UK government publishes update on new rules for May local elections

The UK Government has published plans for how they are seeking to make sure that local elections in England can go ahead as planned on 6th May. This will be a massive set of elections as by-elections have been cancelled since the start of the pandemic and last year’s local polls were also postponed. Elections in Scotland and Wales are also due, but these are devolved matters for the parliaments of those countries.

The guidance issued by Chloe Smith today largely seems to get things right, although there are a couple of decisions still to be taken and they are important ones.

The biggest positive is that this guidance has been issued now and not delayed further. The government is determined to go ahead with the elections and has set out how they intend to make that happen.

Councils have been given extra money to cope with problems due to Covid, such as having to find alternative venues or hire extra staff. The government is determined that venues used as vaccination centres should not be used and schools should be avoided wherever possible – especially if it would mean closing the whole school for a day. They have also mentioned the problems of small venues where social distancing isn’t possible and the ventilation aspect has also be recognised. What is not referred to is extra training both for new staff and for existing staff to cope with changes to the usual practices. Of course, local authorities will have to work out whether £92m is enough to cope with the additional burdens and I suspect many new venues will be needed.

As for voters, they are being told that they should wear masks unless exempt, but we will have to wait to find out whether refusal to wear a mask without an exemption is sufficient grounds for staff to refuse to allow a person to vote. That is important as staff have to feel safe in their work.

Voters are encouraged to bring their own pen or pencil to vote, although it is assumed that there will be a stock of pens to be used if they forget. Social distancing and regular cleaning will also be in operation, but all election day related activities will be considered essential travel.

Voters are being told to apply for postal votes if they feel at all unsure about voting in person, although the paper makes the case that if a person feels confident to visit a supermarket then they should have confidence in going to vote. Local authorities are being encouraged to contact clinically extremely vulnerable people to offer them postal or proxy votes. However the government has (rightly in my view) come down against all-postal polls due to the risk of fraud and increased costs.

The option of proxy voting is also heavily promoted and the rules are being changed so that people can apply for an emergency proxy vote up until 5pm on election day if they have tested positive or are isolating. However, the usual need for an attestation (ie a doctor to confirm illness) has been removed and so this essentially becomes an ‘on demand’ provision.

One area which is not yet clear is the nominations process. Secondary legislation and subsequent guidance is going to be issued within the next two weeks.

The major weakness in the paper has to do with the political campaign. Parties are being told that they can use many campaigning methods which do not involve social contact – online and telephone campaigning and the use of postal or paid-for delivery. The government says they have increased expenses limits to cover this. However, these methods – particularly paid-for delivery – are expensive and may have the effect of limiting the chances of less well off parties and independent candidates. Recognising this, the government says it will consider whether volunteer leaflet delivery and other activities including canvassing will be allowed for the period of the regulated campaign – ie the four weeks or so immediately before polling day. Clearly that is likely to depend on the pandemic situation at the time. That is not ideal and I hope that the government consider relaxing the restrictions as early as possible in this regard, but the implication does appear to be that for the campaign period at least there will be additional campaigning possibilities.

How can the UK organise elections during Covid-19?

The UK is due to hold one of its most complex set of elections in May but there are significant questions about whether they should be held during the current phase of the Covid-19 pandemic and, if so, how to make them safe. The lessons from other countries have been mixed. Where elections have been held, there have been significant changes to normal practices as well as huge costs and lead-in times.

The US-based election support group IFES has been closely monitoring elections during the pandemic and the general picture has been that whilst the majority of elections were postponed during the first part of 2020, more and more have been held on schedule since then.

The UK was one of those countries to postpone the regular local elections due in May 2020. And since that time by-elections have also been delayed except in Scotland where a number were held in late 2020. This has led to a large number of councillors and other elected officials – including the Mayor of London – serving past their time. It is proposed that all the delayed polls would be held in May 2021 alongside all those due at that time. This would mean elections for the Scottish Parliament, Welsh Senedd, Mayor and Assembly in London, county councils, many district councils, and Police and Crime Commissioners, as well as a myriad of other polls and the delayed by-elections all being held on the same date. 

But with the UK undergoing a significant third wave of pandemic infections, the question of whether these should go ahead has been raised. And whilst vaccinations are going well, the question is whether enough will have received the job to ensure the safety of the elections.

So just how practical is it to try to hold elections in a pandemic? IFES brought together election officials from four countries which have held national votes in recent months to learn what they did. These countries were Georgia, Moldova, Romania and Ukraine. None are exactly analogous to the UK in their electoral systems, but their experiences are still valuable.

