Electoral fraud: A growth area for lawyers?

Is the UK's electoral system fit for purpose
in the 21st century? Such a question
usually raises the spectre of proportional representation, debates over the introduction
of compulsory voting, or arguments for lowering the age of majority. Yet at a Conservative party conference fringe event, Tories seemed far more concerned with the prospect of electoral fraud than discussion of the above.

We tend to think of our electoral process as reasonably honest, transparent, and unsusceptible to corruption. However, a panel discussion hosted by think tank Politeia, entitled 'Corruption at the polls? How to end electoral fraud', focused on the recent case against Tower Hamlets's former mayor, Lutfur Rahman.

Erudite speakers - Dominic Grieve QC MP, the former Attorney General; Field Court Chambers's Francis Hoar, the barrister who acted for petitioners in the Tower Hamlets case; and yours truly - spoke.

Perception of fraud

Of the opinion that fraud at the polls was a 'growing phenomenon' and was taking place
in communities 'in which there is a tradition
of electoral corruption and fraud in their home countries', Grieve, the MP for Beaconsfield, said
he was a fan of introducing Northern Ireland-style ID checks to combat fraud. This would necessitate voters producing proof of identification when registering, as well as requiring them to justify
their decision to vote by post.

'I am puzzled why there is so much resistance
in the political class for these changes,' remarked Grieve. 'I know we want to maximise the number of people who vote. I am in favour of that.
But there is no point in creating a fake participation that masquerades as the real thing.'

The audience agreed; in the views of those present, fraud was endemic in postal voting and the perception of fraud, even if misplaced, was damaging our democracy as it undermined the public's confidence in election results.

However, just like Chris Grayling's war on 'compensation culture', or Theresa May's opinion that immigrants are stealing low-paid workers' jobs, perceptions without factual evidence to reinforce them can lead to bad laws, and embarrassment for those who assert them.

There were several notorious examples of postal fraud prior to the latest Tower Hamlets scandal. In 2005, the police discovered a 'vote-rigging factory' in Birmingham set up by Labour activists. Meanwhile, in 2008, Richard Mawrey QC, who also oversaw the Rahman case, found Conservative councillor Eshaq Khan guilty of using bogus postal votes in Slough.

In 2010, five men were jailed for their parts
in a failed postal votes scam in the marginal constituency of Bradford West, with the aim
of getting Tory candidate Haroon Rashid elected
to parliament.

It was also reported that, prior to the 2010
general election, the police had launched 50 criminal inquiries nationwide amid widespread claims of electoral rolls being packed with bogus voters. In London, police examined 28 allegations of fraud across 12 boroughs, including Tower Hamlets.

In March 2014, Mawrey told the BBC that postal voting was open to fraud on an 'industrial scale', was 'unviable' in its current form, and that
in one case from 2013 he had come across
14 different ways postal ballots could be manipulated.

Impact debate

In January 2014, however, the Electoral Commission found that fraud was not widespread across the UK, and reports of such activity were focused only in specific parts of England, concentrated in a small number of local
authorities. It added that it was unlikely fraud
had been attempted in more than a handful
of wards in any particular authority.

The commission did not recommend restricting the availability of postal voting, as the impact
of restrictions on the overwhelming majority
of electors, who find such voting convenient
and secure, would not be proportionate to any potential integrity benefits.

It did, though, suggest changes to make
postal and proxy voting more secure, including continued urgent action by returning officers
and the police in areas where there was a higher risk of allegations of fraud.

It has also been reported that 2014 saw 272 cases of alleged electoral fraud. These allegations, however, resulted in just two convictions out of approximately 29 million votes cast in elections, ranging from the Scottish independence referendum to police and crime commissioner by-elections.

The scars of Rahman's fraud clearly run deep. But what have we learnt from Tower Hamlets?

The case made so many headlines that the government's new anti-corruption tsar, Sir Eric Pickles, has accused Whitehall of being in denial about the extent of electoral fraud and rotten boroughs in Britain as he begins an investigation into the voting system. Pickles also blamed multiculturalism for Tower Hamlets, suggesting that politicians and officials ignored the warning signs in a similar way to the child exploitation scandal in Rotherham.

And, while not on the same scale as Watergate, the case has played on the fears of the electorate and politicians that a few corrupt individuals are cheating us all out of voting for our government representatives.

We have learnt - if any more proof were needed - that rotten boroughs have not been consigned to the history books. But whatever the findings
of Pickles's investigation, there will need to be
a balanced response, as knee-jerk reactions
which make it harder to participate in elections will likely lead to allegations of impingements on people's democratic and human right to vote.

