1.1.2 The Business Committee, at its meeting on 4 December 2001, agreed that the consultation paper issued by the Department for Transport, Local Government and the Regions (DTLR) on 19 November 2001, should be referred to the Committee of the Centre to prepare a response on the Assembly's behalf.

1.1.3 At its meeting on 12 December 2001, the Committee of the Centre considered the consultation paper and the proposal to amend the Representation of the People Regulations to provide for the official recording of the receipt of postal ballot papers. The Committee noted that its report would have to be debated in the Assembly on 11 or 12 February 2002 to meet the closing date for comments on 16 February 2002. The Committee agreed to seek written views from a number of bodies on the issues raised in the consultation document.

1.1.4 A copy of the paper is available from the DTLR elections website at http://www.elections.dtlr.gov.uk/index.htm.

1.2.1 The proposal set out in the consultation paper is to allow the receipt of postal ballot papers to be recorded officially by electoral administrators, and views are sought both on the principle of the proposal and on the practicalities of implementation.

1.2.2 Under current procedures, the electoral register is marked to indicate that a ballot paper has been issued to a postal voter. The principal purpose of the mark is to prevent double voting should that voter subsequently attend the polling station. However, the marked register does not record whether the postal ballot is in fact returned.

1.3.1 Written submissions were received from the Information Commissioner, the Northern Ireland Human Rights Commission (NIHRC), the Chief Electoral Officer for Northern Ireland and the de Borda Institute. The Committee would like to thank these bodies for taking time to respond to its request for information.

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2.1.1 The Committee considered in some detail the proposal that the receipt of postal ballot papers should be recorded officially and looked at the implications of the proposal identified in the consultation paper. The Committee noted that if the proposal is adopted, those inspecting the marked register will be able to identify who has returned a postal vote and who did not. The Committee is aware that the position is the same for those voting in person as the register is marked to indicate that an individual has been issued with a ballot paper at the polling station.

2.1.2 The Committee gave some consideration to the concern expressed by the Chief Electoral Officer about the perception there could be that, in noting the return of a postal ballot paper someone might also note how that person had voted, and this could lead to a loss of confidence in the democratic process. The Committee concluded that the opportunity for doing so would be limited and that the risk to the secrecy of the ballot is very low.

2.1.2 Inspection of the marked registers is provided for under legislation. The principal users are candidates and political parties who use the data to establish voting patterns and trends. According to the paper, such statistical analysis of the way that voters behave is an essential part of the democratic process.

2.1.3 In addition, some electors have expressed a wish to have a way of checking that their ballot paper has been received. There is currently no way to do this. The Committee noted the view of the NIHRC "It is unsatisfactory that, at present, people who use postal votes have no way of finding out whether their ballot paper arrived."

2.1.4 The Committee agrees that procedures should be put in place for the receipt of postal ballot papers to be recorded officially.

2.1.5 In its written submission to the Committee, the NIHRC expressed reservations about the use of the electoral register for purposes not connected with elections, such as its sale for commercial use, and suggested that the regulations should restrict access to those who can show an election-related need for the information. The Committee considered this in some detail and agreed that individuals should be given the option about whether or not personal information held on the electoral register should be used for commercial purposes. The Committee considers that, in general, the electoral register should only be used for the purposes of public or courts administration or should be limited to those who can show an election-related need for the information.

2.2.1 The Department for Transport, Local Government and the Regions has also asked for views on two practical issues if the proposal is to be implemented. The first is when should a returned postal vote be counted as returned.

2.2.2 The consultation paper proposes that the return of an individual's postal voting documents should be recorded when the declaration of identity is checked. The Northern Ireland Human Rights Commission in its submission to the Committee highlighted that this is an area where Northern Ireland legislation differs significantly from that in GB stating that "here, if a ballot paper is returned without an accompanying declaration, it is immediately ruled out, even if a declaration that matches it arrives separately". In this regard the Commission would wish to see the GB practice introduced here.

