19 Apr 2012

Could three little words undo the plan for some city mayors?

Bradford election campaign

A leading expert in election law says that if voters in Birmingham, Newcastle and Wakefield vote to introduce elected mayors in next month’s referendums the results could be open to serious legal challenges.

The problem revolves around just three short words, but potentially crucial words.

Ros Baston, a lawyer who used to work for the Electoral Commission, says the councils in all three areas have failed to include the words “a vote of” in a section of the booklets which they have sent out to voters explaining what the referendums are all about.

Ms Baston was a lead advisor to the Electoral Commission on party and election finance, but has now, in her words “turned from gamekeeper to poacher,” and set up her own practice specialising in election law.

In their introductory booklets, the three councils say that under the existing system councils are run “By a Leader who is an elected councillor chosen by the other elected councillors.”

On the actual ballot papers, however, the wording is slightly different, with the crucial three words included, as follows: “By a Leader who is an elected councillor chosen by a vote of the other elected councillors.” (my emphasis)

The inclusion of the words “a vote of” might convince voters that the existing system is reasonably democratic. Without them, they may believe council leaders emerge through a less democratic process.

The seven other councils holding referendums on elected mayors – Bradford, Bristol, Coventry, Manchester, Leeds, Nottingham and Sheffield – have included the three words in both their explanatory booklets and on the ballot paper.

This may seem incredibly trivial – what do three extra words really matter?

Well, the Electoral Commission clearly thinks the extra phrase does make a big difference in explaining the different systems to voters.

The Commission offered no advice to councils on what they should say in their explanatory booklets, but in its role of deciding what the wording should be on ballot papers, it certainly did deliver a strong verdict.

And it’s clear from a Commission report published last autumn (“Referendums on Local Authority Governance in England”) that when the Commission was drafting the standard form of words for the ballot papers, there was intense discussion about whether or not to include the words “a vote for”.

The Commission concluded in its report that the ballot papers certainly should include those words:

“We have considered whether the word (sic) “a vote of” could be deleted, but this would alter the clarity of the description. Simply saying that the leader is “chosen” does not explain how this happens and this could be both inaccurate and misleading, and potentially biased … Our research found that the information about how the leader is elected helped respondents to make a more informed choice.”

Strong words from the Electoral Commission, a body not known for going out on a limb.

All three councils in question – Birmingham, Newcastle and Wakefield – have correctly included the Commission’s standard wording on their ballot papers, but omitting them from the explanatory booklets could open them to a challenge in the courts.

After all, if the Electoral Commission concluded the words are important on the ballot paper, might not judges be persuaded they are also important in the officials publications explaining what the votes are about?

Ros Baston, who last year was the Electoral Commission’s chief liaison official with the campaigns in the AV referendum, says:

“The integrity of a referendum relies on voters being able to make an informed decision. The wording of the question is critical to this, and for official information to get this wrong is bad enough. To get it wrong in a way that creates potential bias taints the whole process and leaves the result open to challenge.”

A spokesman for Birmingham City Council explained that the words were omitted from the booklet to make it easier for voters to understand. “The change in the leaflet,” he told me, “was made in agreement with both DCLG (the Department of Communities and Local Government) and legal advisors who were happy it did not change the integrity of the question being asked.”

Tweets by @MichaelLCrick

2 reader comments

  1. 1oldcodger says:

    The Birmingham leaflet was changed on the orders of CLG, who approved the new wording. It is therefore their mistake.

  2. Steve Beauchampe says:

    Michael, I’d really like you to take a look at this, which I posted on a website in Birmngham om Monday. It suggests that there are several other problems with the wording on the referendum ballot paper:


Comments are closed.