The Electoral System
The membership of the House of Commons is elected on the basis of adult suffrage. A general election must be held at least every five ears: Parliament Act 1911. In a democratic state the electoral process determines who will hold political office .it is the electorate which confers the power to govern and calls government to account. If the electorate is to enjoy true equality in constitutional participation, it is of fundamental constitutional importance that the electoral system ensures four principles:
(a) that there is a full franchise, subject to limited restrictions;
(b) that the value of each vote cast is equal to that of every other rote;
(c) that the conduct of election campaigns is regulated to ensure legality and fairness;
(d) that the voting system is such as to produce both a legislative body representative of the electorate and a government with sufficient democratic support to be able to govern effectively.
Every adult who is not subject to disqualifications is entitled to vote in British general elections, local elections and elections to the European Parliament. In addition, residents of Northern Ireland, Scotland and Wales are entitled to vote in elections for their respective assemblies.
Prior to the Reform Acts of 1832 and 1867, the right to vote was limited and based on rights in property. The 1832 Act – the Representation ,of the People Act – increased the franchise by 50 per cent, which represented only seven per cent of the population. The Reform Act of 1867 doubled the number of people entitled to vote.
The extension of the franchise in 1867 to skilled and unskilled male laborers was not_ a matter greeted with universal approval. Walter Bagehot retorted that:
… no one will contend that the ordinary working man who has no special . skill, and who is only rated because he has a house, can judge much of intellectual matters. [(1867) 1993, p 273]
Bagehot feared the potential power of the working class: should they combine as a class, the ‘higher orders’ might have to consider whether to concede to their demands or ‘risk the effect of the working men’s combination’ (p 278).
Women and the right to vote
The Representation of the People Act .1983, which implemented the conference’s proposals, introduced a full franchise of all men in parliamentary elections and conferred the right to vote in parliament on all woman over the age of 30 who. were either local government electors or the wives of local government electors. Full equality with men was delayed until 1928. A full franchiseon the basis of equality, and,. respecting the principle of ‘one person, one vote’, was finally achieved under the Representation of the People Act 1948.
The current franchise
The right to vote is defined in the Representation of. the People Act 1983, as amended. Prior to enactment of the Representation of the People Act 2000,-eligibility was based solely on residency in a constituency at a ‘qualifying date’. The 2000 Act introduces greater flexibility in relation to eligibility in casting votes:
i) be 18 years, of age (or be due to attain his eighteenth birthday within twelve months of the publication of the register);
ii)be a British citizen;
iii) not be subject to any legal incapacity; [including minors (those under the age of 18), aliens, peers other than Irish peers, mental patients who are compulsorily detained, convicted persons in detention and, for a period of five years, anyone found guilty of election offences. Section 2 of the 2000 Act inserts into section 3 of the 1983 Act provisions relating to the disenfranchisement of offenders detained in mental hospitals.]
iv) be resident in the constituency on .the qualifying date for compiling the register. Registration may take place at any time in the year. People with no fixed abode, but with a ‘local connection’ may register that connection and become entitled to vote. Postal votes are available for those who will not be in the constituency at the time of an election. People who were resident and registered in the United Kingdom at any time during the previous 20 years are entit7e,~fo`Vote even though resident overseas at the time of the election. A person may vote in a constituency in which he or she is temporarily resident, although registered as resident in another area (Fox v. stirk) [1970112 QB 463
the following persons arc not entitled to vote, even if their names appear on the register.
i) liens (excluding citizens of the Republic of Ireland).
ii)Minors (persons under 18 years of age).
iii) Peers and peeresses in their own right (Irish peers may vote). [peers who continue to sit in the .house of lords; other peers are entitled to vote (House of Lords Act section 3)]
iv) Convicted personsserving– sentences of imprisonment. [The disqualification of prisoners was challenged in R (Pearson) v secretary of State for the home Department (2001). It was held that domestic law disqualifying prisoners from voting at a parliamentary or local government election was not incompatible with the right to vote under the European Convention on Human Rights. However, in Hirst v United Kingdom 2004) the European court of Human. Rights ruled that the blanket restriction which deprives all prisoners of the right to vote – irrespective of the– length of their sentence or the seriousness of the offence _committed – was unlawful. the decision leaves open the question of whether certain prisoners may be subject to restrictions. However, given that disenfranchisement has no relevance to imprisonment – and amounts to a further penalty being imposed – there is a strong case for removing the restriction]
v)Persons convictedof corrupt practices at elections are disqualified from voting for five-year.
vi )people detained in a mental hospital as a result of criminal activity (but other mentally ill people may register and vote.
