Recommendation 30

HM Government Acknowledged

The Government agrees that it is crucial that Parliament is clear on the effect and implications of proposals relating to the accountability of the Electoral Commission introduced by the Elections Bill. For this reason, the Government has already tabled three written ministerial statements (HCWS100,6 HCWS269,7 HCWS2908) which provided information about the impact of the Commission’s duty to have regard to the Strategy and Policy Statement on its other statutory duties and showed parliamentarians an illustrative example of the kind of guidance the Commission may be required to have regard to in the exercise of its functions. As explained in previous correspondence9 with the Committee dated 7 October 2021, new section 4B(2) of the Political Parties, Elections and Referendums Act 2000 (PPERA) introduces a requirement for the Commission to have regard to the Statement in the discharge of its functions. The clause already maintains the operational independence of the Commission as under new section 4B(2) the Commission will only be required to have regard to the Statement (and, under new section 4B(4), to report on consideration given to the Statement in the exercise of its functions). This duty does not replace or undermine the Commission’s other statutory duties and the clause does not otherwise provide that the Commission should disregard any of its existing statutory duties as a result of the Statement. This means that the provisions do not give the Government the power to direct the Commission’s decision-making. It is not uncommon for the Government to set a broad policy framework, as approved by Parliament, which independent regulators should consider (e.g. Ofcom, Ofwat). Further, as previously stated, the duty to ‘have regard’ is not a novel concept in primary legislation and works in similar ways to other existing statutory duties which require public bodies to ‘have regard’ to specific considerations in the carrying out of their functions. For instance, the requirement for specified authorities to have “due regard to the need to prevent people from being drawn into terrorism” in the exercise of their functions10 or the public sector equality duty setting out equality-related matters to which public authorities must have due regard when exercising their functions.11 In this instance, it simply means that when carrying out its functions the Commission will be required to consider the Statement and weigh it up against any other relevant considerations. This is because whilst the clause provides that the Commission must have regard to the Strategy and Policy Statement in new section 4B(2) of PPERA, it does not otherwise provide that the Commission should disregard any other considerations. As such, it is already implicit in the clause that, rightly, the Statement will be one amongst a range of other considerations for the Commission to take into account in the exercise of their functions. The Government does not consider this needs clarifying further on the face of the Bill.