Review of the Electoral Commission

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Leadership Holders of public ofﬁce should promote and support these principles by leadership and example. Eleventh Report of the Committee on Standards in Public Life

Chairman: Sir Alistair Graham

Review of The Electoral Commission

Report

Presented to Parliament by the Prime Minister by Command of Her Majesty January 2007 Cm 7006 £18.63 (inc. VAT in UK) © Crown Copyright 2007 The text in this document (excluding the Royal Arms and departmental logos) may be reproduced free of charge in any format or medium provided that it is reproduced accurately and not used in a misleading context. The material must be acknowledged as Crown copyright and the title of the document speciﬁed. Any enquiries relating to the copyright in this document should be addressed to The Licensing Division, HMSO, St Clements House, 2-16 Colegate, Norwich, NR3 1BQ. Fax: 01603 723000 or e-mail: licensing@cabinet-ofﬁce.x.gsi.gov.uk Chairman: Sir Alistair Graham January 2007

I have pleasure in presenting the Committee’s Our proposals also include a strengthening Eleventh Report which deals with a review of of the governance of the Commission, by the mandate, governance and accountability the inclusion of commissioners and staff with of The Electoral Commission, which was contemporary experience of politics and the established in 2000 following recommendations political process, and also improvements to in this Committee’s Fifth Report in 1998. the transparency and effectiveness of the accountability of the Commission to Parliament, The establishment of an independent Electoral principally through the Speaker’s Committee. Commission by your Government in 2000 was very welcome and, in the view of many Many of our recommendations will require commentators, overdue. We continue to legislation, which we propose should be believe that the Commission is a necessary introduced in the next parliamentary session, and, if effective, vital part of the institutional and are therefore directed at the Government. architecture needed to support and maintain Some others can be achieved without legislation our democratic system. However, the evidence and are therefore directed at the either The received by the Committee during our inquiry Electoral Commission itself, or the Speaker’s indicates that there has been a reduction in Committee of the House of Commons. confidence in issues that underpin two key pillars of our democratic process: the integrity We are clear however that implementation of our electoral administration system; and the of these measures will not, on their own, be framework for the regulation of political party sufficient to restore confidence. Government, funding; both of which in the Committee’s view Parliament and political parties all have their should have been the core tasks and priorities own critical role to play. of The Electoral Commission. This has not been the case to date. Finally, the Committee has kept in close touch with Sir Hayden Phillips who is conducting the Confidence and consent in our democratic review of political party funding on your behalf. processes is the bedrock on which all public We are confident that our proposals regarding office is built. We believe that to restore the regulatory role of the Commission will be confidence in these two key pillars we need complementary and supportive to any changes an Electoral Commission that will, in future, to the regulatory framework he proposes in his operate as a tightly focussed, independent, final report to you. strategic regulator concentrating on these two core tasks and with the necessary leadership, My colleagues and I commend this report to you. governance, skills and experience to perform We believe that the health of our democratic them effectively. processes would be greatly enhanced by the adoption of our recommendations. We have therefore set out a package of inter- related recommendations to refocus radically the mandate of the Commission on these two core duties and to provide the framework that will enable it to deliver this successfully. In light of the core role we envisage the Commission playing as the regulator of electoral administration we have also addressed issues regarding the integrity of the electoral process itself, and recommend that a decision be made now to move to a system of individual voter registration after the next general election. Alistair Graham

i Review of The Electoral Commission

CONTENTS

EXECUTIVE SUMMARY AND LIST OF RECOMMENDATIONS 1

Chapter 1 INTRODUCTION AND CONTEXT 19 The Committee and its terms of reference 19 The purpose and scope of the inquiry 19 The inquiry process 20 Structure of the report and recommendations 21 Context of the inquiry 21 Developments since 2000 22 Summary 24 The framework within which the Committee works 24 Acknowledgements 24

Chapter 2 MANDATE OF THE ELECTORAL COMMISSION 27 Overview 27 Regulation of political party funding and expenditure 28 Regulation of electoral administration 36 Regional electoral ofﬁcers 39 Performance standards 40 Funding of electoral administration and elections 42 Electoral boundaries 43 Increasing participation in the democratic process 47 Policy development and advice 49 Election reports 51

Chapter 3 GOVERNANCE OF THE ELECTORAL COMMISSION 53 Introduction 53 Overview 54 Restrictions on staff of The Electoral Commission 55 Electoral commissioners 56 Devolved administrations 60 The role of the chair and commissioners 61 Appointment of the chair and commissioners 62 Conclusions 62

ii Contents

Chapter 4 ACCOUNTABILITY OF THE ELECTORAL COMMISSION 65 Introduction 65 Accountability to Parliament for the proper expenditure of funds66 Accountability of general performance to Parliament 72 Accountability to the devolved administrations 74 Accountability to political parties 75 Conclusion 76

Chapter 5 INTEGRITY OF THE ELECTORAL PROCESS 79 Introduction 79 Electoral fraud 80 Electoral registration 91

Appendices

A: List of written submissions 99 B: List of witnesses who gave oral evidence 101 C: Previous reports by the Committee on Standards in Public Life 103

About the Committee 105

iii Review of The Electoral Commission

iv Executive summary and list of recommendations

EXECUTIVE SUMMARY AND LIST OF RECOMMENDATIONS

1. Introduction 1.5 The mandate of The Electoral Commission has an impact on key issues such as 1.1 The Committee on Standards in Public Life electoral administration, conduct of was established in October 1994 by the elections and standards of propriety in then Prime Minister, the Rt Hon Sir John financing political parties. Each of these Major. It was given wide terms of reference issues has been the subject of recent public to examine current concerns about the concern, and each affects the way people standards of conduct of all public office- engage in politics and the broader question holders. The Committee’s terms of of political legitimacy. reference were extended in November 1997, by the present Prime Minister, the Rt 1.6 For these reasons the Committee believed Hon Tony Blair MP, to include issues in it was important to ask now, some five relation to the funding of political parties. years after its creation and following the The Committee has published ten reports second general election to be held since its covering virtually all public office-holders establishment, whether the Commission’s and the funding of political parties. current mandate, governance arrangements and accountability framework are 1.2 The Committee’s Eleventh Inquiry: A appropriate for the purpose required Review of The Electoral Commission began of the Commission [1]. in February 2006 with the publication of an Issues and Questions Paper [1]. Since then 1.7 This inquiry is not therefore a review the Committee has carried out a thorough or stock-take of how or whether the process of consultation and analysis, taking recommendations in the Committee’s Fifth oral evidence from 83 witnesses and Report have been implemented by the receiving 78 submissions. In addition we Government or others. Rather, it looks have commissioned two pieces of forward to ensuring that The Electoral supporting research; and Committee Commission can play its important role in members visited five local authority delivering the outcomes required from the electoral administration offices and a small regulatory frameworks for elections and group undertook a study tour of political parties. comparable institutions in Canada and the USA. 1.8 The inquiry took place against a backdrop of continuing public concerns about: the 1.3 This, our Eleventh Report, sets out the arrangements for voter registration; postal Committee’s findings in full and the voting on demand, and the link to a associated CD-Rom includes all of the number of high-profile legal cases on evidence, written and oral as well as the electoral fraud; and allegedly circumventory research reports and a summary of the loans to political parties with allegations overseas study tour. This executive summary that these were connected to the awarding provides an overview of the main findings of honours. The latter influenced the Prime and a full list of the recommendations we Minister’s decision in March 2006 to ask Sir have made. Hayden Phillips to undertake a review of the funding of political parties, which has 1.4 The Electoral Commission was established yet to report [4]. as an independent statutory body on 30 November 2000, following the 1.9 These concerns directly relate to two key recommendations of the Committee’s Fifth pillars of our democratic system that were Report, The Funding of Political Parties in constantly referred to during our inquiry the United Kingdom [2] and the and have formed the principles against subsequent commencement of the Political which the standards we wish to see Parties, Elections and Referendums Act achieved in the areas of interest may 2000 (PPERA) [3]. be measured: 1 Review of The Electoral Commission

1.10 Free and fair elections. Effective electoral • show courage, confidence and administration underpins our democracy. competence in pursuing an independent There cannot be democracy without and impartial approach to ensuring elections and elections cannot be free and compliance with the regulations. It must fair unless electoral rules are fair and accept that it will not always be popular coherent, unless they are properly with the parties and that pressure, overt administered and unless they are actively and covert, will always be applied in enforced [5]. Core functions that must be attempts to influence its approach. It must effectively undertaken to achieve this are: use a risk-based approach to decisions and actions1; and, at the same time • ensuring that everyone who is entitled to vote is included on the electoral register • recognise that political parties are much before an election and that everyone more like large voluntary organisations registered can exercise their vote, in than organisations in the public or private secrecy if they wish. The right to register sector usually subject to regulation. and the right to vote is an equal right for Behind each career politician stands a those who are eligible and should be regiment of dedicated voluntary party kept as simple as possible and any workers; even the local treasurers and barriers kept to a minimum whilst election agents (who are subject to ensuring that; regulation) of the largest parties are mostly volunteers. The approach of the • everyone not entitled to vote is excluded regulator must be sensitive and from the register and from voting. Voting proportionate to the voluntary nature fraud should be minimised by avoiding of much of political parties’ infrastructure. rules that facilitate such fraud and by proactive deterrence and enforcement; 1.12 It is within this framework that the and Committee has considered the role of The Electoral Commission. • determining electoral boundaries in a way that is fair to electors, non-partisan, 2. Overview immune from political interference and up to date with population movements [6]. 2.1 The Electoral Commission is a necessary and, if effective, vital part of the modern 1.11 Healthy, competitive political parties. institutional architecture needed to support Political parties are essential to democracy. and maintain our democratic system. Its We elect a Government through a creation five years ago was, in the view of parliamentary democracy which is not many, overdue and occurred long after about voting on single issues but about many comparative democracies created a wide range of important choices and similar institutions. priorities [7]. The way in which political parties are funded, and how those funds 2.2 Since its creation the Commission has been are expended, are therefore a matter of welcomed by many electoral administrators legitimate public interest. People ask who and some politicians. Its expertise, guidance is paying? And how much? In return for and role as a central point on electoral what? Is it British or foreign money? [2]. issues has been helpful and, without doubt, A regulatory framework for the funding its presence has been a significant factor in of political parties has therefore been highlighting the importance of electoral required to eradicate the grounds for issues to the democratic process. All this is criticism and suspicion which leads to to be welcomed. public scepticism, and damages the political parties. The successful implementation of the regulatory framework, however, depends upon the approach taken by the regulator who must:

1 Which, in this case, means where the risk of non-compliance or lack of clarity in the regulations could lead to a signiﬁcant undermining of the conﬁdence the public and political parties have in the regulatory framework. 2 Executive summary and list of recommendations

