The Work of the Electoral Commission

It has been twenty years since the Electoral Commission was established and we believe it still plays a fundamental role in overseeing free and fair elections and referendums and regulating political finance, and should continue to do so. However, its ability to effectively fulfil its statutory functions is directly impacted by the unnecessary complexity of the law governing this area. There is a consensus that the law is in urgent need of rationalisation and simplification, and the Government missed an opportunity with the Elections Act 2022 to build an elections framework fit for the modern day. We are concerned by the reluctance from the Government to prioritise the necessary reform of electoral law. Changes to the way the Electoral Commission works will only go so far without a consolidated legal framework for elections and referendums for it to operate within.

The Government should prioritise implementing the Law Commission’s recommendations to rationalise electoral law and immediately start work towards setting out a long-term strategy, with cross-party support, ahead of the next General Election.

The Committee notes the high levels of satisfaction in the Electoral Commission’s role in guiding the practical administration of elections and delivering referendums. Nevertheless, we remain concerned by the challenges that lie ahead for the Electoral Commission in supporting electoral administrators, political parties, campaigners, and voters to understand and navigate the increasing complexity of electoral law and levels of divergence across the UK.

We welcome the Government’s recent update that it is taking a staged approach to implementing the Elections Act 2022, which will support the electoral community in preparing to implement the necessary changes. While there is now limited time for the statutory instruments for voter ID to come into force and for the Electoral Commission to finalise its guidance ahead of elections in May 2023, the Committee is somewhat reassured by the Government’s assertion that it has shared draft legislation with the Electoral Commission to support them in drafting the relevant guidance and that it expects the statutory instruments to come into force by mid-January 2023. Ahead of this date, the Committee expects to see the draft statutory instrument in order for our comments to be taken into consideration alongside other scrutiny committees. The Committee also recognises that the decision to prioritise voter ID implementation inevitably means that the timetable for implementing other measures under the 2022 Act will be compressed throughout 2023–24. Accordingly, the Government must, as a matter of priority, provide clarity on its timetable for the implementation of the remainder of the secondary legislation envisaged under the Act, so that the Electoral Commission can provide the necessary support and guidance to the electoral community and voters in advance of upcoming elections. Furthermore, in the interests of supporting the Electoral Commission’s UK-wide role, we reiterate our call, set out in our Fifth Report of Session 2021–22 on the Elections Bill, for the four governments The Work of the Electoral Commission 39 of the United Kingdom to develop a more coordinated approach to electoral policy and law, which will, in turn, further reduce the complexity of the system. The UK Government should lead this work.

The Electoral Commission should demonstrate greater awareness of the specific nature of referendums, particularly the short-lived existence of many campaign groups and be sensitive to the stressful nature of the duties required to be fulfilled by Responsible Persons or other nominated individuals after such groups have been wound up.

The Electoral Commission must ensure it has the institutional knowledge and capacity to support those it regulates equally in both election and referendum contexts, noting their distinct and unique characteristics. There should be comprehensive training for Electoral Commission staff to ensure its guidance and regulatory approach is tailored to each specific poll. We expect the Electoral Commission to report back to the Committee on its implementation of an improved training programme.

The Electoral Commission invests significant resources into providing guidance to candidates, parties, and non-party campaigners to support their understanding of complex legislation, and this is largely welcomed by those it regulates. However, as a matter of priority, further action is required to address issues such as ambiguous advice, slow responses to requests for information during elections and referendum campaigns, and a gap in support for smaller and newer parties and campaigners.

The Committee welcomes the proposed steps from the Electoral Commission to improve guidance provision, including a strategy to support smaller parties, reviewing response times, exploring the viability of ‘account managers’, increasing consultation with parties and campaigners on draft guidance, and delivering more training. As part of the training offer, we recommend interactive modules on the relevant legislation and including case studies in the guidance for both parties and non-party campaigners to support volunteers. We recommend the inclusion of the Government’s view in the draft Strategy and Policy Statement that the Electoral Commission should be seeking regular feedback from stakeholders when preparing guidance should be maintained in the final iteration of the Statement. Furthermore, stakeholder engagement should extend to parties and campaigners of all sizes, in addition to larger parties through the four party panels, to ensure the training and guidance meets the needs of its users.

The Committee believes, regardless of the complexity of the legislation, it is vital that the Electoral Commission has sufficient internal expertise to clarify ambiguities in the law or guidance in a timely manner, particularly during regulated periods. The Electoral Commission should report back to the Committee on the viability of shortening its response time to within 48 hours in the two months prior to and after an election or referendum, and increasing its response rate outside those periods to 100% within five working days. These improvements should be in place before the next General Election. We would welcome an update on their implementation in April

The Committee recognises the complexity of the dual regimes for candidates under the Representation of the People Act 1983 and parties and campaigners under the Political Parties, Elections, and Referendums Act 2000. Consolidating the law into one regulatory framework should be within the scope of the Government’s work on the long-term strategy to rationalise electoral law recommended by this Committee.

