Unfair constituency boundaries, inaccurate voting registers and non-enforcement of electoral law are a threat to our democracy
The general election of 2015 may turn out to be the most damaging to British democracy of modern times. Regardless of the party platforms, the campaign rhetoric and the results, the legitimacy of the contest will be open to question. The election is being fought on the basis of unfair constituency boundaries; the voting rolls have a staggering number of errors; and there is a culture of non-enforcement of election law. On top of these administrative defects, political debate in 2015 is suffering from a lack of ideas and vision.
Moreover, there is a danger that the wrong lessons will be drawn from the results about the future of the British constitution. The unpopularity of the two main parties will reinforce the arguments of constitutional reformers for root and branch changes which will bring the UK system into line with continental Europe. If they achieve their aim, coalition government will become the norm despite the rocky experience of the Conservative-LibDem government of the past five years.
Election rules and administration receive little public attention. Yet they are essential for democratic integrity.
First, given that the elections are based on single-member constituencies, it is essential that there is approximately the same number of electors in each of them. Small variations are legitimate if they ensure that local community boundaries are respected. If gross inequalities are permitted, they mean that voters have a smaller voice in constituencies with above-average electorates than those in those with below-average ones. They may also result in systematic unfairness between the major parties. In 2010, the 110,924 electors in the Isle of Wight elected a single MP as did the 21,837 electors in the Scottish constituency of Na h-Eileanan an Iar (formerly the Western Isles) and the 33,755 in Orkney and Shetland.
Nor is maldistribution limited to a few exceptional constituencies. Average electorates in England were considerably larger than those in Wales. Since Conservatives tended to hold suburban constituencies with above-average and growing electorates, the existing boundaries work to their disadvantage. The cynical decision of the Liberal Democrats in the current coalition government to vote with Labour in refusing to agree to the equalisation of constituency electorates (analysed below) means that the bias in the system against the Tories has remained. According to the website UK Polling Report, “If you leave the Liberal Democrat share of the vote unchanged then the Conservatives need a lead of 11 percentage points over Labour to win an overall majority, while the Labour party can achieve an overall majority with a lead of about 3 percentage points.”
A second requirement of fair elections is also missing. As the Committee on Standards in Public Life rightly put it in 2007, the electoral roll needs to include qualified voters and to exclude unqualified ones. This may seem to be a truism. Yet, by 2014, the number of errors in the UK registers had reached a staggering 13-15.5 million. Between 8 and 9 million people entitled to vote were missing from the rolls at their qualifying address while the rolls still included 5.2-6.7 million names of people who had moved, died or been unqualified in the first place.
The inaccuracy of UK voting rolls is not a new problem but is has become far worse since 2001. The latest research has shown that earlier denials by the Electoral Commission were incorrect. Moreover, the number of omissions could well grow as a result of the introduction of individual (instead of household) registration. The move to individual registration is much-needed but requires thorough administration. To its credit, the government has made special grants to local authorities but their effectiveness has yet to be seen. In any case, in a bout of false economy the government decided in 2011 to ditch plans for a unified national computer system which would permit an elector who registered at a new address to be removed from the one in his or her old one. The saving was £11.4 million to set up and £2.7 million a year to maintain, arguably a relatively trivial sum given the crucial importance of elections for any democracy.
A third shortcoming is the failure of the different bodies tasked with electoral administration to enforce the regulations. It is a legal requirement, rarely enforced, to fill out electoral registration forms. The legal limits on campaign spending in national and local elections are likewise seldom enforced: claims made by candidates are hardly ever investigated for accuracy. The Electoral Commission admits that it has never carried out any field audit to determine, for example, whether the costs of printing campaign literature declared by a candidate are genuine and whether they reflect actual market rates. The commission has barely acted on the recommendations about enforcement of campaign finance laws set out in 2007 by the Committee on Standards in Public Life in its devastating review.
Fourth, there is the controversial issue of postal voting on demand, introduced by the last Labour government. Intended by Labour to encourage participation by voters from disadvantaged groups likely to be natural political supporters, postal voting seems to have been quietly welcomed by the Conservatives. They have calculated that the new system has actually worked to their advantage. To some observers, such as Judge Richard Mawrey QC, postal voting on demand has made elections, especially municipal contests, open to fraud.
