The government’s strategy and policy statement for the Electoral Commission: Regret motion

On 6 February 2024, the House of Lords is due to debate a motion to approve the government’s final draft of the strategy and policy statement for the Electoral Commission.^[1]

The Electoral Commission (EC) is the independent body that oversees elections and political finance in the UK.^[2] It is accountable to Parliament through the House of Commons Speaker’s Committee on the Electoral Commission.^[3]

The introduction of a strategy statement has been controversial. Lord Khan of Burnley (Labour) has laid a regret motion related to the statement, which is also due to be debated on 6 February 2024. It is a non-fatal motion. If agreed, the motion would formally signal that the House of Lords has reservations about the statement, but it would not prevent the government from proceeding with it. The wording of Lord Khan’s regret motion states:

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 [House of Commons] 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”.^[4]

1. What does the final draft statement cover?

The draft statement “sets out the government’s strategic and policy priorities and the roles and responsibilities of the commission in enabling the government to meet those priorities”.^[5] The government said the statement would help it to “tackle issues such as voter fraud, to improve the accessibility of elections, and to improve participation”.

The final draft set out a range of the government’s priorities, which included:

• Ensuring our democracy is secure, fair, modern and transparent.
• Tackling electoral fraud through the introduction of voter identification.
• Championing freedom of expression and tolerance by working to remove intimidation in public life.
• Supporting participation by informing the public about the franchise and electoral registration.
• Combating the threat of foreign interference in UK elections by ensuring compliance with the political finance framework.^[6]

2. Background

2.1 Legislative basis for the statement

In 2021, Boris Johnson’s government announced that it would legislate to reform the governance arrangements of the Electoral Commission. In a House of Commons written statement it set out its justification:

The public rightly expects effective and independent regulation of the electoral system […] In recent years, some across the House have lost confidence in the work of the commission and have questioned the adequacy of the existing accountability structures […] The government is therefore announcing today that we will bring forward measures in the forthcoming Elections Bill to improve the Electoral Commission’s accountability arrangements through the introduction of a strategy and policy statement that sets out guidance and principles to which the commission must give regard in exercising its functions.^[7]

When the Elections Bill was introduced in the House of Lords, it included clause 15 which amended the Political Parties, Elections and Referendums Act 2000 to insert sections 4A–E. Those provisions introduced a power for the government to designate a strategy and policy statement for the Electoral Commission and required the commission to “have regard” to it when carrying out its functions.

There was opposition to those provisions of the Elections Bill during House of Lords report stage on 25 April 2022.^[8] Lord Judge (Crossbench) moved an amendment to remove clause 15 from the bill. He said it was “repugnant” to the principle of the commission’s independence from government. The House of Lords agreed to the amendment on division, by 265 votes to 199.

At ping pong stage in the House of Commons, the government overturned the defeat on clause 15.^[9] However, due to the “strength of feeling” in the House of Lords, the government introduced further amendments to explicitly prevent the strategy and policy statement from including reference to the commission’s investigatory or enforcement activity. The government also passed amendments to ensure that the statement would be subject to an enhanced level of parliamentary scrutiny, known as the ‘super-affirmative’ procedure.^[10] The government was required to publish a draft statement, conduct a statutory consultation, followed by a period of representation from parliamentarians.

The House of Lords accepted the government’s amendments related to the strategy statement made during ping pong, and the bill was passed. Further commentary on the House of Lords stages of the Elections Bill can be found in the House of Commons Library briefing, ‘Elections bill 2021–22: Progress of the bill’, 4 May 2022.

2.2 First draft statement and statutory consultation

In August 2022, the government published a draft statement and launched the statutory consultation, which ran until December 2022.^[11]

In response to the consultation, the House of Commons Levelling Up, Housing and Communities Committee ran an inquiry on the draft statement. The committee concluded that the “overwhelming viewpoint from the evidence received was that no statement is necessary at the current time, and no evidence has been provided justifying it”.^[12] The committee also said that the statement “proceeds on the basis that government priorities must automatically also be commission priorities, and for the most part reads as though the commission was an arm of government”. It said that, if the statement was made, it “is of paramount importance […] that the commission’s independence from government is made clear throughout the statement”.^[13]

