Levelling Up, Housing and Communities Committee
Oral evidence: Draft strategy and policy statement for the Electoral Commission, HC 672
Wednesday 12 October 2022
Ordered by the House of Commons to be published on 12 October 2022.
Members present: Mr Clive Betts (Chair); Bob Blackman; Ian Byrne; Florence Eshalomi; Ben Everitt; Kate Hollern; Andrew Lewer; Mary Robinson.
Questions 1 - 41
Witnesses
I: Dr Sam Power, Senior Lecturer in Corruption Analysis, School of Law, Politics and Sociology, University of Sussex; Peter Stanyon, Chief Executive, Association of Electoral Administrators; Professor Justin Fisher, Professor of Political Science and Director of Brunel Public Policy, Brunel University London.
Witnesses: Dr Sam Power, Peter Stanyon and Professor Justin Fisher.
Chair: Welcome, everyone, to this morning’s session of the Levelling Up, Housing and Communities Select Committee. This morning, we are going to look at a document called the draft strategy and policy statement for the Electoral Commission. The Electoral Commission is an important body, which is independent and oversees the running of elections at both national and local level in this country. The draft strategy statement is from the Government—I will try to say this as neutrally as I can—and offers guidance to the commission about how it should operate and perform its functions.
Before I come over to our witnesses today, I will ask members of the Committee to put on record any interests that they may have directly related to this inquiry. I am a vice-president of the Local Government Association.
Ian Byrne: I employ a councillor in my office.
Kate Hollern: As do I.
Ben Everitt: As do I. I have also recently been invited to become a vice-president of the Local Government Association.
Andrew Lewer: I am a vice-president of the Local Government Association.
Q1 Chair: We may have some colleagues joining us as we go on with our proceedings. Now, moving over to our panel of witnesses today, could I ask you to introduce yourselves?
Professor Fisher: I am Professor Justin Fisher. I am professor of political science and director of Brunel Public Policy at Brunel University London.
Dr Power: I am Dr Sam Power, senior lecturer in corruption analysis at the University of Sussex, and expert in various matters to do with political financing.
Peter Stanyon: I am Peter Stanyon, chief executive of the Association of Electoral Administrators.
Q2 Chair: Thank you all very much for coming in to give us your particular expertise this morning on what is quite a challenging subject in many respects, both legally and technically. It is important that we explore those very important issues, given that the integrity of our electoral processes and systems is something that we all greatly value and want to preserve.
Quite a few concerns have been expressed to the Committee, and probably more widely, that the statement will impinge on the independence of the Electoral Commission. We would all accept that it is very important that it is independent of political parties and of Government, and is able to get on with its job as it thinks appropriate within its legal framework. Now that you have seen the final version of the statement produced by the Government, are these concerns about impinging on the independence of the commission justified?
Professor Fisher: They are justified, for a number of reasons. The document emphasises particular aspects of electoral law over others, which is misguided. Also, either intentionally or unintentionally, it raises significant difficulties in terms of the possibility of legal challenge by introducing a number of priorities that are unnecessary.
Fundamentally, it seems to me that the statement is unnecessary, but that, if the Secretary of State chooses to impose a statement, which is a choice that can be made, it would be better to restate the existing principles under which the Electoral Commission operates rather than the combination of a duplication, as is in here, and some priorities that seem to me to be problematic.
Q3 Chair: Before I come to the other witnesses, does that not beg the question, “If the statement just restates what the commission is already required to do, what is the point of it?”
Professor Fisher: It does in places, absolutely. My response was being charitable. If there is to be a statement, it would be better to restate the commitment to an independent commission and its role in elections in the United Kingdom.
Dr Power: Fundamentally, the fact that there is a draft policy and strategy statement at this point is an impingement on the independence of the Electoral Commission. This is what was said at the consultation stage of the Elections Bill, now the Elections Act 2022. That is there and, as Professor Fisher suggests, in the setting of priorities for the Electoral Commission, that is an impingement on the independence of the Electoral Commission.
There are also elements of the language that we can get on to in a minute, which can open the Electoral Commission to legal challenges in certain areas. The draft statement attempts to walk a line here—again, being charitable—between being so vague as to just state, “You must continue being an Electoral Commission”, and being so specific in areas such that it does open up those things.
In terms of the prioritisation element, one might think that, if it is seen that the Electoral Commission is not acting within the priorities as set out in the draft statement, legal challenges might be made by those who are then sanctioned outside of those prioritisations, for example.
It certainly impinges on the independence of the Electoral Commission, but if we hold that independence to be important, we should think about ways in which the draft statement can at least approach as much independence as possible for the Electoral Commission.
Peter Stanyon: There is not a great deal that I can add to what my colleagues have said. We have made the point as the association, on behalf of those who deliver the elections, on the importance of that independence of the commission from being led down a certain path. Reading the statement, it is, again, restating what has been said.
In certain areas, it is very precise as to what will be required and, in others, very vague, but the one thing that comes through very clearly, from reading it through on a number of occasions, is the fact that it is restating what the commission is there for, as has been laid out in the Political Parties, Elections and Referendums Act 2000, in terms of the role, the responsibilities and the like.
There is a danger in terms of trying to prioritise certain areas over others, solely because those others are still there within statute and still there to be delivered by the commission. As a result of that, there is a danger of a little bit of confusion coming into matters, bearing in mind that the commission already has its own work plans and action plans agreed by the Speaker’s Committee in terms of its forward plan to where they are looking at. There is a tension between those two parts of it with regard to which one takes priority over the other in terms of where they take themselves.
Q4 Chair: You all laid out your concerns about picking out some areas of priority and where that leaves other areas, and trying to be precise or vague about the wording. In terms of enforcement, are there particular concerns about trying to lay down how the commission should approach its enforcement responsibilities?
Peter Stanyon: One of the frustrations for electoral administrators is the enforcement side of things. It is around the fact that, where there are elements that have been identified as a potential risk and passed through to the investigating bodies, the enforcement does not take place to support that type of approach. It can be down at the very limited element. There are certainly elements in the statement with regard to digital imprints—the new element coming in—but it goes back to general parts of electoral process and then into the political finance processes.
The key point to it all is that, as things stand, the statement appears to be confusing in terms of how it will be looking at each of those individual areas. Where it will be improved is in very clearly setting out in which areas we believe there is already a weakness in the process, whether that is the commission delivering it or another legislative provision.
Certainly from our perspective, we would support anything in terms of enforcement, where it is legitimate, but we are not sure that that is taking place at the moment, so that may be a welcome thing in terms of addressing those areas where we have concerns.
Q5 Chair: How would that be done if it is not in this statement?
Peter Stanyon: It is within the general role already. A very good example, which may seem a minor matter, is the return of election expenses following an election. It is reported to the Electoral Commission. That is technically an offence that should be taken forward, but it never is. That puts the returning officers in a difficult position in terms of enforcing in the future. They are minor issues and the sorts of things where, as they begin to build, there is a danger of, “Which bit of the law will we approach in that way and which will we not?”
