Select Committee on Home Affairs Appendices to Minutes of Evidence (Volume II)

Appendix 2

Memorandum by Professor Robert Blackburn, BA, MSc, PhD, FRHistS, Solicitor, Professor of Constitutional Law, University of London (King's College)

Electoral Law and Administration

"At the bottom of all the tributes paid to democracy, is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper . . . The foundation of all democracy is that the people have the right to vote [and] have the right to choose representatives in accordance with their wishes and feelings."

(Winston Churchill, PM, House of Commons debate, 1944)


"The Labour Party is committed to examining all aspects of electoral law and administration and to ensuring that citizens are aware of their voting rights and responsibilities."

(Labour Party, A New Agenda for Democracy, 1993)


"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature"

(Protocol 1. European Convention on Human Rights, as incorporated into UK law by the Human Rights Bill, 1998)


I warmly welcome this inquiry of the House of Commons Home Affairs Committee into the state of the United Kingdom's electoral law and administration. Political attention on modernising the electoral system has tended to focus principally on proportional representation, currently being studied by the Independent Commission on the Voting System chaired by Lord Jenkins (due to report this summer) and on the financial affairs of the political parties, now being examined by the Committee on Standards in Public Life chaired by Lord Neill QC (also due to report later this summer). Important though those subjects are—and indeed they interconnect in many respect with the field of inquiry of this Committee—they are just two aspects of a far broader picture that goes to make up the whole process by which we seek to promote fair and free elections.

It is now widely believed that many features in the way we organise and regulate the conduct of elections and electioneering in Britain are out-of-date and have failed to keep pace with the rapidly developing social and technological changes of the late twentieth century. In recognition of this, the Labour Party in its 1993 constitutional reform proposals committed itself to an in-depth review of all aspects of the subject. Now in government the Labour leadership is equipped to carry out that pledge. At the start of 1998, Labour's home office minister George Howarth set up a Working Party into Electoral Procedures. Whilst a home office review of this kind is 7routine after every general election, it is anticipated that this inquiry will prove more fruitful and wide-ranging than others before it. The inquiry of the House of Commons Home Affairs Committee, therefore, has an important role to play, both in contributing to the deliberations of the current home office review and in providing a focal point and lead for parliamentary debate and scrutiny of forthcoming government action in the field of electoral law and administration.

The Guide for Witnesses before Select Committees requests a brief introduction to the person submitting evidence. My interest in the conduct of parliamentary elections derives from my University work as a lecturer, researcher and writer on constitutional affairs. I have held academic posts at London University for eighteen years, having earlier gained qualifications in History, Political Science, and Law. I currently hold the Chair in Constitutional Law at King's College, London. My doctoral thesis in 1983-86 explored the theory and practice of the dissolution of Parliament, which effectively controls the date of a general election. Between 1989-94, I prepared a 500 page study of elections to the House of Commons entitled The Electoral System in Britain (London: Macmillan, 1995). That work—copies of which have been distributed to members of the Committee—contains chapters dealing with: (1) British Parliamentary Democracy, (2) The Timing of General Elections, (3) The Electorate: Voters and Voting, (4) Parliamentary Constituencies, (5) Parliamentary Candidates, (6) Election Campaigns: Publicity and the Media, (7) The Financial Affairs of the Political Parties, and (8) Proportional Representation. This Memorandum is largely based on research and thinking that went into my book.

The subject of electoral law and administration is very wide, and for present purposes I have selected just ten matters for the Committee's consideration. All relate principally to elections to the House of Commons. Some raise issues of major general importance to the electoral system, notably General Election Timing, Compulsory Voting, and an Electoral Commission; others deal with particular points of principle or procedure affecting the right to vote and stand for election as an MP. If there are further issues which Members of the Committee wish me specifically to comment on, I will gladly deal with them in a supplementary Memorandum. The following sections deal with:

1.  The Expatriate Vote

2.  A New System of Voter Registration

3.  Double or Multiple Registration

4.  General Election Timing

5.  Candidates: The Age Limit

6.  Candidates: Religious Discrimination

7.  Reforming the Electoral Deposit

8.  Promoting the Secrecy of the Ballot

9.  Compulsory Voting

10.  An Electoral Commission

The aspects I have selected focus on areas where I believe the case for some modification of existing practice is strong and where it seems to me that widespread political acceptance of the desirability or need for legislative and administrative action now already exists or is most likely to be forthcoming.


During the 1980s the Conservative government brought forward legislation granting successive extensions of the franchise to British nationals who were no longer resident in the UK. Some claimed that this had the effect of maximising the Conservative Party vote, on the assumption that the relatively affluent tend to vote Conservative and that persons living abroad tend to be relatively affluent. True or false, the Representation of the People Act 1985 allowed persons to continue voting in the constituency where they were last resident for a period of up to five years' absence. This was then taken much further by the Representation of the People Act 1989, which permitted such voting in UK elections for a period of up to 20 years' absence.

This means that an expatriate living 100s or 1,000s of miles away, for the duration of up to a period exceeding a whole generation, carrying memories of British politics in the past and with little or no personal knowledge of contemporary issues in the constituency where he or she used to live, can influence the election of the government of a country to which he is not subject and to whom he or she may be paying no taxes. Indeed many such persons may have left the country specifically to avoid paying taxes here, yet now since 1989 have been rewarded with a vote in the country's affairs. Each parliamentary constituency's registration officer at present compiles a list of overseas electors, to whom letters are sent each year reminding the voter of the need to make an overseas elector's declaration in order to remain on the register. This declaration confirms the person's British citizenship and non-residence, and gives the date of his or her last residence in the United Kingdom. The overseas voter can then vote in that constituency in which he last resided at some time within the last 20 years, and may use a proxy for the purpose who may not live in the constituency at all.

This extension of voting rights flouts two traditional principles of the British electoral system, namely that the basis of the parliamentary system is the representation of constituencies, and that the basis of the right to vote is one of residency in a constituency. It was largely for these reasons that the Home Affairs Select Committee of the House of Commons in its Report in 1983 unanimously rejected the introduction of giving all expatriates the right to vote, recommending instead that it be restricted to British citizens working or living within the European Community.

Government and related personnel working overseas, such as members of the armed forces and Embassy officials, have always had the right to vote, however long the absence from home, and special arrangements are made for them. But for other overseas voters, some modification of the law is necessary. It is estimated that some three million persons are now eligible as overseas voters, though in 1992 and 1997 the number of such persons actually wanting to vote was below 40,000. Only a small proportion of expatriates, therefore, appear actually to desire still to be involved in the political affairs of the country they have left behind.

