ELECTORAL LAW

Summary of final report INTRODUCTION PART ONE: THE BIG PICTURE The main Act governing elections is the Representation of the People Act 1983 (“the This is a quick read summary of the Law Commission We published our interim report in 2016, and it 1983 Act”), which contains the law governing UK of and and the Scottish Law received a great deal of support from bodies such Overview of electoral law Parliamentary and local government elections. It sets Commission’s final report on Electoral Law. as the Electoral Commission and the Association This project covers many different types of election, out the parliamentary and local election franchise, of Electoral Administrators. There is consensus in a number of which were introduced after 1999. the framework for registering voters and running The structure of this summary follows the structure the electoral law that there is a pressing The project covers: elections, how electoral campaigns are regulated and of our final report. In Part One we give an overview need for reform of electoral law. of electoral law, and some of the problems with 1. UK Parliamentary elections; the mechanism for challenging elections. Schedule 1 to the 1983 Act also contains more detailed rules for it. Here we also discuss our recommendations 2. Scottish Parliamentary elections; for improving the legislative framework governing running UK Parliamentary elections. These are known 3. Welsh Parliamentary elections; elections (see chapter 2 of the final report). In Part Two “The updating and as the parliamentary “elections rules”. we focus on the reform of discrete, technical areas of 4. local government elections in England and Wales; The rules for all other types of election are contained electoral law, with a focus on electoral administration. simplification of electoral law 5. local government elections in ; in separate pieces of legislation that apply to that That includes the management and oversight of must be seen as a pressing 6. Authority elections (to the particular type of election. We describe this as an elections, the registration of electors, absent voting by and of the London Mayor); “election-specific” approach to electoral legislation. post or proxy, the nomination of candidates, electoral priority for the Government.” 7. mayoral elections in England and Wales; As shown in the diagram, the pieces of legislation offences and legal challenge. – Parliamentary and 8. mayoral elections in governing other types of election generally amend, In December 2012 we published a scoping report and Constitutional Affairs England and Wales; and copy or import sections of the 1983 Act. agreed with government that we would not consider 9. Police and Crime Commissioner elections issues such as: who is entitled to vote (known as the Committee. in England and Wales. franchise); whether the voting system at elections should be first-past-the-post or proportional representation; and electoral boundaries. Adapting the 1983 Act for new elections.

Representation of the People Act 1983

Amends Copies Imports

See 1983 Act

1 Electoral law – Summary of final report Electoral law – Summary of final report 2 The problems with electoral law 4. Fragmented: There are now at least 25 statutes Devolution We also propose that there should be, as far as containing rules for running elections. After 1999, possible, a general and consistent set of rules 1. Out-of-date: The 1983 Act has its origins in Some electoral law is devolved to the Scottish and each time a new election was introduced a new for elections. The current law is unnecessarily legislation dating from the mid-19th century. Welsh (the ). The Scottish and piece of legislation was also introduced to provide complicated, and many rules are repeated in each Much of it has not been updated since. Welsh governments have power to make elections the rules for that election. Any new legislation election-specific piece of legislation. Again, nearly rules for Scottish and Welsh Parliamentary elections 2. Complicated: Electoral law is very detailed and tends to either copy the 1983 Act word‑for‑word, all of our consultees supported this proposal. and local government elections in those jurisdictions. prescriptive. It leaves electoral administrators very or replicate significant portions of it, adapting the There are some rules for those elections that remain the limited discretion in how to run polls. Over time, the wording to account for any differences in voting responsibility of the UK . These include the Rationalisation drafting of these laws has become complex. This systems. As a result there is simply too much means bodies such as the Electoral Commission rules regulating donations to registered political parties. legislation, much of it almost identical to the Electoral laws should be have to spend a lot of time preparing guidance to 1983 Act. consistent across elections, administrators to explain how they should interpret Our recommendations the law. This approach also means that when innovations subject to differences in We recommend there should be a single, consistent are introduced, or policy updated, amendments voting systems or other 3. Legislative gaps: Another aspect of electoral legislative framework which applies to all elections and need to be made to multiple pieces of legislation. good policy reasons. law’s detailed, prescriptive approach, is that there referendums. We refer to this as “rationalisaiton”. The For example, when the law was changed to allow are several gaps in its regulation. Gaps generally result is that there would be one UK Act of Parliament, those queuing at the close of polls to cast their arise where there have been new developments, and secondary legislation made under it, that governs vote, changes had to be made to ten distinct such as postal voting, social media or modern UK-wide and England-only elections and referendums. pieces of legislation. The innovation was intended technology, and older law has not been modified The Scottish and Welsh Parliaments have the power to apply at all elections, but the election-specific accordingly. to create their own legislation governing devolved approach to electoral legislation meant it had to be “Electoral law should be elections. This recommendation received near implemented bit by bit. unanimous support from consultees. framed in a manner which enables the interested citizen Elections over time Rationalisation at least to locate the statutory The current laws governing setting of relevant rules. Our elections should be rationalised into a single, consistent legislative regime is opaque 1883 1983 2020 legislative framework governing and often impenetrable to the all elections (enacted in non‑expert…” accordance with the UK legislative competences). – Dr Heather Green (University of Aberdeen).