Q6 Chair: Are you are saying that the Electoral Commission is not doing its job in terms of its current remit?
Peter Stanyon: I would not say that it is the Electoral Commission. It is the whole of the investigatory authorities, whether it is the CPS, the police or whatever.
Q7 Chair: How would you get that improved without a statement from Government saying that this has to be done?
Peter Stanyon: It is already there in law.
Q8 Chair: Yes, but it is not being implemented.
Peter Stanyon: No.
Q9 Chair: Right. So how do we get it implemented?
Peter Stanyon: That will be for the authorities to determine. The returning officer will consistently bring that forward. Ultimately, the ROs are the ones who deliver the elections. They can only pass on to those authorities to take the necessary actions.
Q10 Chair: Sam Power, how might we address this issue?
Dr Power: Specifically on enforcement, with the way that the priorities are set out and what Peter suggested there, if there is a specific issue with the enforcement around election returns and, for example, keeping a political finance database, that is not one of the stated priorities in the draft policy statement. If that specific element is not one of the stated priorities, it is hard to see how the Electoral Commission can reasonably improve on what Peter has highlighted as what might be a problem there.
There are other elements of the statement where, if enforcement is important, we need to be careful about how the statement is written. Peter also mentioned digital imprints and, if we look at the specific paragraph on digital imprints, it says, “To further the aim of improving transparency in UK elections ... the importance of proportionate enforcement of the new digital imprint regime, including the need to avoid disproportionate sanctions”, and then this bit in particular, “against genuine mistakes where reasonable steps have been taken to comply with the new digital imprint regime”.
That is fine, and I suspect that the Electoral Commission will do that anyway, given its history of thinking about these things. If you write, “against genuine mistakes where reasonable steps have been taken to comply with the new digital imprint regime”, it seems quite apparent to me that anyone who is then questioned around any issues with regard to their digital imprints can then say, “This was a genuine mistake”, and it opens up that whole realm of legal challenge, where I would suggest that, from the history of the Electoral Commission, it always takes into account, particularly since the passage of the Political Parties and Elections Act in 2009, proportionate sanctions, dependent on genuine misunderstandings or level of financing of body—political party, for example—or the understanding of many campaigners as voluntary, not paid, campaigners.
There are elements of the way in which the law is written that open up whole areas for loophole-seeking, which will have an effect on effective enforcement.
Professor Fisher: One of the main problems with the statement—and it relates to enforcement—is a confusion between the role of the commission and recognising the weakness in the legislation. We have heard about the digital imprints clause. Here, it makes reference to the commission recognising the importance of free speech. That is not the commission’s role. That is something for the legislation.
Equally, in paragraph 20, the statement says, “The commission should be sensitive and proportionate to the voluntary nature of much of political parties’ infrastructure”. Again, that is a matter for legislation. In fact, there is plenty of evidence that the commission is already sensitive to that, but it does seem to me that a thread running through the statement is a misunderstanding of what the commission does, as well as a misunderstanding of the weakness of some of the aspects of electoral law.
Q11 Chair: That is what you think should be looked at—electoral law as opposed to the guidance on existing law.
Professor Fisher: Notwithstanding the point that Peter makes about the enforcement of spending returns, as much as is possible, the evidence over the last 20 years is that the interpretation of the law within the confines of the weaknesses of many aspects of electoral law has been done quite successfully, but society and electoral techniques evolve, which is why we have the digital imprint requirement and so on. In places, the law has either not kept up to date or the original weaknesses in PPERA have not been sufficiently rectified. It is not the role of the commission to second-guess what Parliament wants. It is a job for Parliament to correct the law.
Q12 Ben Everitt: We have all been incredibly diplomatic so far, which we are sometimes not used to, so thank you. I am going to look at this from the democratic aspect, and I am going to try to keep it to that relationship between the commission and Parliament, Government and democracy as a whole, and not stray into the purpose of the whole statement and what problem we are solving, because that will come next.
The commission has already stated that it is committed to working constructively with the UK Government and has a record of success in doing so. I am interested in your views on how that works and what that record of success would be described as.
Professor Fisher: As part of research that I do more generally on election campaigns, we run a series of questions to electoral agents on the working of the election, in terms of both the local administration and the guidance provided by the Electoral Commission. We have done that since 2005. In every single election that we have studied, in addition to the 2016 referendum, there is a great deal of satisfaction with the guidance provided by the commission, such that, in many ways, it would be difficult for it to perform better than it already does.
One of the things that I find challenging in the statement is the implication that the guidance is somehow not being provided, or that the Government need the commission to restate its commitment to the guidance. In that respect, we could point, with a sound evidential base—which is, unfortunately, absent in the strategy and policy statement—the fact that the commission has been successful in providing support on the ground for parties and candidates in elections.
Q13 Ben Everitt: Just before I move on, there appears to be almost a collective view from the three of you, in answers to the earlier questions, that there was some acceptance that there are some statutory duties that the commission covers that do not get delivered to the full extent. To what extent is a statement, if not this statement, going to help the commission, and the elections ecosystem as a whole, deliver those statutory duties?
Professor Fisher: It would depend on how much of a problem the deficiencies represent. No election involves 100% compliance at every stage. Indeed, the original Committee that prompted PPERA—the Committee on Standards in Public Life—was very clear about this. The analogy was with speed limits. If you put in a 30mph speed limit, you will not stop people driving at 32mph, but you will stop them driving at 55mph. One has to accept that.
It seems to me a cause of some regret that there are some candidates who do not submit their spending return. Equally, the level of compliance is of the order of around 98%, so whether it is such a significant problem that would prompt a draft policy and strategy statement seems to be a moot point. There is always room for improvement. Whether this statement represents that is something for your Committee to decide.
Ben Everitt: It is not perfect.
Professor Fisher: Nothing is perfect.
Ben Everitt: It works well, but there is always room for improvement.
Professor Fisher: Of course, like Parliament—and, indeed, universities.
Ben Everitt: Point taken.
Dr Power: In terms of the broader question about the Electoral Commission working constructively with the Government, there is no evidence to suggest that the Electoral Commission is, for example, actively aloof in the way that it works with the Government. It releases reports fairly consistently every year on exactly the work that it has done and the way in which it meets its own aims, as set out by PPERA and subsequent legislation. I do not know if I have seen one of these Committees in which the Electoral Commission has been called forth for evidence, and I know that you are speaking to them next week.
There is a broader question that Justin touched on, which is to do with who the stakeholder here is. It is very clear that, within this draft policy statement, the stakeholders are the Government. The Electoral Commission should have regard to various aspects as set out by the Government, so the assumption there is that the most important relationship within this draft policy statement is that of the Electoral Commission with the Government, when we know that there are a lot of other stakeholders in the electoral process and in the process that the Electoral Commission follows. Justin has highlighted electoral administrators. We might also think about political parties and about the public, broadly defined, as a stakeholder.
