Monday, 2 November 2015

Voting - Individual Registration - Secondary legislation

The right to vote in elections is a foundation stone of democracy.  The right to vote depends on the registration system and this is undergoing a major change and, over the next few years, a number of crucial elections are scheduled - see Electoral Commission.

The Electoral Registration and Administration Act 2013 (ERA) introduces individual registration for voting in elections.  This has been (rightly) described by the government as the biggest change to voter registration in a generation - Government News 3rd July 2014.

In July 2015,
the government made the Electoral Registration and Administration Act 2013 (Transitional Provisions) Order 2015 (the Order).  This brought forward the roll out of individual electoral registration by a year and it has been claimed that, from 1st December 2015, some 1.9m people will be removed from the electoral registers.  The Order came into force on 6th August 2015 and it is interesting to take a deeper look at it.

The Order was made by the Chancellor of the Duchy of Lancaster. (The Duchy is a fascinating relic of considerable personal importance to HM The Queen - see the Duchy Website).  As a government Minister, the Chancellor of the Duchy takes overall responsibility for the running of the Cabinet Office and, in that capacity, co-ordinates constitutional reform.  The power of Ministers to make the Order (bringing forward implementation) stems from the ERA itself (Schedule 5 para 28).  Originally, the ERA said that a "Minister" meant either the Lord President of the Council or the Secretary of State but this power was transferred to the Chancellor of the Duchy of Lancaster using the Ministers of the Crown Act 1975 section 1  - see the Chancellor of the Duchy of Lancaster Order 2015 (Article 3 and Schedule 1).

As already noted, the Order came into force on 6th August but the ERA (Schedule 5 para 28) provides that an Order bringing forward implementation was to be subject to annulment in pursuance of a resolution of either House of Parliament.  This is a weaker form of control over secondary legislation than affirmative resolution.  Normally, under the ERA, affirmative resolution applies BUT this is an exception provided for in the ERA.  On 27th October, the House of Lords rejected (257 to 246) a motion to annul the Order and so it continues in force. 

Even this brief examination of the legislation is sufficient to illustrate the extremely convoluted methods used to secure government policy and it may be surprising to some that a power to make an Order bringing forward the timetable was so readily granted by Parliament to Ministers in the ERA.  It stands as one example of the immense importance of secondary legislation at the present time.   Another recent illustration was the use of secondary legislation in relation to Tax Credit reductions - previous post.

There are considerable concerns regarding Parliamentary controls over the processes of secondary legislation and the Hansard Society has published a detailed critique of this subject - The Devil is in the Detail: Parliament and Delegated Legislation.  This is definitely recommended reading for anyone truly interested in constitutional law.  

The Electoral Commission did not favour bringing forward the timetable and they issued this briefing for Parliament.

Also "on the cards" is a Boundary Review which will be aimed at reducing the size of the House of Commons to 600 members - see Election Reform Society.  Of that, more at some later time !


Electoral Commission - Registering to vote and the electoral register


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