Electoral law

Electoral law – that being the body of law concerned with election procedures and the regulation of political campaigning – is voluminous and complex. The Law Commission embarked on a review of the UK system and published its final report in March 2020. The Law Commission summarised the crux of the problem :

‘electoral law in the UK is spread across 17 statutes and some 30 sets of regulations. It has become increasingly complex and fragmented; it is difficult to access, apply, and update. Much of the law is rooted in 19th Century language and practice, and doesn’t reflect modern electoral administration’.

In this series on electoral law, the public law and public affairs team at BDB Pitmans will publish introductory articles in order to make sense of this complicated area and its relevance to your organisation, while providing timely updates. With the local elections now confirmed as going ahead on May 6 2021, it is an important time to refresh your knowledge on this area. In this first entry, we set out the fundamental principles and scope of electoral law.

Key Sources

The main components of electoral law are:

• The Representation of the People Act 1983 (the 1983 Act) (as amended) governs the UK parliamentary and local government elections and contains important electoral offences. It sets out the parliamentary and local election franchise, the framework for registering voters and running elections, how electoral campaigns are regulated and the mechanism for challenging elections. Schedule 1 to the 1983 Act also contains more detailed rules for running UK parliamentary elections. The rules for other types of election are contained in separate pieces of legislation that apply to that particular type of election – a so-called ‘election-specific’ approach to electoral legislation. For example, the Police Reform and Social Responsibility Act 2011 details the process of Election Police and Crime Commissioners;
• Political Parties, Elections and Referendums Act 2000 (PPERA 2000) (as amended) – this is a major piece of legislation that establishes the Electoral Commission as a regulatory body, regulates donations and loans to parties and members, the control of campaign expenditure relating to parties and ‘third parties’, and establishes a framework for conducting referendums throughout the UK; and
• devolved elections – each nation of the UK has specific electoral arrangements as detailed in legislation pertaining to that nation; for example, the Scotland Act 1998 (as amended) regulates the election of individuals to the Scottish Parliament in Holyrood. This election specific approach also extends to the general London Assembly and mayoral authorities throughout England.

Scope and principles

The main principles underpinning the legislative frameworks are transparency, rigidity and fair process.

While the rules’ complexity mean they can be opaque and difficult to understand, they demand transparency from political parties, donors, businesses and trade association involved in politics. This is particularly important in the regulation of donations as when certain thresholds are exceeded, the amount given must be declared to the Electoral Commission.

Similarly, electoral law is very prescriptive and leaves little space for interpretation or ‘wiggle room’. While such areas do exist, the Electoral Commission will tend to have a view on how they should be interpreted and how it will enforce the law. For example, if your organisation spends money expressing an opinion about political events that may influence a voter, then certain obligations to disclose the amount spent on such activities could become relevant. Once a ‘hook’ is established, it is vital that your organisation is aware of the rules and acts in compliance with them.

General update

On 22 January 2021, the Minister for the Constitution and Devolution wrote to the Members of the Parliamentary Parties Panel to emphasise the government’s view that door-to-door campaigning or leafletting by individual party activists is not considered essential or necessary for the purposes of the lockdown restrictions. The letter can be found here.

The Cabinet Office has now confirmed that local authority and Police and Crime Commissioner elections will go ahead in May 2021, albeit with further changes (in addition to those outlined in the above letter) to ensure the public’s safety. The details are set out in the May 2021 Polls Delivery Plan and the key points to note are:

• £92 million of grant funding will be provided to local authorities to help with the increased cost of running the elections in a COVID-secure way;
• voters will have a choice between in person and absent voting (ie postal and proxy voting), including increased flexibility on applying for a proxy vote in case a voter is self-isolating;
• the government will work to ensure voters, electoral staff, candidates, campaigners and the public are protected from COVID-19 through precautions and provisions in polling stations;
• there will be additional guidance on the application of social distancing and other regulations to the political processes for candidates; and
• returning officers and local authorities will be supported in the delivery of the elections.

Next time

In the next entry, we will consider the framework regulating the control of political donations.