2.3 However, in terms of the principles that are voter participation, combined with a wish set out in paragraphs 1.10 and 1.11 above, to work closely with government on its are the outcomes in the period since the electoral modernisation programme; Commission’s formation, highlighted in evidence during our inquiry, point to • the Commission has not fulfilled its role substantive matters of concern: as a regulator of party political funding and campaign expenditure. Uncertainty • a reduction in the confidence of the over its statutory role (in PPERA) combined integrity of the electoral administration with a degree of timidity, has led to an process. This has been caused, in part, administrative rather than a proactive by the introduction of postal voting risk-based regulatory approach. This has on demand and subsequent incidents contributed to what the Committee of electoral fraud and perceptions that regards as regulatory failure and has this may be increasing. Added to this undermined the confidence of the public are concerns about the accuracy and and political parties in the regulatory comprehensiveness of the electoral framework; and register, and the significant variations in standards of electoral administration • disproportionate restrictions (in PPERA) across the country; and designed to protect the independence and impartiality of the staff of the • a reduction of confidence in the Commission, have contributed to a lack of framework for the regulation of political necessary expertise within the Commission party funding and campaign expenditure, for it to perform its role effectively. caused in part by the controversy surrounding large loans taken out by the 2.5 The Committee’s recommendations have main parties and undeclared at the time been made to ensure that The Electoral of the last general election. Commission will operate as a tightly focused, independent, strategic regulator 2.4 Responsibility for this lowering of with the necessary leadership, governance, confidence must not be laid solely at skills and experience to enhance the the Commission’s door. It can be argued integrity and effectiveness of our that some changes were made against its electoral processes. advice, or without the safeguards they had identified and is a result of its advisory 3. Mandate rather than regulatory role in relation to electoral administration. It can also be 3.1 The Commission’s current mandate is argued that the Commission was merely too broad, diffuse and potentially conflicts operating in the regulatory role it with the core tasks we believe it should understood Parliament had prescribed for be in business to deliver. We therefore it, and that it is not responsible for recommend that its statutory mandate decisions the parties themselves took in should be amended and refocused so that relation to their own finances. the Commission’s two principal statutory duties are as regulator of political party Nevertheless the evidence received during funding and campaign expenditure; and this inquiry suggests that: as a regulator of electoral administration; with the stated aim of ensuring integrity • the very wide breadth of the and public confidence in both. We Commission’s mandate has led to a recommend that certain current statutory concentration on issues such as policy duties of the Commission are removed or development and voter participation significantly curtailed so it can focus on work at the expense of a more these fundamental roles. contentious proactive regulatory and advisory role;

• that this breadth of mandate introduced potential conﬂicts between a clear focus on ensuring the integrity and effectiveness of the electoral process and encouraging

3 Review of The Electoral Commission

Regulation of political party funding and Regulation of electoral administration campaign expenditure 3.4 We have aimed to build upon the measures 3.2 In order to ensure that the Commission has contained in the Electoral Administration the necessary clarity of mandate and Act 2006 which, for the first time, provided arrangements to ensure a proactive risk- the Commission with a regulatory role in based approach to the regulation of respect of electoral administration through political party finance, we make a number the responsibility to set performance of further recommendations, most standards for local authorities. The significantly: Committee recommends that, in light of the significant concerns about the variation • removal of any uncertainty about the in standards of electoral administration, regulatory role Parliament requires the this role is strengthened and deepened. Commission to play – it should no longer Most importantly we recommend the be required in statute to “monitor” but creation of regional electoral officers, as to “regulate”; statutory office-holders in each of regions in England, and in Wales and Scotland. • establishment of a compliance unit Their responsibility will be to monitor and within the Commission, separate from the report on performance standards and, in administration of the regulations, which co-operation with local authorities, to drive can take prompt, proportionate, up standards of electoral administration in investigative action; each region. In extreme cases, where there has been a failure to agree or to implement • adoption by the Commission of the measures for improvement in a particular practice of issuing advisory opinions on local authority, the regional electoral areas of uncertainty and lack of clarity in officers, via electoral commissioners, should the law, based upon sound competent be able to request the Secretary of State to legal advice; and exercise powers of direction over particular electoral officers. • the introduction of a system of financial penalties which can be applied by the 3.5 The regional electoral officers are therefore Commission for non-compliance, with an critical to the regulatory framework that appropriate appeal mechanism. This we propose for electoral administration. would supplement the existing criminal Equally important will be the performance sanctions that would continue to apply standards themselves which must be for the most serious breaches. proportionate and based on outcomes, not process. We believe the Commission should 3.3 However, these measures on their own will develop these standards working closely not produce the necessary transformation with local authorities and also with the of the Commission to a strategic risk-based Audit Commission, which has extensive regulator. This will also require leadership, experience in this area. Further, the a change of culture, and staff with the Commission, for this part of its mandate in necessary specialist skills and experience to England should be included in the ‘family’ perform this role. The recommendations of regulators that will come under the that result from Sir Hayden Phillips’ Audit Commission’s ‘Lead Inspectorate’ review may also add to the Commission’s framework. regulatory tasks in this area and the Commission must consider carefully how 3.6 In light of the Commission’s regulatory best it can effectively deliver these. Where, role in electoral administration we have for example, there may be a requirement concluded that to enable a clear focus for a programme of risk-based audit, the and to avoid potential conflicts, the Commission must consider contracting this responsibility for directing funding of out to an organisation such as the National electoral administration and of elections Audit Office, which already has the skills should remain with central government. and experience in this field. However, levels of funding provided for electoral administration should form part of the Commission’s considerations when reporting on the performance of individual local authorities.

4 Executive summary and list of recommendations

Electoral Boundaries Policy development and advice

3.7 The Committee agrees with The Electoral 3.10 In the Committee’s view, the Commission’s Commission that it should withdraw from responsibility to develop policy on electoral all boundary-setting work. In reaching this matters sits uncomfortably and is conclusion the Committee has been guided potentially in conflict with its core role as a by “if its not broken then don’t fix it”; and regulator of electoral matters. The the current process has been shown to be Department of Constitutional Affairs now impartial and independent. Nor do we has the capacity to develop electoral policy believe it is necessary for the Commission on behalf of the Government which is to have an oversight role concerning the wholly appropriate. This responsibility boundary commissions. However, we do should therefore be removed from the believe that there are significant benefits Commission’s mandate. We strongly from having joint secretariats of the believe, however, that the Commission respective parliamentary and local should continue to advise on the suitability boundary commissions in England, of existing and new electoral legislation Scotland, Wales and Northern Ireland. but in respect of its core duties – that is, to ensure integrity and public confidence in 3.8 During the inquiry the Committee received the electoral process. strong evidence pointing to deficiencies in the rules governing the review of 4. Governance parliamentary boundaries and the length of time such reviews take. These are serious 4.1 Striking the right balance between problems which can undermine our governance arrangements that ensure electoral system and must be addressed. independence and impartiality, and the Following the recent completion of the need for contemporary experience and fifth general review, the opportunity exists knowledge of the sector, is a challenge now for a review of the rules that could be faced by all regulators. But getting the implemented in time for the sixth general right balance is critical. It will help secure the review due around 2012. We recommend confidence of the public and those being that the Speaker’s Committee should regulated, demonstrate independence and commission such a review. impartiality, and ensure the regulator’s competence to fulfil its mandate. Increasing participation in the democratic process 4.2 The restrictions governing who can be an 3.9 The Commission’s statutory duty – employee of the Commission or become an supported by a ring-fenced £7.5m per electoral commissioner has, in our view, led annum budget – to increase participation in to a shortfall in experience and knowledge the democratic process does not, in the of the contemporary political process in the Committee’s view, support or fit with its Commission. Evidence gathered during this core regulatory tasks. It is clear that the inquiry shows that this has reduced the Commission has performed this role with confidence of political parties and great professionalism and its work is widely politicians who are subject to regulation, respected by experts in this field. However and this in turn has had an impact on the the evidence of any impact of this work, in Commission’s effectiveness. We have terms of increased turnout at elections, is therefore recommended a relaxation of at best mixed. Some have argued there has these restrictions that will: been negligible impact. The Commission’s own work suggests that it is competitive • avoid direct conflicts of interest; political parties that motivate people to exercise their right to vote. We therefore • maintain the independence and recommend that this broad statutory duty impartiality of the Commission; be removed from the Commission. However, we recognise the importance of • retain the unified nature of the board of creating effective public information commissioners, also taking account of the campaigns and publicity on the mechanics devolved administrations; of the electoral process. The Commission should retain this duty as it is clearly allied • enable the appointment of staff who to its core role. have direct contemporary experience and knowledge of politics and political parties; and

5 Review of The Electoral Commission

• enable the appointment of a minority of 6. Integrity of the electoral process commissioners who also have direct contemporary experience and knowledge 6.1 Maintaining integrity in the electoral of politics and political parties. process is central to the success of the Commission’s work. During the inquiry we 4.3 We also believe that the chair and received evidence regarding some well commissioners should now play an explicitly publicised concerns about the electoral non-executive role in their governance of process including: the Commission. Under the chair’s leadership, the commissioners must now • the introduction of postal voting on assume collective responsibility, as non- demand, the subsequent piloting of all- executive board members, for setting postal voting and the most recent the Commission’s overall strategy and changes to postal voting; overseeing its effective delivery by the executive team. Finally, we recommend • incidents of electoral fraud and that the Speaker’s Committee should perceptions that this may be increasing; oversee the process of appointing the and chair and commissioners, and that these appointments are made through an open, • the accuracy and comprehensiveness of competitive and independent process in the electoral register, and the system of line with the requirements of the electoral registration itself. Commissioner for Public Appointments. 6.2 We recommend that in future The Electoral 5. Accountability Commission must spell out, clearly and publicly to government and Parliament, if 5.1 Establishing effective accountability proposed changes to electoral law have the arrangements for The Electoral Commission potential to undermine confidence in or presents a particular challenge. As a the integrity of the electoral process. mechanism the Speaker’s Committee does, in principle, strike the right balance 6.3 Electoral fraud is a serious matter and the between holding The Electoral Commission Committee believes that the political to account for the use of public money in parties and Parliament should be fulfilling its statutory functions and continually vigilant about any threats to protecting its independence and our democratic processes. Evidence impartiality from possible undue influence presented to the Committee, and cases that for partisan political electoral advantage. have gone to court, indicate that electoral fraud is, if not entrenched, then a serious 5.2 However, evidence and experience indicates problem in certain groups, and affecting that the Speaker’s Committee could particular communities. We believe it is operate more effectively if its deliberations essential for The Electoral Commission to were made more transparent and if more seek to minimise this problem as a key part resources were made available to support of its regulatory approach. Regional it. We have made recommendations that electoral officers, working closely with we believe will enable this. electoral administrators, will have a critical role in identifying weaknesses in current 5.3 The Committee also considers that more practices and improving standards of fraud formal arrangements should be put in place prevention and detection. for The Electoral Commission to give a wider account of its activities to Parliament. 6.4 Finally, the system of electoral registration These would significantly improve the is perhaps the most critical element of the engagement between the Commission and electoral administration process. It is Members of Parliament. The Committee therefore essential that the electoral believes that this can be achieved if the register and the system of electoral Constitutional Affairs Select Committee registration retains the trust and (CASC) were to become the main confidence of both the electorate and mechanism through which the Commission political parties. There appears to be a can account for its performance to consensus among political parties, The Parliament; and also by holding regular Electoral Commission and most electoral parliamentary debates about the administrators that individual registration, Commission’s work. as opposed to registration completed and signed by one named person in the

6 Executive summary and list of recommendations

household, is likely to be a more accurate 8. Conclusion means of registering eligible voters. Individuals would then be responsible for 8.1 An effective Electoral Commission is a their own registration in order to vote. necessary and vital part of the modern There are however differences of view as institutional architecture. Its core duties to the pace at which such an important should be as a regulator to ensure integrity change should be made. We recommend and public confidence in the electoral that the decision should be made now to process and in the framework that governs introduce a system of individual voter the political party funding and campaign registration that includes an additional, expenditure. Through a combination of objective, personal identifier, immediately deficiencies in its current mandate, that is following the next General Election or by too weak in some areas and too broad in 2010 at the latest. others, combined with a lack of courage, competence and leadership in its regulatory 7. Resources and advisory approach, it has not successfully performed these core duties. 7.1 In the current financial year (2006/07) the This has contributed to a loss of confidence Commission is expecting to spend about by the public and political parties in the £27.4 million under its current statutory integrity of both the electoral process, and mandate [8]. In the Committee’s view, in political party funding and campaign savings made from our proposals to remove expenditure. As to the former, the or significantly curtail a number of its Commission should have shown greater current statutory duties will offset the focus and courage in alerting the risk to additional resources required to implement the integrity of the system from legislative our recommendations for a strategic and changes, principally postal voting on proactive regulatory approach and the new demand. On the latter, its passive regulatory framework of regional electoral officers. approach has led to regulatory failure on Clearly where functions continue but are the issue of loans to political parties. be transferred, such as for English local government boundary reviews, then the 8.2 The Committee has therefore made a range expenditure will also transfer, although of recommendations designed to refocus we anticipate some savings from joint the mandate of the Commission on these boundary commission secretariats. two core duties and to provide the framework that will enable it to deliver this 7.2 The budget for increasing voter mandate successfully. Implementation of participation, £7.5m per annum, will be our recommendations will not, however, on freed up and could be used to help fund their own be sufficient to avoid the problems the introduction of individual registration. that have arisen in the last five years. The evidence received on this issue firmly pointed to increasing voter participation as • First, government, Parliament and being principally the responsibility of political political parties have a duty to heed parties. However it is unlikely that political and consider with care the advice the parties have the capacity to do any more Commission will give on the potential specific work in this area than they do impact of changes to our electoral law already. Therefore, the question of some upon the integrity and public confidence limited public funding arises. This falls in the electoral process; and clearly to Sir Hayden’s Phillips’ review of political party funding, whose remit includes • Second, political parties also have a consideration of increased state funding of responsibility, not just to endeavour to political parties. The Committee has alerted comply with the letter of the regulatory Sir Hayden to its conclusions in respect of framework, but also with the spirit of the Commission’s mandate on voter transparency that underpins it. The participation and no doubt he will consider regulatory framework was established to this issue as part of his wider review. help eradicate grounds for suspicions and criticism about the way they are funded; it was agreed by all parties and passed by a parliament made up of representatives of all major parties. Public scepticism is justified if parties are subsequently seen to avoid or circumvent the principle of transparency.