What we know, in terms of what Justin has just said, is that the evidence in terms of the relationship particularly between the Electoral Commission and electoral agents is very strong. The Electoral Commission does about as good a job as it can, although, as we have just covered, nobody is perfect.
On the broader question, the relationship between the Electoral Commission and the Government is good, but is that the relationship that we want to be focusing on? Do we not want to be thinking about different relationships and the way the Electoral Commission works there? One of my big problems with the draft policy and strategy statement—or the policy and strategy statement more broadly defined—is that it slightly resets the relationship here to be about the Electoral Commission and the Government as the key stakeholder that it is dealing with. That is quite problematic in terms of the work that it does, frankly.
Q14 Ben Everitt: Could there be a distinction worth making between Government and Parliament in this aspect?
Dr Power: My understanding in terms of the way in which this legislation was introduced in August, and the way in which this part of the Elections Bill, now the Elections Act, was put across, is that it would make the Electoral Commission more accountable to Parliament. There is nothing beyond the fact that this draft policy statement has to go through Parliament. There is nothing in the draft strategy and policy statement, as it is currently written, that really mentions Parliament. It is about the Government.
Beyond being ratified, if you will, by Parliament, I do not think that the relationship between the Electoral Commission and Parliament is stated here. It might well be improved by that, but rather we should think about the different stakeholders and the way the Electoral Commission should function, and will function best, if it is adhering to those stakeholders.
Q15 Ben Everitt: I am going to ask Peter the same question and then come back to all of you to ask what you would change in the statement, so just a quick heads-up there.
Peter Stanyon: Again, there is very little that I can add to the comments that have been made. The fundamental element in terms of whether the system has been successful is almost like, “What does success mean? What does it look like?”
From an administrative perspective, I am long enough in the tooth to remember delivering elections before the Electoral Commission was in being. It is where the AEA came from in terms of sharing good practice and the like. I have to say that the one place that administrators go to for advice in terms of how you deliver, as we will see with the vote with the Elections Act coming forward, what this is and how this will work in reality in a polling station, is the guidance that will be produced. We will supplement that with practical examples.
All I know from my personal experience is that the commission is very actively involved in all of the discussions about how the ideas, the policy and the intent work in reality, looking at it from every angle, so that is a success in that respect. Does the commission get to the positive answer to every single thing that it wants to ask a question of? No, it does not, but that is the healthy democracy and debate that takes place.
I absolutely agree with the point with regard to looking to who the commission is accountable to. Ultimately, the most important people in all of this are the electors. We are delivering a free and fair election for those who elect you to this place and to other bodies. They are a huge stakeholder, as are the Government, electoral administrators, returning officers, etc. They have to weave a very narrow and difficult line through this to ensure that they are demonstrating that the systems that are delivered by proxy—because the commission, apart from national referendums, do not deliver elections; it is down to local authorities—are seen as being free from fraud, safe, secure and delivered very well. In our experience, they do a very good job in providing that support to returning officers and local authorities in that way. If that is success, then yes, they are successful in what they do.
Q16 Ben Everitt: Does the statement support democratic oversight? Could it and should it? What would you do to change it, so that it could be better?
Peter Stanyon: Sections 2 and 3 of the statement lay out exactly where the priorities and the key elements are. I would say that most, if not all, of those are areas that I would expect to see, because certainly in terms of those supporting those who deliver elections—the advice and guidance to returning officers, the elements around fraud and what we should be doing—a lot of it is talking about the guidance being given to deliver that to those who will have been setting that process.
When you read it, it is a bit of a contradictory document in places. Some of the examples given seem reasonably, dare I say, random to the point being put forward. What I would like to see is a much simpler statement restating, to the point made by my colleagues, what the statutory responsibilities of the Electoral Commission are and what it is there to do.
There is still this misunderstanding that the commission delivers elections. It does not. As I say, they are done by proxy. We need to make absolutely clear what areas are within PPERA and other statutory pieces of legislation, and then to restate, “These are the sorts of things that you need to concentrate on or be more transparent on in the work that you are doing as you go forward”. It is a simplification more than a ripping-apart of that document.
Dr Power: The simplification point is really well made. There are some elements of the statement that perhaps look a bit contradictory in terms. In particular from my position, in the statement of priorities, there is no mention of maintaining publicly available registers, which is one of the core functions that the Electoral Commission does, and does quite well. There are elements of it that could be delivered, but I suspect that is a legislative issue, not an Electoral Commission issue.
The lack of prioritisation within that list of priorities of maintaining publicly available registers is something that I would consider a core priority function of the Electoral Commission. Not least in some research that I have done, there are elements of those publicly available registers that could be improved. I suspect that it is a legislative issue rather than an Electoral Commission issue, but we know that, for example, the vast majority of advertising now is digital advertising. We have a digital imprint regime, but it is very hard, in the publicly available registers, to see how much of that advertising is digital. It is just classified as advertising. Whether there is a consideration of changing the categories given to the Electoral Commission is something that I would consider to be approaching a core priority function.
The publicly available registers and the transparency of the British electoral financing regime is something that is considered, comparatively, to be world-leading, effectively, but there are elements of it that need to catch up, so I would see that as an area for improvement.
There are other elements, as was suggested at the start, that invite loophole-seeking and legal challenge. The digital imprints regime and the wording specifically on that is one of them. Paragraph 13 says, “The commission should ensure that this guidance is clear, easily accessible and comprehensive”. It again says, “Clear and comprehensive”. When you get into specifics like that, you immediately open the challenge for somebody to say, “This was not clear and comprehensive to me”.
There are elements of the statement that could be tightened up to avoid open legal challenges. There are dangers here that, with this draft strategy and policy statement, what you are doing is, effectively, codifying certain areas of legislation, such that it then opens further avenues for legal challenge, such that we see what we consider, in certain areas, as strategic lawsuits against public participation.
That is not what we want with regard to this strategy and policy statement—to codify into law areas that can then be just opened up to legal challenge, either by malign political actors or just by people who think that they have been hard done to. You do not want a situation in which the Electoral Commission is consistently legally challenged, so it really needs to be tightened up to not open up those areas. We do not want to see, effectively, electoral SLAPPs implemented by a policy and strategy statement.
Professor Fisher: Beyond asking the Secretary of State whether there should be a document at all, and certainly not this one, I would suggest that it needs to be on a far stronger evidential base. There are claims in here that seem to be based on little more than gripes, as far as I can work out. It would also be important to stress that Parliament will work with the Electoral Commission to keep up with changes in the way that elections take place. The fact that we are introducing digital imprints only now is almost bizarre, given the way in which society has changed, and that can be done only through legislation.
