Written evidence from The Electoral Commission (TEB 06)

Public Administration and Constitutional Affairs Committee

The Elections Bill inquiry


The Electoral Commission is the independent body which oversees elections and regulates political finance in the UK. We work to promote public confidence in the democratic process and ensure its integrity. A key part of our role is to provide advice to government and parliament on legislation relating to elections and the regulation of campaigners.

We welcome this inquiry given the scale and significance of the Elections Bill. Our submission highlights key considerations ahead of parliamentary consideration and scrutiny of the Bill, and outlines the Commission’s position on its key measures. We provide independent advice based on published evidence and our expertise and will continue to provide advice on individual clauses during the Bill’s passage through Parliament.

Once the Bill has been passed into law we will work with voters, local electoral administrators, political parties, campaigners and representative bodies, to ensure everyone involved in elections understands and is prepared in good time for the new rules.

Key considerations on the Bill’s measures collectively

Part 1 Administration and conduct of elections

It is important that the UK’s electoral system is both secure and accessible. Part 1 of the Bill includes significant changes to the way people will cast their votes at future elections.

Voter identification

The UK has low levels of proven electoral fraud, and voters should feel confident about their vote. However, our research has highlighted that it is an issue that concerns some voters. Two-thirds of people in our recent public opinion tracking research said they would feel more confident in the security of the voting system if there was a requirement to show identification.

There are already checks in place to confirm a voters identity when they register to vote and vote by post. However, there are no similar checks in place at polling stations in Great Britain to prevent someone claiming to be someone else and voting in their name. This means that polling station voting in Great Britain is vulnerable to fraud. In Northern Ireland, there has been a requirement to show ID when voting since 1985, updated to a photo ID requirement since 2003.

At the 2018 and 2019 local elections, the UK Government trialled voter ID in a number of areas in England. We undertook independent, statutory evaluations in both years. Based on the evidence collected, we identified three key areas that need careful consideration if a voter ID requirement is introduced:

The Bill sets out proposals for a photo-based identification requirement for polling station voters at UK Parliament elections in Great Britain, Police and Crime Commissioner elections in England and Wales, and local elections in England. Of the approaches tested at the pilots, this provided the greatest improvement in security.

To make sure voting at polling stations remains accessible, this security measure must be balanced with other options for people who do not already have an accepted form of photo ID. The Bill makes clear that a proposed Voter Card must be issued free of charge.

Our recent public opinion tracking research found that 4% of people who were eligible to vote said they do not currently have any of the identification documents that would be required under these proposals. This was higher among some more disadvantaged groups including unemployed people, people who rent from a local authority or housing association, and people with disabilities.

Key considerations

Postal and proxy voting

Postal voting is a useful and popular voting method, used by around 20% of voters in Great Britain. Proxy voting is also an important option for people who can’t vote in person. Just under 250,000 people appointed a proxy at the 2019 UK general election.

The Bill proposes banning campaigners from handling postal votes, which would formalise the current approach encouraged by a voluntary Code of Conduct for Campaigners.

The Bill also proposes extending ballot secrecy rules to include postal votes. These changes should improve trust and confidence in the system without reducing access to voting. Our recent public opinion research has shown that while 90% of people say they feel voting in a polling station is secure, this compares to 68% of people who believe postal voting is secure and 11% who don’t know.

The Bill would also require voters to reapply for a postal vote after three years. This will help to ensure that postal voting personal identifiers (date of birth and signature) are up-to-date and accurate, and should reduce the risk of postal votes being rejected because these identifiers don’t match when voters return postal ballot packs at elections.

It is not clear how new limits on handing in postal votes at polling stations, and on the number of voters for whom a person may act as a proxy, would offer significant additional protection for voters. Campaigners handing in postal votes would commit an offence under the proposed ban on handling postal ballot packs, and the reformed offence of undue influence would also apply if voters were forced against their will to hand over their postal votes to someone else or to appoint someone as a proxy.

Key considerations

Undue influence

Undue influence is a complex electoral offence that is not easy for voters to understand. Simplifying and defining this offence more clearly would help to protect voters against exploitation and would make clear what is and is not acceptable behaviour.

It would also make it easier for the police and prosecutors to enforce the law where appropriate. There is widespread support for reforming this offence among campaigners, electoral administrators, police and prosecutors.

Assistance with voting for people with disabilities

These changes would give voters with disabilities more flexibility in how they are supported at polling stations. Providing a wider range of equipment at polling stations should make it easier for people with disabilities to access appropriate support to be able to cast their vote on their own and in secret.

