Tag Archives: election law

Mathias Cheung: The Hong Kong Government’s proposed electoral reform violates the Basic Law and the Sino-British Joint Declaration

CheungThe House of Commons Foreign Affairs Committee has recently initiated a formal inquiry into the implementation of the Sino-British Joint Declaration. The inquiry will focus on the constitutionality of the Hong Kong Government’s proposed electoral reforms and its compliance with international law obligations. As the biblical saying goes: ‘faith , if good deeds do not go with it, is quite dead’ (James 2:17). Likewise, assurances, if good policies do not go with it, are quite dead. China’s commitment to the Joint Declaration and ‘one country, two systems’ is to be analysed not by its words, but its actions – especially in relation to fundamental rights and freedoms (contrast William Hague’s reliance on ‘explicit’ assurances in the latest Six-Monthly Report).

The Consultation Report

On 15 July, the Hong Kong government submitted a consultation report to the Central People’s Government, citing ‘mainstream opinion’ as accepting that the Chief Executive should be a person who loves and obeys the country, and so a nominating committee in accordance with Article 45 of the Basic Law is necessary to screen out disagreeable candidates. The nominating committee’s power determines who can stand in the election and cannot be undermined. This mirrors statements made by Zhang Xiaoming, Director of the Liaison Office of the Central People’s Government, last September and again on 7 August. Little to no mention was made of the option of civic nomination, where the electorate of Hong Kong is empowered to choose the candidates for the post of Chief Executive, in the consultation report. As Professor Simon Young noted, the report leaves little hope of a genuinely democratic solution.

The advice tendered by the Hong Kong Government to Beijing is effectively that a nominating committee, which will screen candidates, is the only legal solution and cannot be circumvented. The burial rites for civic nomination seem imminent, pending a formal decision of the Standing Committee of the National People’s Congress later this month. In an article in the Wall Street Journal, Chief Secretary Carrie Lam went so far as to say that universal suffrage ‘was not part of the Sino British Joint Declaration’ anyway. If so, the pan-democrats’ demands become a hopeless political squabble with no legal basis. But is this really just a political question?

To screen or not to screen – a constitutional, not a political, question

Hong Kong’s proposed electoral reform places it at the threshold of Chinese history – it is the second time since 1989 to see major calls for democracy reach the Central People’s Government. There is a crucial difference though. This time, the demanded reforms are not nation-wide, but only for one city – Hong Kong. More importantly, while past demands were purely political, democracy in Hong Kong is legally mandated by the Basic Law and the Sino-British Joint Declaration – the law as approved by Beijing is on the side of democracy. Could Hong Kong make a modest, localised breakthrough under the law’s aegis? Most people still perceive this as a purely political debate, in a titanic tug-of-war between the law and the pan-democrats’ political group. Chief Secretary Carrie Lam described pan-democrats as ‘refusing to return to the legal framework of the Basic Law or accept the political reality’, emphasising that ‘laws, especially those of a constitutional nature like the Basic Law… should never be freely interpreted or lightly abandoned’.

In my view, this is a mischaracterisation that turns the entire constitutional question on its head. The Basic Law does not expressly require an electoral system that is limited by a significant risk of screening by a nominating committee. Rather, it mandates full and genuine democracy when construed properly – it is a question of law rather than politics. Like any other constitutional document, the Basic Law stands as the safeguard of the rule of law and democracy, when interpreted purposively as a whole and in the light of international law obligations. That the Basic Law and the rule of law is used as a trump card militating against a genuinely democratic arrangement should be viewed with suspicion.

I agree with Professor Cora Chan’s earlier comment in this blog that the obstacle to introducing a system with civic nomination is Beijing’s political will. The political will, however, should ultimately be guided by constitutional law and international law. Even the most totalitarian regime knows the need to maintain the facade of legality, as demonstrated by Hitler’s coming to power in the 1930s, and now by the Hong Kong Government’s invocation of the Basic Law. The battle may take place in the political arena, but it is fought by the Government with law as its sword, and the constitution as its shield. It has misled the people, even law students, to believe that civic nomination is a political demand to be met by a far-fetched amendment to the Basic Law. That is simply not true – the Basic Law as it stands already enjoins a fully democratic procedure and can accommodate elements of civic nomination.

If the aspiration for democracy is to be realised, the pan-democrats must clarify that the Basic Law and the rule of law is on their side, in order to help the general public understand that a genuine democratic arrangement is their constitutional entitlement. It is time to set the record straight, and in so doing remind both the public and Beijing that the Basic Law and the Sino-British Joint Declaration actually mandate a fully democratic election, consistent with international human rights law – this is not subject to the vagaries of political fiat. The role of the Foreign Affairs Committee inquiry is to reinforce this message by pointing out the unconstitutionality of the Government’s proposal, and its corresponding violation of the Sino-British Joint Declaration.

The correct approach to the rule of law and construing the Basic Law

The Hong Kong Government relies on the rule of law and the Basic Law to reject genuinely democratic methods of electing the Chief Executive in 2017. This position is untenable for two reasons: (1) protection of fundamental freedoms and democratic values is inherent in the rule of law; and (2) the Basic Law read as a whole requires a genuinely democratic procedure respecting international human rights standards.

The first point can be briefly put. What the Government is adverting to is strict, literal compliance with the law and constitution – rule by law. The rule of law goes beyond that, for as Lord Bingham stressed in his posthumous monograph, ‘the rule of law requires that the law afford adequate protection of fundamental human rights. It is a good start for public authorities to observe the letter of the law, but not enough’ (see Tom Bingham, Rule of Law (Allen Lane 2010) p84). The rule of law serves to uphold, not to undermine, democratic rights and civil liberties.

The second point is the most significant. Strict compliance with the Basic Law does not require the undemocratic and precarious electoral system proposed by the Hong Kong Government. The correct approach to construing the Basic Law was definitively laid down by Li CJ in Ng Ka Ling v Director of Immigration [1999] HKCFA 72 [73]-[76]:

As is usual for constitutional instruments, it uses ample and general language. It is a living instrument intended to meet changing needs and circumstances.

