Is the Legitimacy of the Electoral System of The United Kingdom Questionable?

This analysis sets out historical and legal reasons that when taken together may show that the legitimacy of the electoral system of the United Kingdom is doubtful.

Representation of the People Act

1983 Schedule 1 Part IV Declaration of Results s.50 (1) (a)

When the result of the poll has been ascertained, the returning officer shall forthwith declare to be elected the candidate to whom the majority of votes has been given

Ballot Act 1872

Section 45

As soon as the result of the poll is ascertained, the returning officer is to declare elected the candidate or candidates for whom the majority of votes have been given

Introduction

If we look up the meaning of “majority”, we find something like this:
A majority is the greater part, or more than half, of the total. It is a subset of a set consisting of more than half of the set’s elements.
Now, if this is universally reasonable and widely accepted, which it is, why is it not carried out by the Returning Officer during a general election declaration of results? Why is the system operating a weak and unsatisfactory interpretation of “majority”, i.e. “relative majority”? Is there another legal rule written somewhere in an old statute that will explain it?

The answer is no. It may come as quite a surprise to most people that the critically important method of winning candidate selection by relative majority in our general elections is not specified in law. All we have – in statute law – is what is shown above.

The Law as Applied to Winning Candidate Selection

The letter of the law is as set out in the Representation of the People Act(s), where the 1983 act above consolidated much of the law going back to the early 20th century. However, how far back do we have to search to find the first statutory reference to the legal rule? The answer is, surprisingly, not too far back. The first occurrence of the rule is set out in the Ballot Act of 1872, the statute that introduced secret ballots during general elections, passed during Gladstone’s first Liberal administration that took office in 1868. The wording is broadly the same as in the Representation of the People Act(s) and is shown above.

So, Parliament legislated that the rule is that a majority is required to win, i.e. more than half, and this we may conclude with confidence was the intention of Parliament. In a two-party system such as Britain had when the Ballot Act was passed in 1872 (the Home Rule League was not founded until 1873), one candidate will receive more than half of the votes and the other candidate less than half – there can be no doubt that by “majority” Parliament meant more than half. Indeed, in the general election of 1868 all of the seats were won by the Liberals and Conservatives, where 600 Liberal candidates stood, 436 Conservative candidates stood, and only 3 others. This was a two-party system.

Now, we must move forward a little, to 1908. Then, a Royal Commission was established with the purpose of reviewing options for improving the representative nature of the British legislature. What had happened in the most recent years was the formation of the Labour Representation Committee (LRC) in 1900 (which later became the Labour Party). Suddenly, no longer was Britain a predominantly two-party system, where “majority” meant more than half in the usual way, but a multi-party system where “majority” was no longer a meaningful thing. The Commission reported in 1910 (Report of the Royal Commission appointed to enquire into electoral systems with appendices Cd 5136). In the report, the Commission noted that before the Ballot Act of 1872 voting had been done in public, but the 1872 Act introduced a procedure for secret ballots at general elections. The report of the Commission then went on to say:

“Successful candidates are determined by relative, not absolute majority, i.e. to secure election it is not necessary to obtain more than half the valid votes cast, but only more votes than any other candidate. The instructions in the Ballot Act provide only that “..the returning officer shall…ascertain the result of the poll by counting the votes given to each candidate and shall forthwith declare to be elected the candidates or candidate to whom the majority of votes have been given”; but in the absence of any directions (i.e. in the statute) as to what is to be done in the event of no candidate receiving an absolute majority it must be assumed that relative majority is intended”.

The report goes on to say that:

“It is a remarkable fact that, while the single-member constituency is very general in Europe, the relative majority is practically confined to the English-speaking countries. All the great European States, and most of the smaller ones, have rejected or abandoned it. Our singularity in this respect may be simply due to the antiquity of our representative institutions, which date from times of rough-and-ready expedient, or to the two-party system, which tends to limit candidatures and thus to obliterate the distinction between relative and absolute majority”.

Some Observations about the State of the Law

In the text of the report of the Royal Commission above I have highlighted three sections of text that require some further discussion. The first section of bold text is a reference to the legal principles of statutory interpretation. Statute law often has to be interpreted by judges where it is unclear, equivocal, or where there are lacunae, i.e. gaps. Such is the case here, suggests the Royal Commission – the statute does not specify what is to happen if no candidate receives a majority, i.e. more than half. The Royal Commission assumption is that “relative majority” (first past the post) must have been intended by Parliament.

This appears to be an erroneous assumption on the part of the Royal Commission. In 1872, when the statutory rule was written, in a two-party system of Liberals and Conservatives there can be no doubt that by “majority” in a binary choice Parliament meant more than half. It was impossible for no candidate to receive an actual majority, and that is why the Ballot Act is silent about it. The issue simply did not arise in 1872. This conclusion of the Royal Commission appears to be without validity and legitimacy. It is also noteworthy that the text used by the report when quoting the words of the Ballot Act Section 45 are incorrect, and in a report of a Royal Commission on a matter of such public importance this is more than simply sub-optimal.