7 Review of The Electoral Commission

References

1. Review of The Electoral Commission, Issues and Questions Paper, The Committee on Standards in Public Life, February 2006.

2. Committee’s Fifth Report, The Funding of Political Parties in the United Kingdom (Cm 4057- October 1998).

3. Political Parties, Elections and Referendums Act 2000, c41.

4. The Review of the Funding of Political Parties: Terms of Reference available from www.partyfundingreview.gov.uk.

5. Dr Michael Pinto-Duschinsky, Brunel University, written evidence to the inquiry 41/1.

6. Dr David Butler and Professor Iain McLean, Nufﬁeld College Oxford, opening statement to the inquiry 13/07/06.

7. The Review of the Funding of Political Parties: An interim assessment, Sir Hayden Phillips, October 2006.

8. The Electoral Commission, 2006.

8 Executive summary and list of recommendations

LIST OF RECOMMENDATIONS CHAPTER 2: MANDATE

RECOMMENDATION MECHANISM TIMEFRAME

Overview: principal role of the Commission

R1. The mandate of The Electoral Commission as set out Government to bring During 2007/08 in PPERA should be amended and refocused so that it forward legislative parliamentary has two principal statutory duties: as regulator of political changes to PPERA session party funding and campaign expenditure in the United Kingdom; and as regulator of electoral administration in Great Britain with the aim of ensuring integrity and public conﬁdence in the system of political party funding and campaign expenditure and in the administration and conduct of elections.

Regulation of political party funding and expenditure

R2. PPERA should be amended to make it clear that the Government to bring During 2007/08 Electoral Commission has a duty to investigate proactively forward legislative parliamentary allegations or suspicions of failures to comply with the changes to PPERA session regulatory framework. We recommend that the term “monitor” be replaced by “regulate”.

R3. The Electoral Commission should establish a Electoral Commission Within one year compliance unit, separate from the administration of the regulations, which can take prompt investigative action, using the powers provided in PPERA following information received either externally or internally of possible breaches of the regulatory framework. If necessary the results of any investigation should be referred to the Crown Prosecution Service. Unless there is evidence of breaches of the law, other than PPERA, the Committee would question the need for the Commission to refer any such investigations to the police.

R4. The Electoral Commission should ensure that the Electoral Commission Within one year compliance unit has a robust and effective system for assessing the potential seriousness and potential risk to public conﬁdence of any allegation.

R5. The Electoral Commission should establish the practice Electoral Commission Immediate of issuing timely advisory opinions, based upon sound and competent legal advice, on areas of concern or uncertainty about the practical interpretation of the relevant legislation.

R6. The Electoral Commission should decentralise Electoral Commission Within one year responsibility for monitoring and regulating campaign and constituency expenditure in Scotland, Wales and Northern Ireland to its regional ofﬁces.

9 Review of The Electoral Commission

CHAPTER 2: MANDATE (continued)

RECOMMENDATION MECHANISM TIMEFRAME

Regulation of political party funding and expenditure (continued)

R7. The Government should consider introducing a system Government to bring During 2007/08 of ﬁnancial penalties, with an appropriate appeal forward legislative parliamentary mechanism, that could be applied by the Electoral changes to PPERA session Commission for non-compliance with the regulatory requirements. Responsibility for prosecution for criminal offences should continue to lie with the Crown Prosecution Service.

R8. If the review being conducted by Sir Hayden Phillips Government to bring During 2007/08 results in greater frequency of reporting on donations, or forward legislative parliamentary other additional reporting requirements, the Government changes to PPERA session should consider a lighter reporting regime for very small political parties that have no representation at European, national, devolved or local level.

Regulation of electoral administration

R9. The posts of regional electoral ofﬁcers (REOs) should Government to bring During 2007/08 be established in statute, accountable through the chief forward legislative parliamentary executive to the electoral commissioners, with the changes to PPERA session responsibility for monitoring and reporting on the performance standards of local authorities in their region.

R10. The standards of electoral administration must Government to bring During 2007/08 be maintained in every part of Great Britain. Regional forward legislative parliamentary electoral ofﬁcers should be appointed for Scotland and changes to PPERA session Wales with the same status, responsibilities and accountability as for each region of England.

R11. The Electoral Commission should use its powers Electoral Commission Within one year enacted in the Electoral Administration Act 2006 to establish, monitor and report on performance standards for electoral administrators in the areas of electoral registration, the conduct of elections and minimising electoral fraud.

R12. The Electoral Commission should make public reports Electoral Commission Within one year on their assessment of levels of performance of electoral administrators. In circumstances where it has identiﬁed and publicised unacceptably low standards, and where there has been failure by the relevant electoral administrators to agree to implement the necessary measures for improvement, The Electoral Commission should formally request the Secretary of State for Constitutional Affairs (Secretary of State for Scotland if electoral administrator is Scottish) to exercise his existing powers of direction contained in the Representation of the People Act 1983 over the said ofﬁcers. In the event that any such request is declined then the Secretary of State should be required to report to Parliament on the reasons for his refusal to exercise the power.

10 Executive summary and list of recommendations

CHAPTER 2: MANDATE (continued)

RECOMMENDATION MECHANISM TIMEFRAME

Regulation of electoral administration (continued)

R13. The Electoral Commission should report to Parliament Electoral Commission First Report annually on standards of electoral administration, during 2007/08 including any action it is proposing to tackle areas of parliamentary underperformance in relation to electoral registration, session the conduct of elections and minimising the risk of electoral fraud.

R14. The Government should consider whether Northern Government to Within three Ireland should adopt these arrangements once they consider legislative years have been successfully established in the rest of the changes United Kingdom.

Funding of electoral administration and elections

R15. The current funding arrangements for electoral Government Within one year administration and for elections should be retained. The Department of Constitutional Affairs should publish annually indicative levels of local authority expenditure allocated to deliver electoral services.

R16. The Electoral Commission should consider the level Electoral Commission Within one year of funding provided for electoral administration as part of its monitoring and reporting on the performance of individual local authorities.

Electoral boundaries

R17. The Electoral Commission should no longer have Government to bring During 2007/08 any involvement in electoral boundary matters and the forward legislative parliamentary provision in PPERA to allow the transfer of boundary- changes to PPERA session setting functions to the Commission should be repealed.

R18. The Boundary Committee for England should become Government to bring During 2007/08 an independent body in line with local government forward legislative parliamentary boundary commissions in the rest of the United Kingdom changes to PPERA session

R19. The Parliamentary Boundary Commission and local Parliamentary Within one year boundary commission in each of the four home countries Boundary Commissions should share joint secretariats. and local government boundary commissions

11 Review of The Electoral Commission

CHAPTER 2: MANDATE (continued)

RECOMMENDATION MECHANISM TIMEFRAME

Electoral boundaries (continued)

R20. There is strong case for the current legislation in Speaker’s Committee The review to relation to the conduct of parliamentary boundary work begin by the to be reviewed and where necessary amended before end of 2007 the commencement of the sixth general review due around 2012.

The review should, in particular consider:

• addressing the progressive inequality of electoral quotas, and increase in the size of the House of Commons that appear inbuilt to the operation of the current rules;

• the time taken to conduct reviews, particularly in England where in addition to changes to the procedures the possibility of carrying out inquiries on a regional basis should be considered, and

• alignment between the timing of local and parliamentary boundary reviews to ensure stable local government boundaries as the basis for each parliamentary review; and

• the question of a role for keeping the operation of the rules under review and ensuring consistency of approach by the four Boundary Commissions.

This review should not be undertaken by the Electoral Commission. An independent review commission for this purpose could be established, overseen by the Speaker’s Committee with the outcome presented to Parliament through the Speaker.

Increasing participation in the democratic process

R21. The Electoral Commission should retain a clearly Government to bring During 2007/08 deﬁned statutory duty for the provision of public forward legislative parliamentary information on the mechanics of the electoral process changes to PPERA session including electoral registration procedures, how to vote and explaining any changes to the electoral system.

R22. The Electoral Commission should no longer have the Government to bring During 2007/08 wider statutory duty to encourage participation in the forward legislative parliamentary democratic process. session

Policy development and advice

R23. The Electoral Commission should no longer have Government to bring During 2007/08 a role in undertaking policy development in relation to forward legislative parliamentary electoral legislation. This function should be the changes to PPERA session responsibility of the appropriate Secretary of State for Constitutional Affairs.

12 Executive summary and list of recommendations

CHAPTER 2: MANDATE (continued)

RECOMMENDATION MECHANISM TIMEFRAME

Policy development and advice (continued)

R24. The Electoral Commission should continue to provide Government to bring During 2007/08 advice on the suitability of existing and new electoral forward legislative parliamentary legislation in respect of its ability to perform its two changes to PPERA session principal statutory duties.

Reporting on elections

R25. The Electoral Commission’s reports on each election Electoral Commission From May 2007 should cover incidents of electoral fraud and the actions taken to minimise fraud, also the effectiveness of the new provisions on postal voting on demand. This should apply in reports for the May 2007 local elections.

R26. The Electoral Commission’s statutory remit to report Government to bring During 2007/08 on the conduct of elections should be extended to cover forward legislative parliamentary local elections in Northern Ireland, Scotland and Wales. changes to PPERA session

13 Review of The Electoral Commission

CHAPTER 3: GOVERNANCE

RECOMMENDATION MECHANISM TIMEFRAME

R27. The current ban on employing individuals at the Government to bring During 2007/08 Electoral Commission who have been politically active forward legislative parliamentary over the previous ten years should be reduced to one year. changes to PPERA session For senior management and regional electoral ofﬁcers the length of the ban should be reduced to ﬁve years.

R28. The total number of commissioners (including the Government to bring During 2007/08 chair) should be increased to ten. forward legislative parliamentary changes to PPERA session

R29. The current restrictions on who may become an Government to bring During 2007/08 electoral commissioner should be revised for four forward legislative parliamentary commissioner appointments to enable the appointment changes to PPERA session of individuals with recent experience of politics and the political process. New commissioners would be appointed as individual members of a unitary board, not as representatives or delegates of a particular political party.

On taking-up appointment, such commissioners:

(i) must not be an employee or ofﬁcer of any political party and/or an elected representative (at European, national, devolved or local level) or an appointed Peer who takes the political party whip; and

(ii) would cease being a commissioner on becoming any of these during their term of ofﬁce.

