Why electoral law needs urgent reform

Ballot iStock 000006080605XSmall 146x219In its submission to a Law Commission consultation, the Electoral Commission argued that electoral law is very much in need of reform. Its Legal Counsel, Bob Posner, explains why.

The development of local government in the UK and electoral law share a similar heritage. Both are characterised by gradual change and evolution over hundreds of years.

The dramatic increase in population, and change in population distribution caused by the Industrial Revolution necessitated similarly dramatic reform in local administration in England; much of which was achieved incrementally throughout the 19th Century.

Electoral law was subject to similar pressures and calls for reform proliferated. At the start of the 19th Century less than 3% of the total population of approximately 8 million had the right to vote. Change came episodically with the passing of three reform acts of 1832, 1867, and 1884. However, despite these reforms, the number of eligible voters was still fewer than 8 million in 1885 and universal suffrage was still a long way off, not arriving until 1928.

By 1928, the search for an ideal form of local government was very much alive and as late as 1972 sweeping changes created the two-tier system of counties and districts. However, in 1972, electoral law remained locked within a legislative framework built a century before.

District councils, now the basis of local democracy, operate within a modern structure; however the laws governing and regulating the process that gives their elected members a democratic mandate are patently outmoded.

We believe reform is necessary to achieve electoral law that is simpler and more accessible. This would benefit all those involved in administering elections, those standing for election and, most importantly, those wishing to cast their vote.

This is why we welcomed the Law Commission’s consultation on electoral law reform. It is timely and we were keen to see wide feedback to the consultation. Our own response highlights the number of laws in this area and the out-dated nature of some of them. By our count there are at least 35 Acts (dating back to and including the Act of Settlement Act 1700 and the Sheriff’s Act 1887) and over 100 pieces of secondary legislation to which electoral administrators, candidates and officials must have regard. There are inconsistencies between different elections and different parts of the UK and legislation is at times ambiguous or imposes undue administrative burdens in its implementation.

We need to bring together the numerous statutes and secondary legislation into a more coherent statutory framework. A simpler structure would also be more cost effective to administer. This is a unique opportunity and it is too important to let slip by or risk not happening.

To strengthen our case for reform we have written two research papers. The first, considers standards of international electoral law and the second looks at challenging elections results.

Both demonstrate the need for UK reform. The former shows that, without modernisation, the UK is at risk of falling behind internationally accepted standards of electoral law. The latter highlights the barriers faced by those who wish to challenge an election result – a process known as petitioning. It could be argued that the current legislation casts election petitions as an attack on the system. Far from it, they are its very defence and there shouldn’t be any inherent deterrents to remedying election irregularities.

In comparing UK electoral law with that of other countries, we drew on best practice set out in the principles taken from International Institute for Democracy and Electoral Assistance (IDEA), the Venice Commission and the Office for Democratic Institutions and Human Rights (OSCE / ODIHR). These principles state that the majority of electoral matters should be rendered in written law and be accessible to citizens; the legislative framework should be structured hierarchically; there should be one coherent statute – providing for the particularities of different elections; legislation should avoid conflicting provisions between laws governing national elections, sub-national, local elections and referendums; reforms to electoral law should be undertaken with the goals of clarity and simplicity in mind; and that central electoral bodies be established and operate in a manner that ensures the independent and impartial administration of elections.

While our report only provides a limited review of the laws of a small number of selected countries and how they comply with international guidance, it is clear that there is an urgent need for reform of the structure of the UK’s law. The fragmentation and complexity of electoral law is a result of there not being any consolidation exercise in the UK since 1983; all of the selected countries have carried out consolidation exercises more recently.

Since 1983, successive governments in the UK have brought forward additional electoral legislation that has led to a cluttered and complex electoral statute book, with numerous inconsistencies between different electoral events; there can be no doubt that this impedes access to the electoral system.

The UK’s electoral law structure has been criticised in successive OSCE / ODIHR international observer reports and the Law Commission’s review of electoral law presents an opportunity to devise a consolidated, unified structure. We have observed that the high standards by which elections throughout the world are now assessed did not exist when our system was set up and contend, in the case of these international standards, the UK’s system is weak.

Turning back to the laws relating to challenging election results, this is another area where inconsistencies and impediments exist. A clear obstacle to petitioning is that while one person may challenge an election result, at least four electors must agree to submit an election petition. Drawing a parallel with other laws, our submission notes that there is no requirement for multiple applicants in the rules that govern judicial review challenge.

In the last 150 years we have seen the expansion of the democratic franchise, an increase in the number and type of election, the introduction of postal voting and the use of electronic communications. The constraints we highlight in our submission reflect the need for reform.

This is not an inquiry into a fusty corner of law: electoral law is the foundation of our democracy, enabling decisions on who represents us and makes the laws that touch all our lives. It enfranchises every person eligible to vote, directs the way our elections are run, and in that context stipulates how political parties, politicians and prospective candidates, must conduct themselves.

It is wrong to assume laws written over a century and a half ago will continue to serve our democratic processes in the decades to come. In his pamphlet of 1776, Common Sense, Thomas Paine wrote “A long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.”

We believe it is now both reasonable and timely to bring about measured change to the UK’s electoral laws.

Bob Posner is Legal Counsel at the Electoral Commission.