The UK’s guardian of public ethics is reviewing the role of the Electoral Commission in regulating election finance. The evidence submitted to the inquiry shows wide support for maintaining, and in some ways enhancing, the Commission’s functions. But the regulator’s position is also challenged from some quarters, and the House of Commons Public Administration and Constitutional Affairs Committee is currently conducting its own enquiry. Alan Renwick and Charlotte Kincaid argue that the debate raises important wider questions about the place of checks and balances in our system of democratic governance.
The Committee on Standards in Public Life – the body charged with monitoring ethical standards in public life in the UK – is conducting a review of electoral regulation. The terms of reference focus largely on the role of the Electoral Commission in regulating election finance. The first stage was a public call for evidence, and the responses were published last month.
Grabbing some media headlines was a suggestion in the response from the Conservative Party that the Electoral Commission might be abolished, with its core functions transferred to other bodies. This was not the only option put forward in the submission. Indeed, the central proposal appeared rather to be that the Commission should continue to operate, but with a more restrictively defined remit. Nevertheless, the general tenor was striking. The submission said: ‘The Electoral Commission consistently lobbies for itself to be given more powers – this is not an argument for doing so. Rather, this is public choice theory in action: quangos seeking to expand their remit for their own sake.’
Following the same logic, however, that is a political party seeking to abolish or curtail the remit of the regulator of political parties. If the argument from public choice theory has any force against the Electoral Commission, it has the same force against the Conservative Party. Both the Commission and the Conservatives have interests at stake here. But both also have a wealth of relevant experience. Their arguments should be judged on their merits, with an eye to the possibility that they may be skewed by the organisations’ particular interests.
The Electoral Commission’s powers
It is important, therefore, to see also the views of those who are independent both of the Commission and of any political party or campaign group. Here, we find strikingly widespread support for the Electoral Commission’s role. The Association of Electoral Administrators says the Commission ‘is an excellent provider of guidance, supporting resources and good practice, providing a consistency of approach across the UK. The guidance it produces for ROs [returning officers], EROs [electoral registration officers] and administrators is invaluable, and its work goes a long way to ensuring the smooth conduct and transparency of various elections, referendums, and electoral registration.’ The Electoral Reform Society says, ‘The Electoral Commission has a strong track record as an independent regulator and there are high levels of satisfaction among those who work with the regulator and among the public.’ This is confirmed by Professor Justin Fisher, a leading expert on elections and political parties, who notes, ‘Surveys of electoral agents repeatedly demonstrate good levels of satisfaction with the Commission as a source of advice and guidance in respect of electoral administration and finance.’ The UK Anti-Corruption Coalition, meanwhile, emphasises ‘the importance of the Electoral Commission as an independent, non-partisan body with responsibility for oversight of elections and regulation of election finance’.
In terms of specific proposals, many submissions argue for increasing the Commission’s powers in certain areas. For example, the Association of Electoral Administrators says that the Commission’s ‘regulatory powers should be expanded to include the enforcement of candidate finance laws rather than having to rely on the police taking enforcement forward’, a view shared by others including the Electoral Reform Society, Justin Fisher, and elections expert Dr Alistair Clark. Another widespread view – expressed, for example, by Transparency International and Spotlight on Corruption – is that the maximum fines that the Commission can impose should be increased beyond the current £20,000. Alistair Clark describes the Commission’s current civil sanctioning powers as ‘entirely inadequate’. Multiple respondents also argue that the Commission needs enhanced funding. The independent fact-checker Full Fact, for example, says ‘Our democracy can only truly be protected if those charged with protecting it can see developments in online election campaigning in real-time. The Electoral Commission needs better funding and a strong tech team to develop the tools necessary to monitor spending in real-time.’
This is not to say that praise for the Electoral Commission is universal. Particularly noteworthy criticisms come from Timothy Straker, a leading electoral law barrister who has acted in cases both for and against the Electoral Commission (notably in recent years for Vote Leave and Darren Grimes in their disputes with the Commission). He criticises a range of the Commission’s actions and argues that elections should be run locally, not by a national body.
