Appendix 2
Memorandum by Professor Robert Blackburn,
BA, MSc, PhD, FRHistS, Solicitor, Professor of Constitutional
Law, University of London (King's College)
Electoral Law and Administration
"At the bottom of all the tributes paid to democracy,
is the little man, walking into the little booth, with a little
pencil, making a little cross on a little bit of paper . . . The
foundation of all democracy is that the people have the right
to vote [and] have the right to choose representatives in accordance
with their wishes and feelings."
(Winston Churchill, PM, House of Commons debate,
1944)
******………….
"The Labour Party is committed to examining
all aspects of electoral law and administration and to ensuring
that citizens are aware of their voting rights and responsibilities."
(Labour Party, A New Agenda for Democracy, 1993)
******
"The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion
of the people in the choice of the legislature"
(Protocol 1. European Convention on Human Rights,
as incorporated into UK law by the Human Rights Bill, 1998)
Introduction
I warmly welcome this inquiry of the House of Commons
Home Affairs Committee into the state of the United Kingdom's
electoral law and administration. Political attention on modernising
the electoral system has tended to focus principally on proportional
representation, currently being studied by the Independent Commission
on the Voting System chaired by Lord Jenkins (due to report this
summer) and on the financial affairs of the political parties,
now being examined by the Committee on Standards in Public Life
chaired by Lord Neill QC (also due to report later this summer).
Important though those subjects are—and indeed they interconnect
in many respect with the field of inquiry of this Committee—they
are just two aspects of a far broader picture that goes to make
up the whole process by which we seek to promote fair and free
elections.
It is now widely believed that many features in the
way we organise and regulate the conduct of elections and electioneering
in Britain are out-of-date and have failed to keep pace with the
rapidly developing social and technological changes of the late
twentieth century. In recognition of this, the Labour Party in
its 1993 constitutional reform proposals committed itself to an
in-depth review of all aspects of the subject. Now in government
the Labour leadership is equipped to carry out that pledge. At
the start of 1998, Labour's home office minister George Howarth
set up a Working Party into Electoral Procedures. Whilst a home
office review of this kind is 7routine after every general election,
it is anticipated that this inquiry will prove more fruitful and
wide-ranging than others before it. The inquiry of the House of
Commons Home Affairs Committee, therefore, has an important role
to play, both in contributing to the deliberations of the current
home office review and in providing a focal point and lead for
parliamentary debate and scrutiny of forthcoming government action
in the field of electoral law and administration.
The Guide for Witnesses before Select Committees
requests a brief introduction to the person submitting evidence.
My interest in the conduct of parliamentary elections derives
from my University work as a lecturer, researcher and writer on
constitutional affairs. I have held academic posts at London University
for eighteen years, having earlier gained qualifications in History,
Political Science, and Law. I currently hold the Chair in Constitutional
Law at King's College, London. My doctoral thesis in 1983-86 explored
the theory and practice of the dissolution of Parliament, which
effectively controls the date of a general election. Between 1989-94,
I prepared a 500 page study of elections to the House of Commons
entitled The Electoral System in Britain (London: Macmillan,
1995). That work—copies of which have been distributed to
members of the Committee—contains chapters dealing with:
(1) British Parliamentary Democracy, (2) The Timing of General
Elections, (3) The Electorate: Voters and Voting, (4) Parliamentary
Constituencies, (5) Parliamentary Candidates, (6) Election Campaigns:
Publicity and the Media, (7) The Financial Affairs of the Political
Parties, and (8) Proportional Representation. This Memorandum
is largely based on research and thinking that went into my book.
The subject of electoral law and administration is
very wide, and for present purposes I have selected just ten matters
for the Committee's consideration. All relate principally to elections
to the House of Commons. Some raise issues of major general importance
to the electoral system, notably General Election Timing, Compulsory
Voting, and an Electoral Commission; others deal with particular
points of principle or procedure affecting the right to vote and
stand for election as an MP. If there are further issues which
Members of the Committee wish me specifically to comment on, I
will gladly deal with them in a supplementary Memorandum. The
following sections deal with:
1. The Expatriate Vote
2. A New System of Voter Registration
3. Double or Multiple Registration
4. General Election Timing
5. Candidates: The Age Limit
6. Candidates: Religious Discrimination
7. Reforming the Electoral Deposit
8. Promoting the Secrecy of the Ballot
9. Compulsory Voting
10. An Electoral Commission
The aspects I have selected focus on areas where
I believe the case for some modification of existing practice
is strong and where it seems to me that widespread political acceptance
of the desirability or need for legislative and administrative
action now already exists or is most likely to be forthcoming.
1. THE EXPATRIATE
VOTE
During the 1980s the Conservative government brought
forward legislation granting successive extensions of the franchise
to British nationals who were no longer resident in the UK. Some
claimed that this had the effect of maximising the Conservative
Party vote, on the assumption that the relatively affluent tend
to vote Conservative and that persons living abroad tend to be
relatively affluent. True or false, the Representation of the
People Act 1985 allowed persons to continue voting in the constituency
where they were last resident for a period of up to five years'
absence. This was then taken much further by the Representation
of the People Act 1989, which permitted such voting in UK elections
for a period of up to 20 years' absence.
This means that an expatriate living 100s or 1,000s
of miles away, for the duration of up to a period exceeding a
whole generation, carrying memories of British politics in the
past and with little or no personal knowledge of contemporary
issues in the constituency where he or she used to live, can influence
the election of the government of a country to which he is not
subject and to whom he or she may be paying no taxes. Indeed many
such persons may have left the country specifically to avoid paying
taxes here, yet now since 1989 have been rewarded with a vote
in the country's affairs. Each parliamentary constituency's registration
officer at present compiles a list of overseas electors, to whom
letters are sent each year reminding the voter of the need to
make an overseas elector's declaration in order to remain on the
register. This declaration confirms the person's British citizenship
and non-residence, and gives the date of his or her last residence
in the United Kingdom. The overseas voter can then vote in that
constituency in which he last resided at some time within the
last 20 years, and may use a proxy for the purpose who may not
live in the constituency at all.
This extension of voting rights flouts two traditional
principles of the British electoral system, namely that the basis
of the parliamentary system is the representation of constituencies,
and that the basis of the right to vote is one of residency in
a constituency. It was largely for these reasons that the Home
Affairs Select Committee of the House of Commons in its Report
in 1983 unanimously rejected the introduction of giving all expatriates
the right to vote, recommending instead that it be restricted
to British citizens working or living within the European Community.
Government and related personnel working overseas,
such as members of the armed forces and Embassy officials, have
always had the right to vote, however long the absence from home,
and special arrangements are made for them. But for other overseas
voters, some modification of the law is necessary. It is estimated
that some three million persons are now eligible as overseas voters,
though in 1992 and 1997 the number of such persons actually wanting
to vote was below 40,000. Only a small proportion of expatriates,
therefore, appear actually to desire still to be involved in the
political affairs of the country they have left behind.
