A briefing paper on the legal issues surrounding a Scottish independence referendum
Documents to download
Elections Bill 2021-22: Progress of the Bill (810 KB , PDF)
The Elections Bill (Bill 138 of 2021-22) was introduced in the House of Commons on 5 July 2021. For background on the Bill, see the Library briefing published ahead of the Commons second reading: Elections Bill 2021-22.
The Bill has now completed all its stages and been passed. It received Royal Assent on 28 April 2022. This briefing summarises the Parliamentary stages of the Act up to Royal Assent and is no longer being updated.
The Act makes changes to election law that fulfil Conservative Party manifesto commitments to “protect the integrity of the UK’s democracy” (PDF).
The provision in the Act will be commenced at a later stage once detailed regulations on how the legislation will operate in practice have been made.
- The Government has indicated the provision on voter ID will be in place in time for local elections in England in May 2023.
- Changes in eligibility to vote for overseas voters, and EU citizens (England and Northern Ireland only) are expected to be in place by spring 2024.
Other elements of the Act include:
- Introducing a requirement for an imprint on digital campaign material – an ‘imprint’ is information added to material that tells potential voters who produced it;
- Introducing a new electoral sanction for people convicted of intimidating a candidate during an election, following increasing levels of abuse faced by candidates;
- Changes to the regulation of third-party campaigners; and
- New measures on the oversight of the Electoral Commission.
The Scottish and Welsh Parliaments both declined to give legislative consent for some measures in the Bill as they relate to devolved elections. In February 2022 the Government committed to bring forward amendments to the Bill during its House of Lords stages to remove all aspects which relate to devolved matters.
Commons second reading
The Bill was given a second reading on 7 September 2021.
The main point of debate centred around the proposals for voter ID and voter fraud more generally. Opposition MPs criticised the proposals with many focusing on the barriers that requiring ID would create for many voters. Several said voter ID was a solution to something that was not a problem, citing the low numbers of personation convictions. Conservative MPs highlighted types of electoral fraud and generally welcomed the measures in the Bill.
The measures to issue the Commission with a strategy and policy statement and to alter the oversight of the Electoral Commission were controversial. Opposition MPs argued it was an inappropriate interference with the independence of the Commission.
The Government argued it would improve parliamentary scrutiny of the Electoral Commission’s work while respecting its independence.
The Labour Party argued that ending the 15-year limit on overseas registration was a ploy to increase the number of overseas voters who can donate to the Conservative Party. Labour favoured extending the franchise to 16- and 17-year-olds.
The Government argued that all British citizens living abroad should have a vote and a voice in Parliament.
Measures on digital imprints, accessibility of elections and intimidation of candidates were generally welcomed.
Instruction to look at local election systems
Following second reading, the House of Commons agreed an instruction on 20 September. This allowed the Public Bill Committee to consider voting systems for some local election in England and Wales, which had not originally been included in the Bill.
It allowed the Government to bring amendments at committee stage to change the voting system for all police and crime commissioners (PCC), combined authority mayors, and the Mayor of London, from the supplementary vote system to the first past the post system.
Public Bill Committee
The Committee had four evidence sessions before scrutinising the detail of the Bill. Eight scrutiny sessions were held, beginning on 22 September 2021. The Committee heard evidence on a range of the Bill’s measures but in particular voter fraud, the impact of voter ID on participation, and on the perceived threat to the Electoral Commission’s independence. It also heard evidence from those that run elections on the potential effects on resources and the risks to running elections additional burdens introduced by the Bill might create.
Only Government amendments were approved. Some were drafting amendments and the main substantive change was a new clause to change voting systems for PCC and mayoral elections.
Select Committee report
On 13 December 2021, the Public Administration and Constitutional Affairs Committee published a report on the Elections Bill. The Committee were critical of the lack of pre-legislative scrutiny of the Bill and the added complexity to electoral law that would result from it.
The Committee called for the Government to pause progress on the Bill. The Chair, William Wragg, said: “We feel that the elections bill proposals lack a sufficient evidence base, timely consultation, and transparency, all of which should be addressed before it makes any further progress.”
The House of Lords gave the Bill a second reading on 23 February 2022. The Government responded to two significant criticisms of the Bill, the proposed strategy and policy statement for the Electoral Commission and the provisions in the Bill that required legislative consent.
The Government rejected the Electoral Commission’s assertion that the proposed statement would allow the Government to influence the decisions of the Commission. The Commission’s Commissioners had written an open letter to the Ministers just before the second reading debate in the Lords urging the Government to reconsider its measures on the proposed strategy and policy statement. The Commission argued the statement would “enable a government in the future to influence the Commission’s operational functions and decision-making.”
On legislative consent, the Government noted that the Scottish and Welsh Governments had declined to give consent on matters relating to devolved elections as both Governments were preparing their own similar measures.
During the committee stage of the Bill Government amendments were passed that removed relevant references to take account of the devolved governments’ decisions on legislative consent.
Several technical Government amendments were agreed. A new clause moved by the Government to alter how candidates addresses in UK Parliament elections could be submitted at nomination was passed.
No other amendments were agreed but a number of probing amendments were discussed to allow peers to explore some of the topics included in the Bill. These focused on voter ID and third-party campaigning issues, particularly the measures related to joint campaigning between third parties and political parties. These are seen by many as disproportionately affecting the Labour Party and its affiliated trades unions.
The Government suffered two defeats:
- Voter ID – The House agreed an amendment that extended the permitted range of ID documents to various non-photographic types of ID
- Electoral Commission strategy and policy statement – the House voted to remove the clauses relating to the strategy and policy statement from the Bill.
A number of Government amendments to clause 7 (secrecy of postal ballots) and clause 8 and its associated schedule (undue influence) were agreed without debate or a vote.
The Government accepted amendments from Lord Holmes to produce statutory guidance to returning officers on the support that should be provided to disabled voters in polling stations, particularly blind or partially sighted voters. It also accepted technical amendment from Baroness Noakes on how assets and liabilities to be provided on application for registration by a new political party should be expressed.
The Government accepted a group of amendments from Lord Hodgson of Astley Abbotts to provide statutory guidance for controlled expenditure of third parties.
Government amendments that addressed concerns raised at committee stage were approved without a vote. Clause 28 (to regulate joint spending between registered parties and third-party campaigners) was removed from the Bill. Opponents had said this would adversely affect the Labour Party. The power to amend the list of eligible categories of third-party campaigners in PPERA using secondary legislation was amended so that a minister could only act on the recommendation of the Electoral Commission
A new clause was inserted to the Bill to require post-legislative scrutiny of the Act. It requires the Secretary of State to prepare, publish and lay before Parliament a review of the operation of this legislation, not less than 4 and not more than 5 years after it receives Royal Assent.
The House of Commons considered Lords amendments to the Bill on Wednesday 27 April 2022.
It reinstated the clauses relating to the Electoral Commission but also further amended the clauses to address concerns that had been raised on the perceived interference with the Commission’s independence and with a lack of Parliamentary scrutiny.
These would explicitly prevent the strategy and policy statement from including reference to the Commission’s investigatory or enforcement activity or other statutory duties. They also provided that the draft statement would be subject to the super-affirmative procedure, which Erskine May, the most authoritative guide to Parliamentary procedure, describes as “an exceptionally high degree of scrutiny” of delegated legislation.
The Commons also overturned the Lords amendment on additional voter ID documents, restoring the original list containing in schedule 1.
The Lords did not insist on any further changes to the Bill, which was then forwarded for Royal Assent.
Documents to download
Elections Bill 2021-22: Progress of the Bill (810 KB , PDF)