Electoral Law [2022] SLR 256 (March 2022)


Law Commission



Reforming the law

Scottish Law Commission

promoting law reform

Electoral Law

A joint final report

HC145

SG/2020/35

Law Com No 389


Scot Law Com No 256


Law

Commission

Reforming the law

Scottish Law Commission

promoting law reform


Law Commission of England and Wales

Law Commission No 389

Scottish Law Commission

Scottish Law Commission No 256

Electoral Law

A joint final report

Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965

Laid before the Scottish Parliament by the Scottish Ministers

Presented to the National Assembly for Wales

Ordered by the House of Commons to be printed on 16 March 2020

HC 145

SG/2020/35

© Crown copyright 2020

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Stationery Office

The Law Commissions

The Law Commission of England and Wales and the Scottish Law Commission were set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Right Honourable Lord Justice Green, Chair

Professor Sarah Green

Professor Nick Hopkins

Professor Penney Lewis

Nicholas Paines QC

The Chief Executive of the Law Commission of England and Wales is Phil Golding.

The Law Commission is located at 1st Floor, Tower, 52 Queen Anne’s Gate, London, SW1H 9AG.

The Scottish Law Commissioners are:

The Right Honourable Lady Paton, Chair

Kate Dowdalls QC

Professor Frankie McCarthy

The Chief Executive of the Scottish Law Commission is Malcolm McMillan.

The Scottish Law Commission is located at 140 Causewayside, Edinburgh, EH9 1PR.

The terms of the report were agreed on 27 February 2020.

The text of this report is available at

http://www.lawcom.gov.uk/project/electoral-law

http://www.scotlawcom.gov.uk/publications/

iv


Contents

page

Glossary of terms

Outline of this report

The stages of the project

Terms of reference

Elections and referendums within scope

Law reform and policy

Devolution and a tripartite reform project

Acknowledgments

Introduction

How did electoral law become so complex?

Rationalising fragmented legislation into a single consistent legislative framework governing all elections

The balance between primary and secondary legislation

Rationalising election law within the devolutionary framework

Consultees’ views on devolution and rationalising electoral laws

Devolution and our recommended legislative framework

Conclusion on a rationalised electoral law framework

Electoral laws should be consistent across elections, subject to differentiation due to the voting system or some other justifiable principle or policy

Our specimen draft Standard Elections rules

Introduction

Ceremonial and “acting” returning officers in england and wales

Legislative framework for management and oversight of elections

Powers of direction

Cooperation between directing officers and local returning officers

An example of powers of direction: our specimen drafting

Administrative areas

Designation and review of polling districts

Appeals against designations of administrative areas

Introduction

Franchise

Residence

Special category electors

Registration generally

Simplifying and restating the provisions on maintaining and accessing

the register

Primary legislation should contain core registration principles

The deadline for registration

A single electoral register in law

Secondary legislation to contain detailed administrative rules on

registration

Our technical recommendations aimed at restating the law on

electoral registration

Specific problems in electoral registration

Making registration systems capable of exporting data to and

interacting with each other

EU citizens’ declaration of intent to vote in the UK

The issue of registration at a second residence

Acknowledging in legislation the possibility of satisfying the residence

test in more than one place

Should the law lay down factors to be considered by registration

officers when registering an elector at a second residence?

Should electors applying to be registered in respect of a second home

be required to make a declaration supporting their application?

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?

Introduction

The secret ballot

Applying the secrecy provision in the modern context

Requiring secret documents to be stored securely

Qualified secrecy

Voter identification at the poll

Ballot paper design and content

Promoting access by voters with disabilities

Introduction

Absent voting entitlement

Absent voting records

Restrictions on proxy voting

Administration of absent voter status

Special polling stations in Northern Ireland

The form of absent voter applications

Waiver of the requirement to provide a signature for postal vote application forms

The postal voting process

The response to postal voting fraud

Regulating campaigners’ handling of postal votes

Introduction

The nomination paper

A single set of papers

Delivery of nomination papers

Adaptations for party lists

Subscribing to a nomination, not a paper

The role of the returning officer

The exception for disqualifications of serving prisoners

Commonly used names

Sham nominations

Voter information and other public notices

Polling notices

Poll cards

The logistics of polling

Political neutrality of electoral administrators

Selection and control of polling stations

Equipment for the poll

The use of force

The polling procedure

Polling rules

Entitlement to vote and prescribed questions

Equal access for voters with disabilities

Voting with the assistance of a companion

The requirement to provide equipment

Events frustrating the poll

Death of a candidate

Emergencies

The classical polling rules

Standardising polling rules

Timing of the count

Representation at the count

Elections using the single transferable vote system

Electronic counting

Standardising the rules

Certification requirements

Introduction

Electoral timetables

Incidence of elections

UK Parliamentary elections

Orientation of timetables

Re-orienting the UK Parliamentary election timetable

Timetable at UK Parliamentary by-elections

Electronic communication of the writ of election

Standardising the legislative timetable at UK elections

Length of elections timetables

Combination of polls

Combinability

Management of combinations

Combined conduct rules

Introduction

The legislative framework for electoral offences

“Corrupt and illegal practices”

The electoral offences

The classical campaign corrupt practice offences: bribery, treating and

undue influence

Bribery and treating

Undue influence

Pressure, duress and trickery: our proposals in consultation

Abuse of influence: our consultation question

Intimidation

Deception

Improper pressure

Conclusion on improper pressure

Consent to prosecution

Imprinting online material

Other illegal practices targeting campaign conduct

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?

Should the offence of falsely stating that another candidate has withdrawn be retained?

Combating electoral malpractice

Intimidation of candidates and campaigners

CHAPTER 12: REGULATION OF CAMPAIGN EXPENDITURE

Core campaign regulation

Expense limits calculated by a formula

Simplifying the provisions on expenses returns

Location of election agents’ offices

Powers and sanctions for candidate expenses offences

New challenges in campaign regulation

Online campaigning

Notional expenditure and the responsibilities of election agents

CHAPTER 13: LEGAL CHALLENGE

Introduction

The grounds of challenge

The doctrine of “votes thrown away”

Positively stating the grounds for challenging an election in legislation

The role of agents

Parkinson v Lewis

Distinguishing between the civil and criminal aspects of corrupt and illegal practices

Defects in nomination papers

How should disqualification affect the result of the election?

The procedure for bringing an election petition

A public interest petitioner?

Protective costs orders or protective expenses orders

Returning officers should have standing to bring petitions

Informal complaints

CHAPTER 14: REFERENDUMS

Introduction

Developments since the consultation paper

National referendums

The Referendums (Scotland) Act 2020

Our recommendations on the framework for conducting national referendums

Local referendums

Legal framework

Legal challenge of local referendums

Neighbourhood planning referendums

180

181

181

Parish polls

Purpose of parish polls Our recommendations

182

182

183

CHAPTER 15: RECOMMENDATIONS

185

GLOSSARY OF TERMS

The 1983 Act

The Representation of the People Act 1983.

The 1985 Act

The Representation of the People Act 1985.

Absent voting

Voting without personally attending at a polling station: either postal voting or voting by proxy.

Additional member systems (AMS)

Systems of voting in which, in addition to candidates elected by the first past the post system, further members of the elected body are elected by a different voting system such as the party list.

Candidate’s agent

The legislation generally requires a person to be appointed by a candidate to perform certain functions in connection with an election on the candidate’s behalf. Other persons acting in support of a particular candidate are also referred to as the candidate’s agents, and misconduct by such agents is capable of invalidating a candidate’s election.

Assisted voting

Voting with the assistance of a companion, or that of the presiding officer.

The canvass/ canvass form

The process of identifying people who are qualified to vote, for the purpose of entering them on the local electoral register. It normally involves sending a canvass form to each household in the area.

The corresponding number list

A list supplied to a polling station. When ballot papers are issued to voters, the ballot paper number is entered on the list opposite the voter’s electoral register number. The list can be used if necessary for vote tracing.

Chief Counting Officer

The person with overall responsibility to conduct a national referendum, and sometimes a local referendum.

Chief Electoral

Officer for

Northern Ireland

The official who is the returning officer and electoral registration officer for all elections in Northern Ireland and is in charge of the Electoral Office for Northern Ireland.

The classical rules

A term we use to refer to the set of rules governing Parliamentary and local government elections originating in the Victorian reforms of 1872 and 1883 and now found primarily in the Representation of the People Act 1983.

An early general election

A term used in the Fixed-term Parliaments Act 2011 to describe a general election occurring as a result of a vote in Parliament rather than at a fixed interval.

Election-specific legislation

Legislation governing elections to a particular elected body or office.

Electoral

Commission

The independent statutory body that regulates political party and campaign finance in the United Kingdom, and sets standards and provides guidance on the administration of elections. The Commission is also tasked with administering national referendums.

An election court

The court constituted to hear an election petition.

Election petition

The legal process by which an election can be challenged before an election court.

Electoral

Management

Board for Scotland

The body which has the general function of co-ordinating the administration of local government elections in Scotland, assisting local authorities and others in carrying out their functions and promoting best practice.

First past the post

The traditional voting system in which the candidate who gains the most votes is elected.

Franchise

The right of suffrage; the legal expression of who is eligible to vote.

Greater London

Authority (GLA)

The Greater London Authority consists of the Mayor of London and the 25 member London Assembly. The Mayor is elected using the supplementary vote system. There are two types of member of the London Assembly. Constituency members are elected by constituencies within London during the first past the post system. London members are elected on a London-wide basis using the party list system.

Household registration system

A term we use to describe the former process of registering voters on the basis of a completed canvass form. Household registration has been replaced in Great Britain by individual electoral registration, which has been in place in Northern Ireland since 2002.

Individual electoral registration

The process of registering electors on the basis of an application to be registered made by each individual.

The local

government model

A term we use to describe those features of the classical rules that are specific to local government elections.

The parliamentary model

A term we use to describe those features of the classical rules that are specific to UK Parliamentary elections.

The party list system

A system of voting in which electors vote for lists of candidates presented by registered political parties as well as for independent (non-party) candidates.

Voting in person

Voting in person at a polling station, rather than postal voting or voting by proxy.

Judicial review

The process for legal challenge, before the High Court or in Scotland the Court of Session, of public and administrative acts and decisions.

Poll clerks

Officials appointed by the returning officer to assist the presiding officer at a polling station.

Polling district

Part of an electoral area served by a particular polling station.

Polling place

An area or building within a polling district designated by the local authority as the area or place in which a polling station is to be set up.

Polling station

The set of apparatus for voting in person, usually consisting principally of a table at which polling clerks mark the polling station register and issue ballot papers, booths in which voters can privately mark their ballot papers and a ballot box or boxes into which marked ballot papers are inserted. A room within a building can contain more than one polling station.

Postal voting

Casting a vote on a ballot paper which is sent by post to the returning officer, accompanied by a postal voting statement; we refer to the postal voting statement and the ballot paper together as postal voting papers. Postal voting papers can also be handed in at a polling station.