R30. The background and political experience of the four Speaker’s Committee Within two years new commissioners must respectively represent the three main political parties (Labour, Conservative and Liberal Democrat) and one of the minor parties in the House of Commons. Although individuals may be encouraged to apply by political parties each post should be publicly advertised and candidates must satisfy all other criteria that apply for commissioner posts and be subject to a selection process based upon merit following the Commission for Public Appointments’ Code of Practice.

R31. The practice of appointing a commissioner from Speaker’s Committee Ongoing Scotland and a commissioner from Wales who have the lead interest in Scottish and Welsh matters should continue and the Speaker’s Committee should proceed with appointing a commissioner from Northern Ireland who will play a similar role to those commissioners.

R32. The chair of The Electoral Commission should be a Speaker’s Committee Within two years part-time non-executive role. Commissioners should also be non-executive and part-time.

14 Executive summary and list of recommendations

CHAPTER 3: GOVERNANCE (continued)

RECOMMENDATION MECHANISM TIMEFRAME

R33. PPERA should be amended to make clear that Government to bring During 2007/08 responsibility for the oversight of the recruitment and forward legislative parliamentary selection process for electoral commissioners lies with changes to PPERA session the Speaker’s Committee, including setting the role speciﬁcation and convening an independent selection panel. Either PPERA or the Speaker’s Committee procedures should stipulate that the Commissioner for Public Appointments, Code of Practice will be followed in such appointments.

15 Review of The Electoral Commission

CHAPTER 4: ACCOUNTABILITY

RECOMMENDATION MECHANISM TIMEFRAME

R34. Evidence-gathering meetings of the Speaker’s The Speaker’s Immediate Committee should be held in public and the transcripts Committee published. Committee deliberations may continue to be held in closed session as may certain evidence sessions where the subject matter makes this necessary.

R35. The Speaker should assume a role similar to that he Mr Speaker, Immediate performs for the Boundary Commissions, standing back the Speaker’s from the day-to-day running of the Committee. A senior Committee back bench MP, possibly from the Opposition, as deputy chair could assume the day-to-day responsibility for the Committee including chairing meetings.

R36. The House of Commons Scrutiny Unit should be given The Speaker’s Immediate a formal role to scrutinise The Electoral Commission’s Committee annual ﬁnancial plans and to advise the Speaker’s Committee.

R37. There should be an annual debate in Parliament on The Speaker’s Immediate the work of The Electoral Commission. It might be helpful Committee if this followed the Commission’s annual report on standards of electoral administration in the UK (R13).

R38. The Select Committee on Constitutional Affairs Select Committee on Immediate should build upon its emerging practice of taking regular Constitutional Affairs opportunities to scrutinise The Electoral Commission’s policies, actions and decisions.

16 Executive summary and list of recommendations

CHAPTER 5: INTEGRITY OF THE ELECTORAL SYSTEM

RECOMMENDATION MECHANISM TIMEFRAME

R39. The Electoral Commission should undertake detailed Electoral Commission Within eighteen research into the scale of electoral fraud in the United months Kingdom.

R40. The Electoral Commission should, as part of its Electoral Commission By November statutory reports on the 2007 Elections, include a speciﬁc 2007 section dealing with the impact of, and any problems encountered in the implementation of the new measures on postal voting. In light of this report the Government should consider similar measures in relation to registering immediately before an election as have been put in place for Northern Ireland in the Miscellaneous Provisions (Northern Ireland) Act 2006.

R41. It should be a requirement that the Electoral Government During 2007/08 Commission’s views (see R24) on proposed primary parliamentary and secondary legislation on electoral issues should session accompany the draft legislation when it is introduced into Parliament.

R42. A decision should be made and legislation developed Government Within one year to implement a system of individual voter registration immediately following the next General Election or by 2010 at the latest.

R43. Political parties should start discussions now in order Political Parties By 2010 to reach agreement on the precise form the new system may take and the measures needed to assure comprehensiveness and accuracy.

R44. The Electoral Commission‘s implementation plan for Electoral Commission By 2010 the new system should include a focus on measures to minimise under-registration.

R45. Any agreed system of individual registration should Government/ By 2010 include at least one objective identiﬁer such as the Political Parties National Insurance number.

R46. If the new arrangements in Northern Ireland, Government/ By 2010 including the abolition of the annual canvass, are Political Parties successful they should be adopted as part of the new system of individual registration in the rest of the United Kingdom.

17 Review of The Electoral Commission

18 Introduction

CHAPTER 1 INTRODUCTION

The Committee and its terms part in the democratic process within the of reference United Kingdom. Unlike many electoral commissions outside the United Kingdom, it 1.1 The Committee on Standards in Public Life does not have responsibility for maintaining was set up in October 1994 by the then and updating electoral rolls, employing Prime Minister, the Rt Hon Sir John Major electoral services staff, or conducting KG CH. Its terms of reference are: parliamentary or local elections.

To examine current concerns about 1.5 The Commission is headed by a chairman standards of conduct of all holders of with four other commissioners, none of public office, including arrangements whom can have had any connection to any relating to financial and commercial political party in the previous ten years. The activities, and make recommendations as to Commission is not accountable to the any changes in present arrangements which Government, but reports directly to might be required to ensure the highest Parliament through a committee chaired by standards of propriety in public life. the Speaker of the House of Commons (‘the Speaker’s Committee’). The Commission has 1.2 On 12 November 1997, the present Prime a UK-wide remit and has offices in London, Minister, the Rt Hon Tony Blair MP, Edinburgh, Cardiff and Belfast. announced additional terms of reference: 1.6 The Commission’s mandate encompasses To review issues in relation to the funding both executive and advisory functions and of political parties, and to make is wider than that envisaged in the recommendations as to any changes in Committee’s Fifth Report [1]. The present arrangements. Commission is responsible for overseeing a number of aspects of electoral law: the 1.3 The Committee has published ten reports. registration of political parties; the They are listed at Appendix C. Further monitoring and publication of significant information about the Committee is at the donations to registered political parties; back of this report, which also includes its powers to investigate possible breaches of membership during this Eleventh1 Inquiry. the donations regulations; the regulation of national party spending on election The purpose and scope of the inquiry campaigns; and a partially commenced role in setting electoral boundaries. The 1.4 The Electoral Commission occupies an Commission also has a number of roles important position in the institutional relating to the conduct of referendums architecture designed to secure high held in the UK; promoting voter awareness; standards and build trust in the democratic advising those involved in elections on process. The Commission was established as practice and procedure; and reporting on an independent statutory authority on 30 the administration of every major election. November 2000. This followed the recommendations of the Committee’s Fifth 1.7 In the current financial year (2006/07) the Report, The Funding of Political Parties in Commission is expecting to spend about the United Kingdom [1] and the £27.4 million of which [3]: subsequent commencement of the Political Parties, Elections and Referendums Act • £12.3 million is for encouraging citizen 2000 [2]. Through its work, the Commission participation in the democratic process has the stated aim of gaining public and on voter education about the confidence and encouraging people to take electoral process;

1 The Rt Hon Alun Michael JP MP joined the Committee in October 2006 and, therefore, after the completion of the public hearings and initial consideration by the Committee of their likely recommendations. As such Mr Michael agreed to act as a ’critical friend’, giving advice on the emerging conclusions and recommendations. Other members of the Committee would like to express their gratitude to Mr Michael for his assistance. 19 Review of The Electoral Commission

• £10.1 million is for advice and guidance and generated during an inquiry. Evidence about registration and election for this inquiry has come from three main management to local authorities; sources: written submissions, public boundary reviews; and the development hearings, and speciﬁcally commissioned of performance standards for local research. The Committee has also drawn authorities; upon its own previously published work and on relevant work published by other • £2.2 million is for regulatory activities bodies. All sources are referenced concerned with the registration, funding throughout the report. and the expenditure of political parties; and Written submissions

• £2.8 million is for administrative costs. 1.12 With the publication of the Issues and Questions Paper [4] on 16 February 2006, 1.8 The executive and advisory mandate of The the Committee invited written submissions Electoral Commission therefore has a on any or all of the selected areas strong impact on issues such as electoral (paragraph 1.9 above) and in respect of administration, conduct of elections and some specific questions. The paper was standards of propriety in financing political circulated widely to both Houses of parties. Each of these issues has been the Parliament, to members of the devolved subject of recent public concern, and each administrations in Northern Ireland, affects the way people engage in politics Scotland and Wales, to all local authorities and the broader question of political and to all registered political parties. The legitimacy. paper was distributed to a number of academics and other political 1.9 For these reasons the Committee believed it commentators as well as to those members was important to ask now, some five years of the public who showed an interest in after its creation and following the second our work. The paper was also available on general election to be held since its the Committee’s website. Seventy-eight establishment, whether the Commission’s submissions were subsequently received. mandate, governance arrangements and All written submissions can be found on accountability framework are fit for the the CD-ROM which forms part of this report purpose required of the Commission [4]. and on the Committee’s website (except, in accordance with the Committee’s long- 1.10 This inquiry is not a review of how or standing procedure, those which we were whether the recommendations in the asked to treat as confidential or those we Committee’s Fifth Report have been considered might be defamatory). A list of implemented by the Government or others. those who submitted written evidence is at Rather, it is an assessment of how The Appendix A. The CD-ROM also contains a Electoral Commission can best deliver the copy of this report, transcripts of the oral outcomes required by legislation governing evidence and copies of the research elections and political parties. The second commissioned to support the inquiry. In this national survey of public attitudes report, references to the written evidence published by the Committee in September give the submission number and the page 2006 [5] again highlighted the public’s being referenced, for example, [23/4]. strong expectation that public office- holders should admit and, most Public hearings importantly, learn from their mistakes. Our aim in this report is to do just that and in a 1.13 Between June and October 2006, the way which bolsters a culture of continuous Committee took evidence at 12 sessions of improvement in securing high standards, public hearings in London, Belfast, Cardiff, not a culture of blame. and Edinburgh. Appendix B carries a list of the 83 witnesses who gave evidence, either The inquiry process on their own behalf or in a representative capacity. In this report, references to the 1.11 The work of the Committee is evidence- transcripts provide the date of the hearing based. Where conclusions are reached and and the paragraph number on the recommendations made they are on the transcript, for example [13/06/06, 41]. basis of an analysis of the evidence received

20 Introduction

Supporting research Renfrewshire Valuation Joint Board and the Chief Electoral Officer for Northern Ireland. 1.14 Within its modest resources, the Committee decided to commission (through a 1.19 The Committee would like to express its competitive process) two pieces of research gratitude to all those who gave us their covering two areas of the Commission’s time and insights during these visits. mandate (both published in full on the CD-ROM and on the Committee’s website). Structure of the report and recommendations 1.15 The first piece of research was undertaken by Dr David Butler and Professor Iain 1.20 The main part of the report is set out in the McLean of Nuffield College, Oxford on following four chapters. The first three The Electoral Commission and the cover The Electoral Commission’s mandate, Redistribution of Seats. This was based governance and accountably, respectively. upon an extensive reading of the Boundary The final chapter covers the Committee’s Commission reports and of the academic observations and recommendations on literature. It was also informed by a one- some critical aspects of the integrity of the day seminar attended by representatives of electoral process itself. There is an the Boundary Commissions and other executive summary that includes a stakeholders. The research is discussed in consolidated list of all the Committee’s the section, Electoral boundaries, in recommendations. Chapter 2. Context of the inquiry 1.16 The second piece of research was undertaken by Dr Justin Fisher of Brunel 1.21 The inquiry took place against a backdrop University on Proposals for the funding of of continuing public concerns about: the political parties in the context of The arrangements for voter registration; postal Electoral Commission’s existing voting on demand, and the link to a responsibilities for the regulation of number of high-profile legal cases on donations to political parties. This was electoral fraud; and allegedly based upon desk research and four semi- circumventory loans to political parties with structured interviews with senior Electoral allegations that these were connected to Commission staff. The research is discussed the awarding of honours. in the section, Regulation of political party funding and expenditure, in Chapter 2. 1.22 These concerns directly relate to two key pillars of our democratic system that were Study visits constantly referred to during the inquiry and have formed the principles against 1.17 During May 2006 a small group of which the standards we wish to see Committee members visited Canada and achieved in the areas of interest may be the USA to learn about the mandate, measured: governance and accountability of comparable institutions. These were chosen 1.23 Free and fair elections. Effective electoral because they exemplified differing administration is one of the keystones of approaches to both electoral administration democracy. There cannot be democracy and political party funding and campaign without elections and elections cannot be expenditure. A summary of the main free and fair unless electoral rules are fair findings from the study visit can be found and coherent, unless they are properly in Volume 2 of the report on the CD-ROM, administered and unless they are actively as well as on the Committee’s website. enforced [6]. Core functions that must be effectively undertaken to achieve this are: 1.18 Small groups of Committee members also visited a range of local authority electoral • ensuring that everyone who is entitled to administration offices during October and vote is included on the electoral register November 2006 to observe the before an election and that everyone administration and registration process at registered can exercise their vote, in first hand. We visited the London Borough secrecy if they wish. The right to register of Hammersmith, Southampton City and the right to vote is an equal right for Council, Huntingdon District Council, those who are eligible and should be

21 Review of The Electoral Commission

kept as simple as possible and any regulator must be sensitive and barriers kept to a minimum whilst proportionate to the voluntary nature of ensuring that; much of political parties’ infrastructure.

