Appendix 2: European Parliamentary and
Local Elections (Pilots) Bill
Letter from the Chair to Mr Christopher Leslie
MP, Parliamentary Under Secretary, Department for Constitutional
Affairs
The Committee is considering whether to report to
each House on the above Bill. It has carried out an initial examination
of this Bill, and has formed the provisional opinion that the
Bill is not likely to be intrinsically incompatible with relevant
human rights obligations. The Committee would, however, be grateful
for your comments on the following points. Our starting-point
is of course the statement made under s.19(1)(a) of the Human
Rights Act 1998; but I should make it clear that the Committees
remit extends to human rights in a broad sense, not just the Convention
rights under the Act.
The Bill would pave the way for the Government to
test, through pilot projects, different manners of conducting
elections. Pilot projects would be undertaken at the election
for the European Parliament in 2004 and at the local elections
due to be held at the same time. In the Explanatory Notes, paragraphs
23-26, the Government correctly accepts that the Bill would engage
the right to the free expression of the electorate's opinion by
a secret ballot under Article 3 of Protocol No. 1 to the ECHR.
The Government recognizes that it would be necessary to ensure
the secrecy, security and accessibility of the ballot, and hopes
that the pilot schemes will generate evidence on which there would
be a report by the Electoral Commission, so that decisions on
the wider use of such systems 'can be proportionate and soundly
based' (paragraph 24). The Explanatory Notes refer to statutory
safeguards, although the only one which is apparent on the face
of the Bill is an offence of personation (clause 6). The Explanatory
Notes also contain a promise of unspecified non-statutory safeguards.
The Committee is mindful of the importance of ensuring
that voters in elections which are used as pilot projects should
suffer no disadvantage, in terms of the secrecy, security and
accessibility of the ballot, as compared with voters who participate
in traditional ways. The Committee is concerned to ensure that
the statutory and non-statutory safeguards for pilot projects
are at least as dependable as those applying to traditional methods
of voting.
In this context, the Committee would be grateful
for your responses to the following questions:
1. What technical or legal safeguards will be put
in place to ensure that the elections are conducted in a way that
will be equally secret, secure and accessible regardless of the
technique by which electors cast their votes, so as to comply
with Article 3 of Protocol No. 1 to the ECHR on its own and in
combination with Article 14 of the ECHR (non-discrimination in
the enjoyment of Convention rights).
2. Why is it thought to be appropriate, and to offer
adequate safeguards for the rights mentioned in question 1, to
have some of the safeguards in a non-statutory form, rather than
to include them in the legislation and give them legal force.
Finally, could you give details of any representations
you have received in connection with this Bill in relation to
human rights issues, and to what specific points those representations
were directed.
5 November 2003
Letter from Mr Christopher Leslie MP, Parliamentary
Under Secretary, Department for Constitutional Affairs, to the
Chair
I am writing further to your letter of 5 November
about the European Parliamentary and Local Elections (Pilots)
EPLE (P)) Bill's compatibility with re1evant Human Rights obligations.
The EPLE((P) Bill is an important Bill because it
will allow a continuation at next year's European and combined
elections, of the Government's successful programme of piloting
innovative electoral processes. Piloting new voting mechanisms
is not done for its own sake. Its purpose is to engage the maximum
number of voters in the sections, and make their participation
more easy and convenient.
At the same time, the Government is very aware of
the concerns of some voters and other stakeholders that the integrity
of the existing ballot should not be breached by the use of new
methods of voting. We are very keen to address these concerns
and have therefore, put on the face of the Bill measures aimed
at increasing security and public confidence. Further measures,
more appropriate for subordinate legislation, will be included
in a subsequent order.
You have raised 3 specific queries in connection
to the Bill. I have addressed these in the attached annex.
To summarise our position, whilst we recognise the
Bill raises important issues under the Convention, particularly
Article 3 of Protocol 1 (right to free elections), the Department
takes the view that the Bill is compatible with the Convention
rights. I have made a statement to this effect on the front of
the Bill.
10 November 2003
Annex
EUROPEAN PARLIAMENTARY AND LOCAL ELECTIONS (PILOTS)
BILL
EUROPEAN CONVENTION ON HUMAN RIGHTS
Summary
I. The Bill raises important issues under the
Convention, particularly Article 3 of Protocol I (right to free
elections); but on balance the Department takes the view that
the Bill is compatible with the Convention rights. The minister
has made a statement under section I9(l)(a) of the Human Rights
Act.
Purpose of Bill
2. The Bill will allow innovative voting methods
to be piloted in the European Parliamentary election scheduled
for June 2004. In some parts of the United Kingdom, local elections
will be combined with the European poll. Where that happens in
a pilot area, the whole of the combined poll will be subject to
the pilot
3. Current law allows piloting at local elections
but not at European (or Westminster) elections.