Postal voting statement

A declaration in a prescribed form that a person voting by post is entitled to cast the vote.

Presiding officer

The official appointed by the returning officer to preside over a particular polling station.

Primary legislation

Legislation contained in an Act of the UK Parliament, Scottish Parliament, Welsh Parliament, or Northern Ireland Assembly.

Principal areas

The term used in legislation to refer to counties, districts, boroughs and county boroughs in England and Wales.

Proxy voting

Casting a vote through a “proxy” appointed to cast the vote in person or by post on an elector’s behalf.

Registered political party

A political party that is registered by the Electoral Commission under the Political Parties, Elections and Referendums Act 2000.

Registration officer

An official of a local authority charged with maintaining a register of people residing in the local authority area, who are qualified to vote at elections held in the area.

Returning officer

The official charged with conducting an election in a particular area and making a “return” of the result. Currently in England and Wales the returning officer for Parliamentary elections is a dignitary such as the sheriff of a county and most of the returning officer’s functions are discharged by an acting returning officer.

Secondary legislation

Legislation in the form of Regulations made under law-making powers conferred (usually) upon the Secretary of State or Ministers.

The single transferable vote (STV)

A voting system under which voters cast votes for more than one candidate, ranked in order of preference. The successful candidates are those whose vote reaches a 'quota' determined by the size of the electorate and the number of positions to be filled. The counting of voters proceeds in stages. At each stage the lowest scoring candidate is eliminated and votes cast for that candidate are transferred to the candidate marked next in order of preference on the ballot paper. Where a candidate’s vote reaches the quota at any stage, a proportion of the votes cast for that candidate are transferred to the candidate marked next in order of preference on the ballot paper. The process is repeated until all the seats are filled.

The

supplementary vote

A voting system under which voters cast a first and second preference vote; if no candidate secures more than half of the first preference votes, the second preference votes are taken into account.

Tendered ballot paper or tendered vote

A ballot paper or vote cast by a voter who appears to have already voted in person or through a proxy or to be on the postal voting list. If the voter denies having voted or having applied for a postal vote, they must be issued with a ballot paper which is to be kept separately once marked. An election court can order the vote to be counted if satisfied it is valid.

Verification

The process of reconciling the number of ballot papers received from a polling station at the count with the number of papers issued to the polling station in question.

Vote tracing

Using the corresponding number list to trace the ballot paper issued to a particular voter. This can generally only be done by order of an election court where voting irregularities are suspected.

Voting system

The system for identifying the successful candidate[s] on the basis of the votes cast; examples include first past the post, the party list system, the single transferable vote and the supplementary vote.

Warrant for a writ of by-election

The step taken by the Speaker of the House of Commons to cause the Clerk of the Crown in Chancery to issue a writ of by-election to the returning officer.

Writ of election or by-election

A Royal document communicating to the returning officer the calling of a general election or by-election.

xvi


Electoral Law: a joint final report

To the Right Honourable Robert Buckland QC MP, Lord Chancellor and Secretary of State for Justice and the Scottish Ministers

OUTLINE OF THIS REPORT

THE STAGES OF THE PROJECT

TERMS OF REFERENCE

To review the law relating to the conduct of elections and referendums in the UK, including challenges and associated criminal offences, but excluding:

and

ELECTIONS AND REFERENDUMS WITHIN SCOPE

LAW REFORM AND POLICY

DEVOLUTION AND A TRIPARTITE REFORM PROJECT

ACKNOWLEDGMENTS

INTRODUCTION

HOW DID ELECTORAL LAW BECOME SO COMPLEX?

voting system.13

RATIONALISING FRAGMENTED LEGISLATION INTO A SINGLE CONSISTENT LEGISLATIVE FRAMEWORK GOVERNING ALL ELECTIONS

The balance between primary and secondary legislation

Rationalising election law within the devolutionary framework

Devolved competence in Scotland

the Scotland Act 1998 which provides Scottish Ministers with the power to make provision about elections, including:

Devolved competence in Wales

Consultees’ views on devolution and rationalising electoral laws

Devolution and our recommended legislative framework

Conclusion on a rationalised electoral law framework

Recommendation 1.

Electoral laws should be consistent across elections, subject to differentiation due to the voting system or some other justifiable principle or policy

Recommendation 2.

OUR SPECIMEN DRAFT STANDARD ELECTIONS RULES

INTRODUCTION

CEREMONIAL AND “ACTING” RETURNING OFFICERS IN ENGLAND AND WALES

In reality, their only legal role is to receive the writ which triggers the election, declare the result and return the writ (functions reserved to them by section 28(2) of the 1983 Act). Section 28(1) of the 1983 Act provides that the returning officer’s other duties (which include all the administratively significant aspects of running an election) are performed by an “acting” returning officer. In England and Wales the acting returning officer is also the registration officer within the constituency. In both our consultation paper and interim report we took the view that this additional layer of complexity is redundant and confusing.42

We see the merit in retaining the ability for the oral declaration in front of the press to be carried out by a local dignitary, in the spirit of retaining tradition. However we do not think a rationalised law applying to all elections in England and Wales should be complicated by allocating some returning officer functions to a dignitary. We certainly do not consider that the writ should be addressed to, or returned by, anyone other than the official who is responsible for administering the election. We therefore consider that returning officer functions should be bestowed on the person in England and Wales who is currently the acting returning officer.

Recommendation 3.

LEGISLATIVE FRAMEWORK FOR MANAGEMENT AND OVERSIGHT OF ELECTIONS

Recommendation 4.

POWERS OF DIRECTION

Cooperation between directing officers and local returning officers

Recommendation 5.

An example of powers of direction: our specimen drafting

ADMINISTRATIVE AREAS

Designation and review of polling districts

Appeals against designations of administrative areas

Recommendation 6.

INTRODUCTION

FRANCHISE

Recommendation 7.

RESIDENCE

Recommendation 8.

Special category electors

Recommendation 9.

REGISTRATION GENERALLY

Simplifying and restating the provisions on maintaining and accessing the register

Primary legislation should contain core registration principles

The deadline for registration

A single electoral register in law

Secondary legislation to contain detailed administrative rules on registration

who provided a response to this proposal agreed with it, and we maintain our recommendation.

Our technical recommendations aimed at restating the law on electoral registration

Recommendation 10.

Recommendation 11.

Recommendation 12.

Recommendation 13.

Recommendation 14.

SPECIFIC PROBLEMS IN ELECTORAL REGISTRATION

Making registration systems capable of exporting data to and interacting with each other

Recommendation 15.

EU citizens’ declaration of intent to vote in the UK

The issue of registration at a second residence

Acknowledging in legislation the possibility of satisfying the residence test in more than one place

The starting point of this proposal is that a voter should be able to be registered at more than one address. It is time to review whether this should be possible, particularly in light of the facilities now afforded to register to vote shortly before elections. At the time when Fox v Stirk was before the courts, there was no “rolling registration” - questions of residence being assessed with reference to a fixed date with only two registers published each year, rather than an annual register with regular monthly updates and one or more “election registers”. If a voter had not taken steps at the correct time to get on the register, they would lose their vote. Postal voting was not available on demand. Parliamentary elections did not occur on a fixed date, making it sensible to give options to voters who may be at a different address depending on when the election took place.

As a matter of policy consideration with the law as it stood in 1970 and based on a first principles consideration of “putting the voter first”, the decision in Fox v Stirk cannot be faulted. The immediate cause of the litigation was the then recent

reduction in the voting age from 21 to 18. Although not explicitly stated in the decision, the court presumably thought that registration at term time addresses was necessary to enfranchise students who did not wish to travel back to their “home address”. Whether courts would have come to the same decision had the issue remained open until today to be litigated on first principles under the very different registration scheme now operating, is genuinely open to question.

... At every General election, voters with the wealth to be able to register to vote in consequence of the ownership of two substantial homes in different constituencies get to decide tactically where they are best to vote for their party of preference. At local elections, they may be able to vote twice. It is difficult to see, with 21st Century notions of democracy, how the fortune of holding office [or wealth] should give a voter the opportunity to vote in multiple elections or make tactical voting decisions.

Recommendation 16.

Should the law lay down factors to be considered by registration officers when registering an elector at a second residence?

Recommendation 17.

Should electors applying to be registered in respect of a second home be required to make a declaration supporting their application?

Recommendation 18.

4.66 Applicants for registration in respect of a second home should be required to state that fact. Secondary legislation may prescribe how registration officers should seek to acquire the information required to decide the application.

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?

Recommendation 19.

INTRODUCTION

THE SECRET BALLOT

Applying the secrecy provision in the modern context

Recommendation 20.

Requiring secret documents to be stored securely

Recommendation 21.

Qualified secrecy

Recommendation 22.

Voter identification at the poll

BALLOT PAPER DESIGN AND CONTENT

Promoting access by voters with disabilities

Recommendation 23.

Recommendation 24.

INTRODUCTION

ABSENT VOTING ENTITLEMENT

Recommendation 25.

Secondary legislation should contain the law on the administration of postal voter status.

“periodic” absent vote) or on a particular polling day (a “specific” absent vote).147 We could not conceive of a reason why an elector would choose to cast an absent vote at one election, but to vote in person in another election held in the same place on the same day.

Recommendation 26.

Absent voting records

Recommendation 27.

Restrictions on proxy voting

ADMINISTRATION OF ABSENT VOTER STATUS

Special polling stations in Northern Ireland

The form of absent voter applications

However, as we indicated in our interim report and chapter 5 of this report, we continue to take the view that such forms should be prescribed in secondary legislation.165

Recommendation 28.

Waiver of the requirement to provide a signature for postal vote application forms

significantly broad. Expanding the list of individuals who can attest proxy vote applications is and will remain a matter of policy for governments exercising their regulation-making powers. 178 We maintain our recommendation.

Recommendation 29.

THE POSTAL VOTING PROCESS

Recommendation 30.

Recommendation 31.

THE RESPONSE TO POSTAL VOTING FRAUD

Regulating campaigners’ handling of postal votes

INTRODUCTION

THE NOMINATION PAPER

A single set of papers

Recommendation 32.

Delivery of nomination papers

Recommendation 33.

Adaptations for party lists

Recommendation 34.

Subscribing to a nomination, not a paper

Recommendation 35.

THE ROLE OF THE RETURNING OFFICER

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.

The exception for disqualifications of serving prisoners

None of these grounds for disqualification, even if obvious, allow the returning officer to reject a nomination paper.

Recommendation 36.

Commonly used names

Sham nominations

candidature or any other candidature at a relevant election],237 and -

Recommendation 37.

VOTER INFORMATION AND OTHER PUBLIC NOTICES

Polling notices

Poll cards

Recommendation 38.

Recommendation 39.

THE LOGISTICS OF POLLING

station.

Political neutrality of electoral administrators

Recommendation 40.

Selection and control of polling stations

Recommendation 41.

