Levelling Up, Housing and Communities Committee
Oral evidence: Draft Strategy and Policy Statement for the Electoral Commission, HC 672
Wednesday 19 October 2022
Ordered by the House of Commons to be published on 19 October 2022.
Members present: Mr Clive Betts (Chair); Bob Blackman; Ian Byrne; Kate Hollern; Andrew Lewer; Mary Robinson; Mohammad Yasin.
Questions 42 - 113
Witnesses
I: John Pullinger CB, Chair, Electoral Commission; Shaun McNally, Chief Executive, Electoral Commission; and Craig Westwood, Director of Communications, Policy and Research, Electoral Commission.
II: Rt Hon. Andrew Stephenson MP, Parliamentary Under Secretary of State (Minister for Housing and Communities), Department for Levelling Up, Housing and Communities; and Becca Crosier, Deputy Director, Elections, Department for Levelling Up, Housing and Communities.
Witnesses: John Pullinger, Shaun McNally and Craig Westwood.
Q42 Chair: Welcome, everyone, to this morning’s session of the Levelling Up, Housing and Communities Committee. This morning we are looking at the draft strategy and policy statement for the Electoral Commission. The Electoral Commission is the body that oversees elections in this country, a very important function, and we are looking at a statement that the Government have produced on how the commission should perform its duties.
We will come over shortly to our first panel, representatives from the Electoral Commission, and then we will have the Minister.
To begin with, I will ask members of the Committee to put on record any interests they may have that are directly relevant to this matter. I am a vice president of the Local Government Association. I am also a member of the Speaker’s Committee on electoral issues, which is directly relevant to this matter. Going round the table:
Ian Byrne: I employ a councillor in my office.
Kate Hollern: I also employ a councillor in my office.
Mohammad Yasin: I am a member of the Bedford Town Deal Board.
Q43 Chair: We come over now to our witnesses today. John Pullinger, would you and your colleagues like to introduce yourselves?
John Pullinger: I am the Chair of the Electoral Commission.
Shaun McNally: I am the Chief Executive of the Electoral Commission.
Craig Westwood: I am the Director of Communications, Policy and Research at the Electoral Commission.
Q44 Chair: Thank you very much for coming here today. I am sure you will agree with us that this is an important issue that we need to explore. As a Select Committee, we are asked to look at these issues and write a report to inform members of the Speaker's Committee’s understanding of the situation.
Essentially, you do not believe, do you, that a statement should exist?
John Pullinger: No. The commission has urged the Government not to proceed with this policy and that continues to be our position. We hope that when the Government hear the responses to this consultation, they will decide not to lay a draft strategy and policy statement before Parliament.
Q45 Chair: Some might say that the priorities that the Government have laid down are entirely reasonable and sensible, and ask why the commission is resisting implementing them.
John Pullinger: I have been in this job for nearly 18 months now and I would characterise the relationship that the commission has with the Government as very good. I think it is mutually supportive, respectful and very effective. I hope, when you see the Minister and his team this morning, that they will confirm that. I think it works very well. We have a process here that I would be concerned to see put at risk.
If I may go on a little, the Government have consistently said to me and to Parliament during the passage of the Elections Act that they think that the independence of the Electoral Commission is important in sustaining public confidence in elections. It seems to me that if the Government do believe that, the best way to demonstrate it is to not proceed with the strategy and policy statement.
If, on the other hand, the Government do want to influence the work of the commission—and the Government’s press statement released when this consultation was launched is not very encouraging in that respect because it said the purpose of the strategy and policy statement was to tell the Electoral Commission what to do—if that really is the Government’s intention, I would echo the words of the Chair of the Committee on Standards in Public Life. “It may not immediately lead to disaster, but it is an extremely dangerous thing to do.”
In short, I think the existence of a strategy and policy statement will make the job of the Electoral Commission to ensure public confidence in elections is sustained—and we have wonderfully high levels of public confidence in elections in the UK—much harder. It will add complexity, confusion and legal risk, and it sits very uncomfortably with the Electoral Commission’s appropriate accountability, which is not to the Government, but is to this Parliament and the Parliaments of Wales and Scotland.
Q46 Chair: We will follow up with questions on some of those issues in due course.
The Government’s statement identified things that, by implication, they think the commission is not already doing, or is not doing sufficiently well or properly. Concerns have been raised about the guidance not always being clear and effective. The fact that the statement says you have to produce guidance that is clear and effective implies that you are not doing that. It is somewhat obliquely critical of your enforcement functions because issues such as family voting are being raised as concerns that are not being dealt with. How do you respond?
John Pullinger: I was fortunate in the moment that I was being appointed to this role because two parliamentary Committees were doing in-depth inquiries into the work of the Electoral Commission. The Public Administration and Constitutional Affairs Committee and the Committee on Standards in Public Life were looking at our work in detail and at how effective we were in conducting it. My reading of that evidence is that the vast bulk of the evidence was very supportive and complimentary about the commission’s work but there were some criticisms, including from the Conservative party. What I observed coming into the commission is that it was an organisation that was taking those concerns very seriously, recognising that it had not been as good as it should have been on some occasions—indeed, one court case was lost, with apologies very directly to the people involved for the difficulty that causes. But what I observe is that we have heard that evidence, we have listened carefully to it, and we have changed the way we do things.
If I may, Chair, as you mentioned specifically the question of electoral fraud, I will invite the chief executive to say a few words in a minute about that, but electoral fraud is a matter for the police rather than the Electoral Commission, and the commission does have a very important role to support those who do have responsibilities in this area.
I can just express my own commitment to doing everything that we possibly can to stamp out illegal practices that are affecting people’s fundamental rights, but if you would like Shaun McNally to say a few words specifically about that issue, he would be very happy, I am sure, to do so.
Shaun McNally: I am happy to do so, Chair.
I am now in my seventh month as chief executive at the Electoral Commission and have been bringing myself up to speed with the existing policies and approach. On voter fraud, we have been on record to say that anybody who attempts to interfere with somebody's right to vote independently or brings pressure to bear in a polling station is committing a criminal offence, and it is for the police to prosecute in those instances based on, and weighed upon, the evidence.
I have seen—this is the bit about guidance—that there is guidance for returning officers, EROs and electoral administrators in place. We produce a polling station handbook. We recently consulted on a revised framework for returning officers and that consultation period ended at the end of August. We will take into account any changes from the Elections Act and make some tweaks, but the intention is to lay that guidance before Parliament during December.
I would also go as far as to say that we do have a statutory enforcement policy. We work very closely with the National Police Chiefs Council and with the College of Policing, and do take steps through our campaigns to raise awareness.
Prior to joining the commission, I thought that people just turned up and they voted. I was not aware of the vast amount of work that goes on to prepare for polls, and the steps that the electoral community take and prepare to make sure elections run successfully. I wanted to go to Tower Hamlets to see for myself what had been put in place. In response to what had happened in previous polls, I found there had been a concerted response by the returning officers, putting additional polling staff into stations, there was an agreement with the police to ensure that there was a police officer stationed at each of the polling stations and that the signage was there and absolutely clear. We as a commission went to 104 of the 109 polling stations. I admit to seeing one instance of somebody attempting to go into the polling booth with a member of their family, but I am pleased to say that the polling staff intervened. Accredited volunteers also witnessed and observed some evidence of people attempting to go into the polling booth with others, but also commented that the polling staff were aware of what they needed to do and intervened.
There was a vibrant atmosphere at each of the polling stations and everybody was taking their opportunity to exercise their right to vote. Having seen what I have seen, I was bitterly disappointed to read in the press statement reference to woke sensibilities and the Electoral Commission turning a blind eye. Having come from a Government Department, I am pleased to say that work with the officials and with Ministers has been exemplary and compares with the best that I have seen from the other side of the fence. I think the statement misrepresents the effort and work that has been done. I accept that there are issues and voter ID will help with that.
Q47 Chair: Providing that it can be implemented in a timely and effective way.