It is generally accepted that in the interpretation of a constitution such as the Basic Law a purposive approach is to be applied. The adoption of a purposive approach is necessary because a constitution states general principles and expresses purposes without condescending to particularity and definition of terms…

The purpose of a particular provision may be ascertainable from its nature or other provisions of the Basic Law or relevant extrinsic materials including the Joint Declaration…

As to the language of its text, the courts must avoid a literal, technical, narrow or rigid approach. They must consider the context. (emphases added)

 In line with these principles of construction, the Basic Law is a living instrument that meets changing needs. With almost 800,000 citizens calling for civic nomination in an unofficial referendum, the threat of civil disobedience, and aggravating polarisation of different camps, the circumstances in Hong Kong necessitate a genuine democratic arrangement that can restore confidence in the people and stability in the society. This does not involve doing any violence to the Basic Law’s text, but interpreting it holistically – in the light of other key provisions, the Sino-British Joint Declaration, and international law obligations.

The Government’s proposal is in fact unconstitutional

While Article 45 of the Basic Law provides for the nomination of candidates by a broadly representative nominating committee, the words ‘in accordance with democratic procedures’ are crucial and cannot possibly be superfluous. It indicates the purpose and context of the nomination procedure, which has to be part of a democratic procedure. A nominating committee which is unaccountable may be dominated by one political faction or another, thereby enabling them to screen out candidates from opposing factions. It is not a ‘democratic procedure’ even in the remotest sense, and is simply unconstitutional.

This fact is borne out even more clearly when read together with other provisions. Article 25 of the Basic Law provides that ‘all Hong Kong residents shall be equal before the law’, and Article 26 emphatically enshrines every permanent resident’s ‘right to vote and the right to stand for election in accordance with law’. This means that every permanent resident should in principle have the equal right to stand for election. A nominating committee which could arbitrarily bar an eligible candidate violates his/her equal right to stand for election, and thus her right to equality before the law. The Basic Law could not have intended such a fundamental contradiction, especially since Article 45 is meant to give effect to Article 25.

The Government’s proposal violates international human rights law

Article 39 of the Basic Law further stresses that the laws of Hong Kong (i.e. including the Basic Law) shall implement the provisions of the International Covenant on Civil and Political Rights (“ICCPR”). Article 25 of the ICCPR expressly provides that:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors…

General Comment No. 25 makes it clear (paragraph 15) that ‘the effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates’, and restrictions must not be by reason of political affiliation. Furthermore, ‘if a candidate is required to have a minimum number of supporters for nomination this requirement should be reasonable and not act as a barrier to candidacy’ (paragraph 17). The Government’s proposal risks presenting electors with a Hobson’s choice, in which candidates they support fail to get nominated, due to unwritten and unreasonable reasons hidden in the back of the mind of the nominating committee. This violates Article 25 of the ICCPR and Article 39 of the Basic Law, ignoring the Human Rights Committee’s exhortation in its Concluding Observations in 2013.

The Government’s proposal puts China in breach of the Joint Declaration 

The unconstitutional proposal puts China in a breach of the Sino-British Joint Declaration. Article 3(5) makes it clear that the rights and freedoms of persons will be ensured by law, and the equal right to vote and stand for election is a fundamental political right as implicitly acknowledged by the acceptance of the ICCPR by Hong Kong. Moreover, Article 3(2) guarantees a high degree of autonomy except in foreign and defence affairs – the Government’s proposal disables electors from freely directing the course of affairs falling within the scope of Hong Kong’s autonomy. This creates the undue risk of rendering the promised autonomy illusory, and having ‘one country, one system’ in all but name. Above all, the foregoing violations of the Basic Law undermine the guarantee that the policies as embodied by the Basic Law would remain unchanged for 50 years.

Conclusion – the constitutional way forward

It is well-settled that laws enacted after an international treaty has been signed should be construed as intending to carry out the obligation (see Lord Diplock in Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771). This applies with even greater force to fundamental rights, as an aspect of the rule of law (see Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40 [21]). The Basic Law read in conjunction with international law obligations requires a system along these lines: civic nomination is a democratic process that allows the people to freely choose any person to be the Chief Executive. This guarantees the equal right to stand for election enshrined by Article 25 of the ICCPR and Article 26 of the Basic Law. A broadly representative nominating committee would then be responsible for checking whether the nominated candidate are legally eligible (e.g. validity of civic nomination, age, criminal records, financial resources), upon satisfaction of which it shall formally nominate the candidate in accordance with Article 45. This is fully constitutional and conforms with the international law obligations of Hong Kong and China.

This is the constitutional way forward. In contrast, the Hong Kong Government’s proposal is unconstitutional – it creates a situation where ‘all candidates are equal, but some are more equal than the others’. Can we call this democratic progress at all? I am hopeful that the Foreign Affairs Committee inquiry would acknowledge that the pan-democrat’s proposal for civic nomination is not a violation but a fulfilment of the Basic Law. As the latest Six-Monthly Report rightly noted, ‘the important thing is that the people of Hong Kong have a genuine choice’.

 

Mathias Cheung is a Research Assistant at Oxford University and a BPTC Student at City Law School. 

Suggested citation: M. Cheung, ‘The Hong Kong Government’s proposed electoral reform violates the Basic Law and the Sino-British Joint Declaration  U.K. Const. L. Blog (11th August 2014) (available at  http://ukconstitutionallaw.org).

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Derek O’Brien – Comment On The Caribbean: Commonwealth Caribbean Elections.

derek-obrien-33When comparing the relative political stability of Britain’s former colonies in the Commonwealth Caribbean with the lack thereof in former British colonies in Africa and Asia and the former colonies of other major powers reference is sometimes made to Huffington’s ‘two-turnover test’(S Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman, University of Oklahoma `Press, 1991). That is to say, since independence successive governments across the region have respected the outcomes of elections and have peacefully surrendered power to their successors. Notwithstanding their often ‘rambunctious’ nature, Commonwealth Caribbean elections are thus often held up as a vital sign of the region’s commitment to democracy along Westminster lines (JI Dominguez, ‘The Caribbean Question: Why has Liberal Democracy (Surprisingly) Flourished?’ in JI Dominguez et al (eds), Democracy in the Caribbean (Baltimore, John Hopkins University Press, 1993).

