This is a guest blog from Dr Alistair Clark, Reader in Politics at Newcastle University. As with all guest blogs, the thoughts are those of the author and not those of SPICe or of the Scottish Parliament.
Dr Clark’s research interests revolve around electoral integrity and the quality of democracy, political parties, and local elections. He has undertaken extensive research on the integrity of the electoral process and electoral administration including examining the numerous challenges facing electoral administrators.
This blog explores the two items in the Elections Bill which have attracted most attention – voter ID and a policy and strategy statement for the Electoral Commission – in some detail. The blog also gives Dr Clark’s wider thoughts on some of the challenges around electoral law and the issues raised in the Elections Bill at the UK Parliament.
A SPICe blog on the UK Elections Bill is also available. That blog considers the provisions in the Elections Bill which relate to Scotland and explains the relationship between electoral matters which are reserved and those which are devolved to the Scottish Parliament.
The case for reform
Electoral law in the UK often dates from Victorian statutes and practices and needs reform. Numerous reports, from both Houses of Parliament (Commons and Lords), have argued for reform, while the Law Commissions have provided a blueprint for consolidating electoral law.
The Explanatory Notes to the Elections Bill indicate that the UK Government believes the changes will help to ensure “that UK elections remain secure, fair, modern, inclusive and transparent”. The Notes indicate that:
“The Bill will allow the Government to meet some of its 2019 manifesto commitments, including to “protect the integrity of the UK’s democracy, by introducing identification to vote at polling stations, stopping postal vote harvesting and measures to prevent any foreign interference in elections” and to “make it easier for British expats to vote in Parliamentary elections, and get rid of the arbitrary 15-year limit on their voting rights.””
The headline proposals in the Bill have been widely criticised, by academics, electoral reformers and disabilities rights campaigners. Some of the less headline grabbing provisions around, for example digital imprints, have however been welcomed.
Scotland’s electoral administration typically demonstrates the highest level of performance in election delivery in Britain, as highlighted by studies of performance standards, and election agent evaluations. This performance has been hard won, after high profile difficulties in the 2007 Scottish parliament elections. The Elections Bill will nonetheless increase the pressure on electoral administration, including in Scotland.
At present, polling clerks are required to call out the name of electors before they are issued with a ballot paper. This is to allow objections to be made if the person is identified by someone else as not being who they claim to be.
The UK Government believes this is no longer fit for purpose, the Explanatory Notes to the Bill stating that:
“This is no longer consistently done and, in any event, people present in a polling station are no longer likely to know everyone else in their local area. These measures are therefore outdated and no longer fit for purpose as a means of checking the identity of voters and avoiding personation.”
In 2014 the Electoral Commission undertook a review of electoral fraud in the UK. One of the recommendations to come from the report was that a form of photo ID be shown by a voter when collecting their ballot paper. This has been a requirement under electoral law in Northern Ireland since 1985.
In 2016, the UK Government published a report ‘Securing the Ballot: review into electoral fraud’. The review recommended that the UK Government consider the options for electors to have to produce personal identification before voting at polling stations in Great Britain, and that the Government may wish to pilot different methods of identification.
The UK government conducted five voter ID pilots in English local elections in 2018 and ten in 2019. These were in low turnout local contests and, it could be argued, insufficient in scale and in the representativeness of their coverage to be a good indicator for what might happen in a general election, which is where Voter ID will be rolled out for the first time, including in Scotland.
The Local Government Information Unit criticised the Cabinet Office evaluation of the pilots for being “an optimistic interpretation of extremely limited evidence”.
The Electoral Commission also evaluated the pilots and identified three areas which it felt required further consideration before any introduction of voter ID. The Commission’s view was that any requirement for voter ID must:
- Deliver clear improvements to current security levels
- Improve public confidence in the voting system
- Address the likely impact on the accessibility of the voting process – considering particularly those from lower socio-economic groups, with disabilities, and the unemployed.
Evidence from the pilots showed that in some areas over 30% of voters who went to vote but were turned away because they did not have voter ID did not return to vote later. Voter ID will introduce a considerable element of poll worker discretion about whether to accept a voter’s identification. Research I have conducted with Professor Toby James (University of East Anglia) on polling station workers noted that 19% of them already thought election law was too complex to understand quickly and easily in a general election, giving some indication of levels of potential difficulties were this to be first rolled out in a parliamentary election.
There is little evidence of extensive levels of personation fraud in UK elections either from academic research or in actual complaints and prosecutions. Nevertheless, high-profile cases, for example in Tower Hamlets in 2014, has fuelled calls for photographic Voter ID. A House of Commons Library paper prepared on the Bill states that:
“In 2019, 33 cases of polling station irregularities were reported (either personation, voting more than once or voting while disqualified from voting). This led to one conviction and one caution for personation.”
My research with Professor James on polling station workers has consistently shown that more than 99% of poll workers do not have any concern about electoral fraud and 95% have no concerns about voters’ identities.
Given the confusion which already exists over electoral law, variation in the treatment of electors which the introduction of Voter ID would see is a clear risk in England, Scotland and Wales (Northern Ireland already has a voter ID requirement). This is particularly the case in areas where there are higher numbers of low paid, young, disabled and ethnic minority populations, all of whom would potentially be disadvantaged by the requirement for voter ID. It is worth noting the Electoral Reform Society’s stance on the issue, and in particular a 2018 letter co-signed by over 40 organisations and charities opposing the voter ID pilots. The co-signatories included Liberty, Stonewall, Centrepoint, Age UK, the British Youth Council, Operation Black Vote, and the Royal National Institute of Blind People.