The House of Commons Speaker’s Committee on the Electoral Commission was also critical of the draft statement in its consultation response in December 2022. It concluded:

The draft statement is currently neither necessary, nor likely to assist the commission in its pursuit of the aims and objectives already approved by the Speaker’s Committee and adopted by the commission.^[14]

The Speaker’s Committee said that, in its view, the EC “generally performs its role effectively” and that the draft statement was “likely to hinder, rather than enhance, the commission’s work”.^[15]

2.3 Revised draft statement and representation from parliamentarians

On 19 June 2023, the government published its response to the consultation and its revised draft of the statement.^[16] In its response, the government said that it had addressed concerns by amending the statement:

[…] To make a number of clarifications and provide additional reassurances that the statement in no way amounts to the government directing the commission. These amendments […] also clarify that the statement articulates the government’s view of factors which the commission should have regard to, but that the electoral commissioners and the commission’s executive leadership remain responsible for determining how the commission should exercise its functions.^[17]

There was then a 60-day period to allow representation on the revised draft from parliamentarians. That period ended on 14 September 2023.

2.4 Final draft statement

On 14 December 2023, the government published the final draft of the strategy and policy statement.^[18] It also published an explanatory memorandum on the statement and the government’s response to the parliamentary representations.^[19]

Also on 14 December 2023, the government made a House of Commons written statement which said that it would not be making any further amendments to the draft statement published in June 2023.^[20] The government said that the representations of parliamentarians had “reiterated views articulated during the statutory consultation”, particularly concerning the “impact the statement could have on the independence of the Electoral Commission”. The government said that it had already made amendments to the draft statement, and that in its view:

[T]he remaining objections are matters which cannot be satisfied by amending the statement without compromising significantly its original policy intent.^[21]

The publication of the final draft statement on 14 December 2023 marked the start of a 40-day period in which both Houses of Parliament must approve the statement.

3. What has the Electoral Commission said about the statement?

The Electoral Commission has opposed the introduction of a government statement since it was first included in the Elections Bill in 2022. In February 2022, the EC published an open letter to the government criticising the proposal.^[22] The letter was signed by the entire board of the EC and the commissioners for the devolved nations.^[23] The letter stated:

It is our firm and shared view that the introduction of a strategy and policy statement—enabling the government to guide the work of the commission—is inconsistent with the role that an independent electoral commission plays in a healthy democracy […] If made law, these provisions will enable a government in the future to influence the commission’s operational functions and decision-making.^[24]

The letter said that the statement had “no precedent in the accountability arrangements of electoral commissions” in other comparable democracies, such as Canada, Australia or New Zealand.

Following the publication of the draft statement in June 2023, the EC published a briefing on the statement.^[25] The EC stated:

It is fundamental to maintaining confidence in our electoral system that an electoral commission remains independent from governments, and that this independence is clear for voters and campaigners to see. The introduction of a mechanism such as a strategy and policy statement—by which a government can guide an electoral commission’s work—is inconsistent with this independent role.^[26]

The EC said that a government statement could “add complexity, confusion, and extra legal risk” to its work. The EC said that its functions were already set out in law and that any “differences in wording or emphasis” to its existing duties could be “exploited for legal challenge of its decisions, undermining confidence in its regulation”.

On 25 January 2024, the EC published a briefing in response to the publication of the final draft of the statement.^[27] The briefing reiterated many of the same objections the EC had made in June 2023. It claimed that “repeal of the power for government to designate a statement would improve confidence and trust” in the UK’s electoral system.

4. Read more

• Electoral Reform Society, ‘Electoral Commission chair calls out government on voter ID and finance loopholes’, 25 January 2024
• Josiah Mortimer, ‘Government accused of “destroying” independence of UK’s election watchdog as new “priorities” imposed on Electoral Commission’, Byline Times, 19 December 2023
• John Pullinger, ‘The future of the electoral system’, UCL Constitution Unit, 1 August 2023
• House of Commons Library, ‘Strategy and policy statement for the Electoral Commission’, 21 December 2022
• Alan Renwick, ‘The Elections Bill’s proposals on Electoral Commission governance: Risks to electoral integrity and devolution’, UCL Constitution Unit, 30 September 2021

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