Written evidence from the Electoral Commission (TEC 08)

 

Public Administration and Constitutional Affairs Committee

The Work of the Electoral Commission

Overview

The Electoral Commission is the independent body which oversees elections and referendums and regulates political finance in the UK. We work to promote public confidence in the democratic process and ensure its integrity. In delivering our functions, our primary aim is to provide support to our stakeholders: the UK’s voters, electoral administrators, campaigners, governments and legislatures.

The Commission is accountable to the UK Parliament. We welcome this inquiry, and our submission aims to provide effective support to the Committee in its consideration, responding directly to each area of inquiry in turn.

We give an overview of many of the functions that we provide in fulfilling the remit set for us in law, and provide key fact and evidence based indicators and information on the work of the Commission: from our performance in driving voter registration to our record in enforcing Parliament’s rules on political finance; from the volume of enquiries handled from local authorities, to the levels of public confidence in the Commission and the results of our work. We also reflect on the international context.

Parliament gave us important statutory functions to keep electoral matters under review and to make recommendations about potential improvements. We have outlined for the Committee some areas where this work has already effected or supported change; key recommendations which governments may choose to adopt in the future; and our perspective on the considerations for future reform of the Commission itself. To support this, we have outlined the governance structures and processes that already exist to provide the oversight required by the UK Parliament.

Finally, we summarise our perspective on the challenges faced by the sector in delivering the scheduled elections in May 2021. Given their complexity and the ongoing impact of the pandemic, these polls bring into sharper focus the instrumental value of the Commission’s functions. We are working with the wider sector to ensure that elections can go ahead and be safe for voters, safe for campaigners and safe for administrators. We look forward to exploring this with the Committee in more detail.

In addition to this submission, we draw the Committee’s attention to three other documents to support its consideration as part of this Inquiry: the Commission’s most recent annual report, covering the financial year 2019/20; the Commission’s interim corporate plan, covering the period 2020-2025; and the Short Guide to the Electoral Commission, published this year by the National Audit Office.

1.              The effectiveness of the Electoral Commission in discharging its statutory obligations

The Commission’s functions

  1. The Electoral Commission was established in 2000 as an independent body by the Political Parties, Elections and Referendums Act (PPERA). The UK Parliament legislated to give it a range of important statutory functions to support electoral administration, regulate political finance and inform the public. These have been amended over time, and the Scottish Parliament and Senedd Cymru have begun to legislate in these areas, reflecting devolution from the UK Parliament. From April 2021, the Commission will also be funded by and accountable directly to these parliaments for our functions in relation to devolved elections.

 

  1. In delivering our functions, the Commission’s primary aim is to use our expertise through offering advice, clear guidance and standards, and regulatory action to provide support to its stakeholders: the UK’s voters, electoral administrators, campaigners, governments and legislatures:

 

  1. This non-exhaustive list illustrates how we deliver the functions given to us by the UK’s Parliaments. We do so across a wide range of elections and referendums. For May 2021, for example, our work will support scheduled elections for the Scottish Parliament and the Senedd; for Police and Crime Commissioners in England and Wales; for the Mayor of London and members of the London Assembly; for Combined Authority Mayors in some parts of England; and for local government elections across many areas of England, including some directly-elected mayors and parish council elections.

Changes made to the Commission’s functions since 2000

  1. The Commission was set up by Parliament in 2000 with the functions and responsibilities of an independent electoral body, as originally recommended in 1998 by the Committee on Standards in Public Life (CSPL) in its report The Funding of Political Parties in the United Kingdom:

 

“The extensive changes we propose have convinced us of the need for a totally independent and authoritative Election Commission with widespread executive and investigative powers, and the right to bring cases before an election court for judgment. As well as undertaking the administrative and enforcement work needed in connection with the day-to-day regulation of our detailed recommendations, we envisage the Commission taking over responsibility for the registration of political parties and, in conjunction with the existing network of returning officers, having broad oversight of the conduct of elections. Criminal prosecutions would be in the hands of the Director of Public Prosecutions.

 

We also believe that the political scene and technological innovations in the media are changing so fast that it is vital to our democracy that there is a body, outside government, which can advise and comment on how the rules should develop to meet the changed circumstances. That body should, we believe, be the Election Commission.”