However, this picture of 50 odd years of post-independence political stability, punctuated by carnival-like general elections once every four or five years, does not bear too close scrutiny. The reality is that in the post-independence era Commonwealth Caribbean elections have, sometimes, been violent affairs. In Jamaica, for example, there were 800 murders attributed to political violence at the time of 1980 general elections. In Guyana, in 1997 a dispute about the election results led to a sustained period of post-election violence and rioting. In some countries in the region elections have also been decidedly fraudulent affairs. This is especially true of Guyana during the era of Forbes Burnham, which witnessed a number of ‘rigged’ elections following independence in 1966 (D.O’Brien, Constitutional Law Systems of the Commonwealth Caribbean (Oxford, Hart Publishing, 2014). As the international team of observers led by Lord Avebury noted in its report on the 1980 election:

We came to Guyana aware of the serious doubts expressed about the conduct of previous elections there, but determined to judge these elections on their own merit and hoping that we should be able to say that the result was fair. We deeply regret that, on the contrary, we were obliged to conclude, on the basis of abundant and clear evidence, that the election was rigged massively and flagrantly (Report of the International Team of Observers at the Election of Guyana, Something to Remember (London, Latin American Bureau, 1980).

 Elections in Antigua and Barbuda under the Bird dynasty, during the 1980s and 1990s, were no better. It was widely suspected that the governing party Antigua Labour party (ALP), led by Lester Bird, had used its influence over the Supervisor of Elections to manipulate the electoral process. Evidence of this can be found in the several reports of independent observers of elections during this period, which document some very serious incidents of malpractice. These include: double-voting; the removal of the names of eligible voters from the electoral register; and the inflation of the register by 25 per cent as a result of the inclusion of the names of people who had died or migrated. Most serious of all was the violation of the confidentiality of the voting booth; with electoral officers noting each voter’s registration number on the counterfoil of the ballot paper. This would have had serious ramifications for anyone on the government payroll or otherwise obligated to the ALP (DW Payne, ‘The Failings of Governance in Antigua and Barbuda: The Elections of 1999’ (1999) Policy Papers on the Americas, Vol X, Study 4). Eventually, however, following the recommendation of an independent Commonwealth Observer Group on the conduct of the 1999 elections, the Government was persuaded to establish an Electoral Commission which, along with the Supervisor of Elections, would, henceforth, have responsibility for the conduct of elections.

Notwithstanding the establishment of this Electoral Commission, however, the conduct of elections in Antigua remains a highly contested affair. This is most clearly demonstrated by two recent cases on appeal to the Eastern Caribbean Supreme Court (ECSC), a regional court of appeal for the independent eastern Caribbean islands of Antigua and Barbuda, the Bahamas, Dominica, Grenada, St Kitts and Nevis, St Lucia and St Vincent as well as well as the British Overseas Territories of Anguilla, Montserrat and the British Virgin Islands. In both cases the appellant was Gaston Browne, the leader of the Opposition ALP.

The first case, Browne v AG Antigua and Barbuda, concerned a challenge to the constitutionality of section 5 of the Representation of the People (Amendment) Act 2010 ROP(A)A, which had amended s.16 of the Representation of People Act 1992 by extending the residency qualification for Commonwealth citizens who wished to register to vote, from three to seven years. Section 6 of ROP(A)A had also amended the period within which all persons who were qualified to vote were required to apply for registration as an elector. There were three main strands to the appellant’s challenge.

The first was that the procedure for amending the specially entrenched provisions of the Constitution had not been followed. In the appellant’s submission, by restricting the right of Commonwealth citizens to vote to those who had been resident for seven years ROP(A)A had altered the provisions on voting contained in s.40(3) of the Constitution. In particular, the right of Commonwealth citizens to vote was now being restricted to those who qualified to be citizens of Antigua and Barbuda by virtue of having been resident for seven years. Since s.40 was an entrenched provision it could only be altered, it was argued, by means of a two-thirds majority vote of all the members of the House of Representatives followed by similar two-thirds majority in a referendum. In the Court’s view, however, the right of Commonwealth citizens to vote was dependent on registration in accordance with s.40[2) of the Constitution, which provides that from time to time parliament may by ordinary legislation pass laws prescribing the qualifications relating to residence and domicile for Commonwealth citizens to be eligible to vote. ROP(A)A did not, therefore, involve an amendment to the Constitution per se: it merely changed the eligibility of Commonwealth citizens to register as a voter and the Constitution contemplated that such a change could be effected by ordinary legislation.

The second strand of the appellant’s argument concerned the fundamental nature of the right to vote, which according to the appellant meant that any interference with the right had to satisfy the proportionality test outlined by the Judicial Committee of the Privy Council in deFreitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing. In the court’s view, however, the right to vote was a constituional right and not a fundamental right since it was not included in the list of fundamental rights to be found in Chapter II – an interesting distinction in the light of the current debate about prisoners’ right to vote under the European Convention of Human Rights. The changing of the period of residence for Commonwealth citizens to be registered as electors did not, therefore, attract or engage the requirement of proportionality.

