Jacob Eisler: The Elections Act in Uncertain Times: Democracy, Partisanship, and the Uncodified Constitution

The Elections Act 2022 – finally law after a long and contentious development in the Commons and the Lords – implements a number of controversial measures. The ID provision requires that persons present a photographic identification at the polls. This has raised concerns of suppressing the vote of economically and socially vulnerable groups who may be less likely to possess such ID. The lack of evidence of widespread voter deception in the UK undermines its justification as an anti-fraud measure. A separate provision places the Electoral Commission under greater government control, politicising the previously independent watchdog of campaign financing and electoral integrity. While advocates for the provision argued for it on the grounds of political accountability, it has raised concerns that the neutrality desirable of an electoral regulator is being needlessly sacrificed.

The legislative unfolding of the Act casts light on a deeper political crisis facing democratic self-rule in the UK. The passage of the Act showed exceptional partisan cleavages. While party democracy necessarily structures conflict along party lines, polarization of access to the ballot and oversight of democracy poses particular dangers. The uncodified nature of the UK Constitution exacerbates these hazards. The party in power has few constraints on its ability to modify democratic procedure, other than expression of discontent from the constituency itself – and the manipulation of electoral process by the party in power modulates that very expression of constituent will. Intense, unleavened partisanship is dangerous because it threatens to fracture the bedrock consensus that must underlie democratic cooperation, and the absence of a written constitution removes one other possible bedrock touchstone. The Act’s controversial measures exemplify these hazards, and put a prospective onus on the judiciary to monitor democratic procedure.

The Passage of the Act: Partisanship All the Way Down and the Hazards to Democracy

The votes surrounding the bill were highly partisan in the Commons from its inception. This is not an anomaly on many patterns of voting on bills, nor, given prevalent understandings of wedge block party competition and the arrangement of Westminster governance, is it a surprise as a matter of behaviour. Perhaps (though only perhaps) somewhat more concerning was the highly partisan nature of voting surrounding the Act in the House of Lords, which led by a coalition of Labour, Liberal Democrat, and Crossbencher peers, sought to defang the ID provision by widening the type of acceptable documents and to strike out the subordination of the Electoral Commission to the executive altogether. These efforts were largely futile, but in one sense redeemed the role of the Lords as a checking mechanism (though the irony of a non-accountable body seeking to protect popular self-rule should not be forgotten). However, beyond their limited practical effects, the partisan voting patterns in the Lords’ motions reinforces that the Elections Bill reworked democracy as a matter of partisan interest.

Such self-interested partiality in the design of democratic procedure threatens the sustainability of liberal democracy. A party or clique in power can adopt electoral procedures that will favour its constituencies and candidates in future contests, thereby retaining the plausible mantle of popular approval while eroding the true representativeness of the franchise. This possibility ultimately underlies concerns regarding the voter ID measure: the concern is that Conservatives seek to marginally obstruct voting by constituents with a tendency to vote progressively. Paralleling such instrumental manipulation of electoral procedure is a deeper normative problem. When the terms – especially the core principles – of democratic power become terrain for partisan struggle, the shared consensus that sustains democratic cooperation is undermined. One manifestation of this principle is that electoral procedure must be administered with rule of law-like neutrality – a mandate to which the Electoral Commission, prior to the Elections Act, adhered. Instructing the Electoral Commission to obey the party in power threatens one bulwark of the integrity in constituent representation that undergirds any democracy.

In short, the partisan features of the Elections Act contravene the principles of legitimate popular self-rule. Legitimate democratic procedure must treat each constituent, regardless of their political views, equally in a democratic process; to preserve this, electoral administration must be neutral among possible self-interested powerholders. Even if the competitive nature of democracy organized by parties mandates a government to advance partisan interests, the procedures that determine the party in power (as selected by the franchise) must aspire to neutrality.

The Vulnerability of the Uncodified Westminster Constitution to Partisan Democratic Design

Because the UK constitution is uncodified, a dominant party has unconstrained opportunities to aggrandize its power through electoral manipulation. Thus corrosive partisanship can prove especially risky to shared norms of democratic self-rule. While a written constitution provides no guarantees – it still must be interpreted and enforced in institutional and sociopolitical context – it can provide a more durable backstop for preventing erosion of the democratic process, including by partisan forces. This phenomenon is widely studied in the US in particular where, for example, federalism and separation of powers, each of which is constitutionally codified, is seen as diffusing or blunting partisan domination. While these effects are not limited to electoral procedure, the benefits for democratic governance are salient: by distributing power across multiple agents each of whom represents, in some fashion, a different constituency, the likelihood of a single clique being able to unilaterally establish terms of electoral procedure are materially reduced.