Furthermore, this author has searched in vain to discover whether the recommendations of a Royal Commission are a valid source of law. If in the United States of America, the most respected Jurist of the twentieth century is Oliver Wendel Holmes, then quite possibly in the UK we have a Jurist of similar distinction in Sir Carleton Kemp Allen. I have searched through my 50 year-old copy of Law in the Making by C.K.Allen, a text which describes all sources of law going back to antiquity. Nowhere in the text is there a reference to a Royal Commission being a source of law. The recommendations of a Royal Commission require enacting legislation. There do not appear to be any such enactments giving effect to the conclusions of this Royal Commission. Thus, implementation of “relative majority” for winning candidate selection would seem to be of questionable legitimacy.

The second section of bold text is a reference to the unusual fact that only English-speaking countries use the “relative majority” system (first past the post). There is a very good reason for this, and it would have behoved the Royal Commission to acknowledge it, but they seem not to have done so. By and large, it is former colonies of The British Empire who use the relative majority (first past the post) system. Most notably by population they are India, the USA, and Canada (many of the island races who use the system are also former or present colonies). They inherited the system. It is in excess of one and a half billion people, but only three major countries. When former colonies of the British Empire are removed from the landscape, the United Kingdom shares an electoral system with Zimbabwe (also a former colony but a failed state) and The Yemen. In the 20th Century as new nations emerged, not one of them adopted the backward first past the post electoral system, a system described by one learned professor as the worst system that could possibly be devised.

In the third section of bold text the Royal Commission makes a reference to the situation where there is a two-party system, e.g. Liberals and Conservatives, or earlier Whigs and Tories, the point being that in a binary vote there is no distinction between absolute majority and relative majority, the winning candidate has to receive more than half of the votes. The difficulty is that since around the time of the Royal Commission in the early 20th Century the United Kingdom ceased to be a predominantly two-party state (the formation of the Labour Party in 1900 adding to the Liberals and the Conservatives) thus rendering this mitigating factor a nullity, as mentioned above. The authors of the report in 1910 were well aware that the United Kingdom had become a multi-party state.

Relative majority, i.e. “first past the post”, as applied in British general elections does not appear to have any substantive legal basis at all, other than some historical usage of dubious provenance associated with an erroneous assumption of a Royal Commission over a century ago. The lawfulness of the system as applied does appear to be questionable.

1992, 2010, 2015, and Old Sarum

In the General Election of 1992, in the constituency of Inverness, Nairn, and Lochaber, the winning candidate Sir Russell Johnston received 13,258 votes. The second-placed candidate received 12,800 votes. The third-placed candidate received 12,562 votes. The fourth-placed candidate received 11,517 votes. The fifth-placed candidate received 766 votes. Lined up against Sir Russell Johnston’s 13,258 votes were 37,645 electors where the opinion of the people in the choice of the legislature for this constituency was clearly not Sir Russell Johnston. Yet still he was “the candidate to whom the majority of votes has been given”. Thus, a perverse system also becomes a farcical system, and questions must surely reasonably be asked about the operation of the statute which supports such a system.

In the 2010 general election, two-thirds of constituencies returned candidates with minority support. The opinion of the people in the choice of the legislature is thus thwarted, and the opinion of the self-interested men who run the Conservative and Labour parties prevails, as it always does, to the exclusion of everyone else and to the exclusion of democracy itself. Millions of votes are wasted, ignored, and discarded, millions of people effectively disenfranchised.

In the 2015 general election, the combined votes for the Green Party and the United Kingdom Independence Party was a 16.4% share of the vote. They were rewarded with one MP each. The winning party, the Conservatives, received a 36.9% share of the vote. They were rewarded with 331 MP’s. If the election had been conducted under a representative (proportional) system, the Greens and UKIP between them would have been awarded 106 MP’s and the Conservatives 239 MP’s. It should come as no surprise to anyone that the British Conservative Party has been opposed to the introduction of a representative (proportional) system of voting in general elections for a hundred years.

Old Sarum

It is not difficult to see the shadow of Old Sarum in our base and offensive First Past the Post electoral system. She is preserved, protected, and defended by the powerful and persuasive self-interested salesmen politicians who run the Labour and Conservative Parties. They do so in the interests of their parties, not the national interest.

The New Legal Arguments

UK Human Rights Act 1998

Part II the First Protocol, Article 3 – Right to Free Elections

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature

Section 4 of the Human Rights Act 1998 provides that if a higher court (such as the High Court, Court of Appeal or Supreme Court) considers that a provision in an Act of Parliament is incompatible with human rights, it can make a Declaration of Incompatibility. The matter is then passed back to Parliament for resolution. Here, it is submitted that the operation of Schedule 1 Part IV s.50 (1) (a) of the Representation of the People Act 1983 is incompatible with the statutory human rights described in Article 3 of the First Protocol of the Human Rights Act 1998 (distinguishing Liberal Party v United Kingdom [1980] ECHR). Although initially Article 3 of the First Protocol placed obligations on the High Contracting Parties (member states) as distinct from conferring human rights on individuals, subsequent jurisprudence of the ECtHR made provision for active and passive rights of individuals under the Article.

