Juliet Wells: Reforming Electoral Law: a Comment on the Law Commission’s Joint Consultation Paper

Juliet Wells PhotoElectoral policy is constantly on the march. Given that the rules prescribing the voting systems to be used in different elections, the extent of the franchise, constituency boundaries, and eligibility to stand play a major part in shaping government and the broader exercise of public power by those within it, it is hardly surprising that macro-electoral policy regularly appears as the subject of vigorous political debates. There are, indeed, no less than seven Bills (including Private Members’ Bills) currently before Parliament relating to significant aspects of the voting system in the UK – including the Recall of MPs Bill, the Voting Age (Comprehensive Reduction) Bill, the Voting (Civic Obligation) Bill, and the Overseas Voters Bill. Other key issues at the forefront of public discussion include proposed changes to the voting system itself, especially in an era of party proliferation, and the suggested inclusion of ‘None of the Above’ as an option on ballot papers, as one response to entrenched (and seemingly increasing) popular disengagement from politics.

Lying beneath and underpinning these high-profile political clashes, however, is an important legislative network of rules and regulations: the system of electoral law which governs the passage of representatives into and out of office. This branch of the law, though marginalised in academic literature and frequently overlooked by political actors and the public alike, covers all aspects of the administration of elections – from the acceptance of candidates’ nominations, to voter registration, to the procedures for submitting and processing votes, to the process by which elections and their outcomes may be challenged before the Election Court. A robust and principled system of electoral law is indispensable to the healthy functioning of any modern democracy – as Graeme Orr has observed, the legitimate exercise of state power ultimately relies “not just [on] motherhood notions of the sovereignty of the people, but [on] the detailed mechanisms and regulations by which elections are conducted” (G. Orr, ‘The Cinderella Status of Electoral Law as a Field of Study in Australia’, (1998) 7 Griffith Law Review 166).

It is in this light that the Law Commission’s ongoing project to reform electoral law should be seen. Explicitly rejecting from the scope of the project areas of the law ‘which had constitutional or political policy dimensions’[1], it focuses instead on the technical law governing elections and referendums, and in particular on electoral administration. It is, nevertheless, a project of monumental significance: as Nicholas Paines QC and Henni Ouahes pointed out in a presentation to the Constitution Unit on 28th January 2015, this area of the law is ‘complex, voluminous, and fragmented’, with the detailed rules relating to the conduct of each election set down separately, across at least 25 statutes and many more pieces of secondary legislation. In addition, there are a number of ‘conventional’ rules which are not codified anywhere in the legislative framework, since they have instead gradually crystallised through many years of electoral administrative practice; the notion that electoral administrators should be politically neutral, and not active in any candidate’s campaign, is but one example. The present state of electoral law is largely the product of the approach taken to electoral law reform over the course of the last century: the last comprehensive reform of electoral law took place in the 1870s, and changes since then have been made on a piecemeal and event-driven basis, with new laws being layered on top of existing ones.

The effect of this proliferation and fragmentation is that, far from providing a clear and transparent basis on which the legitimate exercise of public power may rest, UK electoral law is obscure, inaccessible and peppered with inconsistencies. Indeed, the Electoral Commission have in recent years published two major reports (‘Electoral legislation, principles and practice: a comparative analysis’; and ‘Challenging elections in the UK’), each detailing how various aspects of the current legislative framework fall far short of international guidelines and best practice. Common themes within the international guidelines, and which form the focal points of the Electoral Commission reports, include the need for electoral law to be clear and accessible, contained in a single legislative source which achieves consistency across different types of election, and to be comprehensively written down with a view to ensuring the transparency, efficiency and impartiality of electoral administration. The Law Commission’s reform project thus represents not merely an attempt to rationalise and modernise the complex morass that is UK electoral law, but more broadly to restore the integrity and standing of this branch of the law, which has profound constitutional and practical significance.

On the whole, the provisional reform proposals contained in the Law Commission’s 360-page consultation document are promising in this respect. The central pillar of the law reform project is the consolidation of all existing electoral law into a single legislative source (see para 2.31), with uniform rules relating to all elections, except insofar as policy considerations militate for differences – a good example is the need to apply a distinct system of disqualification for the commission of electoral offences to elections using party list voting systems, since here it is technically whole parties, and not merely individual candidates, who stand for election. This comprehensive structural approach will serve not merely to reduce the sheer volume of electoral law; it also provides the opportunity to bring clarity and ease of access to the law, and consistency to the administration of the many different types of election now found in the UK political system.

A discrete area of the electoral law reform project which formed the primary subject-matter of the Law Commission’s presentation to the Constitution Unit, is the remodelling of the law relating to ‘election petitions’ – the legal process by which the outcome of elections may be challenged before the Election Court. The current law governing legal challenge is wide-ranging and ‘extremely complex’, and, as Heather Lardy has pointed out, remains “staunchly rooted in Victorian quasi-democratic precepts” (H. Lardy, ‘Challenging Elections’, (2007) 357 SCOLAG 139). Thus election petitions take the form of a private legal action, because election petition law originated in the Victorian era when “seeking elected offices was an individual endeavour and seats were sometimes passed from father to son as if a property right” (the Electoral Commission, ‘Challenging Elections in the UK’). In addition, the unique institutional position occupied by the Election Court, as a specially-convened ‘inferior tribunal’ staffed by High Court judges (R (Woolas) v Parliamentary Election Court [2012] QB 1), may be explained by reference to its origins in the historical jurisdiction of committees of the House of Commons to hear ‘petitions’ against contested elections. Other key problems in this field include the opacity of the legal grounds upon which an election petition may be mounted (there is, for instance, “no clear statement of the circumstances in which an election court [positively] should invalidate an election” where a non-material breach of election law is made out (para 13.26), since the relevant section is framed in wholly negative terms), and the inflexible and tortuous procedural rules for bringing a petition (standing is surprisingly narrow, and the petitioning party must comply with onerous formality and outlay requirements – see Ahmed v Kennedy [2002] EWCA Civ 1793; also Stoddart and Hume v Gartland & Little [2014] EWHC 2817).

