Electoral Commission Strategy and Policy Statement

(Limited Text - Ministerial Extracts only)

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Tuesday 6th February 2024

(3 months, 2 weeks ago)

Lords Chamber
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Moved by
Baroness Penn Portrait Baroness Penn
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That the draft Strategy and Policy Statement laid before the House on 14 December 2023 be approved.

Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

Baroness Penn Portrait The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Penn) (Con)
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My Lords, the Government are committed to strengthening the integrity of elections so that our democracy remains secure, modern, transparent and fair. The statement we are debating today sets out the Government’s priorities when it comes to these important areas and the Electoral Commission’s role in enabling the Government to meet them.

It is the Government of the day who hold the responsibility for setting out the policy and legislation on how elections are run, who can participate with regard to registration, franchise and candidacy, and how elections and campaigning are regulated. These fundamental elements of the policy framework are separate but directly relevant to the role of the Electoral Commission, which, as an independent statutory body, oversees elections and regulates political finance. In other words, the Electoral Commission’s statutory remit exists to regulate the framework set out by the Government of the day’s electoral policies and legislation as approved by Parliament. Therefore, it is entirely appropriate for the Government to set out their policy priorities for the commission to have regard to in the delivery of its functions.

In their 2019 manifesto, the Government committed to protecting the integrity of our democracy. The Elections Act 2022 delivered this commitment by tackling voter fraud, improving the accessibility of elections and increasing participation in elections. All of these are government policy priorities which the commission, due to the nature of its role and statutory functions, plays an essential role in supporting. This is why the statement requires the commission to have regard to matters such as tackling voter fraud, supporting returning officers in ensuring the secrecy of the ballot inside polling stations, and supporting participation by informing the public about the franchise and electoral registration when carrying out its relevant regulatory functions.

The statement provides guidance on the commission’s role in supporting the Government’s ambitions to combat foreign interference through compliance with the political finance framework, and to improve transparency in UK elections through the new digital imprint regime. The statement also strengthens the accountability of the Electoral Commission to Parliament, via scrutiny of the Speaker’s Committee, which was given the remit under the Elections Act 2022 to allow it to examine the performance of the Electoral Commission in relation to its duty to have regard to the statement. Once the Statement is designated, the Speaker’s Committee will have the opportunity to consider the commission’s actions across a range of areas relevant to the statement, and will be able to report to Parliament its view of the commission’s performance of its duty to have regard to the statement. Such a report would provide an opportunity for greater parliamentary awareness and interest in the Electoral Commission’s performance.

I acknowledge that the provision for the statement was closely debated during the passage of the Elections Bill, now Act, two years ago. The Government listened carefully then to points raised by noble Lords and made several changes to address them. We added a safeguard in the legislation to ensure that a future Government could not attempt to use the statement to inappropriately interfere with the commission’s responsibilities in relation to the rules set out in the Political Parties, Elections and Referendums Act, as well as prohibiting any references to any specific enforcement or investigatory activities against any particular person. We also added a requirement for the statement to go through an enhanced parliamentary procedure.

Throughout this enhanced scrutiny process, we have listened carefully to representations. In response to the statutory consultation, the Government substantively revised the draft statement to provide clarifications and reassurances relating to the operational independence of the Electoral Commission. A full list of those changes would be too long to detail, but I will outline their main effects. First, the Government amended the draft statement to provide additional reassurances. That in no way amounts to the Government directing the commission. Secondly, the revised draft clarified that the statement articulated the Government’s priorities and not the commission’s. Thirdly, the revised draft clarified that the commissioners and the commission’s executive leadership remain responsible for determining how the commission exercises its functions.

The Government then laid the revised draft of the statement before Parliament for 60 days to allow for further comment by parliamentarians. During this period the Government received two further representations, from the Speaker’s Committee and the Levelling Up, Housing and Communities Committee. Both representations reiterated principled objections to the statement that had been articulated during the statutory consultation, particularly around concerns that the statement undermines the commission’s operational independence. These sentiments are referenced in the amendment to the Motion tabled by the noble Lord, Lord Khan of Burnley.

After careful consideration, the Government decided that the revised draft statement of June 2023 should remain unamended, save for minor stylistic changes. It is that version that has now been laid before Parliament for approval. As I have just set out, this is because the Government had already made significant revisions to the statement after the statutory consultation, to provide clarifications and reassurances relating to the operational independence of the Electoral Commission. The Government are emphatic that the statement must always be compatible with the foundational principle of the commission’s operational independence. The commission will be required only to have regard to the statement in the exercise of its functions. This legal duty does not replace or undermine the commission’s other statutory duties or give the Government powers to direct the commission’s decision-making.

The statement will help to ensure that the Electoral Commission operates as an effective, operationally independent regulator, discharging its responsibilities efficiently and commanding the trust and confidence of both Parliament and the public. I beg to move.

Amendment to the Motion

Moved by
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Baroness Penn Portrait Baroness Penn (Con)
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My Lords, I thank all noble Lords for their thoughtful consideration and input today. I will seek to address some of the points made by noble Lords, although I may not be as wide-ranging in my responses as noble Lords were in their contributions.

I agree with both noble Lords, Lord Khan and Lord Rennard, about the value of the contributions that we have had in these debates previously in this House by both Lord Judge and Lord Mackay. While the Government did not always agree with those points, we are all the poorer for their absence from the debate we are having today.