4. The innovative voting methods likely to be
piloted at the 2004 election are:
(a) allpostal voting, where postal ballot
papers are sent to all registered electors automatically. There
are no traditional polling stations voters return the ballot
paper by post or may deliver the ballot paper by hand to any place
designated for the purpose of the delivery of ballot papers;
(b) e-enabled, an election where voting is possible
by a number of channels where at least one of those channels is
electronic.
Article 3 of Protocol I
5. The main Convention issue raised by the Bill
is under Article 3 of Protocol 1.
Principles
6, The case of Matthews v UK confirms
that the European Parliament is, for the purpose of Article 3,
a part of "the legislature", and that elections to the
European Parliament must comply with Article 3. By contrast, there
is a strong argument that local elections are not covered by Article
3.
7. An argument raised by some commentators and
researchers is that innovative voting methods compromise the secrecy
of the ballot, and obstruct the ability of vulnerable members
of the electorate freely to express their opinion. in particular,
it is suggested that all-postal voting tends to subject the decisions
of some electors to the undue influence of family members, carers,
and canvassers.
8. This is an argument that is likely to be the
subject of litigation, using Article 3 of Protocol 1.
9. The Department recognises that:
(a) the UK is under a positive obligation by
virtue of Article 3 to guarantee the secrecy of the ballot, and
to protect voters from undue influence;
(b) any voting system which reduces the secrecy
of the ballot, or allows voters to be unduly influenced in casting
their vote, will raise an issue under Article 3;
(c) there is some public concern whether the
methods to be piloted in 2004 may indeed increase the ability
of some people to influence others in the casting of votes: that
extent to which this is likely is discussed below.
10. However, the Department regards the following
as important in establishing the compatibility of the Bill:
(a) Article 3 gives the UK freedom to devise
its own voting procedures, provided those procedures do not remove
the essence of the rights guaranteed by Article 3.
(b) The right to a "secret" ballot
does not imply an absolute standard of privacy; a fair balance
must be struck between the degree of protection given to individual
voters, and the general interest of the community.
(c) Innovative voting methods promote greater
turn-out and participation, which are legitimate purposes likely
to be recognised by the courts.
(d) The courts are likely to respect the decision
taken by Parliament on how the balance between individual rights
and wider benefit should be achieved.
(e) One of the purposes of the pilot scheme is
to gather information on the benefits and disadvantages of the
various methods, so that future decisions on how here the balance
should be achieved may be better informed. The courts arc likely
to be particularly cautious about finding incompatibility in these
circumstances.
(f) The Bill, together with existing law and
practice and with provisions intended to be made by subordinate
legislation, will put in place a number of safeguards designed
to protect voting secrecy.
(g) The courts are likely to have regard to the
practice in other European states.
Evidence of effect on secrecy
11. The degree to which the innovative voting
methods proposed for the 2004 election are likely to have an adverse
effect on secrecy and freedom from influence must, at this stage,
be a matter of speculation.
12. In their evaluation of the 2003 pilots, the
Electoral Commission said that the number of complaints about
lack of secrecy had arisen with the wider application of electoral
pilots. There were strong concerns expressed about breaches of
secrecy but the majority of voters were reassured with simple
explanations about the security in place and how this was managed.
13. Many people still removed or defaced barcodes
on ballot papers but it is also clear that these people were unaware
of the existence of serial numbers on ballot papers used in traditional
elections. The Commission concluded that the technology often
had the effect of illuminating practices that were hitherto unnoticed.
14. Some members of the public, as well as candidates
and agents, express concern over the possibility that postal voting
could increase the likelihood of dominant members of a household
coercing others in the house to vote the way they wanted. Scope
(the national disability charity) also points out that remote
voting forces many disabled people to ask for assistance from
family members or enablers; some report they prefer to ask polling
officials.
Evidence of effect on turnout, participation
and access
15. Participation rates in electoral pilots have
been encouraging. The average turnout of approximately 49% for
all-postal pilots was significantly higher than the turnout across
England and as whole, where 34.9% of the electorate voted. The
Electoral Commission's indicative figure of the size of increase
in e-voting is in the region of 05%.
16. The Electoral Commission engaged Scope to
conduct a disability access audit of the 2003 electronic pilot
schemes. Scope's overall assessment was that access to electronic
voting systems would benefit from the use of consistent terminology
across systems, and standardisation of some elements such as the
length of voter identification codes. Authorities should also
keep in mind the access requirements unrelated to the technology,
such as access to the kiosk location and the design and availability
of voter information materials. The majority of disabled people
surveyed by Scope found voting by post easy and often commented
positively that they no longer had to fight their way into inaccessible
polling stations. Postal voting was also easier for some disabled
people (especially those with variable conditions) as they could
take more time with their ballot.