First and foremost, this seminar was looking at the polling day experience. The process leading to election day started with much more training for poll workers. As with these countries, the experience factor in the UK is significant. The same group of staff is drawn on for election after election. And where new people are involved, they are generally slotted in with experienced staff. But where a whole new set of skills and procedures are needed, everyone needs training. Meaning lots more zoom seminars organised either by the Electoral Commission or by local authorities. That is a massive burden and requires poll workers to be identified with enough time to receive the training. Experience of elections around the world shows that simply relying on common sense or a written briefing leads to very varied results.

The countries all confirmed that they needed far more poll workers than would normally be the case. Partly this was due to people unwilling to risk themselves in an environment they did not feel was safe. Others came down with Covid-19 or had to self-isolate after contact with someone with the illness and so had to be replaced, up to the last minute. One solution – combining or eliminating individual polling stations – was carried out in the USA, but must be done in advance so that voters know where to go.

As well as training officials, the voters also needed to know what to expect. From social distancing to mask requirements, the rules have to be clear in advance if there are not to be arguments in polling stations. In the case of masks, one can imagine that this would be a make or break factor for some voters and for some staff – so the government has to be absolutely clear about the rules from the off and the decision widely advertised. It cannot rely on ‘common sense’ as this means different things to different people. Poll staff who feel unsafe thanks to people breaking the rules may decide to walk off the job rather than sacrifice their health. 

In both Moldova and Ukraine there were temperature checks at the entrance to polling stations. Anyone with an above average reading or who was displaying any signs of a respiratory infection was refused entry and told to request to vote from home – in the UK context an emergency proxy vote is available, but only until mid-afternoon. Ukraine tried to have special polling booths which would only be used by those displaying Covid-19 signs, but this did nothing to shield poll staff and they ended up being used by all voters at busy times.

Polling equipment needs to be kept sanitary and so should be disinfected between each voter. Together with the need for social distancing, this will also inject a delay. And voters must either be asked to bring their own pen or pencil or be given a fresh one, with some way of making sure that they are either carried home or sanitised each time. Moldova insisted that polling places were large enough and well ventilated, factors which would require an audit of all polling stations and new venues being found to replace any which failed to pass muster. Such an audit needs to be undertaken well in advance of election day.

Georgia required many poll workers to either isolate for 14 days before election day or to have a PCR test. Ukraine demanded a PCR test three days before election day. Isolation is an onerous burden in a situation where suitable people are already thin on the ground and staff would probably need to be compensated for this, adding huge extra costs. And whilst the availability of tests in the UK is pretty good, organising one for every potential poll worker would also be a big undertaking.

As with any additional burdens, adherence can be hit and miss. Ukraine reported that compliance with the new rules fell as the day wore on. So any additional burdens need to be clear and manageable with plenty of support offered to staff.

The pressure on election administrators is only part of the problem. The leading election observation group OSCE/ODIHR made it clear when the government of Poland sought to restrict parties’ rights during the general election in that country that the political campaign is as much a part of the election as the voting process. Of course, different countries have different norms when it comes to the campaigns. In the case of those represented at the IFES seminar, none really have the British system of delivering leaflets or knocking on doors, relying much more on TV broadcasts, social media and public rallies. The UK has these methods too, of course. But the ability to canvass and to deliver leaflets using volunteers is key to the UK system and, as the government has recently made clear, is not allowed under the current regulations. As the elections coming up – especially in England – are largely local ones, restricting the campaign to the media and to paid-for deliveries is likely to favour incumbents, the bigger parties and those with more money. At the bare minimum it would seem necessary to offer each candidate a Freepost delivered by Royal Mail in the same way that candidates in a general election are.

As we have seen in the UK, parties have been quick to blame each other for perceived rules breaches. That was also the experience in Georgia where campaigning, even following the rules, was blamed for a spike in cases. Like it or not, there will be references to the police and so having clearly understood rules will be key.

There are other technical aspects of the system in the UK which need addressing too. Candidates need to be nominated for election – typically by ten electors who sign a nomination form. Romania developed an online nomination process and such a system could be copied but needs to be developed fast. In elections where financial deposits are needed, how will these be paid? And the ability to oversee the count is important in the transparency of the election process. How will candidates and their representatives, as well as the media, be able to see fair play?

In summary, the lesson from the IFES seminar is that elections can be organised in Covid-19 conditions, but they require a lot of extra planning. As well as auditing premises and recruiting and training many extra polling staff, there will need to be decisions made on things such as nominating processes, temperature checks, mask requirements and testing or isolation of poll workers, and massive advertising to explain the rules to voters. These same adverts need to make clear how those who either have Covid-19 or are isolating for another reason can vote, including the ability to apply for an emergency vote on election day itself. But the UK context throws additional questions about how fair the election will be for candidates if they cannot campaign freely.