• everyone not entitled to vote is excluded 1.25 It is within this framework that the from the register and from voting. Voting Committee has considered the role of The fraud should be minimised by avoiding Electoral Commission. rules that facilitate such fraud and by proactive deterrence and enforcement; Developments since 2000 and 1.26 It is important to recognise that there have • determining electoral boundaries in a been a significant number of developments way that is fair to electors, non-partisan, in the political and electoral environment immune from political interference and up over the last five years that have presented to date with population movements [7]. the Commission with some profound challenges and had a direct effect on its 1.24 Healthy, competitive political parties. work. Some of these issues were unforeseen Political parties are essential to democracy. when the Commission was created; some We elect a government through a have arisen because of legislative changes; parliamentary democracy which is not and some have resulted from work about voting on single issues but about undertaken by the Commission itself. It is a wide range of important choices and therefore important to reflect upon the priorities. [8]. The way in which political context in which it has operated over the parties are funded, and how those funds last five years. are expended, are therefore a matter of legitimate public interest. People ask who Legislative changes is paying? And how much? In return for what? Is it British or foreign money? [1]. 1.27 Since 2000 there have been more major A regulatory framework for the funding changes to the electoral system in the of political parties has therefore been United Kingdom than at any time since the required to eradicate the grounds for current system came into being in the 19th criticism and suspicion which leads to century. These have included: public scepticism, and damages the political parties. The successful implementation of • the introduction of postal voting on the regulatory framework, however, depends demand in Great Britain; upon the approach taken by the regulator who must: • all postal ballots in parts of Great Britain for certain elections; • show courage, confidence and competence in pursuing an independent • extensive piloting of different voting and impartial approach to ensuring systems and changes to the conduct of compliance with the regulations. It must elections; accept that it will not always be popular with the parties and that pressure, overt • the introduction of individual registration and covert, will always be applied in in Northern Ireland together with a attempts to influence its approach. It must number of anti-fraud measures including use a risk-based approach to decisions photographic identification at polling and actions2; and, at the same time stations;

• recognise that political parties are much • the Electoral Administration Act 2006 more like large voluntary organisations which among other things has given The than organisation in the public or private Electoral Commission the power to set sector usually subject to regulation. performance standards for local Behind each career politician stands a authorities; and regiment of dedicated voluntary party workers. Even the local treasurers and • the Miscellaneous Provisions (Northern election agents (who are subject to Ireland) Act 2006 which has abolished the regulation) of the largest parties are annual canvass for electoral registration mostly volunteers. The approach of the and given the Chief Electoral Ofﬁcer for

2 Which, in this case, means where the risk of non-compliance or lack of clarity in the regulations could lead to a signiﬁcant undermining of the conﬁdence the public and political parties have in the regulatory framework. 22 Introduction

Northern Ireland powers to access data Northern Ireland which is why the held by other public sector bodies to Government put in place new anti-fraud enable him to maintain an accurate and measures through the Electoral Fraud comprehensive register. (Northern Ireland) Act 2002. However, following a number of high-profile court 1.28 These legislative changes have had and will cases it became evident that, while not continue to have far-reaching implications necessarily widespread, pockets of for electoral administration throughout the organised electoral fraud were taking place United Kingdom both for electoral mostly in urban areas. registration and the conduct of elections. The Electoral Commission has been a key 1.32 The Electoral Commission duly began player in advocating change and advising working closely with electoral the Government on implementation issues. administrators and the police on ways of combating fraud. The Electoral Participation in the electoral process Administration Act 2006 also contains a number of measures aimed at making 1.29 Another significant feature of the last five fraud more difficult, including a new years has been the continuing perception requirement for voters to provide personal of growing apathy and cynicism by the identifiers if they want to vote by post. public towards the democratic process in general and traditional forms of politics in Transfer of electoral policy to the Department particular. Evidence cited for this are the for Constitutional Affairs low turnouts for the General Elections of 2001 and 2005 (59% and 61% respectively) 1.33 For many years electoral policy was the and the continued fall in membership of all responsibility of the Home Office which the major political parties. It is against this was the sponsoring department for the backdrop that The Electoral Commission Political Parties, Elections and Referendums has undertaken its statutory role to Act 2000 (PPERA). However, following increase participation in the democratic machinery of government changes in 2003, process with a ring-fenced budget of £7.5 responsibility for electoral policy was million per annum. Also the Government, transferred to the new Department for and the Commission, believed that putting Constitutional Affairs (DCA). Over the last in place new arrangements to make voting three years the Electoral Policy Unit in DCA easier (see 1.27 above) would increase has expanded and developed a stronger- turnouts and interest in the political policy making capacity than existed when process. The Electoral Commission played a policy was the responsibility of the Home major role advising on and implementing Office. the ‘modernisation’ agenda, particularly in overseeing electoral pilots and the use of Loans to political parties postal voting on demand. 1.34 The issue of widespread financing of Electoral fraud political parties through substantial loans was first reported during the 2005 General 1.30 However, some commentators believe that Election [9] and raised concerns that, at the a by-product of making the process of very least, the spirit of the rules on voting easier has been perceived loss of transparency of parties finances was being confidence in the integrity of the electoral circumvented. This was one of the current system. The well publicised issue of concerns that led to this inquiry [4,10]. The electoral fraud relating to postal voting did issue became a matter of major public not help this. Indeed, there were a number controversy in March 2006 when the full of major court cases where individuals were scale of the loans began to emerge and found guilty of committing electoral fraud allegations were made of a link to the through the abuse of postal voting. awarding of honours and the possibility that the loans were not made on 1.31 Before 2000 reported instances of electoral commercial terms. Under PPERA, the fraud in Great Britain were extremely rare, benefit accrued by loans on a non- and confidence levels in the security of the commercial basis are treated as a donation electoral process were high. Electoral fraud and subject to the rules on disclosure. As a was perceived only as a problem in result of the controversy the Electoral

23 Review of The Electoral Commission

Administration Act 2006 made all loans Summary subject to disclosure. It now appears that the total amount of loans to the main 1.36 This inquiry took place at a time of political parties current at the 2005 dynamic and critical change affecting our General Election was over £30 million, democratic system. We have endeavoured predominantly to the Labour and to make our recommendations to Conservative parties. At the time of complement recent legislative reform printing this report, a police investigation while seeking to ensure the maintenance continues into the allegations of a link of fundamental principles that have to the awarding of honours (under the underpinned our democratic system for Honours (Prevention of Abuses) Act 1925) well over 100 years. and any possible breaches of PPERA. The framework within which the Review of the funding of political parties Committee works

1.35 The controversy over loans to political 1.37 This Committee is an advisory body only. parties resulted in the Prime Minister It reports to the Prime Minister but sets its asking Sir Hayden Phillips to conduct a own programme after consultation between review of the funding of political parties in the Committee and the Government. It has March 2006. The terms of reference for the no legal powers. It cannot summon witnesses review are: to appear before it. It has no powers of enforcement and has, therefore, no power To conduct a review of the funding of to impose any of its recommendations. political parties. Acknowledgements In particular: 1.38 We would like to record our thanks to • to examine the case for state funding of those who took the time and trouble to political parties including whether it make a written submission, or who should be enhanced in return for a cap provided additional evidence at our request on the size of donations; and in particular those who appeared before us to give oral evidence. We were • to consider the transparency of political fortunate to receive evidence from a wide parties’ funding; and range of well-informed witnesses whose experience and insights have proved • to report to the Government by the end extremely valuable. We would also like of December 2006 with recommendations to thank Dr Butler and Professor McLean, for any changes in the current Nufﬁeld College Oxford and Dr Pinto- arrangements. Duschinsky, Brunel University, for their advice and assistance in the preparation At the time of going to print, the of this report. conclusions of the review had not yet been published, although an interim assessment [8] was published in October 2006 summarising the main options under consideration. The Committee has liaised closely with Sir Hayden in order to ensure that any proposals we make concerning the regulatory role of the Commission would apply equally should the regulatory framework be extended to include any of the options under consideration.

24 Introduction

References

1. Committee’s Fifth Report, The Funding of Political Parties in the United Kingdom (Cm 4057- October 1998).

2. Political Parties, Elections and Referendums Act 2000, c41.

3. The Electoral Commission 2006.

4. Review of The Electoral Commission, Issues and Questions Paper, The Committee on Standards in Public Life, February 2006.

5. Survey of Public Attitudes towards conduct in public life 2006, prepared by Ipsos/MORI for the Committee on Standards in Public Life, September 2006.

6. Dr Michael Pinto-Duschinsky, Brunel University, written evidence to the inquiry 41/1.

7. Dr David Butler and Professor Iain McLean, Nufﬁeld College Oxford, opening statement to the inquiry 13/07/06.

8. The Review of the Funding of Political Parties: An interim assessment, Sir Hayden Phillips, October 2006.

9. The Times 21 April 2005.

10. The Committee on Standards in Public Life, Post Election Consultation Paper May 2005, available from www.public-standards.gov.uk.

25 Review of The Electoral Commission

26 Mandate of the Electoral Commission

CHAPTER 2 MANDATE OF THE ELECTORAL COMMISSION

Overview 2.5 Other evidence received by the Committee, however, raises concerns about the 2.1 Defining the mandate of The Electoral Commission’s overall impact, as follows: Commission is at the heart of this inquiry. Ensuring the effectiveness of the • it is seen as lacking the leadership, Commission’s governance and knowledge and courage to enforce its accountability arrangements are essential regulatory duties in relation to political but it only matters if this body’s remit is party funding and campaign expenditure; crystal clear. • it has paid too much attention to routine 2.2 The Electoral Commission was created administration in its regulatory role at the following a recommendation by this expense of proactive, risk-based compliance Committee in its Fifth Report [1]. The work which would identify areas of the Committee recommended that the primary regulatory framework open to potential focus of the Commission should be as the abuse. It has been particularly criticised in regulator of the new arrangements for relation to how it has regulated campaign party political finance. However, the expenditure and reacted to the ‘loans to mandate set by the Government for The political parties’ issue; Electoral Commission and legislated for by Parliament in Political Parties, Elections and • the very wide breadth of the Referendums Act 2000 (PPERA) [2] is Commission’s mandate has led to a broader than originally envisaged and very concentration on ’softer’ issues such wide in scope. It ranges from the as policy development and voter regulation of political donations and participation work at the expense of expenditure by political and third parties a ’harder edged’, more contentious through to promoting greater participation regulatory and advisory role; and in the democratic process and having responsibility for electoral policy reviews. • the breadth of this mandate has also introduced potential conflicts between 2.3 This chapter examines in detail whether the encouraging voter participation – in current mandate of The Electoral keeping with the Commission’s wish to Commission as set-out in PPERA is still assist the Government in the process of appropriate, not only in relation to how electoral modernisation – and focusing effective the Commission has been but also on the integrity and effectiveness of the as concerns changes in the last five years to electoral process. the wider environment in which the Commission has operated. 2.6 The Commission did acknowledge in its evidence that sometimes it has not got the Record of The Electoral Commission balance right, and that now is the right time to make a judgement about the direction it 2.4 Some evidence received by the Committee should follow in the future: clearly indicates that The Electoral Commission has made a positive impact since its creation. In particular, its advice and guidance on electoral issues has generally been welcomed by electoral administrators and some politicians. Its presence has also helped to highlight the importance of electoral issues to the democratic process.

