The Elections Bill introduces new provisions for and amends existing electoral law with the aim of making UK elections more secure, modern, inclusive and transparent.
Aim and components of the Bill
The Elections Bill introduces new provisions for and amends existing electoral law with the aim of making UK elections more secure, modern, inclusive and transparent. The Bill meets some of the Government’s 2019 manifesto commitments to “protect the integrity of the UK’s democracy, by introducing identification to vote at polling stations, stopping postal vote harvesting and measures to prevent any foreign interference in elections” and to “make it easier for British expats to vote in Parliamentary elections, and get rid of the arbitrary 15-year limit on their voting rights”.
The Bill is in seven parts:
- Part 1 – Administration and conduct of elections (Voter ID, postal and proxy voting, undue influence, assistance with voting for disabled people, NI elections)
- Part 2 – Overseas electors and EU citizens (extension of the franchise for overseas citizens and voting and candidacy rights of EU citizens)
- Part 3 – The Electoral Commission (the Commission and Criminal Proceedings)
- Part 4 – Regulation of expenditure (notional expenditure of candidates and others, registration of parties etc., controlled expenditure etc.)
- Part 5 – Disqualification of offenders for holding elected office etc. (intimidation offence)
- Part 6 – Information to be included with electronic materials (definitions of electronic materials and requirements for digital imprints)
- Part 7 – General (commencement)
The full Bill is available online, as are the Explanatory Notes. For the purposes of the LGA, the main parts of consequence are parts 1, 2, 5 and 6, which are discussed in more detail below. Implications of the Bill for councils are set out in the final section of the brief.
Part 1 – Administration and conduct of elections
The Bill introduces the requirement for photographic ID for UK Parliamentary elections and clarifies that the requirement for photographic ID for local elections would need to be brought in through secondary legislation.
Voters will have the right to a free voter identification card from the Registration Officer of the relevant local authority. Regulations will be made to determine how the ‘Voter Card’ will be applied for and how the Registration Officer will determine whether to accept or refuse the application. The Voter Card will include as a minimum the name and photograph of the voter or unique ID no. and photograph for anonymous voters. A person will have committed an offence if they provide false information in an application for a Voter Card. Other forms of ID relevant to English voters are listed in Schedule 1 in the Bill and must be accepted regardless of the expiry date (Appendix A).
Part one amends polling station protocols to accommodate the introduction of the ID voter, including:
- Clarification that a Presiding Officer can refuse a ballot if they have reasonable suspicion that there is personation or that the identification document is forged and the introduction of new statutory questions: ‘What is your name?’ and ‘What is your address?’
- The requirement for Presiding Officers to keep a ballot paper refusal list which must be sealed in a packet and passed to the Registration Officer at the end of the poll and provide a private place for ID to be viewed.
The Secretary of State is obliged to prepare and publish reports on the effect of voter identification requirements on electors applying for ballot papers after the first two parliamentary elections and after the first full (non-byelection) local elections if the ID provision is applied to local elections.
Assistance with voting for disabled people
The Bill updates and extends the definition of a companion for a disabled voter to any person over 18.
Polling stations will no longer be required to have tactile voting devices for voters with sight loss. Instead, Returning Officer must provide such equipment as is reasonable to provide to enable or make it easier for disabled voters. Here disability is not limited to visual impairment.
The Bill limits the period for which someone can apply by post for parliamentary or local elections to a maximum of three years. The three years will run to the third 31 January for UK electors and 1 November for overseas electors to allow electors time to reapply ahead of May elections. A proxy voter wishing to vote by post is also restricted to three years. However, electors may also apply for a shorter period of time.
Handling postal votes
The Bill makes it a criminal offence for political campaigners to handle postal voting documents. For this context, political campaigners include candidates, election agents, party workers or a person employed or engaged to carry out an activity design to promote a particular outcome at an election. In addition, a person is guilty of a corrupt practice if they commit this offence or aid, abet, counsel or procure the commission of this offence.
A person is exempt if they handle a postal voting document as part of an official role, i.e. someone assisting in the election, a postal worker. They are also not committing an offence if the voter is a close relative or someone they provide regular care for.
The Bill also introduces the power to introduce regulations to limit the number of postal votes an individual can hand into a Returning Officer or Polling Station.