One approach is simply to reduce the period of absence
from the constituency down from 20 years, perhaps to five years
as in the original 1985 Act conferring the right to vote upon
non-resident British citizens. Two better approaches, aimed at
citizens working temporarily abroad, would be either (A) to abolish
this novel extension of the 1980s altogether but reserve a right
to vote to those persons overseas who owned a house in the United
Kingdom and lived in it for part of the year, or preferably (B)
to revert to the five year period of the 1985 Act but at the same
time make the right to vote dependent upon a genuine intention
to return to this country. Such an intention is expressed in a
person's choice of domicile, which is a legal concept used mainly
in family law, and is also of some significance for inland revenue
tax purposes. Domicile, therefore, should become a principal factor
in a British citizen's eligibility to vote. British citizens abroad
should be permitted to vote for only such length of time, up to
a maximum of five years, that they declare their domicile to be
in the United Kingdom and thus retain a firm root in its body
of citizenship.
2. A NEW SYSTEM
OF VOTER
REGISTRATION
Within Great Britain there is no required duration
for which the citizen must have lived in a constituency in order
to be qualified to vote there. A person must simply have been
living in the locality on a "qualifying date" (which
is 10 October). In Northern Ireland, however, a requirement for
three months' residency applies (and there is a separate qualifying
date, 15 September). Residency is established by forms being sent
out to the occupier of each household in the United Kingdom from
the electoral registration officer for each constituency several
weeks before the qualifying date.
Persons who are otherwise legally qualified to vote
may only be permitted to do so if their name has been accurately
entered on the electoral register in the constituency where he
or she has been living and wishes to vote. The quality and efficiency
with which the electoral register is drawn up, therefore, is crucial
to the operation of our electoral system. The legal responsibility
for this important administrative task in each constituency is
that of electoral registration officer appointed by the local
authority. The duties and powers of electoral registration officers
are laid down by the Representation of the People Act 1983 which
requires them "to prepare and publish in each year a register
of parliamentary electors for each constituency or part of a constituency
in the area for which he acts". The names of people who are
resident in the constituency on the statutory qualifying date
must be entered on the register, which then becomes operable on
the following 16 February for the purposes of any general election
held during the next 12 months.
At the 1997 general election, there were 44,204,000
names entered on the electoral register, accounting for 95.2 per
cent of the resident adult population in the preceding mid-year.
This was an increase of 479,000 electors over the situation in
1992 and represents a considerable improvement over the early
1980s when the House of Commons Home Affairs Committee last inquired
into electoral registration and found a discrepancy between eligible
and registered voters standing at 9 per cent, rightly described
in its report as "an alarming degree of inexactitude".
Sustained efforts at increasing the numbers and accuracy on the
register have been made by registration officers in recent years,
including more advertising and greater door-to-door efforts to
ensure the return of the annual request sent out to all householders
for information on the persons resident in their home.
To sustain and further improve the quality of voter
registration in this country, a radical overhaul of its basic
system of administration is needed, particularly now that virtually
all electoral registration offices are installed with computers.
Earlier administrative practices connected with the laborious
manual paperwork involved have made the present annual method
of voter registration an anachronism. Today a citizen's right
to vote should be founded not upon an arbitrary annual anniversary
as at present, but upon the date on which he or she files a claim
of eligibility to vote in a particular constituency. In other
words, electoral registration should become a "rolling"
exercise, being constantly up-dated, with the annual issue and
return of forms to householders being just one method of verification
and accuracy of the register. Such a proposal was endorsed by
Labour policy documents in 1993, both in A New Agenda for Democracy:
Labour's Proposals for Constitutional Reform and in the Report
of the Working Party on Electoral Systems chaired by Lord Plant.
Legislation will be needed to implement this new
system of voter registration which could usefully adopt some of
the drafting contained in the Representation of the People (Amendment)
Bill which was presented to Parliament by Harry Barnes in 1993.
Statutory provisions should create the requirement for a rolling
register and then proceed to modify the registration officers'
duty so that he or she is to take all reasonable steps to ensure
that the rolling register is accurate at all times. Persons moving
into a new constituency should be placed under a legal requirement
to notify the registration officer within three weeks of taking
up residence there. Provision should also be made for voters left
off the register by accident. It very often happens at present
that voters do not realise that their name is missing from the
electoral register until the general election is called and they
do not receive a official poll card telling them where to vote.
Under a rolling register system, provision should be made so that
such persons can in fact vote assuming they are otherwise legally
qualified to do so at the time the general election is called.
The new legislation should require returning officers to publish
the electoral register, and send out the official poll cards to
all voters, within two days of the dissolution of Parliament,
and local advertising and notices in the national and local press
should then inform the public that all qualified persons failing
to appear on the register or receive poll cards should apply to
their registration office immediately to be entered on the electoral
roll and be permitted to vote.
Co-ordination and supervision of the new system of
voter registration will be desirable, and would best be entrusted
to a new national agency set up for this and other electoral purposes,
an Electoral Commission as envisaged and proposed below.
3. DOUBLE OR
MULTIPLE REGISTRATION
It is fundamental that each voter should only have
one vote at a general election. However, the situation regularly
arises today that a voter is treated as being "resident"
in more than one parliamentary constituency, and therefore has
his or her name entered more than once on the electoral register.
To cover such situations section 1 of the Representation of the
People Act 1983 precludes double voting by providing that, "A
person is not entitled to vote as a elector in more than one constituency."
It was the legal decision in the case of Fox v.
Stirk (1970) which confirmed that persons could be treated
as being resident in two places for voting purposes. On the facts
of that particular case, the court held that University students
were eligible for registration and voting both in the constituency
where they lived during University term-time and in the constituency
where their parents lived and they returned during the University
vacation. Lord Denning, then Master of the Rolls, decided that,
"A person may properly be said to be 'resident' in a place
when his stay there has a considerable degree of permanence".
He then went on to lay down three general principles on the meaning
of "residence" under the Representation of the People
Acts, as follows:
The first principle is that a man can have two
residences. He can have a flat in London and a house in the country.
He is resident in both. The second principle is that temporary
presence at an address does not make a man resident there. A guest
who comes for the weekend is not resident. The third principle
is that temporary absence does not deprive a person of his residence.
Currently, this means that a person "resident"
in more than one constituency has a choice of where to vote. Dual
or multiple registration—and thereby a choice of constituency
at general elections applies most commonly to our more affluent
citizens by virtue of their ownership of two or more houses. Such
persons may travel to (or apply for a postal vote at) the constituency
rather than the one where they spend most of their time. Furthermore,
persons registered in two or more constituencies may prefer to
cast their vote in the constituency which is more marginal and
therefore where their vote is more likely to prove of political
impact to the result.
It would be preferable to remove this element of
electoral chicanery which has systematically favoured the better-off.
The principal solution required is that persons who live at two
locations or who own properties in different constituencies should
be required to nominate a 'main residence' for voting purposes.
This process of nomination might be guided by a set of criteria,
laid down either in the Representation of the People Act or in
some code of practice drawn up under its authority, and would
prove no more administratively difficult to enforce than that
which is required at present for capital gains tax purposes. Our
electoral law would thereby be amended so that every elector is
treated, for the purpose of the right to vote at parliamentary
elections, as resident at his main residence only.