Eligibility of candidates
There is no statutory or other authority defining the qualifications for membership of the House of Commons. In order to promote a greater gender balance in parliament, the Sex Discrimination (Election of Candidates) Act 2002 provides that the Sex Discrimination Act 1975 and Sex Discrimination (Northern Ireland) Order 1976 do not apply to the selection of candidates by political parties. Under the house of Commons Disqualification Act 1975, certain categories of persons are eligible for election and others are disqualified under the Act.
Under section l of the 1975 Act the following classes of persons are disqualified from membership of the Commons:
(a) holders of judicial office,
(b) civil servants;
(c) members of the armed forces;
(d) members of the police;
(e) members of non-Commonwealth legislatures; and
(f) members of Boards of nationalized Industries, Commissions, Tribunals and other bodies whose members are appointed by the Crown.
In addition, a number of general restrictions on eligibility apply.
Persons under the age of 21
while the age of majority was reduced in 1969 by the Family Law Reform Act, eligibility for election to parliament does not arise until the age of 21
Persons suffering from mental illness
mental illnesses is a commnon_law_disqualification. If an already elected Member of parliament is authorized to be detained on grounds of mental illness, the Speaker of the House is notified and following confirmation of the illness, the Member’s seat is declared vacant.
members of the House of Lords, or persons succeeding to a peerage, are not eligible for office. Under the Peerage Act 1963, a person succeeding to a peerage has a limited right to disclaim his peerage. If a member. of the House of Commons succeeds to a peerage, he has one month in which to disclaim his peerage or resign from the House of Commons.
Members of the clergy
Formerly, no person who_had_been ordained ‘to the office of priest or deacon’ or who was a minister of the Church of Scotland could stand for election, although a clergyman could relinquish his office and thereby become eligible to stand for election. The House of Commons (Removal of Clergy Disqualification) Act 2001 removes the disqualification, other t for those who hold office as Lords Spiritual in the House of Lords.
persons declared bankrupt are ineligible _for election to the House of Commons and, if already a ‘Member, may not either sit or vote in parliament until the bankruptcy is discharged by a court or the adjudication annulled.
Person convicted of treason are-disqualified for election to the House and, if already a Member of the House, may not sit or vote until a pardon has been received or the sentence of the court has expired.
Corrupt practices at election
Any person found guilt~ of corrupt practices in the course of an election may be disqualified from membership of the 14o –use of Commons. [f the corrupt practices come to light only after the election, the- Member may be disqualified from sitting in parliament. The disqualification commences from the date of the report of the election Court on the practices and will last, in relation to any constituency, for a period of five years and, in relation to the constituency in which the practices occurred, for a ten year period.
c) Parliamentary constituencies
The United Kingdom is divided into 659 constituencies, each returning one Member of Parliament. The Political Parties, elections and Referendums Act 2000 (the PPER) introduced an Election commissioner with overall responsibility for the management of elections, and speaker’sCommittee which represents the parliamentary body responsible for election matters.
i)Constituency boundaries are delimited by the Boundary Commissioners.
The former Boundary Commissions for England, Northern Ireland, Scotland and Wales were renamed the Boundary Committees. In deciding on parliamentary constituency boundaries the Committees are constrained the Parliamentary Constituencies Act1986. the overriding objective is ensure that each constituency contains an approximately equal number of voters. Regular reviews take account of population movements and the coming of age of voters. However, equality cannot be absolute, since parliamentary constituencies must conform to local authority boundaries, and special geographical considerations may require that certain areas remain within one constituency.
ii)The basic principle that each constituency should have the same number of electors is to ensure that all votes have equal value. Quota = number of electors divided by number of constituencies.