2.2.3 The Committee agrees that the return of an individual's postal voting documents should be recorded when the declaration of identity is checked.

2.2.4 The Committee also recommends that the legislation in Northern Ireland regarding the matching of declarations of identity and postal ballots should be brought in to line with that in Great Britain.

2.2.5 The Committee understands that in Northern Ireland postal ballot papers can be returned by post or handed on to Electoral Offices. However there is no provision for postal ballot papers to be handed in to polling stations as is the case in Great Britain. The Committee gave some consideration to this anomaly and recommends that provision should be made for postal ballot papers to be handed in to polling stations in Northern Ireland.

2.2.6 The second practical issue to be considered is where should the information be recorded. The consultation paper sets out two options. The first is to record the information on the 'marked' electoral register which is used in each polling station, which would result in one consolidated list. This would mean that the process of marking the register with returned postal votes would have to be completed after the registers are returned from the polling stations ie after the count. This would mean transcribing the information from an intermediate record to the register. The second option considered in the consultation paper is to record the information on the list of postal voters maintained by the electoral registration officer which would result in a separate record - a marked postal voters list. This could be done as and when the postal votes are opened. It would then be for anyone wishing to inspect the records to obtain both sets of data.

2.2.7 The Committee noted the view of the NIHRC "that the more efficient option from the point of view of increasing the value of the record to parties and candidates would be a single consolidated list, but this is not a major human rights issue and the alternative would be acceptable". The Committee is aware that recording the information on the 'marked' electoral register which is used in each polling station, to produce one consolidated list, may cause some additional administrative work for staff in the Electoral Office. The Committee noted that according to the Chief Electoral Officer for Northern Ireland, the Electoral Office would be able to cope with the requirement once the new computer system, with suitable enhancements, is installed. The Committee considers that there are advantages in having one consolidated list and recommends that the information should be recorded on the 'marked' electoral register.

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Present: Mr Edwin Poots MLA (Chairperson)
Mr Roy Beggs Jnr MLA
Mr David Ervine MLA
Ms Patricia Lewsley MLA
Dr Alasdair McDonnell MLA
Mr Conor Murphy MLA

In Attendance: Mrs Debbie Pritchard (Principal Clerk)
Mr Hugh Farren (Committee Clerk)
Ms Stella McArdle (Committee Clerk)
Mr John Conlan
Mrs Gillian Lewis
Ms Laurie Roberts
Mr Chris Brown

Apologies: Mr Oliver Gibson MLA (Deputy Chairperson)
Mrs Eileen Bell MLA
Dr Esmond Birnie MLA
Mrs Annie Courtney MLA
Ms Michelle Gildernew MP, MLA
Mr James Leslie MLA Mr Alex Maskey MLA
Mr Eugene McMenamin MLA
Mr Ken Robinson MLA
Mr Jim Shannon MLA

Recording the Return of Postal Ballot Papers - Consultation by DTLR: Members considered the Clerk's paper and accompanying consultation document. The Committee agreed to seek written views from bodies/ organisations and consider the issue further in the New Year. Action: Clerk

Present: Mr Edwin Poots MLA (Chairperson)
Mr Oliver Gibson MLA (Deputy Chairperson)
Mr Roy Beggs Jnr MLA
Mrs Eileen Bell MLA
Dr Esmond Birnie MLA
Mrs Annie Courtney MLA
Ms Patricia Lewsley MLA
Mr Conor Murphy MLA
Dr Alasdair McDonnell MLA
Mr Ken Robinson MLA
Mr Jim Shannon MLA

In Attendance: Mrs Debbie Pritchard (Principal Clerk)
Mr Hugh Farren (Committee Clerk)
Ms Stella McArdle (Committee Clerk)
Mr John Conlan
Mrs Gillian Lewis
Ms Laurie Roberts

Apologies: Mr Fred Cobain MLA
Mr David Ervine MLA
Ms Michelle Gildernew MP, MLA
Mr James Leslie MLA
Mr Alex Maskey MLA
Mr Eugene McMenamin MLA

The Committee considered the Clerk's paper and written submissions from organisations about the DTLR proposal to amend the Representation of the People Regulations to provide for the official recording of the receipt of postal ballot papers. Members discussed the proposal, the views of other organisations, the implications of the proposal and the practical issues involved.

