Open consultation

Proposal to use a Legislative Reform Order to allow applications for postal and proxy voting arrangements for devolved elections in Scotland and Wales to be made online

Published 25 November 2024

Applies to Scotland and Wales

Scope of the consultation

Topic of this consultation

This consultation seeks views on the proposal to use a Legislative Reform Order (LRO) to allow applications for postal and proxy voting arrangements for devolved elections in Scotland and Wales to be made online. It covers the following areas:

This consultation paper is issued on behalf of the Secretary of State for the Ministry of Housing, Communities and Local Government (MHCLG) and sets out the proposal to pass legislation to insert regulation making powers making it possible for applications for postal and proxy voting (also known as ‘absent voting’) arrangements for Senedd, Scottish Parliamentary, and local elections in Scotland and Wales to be made online.

To do this, it is necessary to amend the Representation of the People Act 1983, the Scotland Act 1998, and the Government of Wales Act 2006. We propose to make these amendments via a Legislative Reform Order under the Legislative and Regulatory Reform Act 2006.

Under the Legislative and Regulatory Reform Act 2006, the government must consult on the use of a Legislative Reform Order to make changes to primary legislation. Subject to the results of this consultation, the government plans to make the order which makes these amendments as soon as is practicable.

Scope of this consultation

The aim of this consultation is to set out the proposed legislative changes to the Representation of the People Act 1983, the Scotland Act 1998, and the government of Wales Act 2006, to seek views on our proposal and gather evidence in relation to the criteria for using a Legislative Reform Order.

The proposal has been formed as a result of the Scottish and Welsh Governments’ request to use the Online Absent Voting Application (‘OAVA’) services for their devolved elections.

Geographical scope

The changes made to legislation will give limited powers to the Scottish and Welsh Governments for the purpose of legislating to join OAVA, so the impact of these measures will be limited to Scotland and Wales. There will also be some limited additional measures which are specific to Wales only, to allow alignment of postal vote reapplication cycles, and to provide for an alternative means to verify an applicant’s identity should the identity checking process be unsuccessful within the UKDS.

Impact assessment

These measures will make it much easier and simpler for electors in Scotland and Wales, by allowing them to make a single online application to arrange a postal or proxy vote for every election they are eligible to participate in. In addition, these measures will also benefit electoral administrators, as they will reduce the burden of processing applications as electors opt to make a single absent vote application for all elections online.

An impact assessment for the OAVA services was carried out as part of the Elections Bill (now Elections Act 2022), which was passed by the previous government. This impact assessment considered UK wide impact of introducing an online absent vote application service and the additional cost of divergence in Scotland and Wales. The measures proposed in this document would allow those on-costs to be reduced by reducing the additional processing burdens described above.

Basic information

Body responsible for the consultation

Ministry of Housing, Communities, and Local Government

Duration

This consultation will last for 7 weeks from 25 November 2024.

Enquiries

For any enquiries about the consultation please contact: correspondenceregistrationandfranchise@communities.gov.uk with an email subject: ‘OAVA Consultation’

How to respond

You may respond by completing an online survey on Citizen Space.

Alternatively you can email your response to the questions in this consultation, with the subject line ‘OAVA Consultation’ to: correspondenceregistrationandfranchise@communities.gov.uk

If you are responding in writing, please make it clear which questions you are responding to.

Written responses should be sent to:

Registration and Franchise
Ministry of Housing, Communities and Local Government
2 Marsham Street
London
SW1P 4DF 

When you reply it would be very useful if you confirm whether you are replying as an individual or submitting an official response on behalf of an organisation and include:

• your name
• your position (if applicable)
• the name of organisation (if applicable)
• an address (including post-code)
• an email address
• a contact telephone number

Introduction

1. Before the creation of the Online Absent Vote Application (OAVA) Services, if an elector wanted to arrange to cast their vote via post or via a proxy (someone who votes on their behalf), they had to fill in a paper application, and send it via post (or in some cases, a scan via email) to their local Electoral Registration Officer (‘ERO’).

2. The OAVA services, which were enabled by the changes made in the Elections Act 2022, made this process easier for the elector by allowing applications for absent voting arrangements to be made online.

3. It was not possible during the passage of the Elections Act 2022 to introduce equivalent powers to provide for absent voting applications for Senedd elections, Scottish Parliamentary elections, or local elections in Scotland and Wales to be included in the OAVA services.