It is also important to commit to resourcing the changes in elections that the Elections Act has brought in. As Peter says, electoral administrators deliver elections, but there are two aspects in particular. The wholly misguided extension of the franchise to people living overseas, and voter ID provisions, are very expensive and very difficult to administer. Those have been passed by Parliament, we have them, but we now need to resource them properly.
It seems to me that, if there is to be a statement, it should be a restatement of the importance of the commission. As Sam says, the way in which it conducts itself is celebrated by electoral administrators across the globe. It should also ensure that Parliament and Government are working with the Electoral Commission, not against it, which seems to be the tone of much of the statement.
Q17 Ian Byrne: I am going to stay with the statement and its purpose. What you have just outlined is hugely important, and it is going to be hugely important for the report as well. The explanatory note to the Elections Act 2022 provided no explanation of the purpose of the statement. A Minister has stated in parliamentary debate that its purpose is to improve accountability to Parliament, even though the statement is written by the Government, rather than Parliament, which is key, and concerns government priorities. Given the Speaker’s Committee’s existing oversight of the commission, and the status of the commission as an independent body, what is your understanding of the purpose of the statement?
Professor Fisher: Limited, to be honest. I recognise that the Elections Act stipulated that there should be greater accountability to Parliament. I have a fundamental issue with that, given that Members of Parliament are subject to regulation by the Electoral Commission. It seems to me as bizarre as making the Office for Students accountable to universities, which nobody would dream of suggesting. It is of limited purpose in and of itself, but there is an opportunity to, as I said, restate the importance of proper electoral oversight.
Let us not forget that, prior to 2001, elections were overseen badly and patchily by the Home Office. Since then, we have come on in leaps and bounds, so it would be important to restate that, but also to recognise that Parliament, Government and the Electoral Commission need to work together to try to keep the regulation up to date.
Q18 Ian Byrne: Does the statement undermine the work that has been done and the coming on in leaps and bounds?
Professor Fisher: It fails to recognise it with sufficient depth.
Dr Power: In terms of the purpose of the statement, it is hard to understand, with regard to the way that it is written, what the specific purpose of this statement is. It has set out some core priority functions, which broadly align with the changes that have been made with regard to the Elections Act and the specific legislation that has come in because of that. What is the statement here for? It is hard to see from this statement exactly what that is, but it is here and it is now a legislative instrument. What Justin says is important in terms of how we can, within a policy and strategy statement, make the best of it, let us say.
Exactly what Justin says is important here. Rather than impinge on the independence of the Electoral Commission too much in terms of setting out core priorities, what we might do is think about a way to write a policy statement such that it embeds a working relationship more fundamentally between the Electoral Commission and Parliament, rather than the Government setting priorities for the Electoral Commission.
We know those areas in terms of electoral law, which are moving quite fast now and which it is quite hard for legislation to keep up with. Online campaigning is the most obvious example here. The digital imprints regime is a new and welcome piece of legislation. We know that that is going to take work to get right. We know that there is going to need to be a working relationship between parliamentarians, people standing for election and electoral administrators in how best to administer that, and we know that there is probably going to need to be a bit of malleability around how that functions.
A policy and strategy statement could set out something like that. It could say, “We need to think about ways to work together to ensure that our elections are administered well”, rather than very clearly setting out priorities without any real guidance on how these will be resourced, or rather than setting out quite a random set of examples to outline this.
That is a way in which a strategy and policy statement could have a clear purpose, as opposed to the way that it is written at the moment—to embed the independence of the Electoral Commission and to think about a way of working together, rather than very clearly setting out a governmental and Electoral Commission relationship in which the independence of the Electoral Commission is impinged on.
Q19 Ian Byrne: Peter, are you confident that the statement is compatible with the operational independence of the commission?
Peter Stanyon: No, quite frankly, because of the priorities that are being set. Ironically, the priorities being set are in the areas that the commission is already doing very well in—around running national referendums and all the elements around guidance and provision of support to those who deliver the elections. In terms of the wording of the statement, we take a very narrow view on it. It is only restating what the commission already does for those who deliver the election side of things.
The areas where we know there is greater weakness will be around political party finance and the new bits coming in through the Elections Act, but, again, quite frankly, the digital imprints regime, for example, will not directly affect returning officers. They will be passing that on to others to investigate, because that is not part of the running of an election.
In terms of the statement for the areas where administrators, returning officers and registration officers will be involved, it is simply restating what the legislation says and what they already do. Whether we agree with the advice and guidance given out, or whether it should be more or less, is a debate between returning officers and the commission when they draw that out.
In that respect, it is positive—it says what it should be doing—but it is in areas where we do not have that expertise that it is pushing the commission to look at areas that may impinge on the areas where we need that guidance and advice, and it is hugely important that that independent advice is there as we move into the introduction of voter ID and the accessibility provisions in polling stations, and then move on to overseas elections and the like down the line.
Q20 Ian Byrne: Do you think that the commission will change as a result of the statement? Is there potential for the commission to become a political football after each election?
Peter Stanyon: My fear is that it will become—I would not like to say “less independent”; that is probably too strong. The commission will always be looking over its shoulder in terms of whether it has satisfied that part of the statement, compared also to what it is doing directly with the Speaker’s Committee on its five-year forward plan and things like that.
There is a fear that I would have as to whether the guidance and support that is being looked at will be narrowed down to almost say, “We need to look at this area specifically”—digital imprints, for example—but, at the same time, then taking its eye off the ball in another area, because of just making sure that it is applying the statement. I would hope that that is not the case, but that would be my fear on that basis.
Dr Power: There is a lot that we do not know about how the Electoral Commission will change. We do not know, for example, what sanctions are in place on the Electoral Commission if it is not seen to have abided by this statement. The biggest danger in what will change with regard to the Electoral Commission is public perceptions. It is precisely because this is a strategy and policy statement set out by the Government, then ratified by Parliament, and it goes back to this stakeholder issue.
In terms of whether it is fair or not, the real and, I would suggest, most likely danger is that that does not improve public perceptions of the decisions that are made, specifically when they are made against either parties or candidates that are not of the governing party. It is a little bit like when you were talking about a political football there. Let us talk about real football.
Ian Byrne: Let us not.
Dr Power: I am a Nottingham Forest fan, so I do not want to talk about it any more than you do. It is as if, every year, the team that won the Premier League set out a policy for the referees to follow. It might very well be that the referees are completely fair within the guidance, and it might well be that they do their job as well as they have ever done it, but every time a decision goes against the team playing Manchester City, the opposing team and the members of all the other opposing teams will cry foul, no matter what.
The real danger is with regard to public perceptions, I would suggest here. That is the problem with the policy and strategy statement and the way that it is set out in the stakeholder relationship. That is the biggest danger that I can see.
Ian Byrne: A potential public loss of confidence in the democratic process.