Two points from me. Regarding the implication that your guidance is not clear in some way, have you had a single complaint from Government, from returning officers, or from political parties in the last 12 months that defined where the guidance is not clear?
John Pullinger: It is very hard for the guidance to be crystal clear in all cases because the law is so complex. When I sit down with volunteer campaigners, for example, I find they are finding it increasingly difficult and I think we need to hear that. We are continually refining our guidance to make it as clear as possible and people still do grumble about it, but I think Shaun McNally is right. Do you want to go on specifically about that?
Shaun McNally: We have worked very closely with returning officers and with Peter Stanyon at the Association of Electoral Administers, who have not expressed any concern.
Another element is that in 2019, after the polls, we did some research on the guidance and there was a 75% satisfaction rating, saying that it was clear, concise and could be understood.
We have done more and we all recognise that it is not just a case of enforcement; it is about working with campaigners and administrators to support them to work towards compliance.
No express reference has been made to me about the quality or otherwise of the guidance.
Q48 Chair: Among the core priorities you have been given certain things that you need to focus on. If you focus extra effort on them, which you should be doing, will it mean that other things will not get as much time?
John Pullinger: The commission has a published plan that it has developed by taking on board the position of the Government, other parties, campaigners more generally, electoral administrators and feedback from voters. It gives a balanced perspective on the work we need to do. It has been scrutinised and considered by the Speaker's Committee, costed and approved with a financial framework attached.
If we were instead to follow the priorities that the Government have set out in the draft strategy and policy statement, three consequences would probably follow.
The first is the general one of having priorities that are the Government's priorities, rather than the wider community's priorities, and the consequences that might have on the confidence of voters and campaigners because it is giving the incumbent Government an opportunity to set the priorities rather than the broader community. That is what we need most to worry about.
Specifically, the priorities the Government set out in the document say very little about the work that Shaun McNally has mentioned with electoral administrators to support them to be resilient in the face of some immense challenges in relation to finance and the willingness of staff to come forward to support polling stations and—we have had a brief conversation about voter ID—to support staff to be able to implement effectively this and other policies coming from the Elections Act.
The final area where I think we would lose out if we just used the Government’s priorities is that there is very little in the draft strategy and policy statement that is forward looking—that thinks about how we prepare ourselves for things coming down the track. I have mentioned the complexity of electoral law and I think the commission has a particular role to play in supporting all parties in thinking about future electoral reforms that would make things easier for voters, campaigners and others.
Beyond that, changes to the external environment from the world of data technology and social media are changing the way in which politics are working. The Electoral Commission is the one independent and impartial place where we can conduct research on that, share it with parliamentarians and start developing an agenda for the future. Craig Westwood is here to speak to you, because he is leading in that area, but otherwise, I am happy to move on.
Chair: Briefly, Mr Westwood, because we need to move on to the next questions.
Craig Westwood: John Pullinger has been referring to the important responsibilities we have within our legislation to keep electoral law under review and I think that works in tandem with our important responsibility to advise Governments and parliamentarians about how existing law can be taken forward in the best way but also how the law can be reformed.
A couple of examples would be the wholesale reform of electoral law to simplify and clarify it, which the Law Commissions have all recommended and which many support—we certainly support that and would like to see it brought forward—but also there are small, incremental measures that could be brought forward. We have made recommendations. An important one is to do with the use of public data to support better and more effective voter registration. This speaks to the tension that exists in your earlier question about the requirement within the statement to support the legitimate priorities of the Government. There is a point when things are in legislation and we have an important role in implementing them. Voter ID is a good, live example of that, where primary legislation has been passed and we are working very hard to make sure that we can support the successful delivery of that policy in the interests of voters. We supported the House during the consideration of that legislation with significant independent research and information to help you to understand the potential direction of that policy, so that you were able to take decisions about that legislation. A problem for us is where that word “support” begins and ends.
Chair: Okay. Let’s move on. We have talked about the potential conflict between the draft statement and your statutory responsibilities. Kate Hollern will explore that.
Q49 Kate Hollern: It was interesting to listen to the conflicts that you have already identified, but are there any potential legal consequences, including litigation, if the draft statement were to be approved in its current form?
John Pullinger: Yes, we believe there are, and I will invite Shaun McNally to give you some information about that.
Shaun McNally: Specifically, there is reference to enforcement and considerations that need to be given but we have a statutory enforcement policy, we have a responsibility to publish it and we have done that and it was consulted upon. We will consider each case based upon the evidence and the merits. There is also a slight misunderstanding within the statement because we do give advance notice of our findings and proposed sanctions and enable representations to be made.
Anything that gives an alternative set of language or point of reference gives rise to confusion and potential conflict, and raises the risk of and opportunity for legal challenges—I think in terms of three Cs there. I was reflecting upon this because I, having worked in the justice system, remember a very senior member of the now King’s Bench Division saying to me that if there is conflict, confusion and potential challenge, your point of reference is the law. The Political Parties, Elections and Referendums Act sets the law and the legal framework within which we operate, and that enforcement policy is clear, understood and published, and it applies to about 400 registered parties. So I think the reference to giving undue attention or giving extra attention to volunteers, who are important but also a mistake, ignores the fact that you have to base and look at each case on its merits.
Another issue is that there is a reference to the guidance being produced to a high standard. How do you measure or define “high standard”?
Q50 Kate Hollern: Any further comments on that?
Craig Westwood: I would like to expand on that and add that what the SPS does is to draw out particular criteria around enforcement and thereby gives them a different prominence from our enforcement policy. I have drawn out a few examples to support the Committee.
Some that are not mentioned, which we take into account and which the enforcement policy consulted on, are the seriousness of the offence, the harm that has been caused by the offence, the frequency of the offence and also the acceptance of responsibility. These are all important factors, and we include a long list of them in the enforcement policy, which are not mentioned within the SPS. What we worry about is that this sets up a potentially alternate set of criteria that are within statute, if the SPS is passed, which effectively creates the confusion that Shaun McNally illustrated for campaigners who are trying to comply with the law and also a potential route for legal challenge afterwards. Ultimately, what we are interested in here is confidence in the system of the campaigners and the public, who ultimately are the backstop for us.
Q51 Kate Hollern: You have just mentioned the danger of being taken to court more often. Could that leave the commission more risk averse to prevent being subject to legal action?
Craig Westwood: Effectively there is already a route for our findings to be challenged through the courts. We welcome that in the sense that we welcome scrutiny and are open to challenge although, as Shaun McNally has illustrated, we have processes built into the enforcement process for representations to be made before final findings are made. It is the creation of an alternate route to the courts if one has been exhausted and our question is whether that was the intention of the House in passing the legislation, and whether it really works in the best interests of a smooth and effective system and public confidence.
John Pullinger: If I might add to that, I am on record as saying that for as long as I am Chair at least, the commission will stand up for the important legal duties we have been given by Parliament and will act with integrity and make sure that we make the best decisions in the interests of the public. I am certainly going to make sure that we do not have this kind of chilling effect of not tackling issues as robustly as we should. If the SPS comes forward, and we may talk about that in a minute, we will need to take account of it but I put on record my personal determination and that of my colleagues and the commission to uphold the very important tasks that Parliament has entrusted to us.
Q52 Kate Hollern: Parliament rather than the Government?
John Pullinger: Absolutely, yes. Yes.
Q53 Kate Hollern: If the commission considered following a recommendation in the statement that was inconsistent with the proper exercise of its statutory functions, how would it resolve conflict?
John Pullinger: That is a very natural follow-up question. First, we will be guided by the law. We have some very clear statutory functions and we will do our utmost to uphold them.
If the draft statutory and policy statement is approved by both Houses, we will have to have regard for the words in that statement and we will have regard for them in the context of our statutory functions.
At the end of the day, when we have gone through that, there is a particular role for the Speaker’s Committee, but also this Committee and other Committees of the House to ask us to explain how we have done that and how we have reconciled the duty to have regard to the statement with the points that I have just made that we are here to uphold standards that ensure that public confidence in our electoral system is sustained.