4. This has resulted in a situation where an elector living in Scotland or Wales who wishes to put an absent voting arrangement in place can only do so online for UK Parliamentary elections (and Police and Crime Commissioner elections in Wales). If they make such an application online and also wish to make such an arrangement for other elections, they must apply using a paper form. The only option to make both applications at the same time requires using a paper form. In addition, at present there are different procedures in place for absent voting arrangements for different election types.

5. We believe that these examples of divergence – both in terms of application, medium, and procedure - are inefficient and burdensome for electors, by creating a situation where many electors are likely to submit almost identical applications twice. We believe this also creates extra burden for EROs, who are likely to receive multiple applications from electors who ideally would only have to make one application online.

6. The Scottish and Welsh Governments have asked that the UK government legislate so that they can be added in to the OAVA services, because OAVA services are the responsibility of the UK government.

7. This consultation paper sets out proposals for amending the relevant primary legislation through a Legislative Reform Order to allow the Scottish and Welsh Governments to legislate in their devolved parliaments to join the OAVA services, and to allow changes to be made to align the processes for absent voting arrangements for different types of election in Wales.

8. Legislative Reform Orders can only be made for certain reasons, one of which is to reduce or remove burdens. ‘Burdens’ in this context include ‘administrative inconvenience’ and ‘obstacles to efficiency’ (the full list can be found at section 1(3) of the Legislative and Regulatory Reform Act 2006). The changes proposed in this consultation will remove administrative inconvenience and obstacles to efficiency for both electors and EROs.

9. In order to make sure a proposed Legislative Reform Order is fit for purpose, it must also be consulted on before it is made. As such, we are seeking views on whether you believe that an LRO is an appropriate mechanism for making the changes we are proposing, in particular by seeking the views of experts in the electoral sector – including representative bodies of electoral administrators, EROs themselves, and the Electoral Commission. These groups are experts on the electoral system, and EROs in particular interact with electors on a daily basis. Accordingly, we believe these groups are best placed not only to comment both on the impact of the proposed measures on their own work, but also on those of electors.

Background

10. This consultation concerns measures which are being proposed in order to reduce and remove burdens on both electors and EROs.

11. On 31 October 2023, the UK government launched 2 new services enabling electors, for the first time, to apply online for their postal or proxy vote, and also made some related changes to the rules around applying for and maintaining an absent voting arrangement. These changes were a positive change in the process of modernising our electoral system, by making it easier and more convenient to arrange a postal or proxy vote.

12. The services operate in a similar way to the very successful Register to Vote service and support electors to put in place, and maintain, their voting arrangements from the moment they register to vote. This has been particularly helpful for overseas electors who have historically struggled receiving and returning paper application forms through international postal services.

13. These new services, along with the associated rule changes, currently only apply to certain polls namely UK Parliamentary elections, Police and Crime Commissioner (PCC) elections, and local elections in England (‘reserved elections’).

Current arrangements and the burdens placed on electors and administrators

The issue

14. As online applications currently can only be made for reserved elections, since October 2023, electors in Scotland and Wales who want to use the online service for reserved polls also have to submit a separate paper application for Senedd, Scottish Parliamentary and local elections in Scotland and Wales (‘devolved elections’) or submit a single paper application for all elections they are eligible for. Accordingly, every application that is made by an elector must also be processed by their ERO.

15. There are 2 other significant differences in the procedure for applying for and maintaining an absent voting arrangement between reserved and devolved elections. First, the legislation creating the OAVA services also introduced an identity verification process, whereby someone applying for an absent vote (whether online or via paper) must prove their identity (usually by submitting their national insurance number).

16. Second, the cycle for renewing postal vote applications was changed, such that instead of having to refresh their signature every 5 years, electors would instead have to reapply for their postal voting arrangement every 3 years.

17. As with the introduction of the OAVA services themselves, these 2 changes were not applied to devolved elections.

Impact of current unavailability of OAVA services for devolved elections on electors

18. The inability of electors to use the OAVA services for both reserved and devolved elections creates burden for them in several ways. First, an online service is more convenient than a paper service for many applicants. From the first month the OAVA services launched, more absent vote applications were made online than on paper. In the most recent month for which data is available - September 2024 - 87% of proxy vote applications were made online, and 64% of postal vote applications were made online. This illustrates that allowing the OAVA services to be used for devolved elections would deliver a benefit for electors.

19. However, the current situation whereby the OAVA services can only be used for some elections creates a particular challenge which did not exist before the launch of the OAVA services. That is, electors in Wales and Scotland who apply online for a postal or proxy voting arrangement for reserved elections must repeat an almost identical process on paper in order to make the same arrangement for devolved elections.

