Law Commission Consultation

[Deleted]

Open date: 09 December 2014

Close date: 31 March 2015

On 9 December 2014 we published a joint consultation paper with the Scottish Law Commission and the Northern Ireland Law Commission on options for reforming electoral law.

Electoral law in the UK is spread across 25 major statutes. It has become increasingly complex and fragmented, and difficult to use. The last century has seen a steady increase in the numbers and types of election. Each of these election types comes with its own set of rules and systems, and combining them to produce one election event introduces yet more layers of electoral laws.

The Law Commissions are seeking views on potential reforms that will modernise and rationalise electoral law. All the Commissions' provisional proposals for reform are founded on two principles:

the laws governing elections should be rationalised into a single, consistent legislative framework governing all elections, and
electoral laws should be consistent across all types of election.
This consultation relates to our Electoral Law project.

Reference number: LCCP218

PDF Link - lawcommission.justice.gov.uk/docs/cp218_electoral_law.pdf

[peterl]

Thanks for posting this, the report looks very interesting. I look forward to studying it in detail when I have a spare...day.

[Deleted]

Dec 11, 2014 22:10:55 GMT peterl said:

Thanks for posting this, the report looks very interesting. I look forward to studying it in detail when I have a spare...day.

I mean no offence when I say that members of this forum doubtlessly have enough spare time to read it all. I certainly do!

[anthony]

Dec 12, 2014 6:00:38 GMT doktorb🏳️‍🌈🏳️‍⚧️ said:

I mean no offence when I say that members of this forum doubtlessly have enough spare time to read it all. I certainly do!

Ha, I wish. I noted the consultation for work (and forgot to put it here) but I doubt I'll get time . . . Maybe a bit of light Christmas reading!

[Crimson King]

Dec 12, 2014 6:00:38 GMT doktorb🏳️‍🌈🏳️‍⚧️ said:

Dec 11, 2014 22:10:55 GMT peterl said:

Thanks for posting this, the report looks very interesting. I look forward to studying it in detail when I have a spare...day.

I mean no offence when I say that members of this forum doubtlessly have enough spare time to read it all. I certainly do!

er, no

[Deleted]

If - and it's a big if - we can agree on some points, it might be a good first opportunity for the Psephological Society to make an official representation

[Deleted]

All Proposals and Questions in the consultation document --




CHAPTER 2: LEGISLATIVE FRAMEWORK
Provisional proposal 2-1: The current laws governing elections should be
rationalised into a single, consistent legislative framework governing all elections.
Provisional proposal 2-2: Electoral laws should be consistent across elections,
subject to differentiation due to the voting system or some other justifiable
principle or policy.

CHAPTER 3: MANAGEMENT AND OVERSIGHT
Provisional proposal 3-1: The ceremonial role, in England and Wales, of
sheriffs, mayors, and others as returning officer at UK parliamentary elections
should be abolished.
Provisional proposal 3-2: Electoral law should set out the powers and duties of
returning officers centrally for all elections.
Provisional proposal 3-3: The functions, duties, and powers of direction of
regional returning officers at elections managed by more than one returning
officer should be spelled out.
Question 3-4: What is the proper role of powers of direction by directing officers
at combined polls led by another returning officer?
Provisional proposal 3-5: The designation and review of polling districts is an
administrative matter which should be the responsibility of the returning officer
rather than local authority councils.
Question 3-6: Should appeals against designations of administrative areas be to
the Electoral Commission or the Local Government Boundary Commissions?

