Election law. Rocking the vote
4 January 1997
27 November 2013
24 October 2013
6 January 2014
24 January 2014
23 October 2013
THE LAST time the Office of Population Censuses and Surveys looked at the electoral register, it found that three to four million people were missing from it. That many people could vote in a new government. They could keep the existing government in power, for that matter.
These are the unknowns - the young, the homeless, those who have moved house and fallen off the register - who will count in the next election. And the signs are that their absence from the register is being taken seriously.
The young and disaffected are notoriously uninterested in voting. An all-party backed event, Rock the Vote, attempted to entice them to the polling booths. The homeless, on the other hand, are often interested in voting but cannot convince electoral registration officers that they have any rights of residence. A campaign by The Big Issue and homeless charity CHAR last year, argued that only a change in electoral law could enfranchise the estimated 156,000 homeless people in the UK.
The pressure group, Liberty, moved a step further, when it championed the appeal of a homeless man, Kevin Lipiatt, against the decision of his local authority in Cornwall which denied him the right to vote. Lipiatt won his appeal in March last year and the decision was hailed as paving the way for all homeless people to have the right to vote.
Putting these thousands of people on the register is just one aspect of increased electoral agitation. Those in the know will be watching out for abuses of the system and party political sharp practice.
One of these is electoral law expert and London lawyer Gerald Shamash. He is no stranger to electoral foul play, acting for Labour on several petitions, including a private prosecution brought by an unsuccessful candidate. Political pundits have predicted a dirty fight at this general election, and the parties no doubt have some trip wires ready.
Shamash, senior partner at Steel & Shamash, is not so ready to condemn the parties. "This election will be very hard fought," is all he will say. "I think the system will work but it has to be improved."
Improving the system means several things. Substantially, it entails reviewing the 1985 Representation of the People Act. But there are many areas where the system is being exploited or even flouted and these need to be policed and attended to in readiness for what must be the most eagerly awaited election in decades. The worst possible scenario, says Shamash, is if the election were to be decided in the courts.
The electoral register is compiled every 10 October, in "one hit". This is where the first problems occur, says Shamash. The system is driven by money. If local authority funds dry up, then efforts at finding "lost" people to put on the electoral register are abandoned after a couple of tries. Certain classes of elector fare badly in this system: those in rented accommodation, the young, the homeless and the minorities whose English is not good.
"I think the Government ought to commit sufficient funds as it does for the census," says Shamash.
Other countries have dealt with the problem at root. In Sweden everyone is given an identity card at birth, which they must produce when voting. But in the UK the concept of an identity card has traditionally met with opposition on the ground that it infringes civil liberties.
The splitters and the spoilers
The system of candidate nominations is the one most obviously ripe for an overhaul. This has been amply demonstrated in recent years when candidates have come up with misleading names in a clear, though disputed, effort to confuse the electorate. These are the spoilers, who claim that names like the "Literal Democrats" or "Conversatives" are genuine and not a way of dividing a constituency's votes.
Then there are the splitters, who appear for one local or by-election with titles like, "Official Conservative" or "Inde- pendent Labour".
The official parties can do little to protect themselves from such tactics. Parties are not legally recognised and cannot claim copyright infringement when their names are used and slightly altered.
One solution, which has been submitted by Shamash to the Home Office, is for party logos to be required to go on ballot papers. Logos, which can be copyrighted, can be instantly recognised by the electorate.
Another suggestion, which is less convenient, is for disgruntled parties to make an application to the court against a spoiler, leaving the judge to decide whether the party has a genuine entitlement to the name.
Candidate expenditure is tightly controlled under the 1985 Representation of the People Act, but the area has become an election minefield. Candidates have around £7,500 to spend on their campaigns and are forbidden to overspend. If they do, opposing parties are quick to blow the whistle. The trouble is, how to determine when a campaign starts and when a candidate is a candidate. Although the Act is clear on when the latter occurs, Shamash still thinks parties could do with clearer guidance.
The expenses trap means parties are forever trying to promote their people without officially naming them as candidates. "You get this phoney war which goes on from now until the election when parties do everything to promote candidates without falling foul of the Act," says Shamash.
In marginal seats a mere handful of votes can make a huge difference to the political complexion locally and nationally. It is these seats in which allegations of vote stealing are most often made.
An article in The Guardian in 1994 highlighted the nefarious business of "granny farming" or proxy voting. It reported the case of Miles Parker, a Conservative Party political agent, who was convicted of two criminal offences relating to "stealing votes". In Parker's case, a Conservative canvasser called on a house in Enfield, north London, and asked if he could rely on her vote at the up-coming council by-election. The occupant said she and her husband would be away on holiday.
The article says: "This by-election was on a knife-edge. The seat had always been marginal, the turn-out was likely to be low, and the outcome would probably turn on less than a hundred votes."
The canvasser brought back a form for her to fill in. The form had two sections - one where voters can apply to vote by post and the other where they can vote by proxy. The couple opted for a postal vote and the form was returned to local Conservative headquarters.
Here, the court heard, Parker put a line through their request, substituted a proxy vote request and summoned a party worker to cast the couple's vote for them. But the couple decided not to go on holiday after all and turned up to vote at the polling station only to find that their vote had already been cast.
This case is alleged to be the tip of the iceberg. Generally, such interference does not come to light or it can never be proved.
When Shamash did research on the subject, in conjunction with Labour MP Jeff Rooker for a draft Bill, he discovered that one person, who had not been in the country for 10 years, found out that her proxy vote was being cast for her without her permission.
The case for a commission
Local and general elections throw up all these issues and several others. Shamash advocates an independent commission - a body which could keep election procedure and the Act under review.
"The Representation of the People Act was drawn up over hundreds of years of cases. It's a sophisticated piece of legislation. It needs to be thoroughly modernised," he says.
A commission could look, too, at other thorny issues surrounding elections, such as the petition system and defamation in election campaigns.
All these issues would suggest the potential for malpractice on a vast scale. But Shamash, who has travelled extensively abroad to help emerging countries form their legal structures, has a lot of faith in the British system. "Lots of countries copy our electoral system," he says.