20. It is important to note that is possible to make a single application on paper for both devolved and reserved elections. However, we believe that people who want to make an absent voting arrangement are more likely to do so online, even if it means they will have to repeat the process again later for devolved elections.

21. We believe this for 2 reasons. First, the data quoted above (paragraph 18) shows that, when given the choice, most individuals will choose to use an online rather than postal application process.

22. Second, many electors will often apply for an absent vote shortly before an election. This is shown by the statistics for the 2024 UK parliamentary general election: in a normal week, around 10,000 postal vote applications are made. In the week before the postal vote application deadline, over 400,000 postal vote applications were made, and this spike in applications also occurred for proxy vote applications. We believe this shows that many people will only arrange an absent vote when an election is imminent. As reserved and devolved elections often happen at different times, it is likely that individuals will choose to apply online for an absent vote, even if it means they will have to repeat the process for devolved elections at another time.

Question 1

Do you agree that the current situation whereby electors cannot apply for an absent vote for devolved elections online makes applying for an absent vote more difficult for electors?

Impact of current unavailability of OAVA services for devolved elections on EROs

23. As with electors, the inability for absent voting applications for devolved elections to be made online instead of on paper also creates inefficiency and adds burden for EROs. For EROs, this burden is caused by 2 factors. Firstly, digital applications remove issues in understanding written applications (for example, unclear handwriting), which may lead EROs to follow up with applicants for clarification. Secondly, paper applications must be typed in manually, whereas the information provided in online applications for reserved elections can be carried into EROs’ electoral management system (‘EMS’) digitally. Although the difference in administrative burden between paper and online processes may only be a matter of seconds or minutes per application, this time saving becomes extremely significant considering the huge numbers of applications received, particularly in the period immediately before elections.

24. Similarly, in the situation described above where an elector applies for an absent vote for reserved elections online, then subsequently makes a second application on paper for devolved elections, this duplication of effort for electors is also mirrored for electoral administrators. If an elector submits 2 applications – one for reserved elections, and another for devolved elections – the ERO must process both applications individually.

25. This means that the ERO will have to go through the full process of checking an application, logging the resulting arrangement, and communicating the outcome of the application to the elector twice.

Question 2

Do you agree that the current situation whereby electors cannot apply for an absent vote for devolved elections online creates administrative burden for Electoral Registration Officers?

Impact of current divergent rules on identity verification on electors and administrators

26. Beyond the online services themselves, the fact that the associated changes to rules have not been extended to devolved elections also places burden on electors and administrators.

27. The divergence around identify verification (‘ID verification’) means that an applicant making an absent vote application may fail an ID check and thus have their application rejected for reserved elections, yet the same information could result in a successful application for an absent vote for devolved elections. If this application is made via a paper form, these contradictory outcomes could even occur in response to a single application. Besides appearing irrational, this may cause confusion and inconvenience for electors, perhaps even to the point that they are not aware for which elections they have successfully set up an absent voting arrangement.

28. From the perspective of EROs, the divergent position on ID verification requires EROs to be aware of, and apply, 2 different procedures in parallel. This will generate more queries from confused electors, which creates a greater administrative burden for EROs than simply applying one procedure.

Question 3

Do you agree that having different ID verification requirements for reserved and devolved elections may be inconvenient and confusing for electors?

Question 4

Do you agree that having different ID verification requirements for reserved and devolved elections creates extra burden for EROs?

Impact of current divergent rules on postal vote renewal cycles on electors and administrators

29. Regarding the divergence around the refresh/renewal cycle for postal votes, we believe this difference creates burden for electors with postal voting arrangements for both devolved and reserved elections by creating inconvenience and inefficiency, as it means those arrangements will expire at different times. Although electors can choose to renew early, and thus could choose to renew both after 3 years, and so act as if both cycles are aligned, if electors do not proactively align applications like this, they will have to refresh/reapply for their absent voting arrangements twice, on a divergent cycle. This creates duplicate applications, and thus inconvenience and inefficiency.

30. Further, we believe that this divergence is likely to lead to even greater inconvenience for some electors. An elector who receives an expiry reminder for a reserved postal voting arrangement after 3 years may act on that reminder and re-apply, but when they receive a signature refresh reminder for devolved elections after 5 years may mistakenly believe their reapplication 2 years prior covered all elections, and thus disregard the second reminder. This may ultimately lead to the inconvenience of their devolved postal voting arrangement lapsing, jeopardising their ability to cast their vote.

31. From the perspective of EROs, divergent expiry cycles create inconvenience and inefficiency by requiring EROs to contact individuals regarding their postal voting arrangements twice as often, as they have to send different reminders for reserved and devolved arrangements.