4. GENERAL ELECTION
TIMING
Under existing electoral law, the date of the next
general election remains unknown to British voters and opposition
parties alike, until it is announced by the Prime Minister approximately
five weeks before polling is due to take place. All the statute
book has to say is that no Parliament should exceed five years
in duration (by the Septennial Act 1715, as amended by section
7 of the Parliament Act 1911) and if it does, it will automatically
terminate. Even then there is no statutory requirement for a new
Parliament to be called and a general election held for a further
three years (under the 1694 Triennial Act still in force). This
means that in strict legal theory general elections only need
to be held once in every eight years.
The legality of electoral timing otherwise is a matter
purely for the Royal Prerogative. The Queen carries out the legal
ceremonies involved in dissolving Parliament and causing election
writs to be issued to constituency returning officers simply whenever
the Prime Minister requests her so to do. So long as the Prime
Minister retains his majority in the House of Commons (or if a
minority administration, can ward off any No Confidence motion),
he is free to call a general election whenever he likes. No law
or convention exists to require the Prime Minister to obtain the
consent of MPs to a dissolution, nor even to oblige him to consult
or notify them in the House of Commons. The general election date
is cursorily announced to the world in the form of a Press Notice
issued direct to the media by the Prime Minister's staff at 10
Downing Street.
And, as everybody knows, a Prime Minister sets an
election date at the time when he thinks he is most likely to
win it. Conversely, he will avoid such times as he is likely to
lose it. The anachronistic state of the law on electoral timing
adversely affects the fairness of the election process as a whole.
It gives the party in government a tremendous tactical advantage
over the opposition parties, and of all the possible flaws to
be found in our electoral law and administration, this perhaps
above all other matters does most harm to the integrity of the
electioneering contest. More generally, it serves to feed the
existing sense of public cynicism about the motivation of political
leaders.
In his 1991 party leader's conference speech, Neil
Kinnock promised that an in-coming Labour government would establish
fixed intervals between general elections, so as to do away with
the unfair advantage possessed by a Prime Minister to control
the election date. The 1992 Labour election manifesto subsequently
read.
The general election was called only after months
of on-again, off-again dithering which damaged our economy and
weakened our democracy. No government with a majority should be
allowed to put the interests of party above country as the Conservatives
have done. Although an early election will sometimes be necessary,
we will introduce as a general rule a fixed parliamentary term.
Though Labour's policy documents have been quiet
on the matter since, it has become firmly established as a Liberal
Democrat commitment. Furthermore, since the 1997 election the
rationale for the existing system has become ever more tenuous.
Even the purported justification that the prerogative of dissolution
permits the government some mechanism whereby it may test electoral
opinion on some major item of public policy has now evaporated
with the government's clear espousal of the institution of referendums
in the politics of the 1990s. In the creation of the new Scottish
Parliament, a fixed four year term applies and there was never
any question of utilising the prerogative or an Order in Council
as the basis for its election timing.
The construction of a fixed term for the Westminster
Parliament raises more complex issues than at first meet the eye.
One important detail to be settled at the outset is the most appropriate
length of the fixed interval between elections. Elsewhere in the
world, the tenure of members of legislatures or of positions in
government office tend to vary between two and seven years. In
the USA, members of the House of Representatives (the lower House
in Congress) are elected every two years, the President holds
office for four years, and members of the Senate (the second chamber
of Congress) serve for six year terms. The Parliaments of both
Australia and New Zealand operate three year terms between elections.
French law operates at the maximum end, with the French President
being elected every seventh year, members of the French second
chamber (the Senate) being elected for nine year terms, and National
Assembly elections being every fifth year. In Sweden, members
of the Rikstag serve for three year terms. But the majority of
European countries, including Denmark, the Netherlands, Germany,
Norway, Portugal and Austria, all regulate the intervals between
their parliamentary elections at the period of four years.
In the UK, there can be little doubt that the period
between general elections should be four years. The proposal for
fixed-term Parliament as a whole should fit as closely as possible
into existing constitutional expectations, and the idea that four
years is about the right length of time between elections is very
prevalent. It was the period expressly approved of as being normal
in practice, when the Parliament Act set the period of five years
as a maximum. In an ideal democracy it may be that there should
be elections as frequently as possible—even annually as
supported by the Chartists in the eighteenth century—but
a government must be allowed a sufficient period of time in which
to put its programme of public policies into effect before submitting
its record of achievement, or otherwise, to the voters. Three
full legislative sessions, and certainly four, is sufficient for
this purpose.
A second important detail must be to lay down clearly
the circumstances in which an earlier election might be permitted
within the four year period. It is important that there is some
such safety-value, as is common in fixed term arrangements in
other countries, to provide for those exceptional situations where,
for example, the government loses the confidence of the House
of Commons, and no new government can be constructed from the
composition of the House as it stands. Essentially, the new legislation
should provide for the House of Commons to be able to control
whether there should be either a fresh general election, or whether
there should simply be a change of prime minister and government.
The trigger for any such process should be a No Confidence motion
in the House of Commons, consisting either of an opposition motion
of No Confidence in the government or prime minister being passed,
or a government motion seeking the formal Confidence of the House
being put forward and lost. If any such motion is expressed towards
the government as a whole, then there should be a general election;
but if the motion is expressed towards the prime minister, then
he should resign office. If it transpires, following a prime ministerial
resignation, whether voluntary or through a No Confidence vote,
that no prime minister is appointed within a prescribed period
of time (say, 20 days), for example because no alternative party
leader feels able to form a new government, then again there should
be a general election.
It is appropriate that the process of Confidence
motions is adopted as the only procedure for an early general
election, because any other form of Commons' resolution, such
as a vote on dissolution itself, would allow the government to
remain in full control of electoral timing. Little would change
if dissolution was simply put to the vote or confirmed by the
Commons, as has been suggested by some, because assuming the prime
minister took the usual care through the whips to ensure the loyalty
of his or her own party backbenchers, the government's majority
in the House could be relied upon to support the prime minister's
decision on the timing of the election whenever he or she chose
to put the motion before the House. A simple confirmation vote
does have one advantage, however, over existing arrangements,
in that before putting forward his or her motion, the prime minister
would be obliged to take soundings of backbenchers and Cabinet
colleagues to ensure the party voted together. But it is only
under a fixed term arrangement subject to No Confidence motions
as proposed that one could realistically hope to keep early dissolutions
free from political manipulation by the government, and ensure
electoral timing was determined by reasons of genuine constitutional
need, as opposed to purely party political advantage.
5. CANDIDATES:
THE AGE
LIMIT
There are good arguments for suggesting that the
state of British election law on parliamentary candidature should
be codified. Currently, it exists in the form of numerous, diverse
disqualifications laid down in a series of ancient common law
principles and statutes harking back to the middle ages. However,
for the purposes of this memorandum, two particular forms of disqualification
will now be considered as representing areas most in need of reform.
These are: (1) The age limit for candidature, and (2) The disqualification
of Christian priests.