 

  1. The Commission’s core statutory remit has remained largely unchanged since 2000, although the UK’s parliaments have subsequently legislated to give us some additional functions. For example, in response to recommendations made by CSPL in its eleventh report on the Electoral Commission, the UK Parliament legislated to strengthen our regulatory responsibilities from a general function of monitoring compliance to a duty to monitor and take all reasonable steps to secure compliance with the controls set out in PPERA. The same legislation also gave us a wider range of powers to deliver this role.

 

  1. As a result, we have for more than a decade had and used powers to issue civil sanctions for certain offences and contraventions of political finance law. We can investigate, obtain evidence, determine offences or contraventions, issue monetary penalties of up to £20,000, or seek undertakings or compel parties and campaigners to improve their compliance processes. These civil sanctioning powers exist alongside criminal sanctions enforced by the police through the court system, and have allowed us to adopt a flexible and proportionate approach to ensuring compliance with the law.

 

  1. Some functions originally specified in PPERA have not continued as part of our remit. In 2009, provisions were repealed relating to conducting electoral boundary reviews. This implemented recommendations made by CSPL in 2007 to ensure a focus on the Commission’s core duties as a regulator.

The effectiveness of the Commission

  1. It is for others not least voters and key electoral stakeholders to have views on the effectiveness of the Commission. To assist that, this section provides some fact and evidence based indicators and information on the work of the Commission.

 

  1. The last five years have been one of the busiest periods in recent electoral history; there have been five UK-wide polls in five years, elections for each of the UK’s devolved legislatures (two in Northern Ireland) and the ongoing cycle of local government and other elections. This has included a number of unscheduled polls which have required effective contingency planning and swift response to support all stakeholders and ensure successful delivery.

 

  1. Our research shows that there are consistently high levels of public confidence that elections and referendums in the UK are well-run. After the 2019 UK general election, more than two in three people (69% of voters and non-voters) said they were either very or fairly confident the election was well-run (12% said they didn’t know). This is to the credit of the sector as a whole; but the Commission has a core role in enabling this success, particularly given the challenges of increasing pressures on local authority resourcing, the complexity of electoral law and other challenges such as those posed by digital campaigning.

 

  1. Throughout, our guidance for electoral administrators helps local authorities to be able to deliver their statutory functions effectively, providing clear and timely advice to help ensure they are clear on what they are required to do. We use our performance standards frameworks to support and challenge them in their work, and report transparently on any instances where these standards are not met.

 

  1. The Association of Electoral Administrators’ submission to the current CSPL review of electoral regulation states that the Commission “is an excellent provider of guidance, supporting resources and good practice, providing a consistency of approach across the UK. The guidance it produces for ROs, EROs and administrators is invaluable, and its work goes a long way to ensuring the smooth conduct and transparency of various elections, referendums, and electoral registration.

 

  1. We have published financial data about hundreds of millions of pounds of donations to and spending by political parties. We have also carried out approximately 500 investigations over the last five years. In this period, there have been five enforcement decisions challenged in the courts using the statutory appeal process and a small number of High Court judicial reviews and other proceedings that have been brought. In all instances save for one County Court case, the outcomes have upheld the Commission’s main findings on breach of the law. It is also reassuring that other potential cases have not needed to be issued or proceeded with against the Commission because the early involvement of lawyers has cost-effectively and efficiently confirmed the Commission’s conclusions that the law had been broken.

 

  1. We have provided independent expert advice to parliaments about the intelligibility of proposed referendum questions, and our evidence-based recommendations for changes to question wording have been accepted for each of the four UK-wide, Scotland-wide or Wales-wide referendums held since 2011. The Commission has directly and successfully run a number of major referendums.

 

  1. Our annual report for 2019/20 provides a detailed assessment of our performance for that most recent financial year; it highlights a number of key statistics as an overview of our work and performance:

 

 