One approach is simply to reduce the period of absence from the constituency down from 20 years, perhaps to five years as in the original 1985 Act conferring the right to vote upon non-resident British citizens. Two better approaches, aimed at citizens working temporarily abroad, would be either (A) to abolish this novel extension of the 1980s altogether but reserve a right to vote to those persons overseas who owned a house in the United Kingdom and lived in it for part of the year, or preferably (B) to revert to the five year period of the 1985 Act but at the same time make the right to vote dependent upon a genuine intention to return to this country. Such an intention is expressed in a person's choice of domicile, which is a legal concept used mainly in family law, and is also of some significance for inland revenue tax purposes. Domicile, therefore, should become a principal factor in a British citizen's eligibility to vote. British citizens abroad should be permitted to vote for only such length of time, up to a maximum of five years, that they declare their domicile to be in the United Kingdom and thus retain a firm root in its body of citizenship.


Within Great Britain there is no required duration for which the citizen must have lived in a constituency in order to be qualified to vote there. A person must simply have been living in the locality on a "qualifying date" (which is 10 October). In Northern Ireland, however, a requirement for three months' residency applies (and there is a separate qualifying date, 15 September). Residency is established by forms being sent out to the occupier of each household in the United Kingdom from the electoral registration officer for each constituency several weeks before the qualifying date.

Persons who are otherwise legally qualified to vote may only be permitted to do so if their name has been accurately entered on the electoral register in the constituency where he or she has been living and wishes to vote. The quality and efficiency with which the electoral register is drawn up, therefore, is crucial to the operation of our electoral system. The legal responsibility for this important administrative task in each constituency is that of electoral registration officer appointed by the local authority. The duties and powers of electoral registration officers are laid down by the Representation of the People Act 1983 which requires them "to prepare and publish in each year a register of parliamentary electors for each constituency or part of a constituency in the area for which he acts". The names of people who are resident in the constituency on the statutory qualifying date must be entered on the register, which then becomes operable on the following 16 February for the purposes of any general election held during the next 12 months.

At the 1997 general election, there were 44,204,000 names entered on the electoral register, accounting for 95.2 per cent of the resident adult population in the preceding mid-year. This was an increase of 479,000 electors over the situation in 1992 and represents a considerable improvement over the early 1980s when the House of Commons Home Affairs Committee last inquired into electoral registration and found a discrepancy between eligible and registered voters standing at 9 per cent, rightly described in its report as "an alarming degree of inexactitude". Sustained efforts at increasing the numbers and accuracy on the register have been made by registration officers in recent years, including more advertising and greater door-to-door efforts to ensure the return of the annual request sent out to all householders for information on the persons resident in their home.

To sustain and further improve the quality of voter registration in this country, a radical overhaul of its basic system of administration is needed, particularly now that virtually all electoral registration offices are installed with computers. Earlier administrative practices connected with the laborious manual paperwork involved have made the present annual method of voter registration an anachronism. Today a citizen's right to vote should be founded not upon an arbitrary annual anniversary as at present, but upon the date on which he or she files a claim of eligibility to vote in a particular constituency. In other words, electoral registration should become a "rolling" exercise, being constantly up-dated, with the annual issue and return of forms to householders being just one method of verification and accuracy of the register. Such a proposal was endorsed by Labour policy documents in 1993, both in A New Agenda for Democracy: Labour's Proposals for Constitutional Reform and in the Report of the Working Party on Electoral Systems chaired by Lord Plant.

Legislation will be needed to implement this new system of voter registration which could usefully adopt some of the drafting contained in the Representation of the People (Amendment) Bill which was presented to Parliament by Harry Barnes in 1993. Statutory provisions should create the requirement for a rolling register and then proceed to modify the registration officers' duty so that he or she is to take all reasonable steps to ensure that the rolling register is accurate at all times. Persons moving into a new constituency should be placed under a legal requirement to notify the registration officer within three weeks of taking up residence there. Provision should also be made for voters left off the register by accident. It very often happens at present that voters do not realise that their name is missing from the electoral register until the general election is called and they do not receive a official poll card telling them where to vote. Under a rolling register system, provision should be made so that such persons can in fact vote assuming they are otherwise legally qualified to do so at the time the general election is called. The new legislation should require returning officers to publish the electoral register, and send out the official poll cards to all voters, within two days of the dissolution of Parliament, and local advertising and notices in the national and local press should then inform the public that all qualified persons failing to appear on the register or receive poll cards should apply to their registration office immediately to be entered on the electoral roll and be permitted to vote.

Co-ordination and supervision of the new system of voter registration will be desirable, and would best be entrusted to a new national agency set up for this and other electoral purposes, an Electoral Commission as envisaged and proposed below.


It is fundamental that each voter should only have one vote at a general election. However, the situation regularly arises today that a voter is treated as being "resident" in more than one parliamentary constituency, and therefore has his or her name entered more than once on the electoral register. To cover such situations section 1 of the Representation of the People Act 1983 precludes double voting by providing that, "A person is not entitled to vote as a elector in more than one constituency."

It was the legal decision in the case of Fox v. Stirk (1970) which confirmed that persons could be treated as being resident in two places for voting purposes. On the facts of that particular case, the court held that University students were eligible for registration and voting both in the constituency where they lived during University term-time and in the constituency where their parents lived and they returned during the University vacation. Lord Denning, then Master of the Rolls, decided that, "A person may properly be said to be 'resident' in a place when his stay there has a considerable degree of permanence". He then went on to lay down three general principles on the meaning of "residence" under the Representation of the People Acts, as follows:

  The first principle is that a man can have two residences. He can have a flat in London and a house in the country. He is resident in both. The second principle is that temporary presence at an address does not make a man resident there. A guest who comes for the weekend is not resident. The third principle is that temporary absence does not deprive a person of his residence.

Currently, this means that a person "resident" in more than one constituency has a choice of where to vote. Dual or multiple registration—and thereby a choice of constituency at general elections applies most commonly to our more affluent citizens by virtue of their ownership of two or more houses. Such persons may travel to (or apply for a postal vote at) the constituency rather than the one where they spend most of their time. Furthermore, persons registered in two or more constituencies may prefer to cast their vote in the constituency which is more marginal and therefore where their vote is more likely to prove of political impact to the result.

It would be preferable to remove this element of electoral chicanery which has systematically favoured the better-off. The principal solution required is that persons who live at two locations or who own properties in different constituencies should be required to nominate a 'main residence' for voting purposes. This process of nomination might be guided by a set of criteria, laid down either in the Representation of the People Act or in some code of practice drawn up under its authority, and would prove no more administratively difficult to enforce than that which is required at present for capital gains tax purposes. Our electoral law would thereby be amended so that every elector is treated, for the purpose of the right to vote at parliamentary elections, as resident at his main residence only.