The Labour Party view expressed in A New Agenda
for Democracy: Labour's Proposal for Constitutional Reform
(1993) was unequivocal that the age for parliamentary candidature,
currently 21 years, should be similar to that for voting, which
is 18 years. "There is no justification for the continued
discrepancy between the age of nomination and voting rights. We
believe that it is right that the age of nomination which at present
stands at 21 should be reduced to the age of 18." Ironically,
however, it was a Labour administration which created the anomaly
in the first place. In the late 1960s the Wilson government granted
full citizenship to all persons at the age of 18, under section
1 of the Family Law Reform Act 1969. Persons at 18 were now to
be entitled to equal civil rights as with any other adult, including
freedom from restrictions on property-ownership, the right to
marry, the right to bring legal actions, and the enjoyment of
a host of other basic rights of citizenship. It excluded voting,
but separately in the same year a Representation of the People
Act was passed lowering the right to vote from 21 to 18 years.
No consideration at that time, either in Cabinet or Parliament,
was given to similarly lowering the age at which one had the right
to stand for election to Parliament.
So there remains today this inconsistency in our
election law, between being an elector at 18 but not being electable
until 21. At one end of the political process - the exercise of
the vote—the age of maturity is set at eighteen but at the
other receiving end—parliamentary candidature—a different
level of maturity is prescribed. Arguments for this discrepancy
might include that 18 year olds are too immature and inexperienced
actually to be working at Westminster and representing the nation,
as opposed to expressing a political opinion through the vote.
Some would say there is no reason why voting and candidature ages
should be automatically identical, and it is true that some other
countries have disparate ages. In the United States of America
voting is at eighteen, but candidature to the House of Representatives
is limited to 25 year olds (30 years in the case of their second
chamber, the Senate). In France voting is at 18, but you must
be 23 before standing for election to the National Assembly and
35 years for their Senate. On the other hand, it is precisely
upon the principle that adults should assume equal civil responsibilities
at the same time, and that only the electorate can pass any further
judgment on a candidate's suitability for political office, that
many other countries including Australia, Canada and Germany make
18 years the age for both voting and candidature.
Some will also argue that reducing the age for candidature
will make negligible difference in the number of candidates coming
forward, and so it is not worth the bother of drawing up the necessary
legislation or amending clause in the next Representation of the
People Act. It is again true that in practice few persons between
18 and 20 years of age will wish to start a professional political
career so young, and it is very rare for a local party association
to wish to select someone at that age as their official candidate,
especially as there is always stiff competition from experienced
party members and campaigners and from former MPs defeated at
the last election looking for a new constituency. Nonetheless
the law governing our democracy should reflect points of rational
principle, not anachronisms that Parliament has overlooked to
debate, or finds inconvenient to find time to consider. Even if
only one person is blocked from becoming a parliamentary candidate,
in the absence of a sound constitutional basis it is an unjustifiable
restriction upon the electoral process. Over the past 25 years
there have been many parliamentary candidates in their early 20s,
mainly beginning their political careers in unwinnable seats for
their parties, but also some who have won and been elected to
the House of Commons.
The signs are that there is in fact strong cross-party
support for this reform. Many Labour MPs support the idea; the
Liberal Democrats have included it in their election manifestos;
and in 1985 a group of Conservative backbenchers tabled a Members
of Parliament (Minimum Age) Bill on the matter. The 21 age restriction
upon candidature should be reduced to 18 years, consistent with
the right to vote, at the earliest opportunity. After a person
has reached adulthood at 18 for virtually all other civil purposes,
he or she should be free to offer himself for election to Parliament,
and the law should not restrict the choice of local voters to
decide for themselves on the suitability of the particular candidate,
and whether or not he or she is the best person to be representing
them.
6. CANDIDATES: RELIGIOUS
DISCRIMINATION
One rather different form of disqualification from
parliamentary candidature may also today lead to an injustice.
This is with respect to the right of a present or former minister
of religion to enter a political career.
For anyone seeking a simple answer to the question
"Can a priest stand for Parliament?", reading the legal
sources on the subject requires burrowing away in collections
of parliamentary statutes to find at least nine separate legislative
acts on the subject stretching back to the sixteenth century.
The short answer is that some priests are disqualified, and others
are not; and some priests can relinquish their ministry to become
an MP, but others are unable to do so. The following generalisations
apply. (i) Only certain Christian priests are disqualified whereas
ministers of all other religious faiths, such as Judaism, Islam
and Buddhism, are eligible. (ii) All episcopally ordained priests
of the Anglican Church are disqualified, but not in Wales. (iii)
All Roman Catholics priests are disqualified. (iv) Nonconformist
clergy (being priests not ordained episcopally, in other words
not made a priest by a bishop) are not disqualified but they are
in Scotland. The reasons for the discriminatory principles applying
here between and across different faiths are ones derived purely
from our ancient history and have no political justification today.
Furthermore, currently, it is only priests of the
Established Church of England who are able in law, under the Clerical
Disabilities Act 1870, to resign their ministry in order to become
a parliamentary candidate. All other ordained priests are disqualified
by British law for life and it makes no difference that they might
have given up working as a priest, or lost their faith, or even
become a member of some completely different faith, such as Buddhism;
they can never be MPs. Into this wide group of former Christian
priests who are treated differently from those in the Church of
England are those who have ever practised as ministers of the
Church of Scotland or ever been ordained into the Roman Catholic
Church. Bruce Kent, the former Roman Catholic priest who resigned
his ministry to lobby for nuclear disarmament and enter politics,
stood as a parliamentary candidate at the 1992 general election
for the
constituency of Oxford West and Abingdon (comfortably
won, in the event, by the Conservative candidate). In fact, under
present electoral law, Mr Kent was disqualified for life from
ever becoming an MP. If he had won the constituency election,
he would have been unable to take up his seat at Westminster.
The situation would have been analogous to the position of Tony
Benn MP in the 1960s, who found himself disqualified from membership
of the Commons for life by virtue of succeeding to his father's
hereditary peerage in 1960, until the Peerage Act 1963 was passed
permitting him to renounce his hereditary title.
Many people will believe that there are one or more
good reasons why, as a general principle, it is preferable that
active ministers of religion do not stand as parliamentary candidates.
But it is important to emphasise that this does not mean automatically
that the state should ban them by law from doing so. The original
reasons for the ancient clergy disqualification statutes have
long since ceased to exist. Roman Catholic priests are no longer
seen as potential subversives, and the Anglican clergy no longer
represent a fourth estate of the realm. Still less should the
state use the law of the country to disqualify clergy in such
an inconsistent and illogical fashion, so that the Reverend Ian
Paisley can be an MP by virtue of being a Nonconformist but other
priests who are Anglicans or Roman Catholics are subject to legal
prohibition. Perhaps most objectionable of all is that only Anglican
religious ministers can choose one profession or the other, and
relinquish religious office for a new career as an MP, but all
other ordained priests cannot do so.
One simple reform that would be a definite improvement
would be simply to extend the terms of the Clerical Disabilities
Act 1870 to cover all disqualified priests. But more generally
it is wrong for the state today to be regulating a matter that
should more properly be for internal Church discipline to decide.
The objections to priests standing for Parliament are canonical
ones, not constitutional, and it should be ecclesiastical law,
not the state, that imposes disqualifications upon a cleric's
political liberties. It is for the individual Churches concerned
to decide whether or not to impose restrictions as a matter or
religious ethics, or incompatibility of the two professions, as
a necessary condition of the priest's particular work. And just
as a civil servant can resign to go into politics so too should
a minister of religion be free to do so. Ultimately the question
of the individual's suitability for politics should be left to
the local electorate to decide, and it is fundamental that there
should be as few restrictions as possible upon the right of the
voters freely to decide whom they wish to represent them. There
are basic principles of political liberty involved here, about
which British public policy as enshrined in its law is muddled
and which the government and Parliament seem reluctant to confront
and prefer to ignore. In recent times, there has been growing
support within the Anglican Church for reform of clergy disqualification.
