The election
UK Parliamentary election, polling day was determined by a different incidence rule, as the Early Parliamentary General Election Act 2019 provided that the election would take place on 12 December 2019. Under the current timetable for UK Parliamentary elections the returning officer must issue the notice of election no later than the second day after receipt of the writ. This is a tight deadline. To alleviate administrative problems and reduce delay we provisionally proposed that the writ of election should be capable of communication by electronic means. The approach to the timetable remained the same, however. The incidence rule determined polling day, and the election rules determined the administrative timetable. This approach is consistent with the approach at all other elections, where the incidence rule and administrative timetable are independent of each other. The 2011 Act does not contain an incidence rule for UK Parliamentary by-elections, and the legislative timetable continues to fix polling day by reference to the issue of the warrant for the writ of by-election. Assuming the returning officer receives the writ of by-election the day after the issue of the warrant for the writ, the timetable permits the returning officer to set polling day between days 23 and 27 after it is issued. In our consultation paper we noted the expectation, unexpressed in law, that a Thursday will be chosen and the deadlines will be worked back from that day.
Four types of elections in the UK use the STV system. In Northern Ireland, local government elections, European Parliamentary elections and Northern Ireland Assembly elections use STV, as do local government elections in Scotland. The counting rules governing STV are significantly more detailed than rules governing other types of election, because the counting system is intrinsically more complex than any other used in the UK.
This means that recounting from the start is a serious and time-consuming task, and the classical election rules have to be adapted accordingly. In STV elections in Northern Ireland, votes are counted manually.324 There is a duty to record data at each stage, including a comparison between the total number of votes recorded for all candidates, plus the total number of non-transferable votes, and the recorded total of valid first preference votes. These figures should match at each stage. Recounts can only be requested for a particular stage; the returning officer must comply with any request for a recount of the latest completed stage of the count.
Scottish local government elections are subject to the classical rule that returning officers can refuse a request for a recount if it is unreasonable.325 This is because Scottish local government elections are counted electronically, and so the rules do not require the recording of data at each stage. Instead the returning officer provides data relating to each stage in the final declaration. Our consultation paper noted, however, that at local government elections in Scotland the returning officer may choose to count manually. If this is done, there are no rules equivalent to those in Northern Ireland making clear that only the latest stage may be recounted following any request.
While the classical counting rules do not provide detailed guidance on how the count must be carried out, STV counting rules are carefully drafted to guide administrators through the count by requiring it to be in stages, involving the division of transferrable ballot papers into parcels and sub-parcels, and setting out the count and transfer values at each stage. Our consultation paper provisionally proposed that save for the existing differences in the transfer value, the same detailed rules should govern all STV counts.
An election officially starts with publication of a notice of election, after which the immediate task is to identify the candidates. If there are more candidates than vacancies there will be a poll. In the event there is a poll, the nominations process determines the names and other details to appear on the ballot paper. The law is contained in discrete election rules, which are specific to each election. The classical rules for UK Parliamentary and local government elections differ slightly. The former are more ceremonial and formal, requiring, for instance, the personal delivery of nomination papers (and attendance at the place for receipt of nominations) by or on behalf of the candidate, as well as personal attendance by the returning officer at the proceedings. The rules governing local government nominations are more relaxed. Each set of election-specific rules copies one approach or the other. For party list elections the rules have to be adapted to reflect the fact that it is parties who primarily stand for election. A candidate is nominated through a nomination form, which is, in some elections, accompanied by payment of a deposit. In many elections nominations must be supported by a certain number of “subscribers”, meaning subscribers’ signatures and electoral numbers must also be included within the nomination form. The nomination paper need not emanate from the candidate, who must separately consent to the nomination, declaring that he or she is not disqualified. In some elections, the candidate must also provide a separate home address form, which enables a candidate to prevent his or her home address from being made public. If standing on behalf of a registered political party, a candidate must provide a certificate of authorisation from a party nominating officer and seek authority to use a party emblem. In law, subscribers subscribe a nomination paper, and may not subscribe more than one paper. A single subscriber who does not meet the requirements for being a subscriber taints the paper as a whole, and a new one must be prepared, with completely new subscribers. Given that as many as 330 subscribers are required for nomination at London Mayoral elections, this can be an onerous requirement.206 In practice, returning officers frequently inspect nomination papers informally in order to avoid the drastic consequences of a defective paper. The nomination paper, consent to nomination and certificate of authorisation must be “delivered”, and any deposit paid, at the time and place fixed by the returning officer in the notice of election. The parliamentary model of nominations clearly envisages that candidates will physically deliver nomination papers to the returning officer, who must be present. Delivery must be by hand, either personally by the candidate or by their proposer, seconder, or election agent (if appointed). The position in relation to local government elections is not as clear. The returning officer is not required to be present, and delivery need not be made by specified persons. It used to be accepted in practice that delivery could be made by post at ocal government elections, but an Electoral Commission circular in 2013 took the view that delivery for those elections also required personal delivery.