The Committee recognises the rationale behind advocating an expansion of the Electoral Commission’s investigatory and enforcement powers to provide maximum transparency to voters, incentivise regulatory compliance, and increase the pace of investigations and enforcement action. However, we believe more evidence is needed to ensure that any expanded powers for the Electoral Commission, such as powers to monitor and investigate in real-time and impose civil sanctions for breaches of candidate finance law, would not place disproportionate burdens on the largely voluntary workforce that support political campaigns.

We welcome the Government’s view in the draft Strategy and Policy Statement for the Electoral Commission that the Commission’s enforcement of political finance rules should be proportionate to the voluntary nature of political parties’ infrastructure. We recommend this is maintained in the final iteration.

The Committee notes the concerns from non-party campaigners that the lower tier of registration with the Electoral Commission, introduced under the Elections Act 2022, may have the unintended consequence of deterring political campaigning by small groups that lack the resources to comply with the transparency requirements. If this is the case, it will be important not to exacerbate the issue further.

The Government should commit to reviewing the impact of the lower tier of registration for third party campaigners as part of its statutory review of the Elections Act 2022, due in four to five years› time, to be published and laid before Parliament. Any future reform to the regulatory powers of the Electoral Commission by the Government should consider the potential impact of deterring political engagement. We agree with the recommendations from the Committee on Standards in Public Life that the reporting timelines for parties and campaigners spending over £250,000 should be reduced from six to four months and that the Electoral Commission should publish returns within two months of receipt. However, these timeframes should be kept under review with regular feedback from parties and campaigners. Additionally, it is important that transparency goes both ways and, therefore, the Electoral Commission should ensure it communicates on its website any expected delays in this timeline.

The Committee recognises the potential gaps in transparency and weaknesses in the permissibility checks on donations to prevent foreign influence in UK politics, particularly through unincorporated associations (UAs). However, we also note the important role that UAs play in supporting democracy through fundraising. It is vital that any further reporting requirements or mandatory checks on donations that may result from the Government’s forthcoming guidance on donations referenced in its response to the Committee on Standards in Public Life’s report on Regulating Election Finance are proportionate, and do not adversely affect the organisations subject to them.

The Government should provide an update in its response to this report on the guidance it said it was considering in its response to the Committee on Standards in Public Life’s Regulating Election Finance Report, that would support campaigners to take a “risk- based” approach to donations, similar to the “know your customer” requirements in financial services.

Although the Electoral Commission has an overall strong record in relation to monitoring, investigations and enforcement, we were concerned by the individual cases of extremely lengthy investigations and poor communication raised throughout this inquiry. The Electoral Commission has said it will factor in the conclusions from this inquiry into its updated Enforcement Policy, due for consultation in the coming months, and we expect the issues raised by these individuals to be considered. We welcome the reforms the Electoral Commission has set out to its regulatory approach to date, including mandatory case reviews if a case approaches six months in duration; new evidence trackers to aid disclosure of used evidence when proposing sanctions; accelerating the process of identifying and citing relevant evidence; and moving away from the practice of expanding existing cases when new potential offences arise. However, it is disappointing that the Electoral Commission has resisted calls to impose fixed time limits on investigations.

We agree with the Committee on Standards in Public Life that investigations under the Political Parties, Elections and Referendums Act 2000 should be opened within 12 months of the date of the potential offence being committed or, from the date the Electoral Commission was aware of the potential offence, with ability to be extended by application to a court. There should also be a 12-month limit on the duration of investigations, with the possibility of a court extension where appropriate. Throughout investigations, the Electoral Commission should improve its communication and explain clearly to those being investigated all actions and decisions. The Electoral Commission should report back to this Committee within a year setting out its progress in implementing its proposed changes to its regulatory approach.

We believe the Electoral Commission should be sensitive to the role of volunteers in campaigns and the potential for inadvertent reporting errors to occur. We welcome the Electoral Commission’s proposed changes to the Political Finance Online platform to support individuals to input their financial returns accurately. We agree with witnesses to our inquiry that the current maximum sanction of £20,000 for breaches of the Political Parties, Elections and Referendums Act 2000 may not act as an effective deterrent for well resourced political parties and non-party campaigners. However, we also believe a larger fine would need to be carefully enforced to ensure it does not disproportionately impact smaller groups.

We agree with the House of Lords Democracy and Digital Technologies Committee, and the Committee on Standards in Public Life, that the maximum fine the Electoral Commission can impose for breaches of Political Parties, Elections and Referendums Act 2000 should be increased to £500,000 or 4% of total campaign spend, whichever is higher. Equally, we believe that regulated individuals, parties, and campaigners should have the opportunity to amend minor, administrative reporting errors before civil sanctions are imposed, and that there should be consistency in making and a clear explanation for sanctioning decisions. This should be factored into the updated Enforcement Policy expected in the coming months.

