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.

Since the Electoral Commission’s creation in 2000, its independence and accountability have been provided through three key elements. First, the Commission’s remit is set out in primary legislation – the Political Parties, Elections, and Referendums Act (PPERA) 2000. This cannot be changed on a whim by government. Second, the Commission is subject to parliamentary rather than governmental scrutiny. At Westminster this is done primarily by the Speaker’s Committee on the Electoral Commission – which crucially, until the present parliament, was constituted so that no party had an overall majority – and by the House of Commons Public Administration and Constitutional Affairs Committee (PACAC). There is also scrutiny by the Scottish Parliament and Welsh Senedd in respect of the Commission’s devolved functions. Third, the Commission’s permanent staff are overseen by the Commissioners, who collectively combine the principles of non-partisanship and cross-partisanship: a majority of them, including their Chair, must belong to no political party, while four come from four parties with seats in the Commons. Cross-partisanship protects against any one party skewing matters in its favour. Non-partisanship protects against parties – the subjects of Commission regulation – advancing their own interests to the detriment of wider society.

The proposed changes

The Elections Bill proposes to change these arrangements by introducing a new ‘strategy and policy statement’, written by ministers. Among other matters, this will set out ‘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 ‘the role and responsibilities of the Commission in enabling Her Majesty’s government to meet those priorities’. The statement will come into effect only after positive votes in both the Commons and the Lords. In addition, the Speaker’s Committee will gain new functions in scrutinising the Commission’s adherence to the statement.

This change risks seriously undermining the Commission’s independence. Responding to the policy priorities of whoever happens to form the government of the day is precisely what the Electoral Commission should not be doing. Rather, it should be fulfilling a remit that is set down in law, without government interference. It is true that the strategy and policy statement will come into effect only after both parliamentary chambers back it. But scrutiny of the content of the statement will in that case be limited, and there will be no opportunity for amendment.

In the written statement that first announced the proposal, then Minister for the Constitution and Devolution, Chloe Smith, said ‘It is commonplace for the Government and Parliament to set a policy framework by which independent regulators should work.’ But this is not commonplace in relation to regulators of political activity, where potential conflicts of interest exist and the need to protect independence is especially great. I am aware of no case comparable to what is proposed here.

Indeed, the legislation underpinning the Charity Commission specifically states that ‘In the exercise of its functions the Commission is not subject to the direction or control of any Minister of the Crown or of another government department’ (Charities Act 2011, section 13(4)). Ministers might explain why the Charity Commission needs that degree of independence, but the Electoral Commission does not.

The problem is exacerbated by the fact that the Speaker’s Committee in the present parliament, for the first time ever, has a single-party majority. How that has come about is not clear – responsibility for appointing backbench members lies with the Speaker. But it violates the previously taken-for-granted principle of cross-partisanship. Giving the Committee as presently constituted extra oversight powers would be intolerable to electoral integrity.

What is more, these proposals have also emerged through an inappropriate process. Because the Electoral Commission regulates political activity, parliamentarians and ministers face a conflict of interest in setting the rules for how that regulation is done. That implies a key principle: members of the executive and legislature should not embark on significant changes to the mechanisms by which the Electoral Commission (or a similar body) is held to account without a review by actors who are not subject to the same conflict of interest.

That principle has been followed in the past. The Electoral Commission was established through PPERA on the basis of recommendations made by CSPL in its fifth report, The Funding of Political Parties in the United Kingdom. Subsequent reforms were made through the Political Parties and Elections Act 2009 on the basis of CSPL’s 2007 Review of the Electoral Commission. But that principle is not being followed in the present case. No inquiry preceded the announcement of the proposed changes in Smith’s  written statement. CSPL had conducted an inquiry into Regulating Election Finance, which included consideration of the role and governance of the Electoral Commission. But that inquiry reported two days after the bill was published. The proposals bear no relation to CSPL’s recommendations. Indeed, they contradict some recommendations in CSPL’s 2007 report. This is an inappropriate approach to law-making on a topic where such care – and recognition of potential conflicts of interest – is needed.

Beyond the issue of the Electoral Commission’s independence, the proposals also raise concerns about devolution. The strategy and policy statement may, on the current plan, cover devolved matters. UK government ministers will be required only to ‘consult’ Scottish or Welsh ministers, and they will be able merely to ‘notify’ them of amendments to an existing statement. Such provisions will adhere to the Sewel convention only if the Scottish Parliament and Senedd pass legislative consent motions indicating their agreement to them. Yet the responsible Welsh and Scottish ministers have already recommended against consenting to the proposals in their current form. Change will be required, therefore, unless the UK government and parliament wish to violate the agreed constitutional settlement.

What should happen?

The ‘strategy and policy statement’ should be dropped: it violates the independence of the Electoral Commission from political direction. If ministers think the Commission’s remit needs to change, they should initiate an independent review and, in light of that, make any amendments through primary legislation subject to detailed scrutiny.

The proposals highlight a need to protect electoral integrity under the existing rules. The principle that the Speaker’s Committee should have no single-party majority has been followed in the past, but violated now – even though it was expressed by the Committee itself and endorsed by CSPL in the latter body’s 2007 report (paras 4.12 and 4.18). The existing convention having been broken, the principle needs now to be written in statute: the Speaker would make appointments to the Committee subject to the requirement that the majority of members not come from one party.

In recent proposals, Dr Alistair Clark has argued, additionally, that the Speaker’s Committee should, like the Speaker’s Committee for the Independent Parliamentary Standards Authority and the House of Commons Committee on Standards, include lay members. That would be a sensible measure, bringing non-partisanship alongside cross-partisanship into the Committee’s constitution. If it is adopted, the principle of no single-party majority should be applied among the Committee’s politician members.

The concerns relating to the bill also highlight the need for a review of Electoral Commission governance in light of the devolution of many electoral matters in Scotland and Wales. The Commission is now partly funded by the devolved parliaments and receives instructions from them. Yet all Electoral Commissioners are still appointed on the recommendation of the House of Commons. When proposing a Commissioner with responsibility for Scotland or Wales, the Speaker’s Committee has in recent years consulted the relevant Presiding Officer or included a representative of the relevant Presiding Officer in the shortlisting panel. But there is no statutory requirement even for this limited consultation. It is difficult to justify this arrangement. None of the governments appears to have considered the matter in depth yet, though the Scottish government suggested last week that the devolved parliaments should ‘have a formal role in the appointment of the Electoral Commissioner with a lead role in their respective nation’. A considered review is needed.

Conclusion

The Elections Bill contains a mix of welcome and unwelcome elements. Those relating to Electoral Commission governance are particularly concerning. They should be significantly changed as the bill works its way through parliament.

The Elections Bill was the subject of the Unit’s September webinar, Reforming elections: assessing the government’s proposals, which is now available to access in both video and podcast form. This is the second in a series of posts on the Elections Bill connected to that event. The first post was published on 23 September and a third post, written by Professor Justin Fisher, will appear on the blog soon.

About the author

Dr Alan Renwick is Deputy Director of the Constitution Unit. This post builds on his written evidence to the inquiry into the bill by the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) and his oral evidence to the public bill committee scrutinising the bill.