Equal access for voters with disabilities to polling is an important policy in electoral law. The law on absent voting seeks to provide choices for voters with disabilities who might have difficulty voting in person. Where voters with disabilities choose to vote in person, the law tries to enable them to use the standard voting procedure, which maximises voter secrecy. This is currently done through ensuring that large size sample ballot papers are displayed in polling stations, and by requiring the provision of a tactile voting device, which can assist blind and visually impaired electors to vote without assistance. If these are not sufficient, a voter may use the assisted voting procedure, and vote with the aid of a companion or the presiding officer.
Election timetable
The legislative timetable for each election is currently set out in each election’s election rules. For the elections we cover in this project, therefore, there are 12 timetables for elections. Each legislative timetable contains deadlines for the following stages:
- publication of the notice of election;
- delivery of nomination papers;
- withdrawals of candidature;
- objections to nominations;
- publication of the statement of persons nominated; and
- polling day.
The lengths of legislative timetables for elections can be grouped into three categories:
a 25 day timetable for UK and EU Parliamentary elections, elections to the Senedd, Northern Ireland Assembly elections, local government and parish council elections, mayoral, combined authority mayoral and Police and Crime Commissioner elections in England and Wales, and local elections in Northern Ireland;
a 30 day timetable for Greater London Authority (“GLA”) elections; and
a 28 to 35 day timetable for local government elections in Scotland and elections to the Scottish Parliament.
The majority of timetables are clustered around the 25 day mark. The two types of elections occurring only in Scotland stand out with their 28 to 35 day timetable. This longer timetable allows more time for the issue, and therefore the return, of postal votes.
GLA elections’ timetables are 30 days to allow for the creation of a leaflet publicising candidates for Mayor of London, which is sent out to every registered elector. It should be noted that mayoral and combined authority mayoral elections in England and Wales – where a booklet must also be produced – are nevertheless run on a standard 25 day timetable.
The content of the current timetable is anachronistic. It was settled in 1872, and as a result, the deadline for registration as an elector and the deadline for making or altering absent voting arrangements are not included. The classical deadlines were settled when registration was by canvass well in advance of scheduled polls. Moreover, postal voting was not introduced until 1918, and only became prevalent after its availability on demand was introduced in 2000.
Voting
Voting in the UK is traditionally done by marking a ballot paper in person (or through a proxy) at a polling station to which electors are assigned based on their registered address. The elector (or their proxy) may also vote by post. An absent vote is a way of voting without the voter attending at a polling station on polling day. It is done through a postal vote or by appointing a proxy to vote on one’s behalf. Postal voting is available on demand in Great Britain, while proxy voting, and absent voting generally in Northern Ireland, are available only on certain grounds. These include inability to attend at the polling station due to work or illness. One of the difficulties with the current legislative approach is that it envisages separate records of postal voters being kept under each separate piece of legislation. he postal voting process is currently governed either by the three sets of registration regulations covering England and Wales, Scotland and Northern Ireland or by schedules to discrete election-specific provisions. In substance, their content is identical. The law itself is detailed and complex. Part V of the 2001 Regulations which govern postal voting in Scotland and England and Wales contains 31 regulations, some of them very lengthy. Moreover, these regulations need to be read with the relevant elections rules, with other parts of the 2001 Regulations (including prescribed forms), and with schedule 4 of the 2000 Act.
