Electoral Law : The Last Two Years

It is interesting to reflect on events in electoral law across the last two years, not only for any effects in that sphere, but also for what they reveal about constitutional matters more widely.

One thing might be thought of as a non-event, but it would be a mistake to regard it as being of no significance.  On 5 May 2011, there was held only the second UK-wide referendum (the first having been in 1975, on continued European Community membership).  In 2011 the choice for voters was either to stick with the electoral system that was in use for elections to the House of Commons – First Past the Post (FPTP) – or to replace it with the Alternative Vote system (AV).  The proposal emerged out of the Coalition Agreement made between the Conservatives and the Liberal Democrats in May 2010.  Ironically, neither the Conservatives, most of whom were content with the status quo, nor the Liberal Democrats, whose manifesto in 2010 had described the Single Transferable Vote (STV) as their preferred system, really favoured AV, although the Liberal Democrats hoped that it might be a stepping-stone towards a later reform.

In the event, on a turnout of 42%, the voting was 68% to 32% in favour of no change.  Perhaps the option for change, as it did not provide a proportional system, was insufficiently attractive.  Perhaps the use of referendums tends to be a conservative device, more likely to inhibit than to promote change, as some evidence from other countries suggests.  Perhaps, outside the chattering classes, there was little enthusiasm for constitutional change.

Legislative provision for the referendum was made by the Parliamentary Voting System and Constituencies Act 2011.  Another part of that Act was concerned with the demarcation and revision of electoral areas.  This part also was derived from the Coalition Agreement, which said that a Bill would provide for the “creation of fewer and more equal sized constituencies.”

The 2011 Act makes amendments to the Parliamentary Constituencies Act 1986, which prescribes the functions of the four Boundary Commissions, whose reports are the basis for changes to be made to the number or pattern of electoral areas in England, Wales, Scotland and Northern Ireland respectively.  The new provisions will have the effect of reducing the size of the House of Commons to 600 seats, instead of the 650 that there are currently.  The new provisions will also mean that, with only two or three constituencies granted as exceptions, numerical equality of size (within 5%) across the whole UK has been prioritised as the main criterion.  Historically, a degree of ‘Celtic preference’ enabled more generous allocations to Scotland, Wales, and Northern Ireland.  Previously, too, the criteria used involved a more nebulous balance of considerations of community and geography along with numerical equality, allowing for some considerable variations in size of electorate.  The Boundary Commissions, previously working on a more leisurely timescale, are also going to have to produce their reports at 5 year intervals.

These changes are desirable or, at least, defensible in themselves, but for the Conservatives there was another motive in bringing them forward.  Labour has enjoyed an advantage from the operation of the system in the last thirty years, because of the Celtic preference, and more generally because the system has not kept pace with population movements.  The changes will somewhat reduce Labour’s advantage.

However, the effects of the changes will now be delayed.  The timetable has had to be altered, after the Liberal Democrats decided to back delay of implementation, in a calculated act of retaliation.  Mr Clegg blamed the Conservatives for the failure of the Government Bill to reform the House of Lords in 2012.  The ongoing tensions of coalition politics have often been evident, indeed perhaps most evident over constitutional matters.

The boundaries review timetable has accordingly been pushed back, so that the Commissions’ first reports under the new criteria are not due until September 2018, instead of September 2013, as had been provided.

The change in timing was effected by s.6 of the Electoral Registration and Administration Act 2013.  The main reform made by that Act (which received the royal assent on 31 January 2013) is to bring in individual electoral registration (IER), replacing the current household registration system.  There are transitional arrangements and a flexible approach is designed to allow an amended annual canvass to be supplemented and perhaps later displaced by other methods, including online registration.  Registration Officers will use data matching techniques in verifying and checking, and in finding individuals who do not appear on the registers (a civil penalty being provided for when individuals fail to apply to be registered after having been required to do so).

The reform is meant to reduce electoral fraud, and in principle is welcome.  However, as the Electoral Commission has cautioned, it involves “the biggest change to the voter registration process since the universal franchise was introduced.”  The Government listened to concerns and made some improvements to the Bill, but some worries remain about the resourcing and effectiveness of the new arrangements.  The current registers are thought to be only about 90% accurate.  It will not be clear for some years whether under the new system there may turn out to be a higher level of disenfranchisement, albeit one involving some contributory negligence.

Besides the procedural requirement of being registered to vote, the franchise depends on substantive qualifications of residence, nationality, age, and an absence of legal incapacities (Representation of the People Act 1983, as amended).

It is of interest, at least for comparison, to notice that the franchise is being widened for the referendum on Scottish independence planned for 2014.  Delegated legislation passed under section 30 of the Scotland Act 1998 has given competence to the Scottish Parliament to legislate for aspects of the referendum, and a Government Bill before the Scottish Parliament will extend the vote for that purpose only to those over 16.

The legal incapacity that has attracted most attention in recent years is the disqualification of convicted prisoners, under ROTPA 1983, s.3.  The blanket ban was found to be incompatible with the provisions of the ECHR as interpreted by the European Court of Human Rights in Hirst v UK (No. 2) (2006) 42 EHRR 1.  A lengthy stand-off has ensued, as UK governments of different complexions have been very loath to remove or amend the disqualification.  The whole saga raises wider issues about parliamentary sovereignty, membership of the Convention and the Council of Europe, the Human Rights Act 1988 and the potential for a UK Bill of Rights, which are too large to explore here.  Here we may just notice that the Government’s current rejoinder to Strasbourg is that it has complied with demands by bringing forward legislative proposals for the British Parliament to consider.  It has done so by producing (in November 2012) a draft Bill with three options, one of which is a restatement of the existing ban.  Consideration of the draft Bill will be by a Joint Select Committee, and quite unhurriedly, it appears.  So the stand-off continues, with some significance attaching to the ever-important distinction between government and Parliament.

This blog post was written by Colin Munro, Emeritus Professor of Constitutional Law, University of Edinburgh who regularly teaches at our weekend courses

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