In 1982, its General Synod carried a motion that "this Synod
believes that clergymen of the Church of England should be free
like other citizens to take their seats as elected Members of
Parliament". It is time for the clergy disqualification legislation
simply to be repealed.
7. REFORMING THE
ELECTORAL DEPOSIT
Parliamentary candidates cannot be validly nominated
unless the sum of £500 is deposited by them or on their behalf
with the returning officer during the time for delivery of nomination
papers. The money may be handed over in cash, or by banker's draft,
or any other manner acceptable to the returning officer. This
£500 will be returned to the candidate after the general
election if he or she managed to collect at least 5 per cent of
the total votes cast in the constituency, but if the candidate
polls less than 5 per cent then he or she loses the money which
then goes to the treasury. There exists a serious issue today
in our electoral law whether this requirement of a financial deposit
is consistent with the democratic right of every citizen to stand
for election if he or she wishes regardless of financial status.
From a comparative perspective, the present deposit
system—and the desire in some quarters to push the sum of
money involved even higher—is an extraordinary state of
affairs. Only four other states in Europe (France, Ireland, Greece
and the Netherlands) and none in the USA have deposit systems
at all, and even in those four states the sums required are far
lower than the £500 at present demanded of a parliamentary
candidate in Britain.
Prior to 1918 candidates had been nominated without
any need to deposit sums of money with the returning officer.
The Home Office's invention of the deposit in 1918 was barely
mentioned, let alone properly discussed, during the otherwise
very lengthy debates on the parliamentary passage of the Representation
of the People Act, but a tacit acceptance seems to have existed
at the time that some capital requirement was a good idea in order
to keep out unsuitable candidates. Undoubtedly, there were many
within the political establishment at that time who regarded the
fledgling Labour Party and its trade union and working class candidates
(who would be hit hardest by the requirement of a deposit) as
less than top-class parliamentary material and a potential threat
to the good government of the country. This same idea of the deposit
being a tool for keeping out "unsuitable" candidates
is still inherent in our law today and is democratically indefensible.
Those who justify the deposit seek to put off candidates
indiscriminately upon the basis that they have no serious chance
of winning. As Sir Leon Brittan said, when defending the Representation
of the People Bill as home secretary in 1985. "The deposit
is a perfectly respectable parliamentary barrier founded in principle.
The deposit is founded in principle because the essence of election
to Parliament is the contest between people who have serious aspirations
to represent a constituency". However, surely it is essential
to draw a distinction between (A) joke candidates who by their
own admission are out to make mischief for one or more of the
other candidates or who are otherwise seeking publicity for some
selfish reasons; and (B) serious candidates who may stand no realistic
chance of winning but who legitimately seek to draw attention
to their views, contribute to political debate and display what
level of popular support they happen to posses. The latter have
every right to engage in the democratic process of electioneering
as candidates and our election law should seek to promote and
facilitate that right, not obstruct it.
One of the most important objections to the deposit
is that it financially penalises serious minority parties and
independents, who are least able to afford to put forward sizeable
sums of capital, especially when added to their expenses in financing
their election campaign, such as printing election addresses and
posters. At the 1992 general election, for example, the Green
Party fielded 253 candidates, which necessitated a capital investment
of £126,500, and every single candidate lost their deposit
by polling below 5 per cent of the local votes, though 170,047
electors across the country voted for the party. Were the Greens
not serious candidates therefore? Did they detract from the seriousness
of the general election? On virtually any democratic interpretation
of their involvement that can be made, they should be regarded
as having constructively participated in the election debate by
directly putting serious environmental issues across to the voting
public (and indirectly, having legitimately put pressure on the
main parties to help make the issues they were drawing attention
to a higher priority within those parties' policy programmes).
Conversely, defenders of the deposit tend to exaggerate
the negative impact of minority or fringe candidates. How many
of us can ever remember actually being seriously misled or confused
by a candidate such as Screaming Lord Sutch? No doubt many people
see some of the fringe parties apart from the Greens, notably
the Communist Party and the British National Party, as extremist
groups on the Left and Right who should be excluded from the political
process altogether. But this may be short-sighted; by obstructing
such groups from participation in the electoral process, extremist
politics may be fed by a legitimate sense of grievance and be
driven in the direction of extra-parliamentary tactics.
Clearly, some form of support for an individual's
candidature should apply. Parliamentary candidates have rights,
privileges and advantages conferred upon them (such as the right
to free postage of election addresses, the right to free use of
publicly maintained buildings for public meetings, and the right
to veto broadcast transmission of material relating to the constituency
election) and an unrestricted exercise of the freedom to stand
for election can therefore be open to abuse, for example by businessmen
seeking free advertising for their products. But the way to resolve
that problem is not by penalising all candidates who do no belong
to the major parties, but by establishing some procedures indicating
that the candidate has some measure of political backing.
The requirement of a financial deposit should be
abolished and replaced by a new form of requirement involving
a candidate being nominated by a much larger prescribed number
of local electors nominating him or her. An appropriate number
of such nominators would be 200. Each person putting their name
to the nomination should be required to sign the papers, and add
in a clear, legible form their full name and electoral registration
number. The statutory provision should permit the list of nominations
to be drawn up at any time within one year prior to the election
date, so that proper care and consideration can be given to the
matter (and avoid a rush in the six days following the Royal Proclamation).
The lists of nominators for each candidate should be displayed
in a public place, and published in at least one local newspaper.
The fact that a nominator's electoral registration number must
be stated would avoid petition-like gatherings of names for frivolous
candidates in town centres, since the person approached would
need to have time to find out his electoral number and this would
ensure a period of serious reflection. On the other hand established
parties, whether one of the three major parties or a smaller organisation
like the Green Party, would have no difficulty in arranging for
a sufficient number of local party members to sign the nomination
papers.
Finally, the predictable objections to replacing
the financial deposit with an extended nomination system should
be answered. In the Conservative government's white paper prior
to the Representation of the People Act 1985, it was suggested,
A requirement of this kind would greatly increase
the work of the acting returning officer, who would have to check
the signatures on each nomination paper against the electoral
register in the busy period before nominations close, and it would
increase the risk of a nomination being held invalid on purely
technical grounds. But the main objection, in the Government's
view, is that a candidate's ability to produce signatures is no
test of the number of votes he or she will receive in the Election.
There are three points here to answer therefore.