Secret ballot only Last consolidation Widespread digital a decade earlier – of electoral law – campaigning Ballot Act 1872 Representation of the People Act 1983 Individual, online Few men, and no women registration were entitled to vote Registration by household Postal voting on demand Rioting and open violence Lack of centralised affecting polling oversight – no Electoral Commission

3 Electoral law – Summary of final report Electoral law – Summary of final report 4 The diagram shows our recommended framework for electoral law in the UK. The balance between primary and We think the balance between primary and secondary secondary legislation legislation and Electoral Commission guidance should Our proposed legislative scheme be as follows: Next time there is a wholesale reform of electoral law, decisions will have to be made about whether 1. Primary legislation: rules should be contained in primary or secondary a. Fundamental provisions, which include legislation. Some provisions may not need to be in constitutional matters, such as the franchise Scottish Elections legislation at all, and could be left to the judgement and voting system, and Act of returning officers, supported by Electoral b. Structurally important electoral law, including Commission guidance. the electoral register, absent voting, the regulation of the election campaign, electoral Scotland offences, and provisions on legal challenge to One consolidated act for elections within elections. Holyrood competence 2. Secondary legislation: More detailed or technical rules on the conduct or administration of the poll and count. 3. Electoral Commission guidance or returning officer discretion: Purely administrative, best Welsh practice or organisational provisions. Elections Act

Who’s Who Wales There are a number of individuals and bodies responsible for different aspects of elections, including One consolidated act voter registration, preparing ballot papers and managing polling stations and campaign regulation. for elections within Cardiff Bay competence Registration officer An official of a local authority who is responsible for maintaining a register of people residing in the local authority area who can vote at elections.

Returning officer The official responsible for conducting an election in a specific

UK area. In England and Wales, the returning officer is usually also Elections Act the registration officer. In Scotland the posts are usually held by two different officials.

United Kingdom Presiding officer The person appointed by the returning officer to preside over One consolidated act a particular polling station. for elections within Westminister competence Polling clerk Officials appointed by the returning officer to assist the presiding officer.

The Electoral Commission The independent statutory body that regulates political party and campaign finance in the and sets standards and provides guidance on the administration of elections. The Commission is also tasked with administering national referendums.

