Draft Strategy and Policy Statement for the Electoral Commission – Report Summary

Summary

The Secretary of State’s power to designate a Draft Strategy and Policy Statement for the Electoral Commission is discretionary: under new section 4A of the Political Parties, Elections and Referendums Act 2000 he “may designate a statement”; there is no requirement to designate one.

The evidence we received argued that no Statement is necessary at this time. The Government has claimed that there is insufficient scrutiny of the Commission, but was unable to provide any evidence of this. The Commission remains–as it always has been–accountable to the Speaker’s Committee on the Electoral Commission. There is no evidence that the Speaker’s Committee is currently finding it difficult to fulfil that responsibility in the absence of a Statement. The Government has also claimed that there have been concerns raised about the performance of the Commission. The only supporting evidence for this was a reference to the 2016 Supporting the ballot report by Lord Pickles, and we are not aware that any of those concerns remain current. The Minister said that it would be inappropriate for the Government to comment on the Commission’s performance. 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 in general highly regarded by all relevant stakeholders.

If a Statement is to be made, we consider that it is of paramount importance–given its unique role as an independent body, charged with ensuring public confidence in the democratic process–that the Commission’s 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 accurately set out. At present, the draft Statement markedly fails to do this. It proceeds on the basis that Government priorities must automatically also be Commission priorities, and for the most part reads as though the Commission was an arm of Government. The Commission is not a Government body, and its priorities are its own. Its independence is–as is common ground–critical to its effective functioning. Any perception that the Commission is being influenced to favour the particular government of the day in exercising its functions could seriously damage public confidence in the democratic process.

While it makes sense for the Commission to understand what the Government’s priorities are, the Government should not assume that those priorities are shared. The Minister appeared to acknowledge this in evidence: 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. 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 are matters for the Commission to determine independently in compliance with the Political Parties, Elections and Referendums Act 2000 and any other applicable legislation; not in consideration of 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 (albeit that it may also comment on which of the Commission’s functions might enable it to meet those priorities).

Apart from these legal and constitutional difficulties with the Statement, its provisions could well cause the Commission operational difficulties. We heard evidence that the current draft significantly increased the risk of unnecessary and expensive litigation, given that the suggestions in the Statement could conflict with existing legislation or policies derived from that legislation, such as the Commission’s statutory Enforcement Policy. 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 the 2000 Act), 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.

We were 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.

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.