Under existing electoral law, the date of the next general election remains unknown to British voters and opposition parties alike, until it is announced by the Prime Minister approximately five weeks before polling is due to take place. All the statute book has to say is that no Parliament should exceed five years in duration (by the Septennial Act 1715, as amended by section 7 of the Parliament Act 1911) and if it does, it will automatically terminate. Even then there is no statutory requirement for a new Parliament to be called and a general election held for a further three years (under the 1694 Triennial Act still in force). This means that in strict legal theory general elections only need to be held once in every eight years.

The legality of electoral timing otherwise is a matter purely for the Royal Prerogative. The Queen carries out the legal ceremonies involved in dissolving Parliament and causing election writs to be issued to constituency returning officers simply whenever the Prime Minister requests her so to do. So long as the Prime Minister retains his majority in the House of Commons (or if a minority administration, can ward off any No Confidence motion), he is free to call a general election whenever he likes. No law or convention exists to require the Prime Minister to obtain the consent of MPs to a dissolution, nor even to oblige him to consult or notify them in the House of Commons. The general election date is cursorily announced to the world in the form of a Press Notice issued direct to the media by the Prime Minister's staff at 10 Downing Street.

And, as everybody knows, a Prime Minister sets an election date at the time when he thinks he is most likely to win it. Conversely, he will avoid such times as he is likely to lose it. The anachronistic state of the law on electoral timing adversely affects the fairness of the election process as a whole. It gives the party in government a tremendous tactical advantage over the opposition parties, and of all the possible flaws to be found in our electoral law and administration, this perhaps above all other matters does most harm to the integrity of the electioneering contest. More generally, it serves to feed the existing sense of public cynicism about the motivation of political leaders.

In his 1991 party leader's conference speech, Neil Kinnock promised that an in-coming Labour government would establish fixed intervals between general elections, so as to do away with the unfair advantage possessed by a Prime Minister to control the election date. The 1992 Labour election manifesto subsequently read.

  The general election was called only after months of on-again, off-again dithering which damaged our economy and weakened our democracy. No government with a majority should be allowed to put the interests of party above country as the Conservatives have done. Although an early election will sometimes be necessary, we will introduce as a general rule a fixed parliamentary term.

Though Labour's policy documents have been quiet on the matter since, it has become firmly established as a Liberal Democrat commitment. Furthermore, since the 1997 election the rationale for the existing system has become ever more tenuous. Even the purported justification that the prerogative of dissolution permits the government some mechanism whereby it may test electoral opinion on some major item of public policy has now evaporated with the government's clear espousal of the institution of referendums in the politics of the 1990s. In the creation of the new Scottish Parliament, a fixed four year term applies and there was never any question of utilising the prerogative or an Order in Council as the basis for its election timing.

The construction of a fixed term for the Westminster Parliament raises more complex issues than at first meet the eye. One important detail to be settled at the outset is the most appropriate length of the fixed interval between elections. Elsewhere in the world, the tenure of members of legislatures or of positions in government office tend to vary between two and seven years. In the USA, members of the House of Representatives (the lower House in Congress) are elected every two years, the President holds office for four years, and members of the Senate (the second chamber of Congress) serve for six year terms. The Parliaments of both Australia and New Zealand operate three year terms between elections. French law operates at the maximum end, with the French President being elected every seventh year, members of the French second chamber (the Senate) being elected for nine year terms, and National Assembly elections being every fifth year. In Sweden, members of the Rikstag serve for three year terms. But the majority of European countries, including Denmark, the Netherlands, Germany, Norway, Portugal and Austria, all regulate the intervals between their parliamentary elections at the period of four years.

In the UK, there can be little doubt that the period between general elections should be four years. The proposal for fixed-term Parliament as a whole should fit as closely as possible into existing constitutional expectations, and the idea that four years is about the right length of time between elections is very prevalent. It was the period expressly approved of as being normal in practice, when the Parliament Act set the period of five years as a maximum. In an ideal democracy it may be that there should be elections as frequently as possible—even annually as supported by the Chartists in the eighteenth century—but a government must be allowed a sufficient period of time in which to put its programme of public policies into effect before submitting its record of achievement, or otherwise, to the voters. Three full legislative sessions, and certainly four, is sufficient for this purpose.

A second important detail must be to lay down clearly the circumstances in which an earlier election might be permitted within the four year period. It is important that there is some such safety-value, as is common in fixed term arrangements in other countries, to provide for those exceptional situations where, for example, the government loses the confidence of the House of Commons, and no new government can be constructed from the composition of the House as it stands. Essentially, the new legislation should provide for the House of Commons to be able to control whether there should be either a fresh general election, or whether there should simply be a change of prime minister and government. The trigger for any such process should be a No Confidence motion in the House of Commons, consisting either of an opposition motion of No Confidence in the government or prime minister being passed, or a government motion seeking the formal Confidence of the House being put forward and lost. If any such motion is expressed towards the government as a whole, then there should be a general election; but if the motion is expressed towards the prime minister, then he should resign office. If it transpires, following a prime ministerial resignation, whether voluntary or through a No Confidence vote, that no prime minister is appointed within a prescribed period of time (say, 20 days), for example because no alternative party leader feels able to form a new government, then again there should be a general election.

It is appropriate that the process of Confidence motions is adopted as the only procedure for an early general election, because any other form of Commons' resolution, such as a vote on dissolution itself, would allow the government to remain in full control of electoral timing. Little would change if dissolution was simply put to the vote or confirmed by the Commons, as has been suggested by some, because assuming the prime minister took the usual care through the whips to ensure the loyalty of his or her own party backbenchers, the government's majority in the House could be relied upon to support the prime minister's decision on the timing of the election whenever he or she chose to put the motion before the House. A simple confirmation vote does have one advantage, however, over existing arrangements, in that before putting forward his or her motion, the prime minister would be obliged to take soundings of backbenchers and Cabinet colleagues to ensure the party voted together. But it is only under a fixed term arrangement subject to No Confidence motions as proposed that one could realistically hope to keep early dissolutions free from political manipulation by the government, and ensure electoral timing was determined by reasons of genuine constitutional need, as opposed to purely party political advantage.


There are good arguments for suggesting that the state of British election law on parliamentary candidature should be codified. Currently, it exists in the form of numerous, diverse disqualifications laid down in a series of ancient common law principles and statutes harking back to the middle ages. However, for the purposes of this memorandum, two particular forms of disqualification will now be considered as representing areas most in need of reform. These are: (1) The age limit for candidature, and (2) The disqualification of Christian priests.

