The Elections Bill

The Committee notes that electoral law in the UK is voluminous and fragmented across a raft of primary legislation and accompanying secondary legislation. We believe that there is a risk that this Bill will add further complexity.

As the Government itself acknowledges, the time available for legislative change is limited and the matter of consolidating electoral law a long and widely recommended, but challenging undertaking.

Whilst a number of the proposed measures have been widely supported, including on undue influence, the Government’s decision to focus on several ‘standalone’ reforms shows a lack of ambition. It has missed the only opportunity to bring forward a Bill which simplifies and consolidates electoral law, as has been recommended by the Law Commissions, our predecessor Committee and the CSPL. Such a Bill is likely to have received cross-party support, but most importantly, is required to make electoral law easier to understand and comply with - thereby supporting public confidence in elections.

The Committee urges the Government to set out a timetable for undertaking a wholesale review and consolidation of electoral law. (Paragraph 24) Public and parliamentary consultation and scrutiny

The Committee notes and regrets that the Bill was not afforded pre-legislative scrutiny.

We note that pre-legislative consultation can build consensus and ensure that the proposals meet their stated objectives. Written and oral evidence to this inquiry infers a strong correlation between elements of the Bill which have received cross- party and wide-ranging public support and on which extensive public consultation was undertaken.

We note that there was limited to no public consultation on more controversial or ‘contested’ elements of the Bill, such as changes to the Electoral Commission, and that pilots on Voter ID were limited.

Given the constitutional significance of the proposed changes to voting and the accountability mechanisms of the regulator of elections, the Committee is disappointed that a Joint Committee was not appointed to scrutinise this Bill in draft, to help ensure the legislation is fit for purpose.

The Committee further notes the Government’s decision to amend the scope of the Bill by including additional measures on the voting system for all Police and Crime Commissioner, Combined Authority Mayoral and London Mayoral elections after the Bill was introduced, had its Second Reading and was part-way through The Elections Bill 65 Committee stage. As a result, the House was denied an important opportunity to debate the purpose and implications of the changes early on in its legislative process.

Given the lack of pre-legislative consultation and scrutiny on this constitutionally important Bill and the significant change in scope of the Bill after its introduction and Second Reading, the Government should include a statutory commitment to post- legislative scrutiny of the Bill on the face of the Bill.

We recommend that the Government amend the Bill to introduce a requirement that, within five years of the entry into force of the Act, a committee comprising a majority of Members of the House of Commons is established to review the operation of the Act and, if appropriate in consequence of its findings, make recommendations to the Government and to the House for reform (including making arrangements for the publication of the committee’s findings and recommendations, if any).

The Government has committed to respecting devolved competence where they are touched upon in this Bill. If this were to change, we expect the Committee and the House to be notified of the reasons for such a change in advance of a final vote on the Bill. One of the effects of the Bill would be to create further divergence between the rules for how elections are conducted in different parts of the UK. This is of concern as while some small differences can be accommodated and understood by the UK’s electorates, the increasing number of differences will add to the complexity and potentially to confusion for voters, electoral campaigners and electoral administrators. We are clear that this is not an issue caused by the UK Government alone. The four Governments of the UK should seek to develop a more coordinated approach to electoral policy and law.

Many of the proposed changes in electoral law are not being made on the face of the Bill, but will be determined by secondary legislation. The melange of delegated powers provided for in this Bill serves to highlight, and potentially adds to, the complexity of an already disparate body of electoral law. We are disappointed that more of the detail regarding how the measures to be introduced via this Bill are to be implemented is being left to secondary legislation rather than being included on its face.

The Government should present the draft secondary legislation as early as possible, as committed to by then responsible Minister, Chloe Smith MP, to enable due consideration by both Houses and stakeholders of the proposed secondary legislation that will provide further detail on the purpose and implementation of the Bill prior to that legislation being laid or made. (Paragraph 49) Voter ID requirement

There appears to be potential for a contradiction in the drafting of Schedule 1 as the provisions setting out both the Voter Card and the Anonymous Voter Card leave open the possibility of a limited period of validity. However, the rules for the documents which can be accepted as forms of identification at a polling station state that such identification will be accepted “regardless of expiry date”. If this is a drafting error the Bill should be amended. If this is not a drafting error, a clearer 66 The Elections Bill explanation needs to be provided as to how a period of validity could work for a Voter Card if an expiry date is not a bar to it being used for its sole purpose at a polling station.