27 Review of The Electoral Commission

I really think what we are beginning to 2.9 On the basis that these are the core home in on is that the core of what the tasks that the Commission must perform Commission is better placed to do… I think effectively, judgement is required about that plays out in terms of a core focus on how other parts of Commission’s current the regulation of political parties… The mandate add value to these core tasks. second is supporting improvements of This implies that some of the Commission’s standards in electoral administration. current tasks should be removed or [Sam Younger, Chairman of The Electoral significantly curtailed. Commission 14/09/06 233,234] 2.10 It is time for the Commission to focus on Other witnesses made the following the issues that matter most; ‘to do less and comments: to do it better’ [Andrew Tyrie MP, 11/07/06, 426]. The Committee firmly believes that The Electoral Commission has actually done the acceptance of these two core statutory a very good job in its first five years, albeit duties will enable the Commission to focus under rather confused circumstances. on restoring the health of our electoral [Alan Whitehead MP 11/07/06, 127] process as a fair but robust regulator of political finance and as body capable of We have some wide concerns about the restoring confidence in the fairness and very wide focus the Commission has…and security of electoral administration. often there is not enough attention to detail on really crucial issues. [Oliver Heald MP, Shadow Secretary of RECOMMENDATION State for Constitutional Affairs and Shadow Chancellor of the Duchy of Lancaster, R1. The mandate of The Electoral 15/06/06, 73] Commission as set out in PPERA should be amended and refocused 2.7 The Commission has undoubtedly made so that it has two principal statutory some positive contributions to the duties: as regulator of political party democratic health of the United Kingdom funding and campaign expenditure over the last five years. The Committee was in the United Kingdom; and as particularly impressed by its close work regulator of electoral administration with political parties and electoral in Great Britain; with the aim of administrators in Northern Ireland, Scotland ensuring integrity and public and Wales and by its effective work with confidence in the system of political electoral administrators generally. However, party funding and campaign there is concern that the evidence does not expenditure and in the administration suggest that the underlying health of the and conduct of elections. election process would be the weaker without the Commission’s input. The Committee takes the view that The Regulation of political party funding Electoral Commission must become a more and expenditure focused regulator that stops doing a wide variety of activities and concentrates on 2.11 In this Committee’s Fifth Report [1] we achieving some core tasks. It believes a strongly recommended establishing a new sharper focus on a smaller number of core framework, based upon the principle of functions will greatly strengthen the transparency, to provide public confidence effectiveness of the Commission and the in the future funding of, and expenditure health of the electoral process. by, political parties. The creation of The Electoral Commission was a key 2.8 The Committee believes that The Electoral recommendation – a body whose main task Commission should have two principal would be to regulate the proposed controls statutory duties: on political party funding and expenditure:

• the regulation of political party funding, The extensive changes we propose have third-party and campaign expenditure in convinced us of the need for a totally the UK; and independent and authoritative Election Commission with widespread executive and • the regulation of the electoral administration system in Great Britain.

28 Mandate of the Electoral Commission

investigative powers, and the right to bring • Control of campaign expenditure. PPERA cases before an election court for limits the amount of campaign judgement [1]. expenditure that can be incurred by political parties and third parties at 2.12 The Committee clearly saw The Electoral general elections to the UK and European Commission as having responsibility for the Parliaments and devolved legislatures. administration and enforcement required Under PPERA there is a ceiling on the to ensure compliance with the proposed amount of campaign expenditure that can regulatory framework. It is also clear from be incurred during a ‘relevant period’. the Government’s response [3] to the Fifth It is an offence for a party to exceed the Report that it accepted the Committee’s campaign expenditure limits speciﬁed. recommendation to establish an There are reporting requirements for independent and authoritative Electoral parties contesting elections and, if Commission that would have regulatory expenditure is in excess of £250,000, responsibility for controls on donations to returns to The Electoral Commission must political parties and limits on campaign be prepared by a qualiﬁed auditor and expenditure. signed off by the party treasurer.

2.13 PPERA put in place the legislative provisions 2.14 In relation to The Electoral Commission’s for the new framework for regulating overall regulatory role the Act [2] provides political party finances. In summary the that: Commission was made responsible for: The Commission shall have the general • The registration of political parties (and function of monitoring compliance with the the maintenance of the registers) of restrictions and other requirements political and third parties and for the imposed by or by virtue of Parts III to VII; wide range of elections to local and the restrictions and other requirements government, decentralised administrations, imposed by other enactments to election the UK and European Parliaments. The expenses incurred by or on behalf of requirement to register was introduced to candidates at elections, or donations to minimise confusion to voters by stopping such candidates or their elections agents. candidates attempting to impersonate mainstream parties and to ensure that 2.15 The Act then goes on, as recommended in the finances of all political groups are the Committee’s Fifth Report, to provide properly regulated and, once a party has the Commission with the investigative registered with the Commission, it is powers of inspection, entry etc in relation subject to rigorous financial controls. to fulfilling their function and which are A party may not be registered unless consistent with powers provided to other it has adopted a scheme, approved regulators. by the Commission, which sets out the arrangements for regulating the 2.16 The purpose of this inquiry, as concerns this financial affairs of the party and part of the Commission’s mandate, was to their income and expenditure. determine whether, in light of the PPERA framework, The Electoral Commission has • The regulation of donations to political been an effective and strategic regulator of parties. All political parties registered on political party funding and expenditure [4]. the Great Britain register of parties (excluding parties registered as minor 2.17 Soon after the launch of the inquiry, the parties) are legally required to abide Prime Minister asked Sir Hayden Phillips to by the regulations on accepting and conduct a review of party political funding reporting donations. Political parties are which itself had been triggered by the required to submit a quarterly donation controversy over large loans being taken by report to the Commission listing all the main political parties at the time of the donations of more than £5,000 accepted last general election. At the time of by the party’s headquarters. The publication, Sir Hayden had not published Commission is required to register his final report, although an interim report all recordable donations. was published in October 2006 which set out the main options for any changes to the regulatory framework under

29 Review of The Electoral Commission

consideration [5]. The Committee has 2.20 The Committee has stressed this issue in its liaised closely with Sir Hayden, who also considerations. Political parties enable the gave evidence to this inquiry [21/09/06]. We electorate to vote on a range of choices believe that the proposals we set out in this and priorities, which is essential to our document would apply equally (if not more democracy. Party politics is a competition to so) should the regulatory framework be serve the public interest: that is its purpose. extended to include the options under Both the regulatory requirements and the consideration as set out in the Phillips approach of the regulator must balance interim report. The Constitutional Affairs public trust in the integrity and Committee has also very recently published transparency of political party funding and a report on the funding of political parties expenditure against the burden placed which covers some of the issues addressed upon essentially voluntary organisations. in this inquiry [6]. 2.21 Has the Commission achieved this balance? The Commission’s regulatory role Evidence received by the Committee strongly suggests that it has been less 2.18 The evidence received during the inquiry successful in acting as an effective and suggests that The Electoral Commission was strategic regulator in a manner which broadly effective and proportionate in ensures public trust and conﬁdence. The introducing the new regulatory root of this, from the evidence we have requirements to political parties, under received, appears to lie in the Commission’s PPERA. There was also a broad consensus interpretation of its regulatory mandate that, in the main, the Commission has been in PPERA and, in consequence, its overly effective in its administration of the passive approach. Despite the clear regulations, i.e. collection and publication intentions in the Fifth report and the of information: Government’s response that The Electoral Commission should be an active regulator I think it has done some extremely good with investigatory powers the evidence work in ensuring that there is more received suggests that that wording used transparency around the funding of in PPERA has led to some uncertainty as to political parties. whether this is an active or passive role: [Rt Hon Hazel Blears MP, Chair of the Labour Party 15/06/06, 420] The role of the Commission in relation to regulation is to receive information and 2.19 This is a considerable achievement. It is publish it from the political parties and to important to remember that, before monitor the extent to which the parties PPERA, political parties had not been comply. “Monitor” is the word in the subject to any real regulation outside of legislation. That can be interpreted in a campaign periods, and then only very light number of ways. It could be a pretty regulation. Political parties more closely passive function. The basic assumption in resemble large voluntary sector the way the legislation is drawn is that the organisations than organisations in the primary responsibility to comply with the private or public sector and have more in legislation rests fairly and squarely with common with volunteer groups such as the the parties. Scout Movement or the WRVS than with the major charities. Activities such as The legislation very much puts the onus on recruitment and training of volunteers, the parties to comply and some of the selection of candidates, preparing leaﬂets, information that we need, which can delivering pamphlets, organising meetings trigger our investigations, does not come and canvassing are carried out by ordinary into our possession until such time as the citizens on a voluntary basis. Indeed even parties do that under the legislation. That the local treasurers and election agents is a pretty crucial question that there needs (who are subject to regulatory controls) of to be some debate about. even the largest parties are normally [Peter Wardle, Chief Executive, Electoral volunteers. The Electoral Commission was Commission 13/06/06, 165] clearly sensitive to this in its approach to establishing the practical operation of the regulatory framework.

30 Mandate of the Electoral Commission

2.22 Indeed the interpretation of the As envisaged by the Neill Committee, Commission’s regulatory role as a passive The Electoral Commission will have wide one appears to be shared by the powers to call for financial information Government: from political parties, registered third parties and referendum campaign The Electoral Commission’s role, as set out organisations, and to enter their premises by PPERA 2000, was not to investigate. It to inspect and take copies of financial was simply to be a recipient of information. documents or records. They were in a sense exactly the same as [The Government’s Response to the Fifth the Register of Companies (Companies Report [3] ] House). That was the way they were set up. Judgements about whether or not there 2.25 The investigative powers provided in PPERA have been breaches of electoral law by a would appear to confirm that this intention particular political party ultimately are not was reflected in the subsequent legislation. to be made by The Electoral Commission; Nevertheless, in light of the evidence they are to be made by the prosecuting received, the Committee believes that authorities. PPERA should be amended to remove any [Lord Falconer of Thoroton, Secretary of uncertainty that The Electoral Commission State for Constitutional Affairs 14/9/06, 147] is able to proceed and investigate allegations or suspicions of regularity 2.23 The Committee was rather surprised by this failure. We believe this will remove any interpretation of The Electoral Commission’s confusion and strengthen The Electoral regulatory role. While it is correct to say Commission’s regulatory role. that the Fifth Report advocated that the onus should be on the responsible officer in each political party to disclose information RECOMMENDATION to The Electoral Commission, the report made clear that The Electoral Commission R2. PPERA should be amended to make should have an active role in regulating it clear that The Electoral Commission party finance: has a duty to investigate proactively allegations or suspicions of failures We envisage that the Election Commission to comply with the regulatory will have statutory powers to call for framework. We recommend that information and, where necessary, to the term “monitor” be replaced appoint investigating officers or by “regulate”. accountants to look into the affairs of any political party. The powers would be exercisable in case of actual or suspected 2.26 In advocating this change the Committee failure to comply with reporting is not suggesting that The Electoral requirements. [1] Commission should continually, or disproportionately, intervene in the 2.24 Indeed, the Government’s response to the financial affairs of political parties: Fifth Report also made clear that The Electoral Commission would: Our approach has always been that actually these are voluntary associations that ought, …investigate the financial affairs of insofar as is compatible with the rules, to political parties to ensure compliance with be left to get on with it and not have an the rules on disclosure; perform a similar organisation crawling all over them all function in relation to the prohibition on the time. foreign funding; receive, scrutinise and, as [Sam Younger, Chairman of The Electoral necessary, investigate accounts of general Commission 13/06/06, 224] election expenditure by registered political parties and third parties; and receive I think that needs to be examined very returns, of individual candidates’ elections carefully because at the same time as you expenses and investigate possible breaches want to have a nimble, if you like, and of the spending limits. effective regulator, what you want it to be is proportionate to the issues at stake. [Sir Hayden Phillips, 14/09/06, 227]