Equipment for the poll

Recommendation 42.

The use of force

Recommendation 43.

THE POLLING PROCEDURE

Polling rules

Folding and showing the back of the ballot paper

Entitlement to vote and prescribed questions

Recommendation 44.

Recommendation 45.

Recommendation 46.

EQUAL ACCESS FOR VOTERS WITH DISABILITIES

Voting with the assistance of a companion

In some cases, not only of care homes, but also in families with larger numbers of disabled members, neighbours supporting each other, or third sector support organisations many individuals may request to be accompanied and supported by the same person. This should be allowed, as trust in the voting process and support provided is key to supporting disabled people who wish to vote to vote.

The requirement to provide equipment

Recommendation 47.

Recommendation 48.

EVENTS FRUSTRATING THE POLL

Death of a candidate

Distinction between party and independent candidates

Approach to party list elections

Local government elections

Recommendation 49.

Recommendation 50.

Recommendation 51.

Emergencies

Abolishing the rule on rioting and open violence

A power to alter the application of electoral law

should have the power to alter the application of electoral law to mitigate the obstruction or frustration of the poll by an emergency affecting a significant portion of electors in their area;

by the Electoral Commission in the case of national disruptions; and

corresponding power when unable to communicate with the returning officer.

Recommendation 52.

Recommendation 54.

8.95 If an event occurs that affects a significant portion of the UK at an election taking place over more than one electoral area, the above power should be exercised subject to instruction by the Electoral Commission.

Chapter 9: The count and declaration of the result

THE CLASSICAL POLLING RULES

Standardising polling rules

Recommendation 55.

Recommendation 56.

Timing of the count

Recommendation 57.

Representation at the count

Recommendation 58.

ELECTIONS USING THE SINGLE TRANSFERABLE VOTE SYSTEM

Recommendation 59.

ELECTRONIC COUNTING

Standardising the rules

Certification requirements

Recommendation 60.

Recommendation 61.

Chapter 10: Timetables and combination of polls

INTRODUCTION

ELECTORAL TIMETABLES

Incidence of elections

UK Parliamentary elections

determines polling day and is, in effect, an administrative timetable only. Polling day is inserted into the timetable by the incidence rule provided in the 2011 Act.328

Orientation of timetables

Re-orienting the UK Parliamentary election timetable

Recommendation 62.

Timetable at UK Parliamentary by-elections

This means polling day would take place between days 26 and 30 after the warrant for the writ of by-election is issued, as opposed to between days 23 and 27 (as currently provided).

Recommendation 63.

Electronic communication of the writ of election

Recommendation 64.

Standardising the legislative timetable at UK elections

Recommendation 65.

Length of elections timetables

Recommendation 66.

COMBINATION OF POLLS

Recommendation 67.

Combinability

objection based on political disjunction or voter confusion, should not result in the polls coinciding “uncombined”. Rather this should result in the delaying of one of the elections by a period of 21 days.361

Recommendation 68.

Recommendation 69.

Management of combinations

Recommendation 70.

Combined conduct rules

and

How our specimen drafting deals with combination

29 - (3) At a combined poll, the same ballot box may be used for the poll at the election and the poll at any other relevant election or referendum, if the person who, by virtue of regulation 4 of the Combination Regulations, is to discharge the function conferred by this rule, thinks it is appropriate.

Recommendation 71.

Chapter 11: Electoral offences

INTRODUCTION

THE LEGISLATIVE FRAMEWORK FOR ELECTORAL OFFENCES

“CORRUPT AND ILLEGAL PRACTICES”

Recommendation 72.

THE ELECTORAL OFFENCES

The classical campaign corrupt practice offences: bribery, treating and undue influence

Bribery and treating

Mawrey QC, in his response, agreed that the definition of bribery should be simplified, but stressed that any reformed version of the offence “... should continue to include the kind of misuse of public money to target groups of potential voters [like] that ... present at Tower Hamlets. We must avoid going back to an over-simplified view of bribery as being confined to money paid to individual voters”.396

Recommendation 73.

Recommendation 74.

Undue influence

Government plans to reform undue influence

cause the elector harm; and

“intimidation, including (but not limited to) intimidation inside and outside a polling station”.407

Pressure, duress and trickery: our proposals in consultation

Intimidation: an argument for “lowering the bar”?

The court is aware that electoral law is the subject of a current investigation by the Law Commission and that part of its remit is the re-defining and reclassification of electoral offences. In the view of this court, section 115(2) sets the bar much too high for dealing with intimidatory behaviour during the conduct of the poll.412

Government has stated its intention to include “intimidation including (but not limited to) intimidation inside and outside a polling station”. The Government’s response to that consultation notes that intimidation:

is already implicitly included in the Representation of the People Act 1983 offence of undue influence. However, for intimidation to be captured it has to reach the level of conduct described in the offence, for example violence or threats of violence and duress.

Abuse of influence: our consultation question

anyone abusing a position of influence to seek to persuade someone to vote or not vote would be placing pressure / duress on that person. Therefore, we are not currently persuaded of the need to create a specific new ‘abuse of influence’ offence but instead consider that this should form part of the pressure / duress component of the reformed undue influence offence.419

Should the new offence expressly target threats of spiritual injury?

In practice, with the sole exception of the current Tower Hamlets case,420 spiritual intimidation has been confined to Roman Catholic clergy in Ireland acting in favour of Irish nationalist candidates, and it surely is not inappropriate to comment that such an interpretation was being made by a Protestant judiciary guided by a unionist government.421

Though it is true to say that the world has moved on considerably since 1892, there is little real difference between the attitudes of the faithful Roman Catholics of County Meath422 at that time and the attitudes of the faithful Muslims of Tower Hamlets.423

There is a line which should not be crossed between the free expression of political views and the use of the power and influence of religious office to convince the faithful that it is their religious duty to vote for or against a particular candidate. It does not matter whether the religious duty is expressed as a positive duty - ‘your allegiance to the faith demands that you vote for X’ - or a negative duty - ‘if you vote for Y you will be damned in this world and the next’.426 (emphasis added).

Although the Law Commissions’ aim in redrafting undue influence is intended to promote better understanding of the offence, the loss of a specific reference to religious / spiritual influence could reduce understanding by those in positions of religious authority of the need to express political views in a responsible way (so as not to distort the will of voters), and could increase reluctance on the part of those who police electoral fraud to act on abuses. The potential for spiritual leaders, through their pronouncements, to abuse the convictions of religious voters is unique and does not exist in relation to statements by other authorities such as the media, business or other special interest groups whose statements seek to persuade people to vote for a particular candidate. The latter’s statements can be readily dismissed by any voter as opinion, whereas those of spiritual leaders may cause religious voters to believe they have no real choice in how they should vote.435

Reforming the offence of undue influence

Intimidation

Deception

Improper pressure

Improper threats

employer or landlord may be within his or her strict legal rights in terminating a contract of employment or a lease. Nevertheless, election law seeks to prevent such improper pressure being applied to voters, currently by proscribing the threat or infliction of any damage, harm or loss.427

Religious and other influence

Conclusion on improper pressure

Recommendation 75.

Consent to prosecution

Recommendation 76.

Imprinting online material

2013 Act, but in the case of non-printed material, restricts its application to cases where:

the publication can reasonably be regarded as being done with a view to promoting or procuring a particular outcome in the referendum.441

Committee.448 The Government is now developing technical proposals for a digital imprint regime.449 For completeness, we repeat the recommendation from our interim report here, omitting the recommendation of a reasonable practicability defence.

Recommendation 77.

OTHER ILLEGAL PRACTICES TARGETING CAMPAIGN CONDUCT

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?

11.74 It is currently an illegal practice under section 97 of the 1983 Act to disturb a “lawful public meeting” held in a place where an election is imminent. A key ingredient of the crime is that the meeting must be lawful. The textbooks do not make it clear what makes a meeting unlawful, other than the meeting amounting to an obstruction of the highway in breach of a public park byelaw. In our consultation paper, we took the view that the “lawfulness” of the meeting was irrelevant, and that the general criminal law contained in the Public Meeting Act 1908 was sufficient to regulate the conduct of the general public.450

11.75 Of the 31 consultees who answered this question, 19 agreed that the illegal practice should only apply to candidates and those supporting them. Twenty-two consultees agreed with the second part of the question, that the illegal practice of disturbing election meetings should no longer be predicated on the lawfulness of the meeting.451

11.76 Some consultees argued that this offence should be abolished completely. SOLAR (whose response was endorsed by the Electoral Management Board for Scotland) thought that the offence was unnecessary, and that disturbances of meetings were better dealt with under the general criminal law.452 However, this would mean that candidates or their supporters would no longer be subject to the public law consequences of committing an illegal practice, outlined above.453 A general criminal offence would not be as effective a means of holding candidates and their supporters accountable for unfair campaign practices.

11.77 Other consultees thought that the offence should no longer be predicated on the meeting being “lawful”, but argued against the restriction of the offence to candidates and their supporters. They argued that the disturbance of an election meeting by anyone is a serious matter with the potential to frustrate the democratic process.454

11.78 We remain of the view expressed in our interim report that the general criminal offence under section 1 of the Public Meeting Act 1908 suffices to criminalise the disturbance of meetings by, for example, pressure groups. A pressure group might, for example, disrupt a meeting for the purpose of promoting a particular candidate. If the group does so with the candidate’s approval or support, that candidate will be responsible in election law for their actions as agents. A distinction between supporters of candidates and members of the general public may be difficult to make, but will be a question of fact for the court. We were therefore not persuaded by these objections.

11.79 We recommend that the public in general should remain criminally liable for any breach of the Public Meeting Act 1908, while a candidate and their supporters should be both criminally liable and liable to disqualification under a reformed electoral offence that is not predicated on the lawfulness of the meeting.455

Should the offence of falsely stating that another candidate has withdrawn be retained?

11.80 Section 106(5) of the 1983 Act makes it an illegal practice, before or during an election, to state falsely that a candidate has withdrawn from the election, for the purpose of promoting or procuring the election of another candidate.456 Our consultation paper asked whether the offence should be retained.

11.81 Of the 34 consultees who answered this particular question, 29 considered that candidates should not be permitted to state falsely that another candidate had withdrawn. Consultees were more divided on whether it was better to regulate this conduct through our restatement of undue influence by deception, or to retain a separate offence. Our interim report expressed our view that if a deliberately false statement was effective to convince voters that a candidate had withdrawn, it would amount to undue influence by deception. We therefore concluded that it was unnecessary to maintain a separate overlapping offence.457

Recommendation 78.

Recommendation 79.

COMBATING ELECTORAL MALPRACTICE

Recommendation 80.

INTIMIDATION OF CANDIDATES AND CAMPAIGNERS

a new electoral offence of intimidation of candidates and campaigners by the means of applying electoral sanctions to existing offences of intimidatory behaviour, including, but not limited to, the offences identified by the Committee in its report.467

CORE CAMPAIGN REGULATION

Recommendation 81.