The third strand was concerned with the retrospective effect of the legislation upon two groups of voters. The first group comprised existing Commonwealth citizens who would, henceforth, not be able to vote if they did not satisfy the new residency test. According to the appellant, these Commonwealth citizens, who would have been entitled to vote under the former legislation, would now be required to re-register on pain of de-registration under a new regime of proof and with a more onerous residence qualification. The Court did not, however, accept that this meant the legislation had retrospective effect. Statutory provisions which affect existing rights prospectively, such as the provisions of ROP(A)A were not, in the Court’s view, retroactive . In so far as there was an interference with an existing right – in respect of registration and voting – it was sanctioned by the Constitution. The second group of voters comprised all of those who were required to re-register to vote as a result of ROP(A)A. According to the appellant, their registration as voters under s.19 of the Representation of the People Act 2001 was continuous and since s.19 had not been amended by ROP(A) A the actions of the Electoral Commission in requiring these voters to re-register was ultra vires. In the Court’s view, however, the right to be registered to vote under s.40 of the Constitution did not confer on a person an entitlement to be registered for the purposes of voting ad infinitum or in perpetuity.   Registration to vote was always subject to s.40(3) of the Constitution which empowered parliament to prescribe the qualifications relating to residence or domicile as from time to time. Furthermore, the re-registration process was necessary to ensure that all persons registered to vote were so entitled based on the new residency criteria.

The second and related appeal heard by the ECSC was Browne v Constituencies Boundaries Commission. This case concerned the implementation of certain constituency boundary changes following a report by the Constituencies Boundaries Commission (CBC) published in June 2010. The appellant challenged the boundary changes proposed by the CBC on two main grounds. Firstly, that they amounted to gerrymandering and that the CBC was infected by bias. Secondly, that the period allowed by the CBC for consultation was inadequate, having regard to the Constituencies Boundaries Commission Guidance Act 2012 (the Guidance Act). The appeal was allowed, but solely on the ground that the consultation by the CBC had been inadequate.

Dismissing the first ground of appeal, the Court held that in order to succeed with an allegation of gerrymandering the appellant would have had to show two things: firstly, that the CBC altered the boundaries and that the alterations had the effect of diluting or weakening the ALP’s support in those altered constituencies; and, secondly, that the CBC so altered the boundaries precisely with view to achieving that effect. The appellants had failed to show either.

So far as the charge of bias was concerned the Court noted that the composition of the CBC was governed by s.63 of the Constitution. This provision, which is similar to provisions to be found in several other Caribbean Constitutions, requires the CBC to comprise a Chairman appointed in accordance with the advice of the Prime Minister after the latter has consulted with the Leader of the Opposition, two other members appointed in accordance with advice of the Prime Minister, and one member appointed with the advice of the Leader of the Opposition. This meant that the CBC was essentially composed of party supporters, affiliates and activists, thereby infecting and undermining the impartiality of and public confidence in the CBC. As Singh JA had observed with regard to the composition of the CBC in Dominica in Constituency Boundaries Commission and Another v Baron:

It is my considered opinion that such a commission will always lean more towards political loyalty than constitutional integrity. What would assist in order to avoid the appearance of this mischief of bias is that if, when members are to be recommended to the President [the Governor-General] the respective politicians give names of those who are less politically conspicuous. Life would be so much simpler.

However, in the Court’s view, so long as the composition of the CBC was in accordance with the provisions of the Constitution there would be a ‘presumption of impartiality’. The presumption could only be rebutted by leading cogent evidence. This the appellant had failed to do.

The Court did, nevertheless accept that the CBC’s failure to allow sufficient time for the appellant to respond to its preliminary proposals for boundary changes, coupled with the CBC’s failure to provide the appellant with printed maps depicting the proposed changes, meant that the CBC had failed in its statutory duty to consult pursuant to s.3(2) of the Guidance Act. What this means in practice remains to be seen, but the judgment came too late to implement the boundary changes recommended by the CBC in time for the 2014 elections.

Both of these judgments touch upon a multiplicity of legal issues – the constitutional status of the right to vote, the relationship between the constitutional right to vote and amendments to the registration process, the composition of election management bodies, such as the CBC, and the duty of such bodies to consult – which will be of interest to those concerned with the conduct of elections and electoral reform generally. Arguably, however, their chief interest lies in what the judgments reveal about the intensity of Commonwealth Caribbean politics and the willingness of local politicians to use every weapon at their disposal, including litigation, in pursuit of an electoral advantage. Here, the Leader of the Opposition, Gaston Browne, was convinced that the changes to the residence qualification for Commonwealth citizens and the proposed boundary changes would favour the governing United Progressive Party. What he could not have known at the time that he embarked on this litigation was that, notwithstanding the changes to the residence qualification for Commonwealth citizens, his party would go on to a resounding victory in the 2014 elections, winning 14 out of the 17 seats available.

Though there may be many cultural and social factors that contribute to the intensity of elections in the region a key factor is, undoubtedly, size. Commonwealth Caribbean countries are some of the smallest in the world: Antigua and Barbuda, for example, has 47,000-plus voters, divided into 17 constituencies, making the average number of voters in a constituency just over 2,500. When you combine the winner takes all nature of the ‘first past the post’ system, which is the system of choice for all the countries in the region (with the exception of Guyana which has adopted the party list system), with such small constituency sizes it is inevitable that politicians will wish to fight over every vote. Thankfully, however, on this occasion, at least, the fight was played out in the courts.

 

Derek O’Brien is Reader in Law, Law School, Oxford Brookes University, and Caribbean Correspondent for the UKCLA Blog .

Suggested citation: D. O’Brien, ‘Commonwealth Caribbean Elections’ U.K. Const. L. Blog (29th July 2014) (available at http://ukconstitutionallaw.org).

 

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Stephen Tierney: Towards a Fair and Democratic Process? Regulating the Referendum on Scottish Independence

stierneyThe referendum on independence is still a year away and already attention is focused on major substantive issues such as economic relations between an independent Scotland and the United Kingdom, and the ease or difficulty with which an independent Scotland would achieve membership of the European Union. What is often overlooked is that the credibility of the outcome of the vote on 18 September 2014, whatever that might be, will depend greatly on the legitimacy of the referendum process itself.

Already the procedural rules for the referendum have been taking shape, with one bill now enacted and the other before the Scottish Parliament. The franchise rules for the referendum are set out in the Scottish Independence Referendum (Franchise) Act (‘the Franchise Act’), introduced into the Scottish Parliament on 11 March, and enacted on 7 August. This Bill required to pass through the Scottish Parliament quickly to facilitate the registration of voters, particularly new voters since the franchise for the referendum is extended to 16 and 17 year olds. The Scottish Independence Referendum Bill (‘the Referendum Bill’) was introduced into the Parliament on 21 March 2013 and is expected to be passed in November.