31 Review of The Electoral Commission

2.27 The Committee takes the view that the 50(20) (e) of PPERA which provides that Commission should strike a balance any money lent to a party otherwise on between expecting the political parties to commercial terms is treated as a controlled disclose what is required of them and donation. This response appeared not to adopting a risk-based approach to ascertain give a definition of the meaning of those parts of the regulatory framework ‘commercial’. that might be more open to abuse or misinterpretation. Which, in this case, 2.31 Dr Pinto-Duschinsky believes that this means where a risk of non-compliance or response did not clarify whether The lack of clarity in the regulations could lead Electoral Commission had issued clear to a significant undermining of the guidance to the political parties, confidence the public and political parties particularly on its definition of a have in the regulatory framework. In this commercial loan. He considers that way, the Commission is in a position to deal such an oversight was a major failure with potential non-compliance before it by the Commission. becomes a problem. It is clear that the Commission itself recognises this: One would have expected that with a term like ‘commercial loan’ The Electoral …in terms of the core focus on the Commission would have explained what regulation of political parties…[we are] it understood to be a ‘commercial loan’. conscious that we need to take a strategic I believe that a lot of trouble would have and, in particular, a more risk-based been saved had The Electoral Commission, approach than we did in the early days. in this case and in others, gone further to [Sam Younger, Chairman of The Electoral issue guidelines and advisory opinions and Commission 14/9/06, 233] it would have helped the political parties and donors to make sure that they were in 2.28 Substantiating the Committee’s view, conformity with the law. [Dr Michael Pinto- we received evidence during the inquiry Duschinsky 13/06/06, 20] concerning possible issues about compliance with the regulations that have 2.32 Commenting on whether The Electoral undermined confidence in the regulatory Commission ought to have offered more framework. We summarise these below guidance on the loans issue, Peter Wardle and make further recommendations said: intended to lay the basis of an effective and strategic regulatory approach for The What we had was a piece of untested Electoral Commission. legislation with definitions that were untested and having to be quite careful as 2.29 The issue of loans to political parties was to what we said in terms of what was right first raised publicly in The Times on 21 April or wrong in a situation where we did not 2005, just before the General Election. The want to be accused by one party or the Conservative party was reported to have other of coming up with an answer that secured a number of multi-million pound may or may not have been convenient to loans from various individuals to help fund one party or the other. We took the view their General Election campaign. Before that we would stand on the legislation and the Electoral Administration Act 2006 [7], carry on with the view that the party had a party did not have to declare the loan looked at the legislation, interpreted it and under the rules of donations provided got on with compliance. the amount borrowed was repaid at a [Peter Wardle, Chief Executive of The commercial rate of interest. Electoral Commission 13/06/06, 198]

2.30 Following the publication of The Times’ 2.33 Throughout this inquiry the Committee article, Dr Michael Pinto-Duschinsky wrote particularly noted the reluctance of The to The Electoral Commission seeking Electoral Commission to commit itself clarification on a number of issues, firmly on any given subject under its including whether it had made clear to regulatory responsibilities. It is common the political parties its definition of a practice with many other regulators to commercial rate of interest. The Electoral produce advisory opinions on subjects of Commission’s response to Dr Pinto- uncertainty or concern. Duschinsky was to quote from section

32 Mandate of the Electoral Commission

2.34 In the same article in The Times, on 21 April guidance said at the time. I did not feel 2005, Lord Goodhart QC, Liberal Democrat that it was necessary for us to go beyond Shadow Lord Chancellor; Spokesperson for that. I really did not think that the major Constitutional Affairs, a former member of parties, about whom these conversations this Committee, was quoted as questioning were taking place, were unaware of what whether the political parties were the law provided or of what our guidance circumventing the spirit of the rules on said. There has to be a reason for us to transparency. Sam Younger, Chair of The make a public intervention in a situation Electoral Commission, was also quoted in like that when we are actually satisfied that the article as saying: the parties are aware of what the rules say. Apart from drawing further attention to it The law does not currently require a loan in a situation where we might well be made to a political party on commercial criticised by saying, ’Why should you draw terms to be declared as a donation. further attention to this? We know However, given that the thrust of the perfectly well what the rules are’, there is a legislation is to provide transparency, judgement to be taken about this. We did we will be reviewing this as part of our not at the time have any evidence to statutory report after the election. suggest that the parties were as heavily reliant across the board on loan finance as 2.35 However, the Committee is not aware of is subsequently suggested they have been. any evidence that The Electoral Commission [Peter Wardle, Chief Executive, The addressed this issue in the material it Electoral Commission 13/06/06, 187] published on the 2005 General Election, or instigated any investigation into the 2.38 The Electoral Commission currently has circumstances behind the loans. On the separate guidance on its interpretation basis of Lord Goodhart’s public concerns, of a ‘commercial loan’ on its website in the the Committee included the issue in its form of a letter to the political parties sent post-election consultation document on in March 2006. The chair of the Committee its future work-plan, the process which wrote to Sam Younger to clarify what led to the instigation of this inquiry. guidance was available to the political parties in 2005 and, if so, when it was 2.36 In fact The Electoral Commission does not first published. In his reply, Sam Younger appear to have taken any further action indicated that the guidance available to the on this issue until it became a major political parties in 2005 was the first version controversy in 2006 when allegations were of the guidance which was published in made that peerages were being given in 2001 and would have been made available return for loans and donations. These on its website and via Commission-run allegations and questions about the status training events for party officials. of the loans under PPERA are currently The guidance on loans issued by the subject to a police inquiry. Commission and extant before and during the 2005 General Election was [8]. 2.37 When asked by the Committee whether the Commission had issued guidance before Any money lent to a party other than on or during the 2005 Election campaign, commercial terms, e.g. Where a party is Peter Wardle replied that there was loaned £1m at 0% interest, and the loan is “comprehensive guidance that the to be repaid over two years, the value of Commission has issued”. When pressed the donation would be the commercial rate whether it was in place at the time he said, of interest for a loan of £1m (not the £1m “Yes. I am pretty sure of that.” He was then which is to be repaid), e.g. if the relevant asked whether the Commission had written commercial interest rate is 10%, the to the parties to say that they were worried donation would be £100,000. about the way events were shaping up and [Donations to Political Parties 2.5] to remind the parties that the guidance was available. He responded: 2.39 This guidance does not make clear what constitutes a commercial rate of interest. No we did not…I have absolutely no doubt The Committee believes that the that any of the major political parties was Commission should have provided guidance in any doubt as to what the law provided far earlier than it did on what it considered and was in any doubt as to what our constituted a commercial loan. Even when

33 Review of The Electoral Commission

this omission was highlighted by Dr Pinto- continues to be the information which the Duschinsky the Commission did not seek to parties themselves provide to us. We have clarify the issue. By the time it had given been able to identify significant issues via clear guidance to the parties in March 2006 this route and have had associated the issue was already a source of major public discrepancies corrected by the parties controversy. The evidence suggests that involved. I do not believe that moving to a uncertainty over its regulatory role caused different approach, where the Commission by the term “monitor” in the legislation mounted investigations of parties’ affairs and timidity in its failure to use the which did not stem directly from the significant investigative powers provided examination of statutory reports, is a for in the Act meant that the Commission viable option for the Commission within did not investigate the loans when this first the framework. came to its attention and any investigation [p122 21/06/06, 122] once the issue became a matter of public controversy was overtaken by a separate 2.42 The Committee raised this response from police investigation. In the Committee’s The Electoral Commission with the SDLP at view taken together this constitutes a the public hearing in Belfast: regulatory failure. As Dr Justin Fisher concluded in his research paper [Volume 2] I think The Electoral Commission see commissioned by the Committee, the themselves as having a monitoring role. loans episode raises a key issue for the We have kept saying to them that we Commission in terms of whether it should think they need to be more robust and be more investigative in its approach. they have an investigative role. In the Funding of Political Parties White Paper, 2.40 The Committee shares Lord Goodhart’s the Government said, as well as monitoring view that, by taking out large loans before they should investigate the financial affairs the General Election of 2005 and not being of political parties to ensure compliance open at the time about their source and with the rules of disclosure. We clearly size, the political parties were acting believe that the legislation allows for more contrary to the spirit of transparency that robust and investigative laws from The underpins the arrangements for political Electoral Commission, and we think they party funding. Whether there was any have been found wanting. breach of PPERA or other legislation is [Tim Attwood, SDLP 21/06/06, 541] subject to a police investigation and may ultimately be a matter for decision by a 2.43 This Committee recommended in its court of law, and is not therefore an issue Fifth Report that it was essential that The on which the Committee will make any Electoral Commission was an independent comment. body so that it would be perceived as impartial. Just as important, being 2.41 The Commission’s passive regulatory independent would give it the authority to approach was also raised in other evidence. take difficult decisions. In the Committee’s This concerned the scrutiny of returns on view The Electoral Commission has been campaign expenditure. An example too timid in taking hard decisions and has brought to the attention of the Committee not had the systems in place to ensure was the case of the Social Democratic and effective compliance in some key areas of Labour Party (SDLP) who wrote to The the regulatory framework. Electoral Commission in August 2004 formally to raise concerns it had about the 2.44 To carry out its regulatory duties the published returns for campaign Committee believes that the Commission expenditure incurred by other parties requires an investigative capability. during the 2003 Northern Ireland Assembly Therefore, in order to be as effective as election. The SDLP only received a formal possible, a separate compliance unit should reply from The Electoral Commission 12 be set up to make prompt investigations months later in August 2005. In a further of possible breaches of the regulatory letter to the SDLP in December 2005 which framework on the basis of primae facie the chair of the Committee read out at the evidence, however received, of possible Belfast Public Hearing, The Electoral problems. This unit should have no role Commission said: in the day-to-day work related to the administration of the regulatory controls. The starting point for the Commission’s This is an arrangement that we understand inquiries in pursuit of its monitoring role, is common among comparable regulators

34 Mandate of the Electoral Commission

of political ﬁnance [see: Summary of the 2.47 As there are, in most cases, separate party Study tour to Canada and the USA, Vol 2] structures in Northern Ireland, Scotland and Wales, experience in the devolved 2.45 This will also require a robust system for administrations has shown that by using assessing the potential seriousness, and locally-based people with local knowledge risk to public conﬁdence, of any allegation The Electoral Commission can build before launching an investigation. The relationships with the political parties establishment of such a compliance unit, based on trust and gain a better however, must not lead to widespread and understanding of how the system is numerous investigations into vexatious, working or if rules are being broken or trivial and politically motivated complaints. unobserved. It should also help The Electoral Commission to acquire a more comprehensive knowledge of local RECOMMENDATIONS expenditure patterns at elections.