Recommendation 82.

EXPENSE LIMITS CALCULATED BY A FORMULA

Recommendation 83.

SIMPLIFYING THE PROVISIONS ON EXPENSES RETURNS

Recommendation 84.

Recommendation 85.

LOCATION OF ELECTION AGENTS’ OFFICES

POWERS AND SANCTIONS FOR CANDIDATE EXPENSES OFFENCES

At local government elections in England and Wales there can be up to 30,000 candidates standing in any one year. If we were to obtain new powers and sanctions for candidate offences at these elections it is likely that this would have significant resource implications for the Electoral Commission.495

NEW CHALLENGES IN CAMPAIGN REGULATION

Online campaigning

Regulatory responses outside electoral law: data protection and platform responsibility

Concern about blurring the line between national and constituency expenditure

Other concerns have been raised about the transparency of spending on and targeting of digital political advertising as well. The UK’s election rules set spending limits to stop campaigners being able to spend so much more money than their opponents that they would gain an unfair advantage. As part of this, campaigners must report how much they have spent to produce and send targeted messages to voters using digital channels. This includes messages targeted at specific groups of people in a particular constituency.503

Concern about tracing micro-targeted adverts back to a campaign

Notional expenditure and the responsibilities of election agents

In order for this scheme effectively to govern the conduct of candidates and election agents, the law must be capable of being accessed, understood and applied by candidates and their election agent, including those who do not have experience of electoral campaign laws. Put simply, from a basic rule of law viewpoint, the law must be clear enough to achieve its policy aim of ensuring that candidates’ conduct conforms to its requirements.513

INTRODUCTION

THE GROUNDS OF CHALLENGE

The doctrine of “votes thrown away”

Recommendation 86.

Positively stating the grounds for challenging an election in legislation

The role of agents

Parkinson v Lewis

No local government election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of [elections] rules ... if ... (a) the election was so conducted as to be substantially in accordance with the law as to elections and (b) the act or omission did not affect its result.525 (emphasis added)

Distinguishing between the civil and criminal aspects of corrupt and illegal practices

... we agree with the Applicant that the statutory language used in the 1983 Act, which refers to “personal guilt”, “conviction” and “offence” does carry with it connotations of criminal guilt, and we note such terminology may be infelicitous when applied to election proceedings which are clearly civil in nature.

Recommendation 87.

Recommendation 88.

Recommendation 89.

Defects in nomination papers

Recommendation 90.

How should disqualification affect the result of the election?

Recommendation 91.

Recommendation 92.

THE PROCEDURE FOR BRINGING AN ELECTION PETITION

Recommendation 93.

Recommendation 94.

Recommendation 95.

A public interest petitioner?

Protective costs orders or protective expenses orders

Recommendation 96.

Returning officers should have standing to bring petitions

Recommendation 97.

Informal complaints

Recommendation 98.

INTRODUCTION

Developments since the consultation paper

NATIONAL REFERENDUMS

The Referendums (Scotland) Act 2020

Our recommendations on the framework for conducting national referendums

Recommendation 99.

Recommendation 100.

LOCAL REFERENDUMS

Legal framework

Recommendation 101.

Legal challenge of local referendums

Recommendation 102.

Neighbourhood planning referendums

Recommendation 103.

PARISH POLLS

Purpose of parish polls

Our recommendations

Recommendation 104.

Recommendation 105.

Recommendation 106.

Recommendation 1.

Paragraph 2.47

Recommendation 2.

Paragraph 2.56

Recommendation 3.

Paragraph 3.11

Recommendation 4.

Paragraph 3.16

Recommendation 5.

Paragraph 3.28

Recommendation 6.

Paragraph 3.42

Recommendation 7.

15.7 The franchises for all elections should be set out in primary legislation.

Paragraph 4.6

Recommendation 8.

Paragraph 4.12

Recommendation 9.

Paragraph 4.15

Recommendation 10.

Paragraph 4.34

Recommendation 11.

Paragraph 4.35

Recommendation 12.

Paragraph 4.36

Recommendation 13.

Paragraph 4.37

Recommendation 14.

Paragraph 4.38

Recommendation 15.

Paragraph 4.45

Recommendation 16.

15.16 Primary legislation should explicitly acknowledge the possibility of satisfying the residence test in more than once place.

Paragraph 4.56

Recommendation 17.

Paragraph 4.62

Recommendation 18.

Paragraph 4.66

Recommendation 19.

Paragraph 4.73

Recommendation 20.

Paragraph 5.10

Recommendation 21.

15.21 The obligation to store sealed packets after the count should specify that they should be stored securely.

Paragraph 5.15

Recommendation 22.

Paragraph 5.22

Recommendation 23.

Paragraph 5.34

Recommendation 24.

Paragraph 5.35

Recommendation 25.

Secondary legislation should contain the law on the administration of postal voter status.

Paragraph 6.6

Recommendation 26.

Paragraph 6.10

Recommendation 27.

Paragraph 6.14

Recommendation 28.

15.28 Absent voting applications should substantially adhere to prescribed forms set out in secondary legislation.

Paragraph 6.28

Recommendation 29.

Paragraph 6.33

Recommendation 30.

15.30 A uniform set of rules should govern the postal voting process in Great Britain.

Paragraph 6.38

Recommendation 31.

Paragraph 6.39

Recommendation 32.

Paragraph 7.10

Recommendation 33.

Paragraph 7.18

Recommendation 34.

Paragraph 7.23

Recommendation 35.

Paragraph 7.28

Recommendation 36.

Paragraph 7.38

Recommendation 37.

Paragraph 7.52

Recommendation 38.

Paragraph 8.13

Recommendation 39.

Paragraph 8.14

Recommendation 40.

Paragraph 8.19

Recommendation 41.

Paragraph 8.23

Recommendation 42.

Paragraph 8.28

Recommendation 43.

Paragraph 8.33

Recommendation 44.

Paragraph 8.45

Recommendation 45.

Paragraph 8.46

Recommendation 46.

Paragraph 8.47

Recommendation 47.

Paragraph 8.66

Recommendation 48.

Paragraph 8.67

Recommendation 49.

Paragraph 8.77

Recommendation 50.

Paragraph 8.78

Recommendation 51.

Paragraph 8.79

Recommendation 52.

15.52 The existing rule, requiring the presiding officer to adjourn or open violence, should be abolished.

a poll in cases of rioting

Paragraph 8.93

Recommendation 53.

Paragraph 8.94

Recommendation 54.

Paragraph 8.95

Recommendation 55.

15.55 A single standard set of rules in primary legislation should govern the count at all elections.

Paragraph 9.6

Recommendation 56.

15.56 The standard counting rules should cater for differences between elections as regards their voting system and how their counts are managed.

Paragraph 9.7

Recommendation 57.

15.57 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.

Paragraph 9.12

Recommendation 58.

Paragraph 9.22

Recommendation 59.

Paragraph 9.30

Recommendation 60.

Paragraph 9.42

Recommendation 61.

Paragraph 9.43

Recommendation 62.

15.62 The UK Parliamentary election timetable should be oriented so that steps in it are counted backwards from polling day.

Paragraph 10.14

Recommendation 63.

Paragraph 10.19

Recommendation 64.

15.64 The writ should be capable of communication by electronic means, in addition to physical delivery.

Paragraph 10.22

Recommendation 65.

Paragraph 10.28

Recommendation 66.

Paragraph 10.38

Recommendation 67.

15.67 The law governing combination of coinciding polls should be in a uniform set of rules for all elections.

Paragraph 10.44

Recommendation 68.

Paragraph 10.49

Recommendation 69.

Paragraph 10.56

Recommendation 70.

Paragraph 10.61

Recommendation 71.

Paragraph 10.70

Recommendation 72.

Paragraph 11.12

Recommendation 73.

Paragraph 11.23

Recommendation 74.

15.74 The electoral offence of treating should be abolished and the behaviour that it captures should where appropriate be prosecuted as bribery.

Paragraph 11.24

Recommendation 75.

Paragraph 11.60

Recommendation 76.

Paragraph 11.63

Recommendation 77.

Paragraph 11.72

Recommendation 78.

Paragraph 11.83

Recommendation 79.

Paragraph 11.84

Recommendation 80.

15.80 A maximum sentence of ten years’ custody should be available in cases of serious

electoral fraud as an alternative to recourse to the common law offence of

conspiracy to defraud.

Paragraph 11.87

Recommendation 81.

Paragraph 12.12

Recommendation 82.

15.82 A single schedule to the legislation should contain the prescribed expense limits and rules governing expenditure and donations.

Paragraph 12.13

Recommendation 83.

Paragraph 12.18

Recommendation 84.

Paragraph 12.23

Recommendation 85.

Paragraph 12.27

Recommendation 86.

15.86 The doctrine of “votes thrown away” should be abolished.

Paragraph 13.10

Recommendation 87.

15.87 The law governing challenging elections should be set out in primary legislation governing all elections.

Paragraph 13.24

Recommendation 88.

15.88 The grounds for correcting the outcome or invalidating elections should be restated and positively set out.

Paragraph 13.25

Recommendation 89.

Paragraph 13.26

Recommendation 90.

Paragraph 13.31

Recommendation 91.

Paragraph 13.35

Recommendation 92.

Paragraph 13.36

Recommendation 93.

Paragraph 13.41

Recommendation 94.

Paragraph 13.47

Recommendation 95.

Paragraph 13.48

Recommendation 96.

Paragraph 13.54

Recommendation 97.

Paragraph 13.57

Recommendation 98.

Paragraph 13.60

Recommendation 99.

Paragraph 14.27

Recommendation 100.

Paragraph 14.28

Recommendation 101.

Paragraph 14.36

Recommendation 102.

Paragraph 14.40

Recommendation 103.

Paragraph 14.44

Recommendation 104.

Paragraph 14.53

Recommendation 105.

Paragraph 14.54

Recommendation 106.

Paragraph 14.55

(signed)       Nicholas Green, Chair

Sarah Green Nick Hopkins

Penney Lewis

Nicholas Paines

Phil Golding, Chief Executive, Law Commission of England and Wales

Ann Paton, Chair Kate Dowdalls Caroline S Drummond

Frankie McCarthy

Malcolm McMillan, Chief Executive, Scottish Law Commission

27 February 2020

CCS0220205190

978-1-5286-1805-2

1    Electoral law: the Urgent Need for Review, Report of the Public Administration and Constitutional Affairs Committee (2017-19) HC 244, p 5.

Our interim report cited 17 pieces of primary legislation and 27 pieces of secondary legislation, a number which has only increased since 2016. See Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, p 5, available at

2    .

3    .

4    .

5    Senedd and Elections (Wales) Act 2020, s 2. This report generally uses the new terminology.

6    Elections to community councils, Health Boards, National Park Authorities and the Crofting Commission in Scotland are outside scope.

7    Intimidation in Public Life, Report of the Committee on Standards in Public Life (December 2017) Cm 9543.

8     (May 2019).

