Electoral Petitions: the Law Commission's proposals for reform

Timothy Straker QC and Amrit Kaur Dhanoa make a case in favour of the Law Commission’s proposals for reform of electoral petitions.

Electoral Law in the UK has become complex, voluminous and fragmented. Following much debate on the subject, and having monitored the position for a number of years, the Law Commission has proposed a set of reforms to modernise the current law.

The issue is one rooted in attempts to ‘consolidate’ legislation at each turn [1] as opposed to review and reform. Consolidation cannot alter the substance of the earlier law. The current statute which governs the law of elections, the Representation of the People Act 1983 (“the 1983 Act”) is one rooted in nineteenth century language and practice which dealt principally with the offence of electoral corruption, an issue which was much more rife then. Indeed, much of Part II of the 1983 Act which deals with electoral offences and challenges to elections is derived from the Corrupt and Illegal Practices Prevention Act 1883. Unsurprisingly, it has shown to be non-reflective of modern electoral administration where petitions in recent times have largely been used for administrate mistakes rather than to defeat deliberate dishonesty. It is for these reasons that the Law Commission’s call for reform in this area is welcomed as an urgent and desirable step forward in the development of a tool that is vital to the continuing integrity of UK elections.

The Law Commission’s consultation paper [2] put forward seventeen provisional proposals and asked five consultation questions, divided into two main areas: first, the need for a clear, simple and general statement of the grounds for challenging elections; and, secondly, the need to modernise the election petition procedure, review its place in the legal system, and ensure that it is up to the task of being the law’s main enforcement mechanism. The widespread nature of the proposals represents the urgent and comprehensive need for reform. This article does not seek to delve into each of the Law Commission’s proposals, but instead highlights those that have gained considerable traction and support.

The grounds for bringing a legal challenge

Challenge to an election can only be brought by way of an election petition. It is imperative that the petition is presented in the form prescribed by the rules as detailed in the legislation. One way in which an election petition can be used (amongst other statutory grounds for challenge), is to challenge the validity of an election and to correct the result, through a process known as “scrutiny”. This power of the election courts grants them with the ability to look at particular votes to determine whether the electors who cast them were entitled to do so, and if not, the Court has the power to strike off those invalid votes. The legislation in its current form provides that where the validity of an election is successfully challenged, it can be annulled on one of three grounds. The difficulty with the grounds is that they are not set out in one cohesive place in the legislation, and one must trawl through various provisions to identify the available grounds – some of which are still phrased in archaic language.

Section 23 of the Representation of the People Act 1983 concerns the returning officer’s duty to conduct elections according to the law, but also vaguely references the ground of "breach of electoral law" or administrative irregularity. Section 157(2) indirectly mentions scrutiny. It is only by gathering provisions of the 1983 Act, and considering the case law, that one can establish which grounds of challenge may be readily available to a petitioner. The Law Commission has attempted to collate the grounds together in one place in accessible and unequivocal terms in its interim report [3], as follows:

(1) a breach of electoral law during the conduct of the election which was either:

(a) fundamental; or
(b) materially affected the result of the election;

(2) corrupt or illegal practices committed either:

(a) by the winning candidate personally or through that candidate’s agents; or
(b) by anyone else, to the benefit of the winning candidate, where such practices were so widespread that they could reasonably be supposed to have affected the result; or

(3) the winning candidate was at the time of the election disqualified from office.

The above grounds as set out are as a result of the Law Commission’s efforts to identify and consolidate them. Whilst it may be argued that identifying grounds in different places across the Act should not necessitate an entire reform of the statute, this is one of many issues with the legislation in its current form. Unlike regular cases, election petitions must be brought within strict timelines and deadlines are critical. The challenge of an election is seen as a fundamental right, but equally fundamental is the drawing of a line after an election. Therefore, if the petitioner brings a petition out of time, or fails to readily identify clearly on which grounds the petition is brought, they are unlikely to be able to proceed or amend the petition (as one may ordinarily be permitted to do when bringing other causes of action).

