The UK's New Election Landscape - Key Changes and Legal Implications for Voters and Candidates

Key Changes and Legal Implications for Voters and Candidates

With the UK General Election fast looming on 4 July 2024, most voters will be following the various policy announcements, watching the Leaders in the TV Debates or perhaps watching the antics of the candidates with increasing dismay! However for Election lawyers, a General Election brings a whole different set of legal questions to consider. This Election is even more interesting, being the first General Election following the passing of the Elections Act 2022, which made a number of change to existing Election Law.

UK Election Law is largely contained in the Representation of the People Act 1983, a fairly old piece of legislation now although one which has been updated at various times. The Conservative Government brought in further changes in the Elections Act 2022 with the stated aim of reducing voter fraud in UK Elections.  Many of the changes were politically controversial, not least because of the absence of evidence suggesting there was significant electoral fraud in the UK and because of the perceived disproportionate impact of certain of the changes across different socio-economic groups. In this blog our Head of Litigation, Rosie Walker, looks at some of the more interesting features of Election Law to keep an eye out for over the next few weeks.

Changes Impacting Voters

One starting point when thinking about elections is to consider who can vote? 

The rules on this can impact the outcome of an election, which is why we see increasing discussion in the US of measures perceived as designed to suppress voter turnout.

Broadly, in the UK you can vote in a General Election if you are aged 18 years or over, are a UK, Commonwealth or Republic of Irish citizen, are registered in a specific constituency and are not subject to any legal incapacity.  There are slightly different rules for certain Local Elections. For example in Scotland you can vote in Local Elections from the age of 16.  This is a good example of the Scottish Parliament using devolution to manage its own procedures within the framework of UK Elections. Individuals detained in certain mental hospitals or detained in prison are unable to vote. Again there are slightly different restrictions for Scottish Local Elections where those serving short sentences may be permitted to vote.

It is vitally important that anyone entitled to vote registers. This can be done online or by a paper form. There is a deadline for registration in advance of the Election, which this year was 18 June.  Unless registered timeously, you cannot vote.

A key change in the 2024 General Election is the new requirement to produce I.D. at the polling station when going to vote or when applying for a postal vote.  There are only certain types of identification documents which will be accepted. The main documentation used are passports, driving licences, blue badges and Scottish National Entitlement cards but there is a longer list available from the Electoral Commission. For those who do not have accepted I.D., one can apply for a free Voter Authority Certificate. The deadline for applying for this is 26 June 2024. Anyone without a Certificate or I.D. will be unable to vote even if they are registered.

The recent English Local Ejections were the first to include the requirement to produce ID. Readers may recall the press glee when former Prime Minister, Boris Johnson failed to bring his to the polling station. Humorous as that may have been, a more serious question is whether the change will have any significant impact on turnout. Some commentators believe that certain groups such as the young or those in less secure accommodation may struggle to meet these additional requirements. Those are typically groups with lower levels of voting turnout so anything that further restricts participation is clearly a concern and something to watch out for. Historically such groups are also more likely to vote for left leaning parties so the impact of this in certain constituencies should be scrutinised.

For those choosing to vote by post, there are changes to how you apply for postal votes. One point of occasional controversy in the past was how parties and campaigners dealt with postal votes, with parties sometimes collecting large numbers from their supporters, a practice viewed with concern by some. The 2022 Act means voters can only hand in up to five other postal votes and must fill out a form with their details and why they are handing these votes in.

Changes Impacting Candidates and Parties

As well as rules about who can vote, Election Law governs the actions of candidates and parties standing for election. Changes for this Election include new spending rules on notional spending i.e where candidates are given things for free to use in the campaign, and on local campaigning. More notable changes include a slight relaxation in the rules on donations from overseas voters. The most eye catching change, however, is in the total spending limits.  Calculating the applicable limits depends on the number of seats contested and the period of spending being looked at but for parties contesting every seat in the UK, in the year before the election parties can spend a remarkable £35.1m, up from a previous limit of £19.5. This is a huge, above inflation increase and one imagines it is likely to disproportionally benefit the largest two parties. That said, recent opinion polls show the number of voters intending to vote for Labour or the Conservatives at an all-time low so the change may be less significant than people expected.

Election Law also governs the conduct of candidates and anyone else seeking to improperly influence the outcome of elections. Breaches of the law in this regard can lead to criminal offences or a challenge to a candidate’s election in some circumstances. Gilson Gray acted in the first Election Law challenge to an election result in Scotland for over 50 years. These offences include impersonation of a voter, bribery, treating (i.e non-monetary inducements to vote a certain way), false statements in nomination papers and, perhaps most interestingly for lawyers, false statements made during campaigns. The latter is one of the most common reasons for Election Law challenges and one that Gilson Gray have substantial experience of. In short it is an offence to make or publish a false statement of fact about the personal character or conduct of a candidate in order to affect the outcome of his or her election.

The false statement can be negative or positive and can be made by the candidate him or herself. However it must concern their personal character and not their political actions or beliefs. It is also time limited to defined periods before an election.

The 2022 Act introduces important changes to the offence of undue influence. This is committed when someone uses force or threatens to use force or violence to make someone vote in particular way or not vote at all. The changes here do see to be a positive move to simplify this offence. The offence covers direct and indirect undue influence and covers a range of actions from written material to intimidation at polling stations. It covers threats of physical violence, damage to property, financial and reputational harm. Importantly it should also cover threats to candidates, their families or those campaigning for them. Given the increasing incidents of political violence against candidates, this is an important measure which should make it easier for the police to take action where such conduct occurs.

In summary, the rules which a society puts in place to govern its elections can have important consequences for outcomes and are not something we should take for granted. It is important that the rules keep up to date with changes in technology and behaviour. Rules are necessary to prevent fraud but should be drafted and implemented in such a way as not to reduce participation or unfairly prejudice any particular group.

Whether the changes introduced by the Elections Act 2022 meet this balance is a question we should be better able to answer after 4^th July.