Q54 Kate Hollern: Is there anything in the statement that in the commission’s view conflicts with the commission’s existing statutory enforcement policy? If so, what would the implications be?
John Pullinger: The short answer is yes. Shaun McNally has already given you some detail, but he may wish to add to that.
The key conflict is that the enforcement policy is a balanced policy that has taken into consideration a full range of factors that will ensure public confidence but also support compliance by political parties.
In contrast, the strategy and policy statement selects some of those so the approach is in conflict. One is a comprehensive approach designed to interpret what Parliament had in mind when it gave us these powers; it is a statutory policy that has been consulted on and approved, and we are accountable for it whereas this is a different set so, by definition, those ideas are in conflict.
Shaun McNally: I do wonder what problem the statement is attempting to fix, what added value is it giving, and whether it is giving rise to the potential for confusion or legal challenge, in which case it is not achieving the intended aim that is set out within a statutory enforcement policy. It may be for the Minister to ask why that has been alighted upon. The statutory enforcement policy has been consulted upon, given that we are working with campaigners and political parties and given that they are and have been satisfied and have not effectively challenged us. We have had the responsibility for enforcement since 2010 and hundreds of decisions have been taken during that period. We were challenged, and the Chair mentioned the instance where we were overturned by the courts, but given that it is transparent and given that the enforcement policy is there for people to see, I fail to see what the reference in the strategy and policy statement adds. I think it detracts.
Chair: Ian Byrne has a supplementary question.
Q55 Ian Byrne: A quick one. It is from a consistent who watched the evidence session, so it is reassuring to find out that we do have people watching the sessions. It is about what John Pullinger touched on before, about the slippery slope. I will read it out. Talking about the statement, she said, “Ian, do you fear that the statement may lead to the potential for what we have seen in the US with the sitting Administration casting doubt on a democratic vote and the potential here for the horrific scenes we have seen in Washington?” She said, “Can you imagine protesters being funnelled into Parliament after the next election?” and it was a real fear that it was undermining democracy. I know it is a strong thing, what I have said, but do you have similar fears?
John Pullinger: We will do our utmost to make sure such fears are not realised and the key test for us is a test of public confidence in elections. We track public confidence in elections and it is wonderfully high and that is a precious thing. Anything that creates a slippery slope or a concern about that, we should be very seriously worried about.
Chair: Bob Blackman is going to look now at the specific content of the statement.
Q56 Bob Blackman: And I apologise for missing the opening part of your answers.
I want to come straight to some specifics, if I may. What, if any, objection do you have to the position in relation to paragraph 16, which requires you to act with neutrality and impartiality?
John Pullinger: Setting aside the irony of the Government instructing us to be impartial, impartiality is absolutely the core of everything we do. It is well understood and clearly interpreted in all our actions.
I invite Craig Westwood to say more and give you some examples of why the wording in the statement causes some additional problems and confusion and does not add anything to the picture.
Craig Westwood: One of the key ways to demonstrate impartiality is always to follow the evidence in everything that we do. I can give you a couple of examples of that.
One would be in our report work either on policy issues or on the conduct of polls. After each set of elections, we produce a statutory report to the House—a public report—on how the poll has been run. To support that, we gather evidence from all participants, including the public, candidates and administrators, to understand how that has gone. That is so that we have a very clear picture of the current state of elections in this country and we then make strong recommendations about what we think needs to change. In the most recent post-poll reports, we highlighted a couple of things, particularly the resilience of the administration sector and the need to invest there to make sure that they can effectively deliver elections and also around the worrying rise of intimidation of candidates. We saw this in all the elections in May this year but most notably in Northern Ireland. It is an issue that we are very concerned about and indeed our board held a discussion in Northern Ireland earlier this week with candidates who told some very strong and moving testimony about their experiences. We need to be able to make those recommendations, based on evidence, strongly. I think we don’t make them neutrally. They are very important recommendations and we need to be free to communicate those things that we discover to members of this House and to others who are interested.
Another example is the issue of voter registration. I think we are very lucky that voter registration is not an issue that is heavily politicised in this country. Clearly elsewhere in the world, we see it become incredibly politicised, but one of the reasons we are in that lucky position is that at the centre of voter registration work, you have an independent organisation, accountable to Parliament, which takes decisions about all the public investment in voter registration activity on the basis of evidence. Again, we do detailed research that establishes which demographics within our communities are under-registered and can therefore target activity to try to raise voter registration levels, not just across the broad in the country but also in those target audiences to try to level-up representation. That is something we take very seriously. We do a lot of research on it to back up those conclusions so that parliamentarians and others can have confidence that we are making those decisions on the basis of an impartial assessment of the evidence.
Shaun McNally: In my short time in the commission, I have been in conversations and understand how much work needs to be done to give effect to policy once it has been implemented and laid before the House. In the lead-in for polls, the work starts six months ahead of the date of the poll. Training needs to be done, equipment needs to be procured and polling staff need to be recruited to support the work that is being done. We have been clear in laying out our concerns about the risks that have arisen as a consequence of the delay in laying the legislation around voter ID. We remain committed to working with electoral administrators and with officials, but we would not be fulfilling our responsibility if we did not outline to officials and Ministers the risks associated with effectively condensing the time for the rest of the system to adapt and implement what is a significant but important change.
Q57 Bob Blackman: I think I am getting a clue about the answer that is coming to the next bit, which is paragraph 23 of the statement which requires you to act for all parts of the UK equally. Do have any concerns with that particular issue?
John Pullinger: Again, yes, I am afraid. The commission has separate accountabilities to this Parliament and to the Parliaments in Scotland and Wales, and some very distinct responsibilities in relation to Northern Ireland, because the legislation and the electoral landscape is different. “Equal” is a very odd word to use in that respect because our relationship with the Scottish and Welsh Parliaments, for example, is backed up by a funding regime where they fund us directly to do work supporting the electoral system there. They are just different things and "equal" creates confusion that is not there.
Do you want to add anything to that, Craig?
Craig Westwood: Yes. I thought it might be helpful to illustrate this, talking about the work we do with voters to ensure that people understand how to participate in elections. Even just looking at the UK Parliament-funded aspects of our work, clearly all the work we undertake in England and Northern Ireland is funded by the UK Parliament, but also there are aspects in Wales—obviously the general election but also PCC elections taking place in Wales and in Scotland general elections. So already you are starting to get a very mixed picture. But even when you start looking at the detail within that, there are very different needs in different areas, which we need to respond to directly. In Northern Ireland, you now have a requirement for a digital registration number, which does not exist in any other part of the UK, in order to be able to get a postal and proxy vote. So I need to be able to respond to the needs of the people in Northern Ireland to communicate that. I should not need to have consideration about somehow responding equally, which gets in and muddles the decisions I take about how we support voters. Similarly on the voter ID policy that we have been talking about, in England that will apply for all elections once that has been taken through—we are expecting the secondary legislation in the coming weeks—but in Scotland and Wales, there will be very particular challenges because citizens in those countries will have to use ID in some elections but not others, so I need to take very different decisions about how we work with those audiences to make sure they understand that it is a quite different approach for them. Of course Northern Ireland already has voter ID, so it will not be an issue there.
The point I am making is that I want to be able to respond in the work that I am doing for voters to the needs of the voters without having this extra consideration of somehow addressing them equally acting as a kind of barrier and buffer between those decisions.
Q58 Bob Blackman: Are there any specific changes that you would like to see made to the code—additions, deletions or redrafting? I want to be quite specific on this because obviously we are going to produce a report at the end of this inquiry to make recommendations, so anything you can give us about recommendations will be helpful.
John Pullinger: I have to preface my remarks by saying the simplest and most obvious amendment is to not lay SPS. If the SPS is laid, I think two changes would be very important.
The first is up front for the statement to express the Government’s commitment to independence—so, something like, “Nothing in this statement should be taken to constrain the Electoral Commission in taking its decisions independently and impartially in line with the legal requirements upon it.” I think something like that would be very reassuring to voters and campaigners.