The Labour Party view expressed in A New Agenda for Democracy: Labour's Proposal for Constitutional Reform (1993) was unequivocal that the age for parliamentary candidature, currently 21 years, should be similar to that for voting, which is 18 years. "There is no justification for the continued discrepancy between the age of nomination and voting rights. We believe that it is right that the age of nomination which at present stands at 21 should be reduced to the age of 18." Ironically, however, it was a Labour administration which created the anomaly in the first place. In the late 1960s the Wilson government granted full citizenship to all persons at the age of 18, under section 1 of the Family Law Reform Act 1969. Persons at 18 were now to be entitled to equal civil rights as with any other adult, including freedom from restrictions on property-ownership, the right to marry, the right to bring legal actions, and the enjoyment of a host of other basic rights of citizenship. It excluded voting, but separately in the same year a Representation of the People Act was passed lowering the right to vote from 21 to 18 years. No consideration at that time, either in Cabinet or Parliament, was given to similarly lowering the age at which one had the right to stand for election to Parliament.

So there remains today this inconsistency in our election law, between being an elector at 18 but not being electable until 21. At one end of the political process - the exercise of the vote—the age of maturity is set at eighteen but at the other receiving end—parliamentary candidature—a different level of maturity is prescribed. Arguments for this discrepancy might include that 18 year olds are too immature and inexperienced actually to be working at Westminster and representing the nation, as opposed to expressing a political opinion through the vote. Some would say there is no reason why voting and candidature ages should be automatically identical, and it is true that some other countries have disparate ages. In the United States of America voting is at eighteen, but candidature to the House of Representatives is limited to 25 year olds (30 years in the case of their second chamber, the Senate). In France voting is at 18, but you must be 23 before standing for election to the National Assembly and 35 years for their Senate. On the other hand, it is precisely upon the principle that adults should assume equal civil responsibilities at the same time, and that only the electorate can pass any further judgment on a candidate's suitability for political office, that many other countries including Australia, Canada and Germany make 18 years the age for both voting and candidature.

Some will also argue that reducing the age for candidature will make negligible difference in the number of candidates coming forward, and so it is not worth the bother of drawing up the necessary legislation or amending clause in the next Representation of the People Act. It is again true that in practice few persons between 18 and 20 years of age will wish to start a professional political career so young, and it is very rare for a local party association to wish to select someone at that age as their official candidate, especially as there is always stiff competition from experienced party members and campaigners and from former MPs defeated at the last election looking for a new constituency. Nonetheless the law governing our democracy should reflect points of rational principle, not anachronisms that Parliament has overlooked to debate, or finds inconvenient to find time to consider. Even if only one person is blocked from becoming a parliamentary candidate, in the absence of a sound constitutional basis it is an unjustifiable restriction upon the electoral process. Over the past 25 years there have been many parliamentary candidates in their early 20s, mainly beginning their political careers in unwinnable seats for their parties, but also some who have won and been elected to the House of Commons.

The signs are that there is in fact strong cross-party support for this reform. Many Labour MPs support the idea; the Liberal Democrats have included it in their election manifestos; and in 1985 a group of Conservative backbenchers tabled a Members of Parliament (Minimum Age) Bill on the matter. The 21 age restriction upon candidature should be reduced to 18 years, consistent with the right to vote, at the earliest opportunity. After a person has reached adulthood at 18 for virtually all other civil purposes, he or she should be free to offer himself for election to Parliament, and the law should not restrict the choice of local voters to decide for themselves on the suitability of the particular candidate, and whether or not he or she is the best person to be representing them.


One rather different form of disqualification from parliamentary candidature may also today lead to an injustice. This is with respect to the right of a present or former minister of religion to enter a political career.

For anyone seeking a simple answer to the question "Can a priest stand for Parliament?", reading the legal sources on the subject requires burrowing away in collections of parliamentary statutes to find at least nine separate legislative acts on the subject stretching back to the sixteenth century. The short answer is that some priests are disqualified, and others are not; and some priests can relinquish their ministry to become an MP, but others are unable to do so. The following generalisations apply. (i) Only certain Christian priests are disqualified whereas ministers of all other religious faiths, such as Judaism, Islam and Buddhism, are eligible. (ii) All episcopally ordained priests of the Anglican Church are disqualified, but not in Wales. (iii) All Roman Catholics priests are disqualified. (iv) Nonconformist clergy (being priests not ordained episcopally, in other words not made a priest by a bishop) are not disqualified but they are in Scotland. The reasons for the discriminatory principles applying here between and across different faiths are ones derived purely from our ancient history and have no political justification today.

Furthermore, currently, it is only priests of the Established Church of England who are able in law, under the Clerical Disabilities Act 1870, to resign their ministry in order to become a parliamentary candidate. All other ordained priests are disqualified by British law for life and it makes no difference that they might have given up working as a priest, or lost their faith, or even become a member of some completely different faith, such as Buddhism; they can never be MPs. Into this wide group of former Christian priests who are treated differently from those in the Church of England are those who have ever practised as ministers of the Church of Scotland or ever been ordained into the Roman Catholic Church. Bruce Kent, the former Roman Catholic priest who resigned his ministry to lobby for nuclear disarmament and enter politics, stood as a parliamentary candidate at the 1992 general election for the

constituency of Oxford West and Abingdon (comfortably won, in the event, by the Conservative candidate). In fact, under present electoral law, Mr Kent was disqualified for life from ever becoming an MP. If he had won the constituency election, he would have been unable to take up his seat at Westminster. The situation would have been analogous to the position of Tony Benn MP in the 1960s, who found himself disqualified from membership of the Commons for life by virtue of succeeding to his father's hereditary peerage in 1960, until the Peerage Act 1963 was passed permitting him to renounce his hereditary title.

Many people will believe that there are one or more good reasons why, as a general principle, it is preferable that active ministers of religion do not stand as parliamentary candidates. But it is important to emphasise that this does not mean automatically that the state should ban them by law from doing so. The original reasons for the ancient clergy disqualification statutes have long since ceased to exist. Roman Catholic priests are no longer seen as potential subversives, and the Anglican clergy no longer represent a fourth estate of the realm. Still less should the state use the law of the country to disqualify clergy in such an inconsistent and illogical fashion, so that the Reverend Ian Paisley can be an MP by virtue of being a Nonconformist but other priests who are Anglicans or Roman Catholics are subject to legal prohibition. Perhaps most objectionable of all is that only Anglican religious ministers can choose one profession or the other, and relinquish religious office for a new career as an MP, but all other ordained priests cannot do so.

One simple reform that would be a definite improvement would be simply to extend the terms of the Clerical Disabilities Act 1870 to cover all disqualified priests. But more generally it is wrong for the state today to be regulating a matter that should more properly be for internal Church discipline to decide. The objections to priests standing for Parliament are canonical ones, not constitutional, and it should be ecclesiastical law, not the state, that imposes disqualifications upon a cleric's political liberties. It is for the individual Churches concerned to decide whether or not to impose restrictions as a matter or religious ethics, or incompatibility of the two professions, as a necessary condition of the priest's particular work. And just as a civil servant can resign to go into politics so too should a minister of religion be free to do so. Ultimately the question of the individual's suitability for politics should be left to the local electorate to decide, and it is fundamental that there should be as few restrictions as possible upon the right of the voters freely to decide whom they wish to represent them. There are basic principles of political liberty involved here, about which British public policy as enshrined in its law is muddled and which the government and Parliament seem reluctant to confront and prefer to ignore. In recent times, there has been growing support within the Anglican Church for reform of clergy disqualification. In 1982, its General Synod carried a motion that "this Synod believes that clergymen of the Church of England should be free like other citizens to take their seats as elected Members of Parliament". It is time for the clergy disqualification legislation simply to be repealed.