For all these reasons the administrative infrastructure of the coming poll will be alarmingly poor. Blame gets pushed between the Electoral Commission, Whitehall (until 2010, the Ministry of Justice and after 2010 the Cabinet Office), and Electoral Registration Officers employed by local government. The culture of denial of responsibility and acceptance of low standards has led to condemnation by the Organisation for Security and Cooperation in Europe and by an inspection held by the Council of Europe at the behest of a British Conservative member of its Parliamentary Assembly. Neither their strictures nor those of the Standards Committee have led to the necessary change in administrative culture.
The striking absence of ideas in recent electoral discourse is a different kind of problem. Of course, it is unreasonable to expect every single general election to revolve around ideological disputes. That would not be desirable. Voters are swayed by specific issues, by evaluations of the competence and personality of the rival leaders, by feelings of economic wellbeing or hardship, and by their impressions of the success or lack of it of the incumbent government. However, if election after election avoids discussing underlying public concerns, if there is little or no vision, the electoral process itself is discredited.
An illustrative example of avoidance of discussion is the future of the UK’s relationship with the European Union. Whether and when to hold a referendum on UK membership has substituted for serious discussion about the broad objectives of any renegotiation that would precede a referendum. The far-reaching implications of the process of enlargement of the EU have not been set out for the public. The main parties do not wish to declare their opposition to Balkan and Turkish membership despite the prospect that the free movement of its population into the UK would produce an influx greater than from Romania and Bulgaria. It also would create a common border between the enlarged EU and troubled countries such as Syria, Iraq and Iran.
By contrast to the problems which have been mentioned, two of the most frequently cited difficulties are less severe than often supposed. There is a great deal of talk about voter disengagement, especially among the young, and the low voting turnout which apparently results from it.
But it is too easy to blame disengagement for difficulties which arise from neglect by the authorities of the task of registering voters by the annual house-to-house canvass required by the law. There is no reason why the problem of non-registration among young voters cannot be solved despite the admitted difficulty of their frequent changes of address. Rigorous administration together with a computerised national register and a willingness to use penalties along the lines of parking fines for non-compliance can do the trick. There is also a frequently ignored technical factor in turnout statistics in general elections. When taken into account, this somewhat moderates the downward trend line. As mentioned before, the electoral registers include a growing number and proportion of wrongly retained names. Fraudulent votes may indeed be cast on behalf of some of these ghost names but probably only in a small proportion of them. Therefore most of those wrongly included will be recorded as non-voters. Even if every single qualified elector casts a ballot, the turnout rate would still be under 90 per cent. The actual proportion of non-voters is considerably lower than shown in the raw figures.
The ethnic vote is another issue which has been perceived as a greater problem than it is in reality. This is not to deny the significant increase in the number of immigrant electors, including those from predominantly Muslim countries, shown in comparisons between the censuses of 2001 and 2011. Measured in partisan terms, the rapidly increasing number of minority ethnic voters is a considerable disadvantage to the Conservatives. The loss of an estimated 10 seats because of ethnic voting largely accounted for David Cameron’s failure to win an outright majority in 2010. The Conservatives won only 16 per cent of the ethnic vote compared with Labour’s 68 per cent. According to Operation Black Vote, the number of seats dependent on the ethnic vote will be 70 per cent higher in 2015 than in 2010. Voting patterns differ between ethnic groups and attachment to Labour is becoming less secure, though the party’s overall advantage is still striking.
In terms of the democratic character of the forthcoming contest, questions of party advantage are unimportant. What matters is the threat of extremist discourse. The inclusion of a chapter on religious extremism in Roger Eatwell’s book The New Extremism in 21st Century Britain (Routledge, 2010) is an indication that it is, at the very least, a topic for discussion. In local government elections, electoral fraud has occurred to a disproportionate extent among immigrant communities. There is a danger of the importation of Middle Eastern conflicts.