The second change is that as this conversation has illustrated, there is a lot of detail in the strategy and policy statement, and a lot of it goes into the operations of the commission—other strategy and policy statements for other regulators are at the level of strategy and policy—so for the statement to really focus on what are the Government’s priorities and strategies for elections. The current draft does not do that. The face of the Act says that it should just set out its policy and strategies. The draft tries to set out the detailed policy, strategy and operations for the commission. Those are two very different things. If the draft could just be amended to recast clarity of what the Government’s policy and strategy is, it would be less confusing and complicated. It would also be much more straightforward, the clearer it is, for us to demonstrate that we have had due regard to it in our decision making.
I hope that is helpful.
Q59 Bob Blackman: That is helpful. One final thing on specifics from me. One of the most difficult things to substantiate is personation at the ballot box. I illustrated that at the last evidence session: someone goes into a polling station, says, “I’m Mr Smith of 23 Acacia Avenue,” and then they will be issued with a vote, because they have said what their name is, and off they go. Later that same day, they come back and say, “I’m Mr Jones of 123 Acacia Avenue”, and the presiding officer might say, “I think you have been in before”. “Oh, no, here’s my ID. I can prove who I am.” The reality is that it is very difficult to substantiate personation. I can point to specific cases in my constituency from when I was first elected in 2010, where people were listed as having voted and they were actually in India at the time, so it was quite clear that that had gone on, but substantiating who did it was almost impossible.
How many complaints and how much evidence have you had about this specific issue? One of the reasons why I think voter ID is being introduced is to try to stop this particular abuse of the system.
John Pullinger: Absolutely, and certainly I have spoken to many Members of this House and councillors up and down the country who express exactly the same view as you. But remember that the organisation that first proposed we introduce voter ID was the Electoral Commission on the basis of international observers coming in and saying that one of the features of our system is that we do not have any check in that situation.
Specific cases that have been evidenced—Shaun McNally has mentioned Tower Hamlet and Eric Pickles’ review, I think, is an example that demonstrated that there is an issue in some places—but this also comes up in our polling of the public. That has been diminishing recently as it happens but significant numbers of people have expressed concerns about it and the intention of the voter ID policy is to deal with that. We have been very consistent in saying that, but our concern with the voter ID policy is, yes, we must deliver that security of the vote that an ID would achieve, but we must, in doing so, do it in a way that does not make the vote less accessible to people by putting off, or making it impossible for those who do not have photo ID, to be able to exercise their democratic right. There is a massive body of work to make sure that happens because the people who are registered to vote but do not have a current form of ID are in very specific communities and will need very targeted action to help them understand what they need to do so that they are not disenfranchised. That is a massive and difficult job. Craig Westwood will be leading our efforts to do it and, as Shaun McNally said, the fact that time is getting very short is concerning to us.
The third element of implementing this policy is that it is going to be extremely difficult for electoral administrators to do it properly. The role of presiding officers and polling station staff with electors is going to be fundamentally different when they are asking everybody turning up to the polling station to show their ID. I think there is going to be a huge hearts and minds job in local authorities to get staff who are trained, willing and able to do this, if they are anxious that somehow they are going to be turning people away who they know have a right to vote.
That is quite a long answer to your question. Yes, we do care about that, and that is why we have supported this policy, but we support this policy only on the basis that it must not diminish the accessibility of the vote and it must be something that can be implemented. Those three things have to go together for the prospect of success.
Q60 Chair: In terms of changes, would it be helpful if the wording in the statement, where it refers to your responsibilities and duties, was exactly the same as in the legislation?
John Pullinger: Yes.
Q61 Mohammad Yasin: How in practice will the commission demonstrate to the Speaker’s Committee that it has complied with the duty to have regard to the statement under section 13ZA of the 2000 Act? Are there any particular difficulties in doing so in respect of the statement in its current form?
John Pullinger: We will be available to the Speaker’s Committee to be challenged and scrutinised in whatever way it wishes—clearly we are at the disposal of the Committee as to how we do that—and also this Committee and others that might want to challenge us on it.
What we will be required to do if the strategy and policy statement is passed is to have regard to it in all our decision making and then be able to produce a report for the Committee so it can make a judgment as to whether we have done that successfully.
The second part of your question, about what would make that easier, the clearer and more straightforward the statement is, the easier it is to understand what we have to do and to create a coherent and thorough report on how well we have discharged our responsibilities.
Q62 Mohammad Yasin: Is there anything in the statement that in the Commission’s view conflicts with the Five-Year Corporate plan approved by the UK Parliament and the devolved Parliaments?
John Pullinger: Yes. The key conflict is the conflict of approach. The corporate plan sets out priorities for the commission on the basis of evidence that we have taken from a wide variety of people and organisations, including the Government. It has been scrutinised and costed and considered by the Speaker’s Committee and approved by Parliament and the Parliaments in Wales and Scotland. The conflict is that the strategy and policy statement says these are the priorities that the commission should follow and they are different from that so by definition they are in conflict with it.
Q63 Mohammad Yasin: In which area of the work does the commission work align well with the Government’s work and how effectively does the draft statement cover those areas? Are there any ways in which the statement might be improved in this respect?
John Pullinger: The irony is that there is a lot of alignment there. As I said right at the beginning, I have been very pleased to discover the working relationship between the commission and the Government is very strong and very positive, and I hope that the Minister and his team will confirm that. We are aligned. In terms of our work at the moment, the Elections Act became law and there is a huge amount of work to ensure that is implemented successfully in the interests of voters, candidates and administrators. The working relationship is very good and very well aligned. The risk of the strategy and policy statement is that it gets in the way of that. It cuts across organisations working together to deliver legislation that this House has approved. It is just odd, in my view, because there is a lot of alignment and our working together is very strong, but this approach does not fit very well at all with that philosophy.
Q64 Chair: Have you been given any information about who would be monitoring whether the statement is implemented appropriately by yourselves?
John Pullinger: My understanding is what is on the face of the Act: there are specific responsibilities placed upon the Speaker’s Committee to—
Chair: Back to the Speaker’s Committee?
John Pullinger: Yes.
Q65 Chair: Right. Is there anything else you want to add to the Committee this morning before we finish?
John Pullinger: No, thank you.
Chair: Thank you all very much for coming in and giving us some very detailed answers, some probing questions and important questions as well. Thank you very much.
Witnesses: Rt Hon. Andrew Stephenson MP and Becca Crosier.
Q66 Chair: Welcome, Minister. Welcome to Andrew Stephenson, who is the new Parliamentary Under Secretary of State at the Department. If you could introduce your official alongside you, that would be helpful as well.
Andrew Stephenson: Yes. I am delighted to be joined today by Becca Crosier, who is—forgive me, your full title again?
Becca Crosier: That is all right, Deputy Director for Elections.
Andrew Stephenson: Thank you.
Chair: Thank you very much for coming today. I think that we will probably be seeing more of you in other capacities within the Department in due course as well.
Andrew Stephenson: You will.
Q67 Chair: You are welcome to come and talk about the Government’s statement with regard to the Electoral Commission and its functions. I suppose the first question is: what is the problem that the statement is meant to solve?
Andrew Stephenson: As was discussed during the passage of the Elections Act, there have been concerns in the past, concerns that were highlighted by Lord Pickles’s report into electoral fraud. It is clear that the Electoral Commission needed to change and the existing system of oversight by the Speaker’s Committee did not provide as sufficient a check as some would want to see on the commission’s performance. The draft statement is there to empower Parliament to hold the Electoral Commission to account more effectively while respecting the commission’s operational independence. I think that it is important at the start for me to say that we are all in violent agreement that the Electoral Commission is very independent. We all wish it to remain very independent and I see nothing in the fact of us bringing forward this draft statement that undermines the operational independence of the Electoral Commission.
Q68 Chair: Why is the commission concerned that its independence is being interfered with?