32. Further, it is important to note that many electors’ awareness of their electoral registration and absent voting arrangements remains low outside of the time immediately preceding elections. This is shown by the spikes in absent voting application rates described in paragraph 22. In the scenario described above where divergence in postal vote renewal cycles causes elector confusion, leading to them accidentally allowing their absent voting arrangement to lapse, this may lead to a fresh postal voting application being make very shortly before an election if the elector realises their mistake. This would not only create burden for EROs by leading to unnecessary new applications, but may cause these applications to arrive at particularly a busy time; i.e. in the run up to elections.

Question 5

Do you agree that the current divergence between reapplication/refresh cycles for reserved and devolved elections may be confusing for electors?

Question 6

Do you agree that the current divergence between reapplication/refresh cycles for reserved and devolved elections creates extra burden for EROs?

Proposed changes

Incorporation of devolved elections into OAVA services

33. In October 2023, both the Scottish and Welsh Governments requested that legislation be taken forward to enable voters to have access to the online services to apply or reapply for their postal or proxy vote for devolved polls ahead of the 2026 Scottish Parliamentary and Senedd Cymru elections. The UK government agrees with this aim, and has agreed to take forward legislation to achieve this.

34. The proposed approach will ultimately allow electors living in Scotland and Wales to make a single application for a postal or proxy vote to be made online using the OAVA services for all elections they are eligible to participate in.

35. We believe that this proposal will resolve the issues for electors described in paragraphs 18-20 above, and reduce the burdens on EROs described in paragraphs 5 and 23-28. In summary, these burdens are:

a. For electors: The increased efficiency of being able to make devolved absent vote applications online, instead of just on paper, and at the same time as their reserved absent vote application;

b. For electors: Removing the administrative burden of having to effectively make duplicate applications in a situation where an elector chooses to apply online for an absent vote for reserved elections, then chooses to apply for devolved applications, and must do so on paper;

c. For EROs: The increased efficiency of being able to digitally transfer information in online absent voting applications for devolved elections onto their electoral management system, rather than having to manually enter that information;

d. For EROs: Removing the administrative burden of receiving duplicate applications from electors who apply online for an absent vote for reserved elections, and then apply separately for devolved elections.

Question 7

Do you support the proposal to allow electors living in Scotland and Wales to use the OAVA services to apply for absent votes in devolved elections?

Question 8

Would you agree that making it possible for a single online absent vote application to be made online for all elections – both devolved and reserved – in Scotland and Wales would be beneficial for electors in Scotland and Wales, and make it easier for them to manage their absent voting arrangements?

Question 9

Would you agree that making it possible for a single online absent vote application to be made online for all elections – both devolved and reserved – in Scotland and Wales would reduce burden on EROs?

Question 10

Do you see any downsides to the proposal to enable electors in Scotland and Wales to use the OAVA services for devolved elections? If so, what are they?

Alignment of devolved and reserved absent voting processes

36. As part of this work, the UK government has also agreed with the Scottish and Welsh Governments that the associated reforms to absent voting procedures – the ID verification requirements for absent vote applications and the 3 year reapplication cycle for postal voting arrangements – should also be applied to applications and arrangements related to devolved elections. This means that when an elector in Scotland or Wales applies for an absent vote – whether on paper or online – a single procedure will be followed.

37. We believe that aligning ID verification requirements will reduce burden on electors and EROs as described in detail in paragraphs 27-28. In summary, these burdens are:

a. For electors: remove the risk of divergent ID verification requirements causing an application for an absent vote being successful for one type of election but not another, thereby reducing the risk of an elector becoming inconvenienced by not knowing which elections they have an absent voting arrangement for

b. For EROs: This will reduce burdens by requiring EROs to only follow one procedure for all absent voting arrangements.

38. In addition to these burden reductions for electors and EROs, we also believe that making this change in tandem with measures to allow absent voting applications for devolved elections will lessen burdens by lowering financial public cost. Rebuilding OAVA services such that they can accommodate parallel services which apply ID verification to one type of application but not another would increase the software development and implementation costs significantly.

Question 11

Do you support the proposal to align ID verification requirements for absent vote applications for devolved and reserved elections?

Question 12

Do you agree that aligning ID verification requirements for absent vote applications for devolved and reserved elections would be beneficial for electors?

Question 13

Do you agree that aligning ID verification requirements for absent vote for devolved and reserved elections would be beneficial for EROs?

Question 14

Do you see any downsides to aligning ID verification requirements for absent vote applications for devolved and reserved elections? If so, what are they?