Not only does the UK constitution lack these firmly entrenched features through codification, but Westminster style governance, by its very design, tends to smooth any such distribution of power by eliminating conflicts between the legislature and the executive, at least at the level of national governance. In electoral terms, since the legislature and the executive are ultimately selected by the same constituency, they would benefit from the same curation of the franchise. This manifests in the benefit of the voter ID provision to Conservatives: any such limitations would only directly benefit the members of the legislature, but in doing so would increase the likelihood that the members of the executive would be reappointed. The friction created when the legislature and executive are directly accountable to different franchises, and the reduced benefit of cross-branch collaboration to curate constituencies, is reduced.

One tempting possibility might be to respond by codifying the UK constitution and, directly through terms of electoral access and indirectly through structural mechanisms such as federalism, thereby limit the capacity of partisanship to warp democratic procedure. The merits of doing so are beyond this post, but many scholars have noted that contemporary codification could exacerbate rather than mitigate partisan cleavages by exposing the normative and identity commitments of participants and providing opportunities for current dominant powerholders to ossify current distributions of power to established parties. Underlying these concerns appears to be a reality about codification when franchise identity is in crisis, as opposed to at moments of national identity formation: such codification will simply become another locus for the power struggle.

Legal Constitutionalism to the Rescue? Miller, Moohan, and the Frontiers of Judicial Review

One institution has the power to shift terms of governance while standing outside the fray of partisan electoral competition. Furthermore, the UK Supreme Court has shown increasing willingness to intervene to defend the principles of constituent self-rule. The Miller cases are the most famous example, with R (Miller (No.2) / Cherry) v Prime Minister invoking Parliament’s status as the linchpin of “representative democracy” ([55]) to affirm the justiciability of the issue. Even more on point, Lord Hodge in Moohan v Lord Advocate suggests the possibility that there might be a common law principle that would render parliamentary action illegal if it “abusively…curtail[ed] the franchise” [35]. This intimates that the Court could be moved to interdict partisan manipulation of the electoral process (though the judicial permissiveness of the recent decision in R (Coughlan) v Minister for the Cabinet Office queries how aggressively the Court will police procedural changes, or if the Court will defend a substantively rich concept of democratic autonomy).

Yet this possibility is discomforting from many perspectives. If the judiciary prohibited parliamentary action to preserve democratic legitimacy, sceptics of judicial review would see a cutting form of judicial overreach. To defend self-rule, the judiciary would have to constrain the very institution that instantiates self-rule. Drawing the line when electoral legislation becomes wrongful poses another challenge. It will always be a matter of debate when legitimate electoral reform slide into illegal manipulation to benefit the party in power. The controversy surrounding the legitimacy of anti-fraud provisions generally exemplifies this problem. Some degree of anti-fraud protection seems incontrovertibly appropriate, but if misused it can also mask voter suppression. The nature of an aggressive but not explicitly oppressive anti-fraud measure (such as a photo ID requirement) can be fiercely contested. In a polity where democratic autonomy is widely respected as a matter of optics, such electoral manipulation would likely occur through subtle marginal steps rather than a single vicious power grab. This makes the Elections Act more alarming as potentially such a marginal step, but exemplifies the challenges facing the judiciary if it were to act as a bulwark for democratic process.

Furthermore, where the legislature is the agent contravening constitutional principles, judicial counterbalancing would require novel and pathbreaking legal innovation. The Miller cases could point to parliamentary sovereignty itself to constrain the executive by invoking the normative primacy of direct representation. Members of Parliament are directly accountable to their constituencies and, under Westminster governance, the executive is less so. The hydraulics of popular self-rule only operate effectively if the executive is held to meaningful account by Parliament, which added additional normative weight to the Court’s defence of parliamentary sovereignty against independent executive decision-making. However, where Parliament (the central representative institution) advances legislation that contravenes democratic principles, the Court would have to claim elite moral knowledge of democratic legitimacy – whether the appropriate boundaries of the franchise or the terms of neutral electoral procedure – to declare it illegal. This would create a paradox, as a non-accountable body would itself be the champion and authority regarding democratic autonomy. It would also require a level of jurisprudential confidence and innovation not seen for generations.

Jacob Eisler, Associate Professor, Southampton Law School

(Suggested citation: J. Eisler, ‘The Elections Act in Uncertain Times: Democracy, Partisanship, and the Uncodified Constitution’, U.K. Const. L. Blog (16th May 2022) (available at https://ukconstitutionallaw.org/))