This is a House of Commons Committee report, with recommendations to government. The Government has two months to respond.
Date Published: 13 December 2021
The Elections Bill makes substantial changes to electoral law which the Government considers will “make UK elections more secure, modern, inclusive and transparent”. Several of the proposed measures are intended to fulfil manifesto commitments to “protect the integrity of the UK’s democracy”. However, the Bill does not address the widely recognised need for consolidating a voluminous and fragmented body of electoral law. As the Government acknowledges, parliamentary time for large-scale legislative change is scarce, which makes it all the more regrettable that the Government has not shown the requisite ambition to undertake this necessary reform. The decision to focus on a number of standalone measures in this Bill risks adding further layers of complexity. The Government should set out its timetable for a broader review and consolidation of electoral law.
The Bill, in particular the more controversial elements thereof, also received insufficient public consultation prior to introduction. The Committee takes the view that the Bill should have gone through a pre-legislative scrutiny process, with a draft Bill being scrutinised by a Joint Committee. Given the lack of pre-legislative scrutiny and the significance of the measures contained in the Bill, the Government should place a statutory commitment to undertake post-legislative scrutiny on the face of the Bill.
Several changes to electoral law proposed by the Government are also not set out on the face of the Bill, but will be implemented via a raft of secondary legislation. This melange of secondary legislation is likely to only add to the complexity of electoral law and the Committee is concerned about the Government’s reliance on delegated powers in this Bill. As such, it is important that all statutory instruments under this Bill are presented in draft in good time to enable due consideration by both Houses and by relevant stakeholders.
The most significant change to elections in the UK is contained in Clause 1 of the Bill, which would create a legal requirement to for photographic identification to be shown by voters in order to cast their vote at UK-wide elections, all local elections in England, and Police and Crime Commissioner elections in England and Wales. Currently, no identification is required for elections in Great Britain, but photographic identification has been required to cast votes in Northern Ireland elections since 2003. This ‘voter ID requirement’ is intended to prevent the offence of personation, where an individual votes as someone else in person at a polling station. The recorded levels of alleged personation are very low and the number of instances that result in a caution or conviction is even smaller. Personation is currently very difficult to detect unless a person named on the electoral register attempts to vote after personation has occurred. The Government believes that instances of personation are underreported, and the perceived risk of personation undermines public confidence in elections.
There is a concern that a voter ID requirement will introduce a barrier preventing some people from exercising their vote. When the requirement to produce photographic identification at polling stations was introduced in Northern Ireland in 2003, the turnout at the 2004 Northern Ireland Assembly elections dropped by 2.3% as a direct consequence. The introduction of the voter ID requirement will remove an element of the trust inherent in the current system between state and individual, and making it more difficult to vote. We are concerned that the evidence to support the voter ID requirement simply is not good enough. It is likely that it will reduce turnout for future elections given the comparable evidence base following the introduction of such measures in Northern Ireland. The Government should not proceed with this proposal until it has set out the criteria it used in its assessment of the proportionality of introducing the voter ID requirements on voter turnout and participation and undertaken further consultation and research on the impact of the voter ID requirement on groups with protected characteristics. We also recommend extending the list of accepted forms of ID and call for all secondary legislation made under this Bill, which will establish the operation and functioning the voter ID requirement, to be provided in draft to relevant stakeholders with sufficient time for comment.
The Bill would also widen the requirement for people with disabilities to be supported in casting their vote. We support this measure. To ensure consistency in the application of this measure by local authorities, we recommend that the Electoral Commission be tasked with creating a minimum standard for equipment provided by electoral administrators and that these standards should seek to ensure that people are able to vote independently where possible. We also recommend that the current legal protections for blind and partially sighted individuals to vote independently is maintained.
The Committee also supports the measure in the Bill relating to postal voting, but recommends that regulations requiring local authorities to notify people in advance of expiry are brought forward to ensure that people do not accidentally find themselves unable to vote on an election day due to an automatic lapse in their postal vote. We also support the changes to limit the number of proxy votes that an individual can cast. and welcome the removal of the 15-year limit relating to overseas electors. The proposals on EU voting and candidacy rights set out in the Bill would create a complex system that would likely to lead to confusion. We recommend that the Government considers further the option of a residency based approach in the future.
The Bill proposes significant changes to the accountability arrangements for the Electoral Commission. It would create a new power for the Government to designate a Strategy and Policy Statement (’Statement’), which the regulator must have regard to in carrying out its functions. The Statement would be subject to a consultation process and must be approved by Parliament. The Commission’s compliance with this Statement would then be assessed by the Speaker’s Committee on the Electoral Commission, whose remit would be expanded under the Bill.
The Government maintains that the proposed measures are a necessary response to a loss of confidence in the Electoral Commission. However, widespread concerns have been expressed in evidence before this Committee that these measures, taken together, would threaten the actual and or perceived independence of the Electoral Commission and undermine public confidence in the effective and independent regulation of the electoral system.
Is it essential that the regulatory framework strikes the right balance between upholding the independence of the Electoral Commission and ensuring it is effectively scrutinised and held to account. Overall, the Committee considers that the Government has not provided sufficient evidence to justify why the proposed measures are both necessary and proportionate. We therefore recommend that Clauses 13 to 15 of the Bill are removed, pending a formal public consultation on the proposed measures and to take into account any recommendations put forward by this Committee in its final report on the work of the Electoral Commission.
At a minimum, we recommend enhancing safeguards on the face of the Bill that make clear that the Commission can depart from the guidance set out in the Statement if it has a statutory duty to fulfil or if it reasonably believes it is justified in specific circumstances, to preserve the Electoral Commission’s operational independence and prevent abuse by future governments. Furthermore, given the Government’s stated objective of improving parliamentary scrutiny of the Electoral Commission, the proposed consultation and approval processes of the Statement must be transparent and meaningful. The consultation requirements, and when they are likely to be disapplied, require clarification. We recommend the use of the ‘super-affirmative procedure’ for approval of the Statement to ensure that Parliament has a say in the drafting of the Statement. Furthermore, the Government should make a clear commitment to find time for debate on the floor of the House when the Statement is laid for approval. Finally, given the importance of the Speaker’s Committee being seen to exercise its role and powers impartially and with cross party support, we would support measures that increase transparency in the Speaker’s Committee assessment of the Electoral Commission’s compliance with the Statement.
The Bill also makes changes to the regulation of campaign expenditure. While there has been support in principle for these measures, the Committee is concerned that the Government proceeded with making changes in certain areas ahead of the Committee on Standards in Public Life (CSPL) report on this matter, Regulating Election Finance, which was published shortly after the Bill’s introduction and proposes a coherent package of reforms. The Government has also not made clear which of the recommendations in the CSPL report it is likely to adopt and prioritise in future, if any. The Government should give clarity on its next steps in this regard.
Digital imprints on campaign material are also introduced through the Bill. This will help voters understand who is paying for the digital political advertising to which they are exposed. This measure has received widespread support in principle and has been viewed as a long overdue step to increase transparency in online campaigning. Given the rapid pace at which changes in technology can take place, we have recommended that the Government monitor and conduct regular reviews of the digital imprint scheme to ensure it remains effective and that unintended consequences and loopholes are prevented from emerging or remaining open to exploitation.
Finally, the Committee is concerned about the late addition of the change to the voting system for Police and Crime Commissioner (PCCs), Combined Authority and Local Authority Mayoral and London Mayoral elections. Regardless of the benefits or disadvantages of the changes made by the Bill to the electoral system for those offices, the manner in which this change was introduced after the Bill had been debated by the House at Second Reading was unsatisfactory and disrespectful towards the House of Commons.