The process of carrying out elections in the UK, the ease with which members of the electorate can cast their vote, and the trust that is shown in and by the electorate in general is an admirable and crucial tenet of our democratic process. These arrangements should be cherished and protected, and great care must be taken whenever consideration is given to altering them. Introducing a compulsory voter ID requirement risks upsetting the balance of our current electoral system, making it more difficult to vote and removing an element of the trust inherent in the current system.

The Government presented to the Committee a case that there is underreporting of personation at UK elections. While the Government refused to be drawn on how extensive it believes the underreporting has been, it has implied that it is at a significant enough level to justify introducing a compulsory voter ID requirement. What is clear is that there is currently no evidence of widespread personation at UK elections, though we note the former responsible Minister’s observation that cases of electoral fraud are likely underreported, so that nobody can be sure that the reported number of cases accurately reflects the true scale of fraud being carried out. It is surprising and concerning that the Government has considered there to be a significant issue with the UK’s elections system and has not endeavoured to seek out and present substantial evidence of those concerns. The research done to provide evidence to support this policy proposal has simply not been good enough. Given the Government’s conviction on this issue, Ministers should have presented a more robust evidence base.

There have been concerns raised that introducing a voter ID requirement will negatively impact voter turnout. The evidence from what happened in Northern Ireland in 2003 following the move to a photographic ID suggests that a reduction of around 2.3% is possible. We cannot be sure whether this is a one-off drop or one that will continue, as continued monitoring of this issue did not take place in Northern Ireland. What is evident is that some reduction in voter turnout is possible as a result of implementing a voter ID requirement and that this may be the cost of using these measures to guard against the potential that personation could take place under the old system.

The Government has said the measures in the Bill are proportionate. Given the potential for a significant number of people not to vote as a consequence of the voter ID requirement, the Government should not proceed with its proposals for the introduction of ID for voting until at least it has set out the criteria that were used in this proportionality assessment and explained the weight given to each criteria in the assessment. The Committee notes the widely voiced concerns about the potential impact of the introduction of mandatory voter ID on certain societal groups and for some with protected characteristics, including people with disabilities, members of LGBTQ + communities, black and ethnic minority groups and older people and consequently recommends that the Government pauses legislation on this issue until The Elections Bill 67 further research and consultation has been undertaken into the impact on these groups and the potential of any mitigation measures with the aim of securing greater agreement for any voter ID proposals.

We are pleased to see that the Government has included a monitoring and reporting requirement for voter ID in the Bill. We recommend that close attention is given not only to the number of people who arrive without appropriate ID, but also the demographics of these people. In addition to this, the Committee recommends that parallel research is carried out to assess the number of people who are deterred from even attending a polling station due to the voter ID requirement. This will enable the wider impact on voter participation to be understood and assessed.

The Committee appreciates that the Government has included a wide range of forms of identification in its list of acceptable identification in the Bill. The purpose of the Government’s proposals to introduce a voter ID requirement are to ensure that the person who turns up at the polling station is the named person on the electoral register. To meet this requirement, all that is needed is an ID that has the person’s name and their photograph. We recommend that any ID issued by a public authority, educational institutions, approved schemes such as PASS ID or a transport providers should be accepted as proof of identification for the purposes of voting at a polling station. To ensure clarity for administrators, the Government should produce a standardised design/guides for public bodies, educational institutions and transport providers to follow on issuing ID such as the inclusion of a PASS ID hologram.

