Electoral Law an Interim Report

Electoral Law An Interim Report 4 February 2016 Law Commission Scottish Law Commission Northern Ireland Law Commission ELECTORAL LAW A Joint Interim Report © Crown copyright 2016 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 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.lawcom.gov.uk/project/electoral-law/ www.scotlawcom.gov.uk ii THE LAW 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 for England and Wales are: The Right Honourable Lord Justice Bean, Chairman Professor Nick Hopkins Stephen Lewis Professor David Ormerod QC Nicholas Paines QC The Chief Executive is Elaine Lorimer The Scottish Law Commissioners are: The Honourable Lord Pentland, Chairman Caroline Drummond David Johnston QC Professor Hector L MacQueen Dr Andrew J M Steven The Chief Executive is Malcolm McMillan The Chairman of the Northern Ireland Law Commission is: The Honourable Mr Justice Maguire The terms of this interim report were agreed on 1 February 2016. This publication is available at www.lawcom.gov.uk/project/electoral-law/ www.scotlawcom.gov.uk iii LAW COMMISSION SCOTTISH LAW COMMISSION NORTHERN IRELAND LAW COMMISSION ELECTORAL LAW INTERIM REPORT CONTENTS GLOSSARY OF TERMS IX-XIV CHAPTER 1: INTRODUCTION 1 The stages of this project 1 Terms of reference 2 Elections and referendums within scope 3 Law reform and policy 3 Our public consultation 4 Outline of this report 5 Impact assessment 6 CHAPTER 2: LEGISLATIVE FRAMEWORK 7 Introduction 7 The balance between primary and secondary legislation 8 Rationalising election law within the devolutionary framework 11 Consultees’ responses on rationalising electoral law and devolution 13 CHAPTER 3: MANAGEMENT AND OVERSIGHT 17 Introduction 17 The legal structure for running elections 17 Legislative framework for management and oversight of elections 18 iv Correcting “procedural errors” and correcting declarations of the result 20 Administrative areas 24 CHAPTER 4: THE REGISTRATION OF ELECTORS 28 Introduction 28 Franchise 28 Residence 29 The issue of registration at a second residence 30 Special category electors 39 Registration generally 39 Other issues raised during the consultation 45 Recommendations on electoral registration generally 46 CHAPTER 5: MANNER OF VOTING 48 Introduction 48 The secret ballot 48 Ballot paper design and content 54 Support for our twin proposals 55 Promoting access by disabled voters 55 Disagreement with our proposals 55 The case for design and prescription by the Electoral Commission 56 Our recommendations 57 CHAPTER 6: ABSENT VOTING 58 Introduction 58 Absent voting entitlements and records 58 Administration of absent voter status 61 The postal voting process 67 v The response to postal voting fraud 68 The scope of the reform of postal voting in the UK 68 Regulating campaigners’ handling of postal votes 70 Reservations about regulation targeted at campaigners 72 Our conclusions on regulation of campaign handling of postal votes 75 CHAPTER 7: NOTICE OF ELECTION AND NOMINATIONS 76 Introduction 76 Reviewing subscriber requirements 77 The nomination paper 78 The role of the returning officer 82 CHAPTER 8: THE POLLING PROCESS 85 Introduction 85 Voter information and other public notices 85 The logistics of polling 87 The voting procedure 91 Equal access for disabled voters 95 Wider accessibility concerns 95 Supervening events frustrating the poll 101 Conclusions on supervening events 108 CHAPTER 9: THE COUNT AND DECLARATION OF THE RESULT 110 Introduction 110 Standard polling rules 110 Timing of the count 111 Representation at the count 114 STV counts 115 vi Electronic counting 116 Conclusions 120 CHAPTER 10: TIMETABLES AND COMBINATION OF POLLS 121 Introduction 121 Electoral timetables 121 Legislative timetables generally 124 The combination of polls 127 CHAPTER 11: ELECTORAL OFFENCES 137 Introduction 137 The legislative framework for electoral offences 137 The place of “corrupt and illegal practices” within the scheme 139 The electoral offences 139 The classical campaign corrupt practice offences: bribery, treating and undue influence 139 Bribery and treating 139 Undue influence 141 Reforming the offence of undue influence 147 Illegal practices targeting campaign conduct 150 Combatting electoral malpractice 156 CHAPTER 12: REGULATION OF CAMPAIGN EXPENDITURE 158 Introduction 158 Central legislative expression of core campaign regulation 158 Expense limits calculated by formula 159 Accessing the electoral register for the purpose of verifying donors 