The Bill restricts the number of electors an individual can act as a proxy for to four. Out of those four, a minimum of two of the electors must be overseas or service electors. It will be an offence for a person to apply to appoint a proxy knowing they are already proxy for four or more others. It will also be an offence if a person votes as a proxy outside of these limits.
Extension of secrecy provisions
The Bill extends the secrecy provisions which currently apply to voting in the ballot box to postal and proxy votes, except between the voter and the proxy or a disabled voter and their companion for the purpose of voting.
Clarification of undue influence offence
The Bill clarifies the corrupt practice offence of undue influence. A person must carry out an activity listed to induce or compel an elector or a proxy to vote in a particular way or not to vote at all or impede their franchise more generally. The intent is key to the offence, even if the attempt is unsuccessful. The list of activities that may constitute undue influence is in Appendix B.
The offence can be carried out directly or indirectly. A person convicted of the corrupt practice of undue influence by the election court is disqualified for election to elected offices (MP, local authority, elected mayor, combined authority, London Mayor, London Assembly, PCC).
Part 2 – Overseas electors and EU citizens
The Bill extends the franchise for UK Parliamentary Elections as long as they remain both a British citizen and not otherwise ineligible to vote (certain convictions) indefinitely. In addition, they must qualify for a vote with respect to a specific constituency – they must satisfy a residency or registration condition.
Voting and candidacy rights of EU citizens
The Bill amends the rights of EU citizens to vote and stand in local elections if they are a ‘qualifying EU citizen or an EU citizen with retained rights’. This applies to all local government elections, including parish, London Mayoral, London Assembly, local authority mayoral, combined authority mayoral, PPC, and local government referendums and parish polls.
Qualifying citizen is defined as where the UK has entered into a treaty with the citizens home state, which includes eligibility to vote and stand for election. Retained rights are those living in the UK before January 2021 who hold lawful immigration status, i.e. settled or pre-settled status or other forms of leave to enter or remain.
Part 5 – Disqualification of offenders – intimidation offences
The Bill introduces a new electoral sanction to convictions where the offence is aggravated by hostility towards a person of political status (candidate, future candidate, campaigner, elected member). On conviction by a criminal court of an offence listed in Schedule 8, the court must make a disqualification order alongside any criminal sanctions. Courts may choose not to apply the disqualification order if they think it would be unjust due to the case's particular circumstances, but they must declare their reasons in open court.
For this purpose, the offence applies if a person demonstrates hostility towards the victim because they are, or the offender presumes them to be, a candidate, campaigner or elected officeholder. The hostility can apply against a person who is not a candidate if the hostility is motivated by their association with a candidate.
The sanction is that the offender is disqualified from being nominated, being elected or holding elected office for five years starting from the date the order is made. If an offender is in elected office, they will vacate their role three months after the disqualification order is made or sooner if they have failed at appeal during that period. If they are successful at appeal during that period, they will not need to vacate. If they are successful after vacating their seat, they cannot then retake it except through election. The officeholder is suspended from performing any function of their office from the day the order is made.
Campaigners are defined as a registered party, a candidate, a permitted participant in relation to a referendum, a recognised third party, a person involved in the conduct or management of a local referendum campaign, an accredited campaigner in relation to a recall petition, and campaigners engaged without remuneration.
Future candidates are defined as individuals whose intention to stand as candidates at the next scheduled election has been declared but whose formal candidacy has not yet officially begun.
Part 6 – Electronic campaigning material
The Bill introduces the requirements for imprints on electronic material which is legible or audible or directly accessibly (where not included in the material itself) where the materials can reasonably be regarded as intended to achieve the purpose of influencing the public or a section of the public to give support to, or withhold support from, a registered party, a candidate or future candidate, elected officeholder or referendum etc.
These requirement applied to all paid for material which falls within the scope of the regime as outlined below:
- The material must be intended to influence the public or a section of the public to support, withhold support from, a registered party, a candidate or future candidate (as defined in Part 5), elected officeholder or referendum etc.
- The promoter or the person on behalf of whom the material is published is a registered party, recognised third party, a candidate or future candidate, an elected officeholder, a referendum campaigner or a recall petition campaigner.
Other unpaid for electronic material may also be in scope if it is focused on a particular election or referendum and fits into more narrow criteria that it is produced for the purpose of:
- Promoting or procuring electoral success at a particular election in relation to registered parties or categories of candidates, the election of candidates or future candidates at an election, or the success or failure of a recall petition
- Prejudicing the electoral prospect of other parties, candidates, future candidates at that particular election or referendum.