The legislation was preceded by the Edinburgh Agreement signed by the United Kingdom and Scottish Governments on 15 October 2012. This, and the associated ‘memorandum of agreement’, provided that the referendum should have a clear legal base; be legislated for by the Scottish Parliament; be conducted so as to command the confidence of parliaments, governments and people; and deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect. This has been formalised by an Order in Council (per section 30 Scotland Act 1998) which devolves to the Scottish Parliament the competence to legislate for a referendum on independence which must be held before the end of 2014 (Order in Council, para 3).

In this post I will summarise some of the main points to come out of this legislation: the franchise rules for the referendum, the question that will be asked, the role for the Electoral Commission, the Referendum Period, and the parameters for other important process issues, in particular, the funding and expenditure rules.

Franchise

The general franchise demarcation set out in the Franchise Act is uncontroversial. The franchise for the referendum is to be the same as for Scottish Parliament elections and local government elections (Franchise Act, section 2), mirroring the franchise used in the Scottish devolution referendum in 1997. One consequence is that EU citizens who are resident in Scotland will be able to vote in the independence referendum.

One major difference from the 1997 franchise, however, is the provision in the Franchise Act extending the vote to those aged 16 and 17 (Franchise Act, section 2(1)(a)). This is a radical departure; never before have people under the age of 18 been entitled to vote in a major British election or referendum (the age of 18 as the threshold for UK elections is set out in the Representation of the People Act 1983, section 1(d)). Another notable provision of the Franchise Act excludes convicted persons from voting in the referendum if they are detained in a penal institution (Franchise Act, Section 3). This exclusion will apply even if the current ban on prisoners voting is modified in relation to elections prior to the date of the referendum. This has been a controversial topic in the United Kingdom ever since the European Court of Human Rights ruled that the blanket ban on prisoner voting in UK elections violated Article 3 of Protocol 1 of the European Convention on Human Rights (Hirst v the United Kingdom (No 2) [2005] ECHR 681). It would seem, however, that section 3 of the Franchise Act does not violate the Convention since A3P1 guarantees ‘the free expression of the opinion of the people in the choice of the legislature’ (emphasis added), which is generally taken to refer exclusively to parliamentary elections and to exclude referendums.

 The Question

The Referendum Bill contains a raft of important provisions which, inter alia, frame the question to be put to voters. The question as originally proposed by the Scottish Government has been changed. The formulation set out in the White Paper ‘Your Scotland, Your Referendum’, published in January 2012, was: ‘Do you agree that Scotland should be an independent country?’ Following conclusion of the Edinburgh Agreement, the Scottish Government decided to send its proposed question for review to the Electoral Commission. The Commission in its subsequent report took issue with the phrase ‘do you agree’, suggesting it could lead people to vote Yes. It therefore suggested a change to the question. This has been accepted by the Scottish Government and the new question is now contained in the Referendum Bill: ‘Should Scotland be an independent country?’ (Referendum Bill, section 1(2)).

Electoral Commission

The Referendum Bill also formalises a more general oversight role for the Electoral Commission. Among a number of statutory duties the Commission is given the task of promoting public awareness and understanding in Scotland about the referendum, the referendum question, and voting in the referendum (Referendum Bill, section 21). This is likely to be a challenging role, particularly in explaining the referendum question. There is already a heated debate between the UK and Scottish Governments as to what ‘independence’ will mean for Scotland. It is hard to see how the Electoral Commission can attempt to produce an objective account of a number of highly technical and fiercely contested issues, concerning not only international relations but also defence, economic relations, the question of a currency union, the disentanglement of the welfare state, national debt etc., particularly when so many features of the post-referendum landscape would be contingent upon negotiations between the two governments in the event of a majority Yes vote. And indeed in evidence to the Committee in May John McCormick, the Electoral Commissioner for Scotland, said that the Commission would ‘not seek to explain to voters what independence means’ but would offer information ‘aimed at ensuring that all eligible electors are registered and know how to cast their vote.’

Referendum Period

The Referendum Bill sets a regulated period of 16 weeks before the referendum within which the statutory regime of campaign regulation will take effect, including for example, limits on campaign expenditure (Referendum Bill, Schedule 4, Part 3). Since the referendum will still be the best part of a year away by the time the Referendum Bill is passed, this leaves a lengthy period within which the two main referendum campaigns will not be subject to these detailed provisions. Another set of regulations introduce what is known as a ‘purdah’ period. This is common in UK elections. Under PPERA there is to be no promotional activity by government, local authorities or public bodies during the 28 day ‘relevant period’ prior to an election poll. This provision is largely replicated in the Referendum Bill (section 10 and Schedule 4, para 25) in relation to the Scottish Government and a wide range of other public bodies which must not engage in promotional activity in the four weeks prior to the referendum. The UK Government also committed to be bound by equivalent restrictions in the Edinburgh Agreement (for comment on this by Deputy First Minister Nicola Sturgeon see Scottish Parliament Referendum (Scotland) Bill Committee, 13 June 2013, Official Report, cols 554 and 560).

Funding and Spending Rules

Efforts are made within the Referendum Bill to ensure equality of arms between the two campaign groups. Each side in the campaign can apply to the Electoral Commission to be appointed as one of two ‘Designated Organisations’, and both the Yes Scotland and Better Together campaign groups have intimated their respective intention to do so. One notable feature of the Referendum Bill is that there is to be no public funding for any designated organisation. This is a conscious departure from PPERA which does offer public funding for referendums. The decision not to fund the 2014 referendum was a political one taken by the Scottish Government. It has not resulted in any significant disagreement, presumably because both campaigns expect to be amply funded by private donors.