Election rules deal with two types of events which might frustrate the poll. The first is rioting and open violence; in that case, the presiding officer must suspend the poll until the next day. The second is the death of a candidate after nomination but before the close of polls, which can lead to abandoning the poll and calling a new one. Apart from the death of a candidate, the only event which electoral law envisages interrupting the poll is rioting or open violence, in which situation the presiding officer must adjourn polling until the following day.
The returning officer
The function of nominations is administrative: progressing from a putative candidacy to one that appears on the ballot paper. Candidates must be satisfied that they are qualified and not disqualified for election; part of the process seeks to ensure that they are warned of the disqualifications and the seriousness of standing for election. In general the powers of the returning officer in relation to nomination papers are limited to examining the formal validity of the nomination paper (for example, looking for defective particulars). It is for the court to review the substantive validity of the nomination itself.
The reasons for this were explored in R (De Beer and others) v Returning Officer for the London Borough of Harrow.228 In that case the High Court considered a challenge to the rejection by the returning officer of the nomination papers of 60 Liberal Democrat candidates for election to Harrow Borough Council, on the ground that the party description in the papers was not the one authorised by the party nominating officer’s certificate. Scott Baker J dismissed a claim for judicial review of the returning officer’s decision:
It is, in my judgment, important to keep in mind the role of the returning officer in the election process. He is in a sense the referee. He is there to see fair play and to ensure that the rules are complied with. As a matter of policy, it seems to me, the fewer occasions on which he is called upon to exercise questions of judgment and thereby lay himself open to criticism by one or more of the candidates the better.
This is particularly pertinent if the exercise of judgment were to go outside issues that can readily be resolved by looking at a document or documents, and which involves weighing up facts or surrounding circumstances.
There are, however, two exceptions to the general rule that the powers of the returning officer are limited to examining the formal validity of the nomination paper. The first is that serving prisoners are disqualified from nomination under the Representation of the People Act 1981 (“the 1981 Act”). Unlike all other disqualifications, there is a requirement to reject the nomination on that ground, following a prescribed process. The second exemption is based largely on case law, and relates to sham nominations. These exceptions are discussed further below. The law governing the polling process is almost entirely contained in discrete sets of election rules. While these occasionally vary on points of detail, there is nevertheless a remarkably uniform way of regulating polling, with only minor differences attributable to different voting systems. What follows should be read in the light of our proposals, made in chapter 2, that election law should be set out in one place for all elections, subject to adaptations due to policy or voting system.
The election rules allow a returning officer to use any room in a school for the purposes of a poll, free of charge. “School” is defined by reference to the public educational systems in each of England and Wales, Scotland and Northern Ireland. Our consultation paper took the view that the parameters of the power were ill-defined and likely to cause disagreements. For example, it is not clear whether the returning officer can demand the use of a particular room if the school would prefer to offer another one. The returning officer must make good any damage done, and pay any expenses incurred by the school “by reason of [the room] being used for the purpose of taking the poll”, but it is not clear how far that provision extends.
The returning officer is under express and implied duties to equip polling stations with particular materials; for example, the number of ballot boxes and ballot papers the returning officer thinks necessary.259 Compliance with other election rules clearly requires equipment which is not specified. In fact, the Electoral Commission guidance’s checklist of polling station materials runs to 27 items. The presiding officer has a duty to keep order at the polling station.264 The presiding officer may order the removal of a person, by a constable or a person authorised in writing by the returning officer, for misconduct or refusal to “obey a lawful order”. It is not clear what orders can lawfully be given. The power to remove is subject to an express limitation that no voter otherwise entitled to vote there shall be prevented from doing so. The wording of the UK Parliamentary election rule, reproduced in other election rules, dates back to 1872 and seems inappropriate today.