5 Electoral law – Summary of final report Electoral law – Summary of final report 6 PART TWO: REFORMING There are also complex rules governing particular One of the aims of this project is to modernise This election-specific approach created a problem at ELECTORAL ADMINISTRATION types of voter, who are entitled to vote in an area, electoral law. At present an individual can only vote at the May 2011 referendum on the parliamentary voting even though they do not usually reside there. The the polling place they are assigned to. In order to allow system. The Yes campaign sent voters a bespoke category includes merchant seamen, mental health people to vote at a polling station of their choosing, a form applying for a postal vote at the referendum only. patients, remand prisoners, service voters, overseas “live” register would be required, showing in real time However, the referendum took place on the same “Potential voters may find electors and homeless people. Those voters are if the voter had already voted. In order for that to be day as some local government elections, notably in deemed to be “notionally resident” in an electoral area. possible, electoral management systems will need to London. Voters who used the bespoke referendum that important aspects be able to export data to each other. form did not also get a postal vote for the local of registering, voting and We take the view that the complex test for determining government elections. Since many voters who apply residence should be restated in primary legislation, to vote by post do so because they are away from Modernisation campaign transparency are incorporating any interpretation of residence that home (for example, on holiday), many were only able has been provided by case law. so old-fashioned or opaque Secondary legislation may to vote at the referendum, and not at local elections that they don’t have enough require that the data in happening on the same day. Filling legislative gaps registration officers’ electoral We think the law governing entitlement to an absent trust in politicians or elections management systems should The law on electoral residence vote should reflect the fact that, in reality, people be capable of being exported to cast their vote.” should be set out clearly and are choosing to vote by post or proxy at any and to and interacting with other all elections for a certain period, or on a particular – The Electoral Commission simply in primary legislation. officers’ software. day, rather than at a particular type of election. We A list of factors should be also think a prescribed form would reduce the risk provided to assist registration of inconsistency in absent voting applications, and Before Polling Day officers with their decisions should be set out in secondary legislation. and ensure consistent Absent voting Registration decision‑making. An absent vote is a way of voting without attending Rationalisation The 1983 Act contains the rules governing registration a polling station on polling day. This can be done at UK Parliamentary elections. Those rules are through a postal vote or by appointing a proxy The law governing absent recreated in separate pieces of election-specific The current patchwork of legislation and regulations (someone who casts a vote on behalf of another voting should apply to all types legislation. The 1983 Act was passed at a time when governing registration also envisage five different person). Since 2000, postal voting has been available of elections, and applications registration was done once a year by household. Now, electoral registers kept on paper. In reality, those five on demand in Great Britain. A voter can only appoint to become an absent voter registration is year round (individual registration was registers are combined in one dataset contained in a proxy to vote on their behalf if they can’t attend the should not be capable of being introduced in 2013) and voters can register online. software operated by the registration officer. This is polling station, for example because of work or illness. made selectively for particular known as an “electoral management system”. We think types of elections. it is important that the law reflect current practice. In Great Britain the law governing entitlement to an absent vote is contained in the Representation of the People Act 2000 (“the 2000 Act”). The 2000 Simplification Act applies to UK Parliamentary elections, local government elections in England and Wales, elections Simplification Primary legislation should to the , and local government prescribe one electoral register Absent voting applications elections in Scotland. Separate pieces of secondary should substantially adhere that can be in either paper or legislation apply the 2000 Act provisions to other electronic form. It should be types of election. to prescribed forms set out possible for the single register in secondary legislation. to show which election(s) an One of the difficulties with the law’s election-specific individual is entitled to vote at. approach is that it envisages separate records of A person is entitled to be registered in an electoral postal voters under each piece of legislation. That area if they are resident in that area. However, means an individual may be registered for an absent defining what is meant by residence is difficult and vote at one type of election, but not another, even if the law is very complex. The 1983 Act does not they are held on the same day. Complex drafting is define residence, and instead lists factors that tend required to ensure a voter is entitled to an absent vote to establish residence. Those factors have been at all the elections and referendums they might vote at. supplemented by case law.

