Draft Strategy and Policy Statement for the Electoral Commission

This is a House of Commons Committee report, with recommendations to government. The Government has two months to respond.

Fourth Report of Session 2022–23

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Contents

1 Introduction

1. Section 16 of the Elections Act 2022 inserts a new section, 4A, into the Political Parties, Elections and Referendums Act 2000 (PPERA). The new section allows the Secretary of State to designate a ‘Strategy and Policy Statement’ (the Statement), that sets out:

a) Strategic and policy priorities of Her Majesty’s Government relating to elections, referendums and other matters in respect of which the Commission have functions; and

b) The role and responsibilities of the Commission in enabling Her Majesty’s Government to meet those priorities.1

The Statement may also set out:

a) guidance relating to particular matters in respect of which the Commission have functions;

b) any other information (for example, about the roles and responsibilities of other persons) the Secretary of State considers appropriate.2

2. The explanatory notes to the Act state:

The Act makes provision for a power to designate a Strategy and Policy Statement, which will be drafted by Government and subject to Parliamentary approval. The Electoral Commission must have regard to it in the exercise of its functions. The regulator will remain operationally independent and will be able to depart from this guidance if it has a good reason for doing so.3

Our role and inquiry

3. Under section 16 of the Elections Act 2022, new section 4C has been inserted into PPERA. This requires the Secretary of State to consult the Electoral Commission, the Speaker’s Committee on the Electoral Commission, and ourselves on a draft version of the Statement.4

4. On 22 August, Paul Scully MP, then Minister of State for London, Local Government and Communities, Department for Levelling up, Housing and Communities (DLUHC), wrote to the Committee informing us that the Government had published the draft Statement “thus officially launching the statutory consultation”. That letter also set a deadline of 5 December for our view on the Statement.5

5. Prior to the summer recess, we considered our role as a consultee under the Act. We decided that we should form our view in the same way as we do for other elements of our remit, based on the evidence that we receive. We have received 11 written submissions and held two oral evidence sessions - with academics, the Association of Electoral Administrators, the Electoral Commission, and with Rt Hon Andrew Stephenson MP, then Parliamentary Under Secretary of State (Minister for Housing and Communities), DLUHC. We are grateful to all those who submitted written evidence, gave oral evidence, or otherwise contributed to the inquiry. We are also grateful for the support and advice throughout this inquiry from our specialist advisor, Aileen Murphie, Honorary Professor, Durham University Business School.

2 Background

6. The Elections Bill was first presented to Parliament on 5 July 2021. In September 2021, the Government published an illustrative example of the Statement “to aid parliamentarians’ understanding of the measure” during the passage of the Bill.6

Public Administration and Constitutional Affairs Committee’s report on the Elections Bill

7. The Public Administration and Constitutional Affairs Committee (PACAC) published a comprehensive report on the Elections Bill in December 2021.7 The report stated:

“The Committee has not received any written submissions or oral evidence to this inquiry supporting the proposed Strategy and Policy Statement and wider changes to the scrutiny of the Electoral Commission. …

There have been strong criticisms from academics and a range of stakeholders that the measures lack justification and were characterised as a “retrograde step”, “an extremely dangerous thing to do” and “would constitute democratic backsliding”.”8

8. PACAC concluded:

“The Committee notes widespread concerns … that there was no formal or public consultation on these proposals and that there is a lack of supporting evidence to demonstrate that the proposed measures are both necessary and proportionate.

The Committee reiterates the importance in upholding the actual and/or perceived independence of the regulator and considers that effective scrutiny of the Electoral Commission’s work by the UK’s Parliaments is essential to ensuring the Commission is held to account in the discharge of its statutory duties. A regulatory framework which achieves this balance is crucial for upholding public confidence in the regulator and in electoral outcomes”.9

The Government response

9. The Government response to that report was published on 10 February 2022, and stated:

“The Government agrees that it is crucial that Parliament is clear on the effect and implications of proposals relating to the accountability of the Electoral Commission introduced by the Elections Bill. For this reason, the Government has already tabled three written ministerial statements (HCWS100, HCWS269, HCWS290) which provided information about the impact of the Commission’s duty to have regard to the Strategy and Policy Statement on its other statutory duties and showed parliamentarians an illustrative example of the kind of guidance the Commission may be required to have regard to in the exercise of its functions”.

The response reiterated that the provisions in the Bill introduces “a requirement for the Commission to have regard to the Statement in the discharge of its functions” and that the Bill maintains the operational independence of the Commission as under the new section the Commission will only be required to have regard to the Statement. The response also set out that the Government had established a broad policy framework, as approved by Parliament, which independent regulators should consider in the examples of Ofcom and Ofwat. Furthermore, it reiterated that “the duty to ‘have regard’ is not a novel concept in primary legislation and works in similar ways to other existing statutory duties which require public bodies to ‘have regard’ to specific considerations in the carrying out of their functions”.10

Changes to the draft Statement, as compared to the illustrative Statement

10. On 22 August, Paul Scully MP wrote to us stating that, “The revised Statement maintains the scope and format of the illustrative Statement and is split into three main components:

  • Priorities for the Electoral Commission;
  • Executive priorities in relation to elections as approved by Parliament: and
  • Principles for the Electoral Commission”.11

11. Annex A to the Minister’s letter outlined that the draft Statement included various changes to the illustrative Statement, “including reflecting necessary changes now that the Elections Bill is enacted”. These were described as:

  • Opening statement: A sentence was added expressly stating that ‘this Statement does not apply to the Commission’s devolved Welsh or Scottish functions’;
  • Paragraphs 5a-e: These new paragraphs acknowledge that the Commission plays an important role in tackling fraud through some of its core statutory duties; and
  • Executive priorities in relation to elections as approved by Parliament: Updates to various paragraphs following the enactment of the Elections Bill.12

12. The Minister’s letter did not, however, highlight some other changes to the illustrative Statement. Most notably, in at least a dozen instances the phrasing that “[t]he Commission must have regard to” was removed and replaced by “[t]he Commission should”, which indicates a change in approach since the proposed legislation was before Parliament, and since the Government responded to the PACAC report. The new wording suggests some form of obligation, rather than (in the wording of the legislation) matters to which the Commission only needs to have regard to.

