The future of electoral law

As we’ve said on the blog previously , electoral laws in the UK have become too numerous, unnecessarily complicated and out of date. That’s why the three UK Law Commissions are working on simplifying the legal framework.

Here at the Electoral Commission we want to ensure that this one-off opportunity to improve the law achieves the maximum benefits for those who participate in elections

Yesterday we published our second response to the Law Commissions’ consultation paper setting out more detail on some key issues raised in the consultation. The full response is on our website and includes suggestions on the handling of postal ballot packs – we will be highlighting these views to the recently announced review of electoral fraud by the Government’s Anti-Corruption Champion . However, I’d like to focus here on our proposals to reform the way elections are challenged.

Challenging the result of an election

It is important to ensure that election results can be challenged where necessary, but the current process has hardly changed since 1868. It expects individuals – either voters or candidates – to shoulder the responsibility, which involves raising large amounts of money, enlisting specialist legal expertise and wrangling with a lengthy and complex legal process.

The Law Commissions propose creating a new category of person able to challenge an election – a ‘public interest petitioner’, adding that we would be the candidate for such a role.

Although this would have benefits, we do have concerns about this proposal. Perhaps most significantly our reputation for political neutrality could be undermined, whilst our response also sets out some wider concerns, including that the Law Commissions’ proposal does not address other problems, such as the overlap with criminal law enforcement.

We’ve considered this matter carefully over the summer and have suggested to the Law Commissions that the best option for reform is to split the petition process into two separate civil and criminal routes. This would see Returning Officers responsible for bringing petitions on civil matters relating to administrative errors and candidate ineligibility. Electors and candidates should also be able to use this route under a more accessible and affordable system than at present.

For criminal cases the police and prosecutors (not individuals) should be responsible for properly investigating and prosecuting these. This would include changes to ensure that the public interest in electoral integrity in prosecutors’ decisions is properly represented, including consultation with us.

This would bring benefits such as:

  1. Individuals would no longer be expected to effectively ‘police’ electoral offences by bringing election petitions. Instead the burden would be on police and prosecutors, with support from the Electoral Commission
  2. It would avoid the current confusion as to the parallel roles of the election petition system and the criminal law system. Currently, the same breach of electoral law is both grounds for a petition and a criminal investigation, leading to confusion as to what action is appropriate. Also, the civil petition court currently finds someone guilty of breaching electoral law and imposes severe punishment without following the rigorous procedures, and applying the necessary safeguards to ensure fairness, which a criminal court would follow.
  3. Where someone working on behalf of a winning candidate was found by a criminal court to have committed an electoral offence, the winning candidate could be removed from office. The current system does not allow this to happen.

In addition, we have now published our 2015 legislative issues paper, which outlines some of issues that we came across with electoral law during our work relating to the elections held on 7 May 2015.

Louise Footner
Head of Legal

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One Response to The future of electoral law

  1. Adam says:

    Would “This would see Returning Officers responsible for bringing petitions on civil matters relating to administrative errors and candidate ineligibility.” make things tricky for when petitioners felt the Returning Officer had made such errors, or is the idea self-reporting (given most ROs seem to be conscientious)?

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