Dr Power: Precisely, a loss of confidence in the Electoral Commission and, by association, the democratic process itself.
Ian Byrne: That is a very good piece of evidence.
Professor Fisher: The Electoral Commission has been a political football ever since it was created. The last Labour Government, for example, introduced party-nominated commissioners, to much criticism, and it reflects something I was talking about earlier; in relative terms, the commission is new, and it is only for the last 21 years that political parties have found themselves subject to any kind of regulation. There is a bedding-in process, and it seems to me that both the decision to introduce party-nominated commissioners in the 2009 Act and this are examples of where, if we want the commission to work effectively, we should resist those kinds of things happening.
Q21 Ian Byrne: I just want to touch on one of the announcements from the Government highlighting the secrecy of the ballot inside polling stations and the practice of so-called family voting or community voting. Do you agree that this should be the commission’s highest priority? To what extent does the statement assist in tackling that issue? Importantly, what is the scale and how widespread is it?
Professor Fisher: Electoral fraud is much talked about and much less demonstrated. There are certainly examples of electoral fraud, and a lot of those have been as a result of the introduction of postal voting on demand rather than in polling stations. Any system must be on the lookout to try to prevent fraud happening, but all the evidence is that, whilst there is still fraud, and some fraud is always bad, it is nowhere near as much as the public and, indeed, some politicians perceive. It goes back to my point about the rather weak evidential base in the statement.
Q22 Ian Byrne: So this is throwing the baby out with the bathwater.
Professor Fisher: No, it is important to address fraud, but the implication in the statement is that the problem is far greater than the actuality.
Dr Power: It is hard to disagree with what Justin says there. The evidentiary basis for electoral fraud in the system is low. In terms of the fact that this becomes the highest priority of the Electoral Commission, as laid out in the statement, there is an element to which it is important in that one of the newest big pieces of legislation is with regard to voting ID. What you need is a good education campaign, such that people are not disenfranchised as a result of this legislative change. In that sense, it should be a priority of the Electoral Commission to make sure that people are aware of that legislative change.
In terms of focusing resources on electoral fraud, it seems to me to be a mismanagement of resources for the Electoral Commission, given that it is such a low issue. When the voter ID legislative change was put forward in the Elections Bill, lots of people were saying that it is a “sledgehammer to crack a nut”. I would suggest that, now that it is in law, that is a completely different area. Whilst we need to bring in some further education, resourcing is a problem.
My position is that it is a little bit like, when we have very low levels of Covid in the population, suddenly devoting loads of resources to effective track and trace and making sure everybody has to scan in in pubs. Of course, that is important when there are high levels of Covid. When there are low levels of Covid, it is a mismanagement of resources and it should not be a priority. This is the problem with electoral fraud. It is seen to be a huge issue, when all of the evidence suggests that, while electoral fraud is, of course, a problem, it is not a problem within the UK as a whole, so focusing loads of resources on it is a mismanagement.
Peter Stanyon: I was surprised to see that family voting was specifically mentioned in the statement. What is family voting? There has not yet been any clear definition given, and the evidential base is weak, to say the least. Certainly, we have had discussions on some of the evidence that has been given that we, quite frankly, are not supportive of. It is that the way polling stations work. Every single returning officer, electoral registration officer and electoral administrator does their utmost to present elections that are seen to be free from fraud. That is not to say that there is not fraud taking place. It is impossible to make that statement.
The particular example that has been given mentioned postal voting, which is open to that as well. Why has that not been mentioned? The key element on this is that it is almost like the commission has been set up to fail on this one, because all the commission can do is provide advice and guidance to returning officers to give to their volunteers in polling stations and to police a situation that may or may not be there. There have been some high-profile cases of actual and alleged fraud taking place in elections, and that has been addressed in each of those individual local authority areas.
The key point to this is trying to have one system that fits the whole of the UK, with the 650 parliamentary constituencies that will be administered, to exactly the same quality, in every one of the 10,000-plus polling stations in the UK, by volunteers. That is fine. Put it in the guidance, but, ultimately, you are then reliant on those individuals to deliver that. It is a very high-profile statement made in the statement itself, and a narrow area looked at. First, what does it mean? Secondly, in reality, how can the commission deliver on that, other than producing the guidance that is there to then be further delivered along the line?
Ian Byrne: Thanks, Peter. That is excellent evidence.
Q23 Andrew Lewer: In describing the evidential base for concerns over family or community voting as being weak or a low issue, is that due to investigations having taken place and finding very little of it, or is it just not enough, or not enough sufficiently robust, investigation into the issue?
Professor Fisher: It is a combination of those things, but if we look at the evidence that we have, what is very clear is that the highest perceptions of fraud are not predicted by the usual things but by geography. People’s perceptions of fraud tend to be higher in more urban areas, but, strangely enough, they are also higher where people lose. In our studies of electoral agents, for example, even once you control for the geography and so on and so forth, we find the highest perceptions of electoral fraud, which are quite low anyway, in places where their candidates have lost or in marginal seats.
All of that is to say, together with the prosecutions for things like impersonation and so on and so forth, the evidential base for there being the high level of fraud that is implied in the statement is very weak. That is not to say there are some unprosecuted or undetected cases. Of course there are, and there was the very famous case in Birmingham related to postal voting, but in terms of in-person voting, as far as I am aware, there is much less evidence than this statement would imply, although, of course, no system can guarantee that it has captured every case.
Q24 Andrew Lewer: Are you of the view that there ought to be more investigation into this, or just that the investigations that you have seen or heard of are sufficient to lead you to believe that it is not a serious issue?
Professor Fisher: If you were concerned about electoral fraud, you would pay most attention to postal voting.
Peter Stanyon: The issue with taking the family voting is specific. For that to be investigated, it would be required to be done at a polling station by somebody independent at that polling station, because there have been observers who have done that and made their reports on that basis. It comes back to what it means and what the risk is to the system. It is an almost impossible task for a returning officer to pick up, unless they pick up something patently fraudulent taking place in a polling station, because the whole process is continuing all the time.
That will get even more complicated with the need to administer voter ID and to do the postal vote handling and the like. There is a far more technically challenging process for those staff in polling stations to also keep an eye on that. That is their duty and their responsibility, but it is very difficult to give the evidence to back up whether there is a significant problem at this particular moment in time.
Q25 Bob Blackman: One of the concerns raised by this is that people who wish to commit voter fraud will go into a polling station and say that they are Mr Smith of 123 Acacia Avenue. They will be issued with a ballot paper. They later come back and say, “I am Mr Jones of 53 Acacia Avenue”, and they say, “I think you have been in before”. “No, here is my ID. I can prove that I have not been in before”. Of course, the first time through a polling station, it is almost impossible to stop.