The imprint must include the name and address of the promoter of the material or any person on behalf of whom the material is being published who is not the promoter.
Exceptions to the requirement include:
- Republishing where the original imprint will be retained. However, if the material is altered, it may require a new imprint
- Material published for journalistic purposes on a website or mobile app, unless the material consists of advertisement
- Party political broadcasts or referendum broadcasts which have their own relevant regulations.
Failure to provide an appropriate imprint is a criminal offence. Candidates and their agents would be guilt of an illegal practice rather than an offence under this legislation.
A court may issue a notice to take down the material or disable access to it by the publisher, i.e. online platforms. It is a criminal offence to fail to comply with the notice without reasonable excuse.
The Electoral Commission can impose civil sanctions with the ability to refer cases to the police if necessary. However, the Commission's powers are limited to offences related to political parties and referendums; the police and courts enforce all other offences. The Commission and police may also require information from relevant persons to assess whether the regime has been contravened and to make contact with the promoter.
The Commission will be required to produce statutory guidance with details on the operation and enforcement of the regime. Authorities will have to have regard to guidance.
Implications for councils and local democracy
Changes to registration and electoral processes: Capacity and resilience implications
Individually each new provision is technically achievable. However, the Association of Electoral Administrators has highlighted the cumulative impact of these changes to an already fragile system will create capacity and resilience issues.
Due to the increasing complexity of registration and election processes over the last 20 years, electoral services teams already work incredibly hard in the run-up to local elections with significant amounts of overtime and weekend working.
For the extraordinary elections of May 2021, many councils used the ‘one council’ approach, meaning they drew capacity from across the council to run local elections, with elections staff acting as experts on the process. However, this may not be sustainable in the long term and fails to account for the added complexity created by the new provisions, which will require specialist knowledge to navigate.
Registration costs relating to all-year-round registrations and postal and proxy are entirely the responsibility of registering authorities. Therefore, they cannot be recouped from the relevant authority as with election costs. This is the case for all election types, including unplanned snap General Elections.
Some of the provisions put additional responsibility and duties on polling staff. Councils already find it difficult to recruit polling staff given the low pay and long days required. During the most recent elections, the Cabinet Office agreed that premium payments could be offered where necessary to encourage more people to volunteer. If this kind of premium is required to encourage people to volunteer as polling staff, the costs of delivering elections may dramatically increase the cost of staffing.
Polling staff will also be more involved in enforcing new rules associated with Voter ID, including refusing a ballot and referring a person to the Presiding Officer. Dealing with unhappy members of the public and enforcing the rules requires an entirely different skill set and a willingness to deal with difficult situations, often without any enforcement presence from police at polling stations to assist. This may also make it more challenging to recruit and retain polling staff.
A key aspect of the legislation is the timing of implementation. Electoral administrators have said they would be very concerned if all these provisions were applied first to a general election year. This is because the turnout for general elections is substantially higher at about 65 per cent compared to 35 per cent for local elections. So there is more risk associated with implementing these new provisions in a general election year.
Changes to registration and electoral processes: Financial implications
Significant financial implications were identified as part of the Explanatory Notes for the Bill. These costs related to implementing new provisions on voter identification, postal and proxy voting, and assistance for disabled voters, including training, administration of Voter Cards applications, Voter Cards' production, and enabling Returning Officers to comply with new responsibilities around the accessibility of voting. The registration of overseas electors and changes to EU voting and candidacy rights were also identified as an additional cost.
Government has previously confirmed that the costs of the Voter ID scheme will be centrally funded.
The Cabinet Office’s financial assessment of the Bill predicts annual costs of £8.5 million per annual to cover additional costs of larger poll cards with envelopes, the Voter Card scheme and costs of extending the franchise to Overseas voters.
Changes that add complexity and additional duties to Returning Officers and the election teams under them will put additional strain on finite election resources in councils. As a result, additional funding and other mitigations may be required to build capacity, maintain the capability of staff in the registration and elections system, and ensure the resilience of electoral processes. AEA has recently highlighted these issues in their reports, the 2021 Post-Poll Review and a Blueprint for the future of electoral landscape.
It is essential that any additional burdens associated with the introduction of new registration and electoral processes are centrally funded on an ongoing basis.
