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The Electoral Commission: An Independent Body?

Posted on 30 May 2022

On 28 April 2022, the Elections Bill was given royal assent and came into effect as law. It became the Elections Act 2022.

The Elections Act introduces a number of key changes, many of which have been heavily scrutinised over the last year. One of those changes is the introduction of a "Strategy and Policy Statement", set by the Government, for the Electoral Commission. The introduction of the Statement has brought into question the independence of the Commission and the potential influence existing and future governments may have over the UK's electoral system.

What is the Electoral Commission?

The Electoral Commission is the independent body which oversees elections and regulates political finance in the UK. The Commission promotes public confidence in the democratic process and ensures its integrity. The Commission's work takes place before, during and after the election process. Examples include:

  • Running campaigns to ensure the public is aware of the deadlines for registering to vote and applying for postal and proxy votes;
  • Publishing information about donations to political parties, campaigners and other groups and their expenditure;
  • Ensuring the public has all the information needed to vote, including how to find their nearest polling station;
  • Publishing reports on how "well-run" the election was and recommending improvements for future elections; and
  • Publishing electoral data including the size of the electorate and turnout for each election.

The introduction of the Strategy and Policy Statement

The long title of the Elections Act states that it is designed to "strengthen the integrity of the electoral process". Pursuant to Part 3 of the Act, the Government now has the additional power to set a "Strategy and Policy Statement" for the Electoral Commission (the "Statement"). The Statement will set out the Government's priorities for electoral matters and give strategic direction.

Why does this matter?

The changes imposed by the Elections Act have been widely criticised by key individuals in politics. Lord Evans, Chair of the Committee on Standards in Public Life, has said he is "deeply troubled" that the changes would put our demographic system at risk. Lord Blunkett, member of the House of Lords, described the changes as a key moment in the defence of democracy against ministerial attempts to undermine it, commenting that "Revoking independence would set a dangerous precedent for current and future elections and would give an unacceptable signal to the rest of the world."

Prior to the Act receiving Royal Assent, the Commission itself publicly responded to the proposed changes. Electoral Commissioners from all four nations wrote to a number of MPs on 21 February 2022, just two months before the Act came into effect, to urge the Government to "reconsider those measures which seek to change the oversight arrangements of the Electoral Commission. [The Commission's] aim, which we anticipate you share, is to maintain the Commission’s current independence and its accountability to all parties elected to the parliaments of the United Kingdom." The letter expressed concern that the introduction of the Statement would enable the Government to influence the Commission's operational functions and decision-making and urged the Government to work with the Commission and Speaker's Committee to ensure that suitable accountability arrangements are in place to ensure confidence across the political spectrum. The letter further stated, "Strong accountability is essential for this, but so too is demonstrable independence. The Commission’s independent role in the electoral system must be clear for voters and campaigners to see, and preserved in electoral law." 

How exactly could the Government influence the strategic direction of the Commission's work? One example is to consider the work that the Commission carries out before an election. The Commission's role is to encourage the general public to register to vote and to ensure that there is an understanding of how to vote, including the relevant deadlines for doing so. The Government could, via the Statement, direct that the Commission is to focus this campaign on a specific demographic which typically supports the party in power, under the guise of addressing potentially low turnout in that category of people. While the Government has in no way suggested that it proposes to use the Statement in such a way, the possibility of such a use suggests that the Elections Act has created the potential for existing and future Governments to enhance its electoral prospects.

The passage through Parliament

The Elections Act has been law for a little over a month. Whilst it is too early to assess the potential impact of the changes imposed, one area which has been criticised is the way in which the bill was driven through Parliament. The simultaneous passing of other controversial and complex bills (including the Police, Crime, Sentencing and Courts Act 2022) has been criticised as creating a distraction that has "blinded effective parliamentary scrutiny and media coverage". Both Acts received Royal Assent on the same day. At the final stages they were both considered just days apart by the House of Lords and House of Commons. Key parts of the Elections Act were opposed by the Labour opposition and the House of Lords. The House of Lords considered the House of Commons' proposed amendments in the final minutes of the parliamentary session - the vote was held in the House of Lords at 8.31pm on the eve of the Act receiving Royal Assent.

Summary

Whilst the Commission remains an independent body, the concerns raised by key individuals in politics, the Commission and its stakeholders has led to questions about its true independence. A key feature of democracy is the election process. This involves listening to and engaging with people, something which critics have argued has not been carried out by the Government in the lead up to introduction of the Elections Act. The true impact of the Act remains to be seen in future elections.

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