One of the reasons why voter ID is being considered is to stop that. If you want to come to London boroughs and see it in operation, you can see it in operation in virtually every polling station throughout London. That is the serious nature, but it is very difficult to detect right now. I wonder if you have had evidence to that effect yourselves.
Professor Fisher: No, I have not. I do not staff polling stations. The Act introduces voter ID, which is, in part, to counteract this apparent problem. If it is introduced and it solves that issue, it seems to me that there is not a problem with that. I do not see how it requires a further statement in a strategy and policy statement. If the response to the perception of fraud, whether that perception is correct or incorrect in terms of the scale of that, is to introduce voter ID, the Election Act has legislated to introduce that. In that sense, the problem, such as it is, should diminish.
Dr Power: The strategy and policy statement, in my eyes, should focus on the fact that the Act has introduced voter ID. That now needs to be embedded such that the public are aware of that, and to mitigate the concerns raised during the passage of the Elections Bill about the kinds of populations that might not have access to voter ID but can legitimately vote, and the concerns that were raised about representation problems.
The focus in the current draft statement on anything else to do with electoral fraud, as I have already suggested, would be a mismanagement of resources, because, in theory, in terms of voter ID, that has been introduced and is there. If that is going to mitigate the problems, I do not see any clear reasoning for that to be a core priority function beyond, “This is new legislation and people now need to know about this new legislation and the requirements that they now need to meet to vote”.
Peter Stanyon: My background prior to joining the AEA was working in a London borough, so I know exactly the scenarios that you are mentioning. Fundamentally, the AEA’s members are not against voter ID. We have our concerns about the speed of delivery in terms of making sure that we avoid the unintended consequences.
In terms of what the statement says, it is absolutely right that the commission should be providing the statutory guidance to ensure that, first, the staff know what they are doing and, secondly, it is delivered equably across the whole of the UK.
One of the concerns, going back to the earlier question with regard to the changed priorities, is that we have to be very careful. Regardless of the change coming—and this is referred to in the statement here—there is still an election to be run. We had the same debates a couple of years ago when we were running the Covid elections, as they were known. You almost forgot about the election and concentrated totally on the need to have the social distancing and the like that was in place at that time.
One of the real challenges that the statement lays out, but the commission will need to address as a result of that, is making it absolutely clear that, “These are the new bits and this is what we recommend you do”, and good practice will develop as it goes through, alongside the other changes coming, but do not forget about the core bits of the election, which are to deliver a safe, secure, fair ballot the results of which can be trusted at the end of the day.
Q26 Florence Eshalomi: Good morning. Apologies for lateness. I am Florence Eshalomi, Member for Vauxhall. You have touched on some of the issues around litigation and legal challenges in some of the earlier comments. You may recall in the letter that the former Minister, Kemi Badenoch, set out that the normal grounds for judicial review will apply to the statement. To what extent will a document of this type set out legislation and leave the commission open to additional avenues of legal challenge?
Professor Fisher: In a number of ways, by introducing priorities against which somebody could call for a review. This is largely through paragraphs 16 to 18. It strikes me that those could be highlighted in a number of cases that would make the commission’s work very difficult to achieve. It opens up an avenue for a great deal of legal challenge.
If the purpose of the commission, of a statement such as this and of any electoral law is to enhance confidence in the electoral process, death by judicial review is not a strong recipe for public confidence in the electoral process. They will want to see wrongdoing punished and not a whole series of appeals on technicalities, where the wrongdoing is clear for all to see. There has to be due process, but you will not enhance confidence by introducing lawyers into the democratic process.
Q27 Florence Eshalomi: You said earlier that in a sense there was a political football with the Electoral Commission, and I know that Sam also said we could see a case where this is consistently challenged. Is there a circumstance in which the commission could depart from the provisions in the statement? Again, could that be open to legal risk?
Professor Fisher: Could you give me an example?
Q28 Florence Eshalomi: There could be legal risk following the provisions that may be in conflict with the commission and how it carries out its functions.
Professor Fisher: Introducing a set of priorities such as public interest, impartiality and value for money strikes me as fundamentally opening the door for people to challenge any executive decisions on those grounds, because it is always difficult to justify an investigation that may cost a lot of money for due process to occur. This is not an argument for the Electoral Commission to be high-handed and not follow due process, but there is a process in place now. We do not want to introduce a whole range of rather vague and spurious, in places, considerations that would allow people to challenge every decision the commission made.
Dr Power: As I have already said, there are certainly elements in the way that the policy and strategy statement have been worded that open up avenues for legal challenge. In term of the two specific examples I made, around digital imprints and genuine mistakes and the language around “clear and proportionate”, it seems to open challenge to anyone to say, “This is not clear and proportionate. I did my very best to follow the digital imprints regime”.
Again, as Justin said, death by legal review could be a problem. In terms of the setting out of clear priorities when we know that the Electoral Commission has other priority functions that are not listed here, presumably that would again open up legal challenge for anyone who was then sanctioned under a non-priority function to say, “Is this good value for money? Is this a genuine priority function of the Electoral Commission?” such that you get, as Justin says, death by legal review or, as I have already said, effectively electoral SLAPPs, where you have all these lawsuits that are taking up the majority of time of the Electoral Commission, such that it cannot carry out any other function. It is an unknown unknown, but it is a genuine danger.
Q29 Florence Eshalomi: Obviously there are cost implications to that as well.
Dr Power: Yes, One of the things we know about effective electoral commissions and effective electoral oversight is that they need to be well resourced. We know that commissions or however you do it need to be independent. We know that they need to be well resourced. If they are spending all their resources on legal challenges, that means they cannot do their other jobs as well.
Peter Stanyon: My experience of the way the commission operates is that it only takes decisions after it has looked at it from every angle. If that happened to be, under the contrary law, controversial against what is said in the statement itself, I would expect that to have been something that is defendable.
I absolutely agree with my colleagues in terms of death by a thousand legal challenges. My concern, as much as anything, is that it is not solely the commission in the hot seat here. It would also be those who deliver the elections by proxy—using the word again—who are trying to ensure the elections are seen as being free from challenge and fraud.
Q30 Florence Eshalomi: In several places the statement restates the current law as it stands. Do you think that serves a purpose, or is it again just a case of being a risk-averse policy?
Professor Fisher: It could serve a purpose if the Government wish to reaffirm their commitment to independent oversight of elections.
Peter Stanyon: It is helpful in terms of saying, “This is the basis and the legal framework on which the Electoral Commission currently works”. It makes absolutely clear what its role is within the sector.
Dr Power: Yes, it is useful to restate the law in places as long as you restate it exactly correctly, as written, and are 100% certain that that is the sole purpose it is serving, such that it does not overly complicate things.
Q31 Bob Blackman: Moving on to the consultation process, taking the example of Ofwat, which in its consultation set out the terms but also what the Government were intending and what the Government wanted Ofwat to do, what do you think of the consultation process being conducted by the Electoral Commission?
