Over the last few months, there has been much ink spilled over the Elections Bill, which is currently at the Committee Stage in the House of Commons. A number of the provisions contained in the bill are, however, relatively uncontroversial. Measures to bring in a ‘digital imprint’, for example, have long been an agreed and necessary reform to address developments in online campaigning. And several of the smaller changes to the political finance regime – such as the restriction of third-party campaigning to UK-based entities – represent important steps forward in tightening up campaign regulation. Much of what is contained in the bill would hardly raise the eyebrow of any but the most dedicated constitution watcher.
At first glance, the proposed reforms to the Electoral Commission might seem to belong in this category. But these changes are controversial and could in fact have serious ramifications for the functioning of our democracy. The two problematic areas are in the introduction of a Strategy and Policy Statement and amendments to the function and makeup of the Speaker’s Committee (the parliamentary committee which the Commission reports to) – but it is on the former I will focus here. The Strategy and Policy Statement will be drafted by government (and subject to parliamentary approval) and will set out the government’s policy priorities, the Commission’s responsibilities and how the Commission should exercise its functions.
The principle at play: independence
Generally speaking, the first thing that needs to be considered when reforming electoral regulation is the principles that should underpin said reforms. They often encompass some combination of fairness within the system, that any reforms are practical in terms of their implementation and that the mechanisms therein are transparent. When it comes specifically to reforming a regulator (such as the Electoral Commission) one element should guide and underpin all of this: independence.
Not every country has an Electoral Commission. In fact, whilst some form of electoral management body tends to be the preferred option, we also see the role undertaken by auditors, the courts, government ministries and parliaments. There is, then, considerable variance in method. But there is also a simple arbiter of whether an approach is successful, and it lies in the answer to one question: is the regulator independent from the levers of power?
In a very real sense, it doesn’t matter who is regulating elections if the body retains this independence. This is where the proposed reforms to the Commission in the Elections Bill are so dangerous. Both the changes to the Speaker’s Committee (for example, the proposal that the Minister for the Constitution should attend meetings of the Committee) and the introduction of a Strategy and Policy Statement do not meet the guiding principle of retention of independence.
This was put most clearly in evidence heard by the Public Administration and Constitutional Affairs Committee (PACAC) during their inquiry into the Bill. Speaking to PACAC, Lord Jonathan Evans, the Chair of the Committee on Standards in Public Life, suggested the reforms were akin to gifting a toddler a gun. It might not go off instantly, but it’s still not the best idea to give one to a toddler – and it certainly doesn’t improve the safety of those in the immediate vicinity.
The Strategy and Policy Statement
These concerns are in no way assuaged if we look at the indicative Strategy and Policy Statement that the government released last month. Again, on the face of it there is not a great deal to take issue with. It simply (broadly) lays out what is in the Elections Bill and reasserts the governance priorities of the Commission.
There’s not much to disagree with – but only if you think the notion of a Strategy and Policy Statement is agreeable in the first place. Much like if you’ve got no problem with giving a toddler a gun, you’ll likely have no issue with the toddler merrily waving it around – until you get shot in the face.
The most troubling paragraph states that, the ‘Commission in their work must have regard to the government’s delivery of legitimate executive priorities in relation to elections during this Parliament’. But being at the behest of the government of the day impinges on the independence of the Commission. In other words, do we really want a Commission – which as a part of its function regulates those in the executive – that ‘must have regard’ to ‘executive priorities’ as a standard operating procedure? If we were designing the perfect regulator, would this really be seen as a form of best practice?
Turning to the principles the government sets out for the Commission in the same document, whilst again they may seem harmless (and hard to disagree with), they also raise questions about whether these reforms are needed in the first place.
Impartiality and public responsiveness
In particular, the indicative Strategy and Policy Statement stipulates that the Commission is ‘impartial’, and that it is ‘responsive to the public’. That the Commission should be impartial is a simple truism – but how is this measured? Is it the number of investigations brought forward, and that they are proportionate (i.e., spread across all parties)? If this is the case, what happens if one party breaks the rules more than another?
Similarly, we know that on objective measures, the Commission is popular. Research has consistently shown that overall levels of public satisfaction with the administration of general elections is high (78 per cent at the UK level in 2017). And in a survey of electoral agents at the 2019 general election 78 per cent agreed the rules in respect of spending and donations were clear, whilst 72 per cent viewed the Commission as a useful source of advice and 75 per cent thought the Commission’s guidance was clear and easy to understand. It leaves one wondering what problem these reforms are attempting to solve.
Democracy is not a given
This should concern anyone with an interest in the proper functioning of a democracy. When insurgents stormed the Capitol Building in January of this year, there were genuine concerns about the future of democracy in the USA. But these attempts to overturn the result of a free and fair election failed, largely due to the strength of supporting institutions. Would we be able to say the same with our regulator of elections effectively at the behest of those in power?
If we chip away at the strength of these institutions, even in seemingly small ways, problems can arise. Nobody is suggesting this Conservative government has malign intentions. But future governments might. Robust and independent institutions can and should act as a check in this respect. It is better that they are kept that way.
Dr Samuel Power is Lecturer in Corruption Analysis in the Politics Department at the School of Law, Politics and Sociology, University of Sussex.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.