  1. Attitudes among stakeholders are a key measure of our success; we consider this below (section 3).              

Future changes to the Commission’s functions and powers

  1. Parliament gave us important functions to produce independent, evidence-based analysis and reports about the delivery of elections and referendums; to keep electoral matters under review; and to make recommendations about potential improvements to electoral administration and political finance regulation systems.
  2. We make these recommendations primarily to governments and parliaments, but occasionally to other organisations or sectors (such as political parties or social media platforms). We bring independence, political impartiality and expertise to recommend ways to strengthen the transparency, effectiveness or efficiency of the existing system and ultimately maintain and improve public confidence.
  3. Our analysis and recommendations have supported the development of a number of significant policy changes by governments, including improvements to the security of postal voting, the introduction of individual electoral registration in Great Britain, and legislation to ensure voters are not prevented from voting because of queues at polling stations. We do not make recommendations on changes to the electoral system itself, such as the voting system or franchise.
  4. At times our recommendations to improve that system also involve changes to our own statutory powers, where in the public interest this could further improve our ability to deliver our existing remit. For example:

 

  1. We put our recommendations, and the evidence on which they are based, to the public, parliamentarians and other interested parties who can give them full consideration. It is then for each of the UK’s governments and legislatures to determine whether and how recommendations should be taken forward.
  2. For example, in 2020 we worked with the Scottish Government to inform the development of its Referendums Bill. As a result, a number of long-standing recommendations were able to be incorporated – to require imprints on digital materials, and to materially raise the maximum sanction for breaking electoral law – which will support transparency and fairness at any future referendum.
  3. Finally, we learn from our experiences and stakeholder engagement and respond to changing circumstances. For example, we have recently decided to pause work to develop the capability, not used to date, to bring some types of prosecutions in order to improve the enforcement of the political finance rules. We recognise that we do not have the necessary breadth of stakeholder understanding and consent.

2.              The governance of the Electoral Commission

  1. The Commissions ability to perform its statutory functions is underpinned by the robust and effective arrangements for governance and accountability that parliaments have put in place. These provide assurance and scrutiny about our strategic direction and expenditure, while ensuring our operational independence.
  2. A Short Guide to the Electoral Commission recently published by the National Audit Office summarises the range of formal mechanisms through which the UK Parliament, Scottish Parliament and Senedd can currently hold the Commission to account for our performance and expenditure. The NAO notes that "the Commission has a mature and wellestablished governance structure and its accountability framework meets the NAO’s four essentials of accountability.
  3. The UK Parliament legislated to make the Commission accountable through the Speaker’s Committee on the Electoral Commission. Chaired by the Speaker of the House of Commons, the Committee includes MPs from across the House, as well as key ex officio members, including Ministers with responsibilities for local government and electoral matters, and the chair of the Public Administration and Constitutional Affairs Committee. The Committee answers written and oral Parliamentary Questions about the work of the Commission.
  4. Each year, the Commission’s financial estimate and business plan is submitted to the Committee for scrutiny and approval, and the Committee is responsible for considering whether it is consistent with the economical, efficient and effective discharge of our functions. Following each UK Parliamentary general election, the Commission must also prepare and submit a five-year plan for scrutiny, challenge and approval, before being laid before the House of Commons. The Committee also has broad discretion about additional scrutiny of the Commission to enable it to undertake its role; in recent years it has called additional evidence sessions, for example, on the process of devolving accountability to the Scottish Parliament and Senedd.
  5. Ten Electoral Commissioners set our strategic direction, and hold the staff to account for operational delivery according to an agreed scheme of delegation. Commissioners are appointed by Her Majesty the Queen on the recommendation of the House of Commons. Six Commissioners, including the Chair, are appointed following open recruitment processes, and four are nominated by the leaders of political parties. This follows recommendations made by CSPL in 2007 to improve governance by enabling the appointment of individuals with recent experience of politics and the political process. Nominated Commissioners play a full and active role in setting and monitoring our strategic direction, and their backgrounds and experience have supported improved understanding of those we regulate.
  6. In the UK Parliament, the Committee holding this inquiry has also taken a lead role in scrutinising the work of the Commission, and has regularly held evidence sessions, particularly following the Commission’s statutory reports on the administration of major polls.
  7. From 2021-22 the Commission’s parliamentary scrutiny will increase significantly, as it will move to be funded by and accountable jointly to the UK Parliament, the Scottish Parliament and the Senedd. This is a result of the UK Parliament’s legislation to devolve competence for the significant electoral events which take place in these countries. We have worked closely with Scottish Parliament and Senedd officials to ensure appropriate scrutiny and accountability.

3.               Public and political confidence in the impartiality and ability of the Electoral Commission

  1. As a public body and regulator working within electoral and democratic structures, confidence in the independence and impartiality of the Commission is vital.

