Electoral Law: The Urgent Need for Review Contents

2The urgency of updating electoral law

6.The primary question we answer in this report is “how urgent is the need to update and consolidate electoral law?” At a high level, Dr Stuart Wilks-Heeg and Professor Maria Sobolewska told us that much of the legislation is archaic and not fit for purpose, with some offences under the Representation of the People Act 1983 using such archaic formulations as “treating” and “undue influence”.5 Dr Heather Green argued that electoral law in its current form fell short of constructional standards and that:

Electoral law should be framed in a manner which enables the interested citizen at least to locate the statutory setting of relevant rules. Our legislative regime is opaque and often impenetrable to the non-expert; even experts can struggle to elucidate its content.6

7.In this chapter we set out the evidence for our conclusion, based on the overwhelming and concordant evidence we have received, that updating electoral law is urgent. We do this by examining electoral law from the perspectives of different actors in elections: candidates, their agents and political parties, electoral administrators and voters. We also consider whether such updating should simply look to consolidate existing electoral law or seek to engage in more radical reform.

Candidates, agents and political parties

8.We held a private seminar at the outset of our inquiry with representatives of political parties to understand their views on the state of electoral law. Their view was very clear - that there was a strong need to consolidate and simplify electoral law, citing the complexity of electoral law as the primary reason. We were struck in particular by one participant, who worked in party electoral law compliance, who said, if they had a second chance at life, they would not have chosen such a job due to the sheer difficulty with ensuring compliance. Another said they were unwilling to continue with the job, due to the level of personal risk they face. An example of complexity confronting party compliance officers included deciding whether expenditure would properly be considered national or constituency campaign spending. Another participant told us they could not recommend volunteers to act as candidate’s agents, owing to the level of risk that they would face.

9.Both the Labour Party and the Conservative Party in written evidence to us raised the question of Section 90C of the Representation of the People Act, specifically rules on “notional spending”.7 As set out in the recent judgment of of R v Mackinlay & Others,8 notional spending refers to goods or services transferred to the candidate, or provided to the candidate for their use or benefit for free or at a discount.9 Notional spending must be included in a candidate’s spending return. As set out in the judgment, the following three-point cumulative test is used to determine whether something is notional spending for the purposes of the Act:

Were the services provided for the use or benefit of the candidate either free of charge or at a discount of more than 10% of commercial value?

Were they made use of by or on behalf of the candidate? and

If the services had actually been paid for (expenses actually incurred) by or on behalf of the candidate, would those expenses be election expenses incurred by or on his behalf (and thus subject to the various controls imposed by the Act)?10

10.Lord Hughes, giving the judgment of the Court in the case of R v Mackinlay and others stated:

Care will have to be taken upon the question of who may be found to be acting on behalf of the candidate in making positive use of such services, but the problem of who acts on behalf of a candidate, and when, is not an unfamiliar one in election law. It does not seem likely that use by a campaigner would be held to be by or on behalf of a candidate who had positively refused to accept the benefit of the services (etc). There may, on some facts, be a difference between the critical requirement for use by or on behalf of the candidate and the suggested one of authorisation, but in many cases those factual issues may well be closely related.11

11.We received written evidence from political parties about the implications of this judgment. The Labour Party said it would be supportive of legislation that “that would serve to clarify Parliament’s intention as to the extent the election agent is responsible for expenditure by third party campaigns to support their candidates.”12 The Conservative Party expressed concern that the judgment of R v Mackinlay & Others represented a “backdoor change” in the law that has created confusion and meant that “election candidates and agents will now be responsible for notional free ‘benefits’ that they have never authorised or approved” and said that it would support legislation to reverse the ruling and “provide greater legal clarity”.13

12.The Electoral Commission acknowledged that concerns had been raised by some candidates about the extent to which they or their agents were liable for the actions or spending of their parties or supporters.14 In response to these concerns it pointed to guidance it has published on notional spending, which included illustrative examples.15 The Electoral Commission explained its concern at the idea that the law should be changed so that such expenditure would only apply if “authorised by them or their election agent”, arguing this would undermine local spending limits by allowing parties to spend as much as they liked (subject to national limits) promoting candidates in key marginal seats, as long as the candidate or their agent had not authorised it. This would undermine the purpose of candidate spending limits that aim to create a level playing field for candidates.16

13.Dr Jessica Garland, Director of Policy and Research of the Electoral Reform Society, told us that the last local elections saw a large increase in the number of independent candidates and said that thought should be given to whether it is possible for ordinary citizens without that party support to put themselves forward for election and have all the training and confidence to go forward.17

