Written evidence from Rt Hon Alistair Carmichael MP and Rt Hon Lord Paul Tyler[1] (TEC 10)
Public Administration and Constitutional Affairs Committee
The Work of the Electoral Commission
In legislating for the creation of the Commission in 2000 Parliament recognised the urgent need for a statutory regulator – firmly distanced from party political influence and interference – to give the public confidence that elections and referendums were free and fairly conducted.
Since then the Commission has been hampered by the division of responsibilities, under the Representation of the People Act 1983 (RPA) on the one hand and the Political Parties, Elections & Referendum Act 2000 (PPERA) on the other.
The foundation stones of the UK’s Parliamentary democracy are the constituencies. We do not elect a President or Prime Minister, let alone a Government, but individual Members of Parliament. The Executive derives its authority from the collective mandate of those individuals.
It must follow that the integrity of the process by which they are elected is of huge significance in determining the overall health of our political system. Ever since 1883, when Parliament legislated to restrict the ability of wealthy men (they were almost always men) to purchase election outcomes, and thereby MPs, this has properly been an overriding principle.
The application of that principle has been severely strained by changes of campaign techniques and technology in the last decade.
The existence of the two distinctive regimes for constituencies (RPA 1983) and for political parties (PPERA 2000) is a frequent cause of confusion and excuse for non-compliance. A series of recommendations to legislate for a more coherent regulatory framework have been ignored. We strongly support the evidence to the Committee on Standards in Public Life from the Electoral Commission that:-
“Rationalising these two separate legal frameworks, including considering the balance between different spending limits and controls, would achieve a regime that is clearer and more consistent for different campaigners.”
This is especially desirable and urgent in the context of monitoring, investigation and penalties for serious infringement. The lack of an effective role for the Electoral Commission throughout this process where there has been deliberate action to avoid compliance in a constituency campaign, and where sparse and ill-equipped police resources have to be engaged instead, is an obvious weakness. We would support the Commission taking on a more comprehensive role for lower order suspected electoral offences.
The experience of recent cases relating to alleged constituency campaign expense illegality has shown most local police forces to be inadequate agents for timely investigation, due to lack of familiarity and resources, resulting in intolerable delay for justice for candidates, agents and other political staff.
It would be preferable for the Commission, properly equipped and much more experienced, to prepare these cases for the prosecuting authorities.
Whether it is still appropriate for such electoral law offences to be pursued through the criminal law and the courts is very relevant but presumably beyond the remit of the Committee’s inquiry?
We consider the constitution of the Commission to be broadly acceptable, given the inevitable tension between necessary independence from the Government and current political activists on the one hand and experience of the practicalities of campaigning on the other. The Commissioners represent a natural compromise, and – so long as the eligible political parties nominate individuals with appropriate previous experience – this balance should prevail.
The evidence of public attitudes (most recently relating to satisfaction with, and confidence in, the Commission’s role in the 2019 General Election) shows consistent support. Other UK political institutions – including sadly Parliament and the political parties – cannot claim to match it.
The reported submissions to the current review of electoral regulation by the Committee on Standards in Public Life reveals overwhelming support for the Commission, and majority endorsement of proposals to extend its role and responsibilities in specific directions, along the lines suggested here.
Our limited research suggests that there are few appropriate comparators for the UK Electoral Commission in mature democracies elsewhere in the world.
The Federal Electoral Commission in the USA is nearly 50 years old, and employs some 339 staff, but it has large numbers of outstanding electoral issues to consider and is not generally regarded – there or internationally – as very effective. It may be significant that it does not seem to have featured at all in current speculation about challenges to the integrity of the 2022 Presidential Election.
The Australian Electoral Commission is some 35 years old and records 2,166 staff; it appears to take a more interventionist role in advising other countries than its UK equivalent, but it is otherwise similar in adopting a relatively modest role in terms of pursuing legal remedies rather than advice and guidance on complying with the electoral law.