Andrew Stephenson: I think that the Electoral Commission has been consistent in its views that it does not wish us to bring forward a statement. That was obviously discussed extensively during the passage of the Elections Act 2022, with lots of different views being heard. The Government made a number of concessions during the passage of the Act to ensure that any draft strategy and policy statement brought forward by the Government would be subject to a great deal of parliamentary scrutiny, including from this Committee but also from the Speaker’s Committee, and would be subject to change and revisions before the strategy and policy statement is implemented.
We are very keen to work with the Electoral Commission, to work with other stakeholders and to work with this Committee to ensure that we get the language right. We believe that the draft that you are scrutinising strikes the right balance but, of course, we will be very keen to listen to the recommendations made by this Committee and others to ensure that we have the balance right in bringing forward this statement.
Q69 Chair: You just referred to the role of the Speaker’s Committee, which in the end the Electoral Commission is accountable to. Does this statement change that line of accountability in any way?
Andrew Stephenson: It does not change, but it strengthens the role of the Speaker’s Committee on the Electoral Commission. Obviously, that is a Committee chaired by Mr Speaker himself and it is a politically balanced Committee. There is no Government majority on the Committee. The Committee under the Elections Act 2022 has an additional role of being able to look at the work of the commission and scrutinise the work of the commission in the light of the strategy and policy statement once it has been adopted.
Q70 Chair: Is it the job of the Speaker’s Committee to determine whether the Electoral Commission is following the statement properly?
Andrew Stephenson: That will be a matter for the Committee as to how it interprets its responsibilities. The Elections Act empowers it to use the strategy and policy statement as a basis for viewing the work of the Committee. It could decide to view this annually and publish reports. It could do an inquiry. That will be entirely a matter for the Speaker’s Committee as to how it wishes to exercise those powers, but the provisions that we are bringing forward under the Elections Act 2022 allow the Speaker’s Committee on the Electoral Commission that greater deal of oversight into the work of the commission and how the commission has had regard to what is in this statement.
Q71 Chair: But that job is purely for the Speaker’s Committee, it is not the job of the Department to monitor whether the statement has been implemented?
Andrew Stephenson: Correct.
Q72 Chair: It is the job of the Speaker’s Committee, therefore, to come to a view about whether the commission is dealing properly with any conflicts that might arise between the statement and the legislation?
Andrew Stephenson: Correct, and the Speaker’s Committee is one of the statutory consultees that are currently looking at the statement alongside this Committee and will be providing us feedback on it before we refine it and hope to adopt it.
Q73 Ian Byrne: The Electoral Commission’s functions are already set out in legislation passed by Parliament without any prioritisation. Why do you think the Government of the day should be able to determine which functions should be prioritised or deprioritised and will these priorities change every time there is a change of Government or, indeed, a change of Prime Minister?
Andrew Stephenson: I would agree with the evidence you have just heard from the Electoral Commission in that the point of reference for it must always be the law, and we see nothing in this statement that undermines its role in relation to the law. The law must always take precedence. Passed by this House, that will always be supreme. If there is a conflict, of course, we are quite clear that under the Elections Act 2022 the Electoral Commission must have regard to the guidance. It does not say that the guidance can in any way overrule statute. I think that conflicts are relatively easy to resolve as long as the Electoral Commission can justify, as it would in any decision at the moment, why it has decided to set aside one consideration in favour of something else.
Q74 Ian Byrne: Are the Government aware of the deep unease across Parliament and outside Parliament about the actual statement?
Andrew Stephenson: One of the reasons for this extensive period of consultation with both the statutory consultees but then with all parliamentarians is to get feedback on the statement. We are very keen to listen to that feedback and see if there is any language that needs changing or tightening up. There has been significant debate about what different words in the statement mean. We are keen to ensure that there is no ambiguity here.
Q75 Ian Byrne: Most people would be quite happy if the statement was completely erased from history.
Andrew Stephenson: Parliament debated this extensively during the passage of the Elections Act 2022 and Parliament agreed that the Government could introduce a statement. I think that what most people would be keen for us to do is to now ensure that that statement is something that provides good, solid, robust guidance to the Electoral Commission. As I say, in no way will it undermine the operational independence of the Electoral Commission or the Electoral Commission’s ability to deliver its statutory functions.
Q76 Ian Byrne: That is not coming across from the evidence that we have received. It really isn’t. People are very worried about the independence of the Electoral Commission remaining in statute. I spoke before about a constituent who was worried that this would begin the slippery slope to what we have seen across the water in the USA and the undermining of democracy by the President over there and the horrific scenes that we have seen. You do understand the importance of what we are talking about here, which is the public confidence in their vote, which at the moment is really high? Again, my question would be: why would we impinge that? Why would we endanger that? Why would we do something that potentially could undermine public confidence? At the moment, you know as well as I do that public confidence in politicians is pretty bloody low.
Andrew Stephenson: I would certainly agree with you on that point. What I would counter, though, is that if any of our constituents read the statement as drafted, which sets out the Government priorities to stamp out electoral fraud, to encourage people to vote, to help people with disabilities to vote, I do not think there is anything controversial in that statement. I think that is something that we could all violently agree on. I see nothing in the statement that would lead in any way to a slippery slope or anything like we have seen in other parts of the world. We all want to see robust confidence in our elections and, therefore, for me, stamping out voter fraud is one of the most important things we can do in order to ensure that we all have that shared confidence in our electoral system.
Q77 Ian Byrne: I will move on to overseas voting. In reference to paragraph 12, a Government priority is to widen the franchise to include more British overseas citizens and encourage them to vote, but other political parties may prefer the commission to use its resources to target other categories of potential voters. Why should the commission support the Government on such an issue and have the Government considered the risk that this poses to the commission’s independence and again to public confidence in the integrity of the democratic process?
Andrew Stephenson: The decision to ensure that all overseas voters would continue to have a right to vote in UK elections rather than losing that after a set period of time was a decision made by this Parliament and ratified under the Elections Act 2022. Therefore, that is a decision of this Parliament. That is now in statute and, therefore, it is one of the statutory obligations for the Electoral Commission to fulfil. In a similar way as Mr Blackman was asking before about the implementation of voter ID, photographic ID at polling stations has now also been introduced in that legislation. The Electoral Commission, even if we were not providing guidance, I think would see it as a very important commitment of theirs and a very important role to ensure that all the provisions of the Elections Act 2022 were being implemented.
Q78 Ian Byrne: Were other categories considered? Maybe young adults should be a higher priority to ensure turnout?
Andrew Stephenson: Certainly, I know that during the passage of the Elections Act many of these issues were discussed. My colleagues in both the Cabinet Office and this Department have many times debated votes at 16 and various other issues. I know that the Government keep these issues under review, but at the moment the Government have no plans to change the franchise or bring any other measures forward.
Q79 Ian Byrne: To finish, a witness in one of the previous sessions described the effect of the statement as allowing the winners to set the rules for the next election. What is your response to that description? Do you think that changing the rules would help the Government to win the next election or is it too late?
Andrew Stephenson: I would say respectfully that allowing the winners to set the rules is not an accurate reflection of where we are. The rules that govern our elections are set out in legislation and are, therefore, approved by Parliament. This statement purely sets out guidance and principles that the Electoral Commission must have regard to in discharging its functions. The duty to have regard to the statement will not replace or undermine the commission’s other statutory duties or give the Government new powers to direct the commission’s decision making.
Q80 Chair: Can I just pick up on the voter registration? Isn’t one of the things that distinguishes our electoral system and shows it in a pretty poor light compared to most other countries the extent to which voters who are entitled to register do not? You picked out the overseas voters here, but isn’t the real challenge the estimated 8 million people who could be registered who simply do not? Shouldn’t that be a major priority for the commission?
Andrew Stephenson: It is perfectly up to the Electoral Commission to say—they have a range of stakeholders and one of the main important stakeholders is Parliament and the public—that it wants to make that a real priority, increasing voter registration. You and I voted some years ago on the changes that moved from household registration to individual voter registration, something that was debated heavily at the time. At the time, again, ways of increasing and ensuring more people are on the electoral roll were debated and I think that we all view that as important, that as many people as possible are on the electoral roll and are enfranchised for elections.
