Tag Archives: legality

Response to our open letter to Caroline Lucas

So I finally received a reply to our open letter to Caroline Lucas of the Green Party of England and Wales. Here it is with my response:

“Dear Jamie,

Thank you for getting in touch and apologies for not replying sooner – I get a lot of correspondence and give priority to that from my constituents.

As you know, the Green Party fully backs having a “re-open nominations” option on the ballot paper and I’d agree that a “none of the above” option is in the same spirit. It’s not possible for us to campaign on everything and I don’t think we’ll be doing anything proactive on this in the immediate future, but I’ll let the campaigns coordinators know about the open letter and your calls.

In terms of changing policy, that’s done by members and the policy coordinators, copied in above, should be able to tell you whether there’s ever been any proposals along these lines.

Best wishes, Caroline”
—————————————————————————————–

“Dear Caroline,

Thank you for your reply.

A couple of things, firstly Re-Open Nominations and NOTA are more or less the same thing, my issue with the current Green Party policy is that to many RON will be seen as a needlessly technical and jargonistic term, the preserve of political parties, student unions and the like. Most voters, as you know, are not necessarily members of such groups and generally like things to be simplified as much as possible. RON would constantly need explaining, where as None of the Above is a recognised, self-explanatory phrase. For this reason, we feel strongly that the wording of the policy should be changed so that it is clear that the proposed reform is a formal, binding NOTA option, perhaps with RON in brackets, it could then go on to explain what is meant by RON for the avoidance of doubt.

Secondly, it is clear from your response that NOTA/RON, while recognised as necessary, is not a priority for the Green Party. I feel strongly that this is missing a trick. As outlined in the open letter, there are solid, irrefutable reasons why NOTA is the logical starting point for full democratisation of a plainly undemocratic electoral system such as the UK’s.

In a true democracy, it is essential to be able to formally withhold consent at an election, as voting is the formal giving of consent and consent is only measurable if it is possible to withhold it in an equally impactful way. NOTA is the only way to do this, as ballot spoiling / abstaining are informal acts that can in no way affect the result. NOTA would therefore be achievable, in the short to mid term, with enough widespread understanding of this fact and support for it among the general public, as it is not possible to argue against a democratic pre-requisite without arguing against the concept of democracy itself. As undemocratic as the Westminster elites are in practice, they can never be seen to be. Therefore, all it would take to get NOTA in place would be for some mainstream politicians and parties to come out in favour of it and join us in making the case for it in a high profile way. From that point, NOTA would become inevitable. There is also quite probably a legal case to be made for inclusion of NOTA (see here: https://nota-uk.org/…/guest-blog-is-nota-a-legal-requireme…/ )

The same cannot be said of PR, because as desirable a democratic improvement as it may be, it simply cannot ever be argued that PR is a democratic pre-requisite in a system where securing a mandate hinges on seat share, not vote share. In my view, it does not matter how many high profile parties and people are calling for PR, if the party in power benefits directly from FPTP, as is always the case because of the very nature of FPTP, why on earth would they do anything other than pay lip service to calls for a new voting system then ultimately ignore them?

They would not be able to do this if NOTA were the ’cause célèbre’, for the reasons stated. Once in place, a post-NOTA electoral system would be much easier to reform and improve with additional changes such as PR.

If full democratisation of the UK system is the aim, rather than just figuring out how to get one’s own party into power or the continued justification of one’s organisation and funding (ERS, for example), then campaigning for NOTA has to be the start point. Any mainstream political party with the courage and foresight to acknowledge this and get behind our campaign fully would be making history. Until that happens, the issue of electoral reform is likely to continue going round in circles as it has done for decades.

Again, I would be more than happy to consult with policy makers on this issue with a view to making NOTA a central plank of any future Green Party manifesto.

Yours sincerely,
Mr J Stanley
NOTA UK
26/09/2016″

GUEST BLOG: Is NOTA a Legal Requirement?

In an update to his guest blog from last year, NOTA UK’s Rohin Vadera further explores the question:

Is a ‘None of the Above’ option on ballot papers a legal requirement?

In September 2013, the Indian Supreme Court (SC) ruled that electronic voting machines (EVMs) must include a ‘None of the Above’ (NOTA) option for the upcoming national election. Its presence was intended to provide the option for a voter to effectively spoil their vote in private, otherwise impossible given the way voters cast their vote through an EVM.

In this case the NOTA option allowed voters to come to the polling section to register their desire to abstain from the voting process. But it did not function as a true NOTA option, which is a mechanism to formally reject all candidates on offer and initiate a re-run election if need be.

The full judgement is available here: http://www.pucl.org/Topics/Law/2013/vote_none.pdf

What is interesting from the NOTA UK point of view is that the SC based its judgement on sections from the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), the latter of which India has ratified (as has the UK). The ICCPR in particular is a covenant that the UK is legally bound to follow and its terms cannot be overturned by an act of parliament, as I understand it.