Another common concern is that the Commission may not always take sufficient account of the difference between large national parties with substantial resources and smaller organisations that are wholly or largely reliant on volunteer labour. Plaid Cymru notes that ‘smaller parties are at a significant disadvantage as compliance can often be time consuming and costly, making it difficult for those who are mostly volunteers to take up the role effectively. Larger parties, such as those who contest elections across the UK, are able to fund roles that are solely focussed on compliance.’ Compass similarly criticises a ‘lack of proportionality in the enforcement regime’.
Justin Fisher agrees that proportionality matters. He says, ‘Fundamentally, political activity and campaigning is a good thing. It engages citizens in democratic life. It is also frequently undertaken by volunteers. That activity should therefore be encouraged, rather than being restricted to an excessive degree.’ But he suggests that the Commission already holds to this principle: ‘One of the successes of the Commission since the mid-2000s has been its practice of working with those it regulates in order to promote compliance and understanding of the legal framework, rather than acting as a body which seeks to hinder parties.’ Furthermore, several respondents, including the Electoral Reform Society, suggest that the onerousness of current arrangements stems in part from their fragmentation, with the Commission enforcing only national party campaign spending rules, while the police deal with those on local candidate spending. Unifying these functions in the Commission’s hands would be simpler and also improve regulation of the grey area between the two.
Governance arrangements: independence and accountability
The Conservative Party submission also criticises the governance arrangements for the Electoral Commission. It says, ‘The Electoral Commission is unaccountable. Ministers have no direct role. The Speaker’s Committee in Parliament is ineffectual and has minimal influence. There is little outside challenge or scrutiny.’
But other submissions point out the vital importance of maintaining the Commission’s independence. The UK Anti-Corruption Coalition, for example, says ‘The politicisation of regulators should be avoided at all cost, as doing so creates the opportunity for abuses of power that undermine democracy and weaken trust in the political process.’ Alistair Clark makes a similar point.
The idea of introducing a ‘direct role’ for ministers would undermine the whole point of an independent regulator. The Conservative Party submission suggests that an approach might be adopted mirroring that used for Ofgem and Ofwat. But Ofgem and Ofwat regulate, respectively, the gas and electricity markets and the water sector, whereas the Electoral Commission regulates elections and political parties. The conflict of interest created by direct ministerial involvement in the latter would be vastly greater.
There are two possible ways of overseeing the work of the Commission without creating a substantial risk of bias towards one party: cross-party oversight; and non-party oversight. Current arrangements mix these two approaches. The work of the officials at the Electoral Commission is overseen by nine or ten Electoral Commissioners; four of these are nominated by four political parties with seats in the House of Commons, while the remainder may have no party links. The appointment of the Commissioners and the Commission’s overall strategy are, in turn, overseen by the Speaker’s Committee on the Electoral Commission, which is a cross-party committee of MPs. Senior staff at the Electoral Commission are also frequently quizzed on their work by cross-party select committees.
As one of us – Alan Renwick – points out in his own submission, however, this arrangement has been worryingly undermined in the past year: the Speaker’s Committee established after the 2019 general election includes a majority of MPs from one party – the governing party – for the first time ever. Even when it was established in 2001 – when Labour had a Commons majority of 179 seats – the Speaker’s Committee comprised four members from the government benches, four from the opposition, and the Speaker. In the 2005 parliament, when the government majority was comparable to today’s, it had three members from the government side and five from the opposition. The consequences of the Speaker’s Committee having a government majority have already been seen: it has been reported that Sir John Holmes, the current Chair of the Electoral Commission, has been told that he need not re-apply after his initial term of office expires at the end of the year.
This threat to the Electoral Commission comes amidst many signs that the current government does not value the role played by independent checks and balances in our system of democratic governance. Yet checks and balances are essential both for inclusive democratic debate and for effective government. In the electoral arena, they are indispensable to maintain a level playing field among the parties and ensure no party gains an unfair financial or other advantage. The role of the Electoral Commission is vital in ensuring that we continue to have elections which not only are free, but also are fair.
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About the authors
Dr Alan Renwick is Deputy Director of the Constitution Unit and the co-author of Doing Democracy Better: How Can Information and Discourse in Election and Referendum Campaigns in the UK Be Improved?
Charlotte Kincaid is the Constitution Unit’s Impact Research Fellow.