Electoral Commission calls on Governments to approve electoral law reform project

4 Feb 2016 02:33 PM

The Electoral Commission is urging the UK and Scottish Governments to swiftly approve the continuation of a project to reform UK electoral law, as the Law Commissions of England and Wales, Scotland and Northern Ireland yesterday published their final recommendations to modernise and simplify the current legislation.

Bob Posner, Director of Party and Election Finance and Legal Counsel at the Electoral Commission said yesterday: "We welcome today's report from the UK's Law Commissions, which sets out recommendations to improve the laws that govern our elections. During recent decades these laws have grown complex, unwieldy and out of date, which has made it more difficult to administer and take part in elections. It's important that the UK and Scottish Governments now agree that the Law Commissions can move onto the crucial next phase of their work to prepare draft legislation."

Background information

The Law Commissions of England and Wales, Scotland and Northern Ireland are currently undertaking a comprehensive review of UK electoral laws and have now made their final recommendations for change.

The aims of the project are to:

• consolidate the many existing sources of electoral law, and
• modernise and simplify the law, making it fit for elections in the 21st century

The Electoral Commission strongly supports the Law Commissions' review. The Commission views this as a unique opportunity to make electoral law fit for purpose.

The review commands strong support from all those involved in elections, as demonstrated by the responses to the Law Commissions' consultation. During consultation the proposed recommendations received an overwhelmingly positive response, with many proposals gaining unanimous or near-unanimous support. Key stakeholders in the electoral community emphasised the need for reform of our complex electoral laws.

The report published yesterday is a joint report produced by the Law Commissions for England and Wales, Scotland and Northern Ireland. Given that some aspects of electoral law are devolved to the Scottish Parliament, and further devolution is expected, both the UK and Scottish Governments should now give their approval to the project continuing to the next stage during which all three Law Commissions will work on the preparation of new draft electoral law. This will be done in a way that reflects the devolved settlement, so there will be an Act of the UK Parliament for non-devolved elections and an Act of the Scottish Parliament dealing with devolved elections. This legislation will reflect policy choices made by the UK and Scottish Governments respectively [1].

The practical implications

The Law Commissions' recommendations for change will mean:

• Better, more efficient electoral administration – registering electors and administering elections would become a simpler task. This would be more efficient and cost effective to run. It would also allow more time and money to be invested in improving the services provided to candidates and voters; time which is currently spent having to deal with a complex, cumbersome set of laws. Ultimately this would result in reducing the burden of running electoral services on local government and better experiences for candidates and voters.
• Accessible election laws – the simplified and updated laws will mean that it will be easier for candidates and voters to take part in elections. There will also be improved mechanisms for candidates and voters to take action where things go wrong and for action to be taken and lessons learned.
• Election laws that are up to date and that can be more easily maintained – the laws will be brought up to date. Also, a more simplified legislative framework will mean that electoral law will be easier to update and manage in the future. This will be less burdensome on future governments and will mean that the law will be able to keep pace with changes in technology and society.

Timeline of the project

Decembe 2012	At the request of the UK and Scottish Governments, the Electoral Commission and the Association of Electoral Administrators the Law Commissions begin their review of the UK's electoral law. This follows a consultation during which consultees unanimously supported the review.
February 2016	The Law Commissions publish their recommendations for reform, following consultation. Many proposals receive unanimous or near-unanimous support. If Government gives approval, the Law Commissions will begin to draft new electoral legislation based on those recommendations.
March 2017	Law Commissions' draft legislation will be finalised and submitted to respective governments, along with a final report. The Law Commissions' review then comes to an end and it will be for governments to implement the recommendations. We expect that this would mean laying the Law Commissions' draft bills in parliaments and preparing secondary legislation.
July 2019	New legislation will need to be in force by this date to allow administrators and participants sufficient time to prepare for the May 2020 elections, which will be the first elections held under the new legislation.
May 2020	First elections held under the reformed legislation.
May 2021	First elections held to parliaments in Northern Ireland, Scotland and Wales under the reformed legislation.

Current electoral legislation facts and figures:

• There are at least 40 Acts (dating back to 1700) and well over 100 secondary pieces of legislation (regulations and orders).

• To explain the legislative framework requires hundreds of pages of guidance.

• The majority of election law predates modern technology, including the internet and social media. This means that it does not allow many things to be done electronically or online, contrary to the expectations of those involved in elections. For example, it requires candidates' nominations to be delivered in person rather than by post or email. In fact in some cases it still refers to documents being sent by telegram.

• Some electoral offences date back to the 19th century and are outdated with language that is no longer relevant e.g. the offence of 'Treating' prohibits giving any 'meat, drink or entertainment'. Victorian election lawyers would therefore still find some parts of election law remarkably familiar.

• Some of the drafting of the legislation is so complex that even experts struggle to interpret it. For example, the provisions dealing with the deadline for someone to register to vote in time for an election are so confusing that for many years until 2013 the deadline for registration was incorrectly thought to be 11 days before the poll. It is, in fact, 12 days.

• The law is too inflexible and sometimes cannot deal with unexpected events. For example, during the volcanic ash cloud in April 2010 voters who had planned to be abroad at that time had applied for a postal vote to be sent to their holiday address. When they were unable to leave the UK, there was no provision in the rules for a postal vote to be sent to their home address. Nor were they, having applied for a postal vote, eligible to vote in person.

• The law governing how election results can be challenged has hardly altered since 1868. Despite the public interest in ensuring the lawfulness of an election, the law only allows rival candidates and voters to bring a challenge and to do so they must incur costs running to many thousands of pounds and comply with onerous procedural rules. Richard Mawrey QC, a leading election lawyer who decides on election challenges, has stated that this is an unsatisfactory system to protect our democracy.

Quotes:                                                                  

• "Some [electoral] criminal offences are created by remarkably inaccessible and tortuous forms of legislative drafting" (James Chalmers and Fiona Leverick, 2013).

• The main piece of electoral legislation, the Representation of the People Act 1983, "cannot fairly be described as well drafted...there was a tendency to gather up the existing law from all sources and simply tip it into the disorganised bag of a single Act of Parliament" (Richard Mawrey QC, 2008).

• In its assessment of the May 2010 general election, the Office for Democratic Institutions and Human Rights noted the complex and fragmented nature of electoral law in the UK and that "no concerted effort has been made in recent years to review the entire legal framework for elections". One of the key recommendations of their report was for such a review to be conducted in order to consolidate, simplify and modernise the law because it was felt that the existing framework "was not suitable to conduct a 21st century election".

For further information contact Megan Phillips or Umar Hanif in the Electoral Commission press office on 020 7271 0704 or press@electoralcommission.org.uk

Out of office hours 07789 920 414