Secret ballot
The secret ballot has been the cornerstone of voting in the UK since 1872. Requiring votes to be cast in the privacy of the polling booth helps protect against influence and corruption, by preventing attempts to verify how a vote was cast. The court however retains a power to trace particular ballot papers, which is designed to enable the detection of fraud. This is made possible by the corresponding number list (on which polling station staff record the number of the issued ballot paper against the elector’s number).
Legislation seeks to preserve secrecy in two ways; first, it lays down requirements to keep how a particular elector voted secret and, second, it contains several criminal offences designed to prevent or contain any breaches of secrecy. To ensure voter secrecy, section 66 of the Representation of the People Act 1983 places duties on various actors in the election process.
Candidates, their polling agents, administrators and observers must maintain and aid the secrecy of voting at polling stations, and must not communicate before the poll is closed any information as to the name or number on the register of anyone who voted.
Before handing a ballot paper to a voter, the presiding officer is entitled to ask a number of questions as set out in the election rules.271 If a person fails to answer a question satisfactorily, that person may not be issued with a ballot paper. The full list of questions can run to six, and is repeated, with adaptations, in each set of election rules. No other questions may be asked, with the result that the presiding officer is unable to ask some sensible questions. For example, where a voter is not on the register, a presiding officer might wish to ask where that voter used to live, to see whether they are still registered at the old address and should be directed to vote at another polling station. Even if a presiding officer suspects that the answers given to the questions are false, the presiding officer cannot prevent a person from voting.
The voting public must not interfere with other voters, induce them to display a completed ballot paper or obtain information as to how they voted.
Those attending the count must not ascertain ballot paper numbers (printed on the back of ballot papers) or communicate information obtained at the count as to the candidate for whom any vote is given on any particular ballot paper.
At sessions during which postal votes are opened, similar duties of secrecy apply, in particular prohibiting the communication of how a vote was given on any particular ballot paper.
The secrecy provisions are under potential threats from technology in the form of mobile phone photography. The law does not currently prohibit the taking of photographs in polling stations, though the Electoral Commission advises voters against it.
Qualified secrecy
In the UK the secrecy of the ballot is not absolute. The courts have the power to order the inspection or production of sealed packets containing ballot papers and the corresponding number list, if satisfied that this is required in order to institute or maintain a prosecution for an offence or to bring an election petition. An election court considering the validity and correctness of an election also has a general power to order inspection of sealed packets. This is known as vote tracing. It can be asked, whether qualified secrecy was compatible with article 3 of the First Protocol to the European Convention on Human Rights and EU law. The article 3 of the First Protocol does not require absolute voter secrecy (which would exclude judicial vote tracing), and therefore that the current system of qualified secrecy does not infringe either the Convention or EU law.
The 1983 Act sets out important limits on vote tracing. It provides that the way a particular voter voted should not be disclosed until it has been proved the vote was given and the vote has been declared invalid by a competent court. These safeguards should extend to someone whose vote is invalid, but who acted in good faith.130 We expect most such cases to arise from voter mistakes.
At UK Parliamentary elections the House of Commons has a power to make the same orders as courts can make, subject to the same duty not to disclose the vote of certain persons. Unlike the vote tracing power of the courts, this is not conditional on the commencement of criminal or petition proceedings. The House of Commons has rarely used this power and it appears to be a vestige of a jurisdiction that in practice was long ago transferred to the judiciary.
Counting of Vote
Two species of election are counted electronically in the UK, using devices that scan ballot papers on both sides, identify doubtful votes, and record and count votes electronically. These are Greater London Authority (“GLA”) and Scottish local government elections. The rules for each adopt a different approach.