We are concerned that the voter ID requirement will be burdensome to poll station staff. Many of the practicalities of the voter ID system are still to be set out and the Committee intends to monitor these closely. We recommend that all regulations establishing the voter ID system are provided in draft to this and other interested Committees for scrutiny with sufficient time for comment, before they are introduced to the House. (Paragraph 102) Voting for persons with disabilities

We welcome the Government’s move to update electoral law to widen the requirement for anyone and everybody who may have a disability or a need for support in casting their vote. We also take on board the concerns expressed by the Royal National Institute for the Blind and Sense about the potential for the legal protection for blind and partially sighted people to vote independently. We recommend that the Electoral Commission be tasked with creating minimum standards for the equipment to be provided by electoral administrators. These standards should seek to ensure that people are able to vote independently where possible. The Committee recommends that the legal protection for blind and partially sighted people to vote independently is maintained as a requirement.

There will inevitably be cost implications associated with widening the support for people with disabilities. The Government should set out how much it expects new equipment to cost and indicate what financial support will be made available to local authorities to meet the new requirements. (Paragraph 110) 68 The Elections Bill Postal and proxy voting

The Government’s reasons for making these changes to the laws on postal voting appear valid and justified to the Committee. The Committee recommends that the Government sets out regulations to the effect that local authorities must notify people in advance of the expiry of a postal vote to ensure that they do not accidentally find themselves unable to vote at an election.

We agree with the Government that it is sensible to limit the number of proxy votes that can be exercised by individuals to two for domestic electors, and four for overseas electors. (Paragraph 118) Overseas electors and changes to the franchise for foreign nationals

The Committee welcomes the removal of the 15-year limit on overseas electors participating in UK parliamentary elections.

The proposals in the Bill on voting and candidacy rights of EU citizens would create a complex system that is likely to lead to confusion and difficulties for electoral administrators, electoral campaigners and voters in determining who is eligible to vote and stand for elections at local government elections in England and Police and Crime Commissioner elections in England and Wales. People from the same country will have different rights depending when they arrived in the UK. The Committee recommends that the Government considers further the option of a residency-based approach in future reforms. (Paragraph 130) The Electoral Commission

The Committee notes widespread concerns presented in written and oral evidence to this Committee that there was no formal or public consultation on these proposals and that there is a lack of supporting evidence to demonstrate that the proposed measures are both necessary and proportionate.

The Committee reiterates the importance in upholding the actual and/or perceived independence of the regulator and considers that effective scrutiny of the Electoral Commission’s work by the UK’s Parliaments is essential to ensuring the Commission is held to account in the discharge of its statutory duties. A regulatory framework which achieves this balance is crucial for upholding public confidence in the regulator and in electoral outcomes.

The Committee considers that the substantive duty of the Electoral Commission to “have regard to the Statement” should be clarified. We recommend that the Bill be amended to provide that the Electoral Commission is able to depart from the guidance set out in the Statement if it has a statutory duty to do so or if it reasonably believes it is justified in specific circumstances. This amendment is necessary to give effect to the Government’s stated intention that the Statement will not amount to a power to direct the Electoral Commission, and to protect the Electoral Commission’s independence. (Paragraph 150) The Elections Bill 69

The Committee considers that the proposed consultation procedures require further clarification to ensure a transparent and meaningful consultation process.

The Committee urges the Government to provide guidance, as a matter of urgency, on the proposed consultation mechanisms, which should be agreed with the list of statutory consultees in advance of publication. We recommend that the guidance: a) sets out who will be consulted and when: b) provides minimum timeframes for the statutory consultees to respond; c) clarifies, through the use of examples, “necessary” in new section 4C(3) (Secretary of State’s power to amend following consultation) so that consultees have some certainty regarding their submissions and the Secretary of State is prevented from refusing to make amendments that would encroach on the Electoral Commission’s independence; and d) clarifies when new section 4(E)4 consultation requirements are likely to be disapplied.

Given the Government’s stated objective of improving parliamentary scrutiny of the Electoral Commission, we recommend the application of the ‘super-affirmative procedure’ for approval of the Statement, to ensure that parliamentarians have the formal opportunity to feed into and make recommendations on the draft Statement before it is laid for approval (via the ‘affirmative’ parliamentary approval procedure). We consider this additional scrutiny step is necessary and proportionate given the novelty and importance of the Statement.