The government has options, of course. But changing to an all-postal vote is not one of them. The last time this was tried, there were many instances of fraud as voting papers were hoovered up by unscrupulous people in houses of multiple occupation, student halls and even in family homes. The rules have changed significantly since then to require postal voters to give their signature and date of birth to election administrators and these are thoroughly checked before a vote is counted. The postal voting system is generally considered to be safe as a result. But it is simply not possible to gather and process these personal identifiers in time for an all-postal ballot in May. Individuals can and should be encouraged to sign up for postal votes using the improved system, but this will only go so far. (IFES has produced a guide to the particular needs of postal voting during the pandemic.)

The only viable alternative to instituting all the measures outlined above and copying the lessons learned from Eastern Europe would appear to be a delay in voting until a time when it is felt circumstances will be safer, probably in the summer or autumn. That is clearly a political, as well as a logistical, decision. But whatever happens, voters, candidates and election administrators need answers sooner rather than later.

Electoral Reform Society reveals the scale of secretive online campaigning in the UK

The Electoral Reform Society has published a report looking at the amount of dark campaigning that took place during the UK’s general election of 2019. They have also come up with a number of proposals for reform.

In the report, Dr Katharine Dommett and Dr Sam Power have looked at five aspects of online campaigning:

  • Campaigning by the parties themselves
  • Campaigning by third party groups (outriders)
  • Online Targeting
  • Data Use
  • Misinformation

Some of these might seem pretty familiar by now. Parties have every right to use Facebook and other platforms and these offer exceptional ability to micro-target. The problem is that there is a fine line between legitimate campaigning and breaking the rules. And as the Cambridge Analytica scandal showed, there are groups who are prepared to go well beyond the law in order to help their side win.

Perhaps the least known aspect covered by this report is the section on ‘outriders’. These are groups that set up just before an election, raise and spend money during it, and then disappear. It often takes many months to show that perhaps these groups were not as independent as they might seem.

The report looks at one group called ‘3rd Party Limited’. This group appears to have taken out adverts which had the effect of boosting the chances of Dominic Raab being re-elected in the Esher and Walton constituency. The ERS report suggests that it placed adverts which first aimed to split the opposition vote between Labour and Greens and then promoted votes for Raab himself, spending £8,837 on Facebook adverts between 21st November and 13th December 2019. To put it into context, that is just over half the amount that Mr Raab was allowed to spend in total on his election campaign.

The difference between non-party groups, which mostly operate on a national basis, and outriders which aim to get around spending limits on local campaigns, might be clear in theory, but in legal terms is anything but. To be clear, there is no suggestion that there was co-ordination between Mr Raab and ‘3rd Party limited’ or any wrongdoing. However, the law as it stands does allow these outriders to make a mockery of local spending limits.

The ERS report makes ten recommendations for the future which, in my opinion, are strong and the very least that can be done to update the UK’s election law. They go far beyond the limited (but welcome) proposal by the government to add imprint requirements to online adverts.

  1. Require campaigners to provide the Electoral Commission with more detailed, meaningful and accessible invoices of what they have spent, boosting scrutiny and transparency over online vs offline spend. 
  2. Strengthen the powers of the Electoral Commission to investigate malpractice and create a stronger deterrent against wrongdoing by increasing the maximum fine it can levy. 
  3. Implement shorter reporting deadlines so that financial information from campaigns on their donations and spending is available to voters and the Commission more quickly after a campaign, or indeed, in ‘real time’. Currently, voters have to wait far too long to see the state of the campaign.  
  4. Regulate all donations by reducing ‘permissibility check’ requirements from £500 to 1p for all non-cash donations, and £500 to £20 for cash donations. The current rules are riddled with loopholes and haven’t kept up with the digital age, raising the risks of foreign or unscrupulous interference.  
  5. Create a publicly accessible, clear and consistent archive of paid-for political advertising. This archive should include details of each advert’s source (name and address), who sponsored (paid) for it, and (for some) the country of origin.  
  6. New controls created by social media companies to check that people or organisations who want to pay to place political adverts about elections and referendums in the UK are actually based in the UK or registered to vote here.  
  7. New legislation clarifying that campaigning by non-UK actors is not allowed. Campaigners should not be able to accept money from companies that have not made enough money in the UK to fund the amount of their donation or loan. 
  8. Legislate for a statutory code of practice for the use of personal information in political campaigns, to clarify the rules and ensure voters know their rights. 
  9. A public awareness and digital literacy campaign which will better allow citizens to identify misinformation. 
  10. 10.Rationalise Britain’s sprawling, Victorian-era electoral law under one consistent legislative framework.