161 Simplifying the provisions on expenses returns 162 Powers and sanctions for candidate expenses offences 166 vii Expenses returns in uncontested parish elections 166 Location of election agent’s office address 167 CHAPTER 13: LEGAL CHALLENGE 168 Introduction 168 The grounds for bringing a legal challenge 168 Disqualifications 174 The procedure for legal challenge 177 Proposals and questions concerning the public interest aspect of legal challenges to elections 184 Conclusion on the public interest petitioner 191 CHAPTER 14: REFERENDUMS 195 Introduction 195 National referendums 195 Local referendums 196 Other types of local referendums 199 Parish polls 200 APPENDIX A: LIST OF RECOMMENDATIONS 206 APPENDIX B: LIST OF CONSULTEES 216 APPENDIX C: LIST OF CONSULTATION EVENTS 219 viii GLOSSARY OF TERMS The 1983 Act The Representation of the People Act 1983. The 1985 Act The Representation of the People Act 1985. Absent voting Voting without personally attending at a polling station: either postal voting or voting by proxy. Additional Systems of voting in which, in addition to candidates elected by member systems the first past the post system, further members of the elected (AMS) body are elected by a different voting system such as the party list. Candidate’s agent The legislation generally requires a person to be appointed by a candidate to perform certain functions in connection with an election on the candidate’s behalf. Other persons acting in support of a particular candidate are also referred to as the candidate’s agents, and misconduct by such agents is capable of invalidating a candidate’s election. Assisted voting Voting with the assistance of a companion, or that of the presiding officer. The The process of identifying people who are qualified to vote, for the canvass/canvass purpose of entering them on the local electoral register. It normally form involves sending a canvass form to each household in the area. The A list supplied to a polling station. When ballot papers are issued corresponding to voters, the ballot paper number is entered on the list opposite number list the voter’s electoral register number. The list can be used if necessary for vote tracing. Chief Counting The person with overall responsibility to conduct a national Officer referendum, and sometimes a local referendum. Chief Electoral The official who is the returning officer and electoral registration Officer for officer for all elections in Northern Ireland and is in charge of the ix Northern Ireland Electoral Office for Northern Ireland. The classical rules A term we use to refer to the set of rules governing Parliamentary and local government elections originating in the Victorian reforms of 1872 and 1883 and now found primarily in the Representation of the People Act 1983. An early general A term used in the Fixed-term Parliaments Act 2011 to describe a election general election occurring as a result of a vote in Parliament rather than at a fixed interval. Election-specific Legislation governing elections to a particular elected body. legislation Electoral The independent statutory body that regulates political party and Commission campaign finance in the United Kingdom and sets standards and provides guidance on the administration of elections. The Commission is also tasked with administering national referendums. An election court The court constituted to hear an election petition. Election petition The legal process by which an election can be challenged before an election court. Electoral The body which has the general function of co-ordinating the Management administration of local government elections in Scotland, assisting Board for local authorities and others in carrying out their functions and Scotland promoting best practice. First past the post The traditional voting system in which the candidate who gains the most votes is elected. Franchise The right of suffrage; the legal expression of who is eligible to vote. x Household A term we use to describe the former process of registering voters registration on the basis of a completed canvass form. Household system registration has been replaced in Great Britain by individual electoral registration, which has been in place in Northern Ireland since 2002. Individual The process of registering electors on the basis of an application electoral to be registered made by each individual. registration The local A term we use to describe those features

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