Replacing the current specific requirements set out in law with a broader duty for electoral administrators to provide reasonable equipment would allow voters with disabilities to use new equipment or technology to support them. This could support innovation and speed up the process of providing different types of support when new ways to meet voters’ needs are identified.

People with disabilities have also highlighted that it can be difficult to find someone who is eligible to help them cast their vote at their polling station. Removing restrictions on who can act as a companion would give voters with disabilities more flexibility and choice in how they are supported.

Key considerations

Part 2 Overseas voters and EU citizens

Part 2 of the Bill includes proposals to significantly change the franchise, both for British citizens living abroad and for citizens of EU member states living in the UK. Proposals to change which groups of people have the right to vote or stand as a candidate in elections are important constitutional matters for Parliament to consider and decide on. The Commission does not normally take a policy view on changes to the franchise, but we will provide advice to Parliament about their potential impact and practical implications.

Overseas voters

Our research following UK general elections since 2015 has consistently found that some overseas voters have experienced significant difficulties voting from outside the UK. Many did not have enough time to receive and return their postal vote before the close of the poll, which meant their votes could not be counted.

Just over 230,000 people were registered as overseas voters at the 2019 general election. A large number of new voters could be added to the electoral register as a result of the proposal to remove the current 15-year limit for British citizens overseas to register to vote in the UK, and so more people could be affected by these issues at future elections.

Key considerations

EU citizens

In the year to December 2020, there were 2.1 million (non-UK) EU citizens on the electoral registers for local government elections in England and Wales. Implementing the proposed changes to the eligibility of EU citizens to vote and stand as candidates in some elections will involve a significant programme of activity by electoral administrators. This is likely to include communicating the new franchise rules and requirements to affected people, and reviewing their status to determine whether they remain eligible to vote in future elections.

Key consideration

Part 3 The Electoral Commission

Oversight of Electoral Commission

To ensure confidence in the impartiality of its approach, the Electoral Commission must be able to decide on its priorities and work independent of government influence or controls. Equally, parliamentary oversight and scrutiny of the Commission’s work is essential to ensure that we command broad trust and confidence as an organisation. It is vital for public confidence that the Commission continues to be properly accountable to the UK Parliament, and also to the Scottish Parliament and Senedd.

Part 3 of the Bill includes significant changes to current accountability arrangements, including changes to the role and powers of Ministers, the Speaker’s Committee and Parliament. The proposed Strategy and Policy Statement would give current and future Ministers new and broad scope to align the Commission’s activities with the Government’s strategic objectives, and to shape the exercise of our regulatory functions in relation to future elections and referendums.

Criminal prosecutions

Effective enforcement when the law is broken gives voters and campaigners confidence in the electoral system. They have the right to expect that any political party or campaigner which deliberately or recklessly breaks electoral law will face prosecution.

We are only aware of one case that has been prosecuted under the Political Parties Elections and Referendum Act 2000 (PPERA) since it was passed by Parliament 20 years ago. We have focused on using the civil sanctions regime introduced 10 years ago, and the police and prosecutors have remained responsible for considering prosecutions. As the apparent risk of being prosecuted for a PPERA offence is negligible, there are important implications for deterrence.

Although the Commission’s current powers to establish a prosecution function are consistent with those available to many other regulators, the Bill proposes to remove these powers. This would reduce the scope for political finance offences to be prosecuted, relying solely on the police and prosecutors having the resources and will to take action.

Key considerations

Part 4 Regulation of expenditure

Part 4 of the Bill amends some of the existing rules that provide transparency and place limits on election campaign spending and funding. Our recent public attitudes research showed that there is an appetite for improvements for transparency, with only 14% of people agreeing that the spending and funding of political parties, candidates and other campaigning organisations at elections is open and transparent.

Notional expenditure of candidates and others

Rules about notional spending ensure that campaigners properly account for and report all goods, services and materials that are donated to them, and which they use to help them in any way with their campaign activities. Data on spending shows the total amount of notional spending reported by the 3,320 candidates who stood at the 2019 UK general election was £7 million. This was nearly 40% of the total amount of reported candidate spending.

Candidates, agents and party or campaigner staff need a clear understanding of when something is “notional spending” or “election expenses” because it counts towards their total campaign spend, which must not exceed the specified spending limit. The current law on notional spending is long established and has operated in practice for elections for many years.

The Government wants to change the legal test for when a candidate or agent authorises someone else to use benefits in kind on their behalf. The Bill would amend the rules so that candidates only need to report benefits in kind which they have “made use of” themselves or have authorised, directed or encouraged someone else to “make use of” on their behalf.

