Watchdog calls for urgent reform of electoral laws and role of petitions

The UK’s electoral laws – and in particular the "outdated" system of challenging results through election petitions – are in need of urgent reform, the Electoral Commission has claimed.

In a submission to a Law Commission consultation, the watchdog said that laws dating back to the Victorian era were not suited to holding elections in the 21st century.

The Electoral Commission said the main problems with the election petition system was that it was not accessible or transparent, and that it did not allow for challenges to elections to be dealt with promptly and did not provide a right of appeal.

"The election petition system is not designed to ensure that departures from electoral law (either because of an error by an election official or an offence committed by a candidate or agent) are properly considered and any appropriate action taken or sanctions applied," it said.

"Candidates or electors with genuine complaints about an election, who wish to challenge the result, face barriers which for many are likely to be insurmountable."

These hurdles included:

• the cost of bringing a parliamentary election petition, with initial costs over £5,500. “This could increase significantly where a court hearing is involved”;
• the "onerous and complex" requirements to serve a petition; and
• the "opaque" legislative provisions that make it difficult to establish whether there are grounds for a petition.

The watchdog said the procedure for bringing and managing a petition was similar in nature to a private legal action. "It is questionable whether this is appropriate considering the public interest in identifying and remedying electoral malpractice. Election results are more than just private disputes, they are of significant public importance."

The Electoral Commission added that electors, independent candidates and candidates from small political parties would be less able to bring a petition than candidates who represented a large party.

The watchdog pointed out that returning officers were not allowed to bring a petition, despite on many occasions being best-placed to do so, "having knowledge of their own error and the necessary resources to bring legal proceedings".

Another problem with the election petition process was that it rarely delivered a swift determination of the validity of an election and therefore did not provide certainty of outcome for candidates, parties, election officials and the electorate.

"Even a simple administrative error by an election official in the declaration may take three months to resolve," the Electoral Commission argued. "More complex cases can take nearly two years before a decision is made on who was in fact, duly elected."

The watchdog also said that consideration was required as to whether the sanctions currently available to the court hearing a petition were sufficient or needed revising.

It described the lack of a right of appeal against the court's decision as "particularly concerning" and a clear departure from internationally recognised principles.

"In summary, the evidence demonsrates that the UK's petition process is outdated, complex, inaccessible and inefficient," the Electoral Commission said. "On this basis, fundamental reform is required to ensure that the UK has a system to challenge elections that complies with principles set out by international bodies and promotes public trust and confidence in election results."

The Electoral Commission said a further obstacle to challenging election results was that while one candidate might challenge an election result, for local government elections at least four electors had to agree to submit an election petition.

The watchdog pointed out that there was no requirement for multiple applicants in the rules that govern judicial review challenges.

Bob Posner, Legal Counsel at the Electoral Commission, said: "The law governing election petitions dates back to 1868 and is largely unchanged. A process that was created in the Victorian era is unlikely to be well-suited to elections held in the twenty-first century.

“In the last 150 years the UK has seen the expansion of the democratic franchise, an increase in the number and type of elections and the introduction of postal voting and the use of electronic communications; this all suggests that reform is urgently required."

Posner added: "The constraints we highlight in our submission reflect the need for reform. Electoral law is a fundamental building block of our democracy, enabling decisions on who represents us and makes the laws that touch all our lives.

“The right to a transparent and accessible means of challenging election results is its guarantee. It could be argued that the current legislation casts election petition as an attack on the system. Far from it, they are its very defence and there shouldn’t be any inherent deterrents to remedying election irregularities."

The Electoral Commission published two project reports alongside its submission, Challenging Elections in the UK and Electoral Law: an international comparison.

Philip Hoult