It was agreed the Clerk would prepare a draft report for distribution to members and consideration on Wednesday, 30 January 2002.

Present: Mr Edwin Poots MLA (Chairperson)
Mr Roy Beggs Jnr MLA
Ms Patricia Lewsley MLA
Mr Ken Robinson MLA
Dr Alasdair McDonnell MLA
Mr Jim Shannon MLA

In Attendance: Mrs Debbie Pritchard (Principal Clerk)
Mr Hugh Farren (Committee Clerk)
Mrs Roisin Donnelly
Mrs Gillian Lewis
Ms Laurie Roberts

Apologies: Mr Oliver Gibson MLA (Deputy Chairperson)
Mrs Eileen Bell MLA
Dr Esmond Birnie MLA
Mr Fred Cobain MLA
Mrs Annie Courtney MLA
Mr David Ervine MLA
Ms Michelle Gildernew MP MLA
Mr James Leslie MLA
Mr Alex Maskey MLA
Mr Eugene McMenamin MLA
Mr Conor Murphy MLA

The Committee considered the draft report on 'Recording the Return of Postal Ballot Papers'. The report's contents section, recommendations, Sections 1and 2 and inclusion of the written submissions were agreed by the Committee. The Committee ordered the report to be printed and agreed that the wording of the Motion should read as follows:

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Information Commissioner
Northern Ireland Human Rights Commission
The de Borda Institute
The Electoral Office for Northern Ireland

9 January 2002

Thank you for providing the Information Commissioner with the opportunity to have input into your consideration of the DTLR proposals. Mrs France has asked me to respond on her behalf. I do apologise for the delay in response. Unfortunately it seems that your letter was misfiled with related correspondence with the Northern Ireland Office.

As we understand it under the proposals a person casting a postal ballot will have two items of data recorded against their names. First, a record will be made of the fact that he or she has been issued with a postal ballot and second, there will be a record of the fact that he or she has returned the ballot. To that extent it does not seem to us that those casting postal ballots are placed in a worse position than those casting their votes at polling stations where the register is marked once a ballot paper has been issued. Clearly if a record were made of the particular vote cast, there would be a number of concerns. However this is evidently not what is proposed. Nor, so far as we can judge, would it be at all easy to abuse the system to achieve such a result.

In narrow terms, providing that the recording of the fact of having returned a postal ballot is placed on a statutory basis, no contravention of the data Protection Act will arise. More generally, it seems to us that the proposals as framed strike a proper balance between the need to guarantee free and fair elections with the right to respect for private life. This being so, the Commissioner would certainly not wish to raise any objections.

I hope that this response is of assistance to you, however belated.

19 December 2001

Thank you for inviting the Northern Ireland Human Rights Commission to submit its views on the proposed amendment to the Representation of the People Regulations. The Committee will, of course, be aware that the electoral law in Northern Ireland is somewhat different from that in Great Britain, so some of what is contained in the DTLR consultation document does not apply here. If the eventual decision is to introduce the proposed amending legislation in Great Britain, and corresponding legislation follows here, it would give an opportunity to bring our law more closely into line with that in Britain in one area referred to below, namely the treatment of postal votes returned separately from the declaration of identity.

The human rights standards and principles governing electoral processes are mainly concerned with higher-level issues such as the right to participate in political activity, freedom of assembly, association, thought and expression, and so on, rather than with the mechanics of how elections are to be conducted. However some guidance on the regulation of the process in relation to postal voting can be derived from the broader principles. The most relevant standard in this case is contained in Article 3 of Protocol 1 of the European Convention on Human Rights, wherein the contracting states (including the UK) undertook "to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature".