7 Electoral law – Summary of final report Electoral law – Summary of final report 8 Nomination of candidates for election Sham nominations Polling Day Management and oversight The nominations process determines the name and Over time the courts have accepted that returning Returning officers are responsible for the details of candidates that will appear on a ballot paper. officers can reject what we call “sham nominations”. The secret ballot administration of elections. The 1983 Act sets out Here also, electoral law’s election-specific, highly There are two types of case which still pose a problem The secret ballot has been the cornerstone of voting returning officers’ duty to conduct elections. The duty detailed approach to prescription results in the law for returning officers: in the UK since 1872. Requiring votes to be cast in is copied, with some changes, in legislation applying being overly complex, while leaving gaps in regulation. the privacy of the polling booth helps protect against to other types of elections. We do not think there is 1. The spoiler candidate who imitates a well-known influence and corruption. Section 66 of the 1983 Act any reason for this duplication. At UK Parliamentary elections, for example, a person’s name – for example the candidate who provides: candidate (or their agent) must personally deliver changed his name to Margaret Thatcher and ran in a number of separate forms to a returning officer: her constituency. 1. candidates, administrators and observers must Rationalisation a nomination paper, a consent to nomination form maintain and aid the secrecy of the poll; 2. The fictitious candidate – for example the The powers and duties of and a home address form setting out the candidate’s mannequin who was nominated for a local 2. the voting public must not interfere with other returning officers should be residential address. If the candidate is affiliated with government election in Aberdeen. voters, induce them to display a completed ballot a political party they must also deliver a certificate of paper or obtain information as to how they voted; set out in as few statutes as authorisation and request to use the party’s emblem. We think this area of law is unclear and risks and possible; ideally one statute confusion and inconsistent practice. A power to Other elections’ rules make similar provisions, though 3. those attending the count of ballot papers must for each of the UK, Welsh and reject nominations should be set out in legislation. these occasionally diverge. not communicate information obtained at the count Scottish Parliaments. We think the law’s requirement for nomination should be or ascertain ballot paper numbers. simpler, and see no reason why a would-be candidate Section 66 does not apply to postal voting. The law is To help the running of the poll, constituencies, wards should be required to deliver multiple separate forms. also silent on a significant new challenge to secrecy: and divisions (depending on the type of election) the possibility of the voter using their mobile phone to are broken down into administrative areas. These take a picture of a completed ballot paper. The secret Simplification areas are called “polling districts”. Under the current ballot is key to maintaining both the integrity of the rules, local councillors (who are necessarily political A single set of nomination poll, and public confidence in elections. But there may actors) review parliamentary polling districts. We be good reasons – for example publicising electoral papers, emanating from the think the designation and review of polling districts is participation – to allow some photos to be taken of the candidate, and containing all an administrative matter which ensures the effective voting process. We think the law should be expanded the necessary details such as organisation of polls, and that polling is convenient and updated to reflect modern conditions. their name and address, should for voters. For those reasons, we think it is a job for replace the current mixture returning officers. of forms. Modernisation The secrecy provisions in Modernisation section 66 of the 1983 Act The designation and review As noted above, at UK Parliamentary elections the should be expanded to ensure of polling districts is an Filling legislative gaps rules require a candidate to physically deliver their postal voting is secret, and administrative matter which nomination paper to the returning officer. However, Returning officers should prohibit individuals taking should be the responsibility of the position at local government elections is less have an express power to photographs at the polling returning officers, rather than clear. We think the law should be modernised to allow reject nominations that use station unless approved by local councils. candidates to deliver nomination papers by post or the presiding officer. email. This may be helpful for would-be candidates in a candidate’s name which more remote, rural areas. We also think a candidate is designed to confuse or should still be able to deliver their nomination paper by mislead electors, or obstruct hand if they so wished. voting generally, or is obscene or offensive. Modernisation Nomination papers should be capable of being delivered by hand and other means, such as post and electronically (for example by email).