These changes would operate alongside existing rules for campaigners which allow them to spend a permitted sum on promoting a candidate in a constituency separately from the agent (e.g. up to £700 at a UK general election).

Key considerations

Registration of political parties and non-party campaigners

Requiring new political parties to set out any assets or liabilities they hold over £500 when they apply to register would address a gap in the current rules for party accounts. It should give voters greater transparency by allowing them to see from the outset the level of funds or debts that a new party has.

The Bill will also introduce a prohibition on entities being registered as political parties and registered non-party campaigners at the same time. While there have been past instances of individuals being involved in some capacity in a party and a non-party campaigner simultaneously, there has only been one example in the past ten years of the same entity being registered as both a political party and non-party campaigner at the same time.

Key considerations

Controlled expenditure by non-party campaigners

Non-party campaigners are a vital part of a healthy democracy and play an important role in sharing information with voters. It is important that these groups can easily participate in the UK’s elections. Controls in election law help voters to see and understand how these groups receive and spend money when they are intending to influence an election outcome.

Over recent years, there has been an increase in the number of non-party campaigners.  Spending by these groups has risen too. At the 2019 UK general election, there were 61 registered non-party campaigners, and those who were required to report their spending recorded a total spend of more than £6m. Our recent public attitudes research showed some concerns about the risks of foreign interference. When we asked people to prioritise their concerns from a list of issues, two fifths (40%) said “foreign interference on UK elections results” was a problem.

The Bill proposes several changes to the rules on non-party campaigning. A new lower tier for non-party campaigner registration should provide greater transparency about who is planning to spend more than £10,000 in England or across the whole of the UK in the period before a UK general election. Currently campaigners are only required to register with the Commission and report spending if they intend to spend £20,000 in England or £10,000 in Scotland, Wales or Northern Ireland.

Changes to the limits on unregistered campaigning would make it clear that foreign interference in UK elections is not acceptable. During the regulated period before an election, only specific categories of individuals and organisations would be allowed to spend more than £700 on activities that are intended to influence the election outcome.

This would be a significant reduction from the current limits for unregistered campaigning, and would introduce a new principle that campaigners are subject to eligibility criteria even when they are not required to be registered.

Extending the rules on joint spending so they apply to political parties who spend jointly with a non-party campaigner would increase transparency and help ensure the effectiveness of the spending limits. It would need to be clear in practice how this additional rule will sit alongside other spending rules for parties. Parties must be able to clearly tell when the joint spending rule applies, and when other limits or controls apply, such as the existing targeted spending or notional spending rules.

Key considerations

Part 5 Disqualification of offenders for holding elective office etc

Following the 2019 UK general election, more than half of the candidates who took part in our post-election research said they were concerned about standing for election because of the risk of intimidation, threats and abuse. Three quarters of respondents said that they had experienced this type of behaviour.

It is vital that action is taken against those who abuse, threaten or intimidate candidates and campaigners. Proposals in Part 5 of the Bill would enable the courts to impose a ban on standing for elected office. This would be a further sanction in addition to a prison sentence or fine, for example, that a court could apply when finding offences under existing criminal law. While this would strengthen the range of sanctions available against those who carry out this type of behaviour, its practical effect as a deterrent will need to be monitored.

Part 6 Information to be included with electronic material

Digital campaigning accounts for an increasingly large proportion of spending reported by campaigners after elections. Following the 2019 UK general election and European Parliament election, political parties reported that spending on digital advertising represented 53% of their total advertising spending.

New technologies offer significant opportunities to engage voters, but they must provide the same level of transparency that voters currently have with printed material. Our recent public opinion tracking research found that only 21% of people thought they could find out who has produced the political content they see online, and 37% disagreed. Over 70% of people agreed that it should be clear how much has been spent promoting an advert, by whom and also know why it has been targeted at them.

Applying new imprint transparency rules to digital election materials will help UK voters understand who is paying to target them online, and should help improve public trust and confidence in digital campaigns at future elections and referendums.

The Bill would also require campaigners to include imprints on digital ‘political’ campaign material, not just election material. This will further increase transparency for voters by providing important information about who has produced and funded material at all times, and not just in the run up to an election.

To ensure voter confidence in digital campaign regulation, swift action should be taken to deal with any campaign material that does not comply with the new imprint requirements. The Bill would create a new duty for social media and digital advertising providers to provide information to the Commission and the police about who has supplied and paid for material, which would help us to secure compliance with the law. It also sets out duties for social media and digital advertising providers, including to remove material without an imprint once a court has found a conviction or the Commission has imposed a sanction on a campaigner.

Key considerations


August 2021

Annex: Background note on prosecutions

Framework for election finance offences

The Election Bill proposals