 

  1. All Commissioners and staff work under a strict Code of Conduct during the time of their appointment or employment. This requires and ensures impartiality and fairness, and is policed assiduously. In 2018, allegations were made about Commissioner bias as a result of comments made by four Commissioners about the EU referendum. The Commission took these allegations very seriously, and commissioned an independent review into the matter. The review found no evidence of wrongdoing and the complaints made were not upheld.

 

  1. In order to perform our legal duty to take all reasonable steps to secure compliance with campaign finance laws and fulfil our enforcement function, we take decisions that some stakeholders do not welcome or support, particularly those who have been subject to regulatory action. Our regulated community of parties and campaigners generally has a culture of compliance; but with complex and dated legislation, not all those regulated welcome or accept the way the regime works or our application of it, and translate that view into criticism of us as the regulator.

 

  1. We have a published Enforcement Policy explaining our processes and how we take enforcement decisions. We aim to communicate regulatory outcomes clearly to ensure public and stakeholder understanding of the basis for our findings. On significant enforcement decisions we produce reports to give depth of understanding of our actions. The majority of our investigations relate to situations where a party or campaigner has not committed an offence deliberately; instead, the circumstances are usually inadvertent, the result of some procedural or individual failing, or lack of training and investment in compliance officers.

 

  1. As noted above, the Commission has a strong track-record of regulatory decision-making and correct guidance on electoral law, that has been supported as right by both the civil and criminal Courts, through to the Supreme Court. We do, however, recognise that we will not always get things right and both the courts and parliament rightly hold us to account for that. But in only one case have our findings been wholly overturned; we were found to have made a mistake, and have listened to the court’s findings and changed our processes as result.

 

  1. Nevertheless, regulation be it by the police or the Commission can harm, and has harmed, relationships between the Commission and some of its political stakeholders in Westminster. The Commission wants to have effective working relationships with the full range of its regulated community; work is underway to rebuild trust and confidence, through understanding the criticisms raised and the perspectives they reflect.

 

  1. More broadly, the Commission engages with its political stakeholders frequently and effectively. We maintain open and constructive relationships with elected representatives across the UK, and have worked with parliamentarians through a wide-range of fora, including Select Committees: in 2019 alone the Commission was pleased to give evidence to support the consideration of election or referendum issues by eight committees across the three parliaments.
  2. We have positive and constructive relationships with governments in all parts of the UK, working with Ministers and officials to support the development of workable policy and legislation. For example:

The electoral community

  1. As local authorities continue to report challenges with delivering electoral services against the backdrop of resourcing pressures, and a decreasing availability of sectoral expertise, the role the Electoral Commission’s work plays to support them to deliver their statutory functions is becoming increasingly significant.
  2. Evidence from research shows that our guidance and advice is welcomed and respected by those who need to deliver or comply with electoral law. Most recently, after the 2019 UK Parliamentary general election the research found that:
  1. Typical feedback from individual electoral administrators after the 2019 general election included the following comments:

“The EC guidance and resources material are invaluable. I have been running elections for many years and the accessibility and quality of the guidance and material has improved year on year. EC staff are very engaged with administrators and I think this is a reflected in the quality of support provided.”

“EC were excellent support on polling day – thank you”

  1. Our work supports a range of delivery partners and participants to deliver policy changes on the ground once legislation has been approved by the UK’s legislatures, helping to ensure the consistent and effective implementation of governments’ electoral reform agendas. We work with a range of organisations representing, for example, people with disabilities, to support them to participate in elections and to identify ways to improve their ability to do so with confidence.
  2. We also support police forces across the UK by providing guidance about electoral process and electoral fraud offences, as well as contributing to regular training and briefing programmes. After the 2019 UK Parliamentary general election our research found that 95% of respondents to our survey of police force Single Point of Contact officers (SPOCs) said that they were very satisfied with the direct support provided by the Commission. Feedback from these officers included the comment: “I contacted the Electoral Commission directly by email and by phone during the election period. The response was almost immediate and the help and advice I received was excellent.”