States party to international instruments such as the Convention are allowed a reasonable amount of leeway (a "margin of appreciation") in deciding how to apply national laws in accordance with the obligations that they have entered into; for example, some states make voting compulsory, some states have fixed terms for the legislature while others have variable terms, and some feel that a proportional representation system is required to ensure the proper expression of the people's choice while others adopt first-past-the-post systems. It would probably be within a state's discretion as to whether postal voting should be allowed at all, but the Commission holds that it should be: allowing postal ballots helps to ensure the expression of the opinion of those who cannot vote in person. When postal voting is allowed, it is up to the state to determine the conditions. The only requirement under Article 3 would be that nothing in the regulations governing postal votes should run counter to any of the state's obligations.

As cited above, the Convention imposes four distinct conditions governing the voting process: (1) free elections, (2) reasonable frequency, (3) secrecy of the ballot and (4) free expression of the people's views. Since the DTLR proposals are irrelevant to the first two considerations we will address only (3) and (4). It would be impermissible, for example, to allow that postal votes should be any less secret than other votes, or to allow postal votes to be abused in ways that impaired the elections as expressions of the popular will.

On point (3): the proposal to record whether an issued postal vote was returned could be said to impact marginally on the secrecy of the ballot, only in the sense that the marking of the register (on the list of postal voters, on the main register, or on both) records the fact that someone has voted, validly or otherwise. In Northern Ireland, it will be recalled, there have been and probably will be abstention campaigns and so a public record of the fact of having voted could be taken as an indication of a certain political stance - at least that of rejecting the abstentionist case. But that applies as much to every voter-in-person as to postal voters, and the marked register already records personally cast votes and every case where a postal ballot has been issued (both of which are necessarily safeguards against personation, and thus protect the Convention right of the people to choose the legislature). Moreover it should be noted that blank or spoilt ballots can be returned, whether in person or by post, so that the fact of having returned a ballot cannot be taken as an indication that a valid ballot has been returned - provided, of course, that invalid returns are noted in exactly the same way as valid returns. The consultation paper indicates the intention not to record any clue as to whether the paper returned was a valid vote, and in our view that is a necessary safeguard of the Convention right. The number of blank or spoilt postal ballots should, of course, be recorded in the same way as in personal voting, and it should not be necessary to specify invalid postal votes separately from invalid personal votes.

Thus, anyone wishing to abstain from the process in Northern Ireland has six options: to refuse to register, which can be an offence; to remain on the register and not turn up to vote in person; to apply for a postal vote and omit to return it; to return a blank postal vote; to return a spoilt postal vote; or to return a vote that will otherwise be invalid, for example (under the NI rules) by failing to send the ballot paper and the declaration of identity together. In none of these cases would a marked register betray anything about whether the individual participated validly in the election. In these circumstances, it is no more an infringement of secrecy to record whether an issued postal vote was returned than it is to record (as already happens) whether an elector voted in person. The Commission therefore holds that simply recording the fact of a ballot paper's return does not impair the secrecy of the ballot in terms of the Convention.

The consultation paper makes the point (paragraph 12) that people shown as having received but not returned postal votes could be targeted by candidates seeking reasons for their failure to participate. That is, of course, possible, but it does not of itself constitute any infringement of their human rights (it is normal and necessary for candidates to communicate with electors) and it already happens with people who do not vote in person. It is always open to the elector to return an invalid ballot, by post or in person, if she or he wishes to abstain while avoiding such attention. If any evidence emerged that personal or postal voters who had not returned ballots were being harassed or intimidated, there are laws in place to address that.

The Commission has reservations about any use of the electoral register for purposes not connected with elections, including its sale for commercial use, and it would certainly want to exclude the possibility of the marked register being used as a marketing tool. If that is not to be addressed in the context of the current consultation, the future measures referred to (also in paragraph 12) should specify that the information from the marked register about whether or not any person voted may not be used for any purpose not connected with the conduct of elections. An exception might be permissible for aggregated data (i.e. showing take-up of postal votes across electoral districts) but in principle the fact of whether or not any individual returned a ballot should not be made available to anyone for non-electoral purposes. The current practice in Northern Ireland is that the marked registers are held centrally by the Clerk of the Crown at the Royal Courts of Justice, and anyone can purchase photocopies of them for any purpose. We suggest that the regulations should restrict access to those who can show an election-related need for the information.