At a minimum, under the affirmative procedure, the Government should set a precedent for any future governments by committing to find time for a debate on the Floor of the House of the Statement once laid in draft for approval.

The Committee would support any measures that increase transparency in the way the Electoral Commission’s compliance with the Statement is assessed by the Speaker’s Committee.

The Speaker’s Committee may wish to develop the use of SMART objectives in monitoring and assessing the Electoral Commission’s compliance with the Statement. Furthermore, reports should clarify the consequences of any disagreement(s) between the Electoral Commission and the Speaker’s Committee.

Noting the importance in maintaining the perceived and actual independence of the Electoral Commission, the body which scrutinises the Electoral Commission’s compliance with the Statement and will play a key role in the consultation process (including providing any objections to the disapplication of the consultation procedures) must itself be seen to exercise its powers impartially and with cross- party support. We note support from external stakeholders for including lay members on the Speaker’s Committee and that no single party exercises a majority on the Committee. (Paragraph 187) 70 The Elections Bill

The Government has not demonstrated that the proposed measures impacting the Electoral Commission are both necessary and proportionate, and therefore risks undermining public confidence in the effective and independent regulation of the electoral system.

The Committee considers that transparency and confidence in the proposed measures impacting the Electoral Commission could have been enhanced if the Government had first conducted a public consultation on the proposed measures— including the consultation, designation and approval mechanisms for the Statement, and changes in the composition of the Speaker’s Committee.

The Committee’s inquiry into the work of the Electoral Commission is ongoing, covering a wide range of issues including the regulator’s governance and accountability arrangements.

We recommend that—notwithstanding the proposed recommendations set out above in paragraphs 150, 161, 167, 168 and 178—Clauses 13 to 15 of the Bill are removed, pending a formal public consultation on the proposed measures and to take into account any recommendations put forward by this Committee in its final report on the work of the Electoral Commission.

The Government has not clarified whether more resources and training will be provided to the police and Crown Prosecution Service (CPS) and Public Prosecution Service in Northern Ireland (PPS) to investigate alleged criminal offences under PPERA.

The Government should set out how it will “support the police as necessary to enforce electoral regulation proactively and effectively”, as committed by the Government in its letter to the Committee of 7 October 2021, including what resources it will make available to the police to investigate and bring forward criminal prosecutions under PPERA.

We urge the Government to commit to review, monitor and report on potential criminal breaches under PPERA and their enforcement, which would assist in bringing forward any further legislative changes to either the civil and/or criminal sanctioning regimes. The Government should publish its findings and lay a Statement in Parliament every year.

The Government should also commit to undertaking a review of the civil sanctioning regime for electoral law offences and its interplay with criminal prosecutions under PPERA and the RPA, providing a timetable for consultation and review of the CSPL’s recommendations in this regard. (Paragraph 202) Regulation of Expenditure

We note the Government’s insistence that it is not able to incorporate a number of measures in the Bill now that it has been introduced. However, the Government has changed the scope of the Bill after introduction by amending the Bill at Committee stage to bring about a change in voting system for certain elections (as detailed in section 11 below). Furthermore, the Committee notes that the Government still The Elections Bill 71 has an opportunity to put forward and/or support amendments that implement the recommendations identified by the CSPL as the Bill progresses through its remaining stages in both Houses.

The Government’s response to the CSPL report on electoral finance regulation provides no indication of which of its recommendations (not already included in the Bill) the Government is likely to adopt (via amendment), prioritise for consultation or when or how the Government proposes to give legislative effect to recommendations that will not be included in the Bill. The Government should give clarity on its next steps in this regard. (Paragraph 216) Digital imprints on campaign material

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. (Paragraph 224) Simple majority system to be used in elections for certain offices

Regardless of the benefits or disadvantages of the changes made by the Bill to the electoral system for those offices, the manner in which the proposed legislative change was brought about is unsatisfactory. Making changes such as this after the Bill has been introduced and debated at Second Reading is disrespectful to the House. (Paragraph 232) 72 The Elections Bill