First, it is said this "would greatly increase the work of
the acting returning officer". To use the word "greatly"
here is a serious exaggeration. It has been calculated that it
would take one minute on average to check each signature. In other
words, all the nomination lists could be checked within one working
day by a competent official, and even if in the planning of resources
allowance was made for an extra working day to deal with exceptional
cases where an allegation of impersonation needed to be investigated,
the total work involved would still only be two working days for
one official, at a total cost of around £200. Second, it
is asserted that a nomination procedure as proposed "would
increase the risk of a nomination being held invalid on purely
technical grounds". This too is a very weak argument. Good
planning by the candidates' organisations would always ensure
that there was a small number of signatories in excess of the
200 required, say 225, so that in the unlikely event of one or
two of their supporters proving ineligible (for example, not actually
being registered on the electoral roll) there would still be the
statutory number required. The third objection stated is that,
"a candidate's ability to produce signatures is no test of
the number of votes he or she will receive". This, as the
political editor of the New Statesman commented at the
time, is "the worst argument of all. The point of setting
any hurdles is not—or should not be—to block serious
minority candidates, but to block frivolous ones." Certainly
persons nominating a candidate would not necessarily be undertaking
to vote for him or her personally (though in the majority of cases
they will in fact do so). But this misses the whole point of the
nomination procedure: what is being suggested is a legal requirement
for the judgement of a substantial number of local electors to
be expressed on the suitability of the candidate to participate
at the election.
This would replace the present insidious barrier
existing at present in our electoral law that penalises or blocks
serious parties and candidates from participating in the democratic
process, whilst still allowing affluent individuals who can afford
to lose £500, however frivolous, regardless of whether or
not there is any substantial support for his or her nomination.
8. PROMOTING
THE SECRECY
OF THE
BALLOT
It is a basic constitutional principle that everyone
should be able to exercise their right to vote in conditions of
secrecy. There are three associated aspects to this principle
which need to be distinguished and born in mind when examining
current electoral law on the secrecy of the ballot. First, there
must be conditions of secrecy at the polling station such that
no one may observe or seek to influence voters. Second, legal
and administrative procedures should prevent ballot papers being
matched with other documentation to discover how persons voted.
Third, the information of how people choose to cast their vote
should not be recorded in any form without the express knowledge
and permission of the voters concerned.
British electoral law on the secrecy of the ballot
is to be found in the Representation of the People Act 1983. The
Act specifies that "votes at the poll shall be given by ballot",
and lays down a wide range of stipulations for maintaining the
secrecy of how electors have voted. All officials and other persons
allowed to attend the polling station are required to "maintain
and aid in maintaining the secrecy of voting". Detailed requirements
prohibit any interference with voters or attempts being made to
discover for which candidate he or she voted, and regulations
specify who is and is not permitted to be present inside the polling
station. The rigour of our legal theory behind the secret ballot
might even be regarded as excessive in certain respects: for example,
if a person voting wishes to identify himself and write his name
or initials on his ballot paper, the effect of this will be to
invalidate his vote altogether.
This great stress in the 1983 Act of Parliament on
the secrecy of the ballot stands at some odds with the obvious
flaw in the modern British practice of ballot voting. Casting
one's vote in the polling booth in circumstances of privacy is
to be sharply distinguished from the equally important matter
of maintaining the secrecy of how each citizen actually voted.
In this second respect, there is and never has been a secret ballot
in Britain, because the way in which individual citizens vote
can be traced from each ballot paper used. Every ballot paper
given to the citizen who is voting contains a serial number on
it, which is also printed on the counterfoil retained by electoral
officials. Before a ballot paper is handed to the citizen, he
is asked for his name and address (or preferably to show the clerk
his official poll card which shows his name, address and electoral
registration number on it). The polling clerk then traces the
person in the copy of the electoral register that he has on the
table in from of him, and ticks the voter's name off the list.
The clerk then tears one of the ballot papers out of the book
of papers printed for the purpose, hands it to the voter and directs
him or her to the private booth. And then the clerk writes the
electoral registration number of the voter on the counterfoil
to the ballot paper just issued.
This means that after the election documentary information
is in existence which will disclose who voted for which particular
party in the constituency. The count by the returning officer's
officials leaves all votes for each candidate in separate bundles,
which are then placed in paper sacks with special labels and seals
supplied by Her Majesty's Stationary Office and forwarded to the
Clerk of the Crown in London. It is possible for the serial numbers
of these ballot papers to be matched against those retained on
the counterfoil stubs which disclose the electoral registration
number—and therefore name and address of citizens and how
they voted—which are similarly forwarded to the Clerk of
the Crown in London. Copies of electoral registers are already
available on computerised disk, and in the future computerised
counting of ballot papers by means of electronic vote counting
machines is likely to replace manual counting of votes. If computers
now in existence are able to read numbers on stacks of papers,
then the technology for speedy cross-referencing and making such
political inquiries is already with us. It seems that computerised
matching and print-outs of entire lists of voters for each party
is now perfectly possible. It may or may not be far-fetched to
conjecture that at some point in the future an oppressive government
or its over-zealous officials might surreptitiously wish to find
out the name and address of all "dissidents" who voted
against them at a general election, but if so the bundles of ballot
papers and counterfoil stubs retained by the Clerk of the Crown
are available for analysis to produce the necessary information.
Of course the law prohibits such inquiries, but the practical
reality is that compliance with and enforcement of the law ultimately
depends upon the various interested agencies of government themselves.
The ostensible argument for putting the voter's electoral
registration number on the counterfoils of ballot papers is said
to be that it facilitates investigations into alleged electoral
offences, such as multiple voting and impersonation, so as to
decide whether a fresh election needs to be ordered by the Election
Court. However, vote-tracing hardly helps in the detection and
prevention of any offence in itself, for there is no way that
the identity of the impersonator can be discovered from the ballot
paper. Investigations of such electoral fraud, involving voters
finding out when they arrive at the polling station that their
name has already been ticked off the electoral register by the
clerk, can rely upon the evidence of the polling clerk that a
ballot paper has indeed already been handed to some impersonator—tracing
the ballot paper itself is not necessary.
The case for recording voters' registration numbers
on the ballot counterfoils therefore is a weak one and cannot
outweigh a growing public concern at the risk to the secrecy of
the ballot. The regulations contained in the Representation of
the People Act limiting the legal circumstances in which the information
may be retrieved may be sufficient as rules themselves, but guaranteeing
actual compliance with the rules in the real world raises more
complex questions; for whilst the information to discover how
individual citizens voted continues to be stored, the potential
for their misuse remains. The practice of writing voters' electoral
registration numbers—or entering any other note which might
disclose a voter's personal identity—on the counterfoils
of ballot papers should be expressly abolished by law.
As part of this reform, two new measures are desirable
to help strengthen existing practices designed to combat the potential
for voter impersonation. First, as suggested above, citizens should
be eligible to vote in only one constituency, being their main
place of residence. This would remove the ease with which dual
or multiple voting could take place as a result of dual or multiple
electoral registration being permitted under existing law. Second,
voters throughout the UK, as is already the case in Northern Ireland,
should be required as a matter of course to produce formal identification
to the polling clerk—being one of a list of specified documents,
for example passport, birth or marriage certificate, driving licence
or National Health Service card—before being ticked off
on the electoral register and given a ballot paper.
9. COMPULSORY
VOTING
The question whether voting should be made compulsory
in the UK has never been seriously considered by past government
or parliamentary inquiries into election law. It was one of the
large number of issues identified for inquiry in 1982-83 by the
House of Commons Home Affairs Committee, but in the event it was
not examined in any depth in its discussions and was not even
mentioned in its final Report. A significant shift in opinion,
however, now seems to be taking place on the subject. Many Labour
members have been advocating compulsory voting in recent years,
including some who are now members of the Labour government. Labour's
1993 policy document, A New Agenda for Democracy: Labour's
Proposals for Constitutional Reform, included a reference
to the need for citizens to be made more aware of "their
voting rights and responsibilities". Meanwhile, public
opinion polls would seem to indicate that a majority of people
in the UK actively support such a change in our election law.
