Electoral Law

Current project status

  • Initiation: Could include discussing scope and terms of reference with lead Government Department
  • Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
  • Consultation: Likely to include consultation events and paper, making provisional proposals for comment
  • Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
  • Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

We published our interim report on 4 February 2016. Due to the unprecedented demands on Parliamentary business arising out of leaving the European Union, Government made clear that there was no immediate prospect of introducing an electoral law bill to take forward our recommendations. We moved to explore with the Cabinet Office other ways to implement some of our reforms, in particular through secondary legislation. We have now agreed with Government that the project will move to producing a final report, which we aim to publish by the end of 2019.

The problem

Electoral law in the UK is spread across 17 statutes and some 30 sets of regulations. It has become increasingly complex and fragmented; it is difficult to access, apply, and update. Much of the law is rooted in 19th Century language and practice, and doesn’t reflect modern electoral administration.

The project

The electoral law reform project is part of the Law Commission for England and Wales’ Eleventh Programme of Law Reform published on 19 July 2011.

The twin aims of the project are to ensure, first, that electoral laws are presented within a rational, modern legislative framework, governing all elections and referendums under statute. Second, that the law governing the conduct of elections and referendums is modern, simple, and fit for purpose.

This project was split into three phases, with review points between phases. The first phase, a scoping exercise including a consultation which ended on 17 September 2012, was completed with the publication of our scoping report on 11 December 2012.

The second phase involved formulating law reform proposals.  Owing to the UK wide nature of electoral law, this phase was conducted jointly with the Scottish Law Commission and the Northern Ireland Law Commission.

The final phase involved working with the Scottish Law Commission and Northern Ireland Law Commission to publish an interim report. The Law Commissions published a joint interim report on 4 February 2016. The three Law Commissions recommended:

  • that the process for challenging elections should be modernised, making it easier for parties to understand and use and that judges be given the power to limit the potential costs for challengers
  • existing electoral offences should be updated and made easier for the electorate, officials and prosecutors to understand
  • that the maximum sentence for serious electoral offences be increased to ten years.

Next steps

After reviewing our interim report, the UK Government stated in late 2016 that work on leaving the European Union, and the attendant unprecedented demand on parliamentary time, meant that there was no capacity for an electoral bill to take forward our recommendations. We subsequently explored ways of implementing our recommendations which did not require primary legislation. In particular, we explored the possibility of creating a statutory instrument to simplify and bring together the various conduct rules concerning electoral events in England and the Police and Crime Commissioner elections in Wales.

We have now agreed with the Cabinet Office that the focus of the project will move to publishing a final report. The report will reflect the lessons learned from our exploration of reform and simplification through secondary legislation and, so far as they are within scope, will take account of the developments in electoral law since the publication of our interim report. We aim to publish our final report by the end of 2019.

Documents and downloads

Project details

Area of law

Public law

Commissioner

Nicholas Paines QC