Professor Fisher: I have no particular view on that, and I am not familiar with the Ofwat case.
Dr Power: I am less familiar with the Ofwat case and I do not know how that consultation has run compared to the Ofwat case. I have looked at the Ofwat strategy and policy statement as compared to the Electoral Commission strategy and policy statement, and they are completely different in the way that they are set out.
Q32 Bob Blackman: I was using that as an example of how one consultation has been conducted compared to another.
Dr Power: My position with the Ofwat statement is that it is very clear about the priorities as they are set out. You might look at the Ofwat statement as a guide, but I suspect the reason why it has not been written in the way the Ofwat statement has is because of a genuine concern that the one thing that we do not want this strategy and policy statement to do is impinge on the independence of the Electoral Commission. In terms of the way the Ofwat statement was written and that just being transposed over to the Electoral Commission, it is very prescriptive and it is quite clear in its guidance. I suspect it is not a one-for-one comparison in those terms.
Peter Stanyon: Due to the importance of the commission to the whole of the delivery of elections, I believe every single stakeholder who will be impinged and influenced by this is not just to do with Government; it is to do with Parliament, it is to do with the devolved Governments and it is to do with the other stakeholders in the sector, to ensure that statement, however it is finalised, is something that provides something positive to which the commission can actually work in continuing to assist in the delivery of safe elections.
Q33 Mary Robinson: The response from the devolved Administrations has been lukewarm, to say the least, to this. Does the statement contain anything that may adversely impact on the commission’s ability to carry out its devolved functions?
Peter Stanyon: There are so many challenges in the electoral world now with devolution. Scotland has been slightly further down the path than Wales, but Wales has just issued its consultation paper on reform, which is quite wide-ranging. In many respects, the task faced by the English, if we can put it that way, Electoral Commission is fundamentally different to that faced by the Welsh and the Scottish. It would be helpful in the statement to make sure that the same standards of probity, transparency, etc, are there in that decision-making, but the challenges that are being faced are fundamentally different. At the same time, in terms of the lessons that are being learned from the change agenda that is being looked at in both of those nations, it would be helpful to come back into the UK Parliament to consider whether they are useful for UK-wide, rather than just in England, Scotland and Wales, etc.
Q34 Mary Robinson: Some of these comments are about undermining trust and the whole democratic process being undermined. Is that right?
Professor Fisher: It is important to stress that the lowest level of perception of electoral fraud has consistently been in Scotland. Scotland can rightly be proud of its democratic probity, so anything that might threaten the high levels of trust in the system there, I suspect, would court disapproval.
As Peter says, there is a real balancing act here. The commission is a UK-wide body, but it has specific offices in each of the devolved nations. We need to be mindful of the particular circumstances in any one of those countries. Is it a particular problem? I do not necessarily sense that any more than it is a particular problem on a UK-wide basis.
Dr Power: We can go back to language a little bit, because, as Peter and Justin have set out, the way the Electoral Commission is constitutionally set up with regard to devolved Administrations is complex. As Peter suggests, Scotland is slightly further ahead.
Within the specific elements of the policy and strategy statement where it discusses devolved Administrations, it uses the term “equally”; it must act equally. We know that the UK Electoral Commission, in terms of the way it is set out, does not act equally. There are certain powers it has and does not have in Scotland; there are certain powers in other devolved Administrations that it has and does not have. If you say the Electoral Commission must act equally with regard to devolved Administrations, this is another area, as we have spoken about, that needlessly opens up legal challenges. Somebody can say, “You have not acted equally in England as you have in Wales, as you have in Scotland”, where the Electoral Commission might not be able to in certain areas of this.
Although I understand the sentiment behind having equal regard to all the regions, it needs to be backed up with what is written in the legislation. That is an area where I would perhaps have a look again at specifically what the UK Electoral Commission can do in terms of what is written in the legislation with regard to the UK and its devolved Administrations.
Q35 Andrew Lewer: In terms of the Department, DLUHC now—this is why this has come to our Select Committee—to what extent do you believe that the statement directs the Electoral Commission in how it undertakes its functions, please?
Peter Stanyon: It directs to areas, with the examples that are given, that allow currently for that difference in terms of how things might be approached. There is a degree of uncertainty on that. In terms of the specific direction, there is little in terms of, “You shall do this”. It is, “You must have regard to the statement” and “You should be looking at these particular areas”.
If there is a need to direct to specific areas, the legislation needs to be very specific. In terms of just saying “guidance”, the point was made by Sam about high-quality guidance, for example. That is a semantic in terms of language. How will that be governed?
We are talking about quite wide areas. If there are specific areas of concern, it really comes down to, either within the statement or within the supportive work that goes on to support that statement afterwards, where the major areas of concern are that DLUHC officials feel need to be addressed as the electoral reform programme carries forward.
Dr Power: As Peter suggests, it is unclear, beyond the fact that this is under DLUHC’s purview, what the role is and, in terms of the Electoral Commission, how success is measured, let us say. In terms of this policy and strategy statement there is no guidance. It says, “These are your priorities and this is what you should be doing”, but there is no suggestion of how that is measured; there is no suggestion of what happens if the Electoral Commission is seen not to have adhered to these slightly unclear measures.
There is no guidance for you or the Electoral Commission on what success looks like and what adherence looks like, beyond the idea that the Electoral Commission must have regard to a certain set of priorities. That is not all that helpful for you or the Electoral Commission.
Professor Fisher: Parts of the statement seem to be written in a vacuum. For example, paragraph 8 says that the commission should support the Government’s delivery of the Elections Act. It is required to do that anyway by existing legislation. Paragraph 22 refers to active work with those who are engaged in politics to ensure that there is full understanding. In fact, if we were to point to one of the major successes of the commission, it is precisely that process that has been so successful in its work and has been recognised by people at the forefront of elections. In and of itself, in places it restates what the commission is already obliged to do or is already doing as though it is not doing those things already, which strikes me as being very unhelpful in terms of a policy statement.
As many others have said, the statement of priorities in respect of a particular Act is somewhat perverse, as is the introduction of different priorities that, following on from an earlier question, could open the commission up to considerations about judicial challenge.
Q36 Andrew Lewer: Building on what you have just said, Justin, does the fact that the statement says the Electoral Commission should be doing something provide any opportunity for the Department to take any action or enforce that? Would it be appropriate for them to do so anyway?
Professor Fisher: Going back to the points my colleagues have mentioned, there is no indication of what not doing it looks like. That is particularly important if the Department that ultimately ends up looking after this is to enforce it in any way, whether it is this Department or another one.
In answer to your question, there are lots of “should” things. My university might say, “You should be delivering good teaching”, which seems an obvious thing to say. What does good teaching look like and what action should be taken if someone is not delivering good teaching?
Dr Power: It is unclear, with regard to your question, within the statement. “Should” does not really mean anything. It does not suggest what “should not” is.