Q81 Chair: The statement highlights the issue of overseas voters as a priority for registration. That implies that it is more important than getting other people registered who are not registered.
Andrew Stephenson: The statement reflects the fact that in the Elections Act 2022 there has been a change in this area and, therefore, it is important that the commission is working on its new obligations under statute. I think that is all that this is simply doing. It is not saying that this has to be its sole focus, it is just saying that a Government priority is the implementation of the Elections Act 2022.
Q82 Chair: You just used the words “Government priority”. Is that not back into this issue about whether this is a Government priority or a Parliament priority, whether it is a Speaker’s Committee priority or a party political priority?
Andrew Stephenson: Chair, I would say, of course, the fact that this was debated extensively and then passed by this Parliament in the Elections Act 2022 makes this a priority of this Parliament that this should be implemented. The draft statement is brought forward by the Government for consultation with Parliament, this Committee, the Speaker’s Committee and others, and we are keen for your feedback.
Q83 Chair: The overseas voters issue is a policy. Parliament has agreed. It is the law, but that does not mean to say that the Electoral Commission has to give that priority over registering other voters. This statement seems to imply that it does. Is that right?
Andrew Stephenson: This statement is guidance, which does not overrule any of the Electoral Commission's statutory obligations. One of the things that the Electoral Commission has always tried to do is to ensure the maximum number of people eligible to vote in UK elections are on the electoral register and that the electoral register is as accurate as possible.
Q84 Chair: The guidance should only be followed insofar as it is not in any way in conflict with the statutory requirements and obligations of the commission; they come first?
Andrew Stephenson: The duty is to have regard and that does not undermine the Electoral Commission’s operational independence to make its own decisions.
Chair: We will follow that particular issue up further, I am sure.
Q85 Kate Hollern: We were told that a potential outcome of the statement would be the Electoral Commission’s death by judicial review. What assessment has the Department made of the change in litigation as a result of the introduction of this statement in terms of cost and time and, following on from two previous speakers, the reputation and confidence in the system?
Andrew Stephenson: I am going to bring Becca in on this one, but I will start by saying that having been a Transport Minister over the past two and a half years, I know what it feels like to be killed by judicial review. I am sure that my Department was not JR’d as much as many other Government Departments.
I would say, top line, the Electoral Commission is already subject to judicial review. The chair and chief executive mentioned before some of the JRs they have had in the past, many of which they have, of course, successfully defended and been able to have dismissed because they do have robust decision-making processes already in place like any other public body has to be able to justify its decisions. We do not believe that by introducing this policy statement we are increasing the risk to the Electoral Commission of further judicial review.
Could I perhaps bring Becca in—I am not sure I have given her an opportunity to speak yet—to perhaps give some more background on our thinking in that area?
Becca Crosier: The Minister is absolutely right. The commission, like any other public body, is already amenable to judicial review and will continue to be so. The point here, I think, is that the duty here is to have regard to the statement. This will be one of a number of considerations that the commission takes into account in making decisions. It will, as we have said a few times now, continue to discharge its statutory duties. When it is operating in a more discretionary space, making choices about its actions, it will want to consider this alongside other responsibilities and other factors. There are a number of duties placed on public bodies.
We think that this is an acceptable and manageable duty to place on a public body—to have regard. It is not a very high hurdle. There is plenty of room to consider the duty and to say, “We have thought about that. We have thought about these other factors. Here is the decision we have made”. The franchise change is a very good example. When the commission is making decisions about how to use its communications budget, it will want to think about the expansion of the franchise and the fact that the statement highlights that as a recent change in the law. It will also want to think about its ongoing responsibilities to support communications to all voters and it will want to balance those. That is the nature of the duty we are placing on it. We think that is an acceptable and manageable duty on it and it does not inappropriately increase the risk to it.
Q86 Kate Hollern: The evidence suggests that there is real concern that it does, and the question was what measures you are taking to minimise that.
Andrew Stephenson: There is always concern from any public body about the risk of judicial review, and that is why all public bodies work hard to ensure that their policies and their decision making are robust. As I say, my limited knowledge of legal challenges against the Electoral Commission in recent years shows that it has been able to successfully defend against most legal challenges. The Chair made reference to one recently that it lost, but compared to many public bodies I think it has quite a good record of being able to justify its decisions. I think and I hope that it will continue in that vein, to make decisions that are very transparent and justifiable and, therefore, robust to legal challenge.
Q87 Kate Hollern: I am not sure that that answers the question, but we have to move on.
Some of the core priorities are powers such as the provision of guidance, whereas other commission functions not included as core priorities are duties such as party registration. What do the Government consider are the consequences, including potential litigation, if the commission is unable to undertake its non-core duties properly as a result of focusing more resources on these discretionary functions?
Andrew Stephenson: I do not believe that there is anything in the statement that will undermine the Electoral Commission for carrying out its core statutory duties, and the Electoral Commission will undoubtedly prioritise its core statutory duties above anything else. Of course, the way the statement is written it says that in its decision making it should have regard to this guidance being offered, but its core statutory duties will always come first. I see no conflict in what is being put forward in the guidance to it delivering its core statutory duties.
Q88 Kate Hollern: It may help if you explain what problem we are trying to solve with this statement.
Andrew Stephenson: This statement flows out of—I alluded to this before—Lord Pickles’, previously Sir Eric Pickles’, review of electoral fraud, which followed the mayoral election in Tower Hamlets in 2014 or 2015 being overturned.
Q89 Kate Hollern: Can I just stop you on that? On a Bill Committee, the councillor who raised concerns from Tower Hamlets had said that subsequently things had improved greatly and electoral fraud was a very small part. Obviously, we do not want to see any fraud, but are we taking a hammer to crack a nut here?
Andrew Stephenson: I don’t think so, and I would agree with that councillor. I think that things have improved significantly. I have seen the good work of the Electoral Commission in my constituency, where we had a pilot of voter ID in recent years. I think that the Electoral Commission has stepped up in this regard, but as parliamentarians, if we think of the one thing that most undermines public confidence in elections in this country, it is voter fraud or the perception of voter fraud. We all have an obligation to ensure that we are doing everything possible to keep public confidence in elections high. Therefore, again, I feel that there is nothing particularly controversial in the statement in saying that the Electoral Commission should see that as one of its real priorities in ensuring that we are all working together to eliminate voter fraud from wherever it comes.
Becca Crosier: I have spent quite a lot of time thinking about this strategy and policy statement over the last couple of years, and it is important to be clear as well on what it isn't. It is not a critique of what the Government think the Electoral Commission does not do or does badly. It would be inappropriate for the Government to express a view on the performance of the commission. What this is is a set of things that the Government think are important and valuable in this space and are currently pressing. That will evolve over time. The statement will be reviewed. It is not intended as a critique.
We were listening to John, Craig and Shaun give their evidence and we are pretty much all on the same page regarding what is important in this space. It was cheering in many ways. We talk to the commission very regularly. We know what it thinks is important, but to hear that set out so clearly and so effectively in public was brilliant. The Government and the commission are on sync on this. Therefore, what is in the statement should be relatively easy for it to have regard to, assuming it is endorsed by Parliament in the way set out in the law.
I do not think that this is about criticising the commission or saying that it is not doing a good job or that there are more things that it should be doing. This is what we think is important. This is what we would like it to have regard to. Hopefully, Parliament will agree with that as a set of priorities and things to think about, and if we are all on the same page as that, great. It is something for it to consider. Hopefully, it agrees with it, but it is important to be clear that we are not setting out to say that the commission is bad at this or that there is a whole set of things that it should be doing that it is not. We are trying to articulate a vision for what a great electoral system looks like and ask the commission to support the Government in that.
Q90 Kate Hollern: Several issues identified by the statement appear to require new legislation to resolve, such as addressing weakness in the current absent voting arrangements. The commission has no power to introduce new legislation. Why are such matters put in the statement and not put forward as legislative proposals by the Government? What benefit does having a statement have over alternatives such as parliamentary approval to change the law?
