Recommendation 33

HM Government Acknowledged

The consultation mechanism for the designation of the Strategy and Policy Statement is already outlined in detail in new sections 4C, 4D and 4E of PPERA. The provisions state clearly that the Secretary of State must review and consult all statutory consultees before submitting a new Strategy and Policy Statement to parliamentary approval at least once every five years. Those statutory consultees are: the Electoral Commission, the Speaker’s Committee on the Electoral Commission, and the Public Administration and Constitutional Affairs Committee. Parliamentary consequences of the recent machinery of government changes, whereby ministerial responsibilities for elections now sit with the Department for Levelling Up, Housing and Communities will mean that the Public Administration and Constitutional Affairs Committee may need to be replaced with the Levelling Up, Housing and Communities Committee as a statutory consultee on the Statement. This would align the consultation requirements with the recent change to the membership of the Speaker’s Committee. In addition, the provisions as introduced in the House of Commons contain a requirement on the Secretary of State to consult Welsh and Scottish ministers (as relevant) so far as the guidance relates to the Commission’s devolved Welsh and Scottish functions. Since the Government requested legislative consent for this measure, the Welsh and Scottish Governments have recommended that the Senedd and Scottish Parliament do not grant legislative consent to this measure. In line with this, the Government is preparing amendments such that the Statement must not contain provisions that relate to the devolved functions of the Commission. Amendments to remove the requirement to consult Welsh and Scottish ministers on the guidance will also be considered as this requirement will be made redundant by restricting the Statement to the Commission’s reserved functions. The Government welcomes continued engagement with counterparts in the Welsh and Scottish Governments to support consistency and coherence in electoral law across the United Kingdom. The Government notes the Committee’s suggestion to set minimum timeframes for consultation but considers it would be disproportionate and unnecessarily burdensome. Under these provisions, any revisions that go beyond clerical or typographical errors to the Statement will be subject to consultation unless the Secretary of State makes a determination under new section 4E(4) that this obligation does not apply. This means that under the Committee’s proposal, the Secretary of State may in the future need to consult on minor or urgent changes to the Statement that would not require the same amount of time for consideration. For this reason, the Government considers it is preferable to keep consultation times flexible so they can be adapted depending on the scale and urgency of the changes being considered. Further, the Government is clear that in exercising their duty to consult on a draft Statement, the Secretary of State will operate within the framework of Government guidance on ‘Consultation principles’.12 As such, the Government considers that no further guidance is required. Consideration of ‘necessary’ changes to be made to the draft Statement following a statutory consultation will be left to the appreciation of the Secretary of State as part of the exercise of their power to draft and designate the Statement (before seeking parliamentary approval). The Strategy and Policy Statement will set out guidance for the Electoral Commission with regards to government priorities. It is therefore important that the Secretary of State is given the power to make any changes they consider necessary to the draft under new section 4C of PPERA. As previously stated in correspondence to the Committee, the Government feels the wording used in the Bill is sufficiently clear. It describes the use of ministerial powers in the ordinary meaning of the word ‘necessary’ and as such does not need defining further in guidance. The provisions also give the Secretary of State powers to make more frequent changes to the Statement to ensure it remains up-to-date and agile. When doing so, the Secretary of State will still be required to consider the Speaker’s Committee’s view on whether any revision to the Statement requires a full statutory consultation. If they disagree with the Speaker’s Committee’s view, the Secretary of State will need to justify this determination in a ministerial statement. The Government must also notify the statutory consultees of the revisions to the Statement. The Government expects the consultation requirements outlined in new section 4C(2) will typically be disapplied (under new section 4E(4)) for any uncontroversial or minor changes to the Statement (e.g. to reflect a minor update in the description of a government priority in the Statement). Any change to the Statement (other than corrections of clerical or typographical errors), whet