Parliamentary candidates cannot be validly nominated unless the sum of £500 is deposited by them or on their behalf with the returning officer during the time for delivery of nomination papers. The money may be handed over in cash, or by banker's draft, or any other manner acceptable to the returning officer. This £500 will be returned to the candidate after the general election if he or she managed to collect at least 5 per cent of the total votes cast in the constituency, but if the candidate polls less than 5 per cent then he or she loses the money which then goes to the treasury. There exists a serious issue today in our electoral law whether this requirement of a financial deposit is consistent with the democratic right of every citizen to stand for election if he or she wishes regardless of financial status.

From a comparative perspective, the present deposit system—and the desire in some quarters to push the sum of money involved even higher—is an extraordinary state of affairs. Only four other states in Europe (France, Ireland, Greece and the Netherlands) and none in the USA have deposit systems at all, and even in those four states the sums required are far lower than the £500 at present demanded of a parliamentary candidate in Britain.

Prior to 1918 candidates had been nominated without any need to deposit sums of money with the returning officer. The Home Office's invention of the deposit in 1918 was barely mentioned, let alone properly discussed, during the otherwise very lengthy debates on the parliamentary passage of the Representation of the People Act, but a tacit acceptance seems to have existed at the time that some capital requirement was a good idea in order to keep out unsuitable candidates. Undoubtedly, there were many within the political establishment at that time who regarded the fledgling Labour Party and its trade union and working class candidates (who would be hit hardest by the requirement of a deposit) as less than top-class parliamentary material and a potential threat to the good government of the country. This same idea of the deposit being a tool for keeping out "unsuitable" candidates is still inherent in our law today and is democratically indefensible.

Those who justify the deposit seek to put off candidates indiscriminately upon the basis that they have no serious chance of winning. As Sir Leon Brittan said, when defending the Representation of the People Bill as home secretary in 1985. "The deposit is a perfectly respectable parliamentary barrier founded in principle. The deposit is founded in principle because the essence of election to Parliament is the contest between people who have serious aspirations to represent a constituency". However, surely it is essential to draw a distinction between (A) joke candidates who by their own admission are out to make mischief for one or more of the other candidates or who are otherwise seeking publicity for some selfish reasons; and (B) serious candidates who may stand no realistic chance of winning but who legitimately seek to draw attention to their views, contribute to political debate and display what level of popular support they happen to posses. The latter have every right to engage in the democratic process of electioneering as candidates and our election law should seek to promote and facilitate that right, not obstruct it.

One of the most important objections to the deposit is that it financially penalises serious minority parties and independents, who are least able to afford to put forward sizeable sums of capital, especially when added to their expenses in financing their election campaign, such as printing election addresses and posters. At the 1992 general election, for example, the Green Party fielded 253 candidates, which necessitated a capital investment of £126,500, and every single candidate lost their deposit by polling below 5 per cent of the local votes, though 170,047 electors across the country voted for the party. Were the Greens not serious candidates therefore? Did they detract from the seriousness of the general election? On virtually any democratic interpretation of their involvement that can be made, they should be regarded as having constructively participated in the election debate by directly putting serious environmental issues across to the voting public (and indirectly, having legitimately put pressure on the main parties to help make the issues they were drawing attention to a higher priority within those parties' policy programmes).

Conversely, defenders of the deposit tend to exaggerate the negative impact of minority or fringe candidates. How many of us can ever remember actually being seriously misled or confused by a candidate such as Screaming Lord Sutch? No doubt many people see some of the fringe parties apart from the Greens, notably the Communist Party and the British National Party, as extremist groups on the Left and Right who should be excluded from the political process altogether. But this may be short-sighted; by obstructing such groups from participation in the electoral process, extremist politics may be fed by a legitimate sense of grievance and be driven in the direction of extra-parliamentary tactics.

Clearly, some form of support for an individual's candidature should apply. Parliamentary candidates have rights, privileges and advantages conferred upon them (such as the right to free postage of election addresses, the right to free use of publicly maintained buildings for public meetings, and the right to veto broadcast transmission of material relating to the constituency election) and an unrestricted exercise of the freedom to stand for election can therefore be open to abuse, for example by businessmen seeking free advertising for their products. But the way to resolve that problem is not by penalising all candidates who do no belong to the major parties, but by establishing some procedures indicating that the candidate has some measure of political backing.

The requirement of a financial deposit should be abolished and replaced by a new form of requirement involving a candidate being nominated by a much larger prescribed number of local electors nominating him or her. An appropriate number of such nominators would be 200. Each person putting their name to the nomination should be required to sign the papers, and add in a clear, legible form their full name and electoral registration number. The statutory provision should permit the list of nominations to be drawn up at any time within one year prior to the election date, so that proper care and consideration can be given to the matter (and avoid a rush in the six days following the Royal Proclamation). The lists of nominators for each candidate should be displayed in a public place, and published in at least one local newspaper. The fact that a nominator's electoral registration number must be stated would avoid petition-like gatherings of names for frivolous candidates in town centres, since the person approached would need to have time to find out his electoral number and this would ensure a period of serious reflection. On the other hand established parties, whether one of the three major parties or a smaller organisation like the Green Party, would have no difficulty in arranging for a sufficient number of local party members to sign the nomination papers.

Finally, the predictable objections to replacing the financial deposit with an extended nomination system should be answered. In the Conservative government's white paper prior to the Representation of the People Act 1985, it was suggested,

  A requirement of this kind would greatly increase the work of the acting returning officer, who would have to check the signatures on each nomination paper against the electoral register in the busy period before nominations close, and it would increase the risk of a nomination being held invalid on purely technical grounds. But the main objection, in the Government's view, is that a candidate's ability to produce signatures is no test of the number of votes he or she will receive in the Election.