14.In oral evidence to us, the Interim Minister for the Constitution, Kevin Foster MP, indicated his personal preference would be to introduce some clarification in the law on third-party spending, but “the Government would seek to achieve some clear consensus in taking that forward”.18

15.The complexity of electoral law can make it difficult for even professional party compliance teams to ensure the law is adhered to but this difficulty is doubtless even more pronounced for people who wish to stand as independent candidates and will therefore not have access to party resources and training. The uncertainty about some aspects of Electoral Law leaves even the most professional agents in fear of falling foul of the law through no fault of their own. Consolidation of electoral law would help make information on the requirements on candidates and their agents more accessible which is particularly important for people wishing to stand as independents and would help make it easier to comply with the law.

16.As part of electoral law reform, the Government should consult stakeholders on how the law on notional spending can be clarified but reform should only be taken forwards on the basis of clear consensus.

Electoral administrators

17.The Electoral Commission suggested that one of the groups most affected by the “large, complex and outdated” body of electoral law is the people who run elections (alongside those wishing to stand for elections or who want to campaign).19 The Electoral Commission argued there are many “complex cross references between individual pieces of electoral law, which Returning Officers must understand and comply with” and noted that following the wrong procedures could lead elections to being open to legal challenge.20 This risk is heightened if multiple elections are held in one day. For example, Returning Officers running the Combined Authority Mayoral elections, which were held on the same day as local government elections in 2017 and 2018, needed to refer to at least 11 separate pieces of primary legislation and a further six pieces of secondary legislation.21 This point was echoed by Dr Stuart Wilks-Heeg and Professor Maria Sobolewska.22

18.The complexity facing electoral administrators is further demonstrated by the following table, submitted by Dr Alistair Clark, which sets out the number of polling station workers who felt that electoral law was too complex to understand quickly and easily (% agree/strongly agree):23

Training spent enough time covering electoral law & procedures

Election law too complex to understand quickly & easily

Number

2015 general election

70.5

19.3

1258/1295

2018 local elections

73.5

15.2

2149

2016 Scottish parliament election

77.6

16.9

425

19.An example of the difficulties faced by electoral administrators was provided by Dr Alistair Clark in relation to the 2010 General Election in which queues built up at polling stations. There was a lack of clarity among polling station staff on how to deal with those queues. Some voters were allowed to vote and others were not, something he suggested “could easily happen again”.24 Dr Toby James told us that the law “is not understandable to a vast number of administrators” and that administrators describe “situations in which they are arguing black and white over the law.”25

20.A further example, from Plymouth in 2017, was provided by Dr Stuart Wilks-Heeg. In 2017 polling cards were sent to 300-odd voters, who were then removed from the electoral register without their knowledge (although their removal was correct). Some of those voters turned up at the polling station and were reinstated that day, which was “definitely not the correct things to do”. Ultimately the election was not close, but had it been, it would have been subject to legal challenge.26

21.We were told by Nicholas Paines QC of the Law Commission that there was “a risk of error in the application of the law, simply because it is confusingly presented.”27 An example of a legislative “near miss” was that the electoral legislation for police and crime commissioners did not include provision for Welsh language ballot papers, which “had to be remedied at the 11th hour to avoid obvious embarrassment”.28 Henni Ouahes, also of the Law Commission, explained:

There have been the odd errors and the odd legal challenge, and, like with the Welsh ballot papers and PCC elections, there have been the near misses, but the feeling is that the risks are only getting greater, and now is the time to reduce those risks or eliminate them entirely by doing proper law reform.29

22.Louise Round, the elections spokesperson for Solace, suggested electoral law reform was “pretty urgent” and drew attention to “the sheer complexity of trying to navigate your way through elections legislation, particularly as it is usually a fairly heightened atmosphere you are trying to do that within and often at fairly short order.”30 Similarly, Peter Stanyon, the Chief Executive of the Association of Electoral Administrators, while assuring us that elections “will always work”, said “it is the fact that there are lots of little technical things that bring that risk into the process and make the need for change more urgent by the day.”

23.It is clear from the evidence that the current state of electoral law poses serious risks and difficulties for electoral administrators. Electoral administrators approach a very challenging job with dedication but they are forced to contend with serious pressures in order to successfully deliver elections. The level of difficulty and complexity faced by electoral administrators is unacceptable and wholly unnecessary.