3 No current necessity for a Statement

The Government’s justification for a Statement

13. As set out in paragraph 7, PACAC heard strong criticisms that the proposal for a Statement lacks justification. During the course of our inquiry we have sought to establish why the Government thinks the Statement is required. We have heard from the Government about what the Statement is intended to do, but have not been provided with a clear explanation why it is required. On 22 August, Paul Scully MP wrote to us stating that:

“In recent years, some parliamentarians have also questioned the adequacy of the existing accountability structures for the Electoral Commission”.13

14. On 19 October, the first question we asked Andrew Stephenson MP was “what is the problem that the Statement is meant to solve”. He replied:

“As was discussed during the passage of the Elections Act, there have been concerns in the past, concerns that were highlighted by Lord Pickles’s report into electoral fraud. It is clear that the Electoral Commission needed to change and the existing system of oversight by the Speaker’s Committee did not provide as sufficient a check as some would want to see on the commission’s performance. The draft statement is there to empower Parliament to hold the Electoral Commission to account more effectively while respecting the commission’s operational independence”.14

15. During the evidence session, the Minister made further references to why the Statement was being brought forward. These included:

“Parliament debated this extensively during the passage of the Elections Act 2022 and Parliament agreed that the Government could introduce a statement.15

This statement flows out of—I alluded to this before—Lord Pickles’, previously Sir Eric Pickles’, review of electoral fraud, which followed the mayoral election in Tower Hamlets in 2014 or 2015 being overturned.16

The Government policy is to introduce a statement. We have the powers to introduce a statement following the Elections Act of 2022”.17

The basis for the Government’s justification

16. To summarise, the Government’s justification for the Statement appears to amount to the following concerns: improving accountability; a need for change; the Commission’s performance; and specific recommendations from the 2016 report by Sir Eric Pickles - now Rt Hon Lord Pickles - Securing the ballot.18

In addition, Paul Scully’s letter of 22 August and the content of the Statement indicated the issues the Government considered should be prioritised, as being currently deficient or otherwise of concern. These include: enforcement; the clarity of guidance; impartiality; value for money; and generally adhering to the standards expected of a public sector body.19

Accountability

17. On 22 August, Paul Scully MP wrote to us stating that:

“In recent years, some parliamentarians have also questioned the adequacy of the existing accountability structures for the Electoral Commission. Given the nature of the Commission’s work, it is right that the regulator remains accountable to the UK Parliament via the Speaker’s Committee on the Electoral Commission … . The Act therefore also expanded the role of the Speaker’s Committee to include examining the Commission’s compliance with its duty to have regard to the Statement. Together, these measures will facilitate scrutiny by the UK Parliament of the Electoral Commission’s performance of its duty in relation to the Strategy and Policy Statement whilst respecting the Commission’s operational independence”.20

18. In oral evidence, Andrew Stephenson MP explained that the Statement does not change the existing accountability arrangements “but it strengthens the role of the Speaker’s Committee on the Electoral Commission … [as] under the Elections Act 2022 [it] has an additional role of being able to look at the work of the commission and scrutinise the work of the commission in the light of the strategy and policy statement”.21 He said that it will be a matter for the Speaker’s Committee as to how it interprets its responsibilities and how it wishes to exercise its powers.22

19. We also asked the Minister if there were simpler ways to improve the Electoral Commission’s accountability to Parliament. He replied:

“The balance currently of the Electoral Commission being accountable to Parliament via the Speaker’s Committee on the Electoral Commission, I think, strikes a good balance. The Speaker’s Committee on the Electoral Commission does not have a Government majority. It is, of course, chaired by Mr Speaker himself. I think that gives parliamentarians across the board hopefully a great deal of confidence that the Electoral Commission is not being scrutinised in any way by the Government or the ways that the usual channels can work in this place. The Speaker’s Committee on the Electoral Commission I think is a very robust and sensible way to provide oversight to an independent regulator”.23

20. Professor Alistair Clark, Newcastle University, told us that the claimed purpose of the Statement to increase and improve Parliamentary accountability was based on the incorrect assumption that the Electoral Commission was not sufficiently accountable to Parliament. He said that the Electoral Commission was accountable to the Speaker’s Committee, the relevant Departmental Select Committee,24 and PACAC whose remit under Standing Order 146 includes “to consider constitutional affairs”, and who had been conducting a long running inquiry into the Electoral Commission.25 He said that this accountability “would seem to be a higher level of accountability than other, more policy oriented, regulators experience”. He further explained that the Electoral Commission was also accountable and responsive to other bodies, such as the Committee on Standards in Public Life (CSPL), through the party-nominated Commissioners, and through the quarterly Political Parties Panels in each of the four legislatures in the UK.26

21. Dr Sam Power, Senior Lecturer in Corruption Analysis, School of Law, Politics and Sociology, University of Sussex, told us:

“My understanding [of the purpose of the Statement] is that it would make the Electoral Commission more accountable to Parliament. … There is nothing in the draft strategy and policy statement, as it is currently written, that really mentions Parliament. It is about the Government. Beyond being ratified, if you will, by Parliament, I do not think that the relationship between the Electoral Commission and Parliament is stated here”.27

22. The Electoral Commission told us that the Statement “sits very uncomfortably with the Electoral Commission’s appropriate accountability, which is not to the Government, but is to this Parliament and the Parliaments of Wales and Scotland”.28

Performance

23. As expressed above, Andrew Stephenson MP said that the existing system of oversight by the Speaker’s Committee did not provide as sufficient a check as some would want to see on the Commission’s performance.29 During this inquiry we explored whether there were concerns with the Commission’s performance.

