UK Election Law

A Critical Examination

Bob Watt

• Publisher: Routledge-Cavendish
• Year: 2020
• eBook ISBN: 9781000150032
• Topic: Law
• Subtopic: Public Law
• Index: Law

This book contains a critical analysis of the law and politics governing the conduct of statutory elections in the United Kingdom. The author argues that elections have now become a marketplace for 'buying' the most seemingly attractive political party on offer into power, rather than an expression of democratic self-government. Thematically arranged, he considers a number of issues dating from before the Civil War through nineteenth century reforms to the foundation of the Electoral Commission and up to their paper 'Securing the Vote' published in 2005. The book Framing the debate for the Electoral Administration Bill 2005, it contains, amongst other legal analysis, analyses leading cases, including:Sanders v ChichesterR v JonesR v Whicher; ex parte MainwaringIn re Fermanagh and South Tyrone. The author presents an argument for a radical reappraisal of election law which involves, rather than excludes the self-governing citizenry, suggesting that election law, perhaps above all other kinds of law, should be the subject of vigorous and open public debate.

Chapter 1:
Law, Public Policy and Ideology

Introduction

This book is about UK election law and policy. It is also, perforce, about ideology. However, it is not a book about ideology, public policy, or political theory in general; it is a book about the ideology of election law, which is a branch of applied political theory. This book is not neutral. Books of political theory rarely are; they may be liberal, communitarian, socialist, libertarian, republican, postmodern, or conservative. This book claims to be democratic; it posits a democratic theory against a market theory. That having been said, the balance of the book is towards a legal, rather than a political, analysis. The most important legal analysis undertaken in this book is an attempt to measure election law in the UK against the standards set by the European Convention of Human Rights and its fast-developing jurisprudence. The European Convention imposes a normative standard – a democratic standard.

The starting point is that election law is not black letter law; it always has a political purpose. It is designed to control the franchise in at least two dimensions. First, it controls the breadth of the franchise; who can vote? Secondly, it regulates the method of voting; how shall people vote, what safeguards are provided to protect the security of their vote? Each of these dimensions has their ideological components.

If we look first at the breadth of the franchise, we can see that it was contested from the middle ages. From Norman times until the beginning of the 20th century there were two basic forms of franchise¹ – the borough and the county franchise. Borough franchises were granted on a complex basis to townsmen (see Chapter 2), but the county franchise was originally exercisable by all male freeholders in the county. However in 1429-30,² the county franchise was restricted to freeholders of substantial freehold properties (worth more than 40 shillings per annum) by virtue of the Act of Parliament numbered 8 Henry VI cap VII and entitled What sort of men shall be choosers and zvho shall be chosen knights of the parliament. This restriction on the county freehold and thus the franchise (known as the 40 shilling franchise) continued until the 19th century. The reason for this restriction is given in the preamble to the statute:

1 Although, as we shall see, university franchises were introduced and the middle of the 19th century was marked by proposals to introduce all sorts of 'fancy franchise'. These matters, including the 'fancy franchise' are discussed in Chapter 2.

2 The regnal year (8 Henry VI, dating from the anniversary of Henry's coronation), the legal year (counted from Lady Day – the Feast of the Annunciation - 25 March), and the calendar year obviously do not coincide so some texts give the date of the Act as 1430 whilst others give 1429. The consensus seems to be 1430, but Pickering's authoritative Statutes at Large (1762-1807) gives the date as 1429. That having been said, the conventional date of 1430 is adopted in this book.

Whereas the elections of the knights of the shires to attend the parliaments of the King have in several counties of England recently been made by very large and excessive numbers of people living within the same counties the greater part of whom were of little or no means but everyone pretending to have an equivalent voice in the election to the most worthy knights and esquires living in the same shires will very likely cause homicides riots batteries and divisions between the gentlemen and other people living in the said counties unless a convenient and due remedy is provided.³

3 The original text was in law French. It is unusual to find a statute passed as late as 1429-30 written in law French, especially as England was at war with France at the time. Law French was, by this date, much debased in spelling, grammar and syntax. The probable reason for it being written in law French is that the statute was addressed to lawyers in particular, ie the sheriffs, who were given the responsibility of checking that the voters were qualified. The original text was: 'Item come lez elections dez chevalers dez countees esluz a venire as parlements du Roi en plusours countees dEngleterre ore tarde ount estefaitz par trop graunde & excessive nombre dez gentz demurantz deinz mesmes les counts dount la greinde partie estoit par gentz sinon de petit avoir oude null valu dount chescun pretender davoir voice equivalent quant a tielx elections faire ove les pluis valantz chivalers ou esquires demurrantz deinz mesmes les countes dount homicides riotes batteries & divisions entre les gentiles & autres gentz de mesmes les countes verisemblablement fourdront &ferront si covenable remedie ne soit purveu en celle partie ....' The translation is based on that given by Pickering (op cit, fn 2), but the text is unclear. The word 'valantz' translated as 'worthy' is problematic. JAF Thomson (op cit, fn 5) appears to translate it as 'valiant', but this is without foundation. JH Baker (1990) translates 'vaillance' as 'value' and 'vaillanf as 'worthy or mighty'. 'Worthy' is no more than a compromise and could refer to the knights and esquires being of great moral worth or of great financial worth. The context indicates that it is the latter.

