Electoral law: unfit for the 21st century?

With democracy at risk there’s no excuse for legislative inaction, argue Alison Foster QC, Tom Tabori and Gethin Thomas who make the case for reform and put forward proposals for change

How much do we care about our electoral system? English insouciance concerning electoral propriety has a long heritage. Phineas Finn, Trollope’s eponymous hero, mused that although ‘... the great political question... up in London was the enfranchisement of Englishmen... yet when he found himself in contact with individual Englishmen... they rather liked being bound hand and foot, and being kept as tools in the political pocket of a rich man.’

A robust and resilient electoral system is a cornerstone of a functioning democracy. A while ago, a picture of voter manipulation, covert pressure on the electorate, and misinformation in UK elections might suggest a 1750s scene from Hogarth’s ‘Humours of an Election’, not the description of a contemporary malaise. However, on 24 July 2018, the House of Commons Digital, Culture, Media and Sport (DCMS) Committee, following an inquiry that set out to examine only the phenomenon of fake news but felt compelled to investigate broader issues ‘concerning the very future of democracy’, issued the following interim conclusion: ‘Our democracy is at risk, and now is the time to act, to protect our shared values and the integrity of our democratic institutions’ (Disinformation and ‘fake news’, 24 July 2018, p 3).

In September 2018 the Divisional Court ruled in Good Law Project v Electoral Commission [2018] EWHC 2414 (Admin) that the Commission had misconstrued ‘referendum expenses’ within s 117(1) of the Political Parties, Elections and Referendums Act 2000, with the effect that the £620,000 channelled by Vote Leave to permitted participants AggregateIQ was Vote Leave’s own expense, taking Vote Leave over its £7m limit as the designated lead campaigners, and inevitably provoking comments that the result was thereby tarnished (The Independent, 17 July 2018 17:06). But the issue is systemic: the concerted action taken by the Electoral Commission subsequent to the decision with which the Divisional Court was concerned shows that the problem is not with the regulator, but with the system of electoral law that it enforces.

The events of 2018 have given rare exposure to this somewhat arcane area of law and its capacity to safeguard the integrity of a democratic process now arguably as beset by subtle but no less significant threats than those depicted by Hogarth or Trollope.

Dormant process of reform

Eight years ago, in its report on the UK General Election, the OSCE Office for Democratic Institutions and Human Rights observed that UK electoral law was ‘not suitable to conduct a 21st century election’. The Electoral Commission proposed a reform project to the Law Commission, observing that the last major electoral law reform had taken place in the 1870s. After extensive work, on 4 February 2016, the Law Commission published a detailed Interim Report. Then – there was silence. The project’s webpage states: ‘The government has said there is no parliamentary capacity currently for an electoral bill to take forward our recommendations.’

This process of reform might have remained dormant were it not for recent events. These now suggest legislative inaction may no longer be defensible:

  • 11 May 2018: the Electoral Commission fines pro-Brexit campaigners Leave.EU £70,000 for exceeding its statutory spending limit of £700,000 and delivering inaccurate spending returns, referring its CEO to the police.
  • June 2018: the Commission issues a report lamenting the weakness of its powers to police the system: given the millions spent in modern campaigning, ‘a maximum fine of £20,000 risks becoming a cost of doing business for some campaigners. This penalty does not provide an effective deterrent to stop campaigners committing offences’ (Digital campaigning, p 22).
  • 17 July 2018: after new evidence comes to light, the Commission fines Vote Leave for circumventing spending limits by coordinating with BeLeave, spending £675,315 on AggregateIQ (BBC News, 17 July 2018). BeLeave founder, Darren Grimes, and Vote Leave official David Halsall both reported to the police. Concern is expressed across the Commons: Sir Nicholas Soames MP calls for the system to be ‘blown up and started all over again’, others declare there can be no confidence by the public in the referendum result, whilst Chuka Umunna MP sees ‘an affront to our democracy’ and calls for a public inquiry (Hansard, 17 July 2018, vol 645, col 229).

The opportunity for such events to occur in 2018 can be explained through understanding more of the nature of current electoral law.

Victoriana

In R v Mackinlay and others [2018] UKSC 42 at para 4, Lady Hale observed that ‘some of the rules and concepts in [the Representation of the People Act 1983] effectively date from Victorian times’. The 1983 Act is indeed directly derived from legislation such as the Ballot Act 1872 and the Parliamentary Elections Act 1868. Two key features of the Victorian approach continue to assert significant influence:

  • First, modern day regulation of UK electoral law is marked by the historic absence of an independent regulator to oversee electoral administration. The Law Commission’s Scoping Consultation of 15 June 2012 observed (para 2.9), ‘it was never considered that it might be appropriate for the government or the state positively to oversee the running of elections’. This vacuum has been filled since 2000, to an extent, by the Electoral Commission. The government has hesitated to equip it sufficiently.
  • Secondly, the enforcement of election rules is left primarily to private individuals whereby, through a costly and time-consuming process, an individual brings a ‘petition’ before a specially constituted election court, and is required to prove the breach to the criminal standard (Erlam & Ors v Rahman & Anor [2015] EWHC 1215). Arguably, relying on private citizens to regulate elections is neither practicable, nor fair. The Law Commission observed in its Joint Consultation (13.176) that there ‘remains an inherent tension between the private character of the petition process and the public importance of electoral outcomes’.

These problems are amplified in the digital era. UK electoral law has failed to keep pace with technological developments. The Report of the Independent Commission on Referendums in July 2018 stated:

‘44. The globalised nature of social media creates challenges for regulators. In evidence Facebook did not accept their responsibilities to identify or prevent illegal election campaign activity from overseas jurisdictions. In the context of outside interference in elections, this position is unsustainable and Facebook, and other platforms, must begin to take responsibility for the way in which their platforms are used.

