The law behind the General Election
Mark Heath sets out where the law can be found underpinning the forthcoming General Election on 8 June and where those running the election or giving electoral law advice should look to find guidance and assistance.
Many will be serving as Acting or Deputy Acting Returning Officers on the night of 8 June. Others may be called upon to advise their Acting Returning Officer. But where to look for the law? As the Law Commission rightly said:
“Electoral law is complex, voluminous and fragmented”
So, where to start?
The Representation of the People Act 1983 governs UK Parliamentary elections (as well as some aspects of local government elections in England, Wales and Scotland.) As well as containing provisions about the conduct of elections, the franchise, Returning Officers, the campaign and offences, crucially the Act (at Schedule 1) contains the Parliamentary Election Rules. These set out in granular detail all the steps to be taken in running the election itself on 8 June, ranging from the timetable through to the nomination process then onto polling day itself and finally the count. For those not familiar with the content but with electoral experience, they are often surprised when they find how much of what we do on Election Day is prescribed by law. Elections are a strict legal process. The law delineates in some detail what an Acting Returning Officer must do. There is frequently no discretion, certainly not on the timetable.
The Returning Officer for county constituencies will be the High Sheriff of that county and for borough constituencies the relevant district chairman or the (Lord) Mayor of that borough or city: section 24 Representation of the People Act 1983. But this is a ceremonial role, confined to the optional duties of receiving and returning the writ and declaring the result: section 27 Representation of the People Act 1983. It is important to remember that Returning Officers so designated have no authority over the electoral process.
The substantive duties are carried out by an Acting Returning Officer, who is the appropriate Electoral Registration Officer: section 28 Representation of the People Act 1983. Under this section the Returning Officer must give the Acting Returning Officer notice advising them whether they intend to discharge the optional duties of receiving and returning the writ and declaring the result.
But, as said, the law is complex and fragmented. Not all that you need is in the 1983 Act, let alone Schedule 1 and the Rules. For example, section 46 Electoral Administration Act 2006 contains a useful provision that allows the Acting Returning Officer to correct a procedural error (but not recount the votes after a result has been declared). The clerical error must have been made by the Acting Returning Officer, the Electoral Registration Officer, a supplier to the Acting Returning Officer or a deputy or person appointed by any of these people to assist in the running of the election. So an error by an Agent or Candidate would not fall within Section 46, but one by a Presiding officer at a Polling station is caught. A slight word of caution; Section 46 and its application have yet to be fully examined by the courts. Its precise scope and application must, until then, remain unclear, but it is certainly the view of experienced Returning Officers that it should be a shield, not a sword. It is no replacement for meticulous care and attention to detail but, as the cliché goes, to err is human.
Further, an Acting Returning Officer in breach of their official duties may be liable for committing a criminal offence (section 63 Representation of the People Act 1983) but if they remedy the act or omission that gave rise to the potential offence using section 46, they will avoid potential criminal liability completely.
Section 46’s usefulness is obvious. But finding such provisions at short notice is not easy. The complex and overlapping legal regime makes finding and understanding the totality of the legal framework if not impossible, very difficult.
However, help is at hand as there are places to go where comprehensive guidance summarising the legal regime can be found.
Firstly the Electoral Commission produce guidance for those administering the election on 8 June. This includes a specific section on the role and responsibilities of the Returning Officer (Part A).
Be aware of the other guidance that the Electoral Commission produce. Many of the queries (challenges) on points of law come in from candidates and agents, or relate to their conduct. As well as looking at the guidance for those running elections, in giving guidance to, or ruling on an issue regarding those contesting the election, the Electoral Commission’s guidance for Candidates and Agents is invaluable, perhaps the most useful thing the Electoral Commission publishes.
In both cases, as well as guidance, there is a range of downloadable resources available from the website.
For voters, the Electoral Commission provide a website – “Your Vote Matters” which again provides useful information and a place where voters seeking information can be referred to.
The Law Commission have reviewed electoral law and formulated law reform proposals. As part of that process, they carried out detailed research into the current legal arrangements which they have published (under the tab headed “consultations and related documents”). This research covers the whole of the legal framework and is in my view one of the most useful reference points.
If you do experience problems in the running of the election, bear in mind that there are legal provisions saving elections from being declared void for minor mistakes or irregularities which have not materially affected the course or conduct of events. In the case of the election on 8 June, the provision is to be found at section 23(3) Representation of the People Act 1983. Section 23(3) is worthy of quotation in full:
No parliamentary election shall be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the parliamentary elections rules if it appears to the tribunal having cognizance of the question that—
(a) the election was so conducted as to be substantially in accordance with the law as to elections; and
(b) the act or omission did not affect its result.
Obviously, do not aim to achieve only substantial compliance with the law! But when the nightmares strike, this may help.
Finally, the requirement as to secrecy applicable to those attending a polling station and the count is generally known, but the full legal wording is useful to address those at the count with phones in their hand and can be found in section 66 Representation of the People Act 1983. Many reproduce all or part of the section with any literature supplied to those attending the count, which is a wise approach.
The law and compliance with the requirements placed on the Acting Returning officer is an absolute given. How one goes about applying that, interpreting it, and implementing it, particularly when electoral law by its very nature is multi-layered and does also have, unfortunately, many ‘grey areas,’ can be a challenge. Do not get rushed into rapid decisions, even at the count. Take the time that you need to check the law. If you are the Acting Returning Officer, take advice, and talk to colleagues if helpful. If you are advisor, be prepared to advise. But do this out of sight of everyone else in the count! Confidence in the process and those conducting it is crucial.
And when the pressure mounts on 8 June, just remember that it’s all the fault of Simon de Montfort! Montfort sent the Crown’s Writ to the High Sherriff in each County and to a select list of Boroughs to be returned with the names of the two nominated Knights. Hence the name “Returning Officer”.
Mark Heath is a Consultant with Veale Wasbrough Vizards. He is also the Returning Officer for Southampton. Mark can be contacted on 0117 314 5637 or This email address is being protected from spambots. You need JavaScript enabled to view it..
