Election law ensures candidates can’t buy results, bribe voters or tamper with the ballot box
The Sun has made a number of allegations against the Labour party about candidates using religion to pressure people to vote in the Stoke by-election. Thirty-one Conservative MPs, larger than the government’s majority, are being investigated for electoral fraud. The Liberal Democrats have been fined £20,000 for breaching expenses law.
With all this going on, it’s worth asking ‘what does election law say’? For those of us that don’t have around £900 for a copy Schofield’s Election Law (3rd revised edition), it can be difficult to access anything that provides even a basic overview.
Among lawyers and law students alike, election law is a confusing, and often unknown, topic. This is despite it being an essential part of our democratic society. It ensures that you can’t buy elections, bribe voters, anonymously campaign and disparage your opponent or even tamper with the ballot box.
Without it we’d still have “Rotten Boroughs” with small electorates that could be bribed or coerced into voting for whoever the landowner wished them too. This could have a significant effect on the country’s politics. In the 1831 general election, 88 of the 406 elected members of the House of Commons, or a little over 21%, were elected by constituencies with less than 50 voters. While constituencies were forced to represent a reasonable segment of the voting population by the Reform Act of 1832, there was still a complete lack of law regulating other practices, such as spending, advertising and bribery.
What we would now consider election law arrived relatively late in the United Kingdom, with the first piece of modern legislation being the Ballot Act 1872, which introduced the secret ballot and criminalised election tampering. S3 of the act criminalised the fraudulent production, supply and use of ballots papers, as well as their destruction or tampering.
The intended reduction of corruption did happen, but it was still common enough to justify the Corrupt and Illegal Practices Prevention Act 1883. This act strengthened penalties for intimidation and prevented bribery by forcing campaign spending limits and record-keeping for the first time.
This simple idea is an essential development in the UK’s democracy as it prevents people from buying elections. This might sound like an overstatement, but the United States shows that freedom to spend as you wish combined with other lax election laws can be a detriment to democracy. In 82% of Senate and 94% of House races, the candidate that spent the most money won. You can, almost literally, buy a vote in the legislator.
That is why election finance law is so important, and why we should be so worried that MPs may have filed false expenses returns.
In 1883, the act allowed for £710, around £80,000 into today’s money, to be spent for the first 2,000 voters in an election campaign. A further £40, around £4,500 in today’s money, could be spent for every 1,000 voters after that.
We’ve moved on slightly from these humble sums. Today the calculations are slightly more complicated. With national television adverts, the internet and radio, national limits are imposed, as well as constituency limits. This equals £30,000 multiplied by the number of constituencies the party contests in that area or £810,000 in England, £120,000 in Scotland, and £60,000 in Wales — whichever is greater. This law is contained in s79 and schedule 9 of the Political Parties, Elections and Referendums Act 2000. However, limits on individual candidates still remain in s76 of the Representation of the People Act 1983. It stands at £7,150 plus 7p for every constituent that the would-be MP is trying to represent. In by-elections this is set at a flat rate of £100,000.
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This is the basis of the claim against the Conservative candidates: that they filed false claim returns to the electoral commission, having either not declared expenses or falsely declared them as part of national spending, rather than spending in individual constituencies. If this is true, it represents a deliberate and calculated attempt to buy an election, evade the law and deprive the British public of the knowledge it’s entitled to. More than this, if it is allowed to continue unchallenged it would allow us to slip into a USA style slogging match, based more on the spending than ideas or even eloquence.
There are allegations against the Labour party of an even more serious nature. The allegations centre on a text message sent to Muslim constituents that said it was their religious duty to vote Labour. The message said “Will you be able to answer for this in the Grave and on the Final Day???”. It has been attributed to Navid Hussain, a Labour activist. This violates s115(2)(a) of the Representation of the People Act 1983 as it threatens spiritual injury.
This law replaced s2 of the Corrupt and Illegal Practices Prevention Act 1883, which had almost identical wording. The protection is part of the old reforms of the late nineteenth century, and protects against this sort of disgusting and manipulative behaviour.
While the text message is abhorrent, the implication that the Labour party as an entity is responsible is simply not true. The individual may be held responsible under the act, but there is no part of the provision that automatically holds the party liable for its members’ acts. As there is no implication of conspiracy, or that Mr Hussain was acting as the candidate’s agent, the only indication of guilt is a picture of Mr Hussain standing next to Mr Corbyn. Given the thousands of photos taken with Mr Corbyn it’s hardly fair to hold him or the Labour party responsible for the action of one crass activist. This is particularly true as the election may be voided under s159 of the 1983 act, and prevents the candidate from contesting the resulting by-election.
It’s a serious act for a court to bar people from holding positions in the legislator. This happened recently in 2010, when a Labour MP made various claims about his Liberal Democrat opponent, which were proved to be false and personal attacks. This included a leaflet with a photoshopped picture of his Liberal Democrat opponent with armed police, implying heavily he was arrested. The Liberal Democrat brought a petition under s120 of the 1983 act, and had the election voided. The majority of 103, down from 3,590 previously, increased to 3,558 when a new candidate was selected by the Labour Party.
This is not the only restriction on leaflets, as well as posters. These would generally be counted as election material, which includes anything that improves the standing or electoral chances of a party or individual candidate under s85(2) of the Political Parties, Elections and Referendums Act 2000. Under s143(2) of the same act, all this material must include the name and address of the printer of the document , its promoter and any person that the material is being published on behalf of and who is not the promoter. This is a comparably recent statute, so there is little case law related to it. This means it can be difficult to interpret exactly what this means or how it will be enforced.
While election law is complicated, in some cases archaic, it is important and generally neglected. It is a vital part of the checks and balances of British democracy, which can result in people being barred from standing for elections. Any law that allows a judge to prevent someone voting in parliament should be considered academically interesting to most public lawyers, and not ignored or forgotten as it is now.
Peter Baker is graduate from Aberystwyth University. He completed the GDL at BPP University last year and is now studying the LPC.
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