The principle of ‘one man, one vote, one value’ is given formal recognition in the rules regulating the work of the Boundary Commissions contained in the Parliamentary Constituencies Act 1986. Equality is not, however, as will be seen below, the sole, or even dominant; criterion. By way _of comparison, in the United States of America, the principle was judicially considered by the Supreme ‘Court in Baker v Carr, in 1962. In that case, the principle was regarded as of such coristitutional importance that the Supreme Court held that the Fourteenth Amendment of the Constitution the ‘equal protection’ clause – required that electoral districts had to have an approximately equal number of electors to prevent overor under representation and inequality in voting power.
The rules regulating the work of the Commissions are contained in Schedule 2 to the Parliamentary Constituencies Act 1986, from which it can be seen that the principle of ‘one man, one vote, one value’ is, under the United Kingdom’s constitution, but one of several considerations.
iii) Boundary Commissioners have discretion to depart from strict application of the rules if there are special geographical or other considerations that render departure desirable: House of Commons Redistribution of Seats Acts 1949-79; see, too, Schedule II. The target figure for constituency electorates is based on the simple division of the eligible voting population in the country divided by the number of constituencies. The Commission aims to achieve a result which brings the majority of constituencies within a narrow band of this target figure, bearing in mind the other criteria contained within the rules. Schedule 2 specifies the number of constituencies in Great Britain as a whole, and in Scotland, Wales and Northern Ireland. Parliamentary constituencies are required to respect – as far as possible – local authority boundaries. While constituencies must respect the electoral quota, this may be departed from where there are special geographical considerations which must be respected.
iv) The re-drawing of the constituency map can result in challenges: R v Boundary Commission for England, ex parte Foot  1 All ER 1099 (appeal dismissed); Harper v Home Secretary  Ch 238; R v Home Secretary, ex parte McWhirter  CLY 2636. The Boundary Commission was set up by an Act of Parliament with power to make recommendations for changes in boundaries of parliamentary constituencies. The requirement of proportionality in respect of size was a guideline which could not be enforced against the commissioners. The fact that their recommendations might benefit one political party more than another was not sufficient grounds to review the recommendations.
The Political Parties, Elections and Referendums Act 2000 established an Electoral Commission, comprising not less than five but not more than nine Electoral Commissioners, appointed by Her Majesty. The Commission is not to be regarded as the servant or agent of the Crown, or as enjoying any status, immunity or privilege of the Crown. Schedule 1 makes detailed provision for the terms of office. The Commission regulates its own procedure, and may appoint a chief executive and such other staff as the Commission considers necessary.
The Commission’s functions include preparing and publishing reports relating to parliamentary general elections and elections to the European Parliament, Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly. The Commission must keep under review matters relating to elections and referendums, including the redistribution of seats at parliamentary elections, the registration of political parties and the regulation of their income and expenditure and political advertising. No nomination may be made in relation to an election in the name of a party unless that party is registered, or the candidate is a person who does not propose to represent any party.
The Commission may provide advice and assistance in relation to elections? The Commission is under a duty to promote public awareness about electoral and democratic systems, including the institutions of the European Union. The Act also provides that the functions of the Boundary Committees are transferred to the Electoral Commission. The Act provides for 69 offences, with liability ranging from a fine at level five or six months’ imprisonment on summary conviction to a fine or one year’s imprisonment on conviction on indictment.
Political party expenditure
Regulating general elections
The Registration of Political Parties Act 1998 introduced a system of formally recording the identities of political parties for electoral purposes. Under the PPER 2000, political parties which intend to run candidates in a general election must be registered. The Election Commissioner has responsibility for the Register of Political Parties.
The Registration of Political Parties Act 1998 introduced a system of formally recording the identities of political parties for electoral purposes. Under the Political Parties, Elections and Referendums Act (PPER) 2000, political parties which intend to run candidates in a general election must be registered. The Election Commissioner has responsibility for the Register of Political Parties.
The Registration of Political Parties Act 1998 introduced for the first time a register of political parties. A political party is entitled to be entered on the Register of Political Parties if that party intends to have one or more candidates at parliamentary elections, elections to the European Parliament, Scottish Parliament, National Assembly for Wales, the Northern Ireland Assembly or local government elections. Registration is intended to clarify the identity of bona fide political parties and thereby make regulation more certain. Under section 14, no party political broadcast may be made by broadcasters other than on behalf of a registered political party. The responsibility for the register lies with the Electoral Commission.
