Electoral Commission Strategy and Policy Statement

Lord Khan of Burnley Excerpts

Tuesday 6th February 2024 Lords Chamber

Moved by

[Lord Khan of Burnley]

At end insert “but that this House regrets that the draft Strategy and Policy Statement has been laid, despite significant concerns raised by the Speaker’s Committee, the Electoral Commission, and the Levelling Up, Housing and Communities Select Committee, during the statutory consultation process, and the finding by the Speaker’s Committee that the statement as drafted is ‘not fit for purpose and inconsistent with the Commission’s role as an independent regulator’”.

[Lord Khan of Burnley (Lab)]

My Lords—

[Baroness Noakes (Con)]

My Lords, the noble Lord was not in his place at the beginning of this debate—not by a very long way. I do not think it appropriate for him to speak in the debate.

[Lord Evans of Rainow (Con)]

My Lords, through the usual channels we agreed that the noble Lord can speak.

[Lord Khan of Burnley (Lab)]

My Lords, I apologise to the House for my slight delay in getting here; there was an emergency that I had to deal with. I thank the Minister for her introduction and for meeting me and my noble friend Lady Taylor of Stevenage ahead of this debate.

I point to the fundamental issue sitting at the heart of this debate. We have tabled the amendment because this statement is unnecessary and the Government have provided no evidence for why it is needed. Unfortunately, nothing we have heard from the Ministers in the other place or here today proves otherwise. I pay tribute to the much-missed Lord Judge for his work in this area during the passage of the Elections Act. He tabled amendments seeking to remove Clauses 15 and 16, which provided for the policy statement we are discussing today. The amendment enjoyed overwhelming support. There was cross-party agreement that the commission’s independence is vital to the health of our democracy. In moving the vote, Lord Judge said:

“I really do not think that anyone in your Lordships’ House can have the slightest doubt about the constitutional imperative that the Electoral Commission should be politically independent—independent of all political influence, whether direct or indirect, over the electoral process”.—[Official Report, 25/4/22; col. 23.]


Clauses 15 and 16, now Sections 16 and 17, are repugnant to that foundational principle. They require the commission to have regard to—at the very lowest, to pay close attention to—the strategy and policy principles and to follow the guidance of the Government of the day. The House benefited hugely from Lord Judge’s wisdom and expertise on this issue, and we are poorer for not having his thoughts in today’s debate.

Following the passage of the Elections Act, the Government’s strategy and policy statement has been the subject of consultation. This includes statutory consultation with the Levelling Up, Housing and Communities Select Committee, the Speaker’s Committee on the Electoral Commission and the Electoral Commission itself. The Select Committee found that the statement assumes that

“Government priorities must automatically also be Commission priorities, and for the most part reads as though the Commission was an arm of Government”.

The Speaker’s Committee reported that the

“uncertainty, confusion, and new legal risks”

being introduced

“are likely to reduce the Commission’s … effectiveness, in return for no material benefit to the democratic process”.

--- Later in debate ---

[Baroness Penn (Con)]

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 (Lab)]

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.