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AEA Policy Position: the need for legislation on second electoral registrations

1. Introduction

This paper outlines the Association of Electoral Administrators (AEA) views about the need for legislation on second registrations.

 

2. Background

2.1   Legislation

To be registered to vote, an individual is required to be resident in the appropriate electoral area on the date of their application, referred to as the “relevant date” in legislation.

Section 5 of the Representation of the People Act 1983 states:

    • the Electoral Registration Officer (ERO) must have regard to the purpose of an individual’s presence or absence from a property;
    • residence should not be interrupted because of an individual’s absence from a property because of work or educational commitments if they intend to resume actual residence within six months.

Instances of occasional residence, such as infrequent overnight stays, do not generally qualify. However, where an individual is temporarily staying at an address and does not have a home elsewhere, they may claim residence at that temporary address for the purposes of electoral registration.

Case law is also clear that individuals may have more than one residence (Fox v Stirk and Another [1970] 3 All ER. CA). It also confirms that residence as a trespasser is sufficient to qualify an individual (Hipperson and Others v Electoral Registration Officer for the District of Newbury and Another [1985] 2 All ER. CA). The same principle could apply to squatters.

 

3. Key issues

3.1   Ability to register at more than one address

In our previous post-election reports and policy positions paper we have expressed concern that, while there is current provision to register in more than one place (for example students can register at both their home and term-time addresses), it is not clear in legislation what constitutes a valid second registration.

The law regarding ‘residency’ is open to interpretation and leaves EROs to exercise their judgement on a case-by-case basis to decide whether residency requirements are met. Regular examples that would benefit from consistency include the ability for people to register at a ‘second home’, not helped by the lack of a clear and firm definition for what constitutes a ‘second home’.

 3.2  Preventing fraud

Anyone registered to vote at two addresses may only vote once at any election to the same governance body. For example, they may only vote in one UK Parliamentary constituency at the same election. To vote more than once would be an offence. However, they can cast ballots for all local authorities in the areas they are registered, even where elections are held on the same day.

There is anecdotal evidence that this restriction is not always clearly understood by those who are eligible to register at more than one address. There is also no way of knowing how many people, unwittingly or otherwise, have voted more than once at a UK Parliamentary election on the same day.

3.3   Law Commissions

In March 2015, the Law Commissions issued their Electoral Law: A Joint Consultation Paper. They asked –

“Should the law lay down the factors to be considered by registration officers when registering an elector at a second residence?”

We responded, saying –

“Yes. With the factors included in legislation, this would make it clearer for the registration officer when determining applications from electors wishing to register at a second residence. Option 1 on page 55 appears to include the relevant factors that should be considered in relation to second residency[1].” (Option 1 is outlined in the appendix).

We stand by this view, which was supported in the Law Commissions’ final report published in 2020, which made the following recommendations:

“Recommendation 16 – Primary legislation should explicitly acknowledge the possibility of satisfying the residence test in more than once place.

Recommendation 17 – The law should lay down factors to be considered by registration officers when determining second residence applications, such as those set out in paragraph 4.61 of this Report (see appendix).

Recommendation 18 – Applicants for registration in respect of a second home should be required to state that fact. Secondary legislation may prescribe how registration officers should seek to acquire the information required to decide the application.

Recommendation 19 – Electors applying to be registered in respect of a second home should be asked to designate which home they wish to be registered at to vote at national elections.”

 

4. AEA policy position

  • Current legislation should be reviewed to consider whether registration in more than one location should continue.
  • If registration in more than one location should continue, the law should be amended to clearly define ‘residency’ and what constitutes a ‘valid second registration’.
  • In the meantime, the Electoral Commission should provide further guidance clearly defining ‘residency’ and provide good practice examples to assist EROs and allow for consistency.

 

5. Further information

The Association of Electoral Administrators was founded in 1987 and is the professional body representing the interests of electoral administrators in the United Kingdom. We are a non-governmental and non-partisan body with just over 2,000 members, the majority of whom are employed by local authorities to provide electoral registration and election services. Eleven regional branches of the Association cover the United Kingdom.