9     Sir Eric Pickles, Securing the ballot: review into electoral fraud (August 2016).

10     We note in particular the Scottish Elections (Reform) Bill, Scottish Elections (Franchise and Representation) Bill, and the Local Government and Elections (Wales) Bill, as well as the recently passed Senedd and Elections (Wales) Act 2020 and the Referendums (Scotland) Act 2020.

11     A full list of consultees and consultation events is contained in our interim report at Appendices B and C; see Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com. A list of members of our Advisory Group is contained in our consultation paper at Appendix B (see Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20).

12     Three new types of voting systems emerged, the supplementary vote, the party list, and the single transferable vote (or STV). A number of elections used a mix of the party list and first past the post, which is called the “additional member system” or AMS. This is sometimes treated as a distinct voting system, which technically it is not - it is an amalgam of two or, in the case of Greater London Authority elections, three voting systems.

13     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 2.4 to 2.15.

14     As above, paras 2.24 to 2.35.

15     Unless the Act confers a power to the Government to amend the Act in particular ways by secondary legislation.

16     Committee on Delegated Powers and Deregulation’s 37th Report for the 1999-2000 Parliamentary session, (1999-2000) HL 130, para 36.

17     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 2.30 to 2.34.

18       Representation of the People Act 1983, sch 1, r 18.

19       Representation of the People Act 2000, sch 4, para 2.

20       Police and Crime Commissioner Elections Order 2012 SI No 1917, art 11 and sch 2.

21       Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 2.10 to 2.16.

22     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 2.31. Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 2.19. See further para 2.40 below regarding legislative consent motions.

23     Elections to the UK Parliament, Northern Ireland Assembly, and local government (district council) elections are excepted from the competence of the Assembly. See Northern Ireland Act 1998, ss 34(4) and 84, and sch 2, paras 2 and 12.

24     The Smith Commission, Report of the Smith Commission for further devolution of powers to the Scottish Parliament (November 2014), available at

https://webarchive.nationalarchives.gov.uk/20151202171017/http://www.smith-commission.scot/ (last visited 3 March 2020); Scotland in the United Kingdom: An enduring settlement (January 2015) Cm 8990, available at

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/397079/Scotland_EnduringSe ttlement_acc.pdf (last visited 3 March 2020).

25     Scotland Act 2016, ss 3 to 9, particularly ss 3(4), 4(1), 4(2) and 5. Combination of polls is discussed in chapter 10.

26     Scotland Act 2016, s 3(4).

27     This includes registering electors and limiting candidates’ expenditure.

28     Scotland Act 2016, s 4(1).

29       Soon to be renamed the Welsh Parliament or Senedd Cymru: see para 1.11 above.

30       Government of Wales Act 2006, sch 7A, Part 2 (Specific Reservations) Reservation, Head B1.

31     The Scotland Act 2016, s 2, amended s 28 of the Scotland Act 1998 to put the Sewel convention into statutory form in relation to matters devolved to the Scottish Parliament. The Wales Act 2017 similarly amended the Government of Wales Act 2006 to include the Sewel Convention at s 107(6).

32     The Scottish Parliament has passed the Referendums (Scotland) Act 2020, and is currently considering the Scottish Elections (Reform) Bill and the Scottish Elections (Franchise and Representation) Bill. In Wales, the Senedd recently passed the Senedd and Elections (Wales) Act, and the Local Government and Elections (Wales) Bill was introduced on 18 November 2019.

33     While this report does not make recommendations in relation to the law of Northern Ireland, we note here that it would be consistent with the current devolutionary position for that Act also to govern elections in Northern Ireland, along with secondary legislation made by the Secretary of State for Northern Ireland.

34     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 2.2.

35    In practice, unintended divergence can be managed through cooperation between governments and stakeholders as policy develops and legislation is drafted; we note by way of example the working partnership between Governments, the Electoral Commission, the Association of Electoral Administrators and the Scottish Assessors’ Association in developing proposals for reform of the annual canvas.

36    .

37     Representation of the People Act 1983, s 36(2).

38     Scottish Elections (Reform) Bill, cl 25.

39     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 3.42 to 3.46.

40       Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 3.13.

41       The “ceremonial” returning officer role does not exist in Scotland or Northern Ireland.

42     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 3.17, and Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 3.3.

43     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 3.3 to 3.8. We note these comments are repeated in the Conservative Party’s evidence to the Public Administration and Constitutional Affairs Committee’s Electoral Law Inquiry;

http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/public-administration-and-constitutional-affairs-committee/electoral-law/written/102694.pdf (last visited 3 March 2020).

44     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 3.9 to 3.17.

45     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 3.13 to 3.16 and the Representation of the People Act 1983, s 23(2).

46     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 3.10.

47     As above, para 3.13.

48     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 3.22.

49     Scottish Elections (Reform) Bill, cl 25, inserting s 4A into the Local Electoral Administration (Scotland) Act

2011.

50     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 3.24.

51     As above, para 3.23.

52     As above, paras 3.38 to 3.41.

53     As above, para 3.41.

54    .

55       Specimen drafting, reg 6(3).

56     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 3.47 to 3.51.

57     As above, para 3.55.

58     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 3.44 and 3.45.

59     As above, paras 3.48 to 3.51.

60     As above, para 3.52.

61     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 3.56.

62     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 3.53 to 3.59.

63     As above, para 3.58.

64     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, Chapter 4.

65     We have brought forward what was recommendation 4-7 earlier in the chapter, and in our new numbering (which runs from recommendations 1 to 107) it is recommendation 9. We have also moved recommendations 4-3 to 4-6 to the end of the chapter, now numbered 16 to 19. Other recommendations have been renumbered accordingly.

66     A summary of the franchises at different types of election can be found in Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 4.3 to 4.10.

67    eu-west-2.amazonaws.com/lawcom-prod-storage-

11jsxou24uy7q/uploads/2015/03/electoral law scoping report.pdf. It is noted that the Scottish Elections (Franchise and Representation) Bill proposes to extend the franchise in relation to Scottish local government and Scottish Parliament elections.

68       Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 4.3.

69       The Scottish Elections (Franchise and Representation) Bill would add prisoners serving sentences of 12

months or less to this list in respect of Scottish Parliamentary and Scottish local government elections; the Senedd and Elections (Wales) Act 2020 will add children aged 16-18 who are looked after by a local authority, or kept in secure accommodation in respect of local government elections in Wales.

70     For further detail, see Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 4.12 to 4.72.

71     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 4.8 to 4.11.

72       As above, para 4.11.

73       As above, para 4.53.

74     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 4.44 to 4.57, 4.90 and 4.91.

75     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 4.53.

76     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 4.92 to 4.171.

77     Northern Ireland operates a different system of individual electoral registration, which has been in place since 2002. The canvass must by law be conducted only once every ten years, while applicants must provide a signature, date of birth and national insurance number in order to be registered.

78     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 4.145; Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 4.57.

79     (September 2019)

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/833308/R eform-of-the-Annual-Canvass-Statement-of-Policy.pdf (last visited 3 March 2020).

80     Representation of the People (Annual Canvass) (Amendment) Regulations 2019 SI No 1451.

81     The Representation of the People (Annual Canvass) (Amendment) (Wales) Regulations 2020 WSI 2020 No 50, came into force on 22 January 2020. The Representation of the People (Annual Canvass) Amendment (Scotland) Order 2020 SSI No 62 came into force on 3 March 2020.

82     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 4.189 and 4.190.

83     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 4.62.

84     As above, para 4.67.

85     We note that academic researchers are exploring the possibility of using distributed ledger technology to update and present electoral registers.

86     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 4.197.

87     As above, para 4.197.

88     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 4.68 and 4.69.

89     (last visited 3 March 2020).

90     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 4.71 to 4.74.

91     [1970] 2 QB 463.

92     Representation of the People Act 1983, s 61(2).

93     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 4.19 to 4.21. We note that any change would have to reflect the scenario in which a voter might apply to be registered at a new address after moving, while still being registered at a previous address, but with no intention of remaining registered at both addresses.

94     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 4.35 to 4.43.

95     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 4.80.

96     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 4.24 to 4.26.

97      As above, paras 4.30 to 4.37.

98      As above, paras 4.38 to 4.43.

99     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 4.82 and 4.83.

100     We note that the existing form already asks applicants whether they live at another address to the one specified on the form. See

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/711618/R egister_to_vote_if_you_re_living_in_England_or_Wales.pdf (last visited 3 March 2020).

101     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 4.46 to 4.52.

102     As above, para 4.52.

103     As noted above, at para 4.49, there is draft legislation before the Scottish Parliament which, if implemented, would restrict electors to voting in only one local authority area at any polls held for local government elections on the same day. It would still be possible however for an individual to be registered in more than one local authority area.

104     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 5.8.

105      As above, para 5.6.

106      As above, para 5.13.

107     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 5.14 to 5.16 and Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 5.6.

108     (last visited 3 March 2020).

109     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 5.15.

110     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 5.7 to 5.11.

111     As above, para 5.12.

112     (August 2016), recommendation 3.

113     For further discussion of the accessibility of the poll for voters with disabilities, see paras 8.49 to 8.66.

114     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 5.14 and 5.16.

115      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 5.7.

116     (August 2016), recommendation 18.

117     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 5.7 and 5.41.

118     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 5.15 and 5.16.

119     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 5.42 and 5.43.

120     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 5.21 to 5.27.

121     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 5.19 to 5.25.

122      As above, para 5.40.

123      As above, para 5.38.

124      As above, para 5.39.

125     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 5.29 to 5.31.

126      As above, para 5.32.

127     As above, para 5.33.

128     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 5.29.

129     (last visited 3 March 2020).

130     (December 2019) p 126, available at

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/853886/Q ueen_s_Speech_December_2019_-_background_briefing_notes.pdf (last visited 3 March 2020).

131     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 5.60 to 5.62.

132     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 5.39 and 5.46 to 5.51.

133     As above, paras 5.52 to 5.54.

134     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 5.59 and Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 5.37.

135     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 5.39.

136     As above, para 5.55.

137     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 5.42 to 5.44 and 5.55.

138     (November 2017) para 2.7, available at

https://www.electoralcommission.org.uk/sites/default/files/pdf_file/Accessibility-report-call-for-evidence.pdf (last visited 3 March 2020) and Electoral Commission, Elections for everyone (May 2019), available at https://www.electoralcommission.org.uk/report-elections-everyone (last visited 3 March 2020).

139     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 6.5 and 6.6.

140     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.91.

141     (December 2019) p 126.

142     See, for example, the Representation of the People (England and Wales) Regulations 2001 SI No 341.

143     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 6.7 to 6.34.

144     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 6.32 and 6.33. We note that the Referendums (Scotland) Act 2020 sch 1, part 3, contains detailed provisions on postal voting, including on the issue and receipt of ballot papers.

145     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.5.

146     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 6.9 and 6.21 to 6.24.

147     (December 2019) p 126.