Whether or not the moral duty to vote should be crystallised
into law confronts traditional British feelings about encroaching
upon a citizen's "right to be left alone". But the introduction
of a legal duty to vote would merely be consistent with the legal
compulsion in the first place to register one's name and address
as a voter at the local Town Hall. Several countries abroad have
introduced compulsory voting, including Australia, Belgium, Greece,
Luxembourg and Italy, and the obvious result is a far higher turnout
of the electorate (even if 100 per cent is never in practice attainable),
and therefore a more comprehensive expression of public opinion
at the polls. The turnout of voters at general elections in Britain
since 1945 has been as follows:
Table: Turnout of voters (general elections)
|
| 1945 | 72.8%
|
| 1950 | 83.9%
|
| 1951 | 82.6%
|
| 1955 | 76.8%
|
| 1959 | 78.7%
|
| 1964 | 77.1%
|
| 1966 | 75.8%
|
| 1970 | 72.0%
|
| 1974 (Feb) | 78.8%
|
| 1974 (Oct) | 72.8%
|
| 1979 | 76.0%
|
| 1983 | 72.7%
|
| 1987 | 75.3%
|
| 1992 | 77.7%
|
| 1997 | 71.5%
|
|
The traditional British view on compulsory voting
has been that politics is an essentially voluntary exercise and
people should be left alone to decide for themselves how and whether
to vote. Some also believe that it is no bad thing if the country
as a whole is relatively depoliticised, and this is simply reflected
in a number of citizens not being sufficiently interested in turning
up at the polling station to vote on election day. Some have said
that compulsory voting is only needed in countries with a weak
political culture or fragile national identity. The (then) Liberal
Party argued, in giving evidence to the Home Affairs Select Committee
in 1982, that compulsory voting produces an undesirable "donkey
vote", presumably meaning that groups of politically-mindless
UK voters would be forced into the polling booths. A final reservation
has been the alleged impracticality of enforcing such an obligation,
a factor that has troubled some election administrators such as
officials in Rochdale (who spoke of "severe enforcement problems
and there would be the problems created by electors who could
not vote on account of sickness" in giving evidence to the
Home Affairs Committee in 1982.
These arguments when looked at closely are rather
weak. There are few practical problems of compulsory voting in
Australia. Easier voting arrangements, such as greater use of
postal voting or (as in Australia) centres in each constituency
where voters from other constituencies might vote, would alleviate
any hardship on voters with physical disability or with travel
commitments, and for the ordinary voter a walk to the local ballot
station is hardly a taxing exercise. The "donkey vote"
argument is highly suspect if it assumes that people who choose
not to vote are on the whole likely to be any weaker in their
mental faculties than many people who do vote. Neither is any
draconian enforcement of compulsory voting any more likely than
prosecutions at present for householders failing to complete and
return the annual forms requiring details of all persons resident
in the home sent out each year by the electoral registration officer,
for which the 1982-83 Home Affairs Committee inquiry on the Representation
of the People Acts found there were just three prosecutions in
1979, one in 1980, and four in 1981.
On the other hand, there are good reasons of principle
and practice supporting the idea of compulsory voting. First,
few would disagree with the proposition that individuals are under
some degree of moral obligation to participate in the operation
of the democracy to which they belong. Citizenship involves responsibilities
as well as rights, and compulsory completion of ballot forms would
simply be consistent with the nation of a social or moral duty
to vote. Such a duty, of course, falls short of being compelled
to vote positively for persons of whom one disapproves, which
could conceivably include all persons named on the ballot paper.
An important detail of any legislative provision on compulsory
voting, therefore, will be to expressly provide for those electors
who consciously wish to abstain and vote for none of the candidates.
All ballot papers, therefore, would need to contain a box in addition
to the names of the candidates (and, where applicable, parties)
against which the voter could signify an abstention.
Second, there is reason to suppose that a duty to
vote would tend towards a better informed electorate as whole.
Compulsory voting would transform the work of party workers and
canvassers away from "getting out the vote" (in other
words, persuading people to go to the polling station) and allow
them to concentrate more on talking with voters about the issues
and policies that are represented by their party. At present,
local party electioneering concentrates almost entirely on canvassers
identifying where their party's support is the greatest, so that
their colleagues acting as "tellers" waiting outside
ballot stations on polling day can try to calculate which of their
supporters have voted, and then instruct other party colleagues
to call at non-voters' homes to try to persuade them to vote.
If everyone knows that they are obliged to fill in a ballot paper
and vote, some may prove more diligent in finding out more about
what the parties and candidates stand for and what their policies
are. Compulsory voting would be a new factor helping promote greater
participation and awareness of what elections are about.
A related, final detail is whether general elections
should be held on a Sunday or date declared to be a public holiday,
as is the case in many other countries including France and Germany,
instead of on a normal weekday (generally Thursday) as is customary
at present in the UK. If this concomitant change to our system
of elections was made, there would be even less reason why UK
citizens would be inconvenienced in any way by being required
by law to express their opinion on who should be representing
them as an MP and in government over the lifetime of the new Parliament.
10. AN ELECTORAL
COMMISSION
The largest issue of reform facing electoral administration
generally is that of an Electoral Commission. Since the 1980s
there has been a growing body of support for the idea a single
Commission, independent of government, to whom would be given
a range of responsibilities with respect to electoral affairs.
Such commissions operate successfully in many of the major western
democracies: indeed, they are widely perceived in those countries
as being essential bulwarks of the democratic process. The Federal
Election Commission in the USA is the best known example of such
a body, and as British electioneering practices and legal regulation
of political parties' finances moves closer towards those that
apply in the USA, the case for some such similar body will become
even stronger.
The Labour Party gave its clear endorsement to the
principle of an Electoral Commission in its 1993 policy report,
A new Agenda for Democracy: Labour's Proposals for Constitutional
Reform. Stating that it "fully supported" an independent
electoral commission, it envisaged that it would be "directly
and solely responsible for all aspects of electoral administration
and for ensuring freedom and fairness in all aspects of our electoral
system." Similarly, the Plant Report 1993 also advocated
the desirability of such a body, arguing that, "The case
for such an electoral commission is that it would provide continuity,
a permanent expertise on electoral matters, and ensure that good
practice was being followed throughout the country by electoral
registration officers and returning officers".
The desirability of an Electoral Commission is closely
associated with other reforms of electoral law and political finance
that will need or would greatly benefit from the support of an
independent electoral agency. In other words, as things stand
an electoral Commission is desirable, if not actually essential,
and could perform a number of valuable functions which already
exist (such as boundary review) or might help streamline the national
supervision of electoral administration (such as the issue of
codes of practice or appointment of returning officers). However,
if the case for other reforms is accepted, then new functions
arise, making an Electoral Commission virtually essential. These
reforms include, for example, the statutory regulation of political
finance, including accounting, prohibited donations, expenditure
limits and funding; and measures to improve the quality of political
information to electors, including further regulation of media
coverage, opinion polls, political advertising, and election broadcasts.