The public

  1. All of our work, including that supporting our regulated sector, governments and the electoral community, is ultimately in support of the public. In the most recent public opinion research carried out in February 2020, the words most frequently used by voters to describe the Commission were ‘independent’, ‘important’ and ‘professional’.
  2. Nearly all of our work contributes towards building and maintaining public confidence in elections and referendums; that can be by ensuring they receive a high quality electoral service wherever they live, that they see well designed, clear and impartial ballot papers when they vote and that they can easily find the information they want about our democracy when they need it.
  3. A range of factors enable public confidence, including the Commission’s place in UK democracy and its work. The relatively high levels of public confidence in well run elections, as well as strong levels of satisfaction with the processes of registering and voting, may reasonably be seen as strong indicators of the positive contribution that the Commission makes. In our research after the 2019 UK Parliamentary general election, for example, we found that 69% of people were confident the election was well run and 93% of voters were satisfied with the process for casting their vote.
  4. More directly, voters benefit specifically from our provision of voter information. For example, during 2019 we dealt with nearly 30,000 enquiries from members of the public, 9,000 of which in the weeks preceding the UK Parliamentary general election. This service provides clear and consistent support to the public, and also draws queries away from administrators at their busiest times. During this period, too, almost 1.3 million users visited our website; and one in four people saw our voter registration campaign, with more than 1.2 million added to the registers.

4.              The international reputation of and comparators for the UK Electoral Commission

International electoral commissions

  1. There is a continuing trend towards strengthening the independence of electoral management and oversight in both developing and established democracies; we have recently provided information to Irish Government officials, at their request, to inform the development of an electoral commission to oversee the management of a wide range of electoral processes in Ireland.
  2. Some of the closest comparators are the electoral management bodies for Australia, Canada and New Zealand. While these bodies have differences in their statutory remits and powers, they share key features, relating to independence, governance and accountability. In some cases the relevant founding legislation for these bodies provides a statutory requirement to act independently (for example under section 7 of the New Zealand Electoral Act 1993).
  3. International standards and guidelines emphasise the role of independent and impartial electoral management or oversight bodies as an essential procedural safeguard for fair elections; for example the Council of Europe’s Venice Commission Code of good practice in electoral matters, to which the UK is a signatory. The UK is also signatory to ICCPR (International Covenant on Civil and Political Rights), article 25 of which addresses the right of every citizen being able to vote for their representative and to be elected in genuine processes. 

The international reputation of the UK Electoral Commission

  1. The Commission has developed relationships with a range of international bodies and electoral support organisations. We welcome the opportunity to share insight, and to use our experience to support other countries, particularly those with relatively new or developing democratic structures, promoting transparency and credible democratic institutions through the sharing of best practices.
  2. We are frequently invited on behalf of the UK to share experience and expertise at conferences and events organised by bodies including the Commonwealth, the Organisation for Security and Cooperation in Europe, the International Institute for Democracy and Electoral Assistance and the International Foundation for Electoral Systems. We have supported and contributed to international best practice guides on issues such as cyber security and legislative approaches to political finance regulation.
  3. In addition, working with the Foreign, Commonwealth and Development Office, we regularly host delegations from foreign governments visiting the UK, to explain how our democratic processes and laws operate. In 2019 alone we hosted 13 international delegations and have continued this work virtually in 2020.
  4. We have particularly close relationships with the electoral management bodies for Australia, Canada and New Zealand, reflecting the similarities in our parliamentary and legislative systems. For several years we have taken part in and hosted an annual conference with the Australian Electoral Commission, Elections Canada and the Electoral Commission of New Zealand, to share experiences and consider common emerging trends and challenges.

