Cabinet meetings held away from Downing Street.
The Act requires the Commission, which is independent and overseas elections in the UK, to “have regard to” the Government’s statement in its work.
The draft statement was published in August 2022. The Government’s consultation period ran to 5 December 2022. This Insight looks at the reaction to the statement.
What does the statement cover?
The new statement sets out the Government’s priorities for the Electoral Commission in elections, referendums, and other areas where the Commission has statutory functions. It also describes how the Commission should help the Government to meet its priorities.
The statement cannot include priorities relating to devolved elections. And it cannot include provisions about the Commission’s powers to investigate and hand out fines for breaches of regulations on political finance and electoral spending.
The announcement of plans to introduce a statement was controversial. Critics say it is an unreasonable interference with an independent regulator and the Commission itself warned it could threaten its independence.
Why have a draft statement?
The Government was required to publish a draft statement so it could consult on its contents. It had to consider the views of the Electoral Commission, the Speaker’s Committee on the Electoral Commission (Speaker’s Committee) and the Levelling Up, Housing and Communities Committee. It was not required to hold a public consultation.
What is in the draft statement?
The draft statement sets out the Commission’s core duties already established in law, the Government’s priorities for delivering “secure, modern, transparent and fair” elections and tackling intimidation of candidates. It also requires the Commission to produce high quality guidance. The principles that the Electoral Commission should prioritise in its work are also included, such as accountability, impartiality, and enforcement.
The draft statement says it “does not seek to interfere with the governance of the Commission and the Commission remains operationally independent” Neither will it interfere with the Commission’s ability “to undertake enforcement activity”.
The Government told the Levelling Up Committee that it “should not read anything in the statement as a criticism of the things that the Electoral Commission has done”.
During the passage of the Elections Bill, Fraser Campbell KC questioned how useful the statement would be when he told the Bill Committee:
[the Electoral Commission] presumably does not think at the moment that it is proper for it to provide poor value for money or be partial, unaccountable, disproportionate or inconsistent
What did the consultees say?
The Levelling Up Committee published a report on 1 December 2022. It is concerned the statement risks damaging the independence of the Electoral Commission and undermining public confidence in the democratic process. It concluded that:
…no Statement is necessary at the current time: and no evidence has been provided justifying it. However, if there is to be a Statement, the current draft needs to be fundamentally rewritten.
It went on to say, “we consider that any outsider reading the Statement would infer that the Government considered the Commission was not functioning as well as it should be.
The Electoral Commission’s response to the consultation called for the draft statement to be amended. Its main points were:
- The Government should make clear how the statement is consistent with the Commission’s independence
- The statement should make it clear the Commission will not be required to support the delivery of Government manifesto commitments that have not yet been approved by Parliament
- It should be reworded to be consistent with the Commission’s existing statutory responsibilities.
- The statement should be amended to remove reference to enforcement as the Commission is already required by law to prepare and publish guidance on its enforcement policies
- References to other organisations within the statement, such as police and prosecuting authorities should be removed to ensure the Commission is not given inappropriate responsibility for the actions or decisions of other bodies.
In evidence to the Levelling Up Committee inquiry on the draft statement, the Electoral Commission’s chair, John Pullinger, said if they think the Electoral Commission’s independence is important, then “…the best way to demonstrate it is to not proceed with the strategy and policy statement.”
The Speaker’s Committee held a private meeting on the statement in October 2022.
What happens next?
Following this consultation the Government may make changes to the draft, or it may make none.
The draft of the statement must then be laid before Parliament. An explanation and report responding to the consultation must also be laid.
There is then a 60-day period where further representations can be made by MPs or parliamentary committees. After the 60-day period, if the Government wishes to proceed with the statement, it must lay a final draft before Parliament. That final draft must be approved by a resolution of both Houses of Parliament within 40-days. This is known as the ‘super-affirmative’ procedure, and is designed to allow a high degree of parliamentary scrutiny.
The strategy and policy statement must be reviewed every five years and will follow the same procedure.
The statement may be revised within the five-year period by the Government or at the request of the Electoral Commission or the Speaker’s Committee. If a revision is thought necessary, some of the consultation stages may be left out.
The Speaker’s Committee will assess how the Electoral Commission performs in relation to the new statement.
- House of Commons Library, Elections Bill 2021-22: Progress of the Bill
About the author: Neil Johnston is a researcher at the House of Commons Library, specialising in elections.
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