Q37 Andrew Lewer: If they took it upon themselves to do something about this, would that be appropriate in any case?
Dr Power: As Justin suggested, it does the majority of the things that are suggested in the strategy and policy statement, because that is its job. There is quite a lot of the statement that could just as well be written as, “You must continue doing your work as the Electoral Commission”, such that it is, quite frankly, unclear. It is doing this; if it is not prioritising things, what happens to the Electoral Commission if it does not do it? It is not clear. It is not clear why those priorities are there and it is not clear how you measure whether it has adhered to those priorities.
Do you just look at how much money it has spent on it? Do you look at how much time it has spent on it? Would it be welcome if that was the way this policy and strategy statement functioned? Probably not. It is completely unclear and there is so much of it that is just, “You must continue to do your work as an Electoral Commission”, which it does, as has been suggested, pretty well by a lot of metrics.
Q38 Andrew Lewer: Peter, statements as virtue signalling.
Peter Stanyon: The mechanism, as has been stated, is simply not there. Taking it from a slightly different angle, as a returning officer what I want to point to is completely independent advice. I have my legislation; I am responsible to law for that; I have to justify my actions. I must take into account commission guidance. If that commission guidance has been fettered, for want of a better word, by the Department that is responsible for elections saying, “You have not done this. We are now requiring you to do that”, I am not sure, as a returning officer, how comfortable I am sitting there in terms of the independence of the advice I am being given.
From that angle, a dangerous precedent would be set if a Government stepped in, without Parliament being involved at all, to actually say, “You shall do this. You shall do that. You shall do something else”, because that is directly affecting individuals who are casting their ballots.
Q39 Kate Hollern: Just following on from that, is there any evidence that there is concern from the Government that the commission is not doing what it should be doing? Why is there such an emphasis on “should”? Is there a concern that there is something the commission is not doing?
Peter Stanyon: In terms of the direct delivery of elections, no, I do not believe there is. DLUHC officials are very much involved in the consultation processes with the type of guidance the commission will put out. They do not just write the information and send it out the following day. It is open to scrutiny to ensure that what returning officers and registration officers are being advised to do, first, fits with the law and, secondly, is a sensible thing that can be delivered. From that particular aspect, no. Whether we agree with the advice is a different matter, but, in terms of the actual fact it is taking place and is actually happening, I would say no from that perspective.
Dr Power: My response to your question is, as I have suggested a few times today, that the Government are not the only stakeholder here. The Electoral Commission does not or should not exist at the behest of the Government. The Electoral Commission exists to help and aid in the delivery of free and fair elections. Because of that, it has lots of different stakeholders. By a lot of metrics, many of which are conducted by Justin, the Electoral Commission does that job well. It produces good guidance, as measured by electoral agents. It administers good elections, which are free and fair. In terms of the Electoral Commission and its relationship with a lot of stakeholders, the evidence suggests it does the job well.
Professor Fisher: The use of the word “should” in many places represents simply poor drafting, as a sort of wish list. It shields something I have mentioned before: deficiencies in the existing legislation. There is a deflection from where there are problems and where the law is in itself slightly unclear. We saw examples of that following the 2015 election. That is where there needs to be a tightening up, rather than passing the baton on to the commission to interpret and be challenged against what, in many cases, is poorly drafted legislation. There is a drafting problem more generally.
Q40 Kate Hollern: On that drafting problem, what changes would each of you actually make to the statement to improve it? You have obviously all raised some concerns at various levels.
Professor Fisher: Before it was redrafted, there would need to be a fundamental reflection on what its purpose is. As it stands, it seems to be a wish list based on some unsubstantiated gripes rather than a strategy statement. Going back to first principles would be important if the statement were to have any useful purpose.
Dr Power: My position would be to go through this statement, as Justin suggested. A lot of the things that are in this statement are legislative issues rather than Electoral Commission issues, so it would be about highlighting deficiencies in the legislation, removing them and thinking about ways to improve upon the legislation.
A lot of the evidence given to PACAC during the process of the Elections Bill was that no one is saying there are not issues here, but the answer to the problem is not a strategy and policy statement; it is one of simplifying electoral law, for example, or thinking of ways to tighten it up. It is about reflecting on that and then using a strategy and policy statement to outline very specifically what the Electoral Commission’s functions are and perhaps how it can better embed specific elements of change within the Elections Act itself. That is to do with education as opposed to anything else. For example, on voter ID it is now a requirement to have voter ID at elections by law. Therefore, there needs to be an education drive around that. In terms of the changes that have been made, educate around that.
Beyond that, any other addition to a strategy and policy statement would impinge on the Electoral Commission. What needs to be kept in mind at all times during the process of drafting and then enacting the policy and strategy statement is how we can set out this statement such that the independence of the Electoral Commission is kept as it is and that any impingement on that independence is mitigated as much as possible. That is what we know about good electoral oversight. We know that good electoral oversight is independent from the levers of government. We know that good electoral oversight is well resourced. We know that it needs some kind of enforcement and sanctioning function. Embed those principles as much as possible within the statement. Do not take away from those principles, because that is only going to damage the electoral process and, by association, perceptions of how well the electoral process runs amongst the public.
Peter Stanyon: I confess to reading the statement four or five times to understand some of what it says. I go back to the earlier point I made: it needs to be simplified. The point was made about whether we should restate the legislation. Yes, absolutely. This is what the commission is there for. In terms of the priorities that Government and then, through that, Parliament wish to make, absolutely lay them out.
Put simply, the statement, as far as I see it, should be a key document to which all stakeholders involved in the process can look to hold the commission to account; it is not just Government and Parliament in that respect. It is about being able to advise and provide what guidance it can do itself, but also for the commission to have something—a skeleton, for want of a better phrase—on which to hang what it already does in terms of the other statements it makes to the Speaker’s Committee, its forward plan, and what it does already in terms of the delivery on the items that have been identified in the statement specifically, such as guidance, for example. I would halve it, bullet-point it and make it far more simple, but I am a simple person.
Kate Hollern: That sounds a good idea. Take whole sections out and make it simple.
Q41 Chair: Is it clear who oversees whether the commission actually fulfils the requirements in the statement?
Peter Stanyon: I would say no. The current process is clearer because the annual report is made to the Speaker’s Committee. It is not totally clear to me. There is confusion in there. That would need to be stated very clearly.
Dr Power: It is always important to say no when the answer is no.
Professor Fisher: I agree.
Chair: That is something we might need to ask some questions about as a Committee.
Thank you all very much for coming this morning and giving us a lot of food for thought on what is a complicated issue. It is very important for our democracy, but also technically and legally complicated as well. It has been really helpful to the Committee to have that background understanding, and we will take that into account when we come to give our formal, final consideration of the statement. Thank you very much indeed. That brings us to the end of our public proceedings for today.