The Work of the Electoral Commission – Report Summary

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

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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.

First and foremost, we are concerned with the challenges that lie ahead for the Electoral Commission in supporting electoral administrators, political parties, campaigners, and voters to understand and navigate the increasing complexity of electoral law and levels of divergence in electoral policy across the United Kingdom. We believe the Government missed an opportunity with the Elections Act 2022 to build an elections framework fit for the modern era and that the Government should now prioritise setting out a long-term strategy to rationalise electoral law, working with the other three governments of the United Kingdom to develop a more coordinated approach to elections. While it is welcome that the Government is taking a staged approach to implementation of the Elections Act 2022, and that it has shared draft legislation for the voter ID provisions with the Electoral Commission to support them in preparing the relevant guidance, we note that there is limited time available for the statutory instruments for voter ID to come into force and for the Electoral Commission to finalise its guidance ahead of elections in May 2023. The Government must allow sufficient time for our Committee to input into to these scrutiny procedures and, as a matter of priority, clarify its long-term timetable for the implementation of the rest of the secondary legislation envisaged under the Act. This will enable the Electoral Commission to adequately prepare its support and guidance to the electoral community ahead of any polls.

It is a positive sign that the Electoral Commission’s guidance is broadly well-received by those it regulates. We welcome the organisation’s ambition to improve its guidance provision further and support its proposed actions to review response times to request for advice, improve support for smaller and newer parties, campaigners, and volunteers, and deliver more training. We would encourage that the Electoral Commission reports back to the Committee on the viability of shortening its response time to within 48 hours in the two months prior to and after an election or referendum, and increasing its response rate outside those periods to 100% within five working days. Furthermore, as a priority, the Electoral Commission must ensure it has sufficient internal expertise to clarify ambiguities in the law or guidance in a timely manner, particularly during regulated periods. Irrespective of the complexity of the law, the Electoral Commission must have the institutional knowledge and capacity to advise in both election and referendum contexts, noting their distinct and unique characteristics. The Electoral Commission should also implement a new staff training programme to ensure its guidance and regulatory approach are tailored to each specific poll, with regular feedback from parties, including the four party panels, and campaigners, of all sizes.

The Electoral Commission has a strong record in performing its regulatory duties to ensure that political financing is transparent and compliant. Nevertheless, we recognise current weaknesses in the system. The legal up-to-six-month delay in receiving spending returns means that any investigations and enforcement action by the Electoral Commission or police can occur long after the relevant electoral event. There can then also be a significant time lag in returns being published by the Electoral Commission. Therefore, we support the evidence that the reporting timelines for parties and campaigners spending over £250,000 should be reduced to four months and that the Electoral Commission should publish returns within two months of receipt. However, these should be kept under review with regular feedback from parties and campaigners. Furthermore, we recognise the potential gaps in transparency and weaknesses in the permissibility checks on donations to prevent foreign influence in UK politics, particularly through unincorporated associations. Therefore, we call on the Government to provide an update on the guidance indicated in its response to the Committee on Standards in Public Life’s Regulating Election Finance report related to supporting campaigners to take a “risk-based” approach to donations.

The Committee acknowledges the rationale of the evidence it received advocating expanding the Electoral Commission’s investigatory and enforcement powers to provide maximum transparency to voters, incentivise regulatory compliance, and increase the pace of investigations and enforcement action. However, we also heard concerns regarding the Electoral Commission’s investigations and approach to enforcement. While we did not receive evidence that indicated systemic issues within the organisation, we believe that more evidence is needed to ensure that any expanded powers for the Electoral Commission, such as powers to monitor and investigate in real-time and impose civil sanctions for breaches of candidate finance law, would not place disproportionate burdens on the largely voluntary workforce that often support political campaigns. By the same token, we recommend that assessing the impact of lowering the tier of registration with the Electoral Commission for third party campaigners through the Elections Act 2022 is factored into the Government’s statutory review of the Act in due course.

It is important that enforcement is fair and proportionate. We welcome the reforms the Electoral Commission has set out to its regulatory approach, such as mandatory case reviews if a case approaches six months in duration, new evidence trackers to aid disclosure of used evidence when proposing sanctions, and moving away from the practice of expanding existing cases when new potential offences arise. We also believe that regulated individuals, parties, and campaigners should have the opportunity to amend minor, administrative reporting errors before civil sanctions are imposed, and look forward to reviewing the new Political Finance Online platform to support individuals to submit their financial returns accurately when it goes live. We disagree with the view of the Electoral Commission that a fixed time limit on investigations could leave the subjects of investigations without a resolution and advocate a 12-month time limit, with the possibility of court extension. We also believe that there should be consistency in the promulgation of and a clear explanation for sanctioning decisions, and that these should be factored into the updated Enforcement Policy expected in the coming months.

A significant development since the creation of the Electoral Commission is the advance of digital campaigning. While we view this as a positive step for democracy, we must recognise that it has created a more complex regulatory environment over time. The legislation governing the Electoral Commission, passed in 2000, does not directly address the challenges presented by the growth of social media, targeted advertising using big data, and viral marketing campaigns. The introduction of digital imprints through the Elections Act 2022 on paid-for and certain unpaid digital material is welcome. However, this must be kept under review to ensure the regime provides adequate transparency. We reiterate our call for regular reviews of the scheme and suggest that consideration is given to whether the scope of material that requires an imprint should be widened and whether the rules are being effectively enforced. Furthermore, we recommend that the Government puts forward proposals, and if necessary legislates through the Online Safety Bill currently passing through Parliament, to enable digital regulators with interlocking responsibilities in the digital sphere, such as the Information Commissioner’s Office, Ofcom, the Electoral Commission and Advertising Standards Authority, to formally share appropriate levels of information to support their regulatory duties and create a coherent regulatory system. The fact that a significant amount of transparency for digital campaigning comes from voluntary initiatives by social media platforms to create political “advert libraries” is concerning, and we believe the Government should give Ofcom, as the prospective online safety regulator, a power to set minimum standards for political advert libraries. Likewise, we agree with the Electoral Commission that each of the four governments of the United Kingdom should amend the rules for reporting spending to provide greater transparency on the money being spent on digital campaigns, with a separate category for digital campaigns in spending returns. We recommend that this should be implemented ahead of the next General Election.

Finally, operational independence and parliamentary oversight are fundamental aspects of the Electoral Commission’s governance and accountability. The Committee believes that periodic parliamentary scrutiny of the work of the Electoral Commission, in the form of inquiries such as this, dovetails effectively with the ongoing oversight by the Speaker’s Committee on the Electoral Commission. The evidence we received also indicates it is crucial that the impartiality and independence of the Electoral Commission are maintained. Commissioners, including those who are politically nominated, play a useful role in the governance of the Commission, but they must act in accordance with the Board Code of Conduct and refrain from expressing any personal opinions that may suggest political bias. Furthermore, the Committee remains concerned by the Government’s ability to set the strategic direction of the Electoral Commission through the issuance of a Strategy and Policy Statement, as set out in the Elections Act 2022. This significantly alters the Electoral Commission’s relationship with Government as an independent body. We welcome the three-month statutory consultation period for the draft Statement and will continue to take an active interest in this area of constitutional significance, supporting the statutory consultees where appropriate. A commitment should be made that the three-month timeframe applies to future Strategy and Policy Statements. The Committee also welcomes that the Statement will be subject to the super-affirmative parliamentary procedure, in line with our previous recommendation. The Government must now ensure a motion is tabled for the draft Statement to be debated on the floor of both Houses, before it is brought forward for final approval.