39. Regarding the alignment of postal voting renewal cycles, we believe this will also reduce burdens on both electors and EROs as described in paragraphs 29-32. In summary, these are:

a. For electors: alignment would mean a consistent timeline for renewal of postal voting arrangements applies for all elections, reducing the risk of elector confusion

b. For electors: the inconvenience of mistaking which election types a renewal reminder is for, thereby putting them at risk of letting their arrangement lapse, jeopardising their ability to cast a vote.

c. For EROs: This alignment will also reduce the number of reminders EROs have to send out, reducing burden on them.

40. In addition, as with alignment of ID verification requirements, we also believe that making this change in tandem with measures to allow absent voting applications for devolved elections will reduce burdens by lowering financial public cost of software development and implementation costs of changing the OAVA services to accommodate devolved absent voting applications.

Question 15

Do you support the proposal to align the rules for postal voting in Scottish and Welsh devolved elections and reserved elections (i.e. a 3-year renewal cycle rather than a 5-year signature refresh)?

Question 16

Do you agree that aligning the rules for postal voting in Scottish and Welsh devolved elections and reserved elections (i.e. a 3-year renewal cycle rather than a 5-year signature refresh) would be beneficial for electors?

Question 17

Do you agree that aligning the rules for postal voting in Scottish and Welsh devolved elections and reserved elections (i.e. a 3-year renewal cycle rather than a 5-year signature refresh) would be beneficial for EROs?

Question 18

Do you see any downsides for to the proposal align the postal voting renewal cycle for reserved and devolved elections? If so, what are they?

How we propose to make the necessary changes

41. The proposed Legislative Reform Order would give the UK, Scottish and Welsh Governments concurrent powers to bring forward regulations to enable applications for postal and proxy votes for devolved elections to be made online. It is proposed that powers exercisable by Scottish and Welsh ministers in relation to the UKDS will require the consent of a Minister of the Crown. This is to ensure the responsibility for and control of the UKDS is maintained by the UK government.

42. This order would also provide powers which will later be used in secondary legislation to include an identity check requirement on absent voting applications. This is an upfront check at the point the postal or proxy vote application is made and will simply require the applicant to provide their National insurance number. This requirement has been in place for registration applications since 2014.

43. Requiring identity verification for both online and paper applications, as with registration applications, is designed as a check on the opportunity for fraud created by making the services available online. Should an applicant be unable to provide their National Insurance Number, there is an exceptions process in place which allows for an applicant’s identity to be verified by alternative means.

44. Finally, this order would amend Welsh legislation to provide powers to the Welsh Government to amend their current absent vote 5-year signature refresh cycle such that it instead matches the 3-year reapplication process in place for reserved elections. In addition, it would also enable Welsh Government to provide for an alternative means to verify the identity of applicants. These powers have been designed in close co-operation with the Welsh Government to ensure that they serve their purpose. We are not able to provide the same powers for the Scottish Government using a Legislative Reform Order, however the Scottish government have confirmed they do not need equivalent powers in order to achieve the same alignment of reapplication cycles.

Ensuring a Legislative Reform Order is the right way to make these changes

45. As described above, the legislative method which we are proposing to use to achieve the aims described in this document is a Legislative Reform Order, made under Section 1 of the Legislative and Regulatory Reform Act 2006.

46. One of the key requirements for an order under this section is that it reduces burden. Our reasons for believing it will reduce burden on both electors and administrators was set out in the preceding sections of this document, and the purpose of the questions in those sections – questions 1 – 18 – is to establish whether experts in the electoral sector agree with our view.

47. However, there are several preconditions which any potential Legislative Reform Order must meet. These are:

i. There are no non-legislative solutions that will achieve the intended outcome of the provision

ii. The effect of the provision is proportionate to the policy objective

iii. The provision strikes a fair balance between the public interest and the interests of any person adversely affected by the provisions

iv. The provision does not remove any necessary protection

v. The provision will not prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise

vi. The provision is not constitutionally significant

vii. Where a provision will restate an enactment, it makes the law more accessible or more easily understood

48. This section sets out the government’s reasons to believe the proposed Legislative Reform Order meets all of these preconditions. At the end of this section, you will be invited to give your view on whether you agree.

Precondition 1: There are no non-legislative solutions that will achieve the intended outcome of the provision

49. It is clear that there is no way to make these changes without legislation. The OAVA services are part of the UK Digital Service, and without being given powers through legislation to integrate devolved elections into that service, the Scottish and Welsh Governments would have no way to achieve the desired outcome. Further, additional legislation is needed to allow the Welsh Government to align absent voting procedures for devolved elections to match those for reserved elections.