9 Electoral law – Summary of final report Electoral law – Summary of final report 10 The polling process 2. Voters with disabilities may vote with the assistance 3. As we discussed in Part One, the 1983 Act has Counting ballot papers The rules governing polling are long and complex. of a companion at the polling station if they need its origins in laws that were introduced in the At Greater London Authority (“GLA”) elections and Like many other areas of electoral law, they are set out assistance to cast their vote. To be a companion mid‑19th century. In the 19th century it was not Scottish local government elections ballot papers are in separate pieces of legislation for different types of a person must either be entitled themselves to uncommon for candidates to pay individuals to counted electronically. At both, the electronic counting election. Despite that, the content of these rules is very vote at the election, or be an adult family member interrupt polling. Surprisingly, the 1983 Act still devices scan ballot papers on both sides, detect votes similar, and voters’ experiences of the polling process (meaning a parent, sibling, spouse, civil partner or states that the presiding officer should adjourn the that may be fraudulent, and record and count the are typically identical regardless of the election they child) of the voter who needs assistance. We think poll if there is rioting or open violence. papers electronically. However, the rules for electronic are voting at. We outline three of the difficulties we the list of family members should be expanded counting are not consistent at GLA and Scottish local This is outdated and does not allow a poll to identified in the current rules. to include grandparents, adult grandchildren government elections. We think inconsistent counting be adjourned for any other emergency. Recent and cohabitants. rules are unsatisfactory and if electronic counting was examples that threatened to disturb polling 1. The election rules allow a returning officer to use introduced for other types of elections could lead to Under the current rules, both the voter and are: the volcanic ash clouds which led to flight any room in a school for the purposes of a poll for many different sets of rules. We think the law should companion must make a formal declaration. cancellations close to the 2010 general election, free. There is often disagreement between returning deal with that issue by providing a standard set of We do not think the formal declaration is a and flooding in the south‑east during the 2016 officers and schools, especially if an election would electronic counting rules. This would make it easier meaningful check against deception; in our view referendum. We think the law should permit a interfere with exams or Christmas plays. It is also to implement electronic counting in the future. unclear whether a returning officer may demand it is unnecessary and makes the process overly poll to be adjourned in the event of emergencies the use of a particular room, if the school would complicated for voters with disabilities. generally, not just rioting and open violence. prefer to offer another one. We think the law should Modernisation We also think returning officers, not presiding be simplified and made clearer. Simplification officers, should decide if a poll should be adjourned A standard set of counting because of an emergency. Returning officers rules should apply to all Presiding officers should can make decisions covering the electoral area, permit voters with disabilities elections with a subset of whereas presiding officers only deal with their rules for electronic counting. to vote with the assistance of assigned polling station. Leaving such a decision to Secondary legislation should a companion where a voter presiding officers made sense in the 19th century. determine which elections use appears to be unable to vote Nowadays, presiding officers can instantly contact without assistance. Neither the returning officer for a direction. We think the law electronic counting. a voter nor a companion should reflect modern conditions and recognise should have to make a that such a weighty decision should be for formal declaration. returning officers.

Modernisation Returning officers should have the power to adjourn a poll in Simplification the case of an emergency that affects a significant number of Returning officers should voters in the electoral area. have the power to select and control premises maintained at public expense for polling. However, the returning officers have a duty to compensate the direct costs of providing the premises.

11 Electoral law – Summary of final report Electoral law – Summary of final report 12 Electoral offences Proposed reforms of the “classical offences”