The functions of the Electoral Commission might become,
therefore:
1. Constituency Review The Commission might
replace and unify the existing four Boundary Commissions, operating
under newly-revised rules, and have a duty to keep the boundaries
and numbers of constituencies under review for the purposes of
elections to the House of Commons, any reformed House of Lords,
the European Parliament, the Scottish Parliament, Welsh Assembly
and local authorities.
2. Electoral Officials. The Commission might
have a duty to supervise and keep under review electoral administration
generally, including responsibilities to appoint returning officers
and prepare codes of practice for the conduct of electoral registration
and work of returning officers.
3. Political Campaigning. The Commission might
have the duty to keep under continuous review developments in
the field of political campaigning and electioneering, including
matters relating to the media (including arrangements for party
political broadcasts) and party propaganda (including advertisements).
4. Official Inquiries and Reports. The Commission
might serve as an expert advisory body for government ministers
and parliamentary committees, undertaking inquiries into specific
problems that arise and offering policy reform advice as requested
enabling our election law and administration to keep apace with
new electoral, political and technological developments.
5. Complaints of Electoral Malpractice. The
Commission might have the powers to investigate allegations of
electoral malpractice, to assist persons in making complaints,
and to institute legal proceedings in its own name for alleged
breaches of election law. It could also have a limited adjudicatory
role in the enforcement of a range of certain matters of electoral
law and administration including disputes relating to names and
descriptions on ballot papers.
6. Regulation of Political Parties. The Commission
might be charged with responsibility for the registration of political
parties, for the purposes of parties nominated at elections, for
receiving accounts on income and expenditure (both annually and
in relation to election campaign where a maximum expenditure limit
applies), and for administering new funding arrangements by reference
to the legislation establishing the scheme.
7. Referendum Campaigns. With referendums
being held on a more regular basis, the Commission might be given
the duty to supervise arrangements concerning the policy and question
to be put to the electorate, special matters relating to political
campaigning on the particular issue in question, and administrative
arrangements for the count.
8. Public Information. The Commission could
perform a valuable role in promoting information, education and
greater public awareness generally about elections. It could become
the official depositary of electoral statistics, act as a clearing-house
for all official electoral literature, and initiate learning and
research programmes on electoral and related subjects.
Once instituted, the work of the Electoral Commission
could be phased in. An initial range of responsibilities could
be given to it, with later functions emerging in due course, such
as acting in an "amicus curiae" role before the Election
Court and performing a limited adjudicatory role in such matters
as misleading names or party descriptions on candidature nomination
papers.
How might the membership of this important new public
body be constructed? The determining factors in this will be (1)
the volume of responsibilities it is required to perform, and
(2) the level of resources the government and Parliament is prepared
to commit to the project. The initial work involved might be deemed
sufficiently limited to simply require a single Commissioner,
backed by a high-calibre team of officials. Ideally in the long-term,
however, particularly if the full range of functions identified
above is adopted, the organisation might comprise several Commissioners,
each receiving salaries and office and administrative facilities
appropriate to the full or part-time performance of their responsibilities.
The organisation would benefit from having not only a national
headquarters but also a number of regional and local offices.
Commissioners could be nominated by the prime minister or home
secretary, and approved by Parliament. They should be given some
limited security of tenure, to protect their impartiality and
independence from political interference, in the form of fixed
five year appointments. These fixed appointments could be renewable
for a second term, and otherwise the Commission could only leave
office by way of removal for misconduct or incapacity or else
by resignation or attaining a retirement age of 65 years. The
Speaker of the House of Commons should not be the ex-officio Chairman
of the Electoral Commission, in the same way as she is at present
in the case of the Boundary Commissions. Indeed, the disadvantages
of the Speaker continuing as chairman in the work of constituency
review has already come to outweigh any purported advantages.
The chairman of the new Electoral Commission should simply be
appointed by the Commission itself from amongst its members.
As with the two UK members of the European Commission
at present appointed by the prime minister, a convention should
arise that the leader of the opposition might nominate one of
every two persons invited to serve. This analogy with the European
Commission is a worthwhile one in one further respect also. For
in the same way that for example Roy Jenkins and Leon Brittan,
both former home secretaries for Labour and Conservatives respectively,
gave up their work as MPs to serve as members of the European
Commission, so experience of political life in the composition
of the Electoral Commission should certainly not be a bar to persons
appointed, in the way that it is at present in the selection of
person to serve on the Boundary Commissions. To the contrary,
knowledge and experience of political affairs would be an asset
on the Commission, although of course there must be a prohibition
that Commissioners could not at the same time be members of or
candidates for election to Parliament, the European Parliament
or local authorities.
To facilitate the political independence of the Commission,
members should be in charge of their own budget and permitted
to recruit their own staff. A long-running complaint about the
Boundary Commissions' work in the past has been that it has been
insufficiently independent from the Home Office, and that the
administrative process of the Commission is too influenced by
informal direction from the government. In the view of some critics,
this is facilitated precisely because of the inter-change of administrative
staff between the two bodies. Clearly the home secretary at present
is in a somewhat ambivalent position within the House of Commons
in that it falls to him to present the Commissions' recommendations
to the House, and although the work is not presented as that of
his department, he or she generally explains and defends their
conclusions. An important incidental detail in promoting the independence
of the Electoral Commission's work from government, and in promoting
the Commission as an independent impartial agency established
for the purpose of making recommendations to the House of Commons,
will be to strengthen existing parliamentary scrutiny procedures
with respect to changes in constituency boundaries and draft electoral
law reform emanating from the work of the Electoral Commission.
The field of public administration and political
activity covered by election law is vast and will shortly become
even more heavily regulated. New legislation will be brought forward
by the government to put into effect recommendations of the Neill
committee on the funding of political parties. The Registration
of Political Parties Bill is already set to help resolve the serious
problems caused by mischievous candidates adopting misleading
party description on ballot papers in the constituencies where
they seek to stand. The range of election law and administration
topics selected in this memorandum have concentrated on those
which I believe carry the widest level of support. For the future,
there are important policy matters to be addressed which the new
Labour government and the Home Affairs Committee may wish to start
considering, even if legislation on the matter is unlikely to
be adopted in present circumstances. They concern, for example,
statutory controls over the publication of public opinion polls
during the period of the election campaign (limited, perhaps,
to a specified number of days before polling), and statutory guidelines
on the content and factual accuracy of political advertisements.
The review of our election law and administration
needs to be a continuous, on-going exercise, not least because
of the now rapidly changing social and technological environment
in which elections and electioneering are conducted. Whilst the
current home office inquiry being conducted by the minister George
Howarth is welcome, one-off inquiries every four or five years
are no longer any substitute for what is now required: that is,
an independent permanent Electoral Commission whose most valuable
work will be to monitor new developments affecting elections 44and
electioneering as they happen, to offer expert advice as and when
it is asked for or needed, to issue authoritative administrative
regulations and codes of practice for parties and election administrators,
and to bring forward proposals for the government and Parliament
for improvements in our election law, free from any taint of bias
or favour as between the political parties.
May 1998
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