Further details on the legislative background connected to this policy position are available on request.

If you require any further information, please contact Angela Holden, AEA policy manager – angela.holden@aea-elections.co.uk or 07752 630497.

25 October 2021

APPENDIX

Law Commissions – 2015 – Electoral Law – A Joint Consultation Paper

Option 1: laying down the factors relevant to finding second residence:

Based on the case-law the following factors seem relevant to determining whether a person is resident and entitled to be registered at a second home.

(1) The duration of physical presence at the second home in a calendar year.

(2) The length of time the person has spent at the second home.

(3) The purpose of presence there – for example, relaxation and tourism, or work and study.

(4) Links to local community and activity, whether social, political, or commercial.

The downside to laying down the factors in legislation may be said to be that registration officers are expressly asked to engage in more substantive judgements about the quality of persons’ connections to communities. However, this is precisely the exercise in which they must currently engage, albeit with no reference to particular factors whatsoever.

Evidence of electoral connection through a second home

In order to assist registration officers in making a decision, an elector applying to be registered in respect of a second home could indicate that fact and be asked to complete a declaration in support of the application. That declaration would contain the following:

(1) a declaration of intent to occupy the second home for the foreseeable future;

(2) the typical duration of presence in the calendar year, and total length of occupation at the second home, accompanied by evidence in support;

(3) a description of the person’s connection, if any, to the local area, including past residences, local business or other interests; and

(4) if the person is able to provide one, an attestation by a current elector in the area that they know the applicant and can attest to their being a member of the community.

The declaration should enable registration officers to come to a decision based on any guidance given by the Electoral Commission. We do not consider that items (3) and (4) should be mandatory, but provisionally consider that the information given at (1) and (2) should be required if this option is be preferred.

Law Commissions – 2020 – Electoral Law: A joint final report

Paragraph 4.61

4.61 To be a residence, an address does not have to be a person’s only or main residence, but it does have to qualify as a residence, rather than merely accommodation occupied by them. In deciding whether a property is a person’s residence, the relevant factors include the following.

(1) The legal basis upon which the person occupies a property (ownership, lease, etc) is in itself of little relevance. Property occupied, for example, as staff accommodation or by a carer living in the client’s home, is capable of being a person’s residence.

(2) Where a person’s occupation of a property is not continuous, such as where the person also occupies a residential property elsewhere, the permanence of the arrangement is a relevant factor. If, for example, the property is to be occupied once for a relatively brief period, it will not qualify as a residence. A clear example would be short-term rental of holiday accommodation.

(3) Where living arrangements involving two sets of accommodation are long-term or permanent, the pattern of the person’s occupation of the accommodation is relevant. The fact that a property is occupied for, in the aggregate, a small portion of the year will militate against it being occupied as a residence, as will the fact that occupation of it is concentrated at a particular time of the year, such as in the case of a seaside cottage occupied for a summer holiday only.

(4) The availability of the accommodation for the person’s occupation may be relevant, particularly if it dictates a pattern of occupation not amounting to occupation as a residence. If a person only has a timeshare interest in a property for a small number of weeks a year or lets out the property for most of the year, that would be unlikely to be sufficient to found occupation of it as a residence.

(5) The purpose of a person’s occupation may be a relevant factor, particularly if it shows the intended duration of the occupation to be short-term, occasional or for purposes characteristic of a holiday – a retreat from everyday life rather than a continuation of it.

(6) Where a person has a family or household, their pattern of occupation is a relevant factor. If a person occupies a property leaving their household or family elsewhere, but there is a reason for this such as the demands of work and the person returns regularly, the household or family’s continued occupation of the other property will suggest that it remains a residence of the person.

(7) For most people, residing in a place connotes involvement in the local community. Social contact and involvement in local politics or community activities are indicative of home life being continued in two places.

Law Commissions – 2015 – Electoral Law – A Joint Consultation Paper