Political party expenditure
In order that there is some equality in expenditure between political parties at general elections, the PPER 2000 imposes limits on national expenditure. All donations to political parties above prescribed limits must be declared. There are prohibitions on donations from persons or bodies other than those permitted under the Act
Political party funding
In the United Kingdom, there is no provision for state aid for political parties for the conduct of election campaigns. Political parties do, however, receive public funds for their parliamentary work. Under the system, generally known as Short Money ; the money allocated is to be spent exclusively in relation to the party’s parliamentary business, and not for election expenses. A similar scheme operates in the House of Lords. Introduced in 1996 by the then Leader of the House of Lords, Viscount Cranborne, ‘Cranborne Money’ is paid to the first two opposition parties. The Committee on Standards in Public Life has recommended’ that both the Commons and the Lords consider considerable increases of the amounts paid to opposition parties. In addition to financial support for parliamentary business, candidates at parliamentary elections or elections to the European Parliament are entitled to free postage for one election communication to every elector within the constituency. Candidates are also entitled to the free use of publicly funded premises for an election meeting. Indirect state assistances provided through political broadcasts during election campaigns.
For election purposes, parties are dependent upon the support of the membership and, more importantly, from ,• companies and trades unions. Approximately 30 per cent of conservative Party funds come from companies, whereas almost 55 per cent of Labour Party funds have traditionally come from trades union donations, although this pattern has recently changed. In 1976, the Houghton Committee recommended that state aid be given to parties in proportion to the success at the previous election. In 1982, the Commission recommended state funding equivalent to individual contributions to local constituency parties. Neither proposal was adopted.
Recognizing that ‘political parties are essential to democracy’, the Committee identified three of the seven ‘principles of public life’, namely, integrity, accountability and openness, as particularly relevant to the funding of political parties. Increasing election spending by the two main parties, who between them spent some £54 million on the 1997 general election, and the issue of large donations to political parties by persons known or unknown, gave rise to the public perception that election results can be affected by spending and that wealthy organizations or individuals could effectively influence public policy. Undisclosed foreign donations to the Conservative Party also caused concern. Whereas the Conservative Party accepted 47 overseas donations worth a total of £16.2 million between 1992 and 1997, the Labour Party received none. In the same period, the Conservative Party received over 1,300 donations of over £5,000 while the Labour Party received under 300.
In the Committee’s, view, it was ‘undesirable that a political party should be dependent for its financial survival on funds provided by a few well endowed individuals, corporations or organisations’, irrespective of ‘whether or not the suspicion [that he who pays the piper calls the tune] is justified’. The problem of public confidence in the political system was compounded when such donations came from undisclosed sources.
Part IV of the Political Parties, Elections and Referendums Act 2000 provides for the control of donations to registered parties and their members, defining’ permissible donors and providing rules regulating the acceptance or return of donations, and providing for forfeiture of donations by impermissible or unidentifiable donors, under a court order on an application of the Commission: A person commits an offence if he or she knowingly enters into, or does any act in furtherance of, any arrangement which facilitates or is likely to facilitate the making of donations by any person or donor other than a permissible donor. The Act provides for quarterly donation reports to be made, and, in the period of general elections, for weekly reports. Under section 69, the Commission is to maintain a register of donations.
Part V of the Act relates to campaign expenditure. No expenditure may be incurred by or on behalf of the registered party unless it is incurred with the authority of the treasurer or deputy treasurer of the party, or, a person authorised by the treasurer or deputy treasurer. Section 74 and Schedule 8 impose limits on campaign expenditure in relation to parliamentary general elections and general elections to the European Parliament, Scottish Parliament, National Assembly for Wales and the Northern Ireland Assembly.
In relation to a general election, Part V of the Political Parties, Elections and Referendums Act 2000 provides that a political party may spend a specified sum per constituency it contests. The overall effect is that a party fielding candidates in every constituency is entitled to spend some £20 million- This figure is quite separate from the allowable expenditure that may be incurred by individual candidates in their constituencies.