The noble Lord, Lord Khan, questioned whether the statement sets the priorities for the commission. The introduction of the statement will not replace the commission’s other duties. The commission will continue to set its own priorities; I reassure all noble Lords on that matter. The noble Lord, Lord Khan, asked what happens if the statement conflicts with the commission’s priorities. Does it override them or can the commission simply ignore the statement? Neither is the case. As my noble friend Lady Noakes set out clearly and eloquently, the duty to have regard to a statement of government policy in this area is not unusual and does not conflict with the operational independence of the commission. The duty to have regard simply means that, when carrying out its functions, the commission will be required to consider the statement and weigh it up against other relevant considerations. It is for the commission to independently decide how best to factor the statement into its decision-making processes and corporate documents.

My noble friend was right that the concern about the word “should” in the statement is misguided. In legislation, the relevant point is that the commission has the duty to have regard to the statement. That is a well-established legal principle. Therefore the use of the word “should”, or any alternative phrase in the statement, does not change anything relating to what the commission must do in order to fulfil its legal duties. The duty to have regard simply means that it needs to consider it and weigh it up carefully.

On the question of who scrutinises or enforces whether the commission has had regard to the statement, that is for the Speaker’s Committee. The Elections Act gave the committee the power to scrutinise the commission’s duty to have regard to the statement.

The noble Lord, Lord Khan, also asked about enforcement and the ability of the statement to influence the Electoral Commission’s enforcement work. The Government wholeheartedly agree that the commission’s enforcement work should be left to the commission. That is why the legislation underpinning the statement explicitly states that the Secretary of State must have regard to the statutory duties of the commission to monitor and secure compliance with electoral law, and the statement must not contain provision relating to any specific enforcement or investigatory activity. Again, I emphasise that the statement does not provide operational instructions to the commission.

The noble Lord, Lord Rennard, said the Government’s assertion that substantive changes had been made to the draft statement in response to the statutory consultation was subjective. It may be, but it was acknowledged by the Speaker’s Committee in its response to the Government that some of the changes have clarified the wording of the initial draft statement and constitute substantive improvement. At least in that regard, there is some agreement between the Government and the Speaker’s Committee, although I recognise that there is wider disagreement, which was drawn to the House’s attention by the Secondary Legislation Scrutiny Committee.

I will not dwell on some of the wider issues. Suffice to say that the statement sets out the Government’s priorities in areas that touch on matters such as voter ID, where the Government continue to be of the view that it is essential that we stamp out the potential for voter fraud. We have looked carefully at the implementation of this policy. We found that, in the recent elections, 99.75% of voters were able to cast their vote successfully and adapted well to the rollout of voter ID in Great Britain. Obviously, that is something that we will continue to monitor closely, but the signs are good.

Broader points were raised about people’s confidence in the system. My understanding is that the Electoral Commission has done some of its own research in this area. It found that 90% of voters were satisfied with the process of voting in the 2023 elections. That is in line with the most recent comparable elections in 2019, where 91% of voters were satisfied. Our own work has found that voter satisfaction with the voting process is positive, and we continue to work to ensure that that continues to be the case.

The noble Lord, Lord Rennard, raised the question of spending limits. I simply say to him that the provision for uprating those spending limits was set out and anticipated by Parliament in the original legislation. That is the mechanism by which we have uprated those limits to take inflation into account, which is not an unusual process across the business of government.

I emphasise to noble Lords that the Government absolutely agree about the importance of the independence of the Electoral Commission, but we also think it important for all bodies to be accountable. The measures in the statement are a way for the Electoral Commission to be held to account by Parliament, and we think that is a reasonable measure to take. I therefore hope the noble Lord, Lord Khan, is able to withdraw his amendment to the Motion.

Lord Khan of Burnley Portrait Lord Khan of Burnley (Lab)
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I thank the Minister for her response and her attempt to address the issue. I also thank noble Lords across the House for their thoughtful contributions. A number of them raised concerns about the policy statement and others about wider electoral law.

The function of the Electoral Commission is

“to ensure a level playing field between political parties”.

One team should not get to tell the umpire how to enforce the rules of the game. That is what this statement is doing and is clearly perceived to be doing, which ultimately is undermining trust in our politics.

There are issues that need tackling. There are rising considerations, such as the threat of generative artificial intelligence, the use of deepfakes, the spread of disinformation, overseas involvement, and the scraping of people’s data. None of that has been tackled today, but instead the Government are paying attention to a problem that just does not exist. Both the levelling-up committee and the Speaker’s Committee on the Electoral Commission, as statutory consultees, concluded that no statement was necessary. The levelling-up committee said that

“no evidence has been provided justifying it”.

The guidance in the Statement presented before us today would add complexity, confusion, and extra legal risk.

Nothing is wrong with the current system, in which the electoral system reports to the elected House and not to the Government. If something is not broken, why fix it? The Minister did not give us one example of something that the commission is not doing right at present which it will be made to do right and better by means of this statement. What are the problems that need addressing, and what will be different tomorrow from today? She did not give one example of that.

In view of the huge importance of this issue, I would like to test the opinion of the House and put my amendment to a vote.

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Division 2

Ayes: 175

Labour: 94
Liberal Democrat: 57
Crossbench: 18
Non-affiliated: 5
Green Party: 1

Noes: 159

Conservative: 152
Democratic Unionist Party: 3
Crossbench: 2
Non-affiliated: 2