CHAPTER 4: THE REGISTRATION OF ELECTORS
Provisional proposal 4-1: The franchises for all elections in the UK should be
centrally set out in primary legislation.
Provisional proposal 4-2: The law on residence, including factors to be
considered, and special category electors, should be restated clearly and simply
in primary legislation.
Provisional proposal 4-3: The possibility of satisfying the residence test in more
than one place should be explicitly acknowledged in legislation.
347
Question 4-4: Should the law lay down the factors to be considered by
registration officers when registering an elector at a second residence?
Question 4-5: Should electors applying to be registered in respect of a second
home be required to make a declaration supporting their application?
Question 4-6: Should electors be asked to designate, when registering at a
second home, one residence as the one at which they will vote at national
elections?
Provisional proposal 4-7: Entitlement to be a special category elector should be
governed by primary legislation which should require a declaration in a common
form establishing a voter’s entitlement to be registered at a notional place of
residence; other administrative requirements should be in secondary legislation.
Provisional proposal 4-8: The 1983 Act’s provisions on maintaining and
accessing the register of electors should be simplified and restated for Great
Britain and Northern Ireland respectively.
Provisional proposal 4-9: Primary legislation should contain core registration
principles including the objective of a comprehensive and accurate register and
the attendant duties and powers of registration officers, the principle that the
register determines entitlement to vote, requirements of transparency, local
scrutiny and appeals, and the deadline for registration.
Provisional proposal 4-10: The deadline for registration should be expressed as
a number of days in advance of a poll.
Provisional proposal 4-11: Primary legislation should prescribe one electoral
register, containing records held in whatever form, which is capable of indicating
the election(s) the entry entitles the elector to vote at.
Provisional proposal 4-12: Secondary legislation should set out the detailed
administrative rules concerning applications to register, their determination,
publication of the register and access to the full and edited register.
Provisional proposal 4-13: Registration officers’ systems for managing
registration data should be capable, in the long term, of being exported to and
interacting with other officers’ software, through minimum specifications or a
certification requirement laid down in secondary legislation.
Provisional proposal 4-14: EU citizens’ declaration of intent to vote in the UK
should have effect for the duration of the elector’s entry on the register, possibly
subject to a limit of five years.

CHAPTER 5: MANNER OF VOTING
Provisional proposal 5-1: The secrecy requirements under section 66 should
extend to information obtained when a person completed their postal vote, and
should prohibit the taking of photographs in a polling station.
Provisional proposal 5-2: The obligation to store sealed packets after the count
should spell out that they should be stored securely.
348
Provisional proposal 5-3: Corresponding number lists should be stored in a
different location from ballot papers and in a different person’s custody.
Provisional proposal 5-4: Secrecy should be unlocked only by court order, with
safeguards against disclosure of how a person voted extended to an innocently
invalid vote.
Provisional proposal 5-5: The form and content of ballot papers and other
materials supplied to voters should continue to be prescribed in secondary
legislation.
Provisional proposal 5-6: The duty to consult the Electoral Commission as to
the prescribed form and content of ballot papers should include consultation in
relation to the principles of clarity, internal consistency of the design (with equal
treatment between candidates), and general consistency with other elections’
ballot papers.

CHAPTER 6: ABSENT VOTING
Provisional proposal 6-1: Primary legislation should set out the criteria of
entitlement to an absent vote. Secondary legislation should govern the law on the
administration of postal voter status.
Provisional proposal 6-2: The law governing absent voting should apply to all
types of elections, and applications to become an absent voter should not be
capable of being made selectively for particular elections.
Provisional proposal 6-3: Registration officers should be under an obligation to
determine absent voting applications and to establish and maintain an entry in
the register recording absent voter status, which can be used to produce absent
voting lists.
Provisional proposal 6-4: The special polling station procedure in Northern
Ireland under schedule 1 to the Representation of the People Act 1985 should be
repealed.
Provisional proposal 6-5: Absent voting applications should substantially
adhere to prescribed forms set out in secondary legislation.
Provisional proposal 6-6: Requests for a waiver of the requirement to provide a
signature as a personal identifier should be attested, as proxy applications
currently must be.
Question 6-7: Should electoral law prohibit, by making it an offence, the
involvement by campaigners in any of the following:
(1) assisting in the completion of postal or proxy voting applications;
(2) handling completed postal or proxy voting applications;
(3) handling another person’s ballot paper;
(4) observing a voter marking a postal ballot paper;
(5) asking or encouraging a voter to give them any completed ballot paper,
postal voting statement or ballot paper envelope;
(6) if asked by a voter to take a completed postal voting pack on their behalf,
failing to post it or take it directly to the office of the Returning Officer or
to a polling station immediately;
(7) handling completed postal voting packs at all?
Provisional proposal 6-8: A single set of rules should govern the postal voting
processes in Great Britain and Northern Ireland respectively; and
Provisional proposal 6-9: These rules should set out the powers and
responsibilities of returning officers regarding issuing, receiving, reissuing and
cancelling postal votes generally rather than seeking to prescribe the process in
detail.

