relation to voter understanding of how to cast their vote.

As Welsh Government is aware, the Commission is committed to implementing a new consistent approach to the arrangements and management of elections in Wales through the establishment of a Wales Electoral Coordination Board. This proposal, if implemented, as well as having no precedent in any other part of the UK, will mean that national planning would be challenging.

In addition to this, the Commission would need to consider how it supports the election and the resource required for this. For example

• The provision of advice and guidance to Returning Officers and their staff
• The provision of advice to political parties, candidates and agents
• How any national public awareness campaign would be organised ahead of any election.

The question of public awareness around two different electoral systems for one set of elections is likely to be a major challenge and one where there is a very real risk of confusion to electors if this type of change is implemented

Given the various concerns that we have relating to this proposal, we would ask that Welsh Government carefully consider the real risks attached to this proposal before introducing a system that could see two different electoral systems in place for local elections in Wales and the potential impact that could have on voters. 

Given the complex nature of the combined polls in 2016 the Electoral Commission introduced an All Wales Delivery Group to ensure effective planning and consistency on key issues. Other issues also discussed by the Delivery Group included legislation, preparations for the poll, guidance and training and public awareness.

In our report on the National Assembly for Wales elections in May 2016 we recommended that a permanent Wales Delivery Group should continue to meet in order to further improve and streamline planning for future electoral events, and to provide opportunities for discussing key areas of common concern.

This group, now named the Wales Electoral Coordination Board has now been established and has already began its work in ensuring coordinated and consistent planning of the upcoming local government elections to be held across Wales on 4 May 2017.

The Law Commissions of England and Wales, Scotland and Northern Ireland have reviewed electoral law and reported on recommended reforms. The aims of the project are to consolidate the many existing sources of electoral law, and modernise and simplify the law, making it fit for elections in the 21st century. It is now for Governments in the UK to consider and implement the recommended changes to electoral law through primary and secondary legislation.

Making changes to electoral law in Wales could present an opportunity for applicable England and Wales Law Commission electoral law reform recommendations, to be incorporated with a view to local government elections in Wales.