24. Later in the evidence session, the Minister also said “It is not for the Government to criticise the performance of the Electoral Commission”,30 “it is not for the Government to express a view on the performance of the Electoral Commission”,31 “It is not for the Government to criticise. I have had positive dealings with the Electoral Commission in my own constituency”,32 and “The Government do not oversee the performance of the Electoral Commission”.33

25. We have not received any evidence suggesting that the Electoral Commission’s performance is poor. On the contrary, the impression was that it was performing either well or at least adequately in a field that is often legally complex and can be politically highly charged. During our evidence session on 12 October, we heard from Professor Fisher that “In every single election that we have studied [since 2005] there is a great deal of satisfaction with the guidance provided by the commission, such that, in many ways, it would be difficult for it to perform better than it already does”,34 and from Dr Power that “The Electoral Commission does about as good a job as it can, although … nobody is perfect”.35

26. We are also guided by PACAC, whose recent report, The Work of the Electoral Commission, which was published on 20 October, states:

“It has been over twenty years since the Electoral Commission was established and the Committee believes it continues to play a fundamental role in overseeing free and fair elections and referendums and regulating political finance. However, there are numerous challenges facing the Electoral Commission that have the potential to impact its ability to effectively carry out its statutory functions in the modern era”.36

This report criticises the Government for not simplifying the body of law governing the running of elections and referendums and calls for a long-term strategy to be set out. It also describes the Elections Act as a “missed opportunity” which has made electoral law more complicated. While it notes that challenges lie ahead for the Electoral Commission, it does not conclude that it is under-performing.37

27. In its evidence to us, the Electoral Commission referred to inquiries into the work of the Commission by both PACAC and the Committee on Standards in Public Life. John Pullinger CB, Chair, Electoral Commission, said “My reading … is that the vast bulk of the evidence was very supportive and complimentary about the commission’s work but there were some criticisms”.38

The Securing the ballot report and a need for change

28. In Andrew Stephenson MP’s letter of 25 October, he returns to the 2016 Securing the ballot report, and states:

“Lord Pickles’ report into electoral fraud was clear that the Electoral Commission needed to change and that the existing system of oversight by the Speaker’s Committee did not provide an effective third-party check on the Commission’s performance”.39

29. John Pullinger addressed the previous criticisms of the Electoral Commission when he told us:

“What I observed coming into the commission is that it was an organisation that was taking those concerns very seriously, recognising that it had not been as good as it should have been on some occasions—indeed, one court case was lost, with apologies very directly to the people involved for the difficulty that causes. But what I observe is that we have heard that evidence, we have listened carefully to it, and we have changed the way we do things”.40

Inferred criticisms

30. Given our understanding of the issues the Government were concerned about we sought evidence on: enforcement; the clarity of guidance; value for money; impartiality, and whether the Commission was generally adhering to the standards expected of a public sector body.

31. We explored these issues with the Electoral Commission, who gave us a reasonable explanation of what concerns there could be in these areas. For example, they told us it is difficult for guidance to be crystal clear because the law is so complex, but that they work with stakeholders to continually refine their guidance.41 On impartiality, they told us that it was “absolutely the core of everything we do” and was demonstrated by how the Commission followed the evidence in understanding its work.42 In relation to enforcement, they explained that there is an existing statutory Enforcement Policy, which was fully consulted on to produce a balanced policy, taking into consideration a broad range of factors to ensure public confidence, and also to support compliance by political parties.43

32. We also raised these inferred criticisms with the Minister. When we put it to the Minister that, by referring to an area as being a priority for the Government, it implied that it had not previously been given due attention, he replied:

“What is included in the statement is not a reflection of where we think it has performed good, bad or indifferent in the past. This is simply setting out the Government’s priorities. It is not on the basis of where we think there may have been shortcomings in the Electoral Commission in the past”.44

We suggested there was an implication in the Statement that the Commission’s current guidance fell short of the required standard, to which the Minister said “That is not the Government’s view”.45 We questioned whether the Government thought, in relation to paragraphs 16 to 25 of the Statement, that the Commission was not adhering to the standards generally expected of a public sector body. The Minister replied “Once again, I would say that you should not read anything in the statement as a criticism of the things that the Electoral Commission has done”.46

Current working relationship

33. We also took the opportunity to explore the working relationship between the Commission and the Government. Dr Sam Power said “there is no evidence to suggest that the Electoral Commission is, for example, actively aloof in the way that it works with the Government”.47 John Pullinger told us:

“I have been in this job for nearly 18 months now and I would characterise the relationship that the commission has with the Government as very good. I think it is mutually supportive, respectful and very effective”.48

And

“We are aligned. In terms of our work at the moment, the Elections Act became law and there is a huge amount of work to ensure that is implemented successfully in the interests of voters, candidates and administrators. The working relationship is very good and very well aligned. The risk of the strategy and policy statement is that it gets in the way of that”.49

34. The Minister told us that the Government relies on the Electoral Commission to provide it with good advice in relation to electoral law, and gave the example of how the Commission provided an evidence base for voter ID, which was subsequently introduced under the Elections Act 2022.50

4 Impact of the Statement as currently drafted

35. During our inquiry it has been clearly expressed in evidence to us that in all likelihood proceeding with the Statement as currently drafted will have a detrimental impact on the Commission, and its drafting is flawed. This chapter explores how the Statement could impact the Commission’s independence and how it operates, and also considers how the priorities and principles set out in the Statement seem to differ from what the PPERA sets out.