On point (4): the Committee will be aware that it has long been alleged that postal votes have been abused in Northern Ireland. The Commission can only observe that, if this were happening, it would constitute an interference with the free expression of the opinion of the people and would thus be a violation of the Convention right. The state is therefore obliged to take whatever steps are necessary and proportionate to secure a reliable postal ballot and to prevent double voting. If the recording of postal returns helps towards those ends, it could be a positive contribution to the protection of human rights.

Aside from the issue of abuse, the Commission also acknowledges the point made in the DTLR consultation paper (at paragraph 8) that political parties and candidates use access to marked registers to help inform their electoral strategies and to encourage participation, so that the marked registers are a resource for the efficient functioning and development of the democratic process. This contributes to, but is hardly essential to, the aims expressed in Article 3. The provision of one additional item of data - whether or not an issued ballot was returned - adds to the value of the marked register without compromising the secrecy over how the vote was cast or whether any valid vote was cast by the named individual.

We also accept the argument (paragraph 9) that postal voters should be able to check that their ballot paper was received. It is unsatisfactory that, at present, people who use postal votes have no way of finding out whether their ballot paper arrived. Making this information available to the individual elector helps to secure the Article 3 right by improving confidence in the integrity of the process.

On the technical issue of when a postal vote should be counted as returned (paragraphs 15-21) we see no difficulty with the suggestion that it should be linked to the matching of a valid declaration of identity with a ballot paper envelope (or a ballot paper, but only when the declaration is returned separately). This is an area where Northern Ireland legislation is significantly different from that referred to in the Great Britain consultation document: here, if a ballot paper is returned without an accompanying declaration, it is immediately ruled out, even if a declaration that matches it arrives separately. We would hope that any revision of the NI legislation following this consultation introduces the British practice, which goes towards the aim of Article 3 by helping to ensure that an inadvertent error does not deprive a voter of the right to participate in choosing the legislature. There would be additional work and costs involved, but (particularly in relation to elections to the UK Parliament) it should not be the case that a vote cast in this part of the UK should be rejected for reasons that would not invalidate it in any other part. We state this in terms of a best-practice approach rather than arguing that it is a breach of human rights to maintain the distinction, since the European caselaw establishes that where an objective rationale exists a state may maintain different voting systems in different parts of its territory. (A cheaper but much less satisfactory solution would be to amend the British law to reflect the NI rule, thus depriving the corresponding number of British electors of their vote.)

On the matter of whether the main register or the list of postal voters should be marked (paragraphs 22-28), the Commission feels that the more efficient option from the point of view of increasing the value of the record to parties and candidates would be a single consolidated list, but this is not a major human rights issue and the alternative would be acceptable.

To conclude, the Commission finds the DTLR proposals consistent with the human rights standards that are engaged by the regulation of the electoral process.

12 January 2002

In responding to the above, we would like to make one specific recommendation, but also, some comments beforehand, and some additional observations by way of a conclusion. Firstly, then, a few introductory remarks.

Postal voting, by all accounts, is (or has been) subject to widespread abuse, and the current proposal aims to deal with only a fraction of that abuse. In other jurisdictions, different procedures are used, and maybe there are lessons to be learnt therefrom.

In Kosovo, for example, in the province itself, there is no postal voting, and only those resident abroad could use such a procedure. Instead, a system called 'special needs voting' is deployed. This involves a mobile team of two officials plus two (or more) party/NGO observers, which visit those locations where voters, who would otherwise need a postal vote, live or work. These places include prisons, hospitals, individual homes for the homebound sick and residential homes for the elderly, as well as police stations and fire stations where on the day itself personnel will be on duty. (On a personal Belfast note, I have always been surprised and disappointed at the high number of police officers, who themselves do not vote.)