Part of the SC judgement is laid out below:

49) However correspondingly, we should also appreciate that the election is a mechanism, which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Article 19 guarantees all individuals the right to speak, criticize, and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast a vote negatively defeats the very freedom of expression and the right ensured in Article 21 (of the UDHR) i.e., the right to liberty.

(Text highlighted by author)

The SC gave reasons why it felt that the NOTA option was an important part of the voting process:

55) Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties realise that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systematic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.

I certainly agree with the reasoning. However, for NOTA to have a substantive impact as described above it must be able to affect the results of an election in a formalised and robust manner. Politicians are used to widespread approbation, so a widely used symbolic NOTA option could be shrugged off, or used in some type of political game that results in no substantive positive changes.

A symbolic NOTA option provides little incentive for disillusioned voters to express their voice as there are no clear and unambiguous consequences to that choice. Uncertainty is the worst outcome of all and undermines the use of this type of NOTA, as disillusioned voters would likely steer clear of the voting process altogether, instead of choosing an ineffective NOTA option.

The SC has also made the common mistake of conflating NOTA with abstention, using it as a mechanism to ‘actively abstain’, rather than reject, in the hope that it will have a positive impact.

So what is the relevance to the UK situation?

Firstly the Indian experience demonstrates that documents like the UDHR and the ICCPR carry weight in determination of election law and secondly there is a good reason to believe that these documents have clauses that require a properly functioning NOTA option that allows voters to reject all candidates with formalised consequences.

Before going into the aforementioned documents, readers should remember that NOTA confers the ability to withhold one’s consent during an election process and thereby ensures that consent can also be validly given, thus making an election a democratic process where voters are the sovereign power. Without NOTA you cannot have an electoral democracy. It is as simple as that.

What I hope to demonstrate is that not only is it a democratic pre-requisite, it is also a legal requirement for any country that has agreed to abide by the UDHR, and especially the ICCPR.

UDHR Article 21.3 is relevant to NOTA, in my view:

21.3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

(Text highlighted by author)

ICCPR Article 25(b) is also relevant:

25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.

(Text highlighted by author)

UDHR 21.3 is clear and unambiguous in its support for a bona fide NOTA option. If the ‘will of the people’ is the basis of a government’s authority, then that government must surely have obtained their consent first. And how can voters give consent unless there is a commensurate ability to withhold it?

This is of course assuming that the oft used phrase ‘will of the people’ actually means what it says rather than being a meaningless cliché, included for effect.

The ICCPR article 25(b) is a little more subtle, but once understood, equally compelling. Elections are supposed to guarantee ‘the free expression of the will of the electors’. How can that be guaranteed unless their consent has been sought and obtained?

For those in any doubt, if we examine the dictionary meaning of ‘will’, in this context it means: expressing desire, consent, or willingness.

How can any government that is based on the will of the electorate not have their consent? Once we can establish that consent cannot be formally given (by voting) without a bona fide NOTA option facilitating the formal withholding of it, the UK is, arguably, legally bound to provide it.

The ICCPR is especially important in this regard as the UK agency responsible for elections could theoretically be sued for breach of covenant if they failed to carry out elections as set out by the terms of the ICCPR and could in turn be liable for monetary recompense to the aggrieved parties i.e. all UK citizens. The ramifications are enormous.

I don’t recommend that anyone rush off to sue the UK government just yet (unless you allow me to join in!), but it is an interesting avenue to pursue should other ways of bringing this important reform into the election process not come to fruition.

Rohin Vadera

16/04/15

The full text of the UDHR and ICCPR can be found here:

The UDHR is here: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng

The ICCPR is here: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

GUEST BLOG: The Legality of NOTA / Right to Reject

Submitted by Rohin Vadera on 21/03/14

The Legality of NOTA / Right to Reject

Based on the recent ruling by the Supreme Court of India (SC) in September 2013 that electronic voting machines (EVMs) must include a ‘None of the Above’ (NOTA) option to retain the right of voters to continue to voice their will through a ‘negative vote’ (a term I dislike, by the way), I did further research based on the United Nations’ ‘Universal Declaration on Human Rights’ (UDHR) and the International Covenant of Civil and Political Rights (ICCPR) that was used in part by the SC to come to its judgement.

The full judgement is available here: http://www.pucl.org/Topics/Law/2013/vote_none.pdf

Below I paste a section from its judgement that quotes sections from the UDHR and ICCPR:

49) However correspondingly, we should also appreciate that the election is a mechanism, which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Article 19 guarantees all individuals the right to speak, criticize, and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21 i.e., the right to liberty.

(Text highlighted by myself)

The UDHR is here: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng

The ICCPR is here: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

Further the SC noted the usefulness of ‘negative voting’ in its promotion of a healthy democracy.