Independence

36. Throughout the development of the Statement, the Government has maintained that the Government recognises the operational independence of the Electoral Commission. Rt Hon Lord True, the then Minister of State at the Cabinet Office, who spoke for the Government in the House of Lords on the clause that became section 16 of the Act said “The suggestion before the House … is that the Government are attempting to interfere with the operational independence of the Electoral Commission. We contend that that is a mischaracterisation … The Government are not seeking to direct … the Electoral Commission”.51 On publication of the Statement, Paul Scully MP wrote to us stating that “The Commission will remain operationally independent and governed by its Commissioners”.52

37. Despite the explanations from the Government, it is the impact of the Statement on the Commission’s independence which has been raised most frequently and generated most concern among our witnesses. Unlock Democracy said:

“From the outset, our major concern about the government’s statement was that it would directly interfere with the independence of the Electoral Commission. The Government is now directing the Commission’s work and identifying its priority functions. … This is completely incompatible with a subsequent government claim that ‘This Statement does not seek to interfere with the governance of the Commission and the Commission remains operationally independent.’.”53

Daniel Greenberg CB, Counsel for Domestic Legislation, Office of Speaker’s Counsel, House of Commons, told us:

“Parliament engaged with the Government at the enactment of the primary legislation in good faith, and worked with the Government to support a legislative proposition that creates a proper synergy between a fully independent Commission and the desire of the Government to provide high-level influence by articulating its own hopes and aspirations for the role played by the Commission in the overarching constitutional arrangements of the United Kingdom. What has emerged in the draft statement is a thinly disguised attempt to give operational instructions to the Commission and, in effect, to render it a tool for the implementation of Government policy”.54

These concerns run throughout the written evidence we received.55

38. Similar concerns were also raised during our oral evidence sessions,56 in particular by the Electoral Commission itself. John Pullinger told us:

“the Government have consistently said to me and to Parliament during the passage of the Elections Act that they think that the independence of the Electoral Commission is important in sustaining public confidence in elections. It seems to me that if the Government do believe that, the best way to demonstrate it is to not proceed with the strategy and policy statement.

If, on the other hand, the Government do want to influence the work of the commission—and the Government’s press statement released when this consultation was launched is not very encouraging in that respect because it said the purpose of the strategy and policy statement was to tell the Electoral Commission what to do—… I would echo the words of the Chair of the Committee on Standards in Public Life. “It may not immediately lead to disaster, but it is an extremely dangerous thing to do.”

In short, I think the existence of a strategy and policy statement will make the job of the Electoral Commission to ensure public confidence in elections is sustained … much harder”.57

39. We put these concerns to Andrew Stephenson MP, who replied in similar terms to previous Ministers that “we are all in violent agreement that the Electoral Commission is very independent. We all wish it to remain very independent and I see nothing in the fact of us bringing forward this draft statement that undermines the operational independence of the Electoral Commission”.58 We asked him why the Commission was concerned that its independence was being interfered with. He did not directly answer that question, but did say “I think that the Electoral Commission has been consistent in its views that it does not wish us to bring forward a statement”.59 During the course of the evidence session he reiterated that the Statement would not undermine the operational independence of the Electoral Commission.60

40. The Minister also referred to evidence we have received from Ofcom which said that the similar statement it has from the Government has not made it feel that its independence has been undermined.61 PACAC previously considered the argument put by the Government that similar statements are in place for other regulators. Their evidence found:

“The Government asserts that “[i]t is commonplace for the Government and Parliament to set a policy framework by which independent regulators should work” and that other regulators such as Ofcom and Ofwat have a similar relationship with Ministers. However, the [Committee on Standards in Public Life] and various academics consider this a “completely false analogy … [as] this is not a regulator that is implementing Government policy”, but one that directly regulates the people and parties that make up the Government and Parliament. Professor Alan Renwick stresses that “ministers and parliamentarians should recognise their own potential conflict of interest”.”62

41. Professor Alistair Clark thought that the Commission’s Statement could be improved when compared to the Government’s statement of strategic priorities for Ofwat.63 He said the ambiguous and contradictory nature of the Commission’s Statement hid the extent to which it is asking the Electoral Commission to comply with government priorities, and he found the Ofwat strategy document to be more direct and clearer.64

42. John Pullinger said that, while it would be simplest to not proceed with the Statement, it would be very important for the Statement to express the Government’s commitment to the Commission’s independence. He proposed the wording, “Nothing in this statement should be taken to constrain the Electoral Commission in taking its decisions independently and impartially in line with the legal requirements upon it.” He argued that this wording would be very reassuring to voters and campaigners.65

Priorities and principles in the Statement

43. The PPERA allows the Secretary of State to set out in the Statement the “strategic and policy priorities of Her Majesty’s government”. The Act does not make any reference to principles for the Commission, which are set out in paragraphs 16 to 25 of the Statement. In setting out “principles, to which the Electoral Commission must have regard” the Statement seeks to influence the way in which the Commission should perform its functions, going beyond the limited role the Government has in exercising this power, given the Commission’s independent status.