But back to Kosova. This 'special needs voting' takes place prior to election day. The official register is then marked, to indicate who has already voted by postal ballot. Anyone who has so voted under the special needs programme but who then tries to cast a regular ballot on polling day, will find his/her name has been marked accordingly. (What then happens is that the individual concerned is nevertheless given a ballot, but this vote is then placed in its own sealed envelope before being placed in the ballot box. And all such 'conditional ballots' as they are called are checked at some central location to ensure no mistakes and/or indeed no duplications have occurred.)

(i) The electoral register should indeed be marked to indicate that a postal vote has been issued to a postal voter or rather, that that voter has already voted.

(ii) Accordingly, all postal votes must be returned by a certain date before the election. Seven days should be adequate.

(iii) Every effort should be made to reduce the number of postal votes issued, and serious consideration should therefore be given to initiating a form of 'special needs voting'. (As it happens, Kosovo also has an electorate of about 1,000,000 voters, and the entire 'special needs voting' was carried out, under international supervision, in about ten days, with about 100 electoral officials and a similar number of police escorts.)

The letter from the DTLR concerns only a tiny part of the electoral process. In the meantime, this Institute has repeatedly tried to highlight other aspects of the electoral process which could be improved. There is, for example, the modus operandi of polling stations, and we have long since suggested that no party should have the right to know whether or not citizen X receives a ballot paper. They have a right to observe the electoral process, and each party should be allowed to have one or at the most two observers in any one polling centre, but such observers should not be allowed to record the names (or numbers) of those receiving ballot papers.

We have also pointed out on a number of occasions - see, for instance, our publication Beyond the Tyranny of the Majority, or our article in Fortnight of May 2001, or again our conference report entitled Avoiding the Veto - that at the moment, PR-STV counts are conducted incorrectly. We have met with the Minister, Mr George Howarth, and on his advice, we have spoken to the CEO. Thus far, however, nothing, it seems, has been done to rectify the error.

May we therefore ask your own committee to consider these matters.

14 January 2002

I am writing to you in respect of our recent conversation concerning Debbie Pritchard's letter of 13 December in which the Electoral Office was invited to submit a written brief to the Committee with views on the DTLR proposals for the Recording of Postal Ballot Papers. As Debbie Pritchard noted in her letter, elections are excepted matters which, of course, means that my office reports directly to the Secretary of State on such issues.

As I explained, the Electoral Office will be making a full submission to the DTLR in due course. Copies of this will be sent to the Assembly and to the Secretary of State. In the meantime, the Electoral Office is content that if this requirement becomes mandatory in law our new computer system, to be installed in Summer 2002 will, with suitable enhancements, be able to cope. It should, however, be noted that the DTLR consultation paper is aimed primarily at addressing low turnout in Great Britain which is not a problem in Northern Ireland. Another very important factor is that the legislation covering postal voting in the two jurisdictions is different; for example, postal voting "on demand" is not available in Northern Ireland, whereas it is now in Great Britain. As a result, much of the submission which the Electoral Office will be making to the DTLR will be in respect of legal technical matters to ensure that any changes to legislation are applied without anomaly or contradiction.

I will, nevertheless, want to sound a strong note of caution in my response to the DTLR in respect of the secrecy of the ballot. It seems to me that in recording the elector returning his or her postal ballot paper there could be a perception that someone might also note how that person had voted. In the context of Northern Ireland, where electoral fraud and intimidation at the polls are major concerns, it could be very damaging to the democratic process if such a perception led to a loss of confidence. For example, an unscrupulous activist could suggest to a vulnerable elector that the way in which they voted would become known to the activist, thus ensuring that the elector felt intimidated enough to vote as the activist wanted. It would be my view that the Committee may want to focus on this aspect of the proposed changes, perhaps seeking from the DTLR assurances that nothing will be done which could jeopardise fair elections in Northern Ireland.

I hope this is helpful.