The Edinburgh Agreement (paras 24-29) also covers funding and expenditure issues. Building on this, the Referendum Bill contains detailed provisions on a range of funding issues. A ‘Campaign Rules’ provision creates a regulatory regime through which funding, spending and reporting will be administered (section 10 and Schedule 4). This is generally in line with standard PPERA rules. A ‘Control of Donations’ provision (Schedule 4, Part 5) indicates what types of donations are allowed and what constitutes a ‘permissible donor’ (Schedule 4, para 1(2)). Under these provisions an application must be made for this status. There are also reporting requirements which mean that reports on donations received will require to be prepared every four  weeks during the referendum period (Schedule 4, para 41). These rules will all be overseen by the Electoral Commission.

Spending Limits

Within the Referendum Bill there are four categories of actor entitled to spend money during the campaign period: Designated Organisations (which can each spend up to £1,500,000) (Schedule 4, para 18(1)); political parties as ‘permitted participants’ (see below) (Schedule 4, para 18(1)); other ‘permitted participants’ who may spend up to £150,000 (Schedule 4, para 18(1)); and any other participants spending less than £10,000, which means they do not require to register as permitted participants.

Political parties as ‘permitted participants’  have a spending limit of either £3,000,000 multiplied by their percentage share of the vote in the Scottish Parliament election of 2011, or £150,000 (whichever is greater). By this formula the spending limits for political parties represented in the Scottish Parliament is as follows:

Scottish National Party: £1,344,000
Scottish Labour Party: £834,000
Scottish Conservative & Unionist Party: £396,000
Scottish Liberal Democrats: £201,000
Scottish Green Party: £150,000

The Referendum Bill also defines ‘campaign expenses’. These include campaign broadcasts, advertising, material addressed to voters, market research or canvassing, press conferences or media relations, transport, rallies, public meetings or other events. This also extends to notional expenses such as use of/sum of property, services or facilities etc. ( Schedule 4, paras 9 &10). There are also detailed rules on reporting of expenditure (Referendum Bill, Schedule 4, paras. 20-24. The Electoral Commission has a power to issue guidance on the different kinds of expenses that qualify as campaign expenses: Schedule 4, para 10).

It seems that these rules will lead to a generally level playing field in terms of expenditure within the Regulatory Period. For example, the total spending limit for the two pro-independence parties (SNP and Greens) is almost equal to that for the three unionist parties – Labour, Conservative and Liberal Democrat. But given that these spending limits only apply in the 16 weeks before the referendum, this does leave the possibility of spending differentials between the two campaigns before this period begins. It should be observed, however, that these rules reflect the spending limits recommended by the independent Electoral Commission.

Finally, the Referendum Bill provides for civil sanctions (Schedule 6) and criminal offences (Schedule 7) in relation to various categories of electoral malpractice; and the Electoral Commission is given an important role in enforcing the former.

The Referendum Bill is approaching the end of its Stage 1 process and still has some way to go in its passage through the Scottish Parliament. But it is an instrument which, in building upon the Edinburgh Agreement principles, should set the conditions for a fair, lawful and democratic referendum. A significant task for the Electoral Commission, and for academic and other observers over the next year, will be to monitor how well the legislation in the Referendum Bill and Franchise Act is implemented and how responsibly all of those engaged in referendum campaigning behave. Compliance with the letter and the spirit of the legislation will be essential if the voting public is to have the best chance to participate in the referendum in an informed way and if the process as a whole is to live up to the aspirations of the Edinburgh Agreement.

Stephen Tierney is Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law, University of Edinburgh. The author also acts as Constitutional Adviser to the Scottish Parliament Referendum Bill Committee. This paper is written in a personal capacity.

Suggested citation: S.Tierney, ‘Towards a Fair and Democratic Process? Regulating the Referendum on Scottish Independence.’  (27th August 2013) (available at http://ukconstitutionallaw.org).

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Jacob Rowbottom: Campaign Lies and the First Amendment

It is now a tradition that during an America presidential election year, commentators shall declare the campaigns to be the ‘nastiest’ and ‘dirtiest’ ever. It is difficult to know whether such a claim is true of the 2012 election, as tough campaigning has a long history in the USA (as a NY Times article from last month explains). There is, however, no doubt that candidates at all levels of the American system have engaged in and been subject to some fierce attack messages (a recent Campaigns and Elections article provides some notable examples). Yet negative messages do not breach campaign ethics. Strong criticism of parties and candidates is part of the cut and thrust of elections. The real problem arises when electoral messages turn out to be false – and a quick viewing of websites such as FactCheck.org show the doubts about the truth of some campaign messages in the current American election.

Given the seemingly free exchange of robust (and sometimes brutal) campaign communications, it may surprise some readers that several US states have laws that prohibit certain false statements about candidates during an election campaign. These are the American equivalents of British law that led to Phil Woolas being forced out of his seat following the 2010 general election (s.106 of the Representation of the People Act 1983). For example, the key state of Ohio has laws prohibiting knowingly or recklessly false statements being published about a candidate. It employs a combination of administrative remedies (through an Election Commission finding or a fine) and criminal penalties (as a last resort). Despite the presence of such a law, a recent article in the Cleveland Plain Dealer casts doubt on the effectiveness of these measures.  Much the same can be said about its British counterpart.

A bigger constitutional question is whether such laws are consistent with the right to freedom of speech under the First Amendment. This is something I considered briefly in an article for OJLS published over the summer. On my reading, the US case law was ambiguous. The US Supreme Court has not addressed the issue directly. Previous statements from the Supreme Court point in different directions, with some emphasizing the importance of political expression and others stressing that knowingly false statements have no value. Since my article was finalized, the Supreme Court’s decision in June in US v Alvarez sheds more light on this issue and drops some hints as to how the Court might approach false campaign statement laws.

Alvarez did not concern campaign communications, but a statute called the Stolen Valor Act, which made it a criminal offence to falsely claim to have been awarded ‘any decoration or medal authorized by Congress for the Armed Forces of the United States’. The issue for the Court was whether the First Amendment protected false statements. A majority of the court decided that while lies can be prohibited in some circumstances, falsity alone does not preclude First Amendment protection. In his plurality opinion, Justice Kennedy thought the system of free speech is self-correcting and that the normal ‘remedy for speech that is false is speech that is true.’ Applying strict scrutiny, he found the Stolen Valor Act to be unconstitutional. In a concurring opinion, Justice Breyer reached the same conclusion, but applied a less intense standard of intermediate scrutiny.