However the NOTA option on the EVM is only the ability of a voter to abstain from voting, this abstention though noted will not affect the final result of the election. In my view this will mean that the NOTA option cannot achieve the potential described in the Supreme Court ruling below:

55) Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realise that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systematic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.

For NOTA to have a substantive impact as described above it must be able to affect the results of an election. Politicians are used to wide spread approbation, so a symbolic NOTA will be shrugged off or used in some type of political game resulting in no substantive positive changes.

Further to that, a symbolic NOTA provides little incentive for disillusioned voters to express their voice as there is no clear and unambiguous consequence to that choice, other than insecurity and uncertainty if used widely. Insecurity and uncertainty is the worst type of result in an election and so this outcome undermines the use of NOTA, as it could encourage disillusioned voters to steer clear of the voting process altogether instead of choosing NOTA.

Below I argue how the UDHR and the ICCPR have wordings that strongly imply that having a NOTA option with the power to affect an election result is a legal and logical pre-requisite in any functioning democracy. By NOTA affecting an election result I specifically mean that if NOTA achieves a majority of the valid votes cast the election should be run again.

There are some practical and logistical issues to address in having such a system, some possible solutions to which are outlined in this blog on the NOTA UK website: https://nota-uk.org/2013/11/16/nota-for-real-logistics-ramifications/

First a quick introduction to the 2 documents I have cited.

The first is UDHR – ‘While not a treaty itself, the Declaration was explicitly adopted for the purpose of defining the meaning of the words “fundamental freedoms” and “human rights” appearing in the United Nations Charter, which is binding on all member states’……many international lawyers,[22] believe that the Declaration forms part of customary international law’

(Text highlighted by myself)

The second is: ICCPR – the UK has signed and ratified this covenant (and so has most of the world)

From the UDHR Article 21 is relevant to NOTA, in my opinion:

  • 1. Everyone has the right to take part in the government of his country directly or through freely chosen representatives.
  • 2. Everyone has the right to equal access to public service in his country.
  • 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

From ICCPR Article 25 is relevant:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

Taking each section I have highlighted in turn:

  •  ‘freely chosen representatives’ – Can representatives be said to be freely chosen if they cannot all be rejected? To me, it very much sounds like ‘real NOTA’ is required to fulfill this provision.
  • ‘the will of the people shall be the basis of the authority of the government’ – the will of the people can only be expressed through their consent, if people cannot withhold their consent, then they cannot give their consent, therefore the will of the people has not been expressed and so the government has no basis for its authority.
  •  ‘guaranteeing the free expression of the will of the electors’ – We are guaranteed ‘real NOTA’ as a valid option on the ballot.

To me the interpretation of ‘the will of the people/electors’ is the most critical element. What does ‘will’ mean?

From the Oxford dictionary the meaning of will relevant to us is: expressing desire, consent, or willingness.

It’s clear that consent is a vital component of will. How can any government that is based on the will of the electorate not have their consent? Once we can establish that consent cannot be given without ‘real NOTA’ the UK government is bound by the UDHR and ICCPR to provide it.

Let me clarify how consent is linked with ‘real NOTA’ i.e. if NOTA achieved a majority of valid votes the election must be held again.

In a democracy, regardless of who we vote for, we consent that the winner of that election will represent the whole of that electorate. However if we do not have the means to withhold consent, it is impossible to give consent.

How can consent be given if it cannot be withheld?

The only fair and practical way consent can be withheld is by having a NOTA option on the ballot that ensures the election is held again if it receives a majority of the valid votes cast. To ensure fairness, if consent can be established by ticking a box on a ballot, then withholding consent must also be established by a method equivalent to giving consent.

For example, if I look at the list of candidates on the ballot and I find that none of them are worthy of my vote, I currently have no fair means of expressing that opinion and having it count – so the winner of the election is representing me without my consent. In a democracy, this is a clear violation of my rights and of everyone who feels as I do. The only way the free expression of my will can be expressed is through the ‘real NOTA’ option.

In my view NOTA is not a refinement of the voting system, it is a pre-requisite to any fair and equitable voting system that allows the free expression of the will of the electorate.

More importantly its presence has the potential to improve the quality of our political representatives in UK politics, as its presence will have to be accounted for in all calculations by political parties and their candidates. Currently, politicians only have an incentive to be the least worst in an election – with a ‘real NOTA’ option present they must strive to be the best.

Is this not a critical objective if we are to progress?

Even worse, the lack of ‘real NOTA’ means that poor candidates can make the entry of good candidates difficult by turning politics into a cesspool within which mainly only the unscrupulous can survive.

If voters are given real power in the political process it encourages their engagement, not just in the voting process, but in all aspects of the political process. They have now become active participants in their governance rather than passive recipients of governance that is on offer to them on a particular day.

Rohin Vadera