The GLA elections rules are drafted throughout with a view to the electronic method of counting. The Greater London returning officer (“GLRO”) decides whether to use electronic counting; constituency returning officers (“CROs”) must use it unless they have obtained the GLRO’s written consent to manual counting. Technical assistants are appointed by the CROs and are entitled to attend the count. The rules include a table of modifications in the case of a manual count being performed. For example, the references to technical assistants are omitted.
In contrast, the Scottish local government election rules have one rule, generally empowering the officer to discharge any functions under the election rules by electronic means, and to interpret the rules accordingly. Other rules are designed with electronic counting in mind; for example, ballot papers are not required to be mixed before counting. If, however, the returning officer decides to count manually, these requirements are brought back in.
Currently the returning officer must make arrangements for counting the votes “as soon as practicable after the close of the poll”. This does not require the votes to be counted on the same day, although it used to be customary to do so; when the close of polls was extended in 1969 from 7pm to 10pm, it was accepted this would lead to more counting taking place on the following day. Usually, non-working days are excluded from the period during which counting takes place. This means a returning officer need not continue the count on a Saturday or Sunday if counting is not finished by then.
Special provisions apply in relation to UK Parliamentary general elections. For those elections, reasonable steps must be taken to commence the count within four hours of the close of polls. A returning officer unable to comply with that requirement must report the time that counting started and the reason for the delay to the Electoral Commission.312 Non-working days are not excluded from the timetable, so counting at the weekend may take place if necessary.
Once it has started, returning officers should generally carry on counting continuously. However, if counting agents agree, the returning officer may “exclude the hours between 7 in the evening and 9 in the morning”. The rule is out of date; polls once closed at 4pm, but now polling will still be in progress at 7pm.
The rules on counting agents generally operate similarly for elections using the party list system. The chief difference at these elections is that parties, as well as independent non-party candidates, stand for election. A simple adaptation to the rules means that each party is entitled to nominate representatives to scrutinise the count and adjudications, and to request recounts. The transpositions in election-specific rules are less straightforward, however, so that at European Parliamentary elections each list candidate may choose one person to attend the local count and the central calculation with them.
In addition to counting agents, the following people must be admitted to the count venue:
- the returning officer and staff;
- the candidates, their election agents, and one more nominee; and
- electoral observers appointed by the Electoral Commission.
The returning officer also has a discretion to admit others to attend – for example, media representatives or police officers.
This means that recounting from the start is a serious and time-consuming task, and the classical election rules have to be adapted accordingly. In STV elections in Northern Ireland, votes are counted manually.324 There is a duty to record data at each stage, including a comparison between the total number of votes recorded for all candidates, plus the total number of non-transferable votes, and the recorded total of valid first preference votes. These figures should match at each stage. Recounts can only be requested for a particular stage; the returning officer must comply with any request for a recount of the latest completed stage of the count.
Scottish local government elections are subject to the classical rule that returning officers can refuse a request for a recount if it is unreasonable. This is because Scottish local government elections are counted electronically, and so the rules do not require the recording of data at each stage. Instead the returning officer provides data relating to each stage in the final declaration. Our consultation paper noted, however, that at local government elections in Scotland the returning officer may choose to count manually. If this is done, there are no rules equivalent to those in Northern Ireland making clear that only the latest stage may be recounted following any request.
While the classical counting rules do not provide detailed guidance on how the count must be carried out, STV counting rules are carefully drafted to guide administrators through the count by requiring it to be in stages, involving the division of transferrable ballot papers into parcels and sub-parcels, and setting out the count and transfer values at each stage. Our consultation paper provisionally proposed that save for the existing differences in the transfer value, the same detailed rules should govern all STV counts.