44. Daniel Greenberg told us that paragraphs 10, 11 and 12 of the Statement go beyond the establishment of the Government’s priorities “and appear to presume that by articulating government policy, the statement can assume and express an implicit duty on the Commission to implement that policy through the performance of its own functions”. He said this amounts to subordination of the Commission’s own policy development to the Government’s plans, which is not what the primary legislation mandates, and “an approach of that kind leads rapidly to operational interference”.66

45. In oral evidence to us, the Electoral Commission explained that it currently operates in accordance with its statutory Five-year Corporate Plan, which is developed in consultation with the Government, other parties, campaigners more generally, electoral administrators and voters. John Pullinger said that if the Commission was to follow the priorities that the Government set out in the Statement the first consequence would be diminished confidence amongst voters and campaigners, because it would give the incumbent Government an opportunity to set the priorities rather than the broader community.67 Dr Sam Power also highlighted this as a potential consequence, and said that “[i]t is as if, every year, the team that won the Premier League set out a policy for the referees to follow” and that this was a real danger with regard to public perceptions.68 John Pullinger also commented that the priorities in the Statement said little about some of its essential work, such as administering election finance, ensuring polling stations are staffed, and implementing voter ID effectively, and that the priorities in the Statement did not plan for the future and prepare the Commission for things that were coming down the track.69

46. John Pullinger also told us that the Statement currently contains a lot of detail which strayed into commentary on the operational work of the Commission. He noted that similar statements for other regulators remained at the level of strategy and policy. He said: “If the draft could just be amended to recast clarity of what the Government’s policy and strategy is, it would be less confusing and complicated. It would also be much more straightforward, the clearer it is, for us to demonstrate that we have had due regard to it in our decision making”.70

47. Daniel Greenberg stated that:

“paragraphs 16 to 25 fail to add anything to standard public service values or to the principles that the Commission has already identified and articulated for itself. One cannot help thinking that this entire section of the document is added merely as cover for the inappropriate operational interference contained in the earlier paragraphs”.71

48. The Minister’s evidence appeared to acknowledge that it should not be assumed that the Government’s priorities would be shared by the Commission. He stated that the Commission should continue to undertake all its statutory functions in accordance with the legislation,72 that “the law must always take precedence” and that the Government did not see anything in the statement that undermined the Electoral Commission’s role in relation to the law.73 His position was that any conflicts between the Statement and other matters would be “relatively easy to resolve as long as the Electoral Commission can justify, as it would in any decision at the moment, why it has decided to set aside one consideration in favour of something else”.74 He later said: “I do not believe that there is anything in the statement that will undermine the Electoral Commission [from] carrying out its core statutory duties, and the Electoral Commission will undoubtedly prioritise its core statutory duties above anything else”,75 adding that “[t]his is simply setting out the Government’s priorities”.76

Operational impact

49. We have heard from the Electoral Commission how the provisions of the Statement could cause it operational difficulties. Perhaps the most significant of these is that the current draft increases the risk of unnecessary and expensive litigation, and may conflict with existing policies.

Risk of litigation

50. We heard from many witnesses that the introduction of the Statement would open the Electoral Commission up to significant legal challenge.77 Dr Sam Power told us that the Statement attempted “to walk a line … between being so vague as to just state ‘You must continue being an Electoral Commission’, and being so specific in areas such that it does open up [legal challenge]”. He further explained that, “[i]n terms of the prioritisation element … if it is seen that the Electoral Commission is not acting within the priorities as set out in the draft statement, legal challenges might be made by those who are then sanctioned outside of those prioritisations”.78 Professor Justin Fisher thought that the inclusion of paragraphs 16 to 18 in particular “opens up an avenue for a great deal of legal challenge”. He added that “death by judicial review is not a strong recipe for public confidence in the electoral process”.79

51. The Electoral Commission shared these concerns about the risk of increased legal challenge. John Pullinger told us the statement will add complexity, confusion and legal risk,80 and Shaun McNally, CEO, said that anything that gave “an alternative set of language or point of reference” to the legislation could give rise to confusion and potential conflict, and raises the risk of and opportunity for legal challenges.81

52. The Minister was not overly concerned by the increased risk of legal challenge. He said:

“There is always concern from any public body about the risk of judicial review, and that is why all public bodies work hard to ensure that their policies and their decision making are robust. As I say, my limited knowledge of legal challenges against the Electoral Commission in recent years shows that it has been able to successfully defend against most legal challenges”.82

On 25 October, he wrote to us, reiterating his point that “the Commission is, like any public body, already subject to the potential for legal challenges by way of judicial review”.83 These responses did not address the difficulties that may be caused by increased litigation as a consequence of the Statement.

Conflict with existing policies

53. The Electoral Commission raised with us that the Statement, as drafted, is in conflict with the Commission’s existing statutory Enforcement Policy. The Statement includes several references to proportionate enforcement whereas the Commission is already required by law to publish guidance on the use of its enforcement powers, which it sets out in its Enforcement Policy. The Commission’s view on the Statement contends that:

“[i]ncluding such specific guidance as to how the Commission should ensure proportionate enforcement of the law, and what factors it should consider when investigating potential criminal offences, risks impacting the operation of the Commission’s duty to take decisions on enforcement action in line with its enforcement policy”.84

John Pullinger told us:

“The key conflict is that the enforcement policy is a balanced policy that has taken into consideration a full range of factors that will ensure public confidence but also support compliance by political parties. In contrast, the strategy and policy statement selects some of those so the approach is in conflict. One is a comprehensive approach designed to interpret what Parliament had in mind when it gave us these powers; it is a statutory policy that has been consulted on and approved, and we are accountable for it whereas this is a different set so, by definition, those ideas are in conflict”.85

54. Additionally, the Electoral Commission told us that the Statement was in conflict with its statutory Five-year Corporate Plan, which has been approved by the UK Parliament and the Scottish and Welsh Parliaments. John Pullinger said that the Corporate Plan “has been scrutinised and costed and considered by the Speaker’s Committee” whereas the Statement set out other priorities “that the commission should follow and they are different from that so by definition they are in conflict with it”.86

5 Conclusion

55. The Commission remains–as it always has been–accountable to the Speaker’s Committee of the UK Parliament. The Speaker’s Committee are also consultees on the Statement, and will give their own view. However, we have not been presented with any evidence that the Speaker’s Committee is currently finding it difficult to fulfil its responsibilities in the absence of a Statement.

