Electoral Law A Joint Consultation Paper Joint Consultation Paper LCCP 218 / SLCDP 158 / NILC 20 (2014) Law Commission Scottish Law Commission Northern Ireland Law Commission Joint Consultation Paper LCCP 218 / SLCDP 158 / NILC 20 (2014) ELECTORAL LAW A Joint Consultation Paper © Crown copyright 2014 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at www.gov.uk/government/publications ISBN 9780108560859 ID 204121401 12/14 Printed on paper containing 75% recycled fibre content minimum Printed and published in the UK by the Stationery Office Limited ii THE LAW COMMISSIONS: HOW WE CONSULT About the Commissions: The Law Commission and the Scottish Law Commission were set up by section 1 of the Law Commissions Act 1965. The Northern Ireland Law Commission was set up by section 50 of the Justice (Northern Ireland) Act 2002. Each Commission has the purpose of promoting reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Lloyd Jones (Chairman), Professor Elizabeth Cooke, David Hertzell, Professor David Ormerod QC and Nicholas Paines QC. The Chief Executive is Elaine Lorimer. The Scottish Law Commissioners are: The Honourable Lord Pentland (Chairman), Laura J Dunlop QC, Patrick Layden QC, TD, Professor Hector L MacQueen and Dr Andrew J M Steven. The Chief Executive is Malcolm McMillan. The Northern Ireland Law Commissioner is: Dr Venkat Iyer. The Interim Chief Executive is Ken Millar. Topic of this consultation: The law governing the conduct of elections and referendums in the United Kingdom, including the legislative framework, rules governing electoral registration, polling, the count, campaign regulation, electoral offences and legal challenge. Geographical scope: England and Wales, Scotland and Northern Ireland. Availability of materials: The joint consultation paper is available at http://lawcommission.justice.gov.uk/consultations/electoral-law.htm; http://www.scotlawcom.gov.uk; and http://www.nilawcommission.gov.uk. Duration of the consultation: We invite responses from 9 December 2014 to 31 March 2015. How to respond Please send your responses either – By email to: [email protected] or By post to: Mr Henni Ouahes, Law Commission, 1st Floor, Tower, 52 Queen Anne’s Gate, London SW1H 9AG Tel: 020 3334 3599 / Fax: 020 3334 0201 If you send your comments by post, it would be helpful if, where possible, you also sent them to us electronically (in any commonly used format). After the consultation: In the light of the responses we receive, we will decide on our recommendations for reform in this area and present them to Government in the form of a report. iii Consultation Principles: The Law Commission follows the Consult ation Principles set out by the Cabinet Of fice, which provide guidance on type and scale of consult ation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at: https://www.gov.uk/government/publications/consultation-principles-guidance. Information provided to the Law Commissions We may publish or disclose information you provide us in response to this consultation, including personal information. For example, we may publis h an extract of your response in Law Commission publications, or publish the response in its entir ety. We may also be required to disclose the information, such as in accordance with t he Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002. If you want information that you provide to be treated as confidential please contact us first, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic disclaimer generated by your IT system will not be regarded as binding on the Law Commissions. The Law Commissions will process your personal data in accordance with the Data Protection Act 1998. iv LAW COMMISSION SCOTTISH LAW COMMISSION NORTHERN IRELAND LAW COMMISSION ELECTORAL LAW CONTENTS CHAPTER 1: INTRODUCTION 1 Stages of this project 1 Terms of reference 1 Elections and referendums within scope 2 Outline of the consultation paper 4 Devolution and a tripartite reform project 5 Impact assessment 6 Engagement with electoral stakeholders 7 Glossary 8 CHAPTER 2: THE LEGISLATIVE STRUCTURE 11 Introduction 11 The Representation of the People Act 1983 11 Developing electoral policy in this legislative framework 15 Electoral law to be set out centrally for all elections 17 CHAPTER 3: MANAGEMENT AND OVERSIGHT 20 Introduction 20 Local electoral administration 20 Electoral registration officer 20 Returning officer 22 v Co-operation between returning officers 24 The centralised administration