In addition to expenditure by political parties, Part VI of the 2000 Act also regulates expenditure by bodies such as companies, trades unions and pressure groups. Section 85 of the Act allows such bodies to incur up to £10,000 in England and £5,000 in each of Northern Ireland, Scotland and Wales for the production of election material. Any proposed expenditure over these limits requires the body to register with the Electoral Commission as a recognized third party’. Once registered, the body may expend prescribed amounts in England, Northern Ireland, Scotland and Wales. Following the election, details of expenditure must be submitted to the Commission.
State funding of political parties
Any limitation on the rights of parties to accept funds, disclosed or undisclosed, increases the arguments in favour of state funding of political parties. State funding in Europe is an accepted commonplace. Austria, Denmark, France, Germany, Greece, Italy, Portugal and Spain all have publicly funded political parties.
Regulating General elections
the Representation of the People Act 1983 governs the law relating to election campaigns, controlling both the amount of expenditure and the manner in which lawfully be spent, proscribing certain unlawful practices and providing for challenges to the legality of a campaign. The Act also aims to ensure that there is equality between candidates, and restricts expenditure to prescribed limits. Corrupt practices include exceeding the lawful expenditure limits, bribery, treating, and undue influence which includes making threats or attempts to intimidate electors. A bribe is defined as ‘any money, gift, loan or valuable consideration, office, place or employment, in order to influence how an elector will cast his or her vote’. Treating’ occurs where a candidate offers or gives food, drink or entertainment with a view to influencing the elector will vote. A corrupt practice may be committed by any person, not just the candidate or his or her election agent. While minor infringement of strict rules may be excused by a court, a finding of corrupt practices may be the election of the candidate to be invalidated
Each candidate is entitled to spend up to a set amount, which is determined by the number of voters within the constituency and whether the constituency is urban or rural. All expenditure must be through an election agent, who may also be the candidate. Following an election, full accounts of expenditure must be made, and any irregularities may cause an election to be declared void by the Election Court (a Divisional Court of the Queen’s Bench Division).
Section 75 of the Representation of the People Act 1983 provides that no expenditure shall be made other than by the candidate or through his or her election agent. Each candidate is obliged to appoint an election agent. The rationale for this rule lies in establishing and maintaining fairness between candidates and providing a mechanism for accountability as to election expenses. All accounts relating to election expenses must be reported within 21 days of the election result to the Returning Officer. Section 76 of the Act permits the secretary of State to set and raise the permitted amounts of expenditure, in line with inflation, by way of statutory instrument. The allowable amount comprises a fixed sum per constituency plus a sum calculated on the number of voters in a constituency. Any ~ expenditure -exceeding the prescribed limits amounts to a corrupt practice under section 75(1). Expenditure on national party election, broadcasts is met by central party funds.
The objective here is to ensure that one candidate does not gain advantage by virtue of the fact that he may have substantial personal wealth to wage a campaign and can be contrasted with other countries notably America where there are no limits.
There are however no limits in this country on the amount that a national party can spend on a campaign. It can be argued that this is a disadvantage to some political parties, more particularly the smaller parties whose ability to wage a national campaign is limited by a lack of money. It is a tradition in this country that political parties grow out of grass roots support. The issue in the question therefore would seem to be simply whether the newspaper advertisement can be seen as essentially part of a national campaign or whether the intention and effect is to ensure the election of the local candidate.
Several challenges to expenditure have been presented to the courts. In R v Tronoh Mines Ltd (1952), Tronoh Mines placed an advertisement in The Times newspaper urging voters not to vote socialist. The company and The Times were charged under the Act. The court held that the expenditure had been incurred with a view to promoting the interests of a Party generally, rather than an individual candidate; that any advantage incurred was incidental and not direct; and that accordingly the expenditure did not fall within section 75. Conversely, in DPP v Luft (1977), an antifascist group had distributed leaflets in three constituencies urging voters not to vote for National Front (extreme right wing) candidates. The group was prosecuted under section 75 of the 1983 Act for incurring expenditure with a view to promoting the election of a candidate without the authority of an election agent. It was held that an offence had been committed, even though the promoters were seeking to prevent election of a candidate, rather than directly promote the election of a preferred candidate.