Andrew Stephenson: The Government keep electoral law under constant review, and I think that the previous Secretary of State is on record saying in front of the PACA Committee that we are keen to see electoral law updated and reviewed. Obviously, that is a massive job. We rely on the Electoral Commission and others to provide us with good advice and guidance, and again, as the Chairman said just moments ago, the Electoral Commission was one of the early advocates for voter ID, saying why that was a safeguard, which had been pointed out to it by international election observers and others and something that it provided evidence bases for. That was then debated by Parliament and agreed by Parliament and introduced under the Elections Act 2022.
The Electoral Commission has an important role to play here in advising and encouraging Government in things that it thinks would help it to deliver its statutory functions and help it to deliver free and fair elections across the entire UK.
Q91 Chair: Is there anything in this statement that requires the Electoral Commission to have regard to what is not already in its statutory responsibilities?
Andrew Stephenson: There is nothing in the statement that is in conflict with its statutory responsibilities.
Q92 Chair: Is there anything additional that it has to have regard to that is not already a statutory responsibility?
Andrew Stephenson: The statement asks it to have regard to the Government priorities, which are set out in the statement, but, of course, it is only “have regard to”. It does not overrule its statutory functions and its need to deliver its statutory functions.
Q93 Chair: What does it have to have regard to specifically that is not already its statutory responsibility?
Becca Crosier: There is a bit of a distinction here between the functions that the commission delivers and its wider discretionary powers. Everything that is in the statement the commission has the power to do. We are not asking it to do anything beyond its competence here. It will be delivering the clearly defined statutory functions that it has to do XYZ things, enforce the law. Where it has a wider discretion as to how to act under section 10 of the Political Parties, Elections and Referendums Act, there is an awful lot in there of things it could do, could be requested to do. When it is making decisions about how to deploy that quite broad set of abilities or powers, this will help it to decide where to direct its energies. There is a set of things that it does now that it will keep doing because that is its job, and there is a set of things that it has choices around. This will help it to shape how it makes those choices. Does that make sense?
Q94 Chair: Everything in the statement is something that it has a statutory responsibility to do, but what the statement is doing is saying, “When you decide which of your statutory responsibilities to carry out, you give creative weight to some rather than the other”?
Becca Crosier: It is more a distinction between the statutory duties and the statutory powers. The duties are the must-do's and then there are powers that are discretionary. What we are trying to help it to make decisions on is how it uses the powers, the coulds, not the musts.
Q95 Chair: By helping it to use the powers for those issues, you are, despite what was said before, suggesting that it uses less of its resources, because they are limited resources, to do other things that are within its power?
Andrew Stephenson: It will still be up to the commissioners and the senior management of the Electoral Commission to decide how they wish to spend their resources, which is, of course, scrutinised by the Speaker’s Committee on the Electoral Commission. What this guidance says is that they should have regard to this statement in the formulating of their policies on how they are going to spend their money, their time and their resources because all those things are limited.
Chair: We will move on to the specific content of the statement, Bob Blackman.
Q96 Bob Blackman: Thank you, Minister, and thank you for the answers that you have given us so far. I want to cover some specific issues, and you heard some of the questions that may be coming your way earlier. Obviously, all political parties and Members are subject to the requirement to comply with the regime. Why is it that you are suggesting or requiring the commission, particularly in paragraphs 14 and 20, to take specific action on enforcement actions?
Andrew Stephenson: I am just going to read the statement. All the priorities in the statement are a reflection of Government priorities. I think that we would all agree that transparency of elections is very important. I do not think that there is anything particularly controversial in paragraphs 14 or 15.
Bob Blackman: Fourteen and 20.
Andrew Stephenson: Oh, 14 and 20, okay. Just to clarify at the top, paragraph 20, which is about enforcement, is very clear under the Elections Act that the statement brought forward by the Government, this statement or any future statements by any future Governments, cannot impinge or affect any enforcement action or the enforcement action taken by the Electoral Commission because the Electoral Commission remains operationally independent in all that it does.
Q97 Bob Blackman: Do you not accept that by putting this specifically in this statement, this could undermine public confidence that this has not been the case already?
Andrew Stephenson: No, I don’t think so. If you go to paragraph 3, the Government are very clear in the part of paragraph 3 where it says, “This Statement does not seek to interfere with the governance of the Commission and the Commission remains operationally independent.” I think that is very clear in black and white in the statement. We all want to see the Electoral Commission acting independently, impartially, neutrally, describe it how you will, and it is very important that we put that statement—
Q98 Bob Blackman: That suggests that there is a belief that they were not. Is that the Government's view, that they were not acting independently?
Andrew Stephenson: No, it is not the job of the Government to scrutinise the Electoral Commission. That is the job of the Speaker’s Committee to scrutinise the Electoral Commission. What is included in the statement is not a reflection of where we think it has performed good, bad or indifferent in the past. This is simply setting out the Government’s priorities. It is not on the basis of where we think there may have been shortcomings in the Electoral Commission in the past.
Q99 Bob Blackman: If we look at some clear guidance that you are giving in paragraphs 4(a), 4(d), 5(a), 13 and 24, that carries an implication that the commission’s current guidance falls short of the required standard. If that is the Government’s view, where is the evidence for that?
Andrew Stephenson: That is not the Government’s view. There have been—
Bob Blackman: The Government’s view is that it is doing these things already, it is just setting these out in a different way; is that the position? I just want to be clear on this.
Andrew Stephenson: Yes, that is the position. The Chair of PACAC in a letter to me asked specifically why we are mentioning things in the statement that are already the law. This needs to be a statement that people can read and understand. I appreciate that some people have argued in front of this Committee in the last evidence session for simplification, but I feel that the statement needs to cover things that are already in the law in addition to things that the Government feel should be priority focuses for the Electoral Commission.
Q100 Bob Blackman: Paragraphs 16 to 25 in the statement appear to suggest that—well, I think that we would all accept that those are the standards we expect to be adhered to. Therefore, this suggests once again that the commission has not been doing what it should be doing. I just want to clarify what the Government position is on that.
Andrew Stephenson: Once again, I would say that you should not read anything in the statement as a criticism of the things that the Electoral Commission has done—
Bob Blackman: There is no suggestion that the commission has failed in its duty?
Andrew Stephenson: No.
Q101 Bob Blackman: Okay, fine. Paragraph 19 identifies the use of the section 10 advice and assistance power. Have there been any occasions in which the Government consider that the commission exercised that power, which was not in the public interest or was unjustified?
Andrew Stephenson: It is not for the Government to criticise the performance of the Electoral Commission. That is for the Speaker’s Committee on the Electoral Commission.
Q102 Bob Blackman: Except that the Government are issuing this guidance for a reason and obviously the impression given is that the Government have a view that it has not been doing what it should have been doing. I am glad that you are able to correct that impression, but I just want to make sure if there is any evidence of concern here that we should be aware of in terms of our report.
Andrew Stephenson: No, it is not for the Government to express a view on the performance of the Electoral Commission. I appreciate that up until December 2021 PACAC oversaw elections rather than this Committee, and I know that it has had seven oral evidence sessions hearing a range of stakeholder views about the performance of the Electoral Commission. There are many different stakeholders that the Electoral Commission seeks to satisfy. There are many different and diverse views out there. The Electoral Commission, though, is independent and is responsible to this House via the Speaker’s Committee on the Electoral Commission. It is not for the Government to criticise. I have had positive dealings with the Electoral Commission in my own constituency.
Q103 Bob Blackman: Finally from me, in paragraph 21, which relates to prosecuting powers and not taking forward prosecutions—I will not read the detail; you have it in front of you—why should it be the commission’s responsibility to publish decisions that are made by other bodies?