There are three points here to answer therefore. First, it is said this "would greatly increase the work of the acting returning officer". To use the word "greatly" here is a serious exaggeration. It has been calculated that it would take one minute on average to check each signature. In other words, all the nomination lists could be checked within one working day by a competent official, and even if in the planning of resources allowance was made for an extra working day to deal with exceptional cases where an allegation of impersonation needed to be investigated, the total work involved would still only be two working days for one official, at a total cost of around £200. Second, it is asserted that a nomination procedure as proposed "would increase the risk of a nomination being held invalid on purely technical grounds". This too is a very weak argument. Good planning by the candidates' organisations would always ensure that there was a small number of signatories in excess of the 200 required, say 225, so that in the unlikely event of one or two of their supporters proving ineligible (for example, not actually being registered on the electoral roll) there would still be the statutory number required. The third objection stated is that, "a candidate's ability to produce signatures is no test of the number of votes he or she will receive". This, as the political editor of the New Statesman commented at the time, is "the worst argument of all. The point of setting any hurdles is not—or should not be—to block serious minority candidates, but to block frivolous ones." Certainly persons nominating a candidate would not necessarily be undertaking to vote for him or her personally (though in the majority of cases they will in fact do so). But this misses the whole point of the nomination procedure: what is being suggested is a legal requirement for the judgement of a substantial number of local electors to be expressed on the suitability of the candidate to participate at the election.

This would replace the present insidious barrier existing at present in our electoral law that penalises or blocks serious parties and candidates from participating in the democratic process, whilst still allowing affluent individuals who can afford to lose £500, however frivolous, regardless of whether or not there is any substantial support for his or her nomination.


It is a basic constitutional principle that everyone should be able to exercise their right to vote in conditions of secrecy. There are three associated aspects to this principle which need to be distinguished and born in mind when examining current electoral law on the secrecy of the ballot. First, there must be conditions of secrecy at the polling station such that no one may observe or seek to influence voters. Second, legal and administrative procedures should prevent ballot papers being matched with other documentation to discover how persons voted. Third, the information of how people choose to cast their vote should not be recorded in any form without the express knowledge and permission of the voters concerned.

British electoral law on the secrecy of the ballot is to be found in the Representation of the People Act 1983. The Act specifies that "votes at the poll shall be given by ballot", and lays down a wide range of stipulations for maintaining the secrecy of how electors have voted. All officials and other persons allowed to attend the polling station are required to "maintain and aid in maintaining the secrecy of voting". Detailed requirements prohibit any interference with voters or attempts being made to discover for which candidate he or she voted, and regulations specify who is and is not permitted to be present inside the polling station. The rigour of our legal theory behind the secret ballot might even be regarded as excessive in certain respects: for example, if a person voting wishes to identify himself and write his name or initials on his ballot paper, the effect of this will be to invalidate his vote altogether.

This great stress in the 1983 Act of Parliament on the secrecy of the ballot stands at some odds with the obvious flaw in the modern British practice of ballot voting. Casting one's vote in the polling booth in circumstances of privacy is to be sharply distinguished from the equally important matter of maintaining the secrecy of how each citizen actually voted. In this second respect, there is and never has been a secret ballot in Britain, because the way in which individual citizens vote can be traced from each ballot paper used. Every ballot paper given to the citizen who is voting contains a serial number on it, which is also printed on the counterfoil retained by electoral officials. Before a ballot paper is handed to the citizen, he is asked for his name and address (or preferably to show the clerk his official poll card which shows his name, address and electoral registration number on it). The polling clerk then traces the person in the copy of the electoral register that he has on the table in from of him, and ticks the voter's name off the list. The clerk then tears one of the ballot papers out of the book of papers printed for the purpose, hands it to the voter and directs him or her to the private booth. And then the clerk writes the electoral registration number of the voter on the counterfoil to the ballot paper just issued.

This means that after the election documentary information is in existence which will disclose who voted for which particular party in the constituency. The count by the returning officer's officials leaves all votes for each candidate in separate bundles, which are then placed in paper sacks with special labels and seals supplied by Her Majesty's Stationary Office and forwarded to the Clerk of the Crown in London. It is possible for the serial numbers of these ballot papers to be matched against those retained on the counterfoil stubs which disclose the electoral registration number—and therefore name and address of citizens and how they voted—which are similarly forwarded to the Clerk of the Crown in London. Copies of electoral registers are already available on computerised disk, and in the future computerised counting of ballot papers by means of electronic vote counting machines is likely to replace manual counting of votes. If computers now in existence are able to read numbers on stacks of papers, then the technology for speedy cross-referencing and making such political inquiries is already with us. It seems that computerised matching and print-outs of entire lists of voters for each party is now perfectly possible. It may or may not be far-fetched to conjecture that at some point in the future an oppressive government or its over-zealous officials might surreptitiously wish to find out the name and address of all "dissidents" who voted against them at a general election, but if so the bundles of ballot papers and counterfoil stubs retained by the Clerk of the Crown are available for analysis to produce the necessary information. Of course the law prohibits such inquiries, but the practical reality is that compliance with and enforcement of the law ultimately depends upon the various interested agencies of government themselves.

The ostensible argument for putting the voter's electoral registration number on the counterfoils of ballot papers is said to be that it facilitates investigations into alleged electoral offences, such as multiple voting and impersonation, so as to decide whether a fresh election needs to be ordered by the Election Court. However, vote-tracing hardly helps in the detection and prevention of any offence in itself, for there is no way that the identity of the impersonator can be discovered from the ballot paper. Investigations of such electoral fraud, involving voters finding out when they arrive at the polling station that their name has already been ticked off the electoral register by the clerk, can rely upon the evidence of the polling clerk that a ballot paper has indeed already been handed to some impersonator—tracing the ballot paper itself is not necessary.

The case for recording voters' registration numbers on the ballot counterfoils therefore is a weak one and cannot outweigh a growing public concern at the risk to the secrecy of the ballot. The regulations contained in the Representation of the People Act limiting the legal circumstances in which the information may be retrieved may be sufficient as rules themselves, but guaranteeing actual compliance with the rules in the real world raises more complex questions; for whilst the information to discover how individual citizens voted continues to be stored, the potential for their misuse remains. The practice of writing voters' electoral registration numbers—or entering any other note which might disclose a voter's personal identity—on the counterfoils of ballot papers should be expressly abolished by law.

As part of this reform, two new measures are desirable to help strengthen existing practices designed to combat the potential for voter impersonation. First, as suggested above, citizens should be eligible to vote in only one constituency, being their main place of residence. This would remove the ease with which dual or multiple voting could take place as a result of dual or multiple electoral registration being permitted under existing law. Second, voters throughout the UK, as is already the case in Northern Ireland, should be required as a matter of course to produce formal identification to the polling clerk—being one of a list of specified documents, for example passport, birth or marriage certificate, driving licence or National Health Service card—before being ticked off on the electoral register and given a ballot paper.