Precondition 2: The effect of the provision is proportionate to the policy objective

50. The Legislative Reform Order will give limited powers to the Scottish and Welsh Government, designed specifically to enable the necessary regulations to achieve the policy outcome to be made, which as discussed in this document, will reduce burden on both electors and administrators. The Order will achieve this by granting concurrent powers to Scottish and Welsh Ministers to make regulations for devolved elections to be incorporated into the OAVA services, and by granting specific powers to Welsh Ministers to allow postal voting application cycles to be aligned and for an alternative means to verify applicants’ identities.

Precondition 3: The provision strikes a fair balance between the public interest and the interests of the persons adversely affected by the provisions

51. The UK government believes that the proposals carry very clear benefits, which are outlined earlier in this document, and that any arguable negative impacts are extremely slight. Moreover, we believe that any cohort of people who could be argued to experience a negative impact, benefits would also apply to that cohort, and those benefits would outweigh the minor disadvantages. The proposed approach also has the support and endorsement of the Scottish and Welsh Governments.

52. From the perspective of EROs, we cannot foresee any downside at all to the proposed measures, as EROs will no longer receive duplicate absent vote applications from the same person (one for devolved elections, one for reserved), will no longer have to understand and administer 2 parallel absent voting procedures, and are likely to receive fewer paper applications, which are more burdensome to process than online applications.

53. From the perspective of electors, it is important to note that the inclusion of devolved elections in the OAVA services does not remove any existing options – the paper form will continue to exist – it simply provides an alternative route which many will find more convenient.

54. The only elements which we believe could be argued to have downsides are the plans described in paragraphs 27-32 to extend ID verification requirements to devolved absent voting applications, and to align the current 5-year signature refresh cycle for devolved postal voting arrangements to the procedure for reserved elections, such that it is a 3-year reapplication cycle instead. However, we believe that the benefits of delivering alignment in both elements outweigh the limited possible drawbacks.

55. In the case of the ID verification requirements, it may be considered that this adds burden to the elector by requiring them to provide more information in their application. We considered this carefully, and we believe this minor extra burden is proportionate, for 2 reasons. Firstly, the provision of an online service to apply for absent votes, due to its increased convenience, may raise the risk of fraudulent applications, and as such, an extra ID verification step is appropriate. Further, we believe that the possible confusion which could be created by having multiple parallel rules in place (one for reserved elections, one for devolved elections) would in fact create even more burden for the elector than having ID verification requirements in place for all types of election. Details of the possible consequences of this confusion are given above at paragraphs 27-28.

56. Finally, in the case of aligning renewal cycles, it may be argued that a shorter renewal cycle could potentially disadvantage the elector, because if they fail to respond to reminders to reapply, their arrangement would lapse 2 years earlier than under the current rules. Overall, as with ID verification, we consider the benefits of avoiding duplicate parallel processes – specifically the reduced risk of confusion as described in paragraphs 29-32 – to outweigh this minor inconvenience. Further, in some situations, electors’ circumstances may change within a 5 year period – for example they may move house, or wish to appoint a different proxy – which would in fact mean it is beneficial for them to be prompted to reapply more frequently, to ensure their arrangements are up to date.

57. The only cohort of individuals for whom the alignment of reserved and devolved elections would not provide a benefit are those who are only eligible to take part in devolved elections. Under current legislation this category includes electors in Scotland and Wales under the age of 18, and electors in Scotland and Wales who are qualifying foreign nationals (i.e. those who do not have Commonwealth, Irish, or in some cases EU citizenship). This cohort, although the minority, are important to consider, but even in this scenario we consider the benefits of the provision of the OAVA services for devolved elections to be a significant benefit to this group of electors by providing a much more efficient method of applying for an absent vote than the current paper-only system. The change in postal vote application cycle may also benefit individuals in this group whose signatures may change over time, for example younger voters, and some elderly voters. Beyond these benefits, although the alignment of requirements (i.e. ID verification and renewal cycles) would not otherwise directly benefit this group, the overall benefit of alignment which is provided to other electors outweighs the limited negative impact of alignment on this group.

Precondition 4: The provision does not remove any necessary protection

58. The proposal will not remove any protections. it simply adds a new, online, route to making absent vote applications in addition to the existing paper route, which will persist, and it also provides helpful alignment of absent voting procedures.

Precondition 5: The provision will not prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise

59. The provision will not prevent any person from continuing to exercise any right or freedom which they may reasonably expect to continue to exercise, but instead give freedom of choice through a digital option for applying for absent votes.