56. The Minister claimed that there have been concerns raised about the performance of the Commission. However, he did not provide any evidence of this, apart from reference to the 2016 Securing the ballot report, and we are not aware that any of those concerns remain current, some six years later. He said that the Statement should not be read as containing any negative comment on the Commission’s performance, and that it would be inappropriate for the Government to make any such comment. He added that those looking at the Statement should not read anything in it as a criticism of the things that the Electoral Commission has done. However, we consider that any outsider reading the Statement would infer that the Government considered the Commission was not functioning as well as it should be. Allowing an impression to take hold that the Commission is not up to the task of performing its own role in the democratic process risks undermining public confidence in the process. There is no independent evidence indicating that concerns about the Commission’s performance justify extra measures to enable the Speaker’s Committee to undertake its role. We heard evidence that the Commission’s work was broadly well regarded. In addition, the impression was that there was currently a good working relationship between the Commission and the Government.

57. If a Statement is to be made, we consider that it is of paramount importance–given the Commission’s unique role as an independent body, charged with ensuring public confidence in the democratic process–that its independence from Government is made clear throughout the Statement, and that the clear separation of roles between the Commission, Government, and the UK Parliament and devolved Parliaments are set out accurately. At present, the Statement markedly fails to do this. It proceeds on the basis that Government priorities must automatically also be Commission priorities. There is no basis for this assumption. For the most part the Statement reads as though the Commission were an arm of Government.. The Commission is not a government body, and its independence is–as is agreed by all stakeholders–critical to its effective functioning. Any perception that the Commission is being influenced to favour the governing party in exercising its functions could seriously damage public confidence in the democratic process.

58. While it makes sense for the Commission to understand what the Government’s own priorities are, those priorities should not be assumed to be shared. The Minister appeared to acknowledge this in evidence to us: he stated that the Commission should continue to undertake all its statutory functions in accordance with the legislation, and should only consider the “core priorities” in the Statement as a secondary consideration; and that it was inappropriate for the Government to direct the Commission how to carry out its functions. With this we agree. But in the light of that, we do not understand why the Statement is drafted to set out what the Government considers the Commission’s “core priorities” should be, nor why it also covers what the Government considers the “principles” should be as to how the Commission should undertake its functions. Both should be matters for the Commission to determine independently in compliance with PPERA and any other applicable legislation, not in response to any preferences of any Government. As a matter of law, the purpose of the relevant provisions introduced by the Elections Act 2022 is to set out the Government’s priorities, not those of the Commission.

59. There are also some significant difficulties in the detail of the principles. For example, at paragraph 16, the Statement refers to a need for the Commission to act “neutrally” as well as impartially on political matters, suggesting that impartiality is insufficient, and that an additional test of political neutrality needs to be introduced (which may be particularly difficult regarding the role of those Commissioners nominated by political parties under section 3A of PPERA). At paragraph 20, the Statement sets out an expectation that the statutory Enforcement Policy should provide an effective deterrent for “deliberate” breaches of electoral law, which misunderstands the nature of both the contraventions concerned and the Commission’s civil sanction powers, neither of which depend on findings of intentional fault. It is unclear how the Commission would adopt such principles in practice, or resolve conflicts with its existing statutory and public law responsibilities. Unnecessary legal challenges may result. Such examples highlight the dangers of the Government commenting on such matters, whatever its own views may be.

60. Apart from these legal and constitutional difficulties with the Statement, its provisions could well cause the Commission operational difficulties too. We heard evidence that the current draft significantly increased the risk of unnecessary and expensive litigation, given that the suggestions in the Statement may conflict with existing legislation or policies derived from that legislation, such as the Commission’s statutory Enforcement Policy. It is not apparent to us that the Government has given this increased risk much consideration, and the Minister appeared to dismiss this concern as part and parcel of being a public body.

61. We also heard evidence that the Statement may conflict with the priorities agreed between the Commission and the three UK Parliaments in its statutory Five-year Corporate Plan (as agreed under Schedule 1 to PPERA), and it would then be difficult for the Commission to demonstrate its compliance with both the Plan and the Statement to the Speaker’s Committee. Furthermore, introducing priorities for the Commission, that it has to have regard to–without any consideration of the Commission’s priorities already agreed by the Speaker’s Committee for the Corporate Plan–will in all likelihood decrease accountability. This is because it makes the Speaker’s Committee’s scrutinising job more difficult by muddying the waters. It raises questions about which set of priorities the Commission should give greater weight to–those in the Statement or those in the Corporate Plan? Therefore, while the stated purpose of introducing the Statement is to increase accountability, and to help the Speaker’s Committee, the Statement appears to achieve the reverse. This would be overcome if the Statement set out the Government’s priorities rather than priorities for the Commission.

62. We are not persuaded that the Statement was likely to bring any tangible benefits to the exercise of the Commission’s functions that would outweigh the serious disadvantages outlined above.

63. We agree with Daniel Greenberg’s comments in his written evidence:

“This draft Statement is something of a disappointment. … Parliament engaged with the Government at the enactment of the primary legislation in good faith, and worked with the Government to support a legislative proposition that creates a proper synergy between a fully independent Commission and the desire of the Government to provide high-level influence by articulating its own hopes and aspirations for the role played by the Commission in the overarching constitutional arrangements of the United Kingdom. What has emerged in the draft statement is a thinly disguised attempt to give operational instructions to the Commission and, in effect, to render it a tool for the implementation of Government policy. Minor adjustments of the language of the draft statement will not be adequate to turn it into something that reflects the intentions and limitations of the primary legislation. It needs to be withdrawn and recast”.87

64. The overwhelming viewpoint from the evidence received was that no Statement is necessary at the current time: and no evidence has been provided justifying it. However, if there is to be a Statement, the current draft needs to be fundamentally rewritten.