45. Electoral law in this country is not fit for purpose for the digital age, and needs to be amended to reflect new technologies’.

Universal calls for change

Echoing these voices, the Committee for Standards in Public Life, the Independent Commission on Referendums at the UCL Constitution Unit, and the Electoral Commission have called for all online political campaign material to state, as physical material must, who paid for it. Forty-five Liberal Democrat, Labour and Green Party MPs wrote to the Speaker calling for far-reaching changes to the UK’s ‘unfit for purpose’ electoral system.

"Concern is expressed across the Commons: Sir Nicholas Soames MP calls for the system to be ‘blown up and started all over again’, others declare there can be no confidence by the public in the referendum result, whilst Chuka Umunna MP sees ‘an affront to our democracy’ and calls for a public inquiry"

The DCMS Interim Report endorsed the Electoral Commission’s recommendations, of an increase to the current upper fine limit (as granted to the Information Commissioner‘s Office in the Data Protection Act 2018), and power to the Electoral Commission to compel organisations it does not regulate, including tech companies and individuals, to provide information relevant to their inquiries. This last influenced no doubt by Mark Zuckerburg’s four separate refusals to attend to give evidence to the Committee (DCMS Committee Report, p 19).

Further proposals

We would add the following two proposals. The Law Commission’s core recommendation of rationalising the currently ‘voluminous and fragmented’ electoral law (currently spread across 17 statutes and some 30 sets of regulations) must surely be effected. Once an accessible and clear legislative framework is in place, further more radical reforms may more easily be made.

Secondly, although a public interest petitioner, charged with bringing challenges to elections, was rejected in the Law Commission’s Interim Report of 2016, we urge reconsideration, obviating the need for an individual to petition. The Law Commission even developed a careful model for this mechanism, including a threshold requirement before bringing a challenge and suggesting the Electoral Commission was the ‘obvious candidate’ to operate such a power, with a separate panel to advise on whether the threshold was met, protecting the Commission from accusations of partisanship.

The Electoral Commission’s consultation response declined the role, citing perceived loss of political neutrality, and undermining certainty of election outcomes. Their concerns may not have been allayed by Aaron Banks’ response to his fine, claiming it would not have happened if the referendum result had been different, citing ‘the politicisation of the Electoral Commission’ and complaining that ‘if it was an independent body it would have neutral civil servants on its board, not former MPs’ (The Guardian, 26 June 2018). Yet, after a summer of growing political and public realisation that electoral law requires fortification, might the Commission now take a different view? Consider:

  • The Electoral Commission is well placed to investigate, forensically and neutrally, allegations of electoral offences, and may impose fines.
  • There is no real issue concerning a compromise to impartiality: the judiciary would determine whether or not to annul an election result, not the Commission, which would merely bring the petition.
  • A public interest petitioner would resolve the tension between the private character of a petition, and the public interest in the outcome and integrity of an election. That integrity would be protected by a process that is not dependent on a private citizen stepping forward to undertake the burden of personally petitioning, and costs risk unless granted a protected costs order (the Law Commission’s substitute recommendation).
  • Challenge of a sort is already available: a public interest petitioner would merely address its inaccessibility.
  • Increasing the opportunity to challenge properly an unlawfully procured election result would likely provide a stronger incentive to comply with electoral law and satisfy the thirst for a more flexible and proactive route for intervention when things go wrong.
  • The risks to the integrity of elections outweigh concerns about certainty in outcome of elections, as the credibility of the latter is contingent on safeguarding the former.

Empowering the Commission, as guardian of the public interest, to challenge the result of an election before a court, once a threshold test was met, is the next logical step in securing regulation of elections by an informed independent body with oversight of the process.

Final observations

On the 70th anniversary of the Universal Declaration of Human Rights, it is remarkable that it should be the electoral rights enshrined by Art 21(3) of that document that are currently under threat in this country. The 16 July 2018 Inter-Parliamentary Meeting at the Atlantic Council, an American international affairs thinktank, articulated clearly what that threat might entail:

‘Foreign interference in elections is an attack on citizens’ fundamental right to freely select their representatives and to determine the path forward for their countries.’

It is also piquant, perhaps, that the subject of the European Commission’s 2018 annual colloquium on fundamental rights in November is ‘Democracy in the EU’, and includes ‘the promotion of broad participation and representation as a condition for inclusive democratic societies’ and the ‘opportunities and challenges brought about by digitalisation for an informed, fair and pluralistic democratic debate and … the negative impact of propaganda.’

We could do worse than take the European lead in recognising clearly the individual rights at stake in the provision and maintenance of a robust electoral system. The focus on individual rights may provide the rationale on which to build a system of electoral law fit for the 21st century. It should give inspiration and strength to UK lawmakers in throwing off Victorian restraints on our ability to meet 21st century threats to our democracy.

Alison Foster QC, Tom Tabori and Gethin Thomas, barristers at 39 Essex Chambers. The views expressed are the authors’ own.

Author details: 
Alison Foster QC

Alison is joint Head of Chambers at 39 Essex Chambers and a Silk in public law, regulation and tax. She jointly edits Disciplinary and Regulatory Proceedings, Hart (9th edn, 2017) and sits as a Deputy High Court Judge (Chancery & Queen’s Bench).

Tom Tabori

Tom is a public and civil liability law barrister at 39 Essex Chambers with specialism in human rights. He takes instructions in all areas of electoral law, including party registration, funding and spending matters.

Gethin Thomas

Gethin joined 39 Essex Chambers in September 2018, after completing pupillage, and is developing a broad practice. He was previously a Law Commission research assistant.