The question whether voting should be made compulsory in the UK has never been seriously considered by past government or parliamentary inquiries into election law. It was one of the large number of issues identified for inquiry in 1982-83 by the House of Commons Home Affairs Committee, but in the event it was not examined in any depth in its discussions and was not even mentioned in its final Report. A significant shift in opinion, however, now seems to be taking place on the subject. Many Labour members have been advocating compulsory voting in recent years, including some who are now members of the Labour government. Labour's 1993 policy document, A New Agenda for Democracy: Labour's Proposals for Constitutional Reform, included a reference to the need for citizens to be made more aware of "their voting rights and responsibilities". Meanwhile, public opinion polls would seem to indicate that a majority of people in the UK actively support such a change in our election law.

Whether or not the moral duty to vote should be crystallised into law confronts traditional British feelings about encroaching upon a citizen's "right to be left alone". But the introduction of a legal duty to vote would merely be consistent with the legal compulsion in the first place to register one's name and address as a voter at the local Town Hall. Several countries abroad have introduced compulsory voting, including Australia, Belgium, Greece, Luxembourg and Italy, and the obvious result is a far higher turnout of the electorate (even if 100 per cent is never in practice attainable), and therefore a more comprehensive expression of public opinion at the polls. The turnout of voters at general elections in Britain since 1945 has been as follows:

Table: Turnout of voters (general elections)

1945 72.8%
1950 83.9%
1951 82.6%
1955 76.8%
1959 78.7%
1964 77.1%
1966 75.8%
1970 72.0%
1974 (Feb) 78.8%
1974 (Oct) 72.8%
1979 76.0%
1983 72.7%
1987 75.3%
1992 77.7%
1997 71.5%

The traditional British view on compulsory voting has been that politics is an essentially voluntary exercise and people should be left alone to decide for themselves how and whether to vote. Some also believe that it is no bad thing if the country as a whole is relatively depoliticised, and this is simply reflected in a number of citizens not being sufficiently interested in turning up at the polling station to vote on election day. Some have said that compulsory voting is only needed in countries with a weak political culture or fragile national identity. The (then) Liberal Party argued, in giving evidence to the Home Affairs Select Committee in 1982, that compulsory voting produces an undesirable "donkey vote", presumably meaning that groups of politically-mindless UK voters would be forced into the polling booths. A final reservation has been the alleged impracticality of enforcing such an obligation, a factor that has troubled some election administrators such as officials in Rochdale (who spoke of "severe enforcement problems and there would be the problems created by electors who could not vote on account of sickness" in giving evidence to the Home Affairs Committee in 1982.

These arguments when looked at closely are rather weak. There are few practical problems of compulsory voting in Australia. Easier voting arrangements, such as greater use of postal voting or (as in Australia) centres in each constituency where voters from other constituencies might vote, would alleviate any hardship on voters with physical disability or with travel commitments, and for the ordinary voter a walk to the local ballot station is hardly a taxing exercise. The "donkey vote" argument is highly suspect if it assumes that people who choose not to vote are on the whole likely to be any weaker in their mental faculties than many people who do vote. Neither is any draconian enforcement of compulsory voting any more likely than prosecutions at present for householders failing to complete and return the annual forms requiring details of all persons resident in the home sent out each year by the electoral registration officer, for which the 1982-83 Home Affairs Committee inquiry on the Representation of the People Acts found there were just three prosecutions in 1979, one in 1980, and four in 1981.

On the other hand, there are good reasons of principle and practice supporting the idea of compulsory voting. First, few would disagree with the proposition that individuals are under some degree of moral obligation to participate in the operation of the democracy to which they belong. Citizenship involves responsibilities as well as rights, and compulsory completion of ballot forms would simply be consistent with the nation of a social or moral duty to vote. Such a duty, of course, falls short of being compelled to vote positively for persons of whom one disapproves, which could conceivably include all persons named on the ballot paper. An important detail of any legislative provision on compulsory voting, therefore, will be to expressly provide for those electors who consciously wish to abstain and vote for none of the candidates. All ballot papers, therefore, would need to contain a box in addition to the names of the candidates (and, where applicable, parties) against which the voter could signify an abstention.

Second, there is reason to suppose that a duty to vote would tend towards a better informed electorate as whole. Compulsory voting would transform the work of party workers and canvassers away from "getting out the vote" (in other words, persuading people to go to the polling station) and allow them to concentrate more on talking with voters about the issues and policies that are represented by their party. At present, local party electioneering concentrates almost entirely on canvassers identifying where their party's support is the greatest, so that their colleagues acting as "tellers" waiting outside ballot stations on polling day can try to calculate which of their supporters have voted, and then instruct other party colleagues to call at non-voters' homes to try to persuade them to vote. If everyone knows that they are obliged to fill in a ballot paper and vote, some may prove more diligent in finding out more about what the parties and candidates stand for and what their policies are. Compulsory voting would be a new factor helping promote greater participation and awareness of what elections are about.

A related, final detail is whether general elections should be held on a Sunday or date declared to be a public holiday, as is the case in many other countries including France and Germany, instead of on a normal weekday (generally Thursday) as is customary at present in the UK. If this concomitant change to our system of elections was made, there would be even less reason why UK citizens would be inconvenienced in any way by being required by law to express their opinion on who should be representing them as an MP and in government over the lifetime of the new Parliament.


The largest issue of reform facing electoral administration generally is that of an Electoral Commission. Since the 1980s there has been a growing body of support for the idea a single Commission, independent of government, to whom would be given a range of responsibilities with respect to electoral affairs. Such commissions operate successfully in many of the major western democracies: indeed, they are widely perceived in those countries as being essential bulwarks of the democratic process. The Federal Election Commission in the USA is the best known example of such a body, and as British electioneering practices and legal regulation of political parties' finances moves closer towards those that apply in the USA, the case for some such similar body will become even stronger.

The Labour Party gave its clear endorsement to the principle of an Electoral Commission in its 1993 policy report, A new Agenda for Democracy: Labour's Proposals for Constitutional Reform. Stating that it "fully supported" an independent electoral commission, it envisaged that it would be "directly and solely responsible for all aspects of electoral administration and for ensuring freedom and fairness in all aspects of our electoral system." Similarly, the Plant Report 1993 also advocated the desirability of such a body, arguing that, "The case for such an electoral commission is that it would provide continuity, a permanent expertise on electoral matters, and ensure that good practice was being followed throughout the country by electoral registration officers and returning officers".

The desirability of an Electoral Commission is closely associated with other reforms of electoral law and political finance that will need or would greatly benefit from the support of an independent electoral agency. In other words, as things stand an electoral Commission is desirable, if not actually essential, and could perform a number of valuable functions which already exist (such as boundary review) or might help streamline the national supervision of electoral administration (such as the issue of codes of practice or appointment of returning officers). However, if the case for other reforms is accepted, then new functions arise, making an Electoral Commission virtually essential. These reforms include, for example, the statutory regulation of political finance, including accounting, prohibited donations, expenditure limits and funding; and measures to improve the quality of political information to electors, including further regulation of media coverage, opinion polls, political advertising, and election broadcasts.