The Joint Committee on Human Rights has recently also highlighted the potential for discriminatory effects with Voter ID, and asked the UK Government to do more to justify the policy and address the concerns of critics.
There is potential for confrontation in polling stations when voters are turned away. It is already hard for Scotland’s councils to recruit sufficient people to work on election day, a point discussed recently by the Parliament’s Standards, Procedures and Public Appointments Committee in its evidence session on the 6 May 2021 election.
The Electoral Commission
The second major item of discussion in the Elections Bill has been the proposal to impose a ‘Strategy and Policy Statement’ on the Electoral Commission which will be overseen by the Speaker’s Committee for the Electoral Commission (a statutory body whose work relates to the Electoral Commission and the Local Government Boundary Commission for England and whose role is defined by the Political Parties, Elections and Referendums Act 2000). The provision has been proposed as a means to aid parliamentary accountability.
This proposal has been widely criticised as eroding the independence of the Electoral Commission, and it is worth noting that the Committee has, for the first time, a membership majority from the governing party. Other ways of reforming the Speaker’s Committee have been suggested, to little success.
The Bill’s 158 pages and 117 pages of explanatory notes contain many other issues of the utmost seriousness to democratic participation and rights. It is not possible to cover this in detail here although some are explored in a SPICe blog on the Bill.
There are issues to do with:
- the regulation of expenditure for political purposes
- the introduction of digital imprints
- overseas voting
- the voting rights of EU citizens
- access for disabled voters
- abuse of candidates
- ending indefinite postal votes
- reducing the number of proxy votes individuals can act for.
Most of these do little to improve access to the vote or address the challenges experienced by voters in trying to exercise their democratic rights. Ending the 15-year limit to overseas voting fulfils the commitment made in Conservative Party manifestos around ‘votes for life’ since 2015, but does not resolve the difficulties that already registered overseas electors experience in UK general elections, for example with ballot papers not reaching them in time to cast their vote.
There are various ways that the Bill could be improved at an administrative and voter level. To continue with the overseas voting example, consular voting or secure online download of ballot papers could ease the difficulties currently experienced by voters. The Bill’s proposal to reapply for postal votes every three years, could also be replaced by a reconfirmation process, similar to that used for the Annual Canvass for electoral registration. Either of these ideas would ease the administrative burdens faced by both voters and administrators under the Bill’s current proposals.
It is welcome that the Bill introduces digital Imprints, and that it seeks to deal with the increasing problem of intimidation and abuse of candidates. Nonetheless, it could have gone further in numerous places. As the Scottish Government LCM notes, the Bill might have taken account of and learned from the pre-existing Scottish digital imprints regime. It might also have sought to implement the Committee on Standards in Public Life’s recent recommendations on this area to improve transparency even further.
There is a clear divergence between Scottish (and Welsh) and UK-wide electoral law. This is to be expected with devolution, but this Bill will widen that gap. One example would be the Bill’s section on the provision of voting rights for EU citizens whose countries have a reciprocal agreement with the UK (currently only Spain, Portugal, Luxembourg and Poland), or who have been continuously resident prior to 31 December 2020. This is considerably more restrictive than the resident voting permitted by the Scottish Elections (Franchise and Representation) Act 2020. Increasingly divergent franchises and new challenges such as Voter ID will almost inevitably lead to voter confusion in UK general elections in Scotland, with the potential for spill-over into Scottish elections.
The challenge for the Scottish Government is that some of the issues raised by the Bill do need to be dealt with for devolved elections. Party finance practice for Scottish Parliament elections enables less transparency than for UK elections, for example because donations and party spending must be reported weekly in a UK general election, but only quarterly for Scottish Parliament elections. The Scottish Government has promised to legislate further in several areas in advance of 2026. The devil is always in the detail with electoral law however, and it is vital that when these issues come before the Scottish Parliament, enough time is given to scrutinise them.
Withholding Legislative Consent
Both Scottish and Welsh governments have recommended to their legislatures not to consent to the Bill, both noting that on various issues they prefer to legislate themselves. The UK Minister, Chloe Smith MP, on 14 Sept 2021 in her evidence to PACAC, appeared to suggest that without legislative consent, the UK Government would not persist in attempting to legislate in areas of devolved competence (see answers to Qs 92-95). Following a reshuffle Kemi Badenoch MP, Minister for Levelling Up Communities, is now leading on the Bill for the UK Government. Elections have now moved from the Cabinet Office to the new Dept. of Levelling Up, Housing and Communities.
It’s my belief that the Elections Bill is a missed opportunity to modernise electoral law by making it easier for voters to vote and for administrators to administer.
The Gould report into the 2007 Scottish Parliament election difficulties contained the observation that ‘almost without exception, the voter was treated as an afterthought by virtually all the other stakeholders’. This should serve as a cautionary note when considering changes to electoral law. While issues like digital imprints are overdue and may enable some transparency for voters, many of the Bill’s provisions like voter ID, and reapplying for postal votes will not make it any easier to vote and may actually create barriers for certain groups. Meanwhile, provisions in connection with the Electoral Commission have the potential to undermine voter confidence in the independence of elections.
It is crucial that when the Scottish Government brings legislation before the Parliament on electoral matters, as it has indicated it intends to later this session, it is voters’ interests which are put front and centre. Whether it is developing proposals or scrutinising them, the voter must be at the heart of electoral reforms.
Dr Alistair Clark, Reader in Politics, Newcastle University