148     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 6.33.

149     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.8.

150     See para 6.21 below.

151     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 6.12 to 6.14.

152     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 6.34.

153     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.15.

154      As above, para 6.16.

155      As above, para 6.17.

156     (December 2019) p 126.

157     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 6.35 to 6.78.

158     As above, para 6.70.

159     See above, para 1.20.

160     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 6.72 and Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.19.

161     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 6.73.

162     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.24.

163      As above, para 6.27.

164      As above, para 6.28.

165     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 6.29 and 6.30 and paras 5.25 and 5.26 above. We also recommend in chapter 8 that prescribed forms of poll card should be used. See paras 8.7 to 8.12 below.

166     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 6.76.

167     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 6.31 to 6.33 and paras 5.26 to 5.30 above.

168     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.35.

169    .

170     In Northern Ireland a person’s signature must match the signature given at the point of applying to become a registered elector. A problem may arise if an elector, having provided a signature at the point of registration, subsequently becomes unable to sign consistently or distinctively. That elector is unable to request a waiver of the requirement to provide a signature on a postal vote application or declaration of identity. In our interim report we quoted the Northern Ireland Electoral Office as follows: “we are of the view that there should be a facility to waive the signature requirement on a postal vote application. This is not, to our knowledge, the result of anti-fraud policy but is an unintended complication”. See Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.48.

171     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 6.42 to 6.46.

172     As above, paras 6.77 to 6.78.

173     As above, para 6.55.

174     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.36.

175      As above, para 6.37.

176      As above, para 6.38.

177     As above, paras 6.41 and 6.42.

178     As above, para 6.44.

179     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 6.80.

180     As above, paras 6.132 and 6.133.

181     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.53.

182     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 6.133.

183     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.54. The interim report also referred (at paras 6.58 and 6.59) to a consultee’s suggestion that the provision for retrieving postal ballot papers from ballot boxes be abolished. We still consider that to be a matter for Governments.

184     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.55.

185     As above, para 6.60.

186     As above, paras 6.61 to 6.62.

187     (August 2016) p 22.

188     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 6.118.

189     As above, paras 6.122 and 6.123.

190     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.67.

191     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com paras 6.70 to 6.87.

192     (last visited 3 March 2020).

193     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 6.80.

194     As above, para 6.91.

195     (August 2016) p 26.

196     (December 2019)

p 126.

197     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 7.1 to 7.47.

198     Greater London Authority Elections Rules 2007 SI 2007 No 3541, sch 3 r 7(1).

199     [2016] EWHC 2556 (Admin) (decided after the publication of our interim report), a prospective candidate applied for judicial review of the failure of a returning officer to conduct this type of informal check, arguing that he had a legitimate expectation that the returning officer would give him an opportunity to remedy any deficiencies in the nomination paper before formally refusing it.

Mr Justice Cranston refused the application, finding no basis in law or in fact for such a legitimate expectation.

200     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 7.50.

201     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 7.15.

202      As above, para 7.16.

203      As above, para 7.21.

204     See for example the Greater London Authority Elections (Amendment) Rules 2019 SI 2019 No 1426. We understand that the Scottish Government is also reviewing the rules on requiring candidates' addresses to be on the ballot papers for local government elections in Scotland.

205     Intimidation in Public Life, Report of the Committee on Standards in Public Life (December 2017) Cm 9543, p 17.

206     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 7.25 and 7.27; Electoral Commission Bulletin Issue 61 (England and Wales), 27 November 2013.

207     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 7.53 to 7.58.

208     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 7.23.

209      As above, para 7.25.

210      As above, para 7.26.

211    storage-11 jsxou24uy7q/uploads/2015/03/Electoral-Law Notice-of-Election-to-Nominations Research.pdf

212     There are two types of members of the London Assembly; “constituency members”, elected by constituencies within London using the first past the post system, and “London members”, elected on a London-wide basis by a party list system. The Greater London Authority is made up of members of the London Assembly and the Mayor of London.

213     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, p 151.

214     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 7.28.

215     Greater London Authority Elections Rules 2007 SI 2007 No 3541, sch 3 r 7(1).

216     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 7.49 and p 151.

217     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 7.31.

218      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 7.34 and 7.35.

219      In relation to UK Parliamentary elections, see Representation of the People Act 1983, sch 1 rr 12(5) and

12(6).

220      [2002] EWHC 670 (Admin); [2002] ACD 83.

221     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 7.61 to 7.64.

222     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 7.36.

223     As above, para 7.40.

224     For further discussion of the Government’s proposals, see chapter 11.

225     See paras 2.57 to 2.59 above.

226     See for example Representation of the People Act 1983, sch 1 r 6(2A), the wording of which is used for other elections.

227     Electoral Commission, Part C - Administering the poll, UK Parliamentary elections in Great Britain: guidance for (Acting) Returning Officers (November 2018) paras 3.46 to 3.58. The consequence of this is that, for example, a candidate named Elizabeth Catherine Jones but commonly known as Elizabeth Jones could not use “Elizabeth Jones” as her commonly used name, while she could use “Liz Jones” if that was the name by which she was commonly known. More problematically, if she was commonly known by her middle name Catherine Jones, she could not appear as “Catherine Jones” on the ballot paper.

228     (last visited 3 March 2020).

229     (September 2016) para 10.1, available at

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/549689/u k_governments_response_to_the_electoral_commission_and_association_of_electoral_administrators_repo rts.pdf (last visited 3 March 2020).

230     Specimen drafting, sch 1 r 6(6). In our example at fn 235 above, this would enable “Elizabeth Catherine Jones” to appear as “Catherine Jones” on the ballot paper, if this was how she was commonly known.

231      (1995) 139 SJLB 15, not fully reported but transcript available in B Posner and L Footner, Schofield’s

Election Law, Appendix E: Part 3 Election Case Reports 1990 - 1999, E3-002.

232     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 7.37.

233     As above, para 7.71.

234     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 7.44.

235     As above, para 7.52.

236     (August 2016), pp 41 to 42.

237     The words “for the purposes of the candidature or any other candidature” are designed to prevent a returning officer rejecting a name when it has long been a person’s true name. It may be a finely balanced judgement for the returning officer, but our view is that this drafting is required to distinguish between scenarios where someone is trying to abuse the system and someone is trying to participate in the political process using their actual name. The definition of “relevant election” in our specimen drafting is slightly too narrow (as the specimen drafting applies only to England and Wales), and would have to be expanded in order for this provision to function properly.

238     Those powers can be found in ss 28A(2) and 29(2) of the Political Parties, Elections and Referendums Act 2000.

239     Local government election rules, among others, have historically required a later separate notice of poll, in order to allow candidates to stand in more than one ward and then withdraw from all but one after the close of nominations. It is no longer possible to withdraw after close of nominations, and so there is now no need for a separate notice.

240     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com. paras 8.4 and 8.5.

241     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 8.3.

242     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.8 to 8.11.

243     As above, para 8.10.

244    .

245     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 8.1.

246      Electoral Law (2014) Law Commission Consultation Paper No 218, paras 8.14 to 8.16.

247      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.14 to 8.17.

248     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.17 and 8.18.

249     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.19 to 8.22.

250     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, above, para 8.23.

251     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.19 to 8.22.

252    , paras 6.8 and 6.9.

253     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 8.25.

254     As above, para 8.26.

255     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.24 and 8.25.

256     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.28 to 8.31.

257     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.26 to 8.30.

258     We have amended our recommendation to clarify that only persons entitled to vote need be given that opportunity.

259     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.34 to 8.49.

260     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 8.33.

261     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.41 and 8.42. In brief, this involved a voter being persuaded to give the appearance of voting by placing a piece of paper superficially resembling a ballot paper into the ballot box, and to bring the blank ballot paper out of the polling station. That ballot paper would then be marked by or under the supervision of the perpetrator of the scheme, and given to another complicit voter, who would return with a further blank ballot paper, enabling the process to be repeated.

262     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.35 to 8.39.

263     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.45 to 8.47.

264     Electoral Law (2014) Law Commission Consultation Paper No 218, paras 8.70 and 8.71.

265     We touch on the differences between proxies and companions at para 8.52 below.

266     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.41 to 8.49.

267     (November 2017).

268     (August 2018).

269     The Government response explains the Accessibility of Elections Working Group includes representatives from leading charities (Mencap, Rethink Mental Illness, RNIB, Scope and United Response), the NHS, the Royal College of Psychiatrists, the Society of Local Authority Chief Executives and key electoral stakeholders (the Electoral Commission, the Association of Electoral Administrators and the Scottish Assessors Association).

270     (August 2018), p 33.

271      Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion

Paper No 158; Northern Ireland Law Commission No 20, paras 8.77 to 8.80.

272      Electoral Law (2014) Law Commission Consultation Paper No 218, paras 6.59, 8.81 and 8.86.

273      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.57 to 8.70.

274      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.71 and 8.73.

275     (August 2016), recommendation 28, available

at https://www.gov.uk/government/publications/securing-the-ballot-review-into-electoral-fraud (last visited 3 March 2020).

276     (December 2019) p 126,

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/853886/Q ueen_s_Speech_December_2019_-_background_briefing_notes.pdf (last visited 3 March 2020).

277     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 1.8.

278     Not having drafted a bill to accompany this report, we do not suggest a definition of “cohabitant” here. We note however that existing definitions can be found in the Family Law Act 1996, s 62, and the Family Law (Scotland) Act 2006, s 25.

279     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.87 to 8.90. Similar provision is made in other statutory instruments including the Representation of the People (Scotland) Regulations 2001, SI No 497, reg 12.

280     for enabling voters who are blind or partially sighted to vote without any need for assistance from the presiding officer or any companion” (emphasis added).

281     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.74 to 8.77.

282     [2019] EWHC 1126 (Admin).

283     Prime Minister’s Office, The Queen’s speech December 2019 - background briefing notes (December 2019) p 126

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/853886/Q ueen_s_Speech_December_2019_-_background_briefing_notes.pdf (last visited 3 March 2020).

284     This is not the approach taken in local government elections in Scotland or Northern Ireland, which follow the parliamentary model described in (1) above.

285     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.100 to 8.102.

286     As above, paras 8.104 and 8.105.

287     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.81 to 8.84.

288     As above, paras 8.85 to 8.87.

289     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.106 to 8.111.

290     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.88 to 8.92.

291     As above, paras 8.93 to 8.96.

292     We did not recommend a change to local government elections in Scotland or Northern Ireland, both of which use the single transferrable vote system. The use of this voting system reduces the unfairness to voters when their first preference candidate dies, as votes cast for second and lower preference candidates still count towards the result of an election. We are of the view that changing the policy on the impact of the death of a candidate is a matter for the Scottish Government and the UK Government (as regards Northern Ireland).

293     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.112 to 8.114.

294     Commonwealth Electoral Act 1918, ss 240A and 241, and Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.115 to 8.119.

295     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 8.105 to 8.113.

296     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 8.113.