E-voting revolution

It was hardly surprising that the assembled mass
of Conservative members gave a collective gasp like a 19th-century Louisiana debutante when
I raised the prospect of future elections being dominated by e-voting - it appears just the thought of fraud is enough for some to want to wind back the clock on our electoral processes.

To the chagrin of some, we have become a society that practically lives online. The mood of the room was quite succinctly summed up by Hoar, who said we should not turn voting into an ‘X-Factor-style 'event', and that questions should be asked of a voter if they 'can't be bothered to go to their local polling booth between 7am and 10pm on polling day'.

Yet, for others, if something can't be done with the click of a button, then it hardly seems worth doing. Those generations who have grown up with smartphones and social media will expect to be able to vote with the same ease with which they answer an online poll on their favourite news site.

Research published in 2003 by the Electoral Commission found a significant demand for e-voting. More than half of English adults said it would encourage them to vote at the next local election, with 18 to 24-year-olds the most keen to try a new method of voting.

Since then, several pilots have been run, with debatable results. In January 2015 the Speaker of the House of Commons published a report which concluded that 'online voting has the potential to greatly increase the convenience and accessibility of voting' and by 'the 2020 general election, secure online voting should be an option for all voters'.

Though the prospect of e-voting is divisive, the appetite for it from those in high places suggests progress will be made in implementing a system that works, even if the pace of introduction is currently glacial.

Court reform

We have also learnt that the mechanism for challenging election results is in need of, if not a full facelift, some urgent surgical tweaks.

The Law Commission is already looking into reforming the law and election courts, and has published provisional recommendations under which the petition procedure would be brought within the ordinary court system.

The existing law governing legal challenge is the product of historical developments in the 19th century - and a process that was created almost two centuries ago is unlikely to be well suited to elections held in modern Britain.

As an example, Tower Hamlets introduced us to the little-known electoral offence of 'undue spiritual influence'. The offence, first passed into law in the 1883 Corrupt and Illegal Practices Act - the purpose of which was to constrain the influence of the Roman Catholic clergy on the 'impressionable minds' of the Irish - has been criticised for being archaic.

In his judgment, Mawrey held that a letter signed by 100 Muslim clerics and published in Bengali in a newspaper demonstrated their 'participation in Rahman's campaign to persuade Muslim voters that it was their religious duty to vote for him', and had crossed the line.

Yet Rahman is not alone in employing such tactics. In January, the Electoral Commission alleged that all the main political parties had been exploiting networks within British Pakistani and Bangladeshi communities to harvest votes, and that they should take some responsibility for the vulnerability to fraud in those communities.

In addition, the current system has no process for filtering out unmeritorious petitions. Neither is it a cheap exercise for a petitioner to launch. There is no legal aid to fund such an action - as with most things nowadays - and it is also a year from the election result to Mawrey's judgment and, at seven weeks, the petition was the longest in over a century.

What constitutes fraud?

Some might argue that a vote-swapping website designed to increase the number of Green or Labour MPs at the expensive of Tory candidates could be seen as fraud. Likewise, a national newspaper which urges its readers to sign up to a political party and vote for a leadership candidate it is diametrically opposed to could also amount to a form of fraud.

Not so for one Tory councillor in attendance at the Politeia forum, who boldly proclaimed he had joined the Labour party and voted for Jeremy Corbyn for Labour leader last month. If the public sees these sorts of doings as acceptable, then a few might be tempted to go further and commit real fraud. Human nature means there will always be someone willing to try their luck at subverting an election result.

Perhaps future general elections will resemble those of our Atlantic cousins, where armies of lawyers are amassed in key swing constituencies to monitor polling stations and prevent rival parties gaining unfair advantages, and, should the vote be too close to call, litigate the result.

In the US, lawyers look for irregularities, such as malfunctioning polling equipment, officials failing to follow rules, and irregular opening hours at the polls. Clearly, some of those do not apply to the UK, unless you count a blunt pencil as malfunctioning equipment.

Still, the political landscape has changed over the last decade. The difference between victory and defeat in marginal seats might narrow further, and the number of such seats might increase over the coming years, making the fear of fraud much greater.

Whether they are brought by political parties, disappointed candidates, or disgruntled voters, a time may come in the not-too-distant future where legal challenges are a common occurrence, with elections being won in the courts rather than at the polls. SJ