Reforming elections: assessing the government’s proposals

In September, the Constitution Unit hosted a distinguished panel of experts to discuss the government’s plans for reforming election law, as set out in the Elections Bill and draft Online Safety Bill. Tom Fieldhouse summarises the discussion.

The Elections Bill, and the draft Online Safety Bill are two important parts of the government’s reform agenda which, in their current form, stand to significantly alter the UK’s constitutional landscape.

With the Elections Bill making its way through parliament, and the draft Online Safety Bill undergoing pre-legislative scrutiny, the Constitution Unit hosted a webinar on 23 September entitled Reforming elections: assessing the government’s proposals. The event was chaired by the Unit’s Deputy Director, Professor Alan Renwick, and heard from four expert speakers: Louise Edwards, Deputy Director of Regulation at the Electoral Commission; Laura Lock, Deputy Chief Executive of the Association of Electoral Administrators; Justin Fisher, Professor of Political Science and Director of the Policy Unit at Brunel University; and, Baroness (Nicky) Morgan of Cotes, former Secretary of State for Digital, Culture, Media and Sport (2019–20) – now a Conservative peer and Vice Chair of the APPG on Digital Regulation and Responsibility.

The summaries below are presented in the order of the speakers’ contributions. The full event, including the Q&A, is available on our YouTube page.

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Reliance on secondary legislation has resulted in significant problems: it is time to rethink how such laws are created

The legislative challenges posed by Brexit and the unusual circumstances of the pandemic have led to a significant increase in the use of secondary legislation. The former Head of the Government Legal Department, Jonathan Jones, argues that mass use of statutory instruments is problematic, and that there should be a fundamental rethink of how and when they are used, debated and approved. He calls for a new Statutory Instruments Act to enable this ‘reset’.

Brexit and the pandemic have led to an increase in secondary legislation

Both Brexit and the COVID-19 pandemic have seen the government making increased use of secondary (or subordinate) legislation. This is where ministers make law in the form of (usually) regulations contained in a statutory instrument (SI), under powers conferred by parliament in an earlier Act. It’s ‘secondary legislation’ by distinction with ‘primary legislation’ – Acts of Parliament.

It is easy to see why governments like secondary legislation. The process of making regulations is normally much quicker and easier for ministers than trying to pass a new Act each time.

Well over 600 SIs were made to give effect to Brexit – mainly to make sure that pre-existing EU law ‘worked’ in the UK once we had left the EU. Some of the changes were technical and minor, though others were much more substantial. In addition, ministers have made over 500 SIs to legislate in response to the pandemic – including imposing lockdowns, travel restrictions and the closure of businesses.

There is nothing inherently unconstitutional about this. Secondary legislation is an established part of our system of law-making. It is open to our sovereign parliament to confer whatever powers it wants on ministers, subject to whatever conditions, limitations and procedures it wishes to impose. And ministers are entitled to exercise those powers, subject to review by the courts.

Using regulations to prescribe technical or procedural detail, pursuant to policies and structures set out in Acts of Parliament, is normally unexceptionable and indeed sensible: it avoids parliament being clogged up with unnecessary mundane business. On the other hand, some of the powers conferred on ministers are very wide and go well beyond merely technical or procedural matters. COVID-19 regulations have been used to impose the most intrusive restrictions on all aspects of national life.

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The Elections Bill: some good ideas, but more thought needed

The Elections Bill has been subject to both criticism and praise, as discussed by our Deputy Director Alan Renwick on this blog, and numerous contributors to a parliamentary inquiry. Justin Fisher, a panellist at the Unit’s recent seminar on the bill, argues that it has several good proposals, but that more thought about certain aspects is required.

Of all the provisions in the Elections Bill, most attention has been paid to plans to introduce voter identification and greater political control of the Electoral Commission. Those provisions are obviously important, but the bill also includes significant proposals relating to notional expenditure and ‘third parties’ – organisations that campaign in elections but do not themselves field candidates. Some of these proposals, while ostensibly positive and well intentioned, have the potential to significantly affect the conduct of elections if they emerge from the scrutiny process unchanged. Others represent a disproportionate response, which are likely to lead to difficulties.

