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Electoral Law ELECTORAL LAW Summary of final report INTRODUCTION This is a quick read summary of the Law Commission We published our interim report in 2016, and it of England and Wales and the Scottish Law received a great deal of support from bodies such Commission’s final report on Electoral Law. as the Electoral Commission and the Association of Electoral Administrators. There is consensus in The structure of this summary follows the structure the electoral law community that there is a pressing 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 it. Here we also discuss our recommendations for improving the legislative framework governing elections (see chapter 2 of the final report). In Part Two “ The updating and we focus on the reform of discrete, technical areas of electoral law, with a focus on electoral administration. simplification of electoral law That includes the management and oversight of must be seen as a pressing elections, the registration of electors, absent voting by post or proxy, the nomination of candidates, electoral priority for the Government.” offences and legal challenge. – Parliamentary and In December 2012 we published a scoping report and Constitutional Affairs agreed with government that we would not consider issues such as: who is entitled to vote (known as the Committee. franchise); whether the voting system at elections should be first-past-the-post or proportional representation; and electoral boundaries. 1 Electoral law – Summary of final report PART ONE: THE BIG PICTURE The main Act governing elections is the Representation of the People Act 1983 (“the Overview of electoral law 1983 Act”), which contains the law governing UK Parliamentary and local government elections. It sets This project covers many different types of election, out the parliamentary and local election franchise, a number of which were introduced after 1999. the framework for registering voters and running The project covers: elections, how electoral campaigns are regulated and 1. UK Parliamentary elections; the mechanism for challenging elections. Schedule 1 to the 1983 Act also contains more detailed rules for 2. Scottish Parliamentary elections; running UK Parliamentary elections. These are known 3. Welsh Parliamentary elections; as the parliamentary “elections rules”. 4. local government elections in England and Wales; The rules for all other types of election are contained 5. local government elections in Scotland; in separate pieces of legislation that apply to that 6. Greater London Authority elections (to the particular type of election. We describe this as an London Assembly and of the London Mayor); “election-specific” approach to electoral legislation. 7. mayoral elections in England and Wales; As shown in the diagram, the pieces of legislation 8. combined authority mayoral elections in governing other types of election generally amend, England and Wales; and copy or import sections of the 1983 Act. 9. Police and Crime Commissioner elections in England and Wales. Adapting the 1983 Act for new elections. Representation of the People Act 1983 Amends Copies Imports See 1983 Act Electoral law – Summary of final report 2 The problems with electoral law 4. Fragmented: There are now at least 25 statutes containing rules for running elections. After 1999, 1. Out-of-date: The 1983 Act has its origins in each time a new election was introduced a new legislation dating from the mid-19th century. piece of legislation was also introduced to provide Much of it has not been updated since. the rules for that election. Any new legislation 2. Complicated: Electoral law is very detailed and tends to either copy the 1983 Act word-for-word, prescriptive. It leaves electoral administrators very or replicate significant portions of it, adapting the limited discretion in how to run polls. Over time, the wording to account for any differences in voting drafting of these laws has become complex. This systems. As a result there is simply too much means bodies such as the Electoral Commission legislation, much of it almost identical to the have to spend a lot of time preparing guidance to 1983 Act. administrators to explain how they should interpret the law. This approach also means that when innovations 3. Legislative gaps: Another aspect of electoral are introduced, or policy updated, amendments law’s detailed, prescriptive approach, is that there need to be made to multiple pieces of legislation. are several gaps in its regulation. Gaps generally For example, when the law was changed to allow arise where there have been new developments, those queuing at the close of polls to cast their such as postal voting, social media or modern vote, changes had to be made to ten distinct technology, and older law has not been modified pieces of legislation. The innovation was intended accordingly. to apply at all elections, but the election-specific approach to electoral legislation meant it had to be implemented bit by bit. Elections over time 1883 1983 2020 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 Devolution We also propose that there should be, as far as possible, a general and consistent set of rules Some electoral law is devolved to the Scottish and for elections. The current law is unnecessarily Welsh Parliaments (the Senedd). The Scottish and complicated, and many rules are repeated in each Welsh governments have power to make elections election-specific piece of legislation. Again, nearly rules for Scottish and Welsh Parliamentary elections all of our consultees supported this proposal. and local government elections in those jurisdictions. There are some rules for those elections that remain the responsibility of the UK Parliament. These include the Rationalisation rules regulating donations to registered political parties. Electoral laws should be consistent across elections, Our recommendations subject to differences in We recommend there should be a single, consistent voting systems or other legislative framework which applies to all elections and good policy reasons. referendums. We refer to this as “rationalisaiton”. The result is that there would be one UK Act of Parliament, and secondary legislation made under it, that governs UK-wide and England-only elections and referendums. The Scottish and Welsh Parliaments have the power to create their own legislation governing devolved “ Electoral law should be elections. This recommendation received near unanimous support from consultees. framed in a manner which enables the interested citizen 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 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). Electoral law – Summary of final report 4 The diagram shows our recommended framework for electoral law in the UK. Our proposed legislative scheme Scottish Elections Act Scotland One consolidated act for elections within Holyrood competence Welsh Elections Act Wales One consolidated act for elections within Cardiff Bay competence UK Elections Act United Kingdom One consolidated act for elections within Westminister competence 5 Electoral law – Summary of final report The balance between primary and We think the balance between primary and secondary secondary legislation legislation and Electoral Commission guidance should 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 legislation at all, and could be left to the judgement and voting system, and 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 offences, and provisions on legal challenge to elections. 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 practice or organisational provisions. Who’s Who There are a number of individuals and bodies responsible for different aspects of elections, including voter registration, preparing ballot papers and managing polling stations and campaign regulation. 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 area. In England and Wales, the returning officer is usually also the registration officer. In Scotland the posts are usually held by two different officials. Presiding officer
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