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.
Louise Edwards focused her remarks on the Elections Bill, specifically the changes planned for the Electoral Commission and the introduction of voter ID at polling stations.
Louise began by making clear that, while openness to scrutiny is essential, the Commission must remain organisationally and operationally independent. The ‘Strategy and Policy Statement’ proposed in the bill therefore raises serious questions about the extent to which such a document goes beyond essential scrutiny of the Commission and begins to direct and guide decision-making in operational matters. Because the Electoral Commission regulates the party of government as a political party (unlike other regulators with such guidance frameworks), it is hard to see how the Commission’s independence is maintained when one of its stakeholders can create a statement containing operational guidance that is legally enforceable by the courts. Indeed, Louise affirmed that, while it is entirely appropriate for governments to set out priorities for the Commission, ‘one political party should not have privileged influence and control over how we operate’ and therefore, as currently drafted, the bill is not compatible with an independent Commission.
When discussing the government’s plans to introduce voter ID at polling stations, Louise noted that several international democratic organisations have expressed concern about the lack of voter ID in the UK, and that 66% of respondents to the Commission’s own public opinion surveys said that showing ID would increase trust in the process. However, alongside assuaging security concerns, Louise stressed the importance of maintaining democratic accessibility. Given that possession of eligible forms of ID is far from universal, she welcomed the government’s commitment to introducing a free voter ID card. However, to be effective, it is vital that the process for applying and collecting these cards be easy and local. To that end, Louise concluded her remarks by reiterating the Electoral Commission’s call for the government to share more details about its plans now, so that accessibility can be assessed during the passage of the bill.
Laura Lock provided important context to the discussion by drawing attention to the existing pressures and complexities of the electoral landscape.
Laura highlighted the considerable degree of change that has taken place since the Representation of the People Act 1983 – not least, the 29 pieces of new primary legislation and 68 pieces of new secondary legislation that influence how elections are run. For example, people can now register to vote up to 12 days before elections rather than just once per year. Police and Crime Commissioner elections, combined authority mayoral elections, business improvement district elections and neighbourhood planning referendums have all increased the diversity and incidence of elections. Devolution has also added new layers of electoral activity. Laura suggested that this increase in load had occurred at precisely the time when local authorities have seen their resources and funding reduced – alongside other perennial problems such as the difficulty in finding staff for polling stations. Other aspects of the government’s constitutional reform agenda are imposing additional pressures too, including the likely repeal of the Fixed-term Parliaments Act 2011 and return of the executive’s power to call elections – possibly with only 25 days’ notice. Some MPs are also pushing for a reduction in the electoral timetable to just 17 working days – something Laura describes as ‘administratively not possible’.
The main contentions with the bill itself are that the proposed changes will exacerbate an already challenging situation and that not enough detail has been provided about how these additional burdens will be mitigated. Laura concluded her remarks by suggesting that the government should consider introducing a brand new ‘Elections Act’, to thoroughly review and clarify the UK’s electoral arrangements – rather than continuing to bolt on additional legislation ad hoc.
Justin Fisher discussed three themes related to the Elections Bill. Firstly, that although there is some positive material in the bill, these proposals require more thought to operate effectively. Secondly, that some aspects of the bill represent a wholly ‘disproportionate response’. And, thirdly, that there needs to be more consideration about how future elections could be run.
Justin began by discussing notional expenditure (whether electoral campaign expenditure is ascribed to a party or local candidate). Although broadly supportive of the government’s proposals, he believes that some of the rules need further tightening. For example, it is important that a clear documentary trail shows who authorised exactly what expenditure – however, the present wording of the bill is not clear. Similarly, a named person is needed in party headquarters who authorises spending in constituencies to avoid any shifting of blame between levels or people.
He went on to explore how some of the bill’s proposals to regulate ‘third parties’ (organisations campaigning in elections but not standing candidates), represent an overreaction and may generate adverse consequences. The outright ban on registering both as a ‘party’ and as a ‘third party’ is one such example. In an election scenario where a local pressure group wishes to stand candidates, this ban requires such groups to ‘artificially disassociate’. Given that this has only happened once since 2014, it creates a seemingly unnecessary additional burden. Similarly, regarding coordinated spending between third parties and political parties, Justin highlighted the pressing need to fix shortcomings with existing legislation before proceeding with any new rules. He explained that, during the 2016 EU referendum, the campaign rules were so widely misunderstood that like-minded groups divorced themselves from each other to avoid committing unintended breaches – and that unless such shortcomings are resolved before future elections, we risk piling ‘uncertainty upon uncertainty’.
In considering the proposed changes to oversight of the Electoral Commission, Justin argued that election agents are the people on the ground who know most about how elections are run, and noted that they consistently register high levels of satisfaction with the Commission. He therefore suggested that the proposals are ‘a solution to a problem that does not exist’.
Justin concluded his remarks by suggesting that the government should use the proposed scrapping of the 15-year qualification on overseas electors to explore the possibility of online voting for overseas electors – thereby helping avoid the vagaries of international postal systems. He lamented that the bill as it stands represents a missed opportunity in this regard.
Baroness (Nicky) Morgan
Nicky Morgan began by exploring some of the big debates surrounding the draft Online Safety Bill, emphasising the need to get the balance right between protecting people from harmful online content and safeguarding freedom of speech. The renaming of the bill to emphasise ‘online safety’ over ‘online harms’ reflects this. Nicky further remarked that, although the growth of the digital electoral environment was having a significant impact on the way elections are conducted, she feels that the jury is still out on the extent to which this influences actual voting decisions. Although the debate continues to rage about whether, and to what extent, the internet should be regulated, Nicky expressed her view that we have already passed a critical juncture given the enormous power now held by online platforms. In fact, she suggested that many online providers might welcome intervention from beyond the private sector, including legislation setting out duties to protect content of democratic importance as well as power to take content down. While acknowledging that what constitutes harmful content is still widely contested, she nevertheless hailed the content of the bill (such as requiring online platforms to develop clear complaint and redress mechanisms and for Ofcom to produce codes of practice) as being a world-leading ‘big first step’.
Responding to a question posed by Alan Renwick about the disappearance from the bill of measures to safeguard the democratic process and tackle misinformation, Nicky said that the bill still addresses these issues but does so in a different way. In keeping with the bill’s emphasis on ensuring the right balance between safety and freedom of expression, judgements about what constitutes harmful content and misinformation relate closely to who is receiving that information (e.g., children, vulnerable people, adults). Similarly, rather than high-level panels making unilateral decisions to remove content, this approach incorporates more interaction with the content originator about the context in which content is removed. Re-emphasising that the bill represents a ‘first step’, she said that she expects this will likely be an area returned to and built upon, as debates evolve.
Nicky concluded her remarks by making clear her support for two specific provisions in the Elections Bill, namely, the changes relating to imprinting on digital campaign materials, and the proposed sanctions around intimidation of candidates.
This is the fourth and final post in a series on the Elections Bill. The first post was published on 23 September and a second post, written by Unit Deputy Director Alan Renwick, went live on 29 September. The third post, by panellist Justin Fisher, offers a detailed analysis of the issues covered in his panel contribution.
About the author
Tom Fieldhouse is a Research Fellow & the Networks Coordinator at the Constitution Unit.