Yet recent survey research on the political behaviour of members of ethnic minorities commissioned by the Economic and Social Research Council has revealed some encouraging facts. A 2013 study, The Democratic Engagement of Britain’s Ethnic Minorities, based on the ESRC survey found there was relatively little difference in voting turnout between the white and Asian communities. Only among African and Caribbean groups is there a serious degree of abstention. Declared feelings of trust in British political institutions are greater among all ethnic minority groups apart from Caribbeans than among whites, though these feelings of trust decline among the children of ethnic immigrants.
In summary, there are severe defects in the manner in which the election is being organised and in the relative absence of debate about some core issues. Will the right lessons be drawn?
For constitutional reformers, the most important feature of the electoral scene in 2015 is likely to be a further decline in the proportion of citizens who support either of the two main political parties. With the expected collapse of the Labour vote in Scotland in favour of the Scottish Nationalists, the sharp decline of the Liberal Democrats following their change in 2010 from party of protest to party of government, and the rise of UKIP and the Greens as beneficiaries of the legion of the fed-up, the scene has become unprecedented in its confusion. In the weeks before the poll, this will make the result exceptionally hard to predict and it will be even harder to predict the government which will subsequently emerge.
The situation is already being seen by advocates of constitutional change as vindication of their condemnation of traditional two-party politics and as a golden opportunity to press for change. Professor Vernon Bogdanor has gone so far as to argue that if the Palace of Westminster needs architectural repairs, the current chamber of the House of Commons should be replaced by the horseshoe configuration typically used in multi-party legislatures elected by proportional representation.
There has been little let-up in reform propaganda. Proponents of the traditional Westminster Model, mainly but not solely to be found in Conservative party circles, have proved complacent, disorganised and slow to respond. As a result, civil servants have depended unduly on the reformers for their views on the actual and desirable working of the unwritten constitution, especially as it concerns the formation of a new government. The fact that it is such a technical matter means that there is little reporting about it. Yet the consequences may be both far-reaching and undesirable.
In the weeks before the 2010 election, a group of constitutional reformers effected what amounted to a very British coup by their advice to the then Cabinet Secretary Gus (now Lord) O’Donnell about the would-be rules of the game following an election in which no party won an overall majority of seats (a “hung” election). The details were described in my Standpoint articles in April and December 2011 and October 2012 and were challenged by Professor Robert Hazell in a letter in the November 2012 issue.
These supposed constitutional conventions were set out in successive drafts of a new document called The Cabinet Manual. At the eleventh hour, the Cabinet Secretary rushed out a highly questionable draft of the chapter relating to government formation in the event of a hung parliament. A House of Commons Committee then took evidence at short notice from the constitutional reformers who had been the main advisers on the Manual. There was no time for independent views. The controversial chapter had a significant effect on the conduct of the coalition negotiations of May 2010, to the distinct advantage of the Liberal Democrats.
The key proposal in the draft chapter of The Cabinet Manual was that, following an indecisive election, an incumbent prime minister should remain in office and lead a caretaker government to permit coalition negotiations to proceed. The practical effect of this would be to allow a minority party to play the two major parties off against each other. In May 2010, by remaining in Downing Street while the Liberal Democrats, led by Nick Clegg, bargained with Labour and the Tories at the same time, Gordon Brown permitted the carefully prepared Liberal Democrat negotiators to obtain a pledge from David Cameron to hold a referendum on electoral reform. As might have been predicted, the threat that Labour would agree to this condition if the Conservatives did not turned out to be a bluff.
In the event, the electoral reform referendum of May 2011 did not produce the result which the Liberal Democrats and allied constitutional reformers desired. However, Nick Clegg outmanoeuvred David Cameron in a way which will have a major impact on the result of the forthcoming election. As part of the Coalition Agreement, Clegg was to take charge of the Cabinet Office staff responsible for constitutional questions. Cameron was left with little staff resource for expert advice. The deal with Clegg provided that a single parliamentary bill would combine provisions for the electoral reform referendum (the Liberal Democrat demand) and revision of constituency boundaries (the Conservative demand). The question was, which should come first. By agreeing that the electoral reform referendum should come first, Cameron made it possible for Clegg (with Labour support in the House of Commons) to renege on his part of the deal. This accounts for the unfair and undemocratic boundaries in the 2015 general election.