Voters

24.Many of the issues that were raised over the course of our inquiry do not directly affect voters but it is axiomatic that voter confidence in elections is an essential requirement for a democratic system. Bob Posner, the Chief Executive of the Electoral Commission told us:

Most significant—you would have to say this is the bottom line—is voter confidence in elections, and voter trust in the legitimacy of elections. If we get to a situation in the UK, and we are beginning to see it, where, however hard administrators try and however well elections are run by everyone involved, it becomes inevitable that in any set of elections an increasing number of errors will happen because of pressures, that goes to voter confidence.31

25.This point was mirrored by Dr Stuart Wilks-Heeg and Professor Maria Sobolewska’s written evidence, saying “it is difficult to see how public confidence in elections can be sustained if there are regular instances of candidates, agents and campaigners failing to comply with the law or of significant administrative failings in the running of elections.”32

Challenging elections - the election petition

26.Challenging the validity of an election is done through an election petition, which is heard by an election court. An election court can annul an election or correct the result. The election petition is the only mechanism for challenging elections.33 Election petitions can be brought by an unsuccessful candidate, one or more electors at a parliamentary election, or four electors at a local government election.34 The Electoral Commission told us that the election petition in the case of Tower Hamlets “highlighted the almost prohibitive cost and complexity faced by candidates or ordinary electors who want to challenge elections, because of the outdated legal procedures that are currently set out in law.”35 The Law Commission recommended that the election court should use the modern court system, with challenges governed in each UK jurisdiction by simple and modern rules of procedure.36

27.Henni Ouahes argued the petition system was “not fit for purpose” and said that, although the petitioners won the Tower Hamlets case “the big scandal at the time was that, although they won, they had to, essentially, face losing their homes if they had lost, because of the costs of the other side, which they would be liable to pay.”37 Andy Erlam, one of the petitioners in the Tower Hamlets case, argued that legal aid should be introduced for election petitions “which reach a certain threshold” and that frivolous or vexatious petitions could be dealt with by being struck out. Ultimately, “the citizen should always have the power to challenge an election result.”38

28.Dr Wilks-Heeg told us that, in cases where there are serious allegations of corrupt and illegal practices, there was a very serious risk that election petitions would not be brought because the potential petitioners would not be willing to bear the risks and costs.39 Professor Sobolewska argued that victims of fraud tend to be people living in conditions of social deprivation and marginalisation, who would not be able to bear such cost or access complex legal advice.40

29.Dr Wilks-Heeg further explained that although the original purpose of election petitions was to tackle corruption in elections , they were often instead being used to fix cases of maladministration, such as the returning officer accidentally declaring the wrong winner. The only way to fix such an error is through an election petition which is “a very expensive, very time-consuming and complex process”.41

30.The Minister told us that he was clear that he wanted the electoral petition system to be about “bad practice and not about bad loser”42 and to avoid “lawfare” entering the electoral process.43

31.The election petition system for challenging elections is archaic, too complicated and not fit for purpose. It is in the public interest that meritorious election petitions are brought forward but the under the current system there is a risk that such petitions will not be brought forward, due to the complexity of the process and the level of potential cost. We agree with the Law Commission’s recommendation that that the election petition system is brought into the modern court system. As part of any such reform, the Government must ensure the right balance is struck between ensuring access to justice for electors and also preventing vexatious attempts to challenge elections.

A central complaints mechanism

32.One of the suggestions put to us by witnesses to our inquiry was that there should be a central mechanism for people who wish to register a complaint about an election, without wishing to actually overturn the election result. The Law Commissions proposed the consultation paper that there should be an “an informal means of reviewing complaints about elections which do not aim to overturn the result.” The recommendation in their interim report was:

Electors’ complaints about the administration of elections (which do not aim to overturn the result) should be investigated by the Local Government Ombudsman in England, the Scottish Public Services Ombudsman, the Public Service Ombudsman for Wales and the Northern Ireland Ombudsman.44

33.Dr Toby James endorsed this suggestion in oral evidence to us, noting that there was a lack of a central location for such complaints (people are “being pushed to individual returning officers rather than having one central location”) and that the exemption of returning officers and electoral registration from freedom of information requirements meant we did not know how widespread the issues were.45

34.There is value in having a centralised complaint mechanism for people who wish to register a grievance but without seeking to challenge the validity of an election. For example, this would provide greater visibility about the sort of issues voters wish to register complaints about. We recommend such a mechanism is created.

Electoral law reform - simple consolidation or more radical reform?

35.The proceeding chapters demonstrate that there are clear, unnecessary and serious risks facing candidates (and their agents), electoral administrators and voters. The proposition that there is an urgent need to update and simplify electoral law was utterly uncontroversial among witnesses. We were therefore pleased to hear from the Minister that the Law Commission will be publishing its final report next year. However one question that was raised in our inquiry was whether any electoral reform Bill will only consolidate and simplify the law or if it should seek to make more radical changes to electoral law.

