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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Ministerial standards in Westminster and beyond

Ministerial standards and the mechanisms for enforcing them have been in the news more than usual over the course of the last twelve months, making clear the limitations of the current rules and systems of regulating ministerial behaviour. In May, the Unit hosted an expert panel to discuss how the standards regimes work in the UK, and what reforms might be desirable. Dave Busfield-Birch summarises the contributions.

On 24 May, the Constitution Unit hosted an online webinar entitled Ministerial Standards in Westminster and Beyond. Unit founder Robert Hazell chaired the event, which had three distinguished panellists: Alex Allan, former independent adviser to the Prime Minister on ministerial interests; Susan Deacon, a former minister in Scotland who also sat on the Scottish Parliament’s Standards and Procedures committees; and Richard Thomas, a member of the Advisory Committee on Business Appointments (ACOBA), which advises ministers and senior officials on potential conflicts of interest when they take up appointments after leaving Whitehall.

This post summarises the main contributions of the speakers: the full event, including the lively and informative Q&A, is available on our YouTube page.

Alex Allan

Alex Allan started his contribution by offering a little bit of history about the ‘rather strange document’ that is the Ministerial Code. Something similar to the Code has been in place since the Attlee government, but perhaps the most significant changes came in 1995 when the Committee on Standards in Public Life (CSPL) produced its first report, and outlined ‘Seven Principles of Public Life’, which are commonly referred to as the ‘Nolan principles’.

Another significant change came in 2007, when the Brown government published a paper on the governance of Britain, which resulted in the creation of the role of independent adviser on ministerial interests, a title held by Allan from 2011 until his resignation in 2020. Where there is an allegation about the conduct of a minister that the Cabinet Secretary feels warrants further investigation, the matter will be referred to the independent adviser. However, most of the work of the independent adviser is of little media interest, and involves dealing with declarations of ministers’ interests, which are examined by their permanent secretary and the propriety and ethics team at the Cabinet Office, before being examined by the independent adviser.

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The public appointments system is under strain: it needs more clarity and transparency

In September, Peter Riddell will step down as Commissioner for Public Appointments after over five years in the role. In this post, which summarises comments made at a recent Unit seminar, he explains how the public appointments system is under strain, and how it might be improved. In particular, he calls for more clarity and transparency in both regulated and unregulated public appointments.

The public appointments system rests on two, at times, apparently contradictory principles — ministerial responsibility and selection by merit. These were set out both in the original Nolan report of the Committee on Standards in Public Life in 1995 and in the government’s Governance Code in late 2016. Their existence side by side — along with selflessness, integrity, openness, diversity, assurance and fairness — can cause confusion. Ministers and their advisers understandably want to appoint those who share their values and views, while critics allege cronyism and an undermining of the merit principle.

In reality, as with so much in public life, the answer lies in a balance between the principles, as envisaged in the 1995 report: ‘responsibility for appointments should remain with ministers advised by committees which include independent members’. The system is inherently political, and always has been, but patronage is constrained. The process of competition acts as a filter to identify candidates assessed as appointable in relation to the published job and person specifications. It is then up to ministers to pick one of these candidates.

The integrity of the system is now under strain. The appointment of political allies has happened before and is consistent with the Governance Code. What is different now is the breadth of the campaign led from the top of the government. This raises questions about the overall pluralism of arms-length bodies. That is a matter for ministers to explain and defend.

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Standards in public life: are we in a post-Nolan age?

In 1995, the Nolan report established ‘Seven Principles of Public Life’. Twenty-five years later, questions have been raised about the continuing relevance of the Nolan principles. Lord (Jonathan) Evans of Weardale, Chair of the Committee on Standards in Public Life, argues here that although we are not not yet living in a ‘post-Nolan’ age, there are reasons for real concern.

In recent months we’ve heard a new phrase used by academics, commentators, and members of the public who have an interest in public standards. That phrase is a ‘post-Nolan age’. 

The sentiment is encapsulated in an email sent to my Committee’s mailbox earlier this year. A member of the public told us they ‘feel a great sadness that the moral framework which has guided British public life for the past quarter century appears to be well and truly over’.

The email referred to the growing perception that those in public life no longer feel obliged to follow the Nolan principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership – otherwise known as the Seven Principles of Public Life

These principles have long underpinned the spirit of public service in this country, and were first formally articulated in Lord Nolan’s seminal 1995 report – the first from the Committee on Standards in Public Life, of which I am now Chair.

Since 1995 it has been increasingly accepted that anyone in public service should act in accordance with the Seven Principles. The Principles apply to ministers and MPs, all civil servants, local government officials, public bodies, the NHS, agencies as well as private companies and charities delivering services on behalf of the taxpayer. The Principles are not a rulebook but a guide to institutional administration and personal conduct, and are given a hard edge when they inform law, policy, procedure and codes of conduct. 

In their essence, the Seven Principles are there to govern the legitimate use of entrusted power in public life. All of us in public life, whether through democratic election or public appointment, have some degree of power afforded to us on the public’s behalf, whether it is the power to make decisions on benefits, to spend money on schools, to legislate to protect public health or to influence debate. This power is lent to us to be used for the good of the public.

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