The government relied on a number of cases, including New York Times v Sullivan (1964) to support the Stolen Valor Act. The ruling in Sullivan famously protects those making statements about public figures from defamation actions. However, the Sullivan ruling still allows defamation actions to be brought when malicious (ie knowingly or recklessly false) defamatory statements are made about public figures. One reading of Sullivan is therefore that knowingly or recklessly false statements can be restricted – even on political matters – without raising First Amendment concerns. The argument is of interest as many of the American campaign speech laws have been drafted to conform to this reading of Sullivan, prohibiting only those false statements about candidates that are made with ‘actual malice’.

The Supreme Court in Alvarez, however, rejected this reading. The basic thrust of Justice Kennedy’s reasoning is that defamatory statements normally fall outside the First Amendment. The public figure defence in Sullivan is a way of softening that exclusion to give breathing space for political speech. On this view, Sullivan merely deprives the malicious speaker of the public figure defence and in such cases restores the normal position that defamatory statements fall outside the First Amendment. While I am still thinking through the implications of this reasoning, it means that the Supreme Court now treats the Sullivan rule on malicious statements as specific to defamation and does not deal with false statements more generally.

Alvarez also provides some indication of how campaign speech laws might be treated. In a recent analysis of the decision, Prof Rick Hasen, a leading US election lawyer, notes that there is ‘unanimous skepticism of laws targeting false speech about issues of public concern.’ For example, Justice Breyer, in a concurring opinion, said that controls on ‘false statements about philosophy, religion, history, the social sciences, the arts, and the like’ would risk suppressing true as well as false statements, and that such controls could call for strict scrutiny. He went on to say:

‘In the political arena a false statement is more likely to make a behavioral difference (say, by leading the listeners to vote for the speaker) but at the same time criminal prosecution is particularly dangerous (say, by radically changing a potential election result) and consequently can more easily result in censorship of speakers and their ideas.’

Breyer’s remarks suggest that it would be difficult to tailor a control on false campaign speech in a way that would not chill some true expression and that such controls could also be open to abuse by prosecutors and adjudicators.

Justice Alito offered a dissenting opinion, stating ‘false statements of fact merit no First Amendment protection in their own right’. While he thought the Stolen Valor Act should be upheld, he too hinted that laws prohibiting false campaign speech might fall foul of the First Amendment. Even though false statements have no intrinsic value, Alito reasoned that this should not be the end of the question. Restrictions on false statements of fact can still have a chilling effect. For this reason, restrictions on certain types of false speech may still be afforded some ‘instrumental constitutional protection’. Like Breyer, Alito thought that in relation to ‘philosophy, religion, history, the social sciences, the arts, and other matters of public concern’ it would be ‘perilous to permit the state to be the arbiter of truth.’ The dissenters also argued that such a power ‘opens the door for the state to use its power for political ends’.

These statements are only indications of where the Court might go and do not address the campaign speech issue directly. These initial sentiments of the US Supreme Court stand in contrast to the position of the British courts following Woolas, which concerned the British law on false electoral statements. In that case, Thomas LJ stated that Article 10 of the European Convention ‘does not extend to a right to be dishonest and tell lies’ and that this is applies to lies about the ‘political position of a candidate’ as well as those about a candidate’s ‘personal character’. Thomas LJ argued that dishonest statements in an election campaign ‘are aimed at the destruction of the rights of the public to free elections’ and thereby relied on Article 17 to exclude any protection under the European Convention. The British approach appears to give the government a free hand in restricting dishonest campaign messages.

Ultimately, the issue is a difficult one and the British and the emerging American approaches show two different paths. My feelings on this are mixed, as I think the campaign lies do pose a substantial harm to the electoral process and in some cases it cannot be remedied with ‘more speech’. At the same time, I have serious reservations about allowing courts or agencies to determine the truth of campaign messages. In any event, I think false statement laws have limited effect and can only ever be enforced in a small number of cases.

It remains to be seen what will happen in the USA. Prof Hasen concludes in his paper that following Alvarez ‘we are likely to see more false campaign speech in elections, including some brazen lies.’ Just as Citizens United unleashed new channels for money to enter politics, Alvarez could open the door for more lies to enter campaign debate. Yet you may ask whether protecting dishonest campaign speech would really make such a difference. Given the limited enforcement of the existing state laws, the removal of the campaign speech laws may not in practice be such a great change from the status quo. If campaigners under the current rules feel free to mislead and lie, what difference will it make if those laws are struck down? The significant development would be the recognition of constitutional right to tell lies in elections, which might be taken as a signal for people to eschew certain campaign ethics. If that happens, then maybe the next election cycle really will be nastiest and dirtiest ever.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Campaign Lies and the First Amendment’  UK Const. L. Blog (30th October 2012) (available at http://ukconstitutionallaw.org)

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Law Commission: Consultation on Elections and Referendums

Bringing electoral law up to date

In a consultation opening today, the Law Commission is asking which of the rules governing elections and referendums should be reviewed as part of its electoral law reform project. Electoral law in the UK is spread across 25 major statutes. It has become increasingly complex and fragmented and, according to the Commission, needs to be simplified, modernised and rationalised in order to benefit the electorate, administrators, and candidates.

The last century has seen a steady increase in the numbers and types of election. Today, we may be asked to vote – at the same time – for a range of representatives. We could be casting votes for our local mayor, police and crime commissioner and councillors at the same time we are selecting our MP, MSP or Northern Ireland, Welsh or London AMs and our MEPs. Each of these election types comes with its own set of rules and systems, and combining them into one election event introduces yet more layers of electoral laws.