5.               What, if any, reforms of the Electoral Commission should be considered?

  1. We have set out above an overview of the scope of the Commission’s activity to deliver the functions Parliament gave us, and the benefits that this activity brings to voters in the UK and to other stakeholders. Our functions are inter-connected and overlap, as Parliament intended when creating the Commission, to ensure there is a whole (electoral) system approach. That embraces party registration through to campaigning, transparency in political finance, and elections and referendums being delivered across the UK with high public confidence and legitimacy of results.
  2. We are keen to understand how we can better support our stakeholders and build trust and confidence in the Commission where it has been diminished.  As noted above, we are already pursuing discussions with those who have commented publicly and negatively, in order to understand and address the concerns raised, and meet regularly with many stakeholders to understand where our work adds value and how we can do more.
  3. We welcome the opportunity for the Committee to consider how the Commission’s governance and accountability could be further enhanced to ensure high levels of confidence in our work. We are receptive to change, including where reforms can deliver greater oversight and scrutiny of the Commission on behalf of parliaments and voters, while maintaining our independence.
  4. In the UK Parliament, the Speaker’s Committee on the Electoral Commission provides a firm, cross-party foundation for scrutiny and accountability. As noted above (para 27), the Committee has latitude to increase its engagement with the Commission and oversight of our work in fulfilling its own functions.
  5. Involvement and engagement by Ministers through their membership of the Committee provides an important opportunity for the UK Government to contribute to the scrutiny of our plans and funding proposals. To support this, its membership could usefully be updated, to recognise that detailed engagement on electoral matters more commonly happens with the Minister of State at the Cabinet Office (membership is currently specified as the Secretary of State). However, more direct involvement by Ministers in setting or specifying the direction or focus of our work risks undermining the independence and impartiality of the Commission.
  6. In considering any potential changes, it will be important for the Committee to have regard to the Commission’s ability to deliver its statutory functions. Key to this is protecting the Commission’s actual and perceived operational independence, and its ability to determine how to deliver the functions that Parliament has given it, whilst always being subject to scrutiny by and accountable to Parliament.
  7. This is clearly vital in relation to the Commission’s regulatory functions, but there are other aspects of our work where clear and demonstrable independence is paramount: where the Commission conducts independent evaluations of government pilots; where it conducts independent research to inform the work of the sector; where it conducts voter registration activity working with particular demographics. While based on transparent evidence and process, such and other activity must be able to be trusted to be independent and impartial.

6.   The effect of COVID-19 on UK elections

  1. May 2021 will see a complex set of elections taking place across Great Britain, including those polls postponed from May 2020 as a result of the coronavirus pandemic. Voters in some parts of England will be facing five different contests in May 2021: elections to their local authority and parish councils, as well as elections of local authority and combined authority mayors, and elections of their Police and Crime Commissioner.
  2. The number and combination of elections scheduled in May 2021 present a complex challenge for electoral administrators, campaigners and voters, and the impact of Covid-19 will bring additional practical challenges.
  3. The successful delivery of these elections will rely on continued focus and close working across the electoral sector as a whole. Our work to ensure the elections in England, Scotland and Wales can be delivered safely and effectively involves close collaboration with the UK’s governments, public health officials, Returning Officers and political parties. We are also closely monitoring comparable international elections taking place during the pandemic, to see what may be learnt from others’ experiences.
  4. By-elections in several local government areas in Scotland have taken place since the beginning of October 2020. The Commission and the Electoral Management Board for Scotland will continue to provide targeted advice and support to Returning Officers in areas where by-elections are being held. We will monitor and learn lessons from those elections to enhance our support for the scheduled May 2021 polls.
  5. We have worked with the electoral community to develop a set of objectives that can be used, both to support the delivery of elections in the context of the Covid-19 pandemic, and to evaluate their success. Our overall objective for success in May 2021 is that voters can participate safely and confidently in elections, and campaigners and parties can put their case to the electorate.
  6. We have already begun to deliver our core functions in relation to public awareness and information for voters, and the provision of guidance to ensure that electoral administrators and campaigners have what they need to ensure the polls are delivered safely and effectively.
  7. In collaboration with the UK’s Electoral Coordination and Advisory Board, we are developing additional guidance and resources for those administering May’s elections, to address the specific challenges of managing the polls in a Covid-19 secure way. We have already published guidance to support preparations for the polls, developed with expert public health advice and in consultation with the UK’s governments and electoral community, and will provide more detailed guidance on key aspects of the electoral process over the remainder of the year.
  8. Ahead of the these elections, our planned public information work will also include additional communications to ensure that voters understand how their experience at polling stations may differ from normal, and the measures that will be in place to ensure they can vote safely. We have already commenced activity to raise awareness of ways to cast a vote other than at a polling station.
  9. Our recent research in Scotland suggests that many voters are keen to continue voting in person despite the public health challenges; we will shortly be refreshing this research to see if public opinion in Scotland has changed, and are looking at what further research in England and Wales may also be beneficial. However, absent voting is likely to play an important role in elections during the Covid-19 pandemic. We will continue to work closely with electoral administrators across the UK to ensure they have the guidance and support they need ahead of the polls to manage these processes effectively.

 

November 2020

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