The Law Commission has thus put forward a number of reforms which seek to resolve these complex and interlacing concerns. One of the core proposals, consisting in the reconfiguration of the Election Court as a standing division of the High Court, has far-reaching implications. Not only will it render many of the procedural aspects of the petitioning process more flexible; it will also create a right of appeal reaching up to the Supreme Court – a right that is demanded not merely by international guidelines, but also by the modern constitutional context, now that the UK’s highest court no longer sits in the House of Lords (an overlap which had traditionally prevented the Appellate Committee of the House of Lords from ‘interfering in the House of Commons’ own electoral affairs’ (para 13.152)). Another proposal, which seeks to create a ‘public interest petitioner’ with powers to investigate breaches of electoral law and to bring proceedings (or endorse challenges brought by individuals), promises to ‘plug’ the system’s reliance on the initiative of private individuals – thus resolving the ‘inherent tension’ between the private character of the petition process and the public interest in the integrity of electoral outcomes. A further proposed reform is the setting up of a forum to vindicate minor complaints which do not aim to formally overturn the election result. The justification is to ensure “confidence in the outcome of the election, the integrity of the election process, and the ability of electoral administrators to learn from mistakes” (para 13.196).

It remains important, however, to treat the international standards highlighted by the Electoral Commission as guiding principles towards which the new electoral law framework must work. Given the breadth, variety and technicality of electoral law, it is easy to lose sight of these overarching principles. One example within the consultation document where this has arguably happened is the proposed removal of the distinct electoral offence (currently contained in section 106(5) of the Representation of the People Act 1983) of stating that a candidate has withdrawn from the election. The proposal appears to derive from the Law Commission’s desire to prune any excess legislative material in the interest of securing an efficient legal framework, coupled with its view that the offence is “irrelevant to modern circumstances where false news is less likely to have a lasting impact… [since] the public are better informed”, in particular by social media (para 11.69). This, however, assumes that voters have equal and good access to corrective information (especially online media platforms), thus side-lining the most vulnerable in society who do not have ready access to such media (the elderly, for instance, and disabled voters).

In other areas, the Law Commission arguably does not go far enough. For instance, the Law Commission’s reluctance to indulge in policy reform has led it to make the most minimal of proposals in relation to reducing the cost of bringing a petition in the UK: it seeks merely to “emphasise that the court should be free… not to automatically require the maximum amount” of security (para 13.165). However, the OSCE/ODIHR has stated that “wherever possible the complaints procedure should be accessible without charge to the complainant… so as not to deter citizens from bringing a complaint”. This disjunction between international standards and the current petition procedure in the UK is forcefully criticised by Heather Lardy: “the capacity to challenge an election result through petition remains a privilege of the wealthy (or those supported by the resources of a political party)… this patent unfairness runs counter to notions of equality of access to the political process which permeate our twenty-first century democratic system” (H. Lardy, ‘Challenging Elections’). Given the implications of the cost of bringing a petition, both for the reliability of electoral administration and for the adequacy of access to justice, there is a clear case for the Law Commission to take a more robust stance on this issue. It is not a straightforward political choice relating to resources, but rather a procedural area in which legal form and practical outcomes cannot be fully ‘disentangled’ from policy.

In an era when the gulf between people and politics appears to be growing ever wider, the Law Commission’s electoral law reform project is opportune. The legitimate exercise of public power ultimately depends on the detailed mechanisms contained in electoral administrative law; and this branch of law also provides the framework in which high-stakes political debates about macro-electoral policy can take place. The rationalisation and clarification of electoral law can help bridge the ‘gap’ between people and politics, by re-constituting a vibrant and principled democratic culture in which the electoral process is safeguarded and scrutinised in equal measure, and more broadly by invigorating the debate on electoral law and administration. Cicero once commented that there is “nothing more deceptive than the whole electoral system”; US Senator Blanche Lincoln that “voters must have faith in the electoral process for democracy to succeed. With careful direction and proper regard for fundamental democratic principles, the Law Commission’s electoral law reform project should help to ensure that democracy can not merely succeed, but thrive.

[1] Though the project does not stay completely clear of substantive reform – it explores the possibility, for instance, of increasing the maximum custodial sentence for serious electoral offences to ten years, as an alternative to recourse to the common law offence of conspiracy to defraud.

Juliet Wells is a graduate of Oxford University, undertaking research at the UCL Constitution Unit.

(Suggested citation: J. Wells, ‘Reforming Electoral Law: a Comment on the Law Commission’s Joint Consultation Paper’, U.K. Const. L. Blog (25th Feb 2015) (available at: https://ukconstitutionallaw.org/)).