36.Dr Jacob Eisler, Associate Professor of Public Law at the University of Southampton Law School, argued that consolidation and clarification of the existing law should take place before any systemic substantive reform.46 Dr Eisler warned that systemic reform of electoral law can “have unintended consequences which often transform or exacerbate, rather than resolve, the problem targeted.”47 Engaging firstly in consolidation would provide an opportunity to more easily assess what systemic reforms are necessary.48

37.Professor Justin Fisher, while noting there were problems with the current rules on and distinctions between national and constituency level spending, argued that these arrangements should not be changed, suggesting that such reforms all have problems within them that are even worse than the status-quo.49

38.Dr Alistair Clark, conversely, argued that there were risks in pursuing consolidation. In particular, loopholes would continue to be exploited by political parties and others and that, after consolidation lawmakers may claim that electoral law has been fixed when it had not been50 and Dr Toby Young suggested that to consolidate electoral law would present a “rare opportunity” to “modernise other aspects of electoral law.” Possible reforms could include automatic registration of 16-year olds when they receive their national insurance numbers and strengthening the long-term funding of elections.51

Digital campaigning

39.In its consultation response on Protecting the Debate: Intimidation, Influence and Information, the Government confirmed its intention to introduce an imprint regime for digital campaign material.52 Witnesses to our inquiry welcomed such a proposal.53

40.Some witnesses contended that further reforms were necessary for digital campaigning. The Electoral Reform Society argued steps needed to be taken to improve “transparency on spending and ad content more broadly”, which would necessitate a more comprehensive review of electoral rules.54 The Electoral Commission provided some recommendations for digital campaigning such as:

41.Under the current body of electoral law, nearly everyone involved in a general election faces significant risks or challenges. A primary cause of this is the archaic and confusing state of electoral law. This is not an acceptable state of affairs. The updating and simplification of electoral law must be seen as a pressing priority for the Government.

42.We recommend that the Government should initially prioritise non-controversial consolidation of electoral law that can command cross-party support. The Government should base this work on the final report of the Law Commission on electoral law, due in 2020. Once this initial consolidation has been achieved, the Government should then proceed to evaluate the effectiveness of electoral law more generally to determine whether more substantive reforms should be introduced.

43.We also recommend that our successor Committee should carry out an inquiry into the role and effectiveness of the Electoral Commission.

44.We welcome the Government’s plans to introduce a digital campaign imprint regime. As part of the greater evaluation of electoral law we suggested in paragraph 42, the Government should consider in particular the impact of modern digital tools on election campaigning.


5 Dr Stuart Wilks-Heeg and Professor Maria Sobolewska (ELL0008)

6 Dr Heather Green (ELL0009)

7 Labour Party (ELL0022); Conservative Party (ELL0011)

10 R v Mackinlay and others (Respondents), [2018] UKSC 42, para 18

11 Ibid, para 25

12 Labour Party, ELL0022

13 Conservative Party, ELL0011, paras 19-25

14 Electoral Commission, ELL0002, para 39

16 Electoral Commission, ELL0002, para 44

19 Electoral Commission, ELL0002, para 11

23 Dr Alistair Clark: ELL0007

27 Q4

28 Q5

29 Q6

32 Dr Stuart Wilks-Heeg and Professor Maria Sobolewska, ELL0008, para 11

33 Electoral Law: A Joint Interim Report, Law Commission, Scottish Law Commission and Northern Ireland Law Commission, February 2016, para 13.2

34 s121 and s128 Representation of the People Act 1983

35 Electoral Commission, ELL0002, para

36 Electoral Law: A Joint Interim Report, Law Commission, Scottish Law Commission and Northern Ireland Law Commission, February 2016, recommendation 13-10 and Q17

38 Andy Erlam (ELL0024)

44 Electoral Law: A Joint Interim Report, Law Commission, Scottish Law Commission and Northern Ireland Law Commission, February 2016, Recommendation 13-13

46 Dr Jacob Eisler, ELL0001

47 Ibid, para 2.1

49 Professor Justin Fisher, ELL0005

50 Dr Alistair Clark, ELL0007 para 10

51 Dr Toby James (ELL0021)

53 See for example: Electoral Reform Society (ELL0016); Councillor Peter Golds (ELL0018); The Electoral Commission (ELL0002); Labour Party (ELL0022); Conservative Party (ELL0011)

54 Electoral Reform Society (ELL0016)

55 The Electoral Commission (ELL0002)




Published: 1 November 2019