It seems that the UK Commission is both well regarded and seen as an exemplar of good practice.
We believe it is important that the elector should be able to see clearly the source of all campaign messages that are employed to seek to obtain his or her vote.
This has been the basic requirement for the long-established rules for the identification of printed campaign material and for the responsibility of the appointed constituency agent for all campaign expenditure.
It follows that the Electoral Commission – as the statutory regulator, independent of all political parties or non-party campaigners – has to be in a position to examine this information. Hence the need for comprehensive transparency to achieve enforceability and accountability.
Parliament has also sought to secure fairness between different campaigners, to avoid constituency campaigns being left to the mercies of the market, with no limit on the amounts that could be invested in them. The relatively modest limits of the regime set up by the RPA owe their origin to this objective.
Until relatively recently these objectives have been clearly defined, well understood and capable of effective monitoring. The ever-increasing targeting of constituencies identified as marginal, and therefore susceptible to change, and increasingly sophisticated communication techniques, have dramatically changed the position. The expenditure limits observed by constituency candidates and their agents can pale into insignificance beside the much greater sums employed by national political parties, and national campaigning organisations, to spread their message to selected electors.
We start from the basic assumption that ANY communication, by a regulated election participant, which seeks to influence a potential voter to vote in a particular way in a particular constituency should be the responsibility of that candidate and his/her agent. There may be minimalist exceptions but this should be the objective.
Therefore:-
* targeted mail-shots to named electors at specific addresses in specific constituencies, and
* digital campaign messages targeted to specific postcode areas in specific constituencies, and
* telephone call centre activity seeking support on the same basis
should all be considered as potential regulated expenditure by the appropriate political party and its nominated candidate and included in his/her return.
The same approach should apply to campaigning non-party organisations, where they seek to support or oppose candidates.
We welcomed the initiative of the Electoral Commission in drafting, consulting on and publishing the Codes of Practice for Candidates and for Political Parties in July 2019. These sought to achieve greater clarity and went some way towards the consistency we wish to promote. It would have been beneficial for these to have been fully endorsed by Parliament before the November/December 2019 General Election campaign: the subsequent delay by Ministers in tabling them is both inexplicable and causing suspicion.
We suggest that such Codes – given their extensive consultation and fine tuning before publication in 2019 – should be presented to Parliament for approval without Ministerial amendment or delay.
The other area in which improvements are required relates to the divergence between civil sanctions and criminal prosecution
As the Electoral Commission reports:-
“The civil sanctions regime works well, but it doesn’t interact with the criminal prosecution regime. In practice the two regimes function separately”
We consider this to be a serious defect. For example, lacking practical and contemporary experience at all levels, the prosecuting authorities and smaller police forces often take very many months to examine breaches of electoral law which give rise to possible criminal proceedings. Some recent cases have only been brought to court, and to a conclusion, years after the events to which they relate. This is inherently unfair to all concerned, and a real blemish on the UK’s justice system.
It seems that the Commission could also resolve regulatory issues, and ensure compliance, more swiftly, outside a formal investigation of any sort, if it had the power to do so. Sharing information with other regulators (eg the Information Commissioner) must be made speedier and simpler.
The actual penalties available to the Commission are woefully inadequate. To be limited to a maximum fine of £20,000 when the excess expenditure may run into £ millions, and the political advantage may be huge, invites the potential culprit(s) to treat this as a very modest business expense rather than a real deterrent.
We suggest that the penalty should be related to the scale of the financial offence, perhaps 50%, so treating minor infringements (which may be unintentional) quite differently from planned, deliberate, major offences.
As matters stand, party candidates and agents can claim that they are not aware of the campaign targeting – and expenditure – that their national parties may be undertaking on their behalf. This should not be an eligible defence. All concerned should be fully aware that any expenditure on any activity that seeks to secure the election of a candidate must be recorded and reported, within the regulated constraints, by whosoever they are undertaken.