The new electoral sanction for intimidation
The Association of Electoral Administration lobbied for Returning Officers and electoral staff to be protected alongside candidates, campaigners and elected members in the new offence for intimidation. Officers are a vital part of the electoral system without which elections could not occur. Without the protection of the new electoral sanction, they remain vulnerable to intimidation due to their role in running elections.
The LGA has previously called for a new offence for intimidating elected members and candidates as part of the Civility in Public Life programme, which aims to protect the integrity of local democracy and debate. However, it should go further to protect officers who are integral to the running of elections.
Equality Impact Assessment of the new provisions
The Cabinet Office Equality Impact assessment for the Bill is available online. It is noted in the assessment that a recently commissioned found that 98 per cent of respondents had some form of acceptable photographic identification.
Some groups were marginally less likely to have acceptable ID, including 50-69-year-olds, mixed/multiple ethnic groups, Asian/Asian British groups, Black/African/Caribbean/Black British groups, and other disabled people. Research elsewhere suggests that White Gypsy or Irish Travellers are more likely not to have acceptable ID. Disabled people who responded to the survey, particularly those with severe disabilities, felt that the ID requirement would make it difficult or very difficult to vote.
General and targeted communications campaigns were suggested as mitigations for the majority of these issues. In addition, the requirement to provide a private viewing area for voters who use face covering is also included as a mitigation in the legislation.
Implications of digital imprints
The LGA has previously called for digital imprints as part of our Civility in Public Life programme. Mis- and dis-information can have a devastating effect on the integrity of local democracy. Outside of the election period, councils can be affected by deliberate misinformation campaigns. Digital imprints may help prevent the production and spread of misinformation during the election period and throughout the year.
Other related potential policy changes – Dissolution and Calling for Parliament Bill
The Dissolution and Calling for Parliament Bill, which makes provisions including the repeal of the Fixed-term Parliaments Act 2011, was debated on 6 July. Within the debate, MP Craig Whittaker suggested that the electoral timetable that was lengthened from 17 days to 25 days by the Electoral Registration and Administration Act 2013 should be shortened to reduce the amount of time between the dissolution of parliament and the new parliament.
This would have significant implications for the administration of elections, and stakeholders like AEA believe that the electoral timetable should be lengthened to 30 days and strongly oppose the reversion to a 17 day given the complexity of electoral processes.
The Electoral Commission has summarised and commented on the key aspects of the Bill, their analysis is available on their website.
The Association of Electoral Administrators have recently published two reports. The first is a Review of May 2021 poll and includes specific recommendations around holding elections during crises and long-standing resilience issues within the sector. The second is a Blueprint for a Modern Electoral Landscape and calls for a comprehensive review of each stage of the election process and a single Electoral Administration Act to consolidate legislation and modernise core stages of the electoral processes.
Appendix A – Acceptable photographic ID
- A UK passport or passport issued by an EEA state or Commonwealth country
- A driving licence including those issued for the Channel Islands, the Isle of Ma or an EEA state
- A biometric immigration document
- An identity card bearing the Proof of Age Standards Scheme hologram (PASS card)
- A Ministry of Defence Form 90 (Defence ID card)
- A concessionary travel pass funded by the UK Government, an Oyster 60+ card or Freedom PasA national identity card issued by an EEA state.
Appendix B – Offences of undue influence
- Using (or threatening to use) physical violence, including restraint or abduction
- Damaging or destroying (or threatening to) property
- Damaging or threatening to damage a person’s reputation, i.e. by disseminating information about a person
- Causing (or threatening) financial or economic loss, i.e. by boycotting a business
- Causing spiritual injury or by placing undue spiritual pressure on a person
- Often people in a position of spiritual or religious authority. Spiritual injury includes excluding a person from membership of an organised belief system or banning from attending a place of worship.
- Pressure includes the suggestion that voting a particular way is a duty or obligation arising from the spiritual or religious beliefs, improve or reduces a person's spiritual wellbeing, has specific spiritual consequences, positive or negative, has other consequences of a spiritual nature, i.e. exclusion.
- It does not include legitimate aspects of the enjoyment of freedoms of thought, belief or expression, i.e. leaders expressing their own opinion or where not voting is established doctrine.
- Doing any other act designed to intimidate a person
- Deceiving a person in relation to the conduct or administration of an electoral event
- It is for the courts to be satisfied as to whether an activity amounts to intimidation