The functions of the Electoral Commission might become, therefore:

1. Constituency Review The Commission might replace and unify the existing four Boundary Commissions, operating under newly-revised rules, and have a duty to keep the boundaries and numbers of constituencies under review for the purposes of elections to the House of Commons, any reformed House of Lords, the European Parliament, the Scottish Parliament, Welsh Assembly and local authorities.

2. Electoral Officials. The Commission might have a duty to supervise and keep under review electoral administration generally, including responsibilities to appoint returning officers and prepare codes of practice for the conduct of electoral registration and work of returning officers.

3. Political Campaigning. The Commission might have the duty to keep under continuous review developments in the field of political campaigning and electioneering, including matters relating to the media (including arrangements for party political broadcasts) and party propaganda (including advertisements).

4. Official Inquiries and Reports. The Commission might serve as an expert advisory body for government ministers and parliamentary committees, undertaking inquiries into specific problems that arise and offering policy reform advice as requested enabling our election law and administration to keep apace with new electoral, political and technological developments.

5. Complaints of Electoral Malpractice. The Commission might have the powers to investigate allegations of electoral malpractice, to assist persons in making complaints, and to institute legal proceedings in its own name for alleged breaches of election law. It could also have a limited adjudicatory role in the enforcement of a range of certain matters of electoral law and administration including disputes relating to names and descriptions on ballot papers.

6. Regulation of Political Parties. The Commission might be charged with responsibility for the registration of political parties, for the purposes of parties nominated at elections, for receiving accounts on income and expenditure (both annually and in relation to election campaign where a maximum expenditure limit applies), and for administering new funding arrangements by reference to the legislation establishing the scheme.

7. Referendum Campaigns. With referendums being held on a more regular basis, the Commission might be given the duty to supervise arrangements concerning the policy and question to be put to the electorate, special matters relating to political campaigning on the particular issue in question, and administrative arrangements for the count.

8. Public Information. The Commission could perform a valuable role in promoting information, education and greater public awareness generally about elections. It could become the official depositary of electoral statistics, act as a clearing-house for all official electoral literature, and initiate learning and research programmes on electoral and related subjects.

Once instituted, the work of the Electoral Commission could be phased in. An initial range of responsibilities could be given to it, with later functions emerging in due course, such as acting in an "amicus curiae" role before the Election Court and performing a limited adjudicatory role in such matters as misleading names or party descriptions on candidature nomination papers.

How might the membership of this important new public body be constructed? The determining factors in this will be (1) the volume of responsibilities it is required to perform, and (2) the level of resources the government and Parliament is prepared to commit to the project. The initial work involved might be deemed sufficiently limited to simply require a single Commissioner, backed by a high-calibre team of officials. Ideally in the long-term, however, particularly if the full range of functions identified above is adopted, the organisation might comprise several Commissioners, each receiving salaries and office and administrative facilities appropriate to the full or part-time performance of their responsibilities. The organisation would benefit from having not only a national headquarters but also a number of regional and local offices. Commissioners could be nominated by the prime minister or home secretary, and approved by Parliament. They should be given some limited security of tenure, to protect their impartiality and independence from political interference, in the form of fixed five year appointments. These fixed appointments could be renewable for a second term, and otherwise the Commission could only leave office by way of removal for misconduct or incapacity or else by resignation or attaining a retirement age of 65 years. The Speaker of the House of Commons should not be the ex-officio Chairman of the Electoral Commission, in the same way as she is at present in the case of the Boundary Commissions. Indeed, the disadvantages of the Speaker continuing as chairman in the work of constituency review has already come to outweigh any purported advantages. The chairman of the new Electoral Commission should simply be appointed by the Commission itself from amongst its members.

As with the two UK members of the European Commission at present appointed by the prime minister, a convention should arise that the leader of the opposition might nominate one of every two persons invited to serve. This analogy with the European Commission is a worthwhile one in one further respect also. For in the same way that for example Roy Jenkins and Leon Brittan, both former home secretaries for Labour and Conservatives respectively, gave up their work as MPs to serve as members of the European Commission, so experience of political life in the composition of the Electoral Commission should certainly not be a bar to persons appointed, in the way that it is at present in the selection of person to serve on the Boundary Commissions. To the contrary, knowledge and experience of political affairs would be an asset on the Commission, although of course there must be a prohibition that Commissioners could not at the same time be members of or candidates for election to Parliament, the European Parliament or local authorities.

To facilitate the political independence of the Commission, members should be in charge of their own budget and permitted to recruit their own staff. A long-running complaint about the Boundary Commissions' work in the past has been that it has been insufficiently independent from the Home Office, and that the administrative process of the Commission is too influenced by informal direction from the government. In the view of some critics, this is facilitated precisely because of the inter-change of administrative staff between the two bodies. Clearly the home secretary at present is in a somewhat ambivalent position within the House of Commons in that it falls to him to present the Commissions' recommendations to the House, and although the work is not presented as that of his department, he or she generally explains and defends their conclusions. An important incidental detail in promoting the independence of the Electoral Commission's work from government, and in promoting the Commission as an independent impartial agency established for the purpose of making recommendations to the House of Commons, will be to strengthen existing parliamentary scrutiny procedures with respect to changes in constituency boundaries and draft electoral law reform emanating from the work of the Electoral Commission.

The field of public administration and political activity covered by election law is vast and will shortly become even more heavily regulated. New legislation will be brought forward by the government to put into effect recommendations of the Neill committee on the funding of political parties. The Registration of Political Parties Bill is already set to help resolve the serious problems caused by mischievous candidates adopting misleading party description on ballot papers in the constituencies where they seek to stand. The range of election law and administration topics selected in this memorandum have concentrated on those which I believe carry the widest level of support. For the future, there are important policy matters to be addressed which the new Labour government and the Home Affairs Committee may wish to start considering, even if legislation on the matter is unlikely to be adopted in present circumstances. They concern, for example, statutory controls over the publication of public opinion polls during the period of the election campaign (limited, perhaps, to a specified number of days before polling), and statutory guidelines on the content and factual accuracy of political advertisements.

The review of our election law and administration needs to be a continuous, on-going exercise, not least because of the now rapidly changing social and technological environment in which elections and electioneering are conducted. Whilst the current home office inquiry being conducted by the minister George Howarth is welcome, one-off inquiries every four or five years are no longer any substitute for what is now required: that is, an independent permanent Electoral Commission whose most valuable work will be to monitor new developments affecting elections 44and electioneering as they happen, to offer expert advice as and when it is asked for or needed, to issue authoritative administrative regulations and codes of practice for parties and election administrators, and to bring forward proposals for the government and Parliament for improvements in our election law, free from any taint of bias or favour as between the political parties.

May 1998

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Prepared 1 October 1998