For the same reason, all should be aware that (under the present law) the candidate could be personally unseated (if elected) and/or prevented from seeking election again, in extreme cases. Despite moving the initiative more into the area of responsibility of the Commission we would not recommend dispensing with the ultimate threat of criminal proceedings and penalties altogether. The Commission must be able to refer such cases to the prosecuting authorities.
The eventual objective should be a single regulatory framework for candidates, parties and non-party campaigners, but we recognise that this may be only achieved by wholesale rationalisation of electoral legislation, and may therefore be some years away.
In the meantime, the strengthening of the Commission’s regulatory role along the lines indicated above will both assist law-abiding campaigners and give the public greater confidence in the integrity of the electoral process.
Meanwhile, we should not neglect the role of the Commission in relation to referendums. There may or may not be another in the near future, but their conduct continues to cause controversy.
Recent experience of referendums in the UK has raised concerns which go beyond those for elections. For example, while political parties which contest major local authority and national elections tend to have continuity and can be held responsible for their actions after polling day, this is not always the case with those who seek to influence referendum outcomes.
Substantial sums of money have been spent during the last few days of recent referendum campaigns by organisations which can literally cease to exist as soon as the polls close.
These may be more commonly mobilised and funded from foreign sources, whether legitimately or illegitimately, than in elections. There is a strong case for the powers of the Commission to be able to insist on more real-time financial data in such circumstances, and to tighten up on the delay before reports are required.
In a referendum there tend not to be hundreds of different participants, of all shapes and sizes, as there are in election campaigns, and the logic of more rigorous and timely regulation is obvious.
The public have shown themselves more sceptical of the transparency and integrity of referendum results than of elections, and the Chairman of the Committee is surely right to invite special attention to the “new challenges” they could present.
In all forms of electoral campaigning, whether for Parliament, local authorities or in a referendum some of the regulatory apparatus has been left behind by the advance of technology, and specifically by the digital revolution.
Attempts to update PPERA since 2000 – let alone RPA since 1983 – have failed to keep pace, and to incorporate effective regulation to ensure transparency and responsibility.
Despite a chorus of official recommendation from the Electoral Commission, the Information Commissioner and Select Committees of both Houses of Parliament that all campaign messages in social media should identify its source (and thus, it would be hoped, its eligibility) Ministers have dragged their feet. The current switch of investment, to the tune of £ millions, from traditional written material to on-line communication, demands urgent attention. The logic is impeccable: if all printed campaign material must include an “imprint” giving this information, so should digital messages.
As the Committee on Standards in Public Life implied, this is especially necessary “to protect the electoral process from the influence of foreign players.”
The Commission should be empowered to insist on the provision of appropriate documentation from social media companies. They may well have real-time data on expenditure patterns, and their funding sources, to which the regulator should have immediate access.
It is unsatisfactory for the commercial companies to be expected to carry the full responsibility for establishing which campaigners are legitimate, any more than they should be beyond the remit of the statutory regulator in such a sensitive, politically important area.
We welcome the latest announcement of a Cabinet Office consultation on digital campaigning, but by the time Ministers act on its recommendations an unnecessary and damaging delay of at least two years will have elapsed.
We welcome this initiative by the Committee, and we trust that the exercise and its recommendations will have more success with the Government and Parliament than previous reports on the necessary reform of electoral law by the Law Commission and the Committee on Standards in Public Life.
We broadly endorse the Electoral Commission’s suggested interim improvements for its regulatory functions – independent of Government and political party interference – while also reiterating our support for comprehensive updating and rationalisation of electoral legislation, along the lines outlined by the Law Commission.
A key objective would be to create a single regulatory framework for election expenditure for candidates, parties and non-party campaigners, in the interests of transparency, fairness and accountability.
We would be happy to supplement this written submission with oral evidence, if the Committee so wished.
November 2020
[1] Rt Hon Alistair Carmichael MP & Rt Hon Lord Tyler. On behalf of the Liberal Democrat Parliamentary Parties