297     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 8.114 to 8.116.

298     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 9.1.

299     As above, para 9.4.

300     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 9.4 to 9.7.

301     As above, paras 9.8 to 9.10.

302     As above, para 9.10.

303     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 9.11 to 9.16.

304     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 9.13.

305      As above, para 9.12.

306      As above, para 9.16.

307     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 9.11 to 9.22.

308     As above, para 9.22.

309     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 9.5.

310     As above, paras 9.58 to 9.62.

311      As above, para 9.60.

312      As above, para 9.42.

313      Electoral Law (2014) Law Commission Consultation Paper No 218, paras 9.6 to 9.8 and 9.55 to 9.57.

314      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 9.23 to 9.27.

315    https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-

11 jsxou24uy7q/uploads/2015/03/Electoral-Law Manner-of-Voting Research.pdf)

316     Electoral Law (2014) Law Commission Consultation Paper No 218, paras 9.67 and 9.68.

317     As above, para 9.69.

318     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 9.29 to 9.31.

319     Local Government and Elections (Wales) Bill, cl 5, available at

http://www.assembly.wales/laid%20documents/pri-ld12877/pri-ld12877-e.pdf (last visited 3 March 2020).

320     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 9.88 to 9.90.

321      Electoral Law (2014) Law Commission Consultation Paper No 218, paras 9.91 and 9.92.

322      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 9.32 to 9.41.

323     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 9.93 and 9.94.

324     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 9.43 to 9.57.

325     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 9.58 to 9.62.

326     These headings fit elections relating to legislatures better than local government elections, which have no concept of extraordinary (general) elections.

327     For more detail see Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 10.6 to 10.10.

328     We note here that it is possible that the 2011 Act will be amended or repealed in future. Section 7 of the 2011 Act states that its operation will be reviewed in 2020 by a committee, which may make recommendations for the Act’s repeal or amendment. The Conservative Party manifesto also included a commitment to repeal the 2011 Act.

329     Early Parliamentary General Election Act 2019, s 1(1) and (2). These provide that the December 2019 election date is to be treated as though appointed by the 1911 Act, so as to enable the 2011 Act (unless repealed or amended) to govern the incidence of future elections.

330     National Assembly for Wales (Representation of the People) Order 2007 SI 2007 No 236 sch 5 r 1.

331     The deadlines for publishing notices of election are usually expressed as “not later” than a particular time, meaning it is possible for the notice of election to be published earlier. See, in relation to UK Parliamentary elections, Representation of the People Act 1983, sch 1 r 1.

332     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 10.15.

333      As above, para 10.20.

334      As above, para 10.26(3).

335     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 10.7 and 10.8.

336     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 10.18.

337     As above, para 10.25.

338     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 10.9.

339     As above, paras 10.10 to 10.12.

340     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 10.27.

341     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 10.17.

342     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 10.31.

343     As above, para 10.40.

344     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 10.19.

345     As above, paras 10.20 and 10.21.

346     See para 1.20 above.

347     The date of publishing the notice of election is fixed at the returning officer’s discretion on any day between day 35 and day 28 before polling day. This does not affect any other deadline in the timetable. These timetables’ express acknowledgement of the returning officer’s option to publish the notice of election earlier may be related to the geography of some Scottish electoral areas. (We note that at other elections, the notice of election may be published earlier than the deadline stipulated in the timetable.)

348     (last visited 3 March 2020). No consultee in Scotland objected to our proposed 28 day timetable, which provided for a deadline for nominations on day 22 before polling day.

349     As above, paras 10.43 to 10.48.

350     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 10.45 to 10.47.

351      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 10.27.

352    , Report on the administration of the 7 May 2015 elections, including the UK

Parliamentary general election (July 2015), available at https://www.electoralcommission.org.uk/sites/default/files/pdf_file/UKPGE-report-May-2015-1.pdf (last visited 3 March 2020) p 41.

353      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 10.33.

354      Greater London Authority Elections Rules 2007 SI No 3541, as amended by the Greater London Authority

Elections (Amendment) Rules 2016 SI No 24, r 6(1)(b).

355     (last accessed 6 December 2019).

356     Analysis of the longer GLA and Scotland-only timetables shows that a 28 day timetable is able almost perfectly to preserve the advantages of these longer timetables, while extending 25 day timetables only minimally. See Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 10.47.

357     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 10.38.

358     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 10.107.

359     See para 10.25 above.

360     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 10.46 to 10.49.

361     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 10.111.

362     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 10.51 and 10.53.

363     As above, paras 10.56 and 10.57.

364     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 10.112.

365      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 10.59.

366      As above, paras 10.61 and 10.62.

367      As above, paras 10.67 and 10.71.

368      As above, paras 10.72 and 10.73.

369     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 10.117.

370     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 10.74.

371      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 10.76 and 10.77.

372      See para 10.40(3) above. This is a problem faced in many jurisdictions, but the legal response to it varies.

For example, in the Republic of Ireland, s 165 of the Electoral Act 1992 provides that where two or more polls take place on the same day, the polls “shall be taken at the same time, at the same places and in the same manner”. In practice ministerial orders on an election-specific basis make provision for matters such as the identification of returning officers, polling information cards, postal voting and the counting of votes. See for example the Electoral Act 1992 (Section 165) Regulations, SI 2019 No 214, relating to polls taking place on 24 May 2019.

373     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 10.119.

374     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 10.82.

375    .

376     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.1.

377     As above, paras 11.3 and 11.4.

378     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, ch 11.

379     As above, para 11.25.

380     (August 2016).

381      Intimidation in Public Life, Report of the Committee on Standards in Public Life (December 2017) Cm 9543.

382    Response to

Protecting the Debate: Intimidation, Influence and Information (May 2019).

383     Electoral law: the Urgent Need for Review, Report of the Public Administration and Constitutional Affairs Committee (2017-19) HC 244.

384    below.

385     [2015] EWHC 1215 (QB).

386     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 11.1.

387     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 11.5, 11.11 and

11.12.

388     A person convicted of personation and certain other voting offences is also disqualified from being registered and voting at any election for a disqualification period.

389     See chapter 13 at paras 13.11 to 13.23 for discussion of the grounds on which an election may be challenged. Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 11.14 to 11.23 and 13.94 to 13.99.

390     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 11.7 to 11.9.

391     As above, para 11.10.

392     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 11.11 and 11.12.

393      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.12. We note

that the Referendums (Scotland) Act 2020, s 35 and sch 6 make provision for offences in relation to referendums in Scotland.

394     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 11.31 to 11.44.

395     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.16.

396     [2015] EWHC 1215 (QB), paras 125 to 138 and 460 to 512. In the Tower Hamlets petition, Commissioner Mawrey QC held that grants made by Tower Hamlets council, on behalf of the Mayor, Lutfur Rahman, to various organisations constituted bribes, as the grants were made with the corrupt intention that those who belonged to or benefited from those organisations would be induced to vote for him.

397     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.18.

398     As above, para 11.19.

399     [2015] EWHC 1215 (QB), para 670.

400     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.22.

401      As above, para 11.20.

402      As above, para 11.22.

403     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 11.45 to 11.53.

404     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 11.26 to 11.62.

405     (July 2018) section 2.

406     (May 2019) p

29.

407     As above, p 30.

408     See paras 11.50 to 11.59 below.

409     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 11.26 to 11.35.

410      As above, para 11.28.

411      As above, para 11.32.

412     [2015] EWHC 1215 (QB), para 623.

413     (August 2016) pp 8 and 9.

414     (May 2019) p 29.

415      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.35.

416     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 11.49 to 11.53.

417     As above, paras 11.36 to 11.46.

418      As above, para 11.43.

419      As above, para 11.44.

420     [2015] EWHC 1215 (QB)) was not concluded until after the end of this project’s consultation period.

421      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.47.

422      Commissioner Mawrey QC was referring to two election petitions that invalidated the elections of candidates

in County Meath on the grounds of undue influence by threat of spiritual injury. See Northern Division of the County of Meath (1892) 4 O’M & H 185 and Southern Division of the County of Meath (1892) 4 O’M & H 130.

423     [2015] EWHC 1215 (QB), para 562.

424     Commissioner Mawrey QC observes in his judgment that the letter was also shared widely on social media.

425     [2015] EWHC 1215 (QB), para 549.

426     As above, para 158.

427     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.55.

428    [2017] EWHC 1413.

429     A 19th century case framed the enquiry as whether power was used “to excite superstitious fears or pious hopes, to inspire ... despair or confidence...”: Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 11.49.

430     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 11.59 and 11.60.

431     We prefer the term “deception” to trickery or use of a “fraudulent device”.

432     The same concerns do not arise in Scotland, where private prosecutions are exceptionally rare and can only be brought if authorised by statute or a court order. See Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.61. The concerns do arise in Northern Ireland and the interim report made the same recommendation for Northern Ireland as for England and Wales.

433     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 11.62 to 11.66. In practice the consent of the Director of Public Prosecutions could be given by a Crown Prosecutor, under s 1(7) of the Prospection of Offences Act 1985.

434      Representation of the People Act 1983, s 110.

435      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 11.68 to 11.74.

436     As above, para 11.70.

437     As above, paras 11.75 and 11.76, and recommendation 11-6 at p 156.

438     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 11.59.

439    , para 5.138 (last visited 3 March 2020).

440     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.76.

441      Referendums (Scotland) Act 2020, sch 3 paras 28(1)(b) and (2).

442    Written Evidence to the Finance and

Constitution Committee: Referendums (Scotland) Bill (August 2019) para 30.

443     Canada Elections Act, SC 2000, c 9, s 320.

444     Referendums (Scotland) Act 2020, sch 3 para 28(3).

445     (last visited 3 March 2020).

446     (June 2018) para 31.

447     Intimidation in Public Life, Report of the Committee on Standards in Public Life (December 2017) Cm 9543. p 61.

448     Disinformation and “fake news”, Final Report of the Digital, Culture, Media and Sport Committee (2017-19) HC 1791.

449     (last visited 3 March 2020).

450     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 11.62 to 11.65.

451     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 11.82 and 11.83.

452     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.85.

453     See paras 11.8 and 11.9 above.

454     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.86.

455     As above, para 11.87.

456     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 11.66 to 11.69.

457     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 11.88 to 11.92.

458     See para 11.49 above.

459     There appears to be less practical experience in Scotland of this offence in an electoral context, and there may be evidential and conceptual difficulties in proving the offence in Scots law.

460     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 11.70 to 11.75.

461     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 11.94 to 11.96.

462     We refer to widespread concern about postal voting fraud in paras 6.42 and 6.43 above.

463     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 11.97.

464    (2019) Law Com 281, paras 3.59, 3.79 and 3.78.

465     Intimidation in Public Life, Report of the Committee on Standards in Public Life (December 2017) Cm 9543. p 13.

466     Intimidation in Public Life, Report of the Committee on Standards in Public Life (December 2017) Cm 9543. (December 2017) Cm 9543 pp 60 and 61.

