The Labour Party has recently come in for criticism over a series of online advertisements alleging, among other things, that Rishi Sunak doesn’t think perpetrators of sexual offences against children should go to prison. The adverts cite as their source for these inflammatory claims justice statistics, concluding Mr Sunak’s personal views from the sentencing decisions of judges.
The dispute over these adverts is likely to stay in the political sphere, rather than become a legal tussle. Yet, it is a quirk of UK election law that statements about the personal characteristics of a candidate could become matters for the criminal law. While defamation is otherwise a purely civil matter, it remains a criminal offence under the Representation of the People Act 1983 to publish, before or during an election, ‘any false statement of fact in relation to the candidate’s personal character or conduct’. The penalty for engaging in such an illegal practice (or being the director of an association engaging in it) is a fine of up to £5,000, as well as the loss of political rights (including the right to vote) for three years.
The effect of this is to give candidates for elected office special protections for their reputations which the law does not afford to the rest of us. To use Sir William Blackstone’s classification, defamation of an ordinary person is (now) a private wrong, settled between two parties. The defamation of a candidate is a public wrong, an offence against the entire community rather than the candidate specifically. The public is the victim because a candidate with false statements undermines the ability of the public to fairly choose its representatives. The state, therefore, must step in to ensure voters can fairly judge candidates based on their true character, not calumnies. Consequently, it restricts any ordinary protections for freedom of speech to achieve this special end.
The idea that elections require special laws and restrictions makes perfect sense in theory. Yet, it is not always clear where the line should be drawn, and sometimes measures to protect the integrity of elections can actually undermine them. The Representation of the People Act 1983 (inheriting provisions from older legislation) originally made it illegal to pay for conveyances of voters to the polls. This prohibition – a harsh one in a country with patchy public transit – arguably impeded democratic choice, and Parliament repealed it in 2000 on the basis that it was ‘out of date and no longer served a useful purpose.’ Given that the basic facts of automobile transport didn’t change between 1983 and 2000, Parliament was in essence admitting that sometimes it gets the special restrictions wrong. Consequently, it follows that we should keep special election offences under close scrutiny, to ensure that counterproductive, undemocratic, or simply unjustified restrictions on liberty don’t slip past notice. For every special election offence, we should ask: ‘is this proportionate to the (important) aim of protecting elections?’
For example, canvassing for a candidate must be entirely voluntary. Arguably, it disadvantages candidates whose supporters do not have the disposable time to volunteer. Is a complete ban proportionate? Could the same objective not be achieved with, for example, spending restrictions or limits on the number of paid canvassers? The underlying assumption – that only amateur canvassing is genuine and worthy of admission to the formation of the people’s will, feels unexamined, like much of the inherited weight of the UK’s labyrinthine election rules.
The absolute prohibition on police officers in any way encouraging or discouraging voting is another assumption which feels unquestioned. While no democracy could tolerate uniformed police officers hectoring citizens on politics, it is not obvious that excluding state servants from the free and democratic life of the state, including participation in constitutional politics, is good for democracy. It is a founding value of modern Germany that civil servants (which includes police) may be part of the political process at every level. Participation in democratic life is viewed as a sign of fidelity to the constitutional order, not partiality. Does a complete UK ban serve the public interest, when police could instead, for example, be limited in their ability to campaign, but allowed to use words in, say, personal conversation with friends to encourage or discourage voting?
Revising election law is a tricky business, because any government which does so risks being accused that its aim is to gain some political advantage by amending it. The ongoing political debate over the new laws on voter identification is such an instance. Consequently, the rules about elections are tweaked and adjusted every few years, creating a palimpsest of a rulebook without any clear philosophy behind it. There is no reliable yardstick by which to determine if a given rule is a guardian of democracy or out of date and serving no useful purpose.
The logical answer would be electoral law reform, replacing the layers with a clear and principled code for the administration of elections. The Law Commission, acknowledging that UK electoral law is ‘increasingly complex and fragmented’ as well as ‘difficult to access, apply, and update’ published a comprehensive report in March 2020 arguing at length for ‘consistency of approach’ which would resolve some of the ambiguities of the current law.
The government’s response was lukewarm, pointing out the ‘breadth of such a project and the resource and time that [electoral law reform] would require.’ There is a cycle of negative reinforcement – electoral law is complicated, so reforms are made piecemeal to save resources. Such piecemeal reforms make electoral law more complicated. Consequently, it seems unlikely we will have ‘consistency of approach’ in electoral law anytime soon.
It is as a result of this that UK electoral law remains an unsummarisable jumble of Hogarthian assumptions about going the polls, consisting of a mass of odds and ends shoved together by various statutes over the centuries. This isn’t necessarily a problem if the system is able to work in practice. The UK constitution, after all, prizes pragmatism over principle. Moments of debate on campaigning conventions and rules (such as over the Labour adverts) provide a good opportunity for us to assess just how well the framework works. The brouhaha over the misleading statements against Mr Sunak should be an occasion for scholars and citizens to consider when and how the law should regulate parties’ conduct, particularly online. The best reforms to electoral law would be, appropriately enough, democratic, drawing support and consent from a broad, cross-partisan majority. In a system where Parliament is sovereign, a party with a majority has enormous if not unlimited power. The rulebook for elections it too important to be ignored.
Elijah Granet.
Elijah Granet studied politics at Columbia University and the University of Cambridge. He has worked as a law lecturer both in Germany and England, as well as working for the Harwood Institute in the US.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.