60. With regards to the limited potential negative impacts on certain cohorts of people as described in the discussion of precondition 3, although the new requirement to verify identity and reapply on a shorter cycle may be argued to be a minor extra burden, we do not consider that burden to be such that it would prevent anyone from making a postal vote application, and this being able to exercise their right to vote.

61. In regards to the shorter renewal cycle, this simply makes an existing comparable requirement to refresh signatures more frequent, and as discussed above could arguably be beneficial in ensuring electors’ details are up to date.

62. Regarding the identity verification element, we believe this view is strengthened particularly with regards to the identity verification in light of the fact that individuals must verify their identity in order to register to vote, which is a prerequisite for applying for an absent vote.

Precondition 6: The provision is not constitutionally significant

63. The UK government is mindful that the 3 Acts which will need to be amended by this proposed Legislative Reform Order – the Representation of the People Act 1983, the Scotland Act 1998 and the Government of Wales Act 2006, may all be considered to be Acts of constitutional significance.

64. However, we believe that the specific measures, although they will necessitate amending legislation of constitutional significance, are not themselves constitutionally significant.

65. The proposal is to take carefully limited, concurrent powers allowing Welsh and Scottish ministers to make regulations allowing applications to be made through the UK Digital Service and, in respect of Wales, to align postal vote arrangements period relating to parliamentary and local government elections and provide for an alternative means to verify applicants’ identities.

66. The proposed Legislative Reform Order merely facilitates simple administrative changes to legislation to improve the efficiency for both making and processing absent voting applications. As such we believe that it is within the remit of this precondition.

Precondition 7: Where a provision will restate an enactment, it makes the law more accessible or more easily understood

67. The proposed Legislative Reform Order will not restate an enactment, so we consider that this precondition is not relevant.

68. Finally, for the avoidance of any doubt, the Legislative Reform Order proposed in this document will not:

1. Impose, abolish or vary taxation
2. Create a new criminal offence or increase the penalty for an existing offence so that it is punishable above certain limits
3. Authorise forcible entry, search or seizure, or compel the giving of evidence
4. Amend or repeal any provision of Part 1 of the Legislative and Regulatory Reform Act
5. Amend or repeal any provision of the Human Rights Act 1998

Question 19

Do you agree that the Legislative Reform Order proposed in this consultation meets the preconditions described in paragraphs 49-68? In particular:

i) Are there any non-legislative means that would satisfactorily remedy the difficulty which the proposals intend to address?

ii) Are the proposals put proportionate to the policy objective?

iii) Do the proposals taken as a whole strike a fair balance between the public interest and any person adversely affected by it?

iv) Do the proposals remove any necessary protection?

v) Do the proposals prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise? If so, please provide details

Question 20

Overall, do you support the proposals in this document?

The Legislative Reform Order process

69. We propose to introduce the reform by means of a Legislative Reform Order (LRO) under section 2 of the Legislative and Regulatory Reform Act 2006 (LRRA).

70. An LRO is a statutory instrument which can be used to amend primary legislation to remove or reduce a burden to which any person is subject as a result of any legislation and/or ensure regulatory functions comply with better regulation principles.

71. This consultation is being conducted in accordance with the provisions of section 13 of the LRRA. Information on LROs can be found at: Legislative Reform Orders (LROs) - UK Parliament.

72. Further information on the Cabinet Office consultation principles can be found at: Consultation principles: guidance - GOV.UK.

Parliamentary scrutiny

73. Both Houses of Parliament scrutinise draft LROs. This is conducted by the Regulatory Reform Committee in the House of Commons and the Delegated Powers and Regulatory Reform Committee in the House of Lords.

74. Each Committee might take oral or written evidence to help it decide these matters, and each Committee would then be expected to report.

75. Copies of Committees’ reports are available on the Parliament website at Regulatory Reform Committee in the Commons; and Delegated Powers and Regulatory Reform Committee in the Lords.

About this consultation

This consultation document and consultation process have been planned to adhere to the Consultation Principles issued by the Cabinet Office.

Representative groups are asked to give a summary of the people and organisations they represent, and where relevant who else they have consulted in reaching their conclusions when they respond.

Information provided in response to this consultation may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Environmental Information Regulations 2004 and UK data protection legislation.  In certain circumstances this may therefore include personal data when required by law.

If you want the information that you provide to be treated as confidential, please be aware that, as a public authority, the Ministry is bound by the information access regimes and may therefore be obliged to disclose all or some of the information you provide. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Ministry.