6 Specific changes to the Statement as currently drafted

65. If there is to be a Statement, then the Committee believes it should be amended along the following lines:

Independence

66. The Statement should set out clearly at the start that the Commission is an independent body, whose functions are set out in legislation, and that the Commission does not undertake any functions on behalf of the Government. It should make clear that it is a matter for the Commission to carry out its functions as it considers fit, and that–to the extent that it has any discretion–it is a matter for the Commission to determine its own priorities, as agreed with the three UK Parliaments it is accountable to.

Interaction with Government

67. The Statement could then set out that a part of the Commission’s role requires it to work with the Government of the day, and that the Statement could assist the Commission in understanding the Government’s priorities, for example in devising and implementing new legislation. The Government’s current priorities could then be set out, and there could be reference to the Commission’s specific functions–set out in PPERA or elsewhere - to which those priorities relate. This should be expressed neutrally (not expressed in the language of obligation), so that there is no implication that the Commission is obliged to adopt those priorities as its own priorities.

What the Statement should avoid

68. However it may be rewritten, the Statement needs to avoid a number of points that are currently included in the draft.

  • It should not state what the Commission’s priorities should be.
  • It should not suggest how the Commission should carry out its functions, including any suggestions on how its guidance ought to be drafted or how it should carry out its regulatory functions. These are matters for the Commission and those to whom it is accountable. Such statements also give the impression that the Commission is not meeting such standards, which can damage public confidence in the democratic process. So, for example, it should avoid any reference to providing “clear” guidance–which the Commission will inevitably be aiming to provide anyway, but which implies that the current guidance may be unclear.
  • It should not suggest what factors the Commission should take into account in carrying out its enforcement work, which are matters for the Commission to determine independently, in accordance with its statutory Enforcement Policy.
  • It should not state principles that should be prioritised by the Electoral Commission in the exercise of its functions
  • It should not suggest that the Commission should concentrate its resources on any Government priorities–which implies that the Commission ought to devote fewer resources to other functions. How the Commission allocates its resources both between its functions and between the different parts of the UK are matters to be determined by the Commission in liaison with and subject to the oversight of the three UK Parliaments. Any reference to Government priorities should be solely for the purposes of informing the Commission, as matters for it to consider in carrying out its existing functions.
  • It should not make any reference to the Conservative Party 2019 manifesto, which ought to be irrelevant to the carrying out of the Commission’s functions.
  • It should not suggest that the Commission should be responsible for making any policy or legislative changes that are outside its remit, such as “addressing weaknesses in the current absent voting arrangements”. If the Government wishes to introduce legislation to make such changes, it would be expected that the Commission would have a role to play, given that its functions include reviewing electoral matters and being consulted on changes to the law. But it is not the function of the Commission to bring about such changes.
  • It should not suggest how the Commission should interact with other bodies and individuals, including election officials, police and prosecutors.
  • It should not specify what information the Commission should make public, including decisions made by other bodies, such as prosecutors.
  • It should not suggest how the Commission should demonstrate its value for money, which is a matter to be determined between the Commission and the three UK Parliaments.
  • It should not state anything that may be seen as conflicting with existing legislation, such as rephrasing existing functions, referring to powers as though they were duties, suggesting that only deliberate breaches of the law are sanctionable, and suggesting that certain functions are more important than others. This will limit the potential for unnecessary litigation.

Formal minutes

The following declarations of interest were made at meetings relating to Draft Strategy and Policy Statement for the Electoral Commission:

12 October 2022

Clive Betts declared that he is a Vice-President of the Local Government Association and a member of the Speaker’s Committee on electoral issues (also declared on 19 October).

Ian Byrne declared that he employs a councillor in his office (also declared on 19 October).

Kate Hollern declared that she employs a councillor in her office (also declared on 19 October).

Ben Everitt declared that he is a Vice-President of the Local Government Association and employs a councillor in his office.

Andrew Lewer declared that he is a Vice-President of the Local Government Association.

19 October 2022

Mohammad Yasin declared that he is a member of the Bedford Town Deal Board.

Monday 28 November 2022

Members present:

Mr Clive Betts, in the Chair

Bob Blackman

Ian Byrne

Kate Hollern

Andrew Lewer

Mary Robinson

Mohammad Yasin

Draft report (Draft Strategy and Policy Statement for the Electoral Commission) proposed by the Chair, brought up and read.

Ordered, That the report be read a second time, paragraph by paragraph.

Paragraphs 1 to 68 read and agreed to.

Summary agreed to.

Resolved, That the Report be the Fourth Report of the Committee to the House.

Ordered, That the Chair make the Report to the House.

Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No. 134.

[Adjourned until Monday 5 December at 3.30pm]


Witnesses

The following witnesses gave evidence. Transcripts can be viewed on the inquiry publications page of the Committee’s website.

Wednesday 12 October 2022

Dr Sam Power, Senior Lecturer in Corruption Analysis, School of Law, Politics and Sociology, University of Sussex; Peter Stanyon, Chief Executive, Association of Electoral Administrators; Professor Justin Fisher, Professor of Political Science and Director of Brunel Public Policy, Brunel University LondonQ1–41

Wednesday 19 October 2022

John Pullinger CB, Chair, Electoral Commission; Shaun McNally, Chief Executive, Electoral Commission; Craig Westwood, Director of Communications, Policy and Research, Electoral CommissionQ42–65

Rt Hon Andrew Stephenson MP, Parliamentary Under-Secretary of State (Minister for Housing and Communities), Department for Levelling Up, Housing and Communities; Becca Crosier, Deputy Director, Elections, Department for Levelling Up, Housing and CommunitiesQ66–113


List of Reports from the Committee during the current Parliament

All publications from the Committee are available on the publications page of the Committee’s website.

