Written Evidence Submitted by Professor R.A.Watt, BA, BCL, PhD (VUK 24)

1.                I make this submission in a personal, academic capacity. I am a Professor of Law at the University of Buckingham.  I have published widely in electoral law and have gained some recognition as an expert; see my UK Electoral Law: a Critical Analysis (London: Glasshouse, 2006) and more recently my piece commissioned by the Electoral Commission Reflections on a New Structure for the United Kingdom’s Electoral Law (London: Electoral Commission, 2013) paras 1.2.1-1.2.3.  The Report is available at http://www.electoralcommission.org.uk/__data/assets/pdf_file/0007/162178/Reflections-on-a-New-Structure-for-the-UKs-Electoral-Law.pdf .This second piece is based upon evidence drawn from a number of international comparators notably Australia, Canada and Sweden.

2.                Here I limit my observations to two questions asked by the Committee

•                                   In what ways could new technologies be used to encourage people to vote?
•                                   What would be the advantages and disadvantages of allowing voters to register on the day of an election?

Whilst I have comments to make on many of the issues raised by the Committee, I will confine myself to my particular expertise.

3.                “In what ways could new technologies be used to encourage people to vote?

It is asserted that new (i.e. digital technologies) are not suitable for introduction into the remote voting (unsupervised, out of polling station) environment.

4.                It is widely acknowledged that the UK has a significant problem with electoral fraud,[1] especially (but not exclusively) where postal voting is concerned.[2]   This has been the subject of, frankly, embarrassing comment by the Parliamentary Assembly of the Council of Europe, and repeated judicially in a UK Court.[3] It is quite clear that voting outside the controlled environment of the polling place is susceptible to individual (small scale) and organized or strategic fraud.  The use of digital technologies (tablet, smartphone or even the, somewhat passé, pc) opens the door to systemic and systematic fraud.  Any voting systems designed for the digital environment will have to be freely available, capable of maintaining the voter’s privacy and secrecy (in order to comply with Article 3 of the First Protocol to the European Convention on Human Rights) and easy to use.  If it is not easy to use people will not use it.  There does not seem to be a technology which guarantees that a device is being used exclusively by a bona fide registered voter acting freely in accordance with his or her own wishes; in the way that seclusion in a supervised polling booth enables a voter to act freely. The evidence obtained from postal voting[4] demonstrates that removing the voting channel device from the direct impartial supervision of an electoral official facilitates the corruption of the vote. International comparators reveal that, though levels of fraud are very low, absentee ballots account for most electoral fraud.[5]

5.                Apart from the (empirical) evidence set out by Commissioner Mawrey in the Petitions (see n 1 above) there is a further legal reason for the exclusion of unsupervised digital devices from the voting process.  . In essence it is that the state has a duty to guarantee the secrecy of the ballot in order to facilitate compliance with Article 3 of the First Protocol ECHR.  No voting method except that outlined in the Ballot Act 1872 together with the use of a supervised polling booth can be secret.  It is accepted that, strictly speaking, the Instrument only covers elections to the legislature, but it is not easy to see why local government elections should not benefit from the same level of protection as elections to the legislature.    This argument is set out in detail in S. Birch, and B. Watt, ‘Remote electronic voting: free fair and secret?’  (2004) 75(1) Political Quarterly 60-72.

6.                Turning to electoral registration: the Committee acknowledges that levels of registration remain low.  It has been convincingly argued by Toby James (now of the University of East Anglia) that the new system of individual electoral registration (IER) contained in the Electoral Registration and Electoral Administration Act 2013 may have the effect of further depressing levels of registration.[6] Commissioner Mawrey in the Slough Petition notes at [133] that the return rate of registration forms is in the region of ~75%.  Accordingly the Committee appear to wish to consider the introduction of US style ‘on the day’ registration.  It is argued that such a move is premature.

7.                The UK is currently moving from a system of household electoral registration to one of individual electoral registration.  It is not at all certain whether the provisions of the Electoral Registration and Electoral Administration Act 2013 will overcome the problems of roll-stuffing identified in the Slough election petition (see n 1 above).  I have doubts that it will solve the problem because it may remain easy for the owner of a house in multiple occupation to slip one or two extra people onto the roll and, if we were to couple that with the systematic fraud seen in Aston and Bordesley Green we could see that a roll may be effectively stuffed.

8.                Accordingly I assert that no provision should be made for ‘on the day registration’ until the provisions of the 2013 Act have been tried and tested.  It is my belief that the experience of the operation of the 2013 Act will be that no such scheme should be introduced because the Act has proved unsuccessful in eliminating postal voting fraud.

9.                There are two further arguments against ‘on the day registration’. The first is purely logistic.  Elections are trying times for local Elections Officers because of the lack of resources and the need to get a great deal of work done on a single day.  Indeed in the 2010 General Election some people were denied the vote because polling stations were overwhelmed.[7] It is therefore highly likely that if there are large numbers of voters wishing to be registered on the day that the polling staff will be unable to cope.

10.            One interpretation which could be placed upon the unfortunate and undemocratic events in Garrison, County Fermanagh in the Fermanagh and South Tyrone election in June 2001 was that the polling station was deliberately overwhelmed.[8]  The events of that evening are certainly unclear.  A group could organize even legitimate voters to remain unregistered until polling day in order to  render the election ‘farcical’ by blocking the action of the polling station.[9]  It would, no doubt, be possible for a person wishing to disrupt the election of a potential Prime Minister to arrange for large numbers of late applicants for registration to attend polling stations on the day.  Success in registration would not be necessary, it would be sufficient to disrupt the process.

11.            The second argument relates to the difficulty of checking registrations. Here the Slough election petition is very helpful particularly at [180-198].  Despite the experience of Birmingham (i.e., Aston and Bordesley Green) and the amendments introduced by the 2006 Electoral Administration Act, Slough shows that fraudsters use late registrations as a mechanism for undemocratically influencing polls.  As Commissioner Mawrey points out many of the late registrations were fraudulent.  To allow registration on the day will, in the UK environment, invite fraudsters and election petitions and thus undermine our democratic system

12.            Whilst I have only commented in detail of two of the matters raised by the Committee because these are the matters in which I may justifiably claim expertise, it must be said that there is a body of opinion voiced by Commissioner Mawrey in the Woking Petition in the following terms: ‘It’s not how you vote that brings out the voters. It’s the choices you are given’,[10] with which I wholeheartedly concur.

13.            It is much to the credit of the Committee that relatively few of its inquiries are directed towards proposals to reform the voting system.  Most of its inquiries are directed towards resolving the ‘deep sense of disconnection with the political process and disillusion (sic) with the political class’[11]   I have published some thoughts regarding this disillusionment and suggested that part of the problem, contrary to Jennifer Lees-Marshment,[12] who seems to think that it is the solution, is that political parties are now selling political programmes in much the same way as fizzy drinks and sofas.  This argument is set out in my 2006 book.  Efforts should be made to engage people with the difficult and complex choices to be made in a democracy rather than fiddling with the voting process which was substantially fixed in 1872 by the Ballot Act.

bob Watt.[13]

23 February 2014