CHAPTER 7: NOTICE OF ELECTION AND NOMINATIONS
Provisional proposal 7-1: A single nomination paper, emanating from the
candidate, and containing all the requisite details including their name and
address, subscribers if required, party affiliation and authorisations should
replace the current mixture of forms and authorisations which are required to
nominate a candidate for election.
Provisional proposal 7-2: The nomination paper should be capable of being
delivered by hand, by post or by electronic mail.
Provisional proposal 7-3: The nomination paper should be adapted for party list
elections to reflect the fact that parties are the candidates; their nomination must
be by the party’s nomination officer and should contain the requisite consents by
list candidates.
Provisional proposal 7-4: Subscribers, where required, should be taken legally
to assent to a nomination, not a paper, so that they may subscribe a subsequent
paper nominating the same candidate if the first was defective.
Provisional proposal 7-5: Returning officers should no longer inquire into and
reject the nomination of a candidate who is a serving prisoner. The substantive
disqualification under the Representation of the People Act 1981 will be
unaffected.
Provisional proposal 7-6: Returning officers should have an express power to
reject sham nominations.

CHAPTER 8: THE POLLING PROCESS
Provisional proposal 8-1: A single polling notice in a prescribed form should
mark the end of nominations and the beginning of the poll, which the returning
officer must communicate to candidates and publicise.
Provisional proposal 8-2: The same forms of poll cards should be prescribed
for all elections, including parish and community polls, subject to a requirement of
substantial adherence to the form.
Provisional proposal 8-3: As part of their duty of neutrality, returning officers
should not appoint in any capacity – including for the purposes of postal voting –
persons who have had any involvement (whether locally or otherwise) in the
election campaign in question.
Provisional proposal 8-4: The power to use school rooms should be clarified so
that the returning officer is able to select and be in control of the premises
required, and so that the duty to compensate the school for costs does not
extend beyond the direct costs of providing the premises.
Provisional proposal 8-5: The law should specifically require that returning
officers furnish particular pieces of essential equipment for a poll, including ballot
papers, ballot boxes, registers and key lists. For the rest, returning officers should
be under a general duty to furnish polling stations with the equipment required for
the legal and effective conduct of the poll.
Provisional proposal 8-6: Presiding officers should have the power to use, or
authorise the use by polling station staff of, reasonable force to remove from a
polling station a person not entitled to be there. The procedure for returning
officers to issue authorisations to use force should be abolished.
Provisional proposal 8-7: A single set of polling rules should apply to all
elections, simplified so that they prescribe only the essential elements of
conducting a lawful poll, including: the powers to regulate and restrict entry, hours
of polling, the right to vote, the standard, assisted, and tendered polling
processes, and securing an audit trail.
Provisional proposal 8-8: Polling rules should set out general requirements for
a legal poll which the returning officer should adhere to. These should no longer
include a requirement for voters to show the official mark on their ballot paper to
polling station staff.
Provisional proposal 8-9: The right to ask voters questions as to their
entitlement to vote should be preserved, but secondary legislation should only
prescribe the point they may elicit, and leave suggested wording to guidance.
Provisional proposal 8-10: Voting with the assistance of a companion should
not involve formal declarations, but should be permitted by the presiding officer
where a voter appears to be unable to vote without assistance. There should no
longer be a limit on the number of disabled voters a person may assist;
alternatively, the limit should not apply to family members, who should include
grandparents and (adult) grandchildren.
Provisional proposal 8-11: The requirement to provide equipment to assist
visually impaired voters to vote unaided should be retained. There should be a
single formulation, applying to all elections, of the required characteristics of the
equipment.
Provisional proposal 8-12: The current provision, including the distinction
between the death of party and independent candidates, should be retained as
regards parliamentary elections.
Provisional proposal 8-13: At elections using the party list voting system, the
death of an individual independent candidate should not affect the poll unless he
or she gains enough votes for election, in which case he or she should be passed
over for the purpose of allocation of the seat; the death of a list candidate should
not affect the poll.
Question 8-14: We ask consultees whether, at local government elections, the
death of an independent candidate should or should not result in the
abandonment of the poll.
Provisional proposal 8-15: The existing rule, requiring the presiding officer to
adjourn a poll in cases of rioting or open violence, should be abolished.
Provisional proposal 8-16: Returning officers should have power to alter the
application of electoral law in order to prevent or mitigate the obstruction or
frustration of the poll by a supervening event affecting a significant portion of
electors in their area, subject to instruction by the Electoral Commission in the
case of national disruptions. Presiding officers should only have a corresponding
power in circumstances where they are unable to communicate with their
returning officer.