Safeguards
17. It is an offence to exercise undue influence
on a voter to cause him or her to vote or to refrain from voting,
or on account of having voted or not voted (section 115 of the
Representation of the People Act 1983). Bribery offering money
to vote or not to vote or as an inducement to procure the election
of a particular candidate (section 113) and treating - that is,
offering inducements other than money for voting or not voting
(section 114) are also offences. In addition, section 66(3)
of the 1983 Act also makes it an offence for any person 'to interfere
with or attempt to interfere with a voter when recording his
vote' or to induce a voter to show how he has voted to any other
person. Personation, that is pretending to be another voter, living,
dead or fictional is also an offence. All these offences
apply as much to proxy voters as to voters casting their own votes.
18. There is therefore a range of existing offences
in place to protect electors who wish to vote by post from duress.
The Department, however, acknowledges that a voter subject to
undue influence or interference may not be in a position to resist
it, or be aware that such actions are illegal, or have any wish
to take the matter forward. It therefore intends to put in place,
in the legislation enabling the pilots to go forward, measures
which will assist voters to be aware of their rights and give
them the opportunity to exercise them.
19. The Electoral Commission recommended a number
of improvements to aid secrecy of the ballot in remote voting.
Secrecy warnings attached to the literature accompanying postal
voting papers will make it plain both to electors and others that
voting is an important and private matter for an individual voter.
Votes should be cast in secret, even if a voter does not mind
their voting intentions being known. Although a voter may seek
assistance in voting from family members or friends, such assistance
should only be sought and given when it is absolutely necessary,
The warnings will point out that influencing voters, or inducing
them to vote for particular candidates, or interfering with them
whilst they are voting, or inducing them to show their ballot
paper to anyone else, are all offences. Provision of these secrecy
warnings will be required by the detailed Orders made under section
2 of the Bill. Extra publicity aimed at getting these messages
across will also be provided.
20. In addition, in the pilot areas, there will
be some limited provision for electors to attend in person and
cast their votes in a supervised environment. The equivalent of
polling stations will therefore be provided - at least one in
each local authority area to allow electors to take their
ballot papers and mark them (or use the electronic voting equipment)
secretly, but under the protection of an election official. This
choice will give those who fear lack of secrecy at borne the opportunity
to vote more or less in the traditional way.
Article 14: Prohibition of discrimination
21. The Article is only engaged where a person's
treatment comes within the ambit of another Convention right.
Here, Article 14 would be read with Article 3 of Protocol I. The
argument would be that a voter in a pilot region enjoys a lower
guarantee of secrecy and free expression than a voter in a region
where traditional polling methods are used.
22. The Department may wish to argue, were a
case to be brought, that a person's location in a particular region
of the UK is not a "status" for the purpose of Article
14. However, it recognises that the argument may not succeed;
recent case-law suggests that geographical place of residence
does indeed amount to a "status"': see, for example.
R (Carson) v Secretary of State for Work and Pensions,
Court of Appeal, 17 June 2003.
23. The Department would accept. assuming that
an argument on "status" does not succeed, that a voter
in a pilot region and a voter elsewhere are in a comparable position,
so that any difference in treatment between them would need to
be justified.
24. The Department would therefore seek to establish
a reasonable and objective justification for the difference in
treatment.
25. The Department's arguments would be similar
to those raised under Article 3 itself. In particular, the Department
would draw attention to the benefits likely to accrue from the
introduction of innovative voting methods on a pilot basis rather
than nationwide:
(a) turnout may be measured as between. pilot and
nonpilot regions, ensuring a more accurate evidential basis
for deciding whether innovative voting should be introduced more
widely;
(b) introducing innovative voting methods nationwide
before they have been piloted would increase the risk of failure,
which would obstruct the effective administration of the entire
election (and would jeopardise the Article 3 rights of the entire
electorate).
26. Finally, the Department has considered the
compatibility of the provisions introducing different rules of
criminal law and procedure between different electoral, regions.
27. In particular, the lengthening of the time
limit for prosecutions from one year (nationwide, except in the
pilot areas) to two years in exceptional circumstances (in the
pilot areas) may be thought to raise an issue under Article 6
(right to a trial within a reasonable time), read with Article
14. The Department has concluded that time spent investigating
an offence, before a charge is brought, does not engage this guarantee
in Article 6; the right is therefore unlikely to be engaged.
28. The fact that an offence of personation is
arrestable without warrant in one part of the country, but not
in another, may raise an issue under Article 5 (right to liberty)
read with Article 14; but the difference in treatment between
those in pilot regions and those elsewhere is relatively small:
all offences are arrestable with a warrant; and the fact that
an offence is arrestable does not remove the requirement for a
person to be brought promptly before a court. The Department therefore
regards the need for stronger antiabuse measures to attend
the innovative voting methods as providing adequate justification
for the difference in treatment.
Department for Constitutional Affairs
28 August 2003
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