Commentary on Sections Circumstances in which votes may be tendered Section 38 Tendered votes in certain circumstances
242.This section amends rule 40, the Representation of the People Acts 1983 and 1985, and Schedule 4 to the Representation of the People Act 2000 (Absent voting in Great Britain). The section outlines two new circumstances where a tendered ballot can be issued to a voter.
243.Subsection (1) relates to an elector who discovers, upon attending his polling station, that he has without his knowledge been included on the list of postal voters or postal proxy voters who may not vote in person at a polling station. The new rule 40(1ZA) to (1ZC) provides that such a person is to be permitted to mark a tendered ballot paper. The person can be asked questions to determine whether they come within the scope of the provision. The questions – inserted by the new rule 35 substituted by paragraph 74 of Schedule 1 – concern whether they applied to vote by post and why they have not voted by post.
244.Subsection (2) also amends rule 40, in this case adding rule 40(1ZD) and (1ZE). It will become possible for a postal voter or postal proxy voter to be issued with a tendered ballot paper at a polling station if the deadline for requesting a replacement postal ballot paper has expired, and before the close of voting. The elector will be allowed to mark a tendered ballot paper if their answer satisfies the presiding officer that they have lost or not received their postal ballot paper.
245.Paragraph 74 of Schedule 1 inserts the new questions that may be put to the voters into rule 35. This rule outlines the questions a Presiding Officer may ask a person who has requested a ballot paper at the polling station.
246.Subsection (3) inserts section 61(6A) of the 1983 Act, which relates to certain voting offences. The new provision excepts from the scope of voting offences the circumstances covered in subsections (1) and (2) of this section. A person who votes at a polling station when entitled to vote by post is not guilty of a voting offence if the vote cast is a tendered ballot paper. Similarly, a person who votes in person as a proxy for another elector when entitled to vote as a postal proxy, is not committing an offence when voting by a tendered ballot paper.
247.Subsection (6) makes two amendments to Schedule 4 of the Representation of the People Act 2000, in relation to Great Britain. The insertion of paragraph 2(6A) of the Schedule removes the prohibition on absent voters voting at a polling station. The effect is that paragraph 2 does not apply to voters casting a tendered ballot paper in the circumstances referred to above. Similarly, the insertion of paragraph 7(10) means that paragraph 7 of Schedule 4 does not prohibit postal proxies casting a tendered vote at a polling station in the circumstances referred to above. Subsections (4) and (5) similarly amend the equivalent legislation in relation to Northern Ireland, namely sections 5 and 9 of the Representation of the People Act 1985 respectively (which have been repealed as regards Great Britain).