Written evidence from Unlock Democracy[1] (TEC 18)

Public Administration and Constitutional Affairs Committee

The Work of the Electoral Commission

Unlock Democracy’s response to PACAC’s questions follows.

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

     (a) What roles and functions within the UK electoral system should the Commission perform?

The UK needs an independent body which oversees elections and referendums and regulates political finance.  The Electoral Commission fulfils those roles and performs those functions.

However, the role of the Electoral Commission (EC) is made more difficult by the confusion caused amongst campaigners by the requirements of the Representation of the People Act 1983 and the Political Parties, Elections and Referendums (PPERA) Act 2000.

For the EC to operate efficiently and monitor spending effectively, and to assist campaigners, these regimes need to be rationalised.  The relationship between constituency spend (covered by the RPA) and national party spend (PPERA 2000), and associated spending limits is complex in an era of national targeted online campaigning and national campaign activity delivered in individual constituencies.

This is a view supported by the Association of Electoral Administrators in their submission to the Committee on Standards in Public Life consultation on Electoral Regulation, which stated, ‘These rules can be confusing… The rules need to be rationalised’.

     (b) Should the remit of the Electoral Commission be changed?

The experience of the US presidential elections suggests that the Electoral Commission may need to play a higher profile role in the future in protecting the integrity of UK elections.  This role could include giving guidance to the media, social media companies, political parties and candidates on evidence (or otherwise) of postal vote fraud, measures to prevent election fraud and the importance of avoiding unwarranted attacks on the integrity of UK elections during and after election campaigns.  This may require a change in the remit of the Electoral Commission or could possibly be addressed by the EC Commissioners setting this as a strategic priority for the EC. The use of postal votes in May 2021 is likely to be at the highest level ever if Covid-19 is still prevalent in the population.

As set out originally in a submission to the House of Lords Constitution Committee in January 2010, Unlock Democracy also believes that the Electoral Commission should be given responsibility for overseeing local referendums (with the exception of Parish Councils referendums) as well as national referendums.  There have been 53 local referendums on directly elected Mayors (16 were successful).  These referendums are regulated by the Local Government Act 2000, rather than PPERA, and we believe that this is anachronistic. Changes to local government structures are significant constitutional changes and as such should be regulated by an independent body.  It is inappropriate for the body initiating the referendum to be responsible for drafting the referendum question.

     (c) What powers should the Electoral Commission have? Should the existing powers of the Electoral Commission be changed?

Unlock Democracy supports the views set out by the Electoral Commission in its response to the Committee on Standards in Public Life into electoral regulation, Q10 31-35.[2]

Notably that the EC should be granted civil powers to deal with minor breaches of the RPA.  Currently breaches of the RPA by a candidate or agent are referred to the Police for investigation.  It is understandable that, given the pressures on the police, investigating such allegations is often not a priority.

If the EC were granted these powers, it should remain the case that serious breaches would be dealt with by the Police and the DPP.

Where the Electoral Commission recommends specific changes in the law, Unlock Democracy has previously called for an obligation on the Government to respond within a specified time frame and, if they are not implementing the recommendations, to report to Parliament giving their reasons for not doing so.  This remains our view.

     2. The governance of the Electoral Commission.

Unlock Democracy considers the current governance of the EC to be fit for purpose with the commissioners from the different political parties not only providing strategic direction for the EC, but also performing an essential function as campaigning practitioners; keeping the EC informed of the practical implications of EC requirements.

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

The latest tracker poll (October 2020) found that 71% of UK adults are confident that elections are well run in the UK (69% in 2019).[3]  This reflects well on the performance of the EC which has a significant role in ensuring the smooth-running of elections in the UK.

Confidence in elections compares favourably with the latest Edelman Trust Barometer (Jan 2020)[4] which found that 31% of the population trust the media and 40% of the population trust the UK Government.

The EC has recently found all the major political parties in breach of the PPERA rules.  There is no evidence of partiality for or against any political party.[5]

Confidence in the EC has been expressed by the Association of Electoral Administrators (AEA) which said in their submission to the Committee on Standards in Public Life consultation on Electoral Regulation that the EC, ‘is an excellent provider of guidance’, adding ‘its work goes a long way to ensuring the smooth conduct and transparency of various elections…’. The AEA are frequent users of EC guidance.

One area for improvement might be in the provision of guidance for non-party campaigners.  They have expressed concerns about the ability of the EC to provide timely and sufficiently detailed guidance on non-party campaigners’ rights and responsibilities.  There may still be an EC resourcing issue in this regard.

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

Unlock Democracy is not aware of any comparative studies of the performance of different national election regulators.  It should be noted however that many countries have modelled their regulators on the Electoral Commission.

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

It is evident that when campaigners are spending £ millions on elections or referendums, a maximum fine of £20,000 is not going to act as a significant deterrent.  The maximum needs to be increased. The maximum level could be raised substantially (the Scottish parliament has set a maximum fine of £500,000 in relation to breaches of referendums rules) or fines could be linked to the scale of any financial irregularities.

Another area where reforms have been called for repeatedly, by different bodies (including the EC and the DCMS Select Committee), is the area of digital campaigning.  The EC should be given the tools to monitor and secure information from the social media companies on online political advertising during regulated periods and election campaigns and referendums.  The EC should also be able to enforce rules around digital imprints.  Digital imprints should help establish the eligibility of advertisers to participate in elections and in accounting for campaign expenditure. Currently the legislation and the EC are struggling to keep up with the new digital campaign techniques.

The Committee would also be interested in submissions on the effect of COVID-19 on UK elections.

As mentioned in response to question 1) b if coronavirus is still prevalent in early 2021, the take-up of postal votes is likely to be the highest on record.  This could lead to a sharp increase in uncorroborated claims made by politicians, social media sources and the press of widespread postal vote fraud, damaging trust in UK elections.   The Electoral Commission will need to have a clear responsibility for tackling this type of disinformation and the resources to counter it.

November 2020