“Some criminal offences are created by remarkably inaccessible and tortuous forms of legislative drafting” – Professor James Chalmers Bribery: Treating: Undue Influence: A person shall be guilty A person shall be guilty A person shall be guilty and Professor Fiona Leverick of bribery if he, directly or of treating if he … gives or of undue influence— (University of Glasgow). indirectly, by himself or by any provides, or pays wholly or (a) if he… makes use of or other person on his behalf— in part the expense of giving threatens to make use of any (a) gives any money or or providing, any meat, drink, force, violence or restraint, entertainment or provision There are dedicated criminal offences that regulate ‘Chairing the Member’ by William Hogarth – procures any office to or inflicts or threatens to to or for any person— conduct at elections. The 1983 Act sets out these from The Humours of an Election series, 1755 or for any voter … in order inflict, by himself or by any electoral offences for UK Parliamentary and local to induce any voter to vote (a) for the purpose of corruptly other person, any temporal government elections. Those offences serve as a As well as being outdated, some of the classical or refrain from voting… influencing that person or any or spiritual injury, damage, template for the offences in legislation governing offences are widely drafted and overlap with each other person to vote or refrain harm or loss upon or against other elections. In our report, we focus on some other. For example, bribery and treating. from voting; or any person in order to induce long-established offences regulating the conduct (b) on account of that person or compel that person to vote We think the classical offences should be simplified or refrain from voting… of candidates and their agents; in particular undue or any other person having and modernised to reflect the current challenges influence, bribery and treating (we refer to these as the voted or refrained from (b) if, by abduction, duress in electoral law. The diagram on the next page “classical offences”). There are other electoral offences voting, or being about to or any fraudulent device shows the current definition of the classical offences not considered in detail, such as pretending to be vote or refrain from voting.… or contrivance, he impedes alongside our recommended reforms. or prevents, or intends to another person in order to cast a vote (“personation”) impede or prevent, the free and interfering with postal votes. Digital Imprints exercise of the franchise Some electoral offences are also labelled as “corrupt” of an elector or proxy for Under the current law printed campaign material an elector…. or “illegal” practices. If a candidate or their agent is must be labelled (or “imprinted”) with the name of found guilty of a “corrupt” or “illegal” practice, the the person who causes it to be published. The law consequences are: does not currently apply to online campaign material, 1. if the guilty candidate won the election, their making it difficult to see who is responsible for political election will be declared invalid; advertising online (and to track whether spending in that sector is accounted for in expenses returns). We 2. the guilty person is disqualified from standing as think the imprinting requirement should be modified to a candidate in future elections for a set period. reflect the growth of online campaigning and the use Bribery: Undue Influence: For “corrupt” practices that period is five years; of social media in recent years. The UK government Simple modern offence including (1) Intimidation for “illegal” practices it is three years. is already considering how the imprinting requirement inducements other than money and (2) Deception employment, such as food and drink. (3) Improper pressure. Pressure will Like many other areas of electoral law, the electoral should be applied to online campaign material. be improper if: offences are complex and outdated, and some Mental element: intention to procure a. It involves the commission or threat overlap with each other. They originate from a time or prevent the casting of a vote at Modernisation an election. of commission of an illegal act; or when candidates routinely bribed voters and hired b. A reasonable person would regard violent mobs to disrupt polling. The painting shows an The imprinting offence should it as improperly impeding the free election in Oxford in 1754. It is clear a lot has changed be extended to cover online exercise of the franchise. since the painting, and widespread violence does not campaign material that may regularly affect polling. be regarded as intending to promote a particular result in an election.

13 Electoral law – Summary of final report Electoral law – Summary of final report 14 Legal challenge Another problem with the current system is that the “For Election Petitioners it was law is not clear on exactly what grounds an election An individual can challenge the result of an election can be challenged. Anyone who wants to challenge by bringing an “”, seeking to have that very frustrating that we had an election must decipher complex legislation and election declared invalid, or correct the result. Petitions to take on and try to fund a difficult and outdated case law. are heard by an “election court”. An election court is massive High Court action, not part of the ordinary court system in England and We think it is important that the grounds for Wales, and the standard rules of procedure, the “Civil with a trial lasting 7 weeks” challenging elections should be clear and accessible Procedure Rules”, do not apply (instead the rules – Andy Erlam, who challenged to the public. This will require a positive statement in for election courts are found in the 1983 Act). statute of those grounds, in contrast to the current the election of Lutfur Rahman complex mixture of opaque statutory provisions We recommend the procedural rules governing and case law. electoral petitions should be modernised and in Tower Hamlets. simplified, and that election petitions should be heard in the ordinary court system in England Simplification and Wales. The grounds for challenging an election should be restated and Election Petitions problems and solutions positively set out.

Problems: Solutions: (1) No way to filter out unmeritorious petitions (1) Modern rules of procedure, allowing judges means that “far-fetched” arguments are still to filter out unmeritorious claims and parties heard in court. This takes up lots of court time to refine the issues. and results in unnecessary costs being incurred (2) Election courts should be able to cap the by all parties. amount of costs any party will be required to (2) Electoral petitions are expensive. To challenge pay. This is known as a protective costs order a parliamentary election a claimant must in England and Wales, and a protective pay up to £5,000 into court to cover the expenses order in Scotland. defendant’s costs. (3) Electors should be able to refer less serious (3) Electoral petitions are for complaints which problems to local government ombudsmen. seek to affect the election or overturn the result: there is no system for hearing informal complaints.

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