Tuesday, 27 April 2010


It has been interesting looking around the various blogs and there is obviously considerable comment relating to electoral issues.  Perhaps the main one relates to the possibilities if there is a so-called "hung parliament" - that is to say, a House of Commons in which no single party enjoys an overall majority.   In February 2010, the Cabinet Secretary (Sir Gus O'Donnell) gave evidence to the Justice Select Committee on the constitutional process following a General Election.  He asked the committee to consider a draft document setting out election rules and processes - see Chapter 6 "Elections and Government formation".  It would appear that this draft document has not been subjected to extensive consultation (e.g. with constitutional law experts or, for that matter, with the general, public) and it is hardly surprising that some are questioning the advice which it gives in relation to a "hung parliament".  Particularly trenchant criticism may be seen via the website of "Democratic Audit".  Some serious questions are raised which the reader will need to assess.  Further material may be accessed at UCL.  See also Justice Select Committee 5th report of session 2009-10- "Constitutional processes following a general election".

A further topic of some interest relates to electoral law.  This subject has an extensive history.  Electoral law is (basically) aimed at ensuring that elections are free and fair.  They have not always been (see Great Reform Act 1832) and there have been some concerns raised over the increase, since 2001, in the use of postal voting.  The Representation of the People Act 1983 contains a number of "electoral offences": bribery; treating and undue influence.  Instances of these offences have been thankfully rare in recent times.  Interestingly, even when they occur, it would seem that the Crown Prosecution Service (CPS) will consider a number of factors before actually instituting a prosecution. The 1983 (Part III) also contains a process by which an election may be challenged by way of a parliamentary election petition in the High Court.

The right to vote is a precious thing which we must be vigilant to protect- see Telegraph 17th March 2010.


  1. Is it just me or is there something opressive about section 75?

    Supposing I was an opponent of abortion rights (this is hypothetical) and I spent £510 of my own money by summarising the position of the candidates, suggesting who like-minded electors might want to favour, and printed 5,100 copies at 10p each. Then I spent lots of my own time, working alone, posting all of these through the doors of the constituency (I make that several days work).

    That makes me guilty of "corrupt practice".

    There is something deeply and fundamentally wrong with such a law.

  2. ben - essentially the facts of Bowman v UK 1998 in which the European Court of Human Rights found a breach of Article 10. They found the breach becuase it was not necessary in a democratic society to place a limit as low as £5 on this form of expenditure. The Bowman judgment was referred to a committee chaired by Lord Neill of Bladen QC and the eventual outcome was that the limit was increased to £500 by s.131 of the Political Parties, Elections and Referendums Act 2000.

    The limit remains at £500 so on your scenario it would seem that there would be an offence.

    The rationale for the rule is set out in the Bowman judgment. Also, see here. I am not sure that it is entirely "deeply and fundamentally wrong" since without a limit it would be possible for very rich persons to run "side-campaigns" and, in effect, increase the expenditure limits permitted for each bona fide candidate.

  3. ObiterJ, the £500 limit applies to any coordinated effort, so it could be £50 each for ten people. Nobody has to be rich to fall foul of this. Indeed it could be 100 people spending £5 on a "yard sign".

    The limit, if any is really needed, is patently too low.

    It is far from clear to me that any limit is needed, indeed it looks to me that spending limits are in fact intended as a way for the establishment to exercise control over the process. I've just skimmed the Bowman judgement and it was in fact the Government's argument that the purpose was to protect the establishment from having to reply to such material!

    Restrictions on such a fundamental right as freedom of expression should not be enacted without good cause, especially in the run-up to an election where free speech is all the more important.

    And what is the great emergency? Why can we not simply let a thousand opinions be heard? What disaster awaits us?

    None at all, is the answer. Only the danger that candidates might have to answer a few questions that electors care about. That is the great danger this oppresive law protects us from.

  4. I am inclined to agree that the limit is much too low particularly given that the same limit applies to "concerted action". However, I suspect that it may take another challenge at Strasbourg to bring about a further change.

    There are so many angles to all of this. One could discuss it for weeks.