Notional Expenditure

Notional expenditure refers to campaign spending in and around constituencies which does not promote any particular candidate. Such spending is typically ascribed to the party at national level rather than the candidate at constituency-level. It is a by-product of the fact that there are different expenditure limits for candidates and for parties, and that under our electoral system, all parties target their campaign activity as far as possible on seats that they are seeking to gain or hold. Critics argue that candidate spending limits are rendered meaningless by parties’ targeting efforts, and matters came to a head at the 2015 election when in one seat, the candidate, his agent and a Conservative Party official were charged following allegations that campaign spending had not been properly declared. The candidate and agent were acquitted, but the party official was found guilty. The bill adopts a conservative approach to the issue but a sensible and most importantly, a workable one.

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The Elections Bill’s proposals on Electoral Commission governance: risks to electoral integrity and devolution

The Elections Bill has been subject to both criticism and praise, as discussed by Emilia Cieslak on this blog, and a panel of experts at a recent Unit seminar. In this post, Unit Deputy Director Alan Renwick identifies the threats to electoral integrity and devolution posed by the clauses of the bill that propose changes to the governance of the Electoral Commission.

The Elections Bill, currently before parliament, seeks to change many aspects of electoral law. Provisions to introduce voter ID requirements at polling stations have garnered most attention. But changes to the governance of the Electoral Commission also raise serious concerns. As currently formulated, they threaten both to weaken the vital independence of the elections watchdog and to violate the principles of the devolution settlement in Scotland and Wales.

Electoral Commission governance: principles and current practice

The Electoral Commission carries out a range of functions in overseeing elections and referendums and regulating campaign spending. As I have argued previously – in common with many others, not least the Committee on Standards in Public Life (CSPL) in a report published in July – the independence of the elections watchdog is vital to electoral integrity. If the government of the day can skew election or referendum conduct to suit its own ends, fairness – and thus democracy – is undermined. The Electoral Commission should, of course, be accountable too. An appropriate balance of independence and accountability is needed.

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The Elections Bill: examining the evidence

The Elections Bill is currently being scrutinised by the Commons Public Administration and Constitutional Affairs Committee, which has received a large amount of evidence from a wide range of academics and organisations. Ahead of the Unit’s September webinar on the bill, Emilia Cieslak offered a summary of the key themes, including the parts of the bill that are welcomed, and the sections that have caused concern.

The Elections Bill currently before parliament aims to tackle a wide range of issues, including fighting electoral fraud, increasing parliamentary supervision of the Electoral Commission, and extending the franchise to more overseas electors and EU citizens. The bill recently received its second reading in the Commons. It is currently going through committee stage and is also being reviewed by the Commons Public Administration and Constitutional Affairs Committee (PACAC). While some provisions have proved popular, many have attracted criticism.

This post reviews the written evidence submissions to PACAC’s inquiry, focusing largely on the most controversial provisions: the introduction of photographic voter ID, changes to parliamentary scrutiny of the Electoral Commission, and reform of campaign spending rules. Before addressing those controversial aspects, however, I highlight sections of the bill that are generally welcomed.

Popular provisions

The bill proposes to abolish the current 15-year limit after which overseas electors become ineligible to vote. This has so far met very little opposition, and has strong support from groups representing British citizens living abroad. Several submissions (for example, from the Electoral Commission and Association of Electoral Administrators) do, however, draw attention to practical difficulties. And one submission, from Professor Justin Fisher, argues that the principled case for the change is not straightforward.

Meanwhile, no submissions oppose extending voting and candidacy rights to EU citizens through bilateral arrangements with individual member states. Most welcome changes to provision for voters with disabilities, though some identify what they see as flaws in certain elements of those measures.

The introduction of digital imprints is hailed as an overdue, necessary step to tackling the problem of misleading campaign material online. Most respondents writing on the topic argue that the provision is a good start, but that more is needed. Dr Sam Power comments that the provision should be accompanied by a renewed focus on citizen engagement and digital literacy campaigns. The Electoral Reform Society argues for a requirement that campaigners provide invoices on their digital spending, an open database for all political advertisements, and a code of practice on use of sensitive data. Multiple respondents warned about the rapid development of technology which means the legislation will require post-legislative scrutiny and frequent updates to avoid new loopholes developing.

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