CHAPTER 9: THE COUNT AND DETERMINATION OF THE RESULT
Provisional proposal 9-1: A single standard set of rules should govern the count
at all elections.
Provisional proposal 9-2: The standard counting rules should cater for
differences between elections as regards their voting system and how their
counts are managed.
Provisional proposal 9-3: The rules should empower returning officers to
determine the earliest time at which it is practicable to start a count, and to pause
one overnight, subject to the duty to commence counting at UK Parliamentary
elections within four hours and the requirement to report any failure to do so.
Provisional proposal 9-4: Candidates may be represented at the count by their
election agents or counting agents, who should be able to scrutinise the count in
the way the law currently envisages. At party list elections, parties may appoint
counting agents. Election agents and counting agents should be able to act on a
candidate’s behalf at the count, save that a recount may only be requested by a
candidate, an election agent or a counting agent specifically authorised to do so
in the absence of the candidate or election agent.
Provisional proposal 9-5: Save for differences in the transfer value, the same
detailed rules should govern all STV counts.
Provisional proposal 9-6: A standard set of counting rules and subset of
counting rules for electronic counting should apply to all elections. Which
elections are subject to electronic counting should be determined by statutory
instrument.
Question 9-7: Should electronic counting systems be subject to a certification
requirement, a requirement of a prior demonstration to political parties and/or the
Electoral Commission, or should there be no change in the current law?

CHAPTER 10: TIMETABLES AND COMBINATION OF POLLS
Provisional proposal 10-1: The UK Parliamentary election timetable should be
oriented so that steps count back from polling day.
Provisional proposal 10-2: A separate rule should state that, for by-elections,
polling day is on the last Thursday occurring between days 23 and 27 after the
warrant for the writ of by-election is issued. (this is based on the current 25 day
timetable length).
Provisional proposal 10-3: The writ should be capable of communication by
electronic means.
Provisional proposal 10-4: A standard legislative timetable should apply to all
UK elections, containing the key milestones in electoral administration, including
the deadlines for registration and absent voting.
Provisional proposal 10-5: The timetable should be 28 days in length.
Provisional proposal 10-6: The law governing combination of coinciding polls
should be in a single set of rules for all elections.
Provisional proposal 10-7: Any elections coinciding in the same area on the
same day must be combined.
Question 10-8: Should the returning officer have a power to defer a fourth
coinciding poll in the interests of voters and good electoral administration? What
safeguards might sensibly apply to the exercise of the power?
Provisional proposal 10-9: The lead returning officer and their functions should
be determined by a single set of rules according to the existing hierarchy for
mandatory combinations, with some discretionarily combinable functions.
Provisional proposal 10-10: A single set of adaptations should provide for
situations where a poll involves several ballot papers.

CHAPTER 11: ELECTORAL OFFENCES
Provisional proposal 11-1 A single set of electoral offences should be set out in
primary legislation which should apply to all elections.
Provisional proposal 11-2: The offence of bribery should be simplified, with its
mental element stated as intention to procure or prevent the casting of a vote at
election.
Provisional proposal 11-3: The electoral offence of treating should be abolished
and the behaviour that it captures should where appropriate be prosecuted as
bribery.
Provisional proposal 11-4: Undue influence should be restated as offences of
trickery, pressure and duress.
Question 11-5: Should the law regulate the exercise of abuse of influence,
religious or otherwise, by a person over a voter which does not amount to an
existing electoral offence?
Question 11-6: Is the current power to make provision concerning imprinting of
“other” (including online) material sufficient, or is it desirable and feasible, within
the remit of this project, to recommend regulation of online material?
Question 11-7: Should the illegal practice of disturbing election meetings apply
only to candidates and those supporting them, and no longer be predicated on
the “lawfulness” of the meeting?
Question 11-8: Should the offence of falsely stating that another candidate has
withdrawn be retained?
Question 11-9: Should an increased sentence of ten years’ custody be available
in cases of serious electoral fraud as an alternative to recourse to the common
law offence of conspiracy to defraud?