in Grieve v Douglas-Home (1965), Alec Douglas-Home’s election was alleged to be void ft the basis that he had participated in a national Party Political broadcast on behalf of the Conservative Party and had not declared the cost of this expenditure within his election expenses. The court held that no offence had been committed either by the candidate. or by the broadcasters. The court accepted the contention that the intention behind the broadcast was not to promote the candidature of Douglas-home in his own constituency but to provide general information about the party to the general public
Broadcasting is controlled by sections 92 and 93 of the 1983 Act and section 37 of the political Parties, Elections and Referendums Act 2000. Party political broadcasts may be transmitted by the British Broadcasting Corporation and those broadcast licensed under the Broadcasting Acts 1990 or 1996. Them exists a law statutory body, the Committee on Party Political Broadcasts, which, comprises representatives from the broadcasting authorities and from the main _ political parties, Broadcasting time is allocated on the basis of the number of votes cast for each party at the last general election, and at by-elections between general elections. This arrangement disadvantages the Liberal Democrats, who have wide popular support throughout the country, and other smaller parties, such as the Scottish National Party and the Green Party, which enjoy much popular support nationwide which rarely – because of the voting system employed – translates into electoral success.
The ITC is under a statutory duty to ensure that news is accurate and impartial, and that political parties are given a fair allocation of time for party political broadcasts and news coverage of their campaigns. The BBC is not controlled by statute, but by Charter, and is under a duty to preserve impartiality. Judicial review will lie if either body infringes the rules. This general duty of fairness was raised by the Rt Hon David Owen MP (now Lord Owen) in R v Broadcasting Complaints Commission ex parte Owen (1985). David Owen had complained to the Commission that the allocation of time to various parties, principally the Social Democratic Party, was unjust or unfair under section 54 of the Broadcasting Act 1981. On an appeal to the court, it was held that the Commission had, jurisdiction to consider complaints about general fairness, rather than just the unfairness, or otherwise, of particular programmes, but that the Commission had acted lawfully in allocating time on the basis of the number of seats won rather than votes cast. A further challenge to the allocation of broadcasting time came in R v British Broadcasting ~ Corporation ex parte Referendum Party (1997). The Referendum Party was founded in 1994 and contested 547 seats at the general election. The broadcasting authorities allocated the party one five minute broadcast on each network. The Conservative and Labour Parties each were allocated four broadcasts. The Referendum Pap, sought judicial review, claiming that it had three percent supporting public opinion polls and that, given that it was a new party, the broadcasting authorities should not have relied on past electoral support. The Divisional Court held that former electoral support must not be determinative, but that the authorities were allowed to include it as a criterion. The decision was not irrational.
Section 93 of the Representation of the People Act 1983 previously required the consent of participants in broadcasts. In addition to that requirement, if a candidate participated in a broadcast with a view to promoting his own election, every other candidate in the constituency must have consented to the broadcast. This rule was tested in Marshall v BBC (1979). The candidate, having refused to participate in a debate, was filmed while canvassing in the streets. On a challenge to the legality of the broadcast, it was. held that no offence had been committed. To ‘take part’ in a constituency item, means to take active part. The effect of section 93 was that one candidate could veto what could be broadcast. The Political Parties, Elections and Referendums Act 2000 replaces section 93 and now requires that broadcasters must comply with a code of practice dealing with the participation of candidates in general and local election campaigns.
The issue of freedom of speech protected under the Human Rights Act 1998 was considered by the House of Lords in R (Pro-Life Alliance) v British Broadcasting Corporation (2003). At issue was the right of a registered political party, the Pro-Life Alliance, to insist that the BBC and other global broadcasters transmit its party election broadcast which contravened, in the BBC’s opinion, the obligation to ensure that nothing in its programmes, inter alia, offended against good taste or decency. In the Court of Appeal, Laws LJ had asserted that the court had a constitutional responsibility to protect political speech, and that while the film was ‘graphic and disturbing’ that could not justify any restriction. The House of Lords disagreed: the BBC and other terrestrial broadcasters had been entitled to refuse to televise the proposed election broadcast on the ground that it would be offensive to public feeling.