Andrew Stephenson: I think that it is important for transparency that where the commission has highlighted a problem that things are then kept up to date and that if you go online to look at something that the Electoral Commission has highlighted as a concern there is transparency about where those other investigating authorities have looked into a matter and it has been dismissed. I think that it is important. We all know that if an allegation is made, particularly relating to something like electoral fraud, that can have massive consequences for the party or the individual accused of that action. This is a fairly uncontroversial matter just to say that we need the Electoral Commission to keep things up to date and ensure that where it has announced that it is concerned about something, if another authority has then investigated that and found there to be no evidence, that should be included.
Q104 Bob Blackman: Should that not be the responsibility of that other body to say, “This has been reported to us and we have decided to take no further action” or whatever they have decided to do, rather than the commission, which presumably decided there was a problem, referred it on and then a decision is made, presumably by the Crown Prosecution Service or whatever, that no action would be taken?
Andrew Stephenson: It is important that everybody transparently communicates in this area because it is important that we know where very serious allegations can often be made and implications can be made just by investigations being—
Q105 Bob Blackman: Let’s be very clear on this, then. How should the Electoral Commission report such things? I cannot give an example, but if it has raised a concern and gone off to the prosecuting authorities, and they say it does not meet the evidence base or whatever the requirement is, how does the commission then report that? Does it say, “We had these concerns and other people have decided that they are not sufficient for action to be taken,” or is it forced, then, to say, “This has been dismissed”? Presumably, it is not the view of the Electoral Commission that there was not a problem because otherwise it would not refer it on in the first place.
Andrew Stephenson: The Electoral Commission’s investigations are a matter for the Electoral Commission alone and how it—
Bob Blackman: You are giving guidance to it.
Andrew Stephenson: We are giving guidance to it in terms of ensuring that there is better transparency and things are kept up to date, but how it implements this will be a matter for the Electoral Commission.
Becca Crosier: If I was going to paraphrase this in plain English, this bit says, “Please keep your website up to date”. Obviously, the decision on whether to proceed with a prosecution is for the police and the CPS further down the track. If they either take it forward or don’t and they let the Electoral Commission know what is going on, then we would just like the commission to keep that information up to date on its website so that people who are not looking at the CPS website but are looking at the EC version have the same information. It is as simple as that because, as the Minister rightly says, these are very high-impact matters for the individuals concerned. We would like to encourage the commission to think about that when it is dealing with comms around it.
Q106 Andrew Lewer: If it is considered that the Electoral Commission is not having regard for the statement, what enforcement action can be taken?
Andrew Stephenson: The Government do not oversee the performance of the Electoral Commission. Having regard to the statement will be looked at by the Speaker’s Committee on the Electoral Commission. It will be up to that Committee to decide at what level it wishes to scrutinise that, and if there are any sanctions on the Electoral Commission for not doing that, that will be a matter for the Speaker’s Committee and Mr Speaker himself.
Q107 Andrew Lewer: Why should the Speaker’s Committee and the Speaker take decisions about enforcing things that they did not create in the first place?
Andrew Stephenson: This House passed the Elections Act 2022, which allows the Secretary of State to introduce guidance. This was heavily debated during the passage of the Act, and the empowerment of the Speaker’s Committee to then review the level to which the Electoral Commission is or is not having regard to this guidance became part of the new powers under the Elections Act. Therefore, it is something that the Speaker’s Committee may wish to act on, considering it was voted on in this House, as this statement will be approved by this House. The draft statement is brought forward by the Government, but it goes through significant parliamentary scrutiny before it is adopted.
Q108 Andrew Lewer: Do you think that there are simpler ways to improve the Electoral Commission’s accountability to Parliament?
Andrew Stephenson: The balance currently of the Electoral Commission being accountable to Parliament via the Speaker’s Committee on the Electoral Commission, I think, strikes a good balance. The Speaker’s Committee on the Electoral Commission does not have a Government majority. It is, of course, chaired by Mr Speaker himself. I think that gives parliamentarians across the board hopefully a great deal of confidence that the Electoral Commission is not being scrutinised in any way by the Government or the ways that the usual channels can work in this place. The Speaker’s Committee on the Electoral Commission I think is a very robust and sensible way to provide oversight to an independent regulator.
Q109 Andrew Lewer: It seems like there is a lot of work and effort going on here to try to justify this statement, to try to come up with reasons why it does not really say what we think it says, what a large number of reasonable people have said they think it says, including people at the Electoral Commission themselves. Are you listening sufficiently to these objections in this Committee and other places to either drop this altogether or at least revise it significantly?
Andrew Stephenson: The Government policy is to introduce a statement. We have the powers to introduce a statement following the Elections Act of 2022. We are very keen to listen principally to the statutory consultees, one of which is this Committee, for your feedback. We are very keen to take that feedback on board and ensure that we get this right. It is in all our interests to get this right. In evidence to this Committee another independent regulator, Ofcom, has said that it has a similar statement from the Government and it does not feel that it has undermined the independence of Ofcom. In the last evidence session before this Committee, Dr Sam Power said that Ofcom’s policy statement was much more prescriptive. I see the draft strategy and policy statement in front of this Committee as a high-level, proportionate and necessary approach to ensuring that we work with the Electoral Commission to deliver on all its key priorities.
Q110 Andrew Lewer: But substantial revisions may still be possible?
Andrew Stephenson: We are very keen to listen to feedback from this Committee, from the Speaker’s Committee and from the Electoral Commission itself, but also from parliamentarians across the House, because it is in all our interests to have confidence in elections in this country. Therefore, we need to get this statement right and I am happy to give a commitment today to continue to work with this Committee to ensure that we get the language right going forward.
Q111 Chair: You mentioned Ofcom. Ofwat has been mentioned as well. Aren’t these bodies in the end regulators whose duty is ultimately to implement Government policy? The Electoral Commission is very different, isn’t it? Its independence means that it is not there to implement Government policy.
Andrew Stephenson: It is not there to implement Government policy. It is there to oversee the views of this House and the legislation passed by this House. That is one of the reasons why in comparison this policy statement is very high level compared to some of the other independent regulators that we have out there. I think that it is important that those other independent regulators have said on record that they do not feel that the policy statements they have have undermined their operational independence.
Q112 Chair: Going back to that point, the chair of the Electoral Commission said to us earlier, when we asked him what changes could be made that he would think would be helpful, his first change was to drop the statement, and we have explored that. A second was to have a statement right at the beginning of the statement that said, “Nothing in this statement undermines the ability of the Electoral Commission to independently come to views and take action on its statutory responsibilities”. Would you have any problem with a statement to that effect?
Andrew Stephenson: I have absolutely no problem with a statement like that. Personally, I feel that in paragraph 3 we have already summed that up. Just to put it on record again, in paragraph 3 it says, “This Statement does not seek to interfere with the governance of the Commission and the Commission remains operationally independent.” I think that is crucially important and that is the reason why it is included in the statement. If the Committee wishes to make recommendations that we should tighten that language up or make it even more explicit, I am more than happy to take that away and consider that with, of course, the feedback from the Electoral Commission and others if we need to move that even further up. However, I think that is already pretty clear there in paragraph 3.
Q113 Chair: The other issue is where the statement is giving guidance that the commission has to have regard to and that guidance is on matters where there is a statutory responsibility for the commission, one thing that has been said to us is that it is important that the language used in the statement is the same as the language used in statute. Otherwise you create the possibilities of challenges and judicial review. Would you be open to having a look at the wording to try to achieve that objective?
Andrew Stephenson: I am very happy to look at the wording. I would also be very clear, though, as I think that the chair and the chief executive both agreed, that the point of reference for them always has to be the law. It has to be statute. I completely agree with that. The Electoral Commission has to be guided principally by statute. It has to have regard to this guidance but that does not in any way overrule statute.
Chair: Thank you very much, Minister, for coming in and answering questions in such a detailed way on what clearly is, I think, an issue of very proper interest to everyone: the importance of the independence of the commission and the integrity of our electoral system. Thank you very much for coming, and to Becca as well for assisting you today. We will obviously reflect on everything that has been told to us and come up with some guidance that we send to the Speaker’s Committee. I think that is the process we go through.
Andrew Stephenson: Wonderful, thank you.
Chair: That brings us to the end of our public proceedings for today.