CHAPTER 12: REGULATION OF CAMPAIGN EXPENDITURE
Provisional proposal 12-1: Returning officers should publicise and make
available for inspection expenses returns (as well as publicising non-receipt of a
return). Secondary legislation should prescribe in detail the process for that
publicity and inspection, paving the way for publication online.
Provisional proposal 12-2: Provisions governing the regulation of campaign
expenditure should be centrally set out for all elections.
Provisional proposal 12-3: A single schedule should contain prescribed
expense limits and guidance to candidates as to expenditure and donations.
Provisional proposal 12-4: Expenditure limits which are calculated according to
a formula should be declared by the returning officer for the constituency or
electoral area in a notice accompanying, or immediately following, the notice of
election.
Provisional proposal 12-5: Returning officers should receive a single set of
documents containing the return of expenses and declarations by the agent and
the candidate. These should include any statement by an authorised person
containing the particulars currently required to be sent to the returning officer by
section 75(2) of the 1983 Act.

CHAPTER 13: LEGAL CHALLENGE
Provisional proposal 13-1: The doctrine of “votes thrown away” should be
abolished
Provisional proposal 13-2: The law governing challenging elections should be
set out in primary legislation governing all elections.
Provisional proposal 13-3: Defects in nomination, other than purely formal
defects, should invalidate the election if they amount to a breach of election law
which was committed knowingly or can reasonably be supposed to have affected
the result of the election.
Provisional proposal 13-4: The grounds for correcting the outcome or
invalidating elections should be restated and positively set out.
Provisional proposal 13-5: Disqualification at the time of election should be
stated to be a ground for invalidating the election for all elections.
Question 13-6: Should the election court have a power to consider whether a
disqualification has lapsed and, if so, whether it is proper to disregard it, mirroring
the power under section 6 of the House of Commons Disqualification Act 1975?
Provisional proposal 13-7: At elections using the party list voting system, the
court should be able to annul the election as a whole, or that of a list candidate,
because corrupt or illegal practices were committed attributable to the candidate
party or individual, or for extensive corruption.
Provisional proposal 13-8: Legal challenges should be heard in the ordinary
court system in the UK, with a single right of appeal on a point of law.
Provisional proposal 13-9: Local election petitions in England and Wales
should be heard by expert lawyers sitting as deputy judges.
Provisional proposal 13-10: Challenges should be governed by simpler,
modern and less formal rules of procedure allowing judges to achieve justice in
the case while having regard to the balance between access and certainty.
Provisional proposal 13-11: Returning officers should have standing to bring
petitions, including a preliminary application to test whether an admitted breach
affected the result.
Provisional proposal 13-12: There should be a means of ensuring sufficient
representation of the public interest in elections within that judicial process.
Question 13-13: Should there be a public interest petitioner with standing to
bring election petitions?
Question 13-14: What should the threshold criteria be for bringing a petition in
the public interest?
Question 13-15: How, if at all, should the law tackle the issue of individuals
getting a “free ride” by challenging elections through the public interest petitioner?
Question 13-16: Should the decision to bring a public interest petition be subject
to independent and expert assessment of the merits of the case, or left entirely at
the discretion of the petitioner?
Provisional proposal 13-17: There should be an informal means of reviewing
complaints about elections which do not aim to overturn the result.

[piperdave]

I did some work on the review for the Electoral Commission when I was working there. More than happy to be involved here.

[johnloony]

bump

[Davıd Boothroyd]

Interim report out: www.lawcom.gov.uk/wp-content/uploads/2016/02/electoral_law_interim_report.pdf

[Harry Hayfield]

It is so nice to see a report come out on the virtues of overnight counts and not get hijacked by the mass media saying "SAVE ELECTION NIGHTS". My personal feelings are that elections are held one day and counted from 9.00am the next (like they will be in Eire at the end of the month).