Public confidence in electoral administration needs to be reinforced. The Law Commission’s consultation is asking all those involved in setting up, managing, participating and voting in elections to tell them which areas of the legislative framework are not working and should be reviewed.

Frances Patterson QC, Law Commissioner, says:

“Elections are the principal mechanism by which citizens exercise their democratic rights. The price we pay as a democracy when the electoral process loses credibility is high and potentially catastrophic. An electorate that has no confidence in the process by which its democratic representatives are chosen may ultimately give no credence to the choices that are made. 

“It is clear that electoral law is in need of reform. Inconsistencies and ambiguities risk undermining the credibility of our electoral process; the sheer volume, fragmentation, and complexity of rules compound that risk. We are asking the questions, where in this vast and complex legislative framework do the problems lie? And should that framework be simplified and rationalised?”

The Commission expects that, with agreement from Government, responses to its consultation will lead to a detailed examination of specific aspects of electoral law and proposals for reform that will also be opened for consultation following the 2014 elections. The Commission hopes that the proposals and consultation will be UK wide, being conducted in partnership with the Scottish and Northern Ireland Law Commissions and in collaboration with the Welsh Assembly Government.

The Commission’s consultation paper, “Electoral Law in the United Kingdom”, and information on how to respond are available on http://www.lawcom.gov.uk

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Jacob Rowbottom: Do electoral attack sites need taming?

Much is made of the democratising effect of the internet. However, the freedom to communicate online has costs, which are sometimes felt by the politicians that are the subject of internet communications. These costs were highlighted by the Labour MP, Mike Gapes who presented a Ten Minute Rule Motion on Tuesday, calling for greater regulations on websites that make negative attacks on candidates during election campaigns. While there are already some controls on third party activities in elections, Mr Gapes told the House of Commons that these rules are not working:

“An enormous number of groups, local and national, do not register, and some organisations have websites. During the last general election, a group called the Muslim Public Affairs Committee UK targeted Labour MPs and candidates, with downloadable leaflets and other material attacking people whom they were trying to get out of Parliament. It was able to put out tens of thousands of leaflets without any restriction-negative material arguing against sitting Members of Parliament and encouraging people to vote for other candidates. In some constituencies where the result changed, Liberal Democrats or other people were elected having been beneficiaries of this negative campaigning. We should tighten up the rules to regulate what can be put on the internet. We could also prosecute people who have downloadable material that does not have imprints. We need to ask the Electoral Commission to take these matters far more seriously, and that is why I am proposing this Bill.”

From this statement, it is not entirely clear whether Mr Gapes is complaining about gaps in the law or that the current law is not being enforced properly. However, there are several areas of concern relating to attack websites.

The first is the anonymity of the attack sites, which Mr Gapes raises when referring to material without ‘imprints’ (ie details of the printer and promoter on the material). Anonymity can be a problem for the reader of the website, as not knowing the source of the negative statement means visitors have less means to assess the credibility of the claims being made. The audience will not know whether the anonymous author has inside knowledge about the politician or is merely a front organisation with a vested interest. Of course, anonymous sources are commonly used in the mainstream media, but at least there an established media entity will vouch for the credibility of the information being published. From the perspective of the politician being attacked, the problem of anonymity lies in not knowing to whom to address the rebuttal (or in other cases, who to sue for a defamatory statement).

In the current election laws, there are already controls on printed leaflets, requiring the identity of the printer and promoter to be included in any election material. While the Electoral Commission advises people to include such details on internet material, this is not a legal requirement. The imprint requirement applies only to printed material. There are statutory powers to extend the imprint requirements beyond printed materials and to web-based materials, but so far these powers have not been used. One of the problems lies in deciding how these requirements could apply to the various types of digital communication – for example a text message or tweet could not include such full disclosure in the text itself. Alterative transparency requirements (if any are needed) will need to be formulated for internet communications.

Whether anonymity is a problem is open to debate. To many, the ability to speak anonymously is regarded as a strength of internet communications. However, whether there is true anonymity online is questionable – there are various ways (including court orders) in which it is possible to discover the identity of a speaker on a website or blog. These means often require either some technical skill or resources. To go further and require websites to disclose the identity of person speaking or moderating would open this information up to all the audience. The danger with such a requirement lies in creating a chilling effect on some speakers (for example, those who fear the consequences of making their political views public), or at the very least may impose a bureaucratic hurdle which may discourage some election speech (a point made by Robert Halfon MP in his reply to the House of Commons).

A second problem raised by Mr Gapes’ statement is that the material published online is often negative. However, there is nothing wrong with a negative attack in itself.  If a negative statement is true and relevant to the election campaign, then it can provide valuable information to voters. The problem is that people may be more willing to make unfounded attacks on a politician if they remain anonymous and thereby unlikely to be held accountable for the statements. Some transparency may discourage more reckless claims being made online and would require the speaker to stand by his statement (the argument along these lines being that a chilling effect is not always a bad thing, as long as it chills the right type of speech).

Aside from the two points above, there is also a broader issue of what third parties should be forced to disclose. People may be interested to know who is financing a website. Under the current legislation, third parties spending over a certain amount on election material are required to register with the Electoral Commission. Despite an increasing number of political websites commenting on election issues, most did not register as third parties in the 2010 General Election (an exception being the campaign group 38 Degrees). As I told the Committee on Standards in Public Life last year, it is not clear why websites are not being caught by the election regulations. In many cases, this will be because the costs of running the website do not meet the threshold for registering as a third party. However, in the case of larger scale websites that employ staff, that threshold is more likely to be met. This is a matter that requires further investigation.

Third party activities during elections have long been the subject of regulations, but it is not clear at present how these controls are or should be applied to internet communications. I can certainly see hazards in some regulatory strategies and would not want to see any heavy-handed controls.  The complexities of the issue provide a strong incentive to ignore these questions. However, the role of third party activities online needs to be considered if elections are to remain fair, and Mike Gapes’ contribution on Tuesday is important in acknowledging the potential problems attack sites can pose.

Jacob Rowbottom is a Lecturer at the University of Cambridge and author of Democracy Distorted.

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