Joint Committee On Human Rights Seventeenth Report

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





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.


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.


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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