In Liberal Party v United Kingdom [1980] ECHR the then Liberal Party brought a European Convention on Human Rights section 14 discrimination action against the UK Government arguing that the British electoral system discriminated against them as it usually required 300,000 votes to get a Liberal MP elected but only 40,000 to get a Labour or Conservative MP elected. The judges agreed that the system did indeed discriminate against them, but went on to say that no electoral system was perfect – so, bad luck. Member states have a wide discretion and are free to use any electoral system of their choice, no matter how unfair (the extent to which unfairness could be carried was not examined by the court). All that the law required was that elections were held at reasonable intervals and by secret ballot. By the then law of the EEC, an electoral system meeting these basic requirements in a one-party state would be lawful. Reasonable intervals. Secret ballot. Dictatorship fine.

It is respectfully submitted that the decision in the Liberal Party case was a policy decision by European judges made in the face of insurmountable political obstacles. It was simply not possible for the judges to interfere in the electoral arrangements of member states, especially those of a net contributor and leading nation in the bloc. It is however further respectfully submitted that the judges failed by not seizing the opportunity to interpret the ten critical words “opinion of the people in the choice of the legislature” implying thereby that they have no meaning, that none should be read into them, and that therefore they confer no human rights. They are merely semantic adornments in Article 3 of the First Protocol and can be ignored. The judges went on to say that the “simple majority system . . . has always been accepted as allowing for the free expression of the opinion of the people even if it operates to the detriment of small parties”. There are some difficulties with this opinion. Firstly, the UK system has not been so accepted. Calls for reform date back to the nineteenth century. Secondly, the United Kingdom does not operate a “simple majority” system, although it is clear that the judges meant “relative majority” when they said “simple majority” (how could they be so careless?). Thirdly, is it acceptable to assert that the “free expression of the opinion of the people” is allowed for when the words “opinion of the people in the choice of the legislature” have never been subjected to the scrutiny of formal judicial statutory interpretation? It is submitted that this case is a legal dinosaur.

In the leading case of Mathieu-Mohin and Clerfayt v Belgium [1987] ECtHR, when referring to restrictions or conditions attaching to the human rights codified, the ECtHR said that “it (the court) has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness”, and went on to say “in particular, such conditions must not thwart the free expression of the opinion of the people in the choice of thelegislature”. Thus, it is submitted that if we map the court’s rationale on to the result in the constituency of Inverness, Nairn, and Lochaber in the 1992 General Election, we see the ECtHR itself helping to support the case for construing the ten critical words purposively in the face of such perversity and farce.

In the recent case of Riza & Others v Bulgaria [2015] ECtHR, a bolder and more confident court than that which sat in the Liberal Party case 35 years earlier said these words: “The active electoral right as guaranteed by Article 3 of Protocol No. 1 is not confined exclusively to the acts of choosing one’s favourite candidates in the secrecy of the polling booth and slipping one’s ballot paper into the box. It also involves each voter being able to see his or her vote influencing the make-up of the legislature, subject to compliance with the rules laid down in electoral legislation. To allow the contrary would be tantamount to rendering the right to vote, the election, and ultimately the democratic system itself meaningless”. It is submitted that the clause “subject to compliance with the rules laid down in electoral legislation” yields to the mirror principle in our human rights law.

It may be submitted with some confidence that the right to vote and the democratic system itself in the United Kingdom are indeed meaningless. The importance of the Riza case cannot be over-stated. The part in bold text is now an active human right under HRA 1998 Protocol 1 Article 3 – a human right that is being denied by the electoral system of the United Kingdom.

It is submitted that the case for a purposive construction of the ten critical words “opinion of the people in the choice of the legislature” and how they should be applied in the United Kingdom is overwhelming. The “opinion of the people in the choice of the legislature” is surely thwarted when in a general election for the United Kingdom Independence Party almost four million votes are required to elect just one Member of Parliament but only 26,000 are required for the Scottish National Party.

Such an outcome goes beyond farce, and this is clearly understood by the United Kingdom’s European partners almost all of whom have democratic electoral systems where such outcomes are impossible. It is further submitted that in the land of Sir Isaac Newton, John Locke, David Hume, Charles Darwin, William Shakespeare, Adam Smith, John Maynard Keynes, Alan Turing, Stephen Hawking, and Winston Churchill it is of all the more critical importance that English judges intervene where salesmen politicians acting out of party-political self-interest refuse to go. So that the British people may see a restored sheen on the tarnished Great that should shine brightly in our Great Britain, and so that in that brightness our people soon again may see the illumination of the values that our country used to be admired for.

Thomas Conner,
Liskeard, Cornwall,
March 2019