of elections in Northern Ireland 27 The Electoral Commission 27 Promoting consistency 28 Reform of the management structure for UK elections 30 The duty to designate and review polling districts 31 Reforming the law on administrative areas 33 CHAPTER 4: REGISTRATION OF ELECTORS 35 The electoral franchises 35 Restating the franchise centrally for all UK elections 37 Residence and special category electors 37 The concept of residence in the electoral context 38 Notional residence and special category electors 46 Reforming the law on residence 50 Electoral registration generally 58 The modern electoral objective of registration 58 Five electoral registers in legislation 58 The organisation of electoral registration 60 Pending elections and the deadline for registration 70 Resident EU citizens and EU Parliamentary elections 73 Registration in Northern Ireland 75 Access to the register 78 Reforming electoral registration 80 The legislative framework for registration 80 Administering resident EU Citizens’ declaration of intent to vote in the UK 84 CHAPTER 5: MANNER OF VOTING 86 Introduction 86 vi Voting is by secret ballot 86 Rights-based analysis of qualified secrecy 91 Qualified secrecy and the alternative of voter identification at the poll 93 The reform aims in the context of the ballot system and qualified secrecy 95 Reforming the provisions on secrecy and vote tracing 95 Ballot paper design and content 97 Detailed prescription in election rules 98 The alternative approaches to prescribing ballot paper form and content 99 Ballot papers to be prescribed in secondary legislation 100 Form of ballot paper 102 CHAPTER 6: ABSENT VOTING 103 Introduction 103 The scope of reform of absent voting in the UK 103 Absent voting entitlements and records 104 Absent voting in Great Britain 104 Absent voting in Northern Ireland 109 Reforming the legal framework for absent voting 109 The administration of absent voter status 111 Postal voter status in Great Britain 111 Proxy voter status in Great Britain 115 Absent voter status in Northern Ireland 117 Reforming the administration of absent voter status 119 Postal voting process 120 Outline of the rules governing the postal voting process 122 Differences in the postal voting process in Northern Ireland 126 Postal voting fraud 128 Campaign handling of absent voting applications and postal votes 131 Reform of the law on the postal voting process generally 134 vii CHAPTER 7: NOTICE OF ELECTION AND NOMINATIONS 136 Introduction 136 Notice of election 136 The nomination process 137 The nomination paper 137 Time, place and attendance at nominations 141 Powers of the returning officer in relation to nomination papers 142 Is abuse of the right to nomination a ground for invalidating papers? 144 Election-specific features of nomination rules 146 Provisional reform proposals 148 A single nomination form emanating from the candidate 148 The role of the returning officer 151 CHAPTER 8: THE POLLING PROCESS 154 Introduction 154 Voter information and other public notices 154 Reform of the duties relating to voter information and other public notices 156 The logistics of polling 157 Provisional reform proposals for logistics of the poll 160 Regulating polling day 162 Controlling access and maintaining order 162 Prescribing the voting procedure 163 Queues at the close of polls 167 Reforming the law governing polling 171 Equal access for disabled voters 173 Supervening events frustrating the poll 177 Suspending the poll for “riot or open violence” 177 Death of a candidate 177 viii Reforming the law on death of candidates 180 Rioting and other supervening events 181 CHAPTER 9: THE COUNT AND DETERMINATION OF THE RESULT 185 The classical rules: first past the post contests 185 Transposing the classical rules to other elections 193 Reforming the law on conducting counts 195 Elections using the single transferable vote 199 Provisional reform proposals regarding STV counts 202 Electronic counting 202 Provisional proposal on reform of electronic counts 205 Transparency of the electronic counting system 205 CHAPTER 10: TIMETABLES AND COMBINATION OF POLLS 207 Introduction 207 Electoral timetables 207 The orientation of timetables 208 The unique orientation of the UK Parliamentary timetable 209 Aligning the UK Parliamentary election timetable with others 212 Legislative timetables generally 214 A standard timetable for UK elections 216 The combination of polls 219 Combinability of coinciding polls 220