Election offence
Electoral conduct is regulated by specific criminal offences. These are set out in the Representation of the People Act 1983 (“the 1983 Act”) and, since the 1983 Act does not cover every type of election, are repeated in each election-specific legislative measure. Some general criminal offences are relevant in the electoral law context, but the special “electoral offences” that this chapter covers are important because they specifically target serious electoral offending by candidates and their agents.384 Those which are labelled as “corrupt” or “illegal” practices also operate as grounds for invalidating an election pursuant to an election petition, and their commission disqualifies a person from standing for election for a period of 5 or 3 years respectively.385 We noted in our consultation paper the importance of these offences being clearly drafted, so that they are understood by participants in the election process, as well as by the police and prosecuting authorities who must enforce them.
In addition to offences committed by candidates and agents, electoral legislation lays down a range of voting offences, for example pretending to be another person in order to cast a vote in their name (“personation”) and forms of postal voting fraud. Voting offences are not the focus of this chapter, though we go on to recommend that serious electoral fraud offences, including those of postal voting fraud, should be the subject of higher criminal penalties.
Offences which are labelled a “corrupt” or “illegal” practice have special significance:
they vitiate the election if a successful election petition is brought (which is discussed in chapter 13); and
they have special consequences for the offender:
- if the offender is the winning candidate, as well as being guilty of a crime, he or she must vacate the elected post, and a new election must be held; and
- on conviction the offender is disqualified from election for a period of 3 years (for illegal practice) or 5 years (for corrupt practice).
Corrupt and illegal practices therefore differ from other electoral offences and general criminal offences in that they can result in the invalidation of an election if they are committed by, or can be attributed to, the winning candidate. In other words, their commission has a public law consequence for the validity of the election.
The principal difference between corrupt and illegal practices is the length of the potential disqualification; 5 years for a corrupt practice, and 3 years for an illegal practice. For some illegal practices, it is also possible to obtain “relief” from the courts. The court has a discretion to exempt an innocent act, omission, payment or employment from being an illegal practice if it is shown that it arose from inadvertence, accidental miscalculation or some other reasonable cause, and “did not arise from any want of good faith”.
Electoral bribery under section 113 of the 1983 Act proscribes the giving or receiving of a bribe, defined (in summary) as money or employment offered or received with the intention of inducing a change in voting behaviour or the return of a candidate. Treating under section 114 is the offence of corruptly giving or providing meat, drink or “provision” to others with the intention of influencing voting behaviour.
The mental element in bribery, our consultation paper proposed, should be an intention to procure or prevent the casting of a vote at the election. Thirty-five consultees submitted a response to this proposal, and all supported it.
Undue influence is a corrupt practice contrary to section 115(2) of the 1983 Act. A person is guilty of undue influence –
if he, directly or indirectly, by himself or by any other person on his behalf, makes use of or threatens to make use of any force, violence or restraint, or inflicts or threatens to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm or loss upon or against any person in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted or refrained from voting; or
if, by abduction, duress or any fraudulent device or contrivance, he impedes or prevents, or intends to impede or prevent, the free exercise of the franchise of an elector or proxy for an elector, or so compels, induces or prevails upon, or intends so to compel, induce or prevail upon an elector or proxy for an elector either to vote or to refrain from voting.
The current regime of electoral offences can only result in a maximum sentence of 2 years’ custody. That has resulted in prosecutorial recourse in England and Wales to the offence of conspiracy to defraud, which carries a maximum sentence of ten years’ custody and has resulted in harsher sentences.470 In our consultation paper, we asked consultees whether an increased sentence of ten years’ custody should be available for cases of serious electoral fraud, as an alternative to prosecution for conspiracy to defraud.471 Of the 32 consultees who provided a response to this consultation question, 29 agreed that an increased sentence should be available. The Electoral Commission supported increased sentences to provide appropriate deterrents, but thought further consideration should be given to the meaning of “serious electoral fraud”.
The article is based on Law Commission of England and Wales [Law Commission No 389] and Scottish Law Commission[Scottish Law Commission No 256] on Electoral Law. Dated 27 February 2020