Whilst some grounds are stated with relative clarity, some lack this precision. For example, the grounds relating to disqualification and the effect on the legal validity of an election. Electoral law does not currently clearly state the point in time at which disqualification actually takes effect so as to be a valid ground for annulment. There is some confusion as to whether the material time is the day on which the candidate was nominated, or the day the candidate was elected. One of the proposals is therefore that disqualification at the time of election should be stated to as a ground for invalidating the election for all elections and not only nomination, thereby providing certainty. However, knowingly standing while disqualified will remain a ground for annulling an election.

The procedure for legal challenge

As noted above, the 1983 Act and additional election-specific legislation set out the procedure for bringing an election petition. The law is complex and disjointed making it difficult to navigate and comprehend. As elections and election petitions are creatures of statute, the statute must be strictly applied. There is very little (if any) scope for error. Election petitions are private proceedings brought by persons directly concerned by the election in question, before judges, which are effectively using a procedure that is rigid and archaic. One of the problems includes the non-existence of a process by which to filter out unmeritorious petitions.

The Law Commission’s view on reform is to bring the procedure of election petitions within the ordinary civil procedure in the UK, to be heard in the ordinary court system in the UK, with a single right of appeal. Challenges should be governed by simpler, modern and less formal rules of procedure allowing judges to achieve justice in the case while having regard to the balance between access to justice and certainty of electoral outcomes. Whilst this has several benefits, there is the obvious drawback, which the current electoral petition process enforces: namely, a challenge to an election should be dealt with promptly, urgently and with efficiency. It is ultimately a challenge to a publicly cast vote, and the outcome can have significant democratic consequences. It is in the public interest to have tightly governed election petitions insofar as timetables and procedure are concerned, and it may be that some further consideration needs to be afforded to this aspect of the electoral process.

The judiciary for England and Wales is supportive of the call for reform and to this end, Sir Brian Leveson, the President of the Queen’s Bench Division stated:

"The proposal to transfer the election court's jurisdiction to the High Court in England and Wales, and to bring the Election Petition Rules within the scope of the Civil Procedure Rules, would not only increase administrative efficiency, but more importantly is right in principle. The separation of the election court is...an anomaly, not least as it has all the powers of, and draws its judiciary from, the High Court.”

Public interest aspect of legal challenges to elections

The Law Commission’s proposals have recognised and explored the inherent tension between the private character of the petition process and the public importance of electoral outcomes. The principal difficulty is that a formal legal challenge requires substantial funding. A petitioner is exposed not only to his or her legal costs, but also those of other parties if the petitioner loses the case. In addition, an error admitted by the Returning Officer after declaring the result can only be investigated, and its effect on the result established to the satisfaction of candidates, if someone brings a formal legal challenge. If the result is affected, the Returning Officer has to wait for a petition to be brought, knowing he or she will have to pay the petitioner’s costs.

The Law Commission’s proposal is that the Returning Officer should have standing to make a preliminary application to test whether an admitted breach affected the result.

The mechanism of election petitions has been around for a considerable period of time. The research and proposals put forward by the Law Commission highlight the need for substantial reform in this area to maintain confidence and integrity in our elections, and to bring the process in line with modern day legislation. As such, the Law Commission has proposed that the law governing challenging elections should be set out in primary legislation governing all elections. This would enable there to be a single and cohesive legal framework that governs all elections.

In 2016 when the Law Commission called for reform, the UK Government cited the pressure of Brexit as the reason for turning down the Law Commission's proposals for reform. Therefore, it remains to be seen as to whether the recommendations will be implemented and take effect but it is hoped that the UK Government recognises the need for simple and modern rules of procedure, and the balancing act between access to justice and certainty in electoral outcomes.

Timothy Straker QC and Amrit Kaur Dhanoa are barristers at 4-5 Gray's Inn Square.

[1] For example, the 1983 Act consolidates the Representation of the People Act 1949 and various enactments amending it. The 1949 Act in turn had been a consolidation of earlier legislation.

[2] Electoral Law: A Joint Consultation Paper (9 December 2014) http://www.lawcom.gov.uk/app/uploads/2015/03/cp218_electoral_law.pdf

[3] Law Commission – Electoral Law: An Interim Report (4 February 2016)

http://www.lawcom.gov.uk/app/uploads/2016/02/electoral_law_interim_report.pdf