467     (May 2019) p 18.

468     These would include assault, destroying or damaging property, threats to kill, harassment, public order offences, and sending communications which are indecent, obscene or menacing, or with an intent to cause distress and anxiety.

469     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 11.14(2)(c).

470     Electoral law: the Urgent Need for Review, Report of the Public Administration and Constitutional Affairs Committee (2017-19) HC 244, para 65.

471     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 11.23.

472     This mirrors the structure of our interim report. See Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 12.1.

473     [2018] UKSC 42, [2019] AC 387 interpreting the Representation of the People Act 1983, s 90C.

474     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 12.54 and 12.55.

475     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 12.5 and 12.6.

476     These codes will apply to elections to the UK Parliament, Northern Ireland Assembly and local councils in England. The Electoral Commission has recently consulted on a draft code for elections to the Senedd. Ss 8 and 9 of the Scottish Elections (Reform) Bill provide that the Electoral Commission may prepare a code of practice on expenditure of candidates at Scottish parliamentary elections and Scottish local government elections.

477     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 12.58 to 12.68.

478     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 12.8 to 12.18.

479     As above, paras 12.14 and 12.15.

480     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com , para 12.17.

481     As above, para 12.18.

482     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 12.69 to 12.71; Representation of the People Act 1983, s 75.

483     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 12.23.

484     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 12.26 and 12.27.

485     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 12.36 to 12.41.

486     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 12.28 to 12.40.

487      As above, para 12.31.

488      As above, para 12.34.

489     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 12.49 to 12.53.

490      As above, para 12.49.

491      As above, para 12.53.

492     (2019), available at

https://www.electoralcommission.org.uk/sites/default/files/pdf_file/Reforming-electoral-law-PACAC-booklet.pdf (last visited 3 March 2020).

493     (last visited 3 March 2020).

494     (January 2020), pp 29, 36 and 37.

495      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 12.42 to 12.44.

496    Written Evidence to Public Administration and Constitutional Affairs Committee

Electoral law inquiry (April 2019) paras 45 to 48.

497      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 12.44.

498      Representation of the People Act 1983, s 75ZB(5).

499     (June 2018).

500     (last visited 3 March 2020).

501     (November 2018).

502     (April 2019),

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793360/O nline_Harms_White_Paper.pdf (last visited 3 March 2020).

503     (June 2018) p 11, para 45.

504     Representation of the People Act 1983, s 110(2)(b) and (7). Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 11.55 to 11.61.

505     (last visited 3 March 2020).

506     (last visited 3 March 2020).

507     [2018] UKSC 42, [2019] AC 387 interpreting the Representation of the People Act 1983, s 90C.

508     (June 2019) p 2.

509     (last visited 3 March 2020).

510     Electoral law: the Urgent Need for Review, Report of the Public Administration and Constitutional Affairs Committee (2017-19) HC 244, para 16.

511     As above, para 8.

512     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 12.3; Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 12.4.

513     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 12.5.

514     Electoral law: the Urgent Need for Review, Report of the Public Administration and Constitutional Affairs Committee (2017-19) HC 244.

515     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, ch 13.

516     (April 2019) para 68, and Electoral law: the Urgent Need for Review, Report of the Public Administration and Constitutional Affairs Committee (2017-19) HC 244.

517     31.

518     Indeed, the legal basis for the modern scrutiny is the statutory invocation, in section 157(2) of the Representation of the People Act 1983, of the “principles, practices and rules on which committees of the House of Commons used to act in dealing with election petitions”.

519     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 13.17 to 13.20.

520     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.6 to 13.12.

521     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 13.29 and 13.30.

522      [2016] EWHC 725 (QB).

523     [2013] EWHC 2572 (QB) (unreported) at [71] to [76].

524     [2016] EWHC 725 (QB).

525     Representation of the People Act 1983, s 48(1). The wording of that section, which applies to local government elections, is in substance identical to that of section 23(3), which applies to Parliamentary elections. Our consultation paper referred to section 23, and we do so in this report.

526     See para 13.12 above. The section 23 test is the equivalent test for Parliamentary elections. Research paper on Legal Challenge to Elections, para 1.59.

527     Ballot Act 1872, s 13.

528     In particular, it seems to us that the word “of” in the phrase “of rules .” must connect back to the word “breach”, in the same way as does the word “of” in the earlier phrase “of his official duty .”. This indicates to us that the subject-matter of the subsection extends to breaches of official duty in connection with an election and to breaches of elections rules committed otherwise than in breach of official duty; any other interpretation fails to give effect to the word “otherwise” in the subsection. But we acknowledge that the drafting is obscure.

529     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.16 and 13.31.

530      As above, para 13.48.

531      See para 11.8 above.

532     [2017] EWHC 1413 (Admin).

533     [2015] EWHC 1215 (QB), discussed in chapter 11 of this report.

534     [1975] 1 WLR 1319.

535     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 13.35.

536    .

537     As above, paras 1.19 to 1.20.

538     We accept that it can be argued that the requirement for local subscribers is a substantive one, in that it amounts to a demonstration of local support. But it has to be borne in mind that subscriber details do not appear on ballot papers but only in the statement of persons standing nominated, which few voters see, and that the fact of local support at the nomination stage has to be set in the context of the level of support demonstrated at the ensuing poll.

539     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 13.41 to 13.44 and Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.23 to 13.29.

540     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.24 to 13.29.

541     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 13.67 and 13.68.

542     As above, paras 13.105 to 13.107.

543      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.32 to 13.42.

544      We note that Part 4 of the recently passed Senedd and Elections (Wales) Act 2020 distinguishes

disqualifications which take effect at nomination and those taking effect at the time of election.

545     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.43 and 13.46.

546    .

547     Election Petition Rules 1960 SI No 543 rr 14 and 16; Act of Sederunt (Rules of the Court of Session 1994) 1994 SI No 1443 rr 69.20 to 69.27. Sections 148 to 153 of Part III of the 1983 Act were repealed by para 1 of sch 22 to the Political Parties, Elections and Referendums Act 2000. Section 158(3) of that Act provides that none of the repeals of Part III have effect in relation to local government elections in Scotland. The procedural rules governing the latter are in the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 (SI 1999 No 929 (S.65)), ch 3, pt XI.

548      [2017] EWHC 37 (QB).

549     Representation of the People Act 1983, s 136. The maximum limit also applies in Scotland, and the Rules of the Court of Session provide security for expenses is to be set by the Lord Ordinary or vacation judge.

550     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 13.164 to 13.173.

551     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.73 to 13.82.

552     [2010] EWCA Civ 1332; [2011] PTSR 416.

553     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.53 to 13.65.

554     (August 2016) Recommendation 30: “The system for challenging elections should be brought into the ordinary civil procedure and a single right of appeal should be available on both points of law and fact”.

555     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.61 and 13.62.

556     The recommendation in our interim report also extended to Northern Ireland. As explained at para 1.19, the scope of this final report is confined to Great Britain, and the scope of this recommendation has been limited accordingly.

557     In Scotland, the Scottish Civil Justice Council prepares draft rules of procedure for the civil courts and advises the Lord President on the development of the civil justice system in Scotland.

558     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.66 to 13.72.

559     As above, para 13.70

560     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 13.174 to 13.191.

561      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.96 to 13.135.

562      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.136 and

13.137.

563     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 13.144 and 13.145.

564     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 13.137.

565     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 13.169 to 13.171.

566     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.85 to 13.92.

567     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 13.192 to 13.196.

568     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 13.139 to 13.144.

569     The recommendation in our interim report also extended to Northern Ireland. As explained at para 1.20, the scope of this final report is confined to Great Britain, and the scope of this recommendation has been limited accordingly.

570     There have been thirteen national referendums since 1973.

571     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 14.2.

572     We declined to extend the scope of our recommendations to other types of poll, business improvement district polls and so-called “advisory” polls. See Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 14.28 and 14.29.

573     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 14.99 to 14.116.

574     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 14.49 to 14.56.

575     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 14.6, 14.14, 14.35 and 14.39.

576     (September 2016) p 7.

577     (September 2016) p 7, available at

https://www.electoralcommission.org.uk/who-we-are-and-what-we-do/elections-and-referendums/pastelections-and-referendums/eu-referendum/report-23-june-2016-referendum-uks-membership-european-union (last visited 3 March 2020).

578     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 14.50.

579     As above, para 14.39 and 14.76 to 14.81.

580     [2019] EWCA Civ 304, [2019] 1 WLR 4174.

581     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 14.24.

582     As above, para 14.43.

583     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 14.50.

584     As above, paras 14.49 to 14.56.

585     Referendums (Scotland) Bill: Revised Explanatory Notes, (2019) SP Bill 46A, para 7.

586      Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 14.6 to 14.9.

587    Report on the 23 June 2016 referendum on the UK’s membership of the European

Union (September 2016) p 10, available at https://www.electoralcommission.org.uk/who-we-are-and-what-we-do/elections-and-referendums/past-elections-and-referendums/eu-referendum/report-23-june-2016-referendum-uks-membership-european-union (last visited 3 March 2020).

588     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 14.12.

589     See para 2.18 above.

590     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 14.56.

591     As above, paras 14.59 to 14.61 and footnotes therein.

592     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 14.83. One of the four statutory instruments governing local referendums is the Local Authorities (Conduct of Referendums) Wales Regulations 2008 SI 2008 No 1848, concerning referendums held under Part 2 of the Local Government Act 2000 (arrangements in respect of executives etc) in Wales. While we know of no such referendums having been called in Wales, and are not aware of any executive Mayor role being created as a result, both a Mayoral referendum and an ensuing Mayoral election would be within the devolved competence of the Senedd under the Government of Wales Act 2006, as amended by the Wales Act 2017. See the 2006 Act, sch 7A, Part 2 (Specific Reservations) Reservation, Head B1 para 23 (which only reserves the combination of such polls with polls at elections or referendums that are outside the legislative competence of the Senedd).

593     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 14.96, and Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 14.12.

594     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 14.96.

595     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 14.14.

596     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, paras 14.77 to 14.79 and 14.97. For more information on legal challenge see chapter 13.

597     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, para 14.15.

598     As above, para 14.12.

599     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 14.82.

600     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 14.19 to 14.24.

601     As above, para 14.20.

602     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 14.98.

603    Parish Polls: Consultation on the Government’s intentions to modernise parish poll

regulations (December 2014)

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/381894/P

arish_Poll_Consultation.pdf (last visited 3 March 2020).

604     Electoral Law (2014) Law Commission Consultation Paper No 218; Scottish Law Commission Discussion Paper No 158; Northern Ireland Law Commission No 20, para 14.117.

605     As above, para 14.118.

606     As above, paras 14.119 and 14.120.

607     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 14.35 to 14.38.

608     As above, paras 14.39 to 14.44.

609     Electoral Law: A Joint Interim Report (2016) Law Com; Scot Law Com; NI Law Com, paras 14.45 to 14.50.