Law Commissions call for single, consistent legislative framework for elections

Electoral legislation that originates from the Victorian era is “out-dated, confusing and no longer fit for purpose”, the Law Commissions of England and Wales and the Scottish Law Commission have said in a report calling for the adoption of a single, consistent legislative framework.

The report from the law reform advisory bodies also recommended that returning officers should be allowed to bring challenges and courts should be given the power “to weed out ill-founded claims that waste court time”.

The Law Commissions said electoral law in the UK was currently spread across 25 major statutes and 30 sets of regulations, and needed to be modernised to meet current and future challenges, such as the impact of new technology.

Their report pointed out how as new elections have been introduced (such as combined authority mayoral elections in 2017), new legislation is required to provide the election’s rules. “Any new legislation tends to copy significant chunks of the Representation of the People Act 1983 almost word‑for‑word,” the Law Commissions said.

They added that there was “simply too much (largely identical) legislation, which has become confusing to understand and cumbersome to change”.

The Law Commissions said an update to policy would be ideally achieved by one legislative change, rather than up to 12 changes over several years. “For example, when the law was changed to allow those queuing at the close of polls to cast their vote, changes had to be made to ten distinct pieces of legislation. The innovation was intended to apply at all elections, but the election-specific approach to electoral legislation meant it had to be implemented bit by bit over several years.”

The Law Commissions’ recommendations include:

• The current laws governing elections should be rationalised into a single, consistent legislative framework with consistent electoral laws across all elections, “except where there are clear and necessary differences, for example due to different voting systems”.
• Reform over the conditions required for suspending polls. “Currently, polling can only be suspended by a presiding officer in response to rioting and open violence but our recommendations would allow for any incident where a significant portion of electors are affected and unable to vote, including flooding and adverse weather or an act of terrorism.”
• The introduction of just one single set of nomination papers for candidates, replacing the current confusing mixture of forms and authorisations, and to make candidates responsible for delivering these to the returning officer. “Currently, a UK Parliamentary nomination involves up to seven different forms. Some are sent by the party nominating officer, and some are sent by the candidate; some must be delivered by hand, and others can be delivered by post.”
• The introduction of digital imprints for online campaign material, including for social media advertisements. “This would include who has paid for the advert, as is the case for leaflets and traditional advertisements.”
• Improving how election results can be challenged. “Our reforms would modernise and simplify the system, allowing returning officers to bring challenges and giving the court the power to weed out ill-founded claims that waste court time. We also recommend making it clear that parties can rely on protective costs orders (protective expenses orders in Scotland), to limit their exposure to costs.”
• A single set of electoral offences should be set out in primary legislation which should apply to all elections. “This will include a simplified offence of bribery, for anyone acting with an intention to procure or prevent the casting of a vote at an election.”

The report and recommendations, which can be viewed here, have been submitted to the Cabinet Office and the Scottish Ministers, who will provide an interim response in due course.

Nicholas Paines QC, Public Law Commissioner at the Law Commission of England and Wales, said: “Elections are fundamental to democracy yet the laws governing them are no longer fit for purpose. If left as they are, there is a very real risk of the electoral process losing credibility which could be catastrophic.

“Our reforms will simplify, modernise and rationalise the law. This will make it easier to amend legislation so elections are able to overcome future challenges, and help to maintain confidence in the electoral system.”

Lady Paton, Chair of the Scottish Law Commission, said: “For both Scotland and the wider UK, it’s vital that the law on elections is easy to administer, accessible and user-friendly.

“These reforms will achieve this, ensuring elections work and are fit for the 21st century. Our recommendations also take into account the emerging devolutionary framework for Scotland.”

Sir John Holmes, Chair of the Electoral Commission, said: “The Electoral Commission has worked closely in support of the Law Commissions, and welcomes this final report. Without clear and up-to-date electoral laws, there is a risk to the effective delivery of elections, and the confidence of electors in the process can be undermined. The Law Commissions’ recommendations are comprehensive and have widespread support from electoral administrators, political parties and campaigners.

“I very much hope the UK’s governments and parliaments will now work towards a consolidated and consistent legislative framework that will improve our electoral processes for all involved.”