Returning to the saga of The Cabinet Manual, when a full draft was published for consultation in December 2010 it came under sustained criticism in a number of parliamentary committees. O’Donnell put an amended version to the Cabinet in July 2011 just before the summer recess. It was not accepted and further changes seem to have been demanded, especially concerning the rules of government formation. The modified version appeared in October 2011, only days before O’Donnell’s retirement.
In the early months of 2015, some of the most active pro-reform advisers of 2010 (especially Professor Robert Hazell of the Constitution Unit at University College London) have once again attempted to establish as a new convention the rules set out by O’Donnell before the 2010 election and subsequently abandoned. From the evidence given on March 9, 2015, by the current Cabinet Secretary, Sir Jeremy Heywood, to the Political and Constitutional Reform Committee of the House of Commons, they are enjoying some success.
The Political and Constitutional Reform Committee of the House of Commons has proved to be an important tool for constitutional reformers. Under the active chairmanship of the amiable but determined Labour MP Graham Allen, it has established a link with a reformist team at King’s College London and has taken frequent evidence from the Constitution Unit at University College London.
Taking advantage of funding from the Nuffield Foundation, the King’s College group, which had included Professor Bogdanor, has produced a model written constitution for the Allen Committee. This has paved the way for a recommendation, accepted by the Labour Party, that there should be a “constitutional convention”.
As might have been expected, supporters of a continental constitution for the UK were quick off the mark to proclaim the success of the 2010-2015 coalition government. While the latter has indeed lasted a full term, it has proved awkward for the Conservatives in the coalition to come clean about their frustrations and the shortcomings of this form of administration. Parliamentary arithmetic may make a further multi-party administration inevitable, but it would be a mistake to suppose that this is an ideal form of government or that constitutional rules should be altered to make it the new normal.
In constitutional matters, the disadvantages of coalition have been highlighted in the handling of the issues of European union and of human rights. As background to policy regarding the EU, the coalition conducted an extensive review, government department by government department, of the “balance of competences” between the UK and the EU. The exercise was admirably staffed by officials in the Foreign and Commonwealth Office and in other ministries. The fact that it was largely supervised by a Liberal Democrat peer, Lord Wallace of Saltaire, a professor of international relations with a lifelong commitment to European union, meant that the concerns of Eurosceptics were inadequately addressed.
Concerning human rights, the Liberal Democrats blocked the Conservative Justice Secretary, Chris Grayling, to the point where he was obliged to present his proposals in October 2014 about future UK relations with the European Court of Human Rights in Strasbourg as a Conservative party document and not as a governmental one. This meant that legal experts within the civil service were not involved in providing technical advice.
There are several lessons learned, some of them urgent.
1. The experience of coalition government in 2010-2015 shows that coalitions may sometimes be inevitable, but should be avoided whenever possible.
2. David Cameron should regard with deep scepticism, and should not feel pressured or bound by the reformist view, emanating again from the UCL Constitution Unit and the Institute for Government, that he has any explicit or implied duty to remain in Downing Street as head of a caretaker government following a hung election while formal coalition talks between various political parties proceed. He is equally entitled to continue as Prime Minister until defeated in the House of Commons or to tender his resignation to the monarch immediately. Advice to the contrary from the Political and Constitutional Reform Committee or from the Cabinet Secretary would be invalid and without constitutional status.
3. The Prime Minister should consider seriously the option of remaining in office following a hung election in a single-party minority administration. He should also consider the temporary option of a grand coalition with Labour, since it is the two main parties which have the greatest interest in preserving the system of alternating one-party administrations.
4. Both in the short term and in the future, defenders of the Westminster Model must be more serious and far better organised in criticising the nostrums of what might be called “coalitionism”.
5. The quality of electoral administration is in need of drastic improvement.
6. If the vital democratic role of political parties and the Westminster Model is to be safeguarded, party leaders must pay far greater attention to recruiting and communicating with members. Party decline is not inevitable, but chronic neglect of the grass roots by career politicians reliant on large donations and on publicly-funded patronage positions must end if parties are to prosper.