Session 2022–23

Number

Title

Reference

1st

The regulation of social housing

HC 18

2nd

Long-term funding of adult social care

HC 19

3rd

Exempt Accommodation

HC 21

Session 2021–22

Number

Title

Reference

1st

The future of the planning system in England

HC 38

2nd

Local authority financial sustainability and the section 114 regime

HC 33

3rd

Permitted Development Rights

HC 32

4th

Progress on devolution in England

HC 36

5th

Local government and the path to net zero

HC 34

6th

Supporting our high streets after COVID-19

HC 37

7th

Building Safety: Remediation and Funding

HC 1063

8th

Appointment of the Chair of the Regulator of Social Housing

HC 1207

Session 2019–21

Number

Title

Reference

1st

Protecting rough sleepers and renters: Interim Report

HC 309

2nd

Cladding: progress of remediation

HC 172

3rd

Building more social housing

HC 173

4th

Appointment of the Chair of Homes England

HC 821

5th

Pre-legislative scrutiny of the Building Safety Bill

HC 466

6th

Protecting the homeless and the private rented sector: MHCLG’s response to Covid-19

HC 1329

7th

Cladding Remediation—Follow-up

HC 1249


Footnotes

1 Political Parties, Elections and Referendums Act 2000, section 4A(2)

2 Political Parties, Elections and Referendums Act 2000, section 4A(3)

3 Explanatory Notes to the Elections Act 2022, para 61. Further explanation of the provisions of section 16 is set out in paragraphs 489 to 511.

4 Political Parties, Elections and Referendums Act 2000, section 4C(2)

5 Letter from the Minister of State for London, Local Government and Communities, DLUHC, dated 22 August 2022

6 Cabinet Office, Electoral Commission Strategy and Policy Statement (Illustrative Example), DEP2021–0736, September 2021

7 Public Administration and Constitutional Affairs Committee, Fifth Report of Session 2021–22, The Elections Bill, HC 597. Paragraphs 136 to 150 of that report provides further background on the development of the policy.

8 Paras 139–145, Public Administration and Constitutional Affairs Committee, Fifth Report of Session 2021–22, The Elections Bill, HC 597

9 Paras 148–150, Public Administration and Constitutional Affairs Committee, Fifth Report of Session 2021–22, The Elections Bill, HC 597

10 Public Administration and Constitutional Affairs Committee, Fourth Special Report of Session 2021–22, The Elections Bill: Government Response to the Committee’s Fifth Report, HC 1133

11 Letter from the Minister of State for London, Local Government and Communities, DLUHC, dated 22 August 2022

12 Annex A, Letter from the Minister of State for London, Local Government and Communities, DLUHC, dated 22 August 2022

13 Letter from the Minister of State for London, Local Government and Communities, DLUHC, dated 22 August 2022

14 Q67

15 Q75

16 Q88

17 Q109

18 See recommendations 43, 44 and 49. Cabinet Office, Securing the ballot: Report of Sir Eric Pickles’ review into electoral fraud, August 2016

19 Letter from the Minister of State for London, Local Government and Communities, DLUHC, dated 22 August 2022

20 Letter from the Minister of State for London, Local Government and Communities, DLUHC, dated 22 August 2022

21 Q69

22 Q70

23 Q108

24 Currently the Levelling Up, Housing and Communities Committee, but previously the Public Administration and Constitutional Affairs Committee.

25 Public Administration and Constitutional Affairs Committee, Second Report of Session 2022–23, The Work of the Electoral Commission, HC 462

26 Professor Alistair Clark

27 Q14

28 Q45

29 Q67

30 Q101

31 Q102

32 Q102

33 Q106

34 Q12

35 Q13

36 Summary, Public Administration and Constitutional Affairs Committee, Second Report of Session 2022–23, The Work of the Electoral Commission, HC 462

37 “Challenges lie ahead for elections regulator in navigating complex law”, Public Administration and Constitutional Affairs Committee press release, 20 October 2022

38 Q46

39 Letter from the Parliamentary Under Secretary for Housing and Communities, DLUHC, dated 25 October

40 Q46

41 Q47

42 Q56

43 Q54

44 Q98

45 Q99

46 Q101

47 Q13

48 Q45

49 Q63

50 Q90

51 HL Deb, 10 March 2022, col 1570 [Lords Chamber]

52 Letter from the Minister of State for London, Local Government and Communities, DLUHC, dated 22 August 2022

53 Unlock Democracy

54 Daniel Greenberg CB

55 See Professor Alistair Clark, Professor Toby James, Scottish Government

56 See Qs 2, 3 and 18

57 Q45

58 Q67

59 Q68

60 Qs 67, 75, 79, 84 and 87

61 Ofcom

62 Paras 143, Public Administration and Constitutional Affairs Committee, Fifth Report of Session 2021–22, The Elections Bill, HC 597

63 Department for Environment, Food and Rural Affairs, The government’s strategic priorities for Ofwat, March 2022

64 Professor Alistair Clark

65 Q58

66 Daniel Greenberg CB

67 Q48

68 Q20

69 Q48

70 Q58

71 Daniel Greenberg CB

72 Q79

73 Q73

74 Q73

75 Q87

76 Q98

77 See Unlock Democracy, and Professor Justin Fisher

78 Q3

79 Q26

80 Q45

81 Q49

82 Q68

83 Letter from the Parliamentary Under Secretary for Housing and Communities, DLUHC, dated 25 October

84 Electoral Commission, Response to the UK Government consultation on a draft Strategy and Policy Statement for the Electoral Commission, October 2022

85 Q54

86 Q62

87 Daniel Greenberg CB