Whether the fear of murders, riots, batteries and any such divisions between the gentlemen and the ordinary people were real or conveniently imagined, the effect was plain; the franchise was restricted in late medieval times on the basis of the ownership of real property. As we shall see in Chapter 2, this restriction was not finally swept away until 1918, indeed it could plausibly be said that it was killed off in 1918, but, as it were, failed to lie down flat until the decision in Hipperson v ERO Newbury⁴ in 1984 or even the amendments to electoral registration brought in by the Representation of the People Act 2000. In various ways between 1429-30 and 1918, the franchise was certainly restricted to men on the basis of an estate in land (the ownership of a freehold or leasehold) despite a number of high profile political campaigns, which are considered in Chapter 2.

4 Hipperson and others v Electoral Registration Officer for the District of Newbury and another [1985] 1 QB 1060.

Thomson comments upon the 1430 changes as follows:

It is clear that Parliament was representative, above all of the landed class, both through its control of the shire seats, with their greater prestige, and by its infiltration into the boroughs. Changes in electoral law were aimed at preserving its (ie, the landed class) authority against both the Crown and its inferiors.⁵

5 Thomson, 1983, p 281.

This clearly demonstrates that political ideology was a major driving force in electoral law from the earliest stages of development.

To give a more modern example is easy. A restriction of the franchise to the relatively wealthy reputedly has a political effect, although the magnitude and direction of the actual effect has been doubted by political scientists.⁶ The reputed political effect of property ownership was stated in ringing tones by Sir Harold Bellman, one of the pioneers of the Building Society movement shortly after the 1926 General Strike:

6 See, eg, Crewe, 1988, p 31. 'Panel surveys refute the idea that voters switch from Labour to Conservative after buying their council house, or for that matter, their shares. House- and share-owners do not become Conservatives; rather Conservatives become house- and share-owners.'

The working man who is merely a tenant has no real anchorage, no permanent abiding place, and in certain circumstances is fair prey for breeders of faction and revolutionaries of every sort and condition. Home ownership is a civic and national asset. The sense of citizenship is more keenly felt and appreciated, and personal independence opens up many an avenue of wide responsibility and usefulness. The benefits of home ownership are not merely material but ethical and moral as well. The man who has something to protect and improve – a stake of some sort in the country – naturally turns his thoughts in the direction of sane, ordered and perforce economical government.⁷

7 Bellman, 1927, p 53.

Whether or riot the property qualification had a real effect upon the outlook of the electorate, all that really matters is that important opinion formers and parliamentarians thought that it did, and this induced them to design electoral law in accordance with their own interests.

If we wish to trace the development of election law and think of the endpoints of franchise reform as being 1430 and 2000, we can count a number of legislative milestones along the way. These are not the only markers, but they seem to be the most significant and they are discussed in more detail in Chapter 2, together with some of the reasoning underlying the reforms. What sort of men shall be choosers and who shall be chosen knights of the parliament set the standard for the county franchise from 1430 until 1832, whilst the borough franchise remained fragmented. The first major reform to the 1430 legislation was accomplished by the Reform Act of 1832, which widened the property-based franchise enjoyed by men over 21 years of age in both the county and the borough seats. These reforms were extended in 1867 and 1884, whereby the franchise was again extended to adult men lower down the property ladder. The major departure from the property-ownership principle came in 1918 when the franchise was extended to all men over 21 years of age and all women over 30 years of age. This was further reformed in 1928 when the voting age was reduced to 21 for women. The next major milestone was the reform in 1969-70, which reduced the age of majority (and hence the voting age) to 18 years of age. The final legislative reform came in 2000 when the move away from the franchise being dependent upon a person living in at least some form of identifiable property was completed. This is a brief sketch and the description will be completed in Chapter 2, but it is sufficient to show that the ideological premises upon which the franchise is based have (unsurprisingly) changed over the centuries. In 1430 only reasonably well-to-do adult men had the vote; by 2000 the franchise extended to all 18-year-olds.

The development of the method of voting can similarly be traced, although the milestones are fewer and more dramatic. Until 1872 voting was in person and in public. The Ballot Act 1872 introduced the secret ballot conducted by means of the polling station, the polling booth, the secret (but numbered) ballot paper, and the ballot box. Why was this system introduced? During the period 1832-72, with the increase of the number of electors and the decline of the old methods of rigging elections effected by patronage, friendship and kinship, vote buying and voter coercion became more prevalent.⁸ During this period a number of measures were introduced to control ballot rigging; the election petition procedure was updated and legislation was introduced to outlaw bribery (in its various forms) and coercion (again, in its many forms). The critical steps can be seen as the Corrupt Practices Act of 1854 and the Corrupt Pract...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Contents
• Preface
• Table of Cases
• Table of Statutes
• 1 Law, Public Policy and Ideology
• 2 The Right to Vote
• 3 The Mechanism of Voting
• 4 The Nomination of a Candidate
• 5 Election Expenses
• 6 Challenging the Result of an Election
• 7 The Problem and a Possible Solution
• 8 The Immediate Future
• Bibliography
• Index