Digital technology is allowing more parties, campaigners, and voters than ever to participate in political debate. While we view this as a positive step for democracy, we must recognise that it has created a more complex regulatory environment for the Electoral Commission. The framework for regulating political campaign spending during elections and referendums has not kept pace with the challenges presented by the growth of social media, targeted advertising using big data, and viral online marketing campaigns. We are concerned by the fact a significant amount of transparency for digital campaigning comes from voluntary initiatives by social media platforms to create “advert libraries” and that there is no standard definition of a political advert.

The responsibilities of multiple regulators in the digital space interlock with the Electoral Commission’s role to regulate money spent on political campaigning. The Government’s draft Strategy and Policy Statement for the Electoral Commission encourages cooperation between regulators to avoid duplication but does not provide any detail on how this can be achieved. We recommend the Government puts forward proposals and if necessary legislates through the Online Safety Bill to enable digital regulators, such as the Information Commissioner’s Office, Ofcom, the Electoral Commission and Advertising Standards Authority, to formally share appropriate levels of information to support their regulatory duties and create a coherent regulatory system. We recommend that Ofcom, as the prospective online safety regulator, should be given a power to set minimum standards for advert libraries and advert labelling to provide maximum transparency and consistency across these databases.

The introduction of digital imprints on paid-for and certain unpaid digital material is welcome, but, in their current form, the requirements have notable limitations. This includes a potentially wide scope of activity that will not require an imprint, as well as challenges envisaged by our witnesses in enforcing the regime and providing sufficient transparency on the funding of online campaigns.

As recommended in our Fifth Report of Session 2021–22 on the Elections Bill, acknowledging the need for legislation to keep pace with rapid technological changes, the Government should commit to monitoring and conducting regular reviews of the digital imprints scheme, to ensure effectiveness in the monitoring and enforcement of the legislation and to prevent any unintended consequences or loopholes arising or emerging. We suggest particular consideration is given to whether the scope of material that requires an imprint should be widened and whether the rules are being effectively enforced.

We agree with the Electoral Commission that each of the four governments of the UK should amend the rules for reporting spending to provide greater transparency on the money being spent on digital campaigns in their jurisdictions. There should be a separate category for digital campaigning to be included in spending returns. We recommend that this is implemented before the next General Election.

The Electoral Commission has an effective governance structure. Commissioners, including those who are nominated by political parties, play a useful role in the governance of the organisation. However, this system only works if Commissioners abide by the clear standards of behaviour set out in the Board Code of Conduct and refrain from public activity that may damage their perceived impartiality, particularly in and around electoral events. The Electoral Commission should be mindful of the fact that any detriment to public trust in its independence and impartiality could diminish the perceived legitimacy of elections and the democratic process as a whole.

It is vital that the impartiality and independence of the Electoral Commission is maintained at all times. Commissioners must act in accordance with the Board Code of Conduct and refrain from expressing any personal opinions that may suggest political bias. In the event of a future referendum, the Electoral Commission should produce specific guidance for Commissioners on how biases can and will be managed, and impartiality maintained.

The Committee believes that periodic parliamentary scrutiny of the work of the Electoral Commission, in the form of inquiries such as this, dovetails effectively with the ongoing oversight by the Speaker’s Committee on the Electoral Commission.

Operational independence is a fundamental aspect of the Electoral Commission. The Government’s ability to set the strategic direction of the Electoral Commission through the issuance of a Strategy and Policy Statement, as set out in the Elections Act 2022, significantly alters the Electoral Commission’s relationship to Government as an independent body. We welcome the three month statutory consultation period for the draft Strategy and Policy Statement and will continue to take an active interest in this area of constitutional significance, supporting the statutory consultees where appropriate. Following the consultation, it is vital that the Statement is afforded appropriate scrutiny through super-affirmative parliamentary scrutiny. As highlighted in our Fifth Report of Session 2021–22 on the Elections Bill, the Speaker’s Committee on the Electoral Commission, as the body that will scrutinise the Electoral Commission’s compliance with the Statement going forward, must be seen to exercise its powers impartially, with cross-party support. We note the support from witnesses to our inquiry that no single party should exercise a majority on the Speaker’s Committee.

We welcome the timetable provided by the Government to scrutinise the draft Strategy and Policy Statement and recommend a commitment is made that the same timeframe should apply to future Strategy and Policy Statements.

The Committee welcomes that the Strategy and Policy Statement for the Electoral Commission will be subject to super-affirmative parliamentary procedure, in line with our previous recommendation. The Government must now ensure a motion is tabled for the draft Statement to be debated on the floor of both Houses, before it is brought forward for final approval.