The Ministry of Housing, Communities and Local Government will at all times process your personal data in accordance with UK data protection legislation and in the majority of circumstances this will mean that your personal data will not be disclosed to third parties. A full privacy notice is included below.

Individual responses will not be acknowledged unless specifically requested.

Your opinions are valuable to us. Thank you for taking the time to read this document and respond.

Are you satisfied that this consultation has followed the Consultation Principles?  If not or you have any other observations about how we can improve the process please contact us via the complaints procedure.

Personal data

The following is to explain your rights and give you the information you are entitled to under UK data protection legislation.

Note that this section only refers to personal data (your name, contact details and any other information that relates to you or another identified or identifiable individual personally) not the content otherwise of your response to the consultation.

1. The identity of the data controller and contact details of our Data Protection Officer    

The Ministry of Housing, Communities and Local Government (MHCLG) is the data controller. The Data Protection Officer can be contacted at dataprotection@communities.gov.uk or by writing to the following address:

Data Protection Officer
Ministry of Housing, Communities and Local Government
Fry Building
2 Marsham Street
London
SW1P 4DF

2. Why we are collecting your personal data  

Your personal data is being collected as an essential part of the consultation process, so that we can contact you regarding your response and for statistical purposes. We may also use it to contact you about related matters.

We will collect your IP address if you complete a consultation online. We may use this to ensure that each person only completes a survey once. We will not use this data for any other purpose.

Sensitive types of personal data

Please do not share special category personal data or criminal offence data  if we have not asked for this unless absolutely necessary for the purposes of your consultation response. By ‘special category personal data’, we mean information about a living individual’s:

• race
• ethnic origin
• political opinions
• religious or philosophical beliefs
• trade union membership
• genetics
• biometrics 
• health (including disability-related information)
• sex life; or
• sexual orientation.

By ‘criminal offence data’, we mean information relating to a living individual’s criminal convictions or offences or related security measures.

3. Our legal basis for processing your personal data

There is a statutory duty to consult on this Legislative Reform Order and so the collection of your personal data is lawful under article 6(1)(e) of the UK General Data Protection Regulation as it is necessary for the performance by MHCLG of a task in the public interest/in the exercise of official authority vested in the data controller.  Section 8(d) of the Data Protection Act 2018 states that this will include processing of personal data that is necessary for the exercise of a function of the Crown, a Minister of the Crown or a government department i.e. in this case a consultation.

Where necessary for the purposes of this consultation, our lawful basis for the processing of any special category personal data or ‘criminal offence’ data (terms explained under ‘Sensitive Types of Data’) which you submit in response to this consultation is as follows. The relevant lawful basis for the processing of special category personal data is Article 9(2)(g) UK GDPR (‘substantial public interest’), and Schedule 1 paragraph 6 of the Data Protection Act 2018 (‘statutory etc and government purposes’). The relevant lawful basis in relation to personal data relating to criminal convictions and offences data is likewise provided by Schedule 1 paragraph 6 of the Data Protection Act 2018.

4. With whom we will be sharing your personal data

MHCLG may appoint a ‘data processor’, acting on behalf of the Department and under our instruction, to help analyse the responses to this consultation.  Where we do we will ensure that the processing of your personal data remains in strict accordance with the requirements of the data protection legislation.

5. For how long we will keep your personal data, or criteria used to determine the retention period

Your personal data will be held for 2 years from the closure of the consultation, unless we identify that its continued retention is unnecessary before that point.

6. Your rights, e.g. access, rectification, restriction, objection

The data we are collecting is your personal data, and you have considerable say over what happens to it. You have the right:

a. to see what data we have about you

b. to ask us to stop using your data, but keep it on record

c. to ask to have your data corrected if it is incorrect or incomplete

d. to object to our use of your personal data in certain circumstances

e. to lodge a complaint with the independent Information Commissioner (ICO) if you think we are not handling your data fairly or in accordance with the law.  You can contact the ICO at https://ico.org.uk/, or telephone 0303 123 1113.

Please contact us at the following address if you wish to exercise the rights listed above, except the right to lodge a complaint with the ICO: dataprotection@communities.gov.uk or

Knowledge and Information Access Team
Ministry of Housing Communities and Local Government
Fry Building
2 Marsham Street
London
SW1P 4DF

7. Your personal data will not be sent overseas

8. Your personal data will not be used for any automated decision making

9. Your personal data will be stored in a secure government IT system

We use a third-party system, Citizen Space, to collect consultation responses. In the first instance your personal data will be stored on their secure UK-based server. Your personal data will be transferred to our secure government IT system as soon as possible, and it will be stored there for 2 years before it is deleted.