R3. The Electoral Commission should establish a compliance unit, separate RECOMMENDATION from the administration of the regulations, which can take prompt R6. The Electoral Commission should investigative action, using the power decentralise responsibility for provided in PPERA following monitoring and regulating campaign information received either externally and constituency expenditure in or internally of possible breaches of Scotland, Wales and Northern Ireland the regulatory framework. If to its regional offices. necessary the results of any investigation should be referred to the Crown Prosecution Service. Penalties Unless there is evidence of breaches of the law, other than PPERA, the 2.48 Currently, the only sanctions The Electoral Committee would question the need Commission has if parties do not comply for the Commission to refer any such with the legislation is to name and shame investigations to the police. or, if the offence is sufficiently serious, to refer the matter to the Crown Prosecution R4. The Electoral Commission should Service (CPS) for a criminal prosecution. ensure that the compliance unit has Understandably, in virtually all cases the a robust and effective system for Commission has been reluctant to refer the assessing the potential seriousness matter to the CPS because, usually, such a and potential risk to public move would be out of all proportion to the confidence of any allegation. offence committed and a prosecution unlikely to be judged as in the public interest. R5. The Electoral Commission should establish the practice of issuing 2.49 In its Fifth Report the Committee made timely advisory opinions, based upon clear that The Electoral Commission should sound and competent legal advice, not have any substantial judicial power. The on areas of concern or uncertainty Government accepted this recommendation about the practical interpretation of and the Committee continues to believe the relevant legislation. that this is the right approach. However, we did receive evidence suggesting that the Commission should be given additional 2.46 In relation to The Electoral Commission’s powers to levy administrative financial role in regulating campaign expenditure penalties for non-compliance with the the Committee believes that in Northern regulatory requirements that might not Ireland, Scotland and Wales some of its justify current sanctions. regulatory activities would be much more effective if responsibility for monitoring I think the question of administrative and regulating campaign expenditure was penalties is the other area we would be decentralised in those three countries. looking for change in the law. [Peter Wardle, Chief Executive, The Electoral Commission 14/09/06, 325]

35 Review of The Electoral Commission

2.50 The Committee accepts that this approach is the sensible way forward with the clear RECOMMENDATION proviso that there should be an appropriate independent appeal mechanism. Such an R8. If the review being conducted by approach would supplement the existing Sir Hayden Phillips results in greater criminal sanctions that would continue to frequency of reporting on donations, apply for the most serious breaches of or other additional reporting the law. requirements, the Government should consider a lighter reporting regime for very small political parties RECOMMENDATION that have no representation at European, national, devolved or R7. The Government should consider local level. introducing a system of financial penalties, with an appropriate appeal mechanism that could be applied by Regulation of electoral administration The Electoral Commission for non- compliance with the regulatory Current position framework. Responsibility for prosecution should continue to lie 2.53 As was set out in the overview to this with the Crown Prosecution Service. chapter, evidence received by the Committee during this inquiry has highlighted concerns about wide variations Smaller political parties in standards of electoral administration in Great Britain between individual local 2.51 Within any regulatory framework it is authorities: essential that there is a sense of proportionality in relation to the size of the I think it is probably fair to say that concern being regulated. The Committee administration varies in terms of how received some evidence that the current active it is in different parts of the country. regulatory framework has a disproportionate [Rt Hon Hazel Blears MP, Chair of the effect on very small political parties in Labour Party 15/06/06, 466] relation to the reporting burdens imposed by the current legislation: My point about consistency between electoral officers is, I believe, very The bureaucratic burden falls important. I think the inconsistencies are disproportionately on small parties. A large mainly put down to the diligence and established party should have no difficulty culture of local authorities as to whether in applying its resources to meeting the or not the senior officials take it seriously. accounting and other demands of the Act. [Phil Woolas MP, Minister for Local A small party with limited resources Government 13/07/06, 105] invariably struggles. [Alliance for Green Socialism written A picture of patchy administration, good evidence 65] in some places, bad in others, is a picture I too have. 2.52 The Committee strongly believes that the [Lord Falconer of Thoroton 21/09/06, 3] same standards should apply to all political parties, irrespective of their size. However, 2.54 These concerns are also voiced by electoral we accept that there may be a case for administrators, other politicians, academics reducing the reporting burdens (not the and The Electoral Commission itself and regulatory standards) for small parties who suggest that improvements are required do not have representation at European, to ensure that our electoral system national, devolved or local level. This will continues to produce elections that are be particularly true if the review being free, fair and secure and outcomes that conducted by Sir Hayden Phillips results in are accepted by all. greater frequency of reporting donations or other additional reporting requirements.

36 Mandate of the Electoral Commission

2.55 The present arrangements for the Wales, but the cost of parliamentary administration of the electoral process date elections is met from the Consolidated back to the Victorian era. Although modern Fund. Funding for the elections to the electoral practice emanates from the devolved legislatures is the responsibility Representation of the People Act 1983 [9] of the devolved administrations. and various enactments amending it, much of the 1983 Act itself derives from Current role of The Electoral Commission legislation enacted in the 19th century. The Committee is not suggesting that the age 2.58 Until recently The Electoral Commission of this legislation makes it irrelevant. But had no statutory role in the electoral society has changed a great deal since the administrative process apart from 1870s, not least there is a much larger responsibility for the conduct of population and, therefore, franchise. referendums. However, PPERA did give the Having a head of household take Commission a statutory role to give advice responsibility for registering others sits and assistance to those involved in the rather oddly with more modern concepts electoral process including political parties of individual responsibility and equality. and electoral administrators. The Individuals are asked to prove their identity Commission’s role in the electoral process when applying for or using a broad range has now changed. The Electoral of services both in the public and private Administration Act 2006 [7] has given the sectors. It is, therefore, surprising that Commission the responsibility for setting when it comes to electoral registration or performance standards for local authorities voting, in Great Britain, there are virtually in relation to registration and the conduct of no safeguards to establish someone’s elections. The Act requires the Commission correct identity and protect the integrity to consult the Secretary of State before of the process. determining the standards and laying them before Parliament. 2.56 Both electoral registration and the running of elections are conducted at local 2.59 Many of those who contributed evidence authority level. Electoral registration acknowledged the strengths of British officers (EROs) are the officials with the electoral administration but expressed statutory responsibility for the preparation concerns about issues that they believe and maintenance of the electoral register undermine the consistency of standards of and lists of absent voters in their respective administration throughout the country. local areas. The appointment of an ERO is prescribed in Section 8 of the 2.60 There are wide differences in the number Representation of the People Act 1983 of eligible individuals who are registered in [10]. Although EROs are local government each local government area. The Committee officials they are not answerable to their was told by witnesses that, in some local local authority in respect of their electoral authorities, registration rates were little duties but to the courts based on statute over 60 per cent while in others they were law. The statutory responsibility for well over 90 per cent. preparing and conducting elections are in the hands of returning officers who are, at 2.61 Some explanations for these inconsistencies least in England and Wales, invariably the were given to the Committee: same individuals as EROs. In Scotland the two posts are separate as an ERO also Because it is carried out by a large number has responsibility for property and of local authorities, some of which are so land valuation. In Northern Ireland an different in shape and form and therefore independent Chief Electoral Officer is resource base, there is always going to be responsible for both registration and the this difference… Equally, because it is conduct of all elections. largely in terms of how the canvas is conducted, a matter of choice how much 2.57 The cost of registration is borne by local or how little, then the results are likely to authorities in Great Britain and by the be different in terms of the number of Northern Ireland Office in Northern Ireland. registered electors that come through The funding for local elections is borne by that process. local government in England and the [John Turner, Chairman Association of devolved administrations in Scotland and Electoral Administrators 13/07/06, 278]

37 Review of The Electoral Commission

...the register is only as good as the 2.65 Having closely examined the evidence the organisation that supports its preparation Committee believes that while the system and the administration. I think, being fairly of electoral administration is not broke – blunt about it, there is an issue of scale and there are some local authorities delivering it is easier for us to be able to resource the high standards – it is, in some areas, in a effective management of the elections state of serious disrepair. However, the process when you have more scale to be Committee has also rejected the second able to actually play with. option of centralising electoral [Ged Fitzgerald, Chief Executive, administration with The Electoral Sunderland City Council 07/09/06, 313-315] Commission, believing that:

2.62 Effective electoral administration is of • the actual day-to-day running of fundamental importance in any healthy registration and conducting elections democracy. An effective electoral should remain at a local level; administration system should ensure: • there is no evidence to suggest that • that those entitled to vote are included centralisation would lead to higher on the electoral register and that those standards of electoral administration. not entitled to vote are excluded from If anything, evidence suggests that the register (comprehensiveness and centralisation has not worked for accuracy); other services previously delivered on a local basis; • that the voting process is free, fair and secure; • giving the Commission responsibility for administering electoral registration and • the proactive enforcement of the rules to running elections could compromise its stop electoral fraud; role as a regulator. For a regulator to be effective it is preferable that it does not • a consistent approach to registration and have an operational role in the business the conduct of elections throughout the it is regulating, otherwise potential United Kingdom; and conﬂicts of interest could arise; and

• that electors have conﬁdence in the • it was also made clear by the Commission effectiveness and outcome of the in its evidence that it would not welcome democratic process. being given responsibility for such a role.

2.63 As regards under-representation of voters 2.66 The Committee has taken into account the on the register (as evidenced by the new powers The Electoral Commission has discrepancy in percentages of eligible been given in the Electoral Administration voters registered between local authorities) Act to set and monitor performance detailed research has been carried out, standards, although there is no mechanism including by The Electoral Commission. This in the Act for the Commission to enforce shows that an estimated 3.5 million eligible the performance standards, naming and individuals are not registered. But there has shaming. It can be argued that the new been virtually no research into the accuracy changes contained in the Electoral of the electoral register. This is significant Administration Act will enable The as some evidence received by the Electoral Commission to put in place a Committee from Dr Michael Pinto- framework of minimum standards that will Duschinsky suggests that there might be up lead to greater consistency in electoral to four million redundant names on the registration. However, the Committee is not current electoral register. convinced that, without clarifying and strengthening the Commission’s current 2.64 The Committee can confirm that there are mandate and plans that it has for regional local authorities that are delivering high offices, the Commission will be effective in quality standards in electoral raising standards of electoral administration. But, as electoral administration to a consistently acceptable administrators have testified, there are level throughout the United Kingdom. many local authorities where standards in electoral administration are low.

38 Mandate of the Electoral Commission

2.67 Under the current arrangements, there From the perspective of SOLAR I would say remains an underlying lack of accountability that The Electoral Commission have fulfilled and transparency which makes it very what I understand to be their mandate difficult to identify poor practice and enable in terms of promoting integrity and change to happen. The Committee strongly involvement and effectiveness in local believes that for change to be effective democracy. I think they have done that for there has to be a robust regulator that providing a focus for modernisation and shines a light on bad practices and is able standardisation and simplification by all to ensure that the right changes are made. administrators in Scotland. We might not regard ourselves as iconoclasts, but we have 2.68 Therefore the Committee is recommending been keen to move and modernise the that The Electoral Commission is given a electoral process and I think that the Electoral statutory oversight and regulatory role in Commission has provided that focus for us, electoral administration to enable it to and I think it has been very effective. highlight where the problems are and to [Jeff Hawkins, Returning Officer, East ensure that solutions are put in place. Renfrewshire Council, 27/06/06, 331]

Regional electoral ofﬁcers 2.72 The Committee believes that the focus of the Commission’s regulatory work on 2.69 Considering how The Electoral Commission electoral administration should be at might take best advantage of a regional level in England and in Scotland responsibility for regulating electoral and Wales. This raises the question of what administration, the Committee believes form this role should take. that any regulatory approach must: 2.73 When Sir Howard Bernstein, Chief • be focused on outcomes not processes; Executive of Manchester City Council, was asked whether he thought there was a case • be based on expertise and experience of for somebody from the Commission to be the electoral system; rooted in each of the regions to act as a regional arm of the Commission, he • take ownership of the processes; responded by saying:

• concentrate on proactive engagement I think there are a number of models that with stakeholders; you could portray. That is certainly one of them and it is one that I find most • have awareness of regional and local attractive because whoever discharged that variations throughout the United regional role would need to be able to Kingdom; and have the full authority to act for and on behalf of the Commission. I think that is • be responsive to problems and quite an important principle. So whether it underperformance. is a direct commissioner appointed by the Commission, whether it is somebody like 2.70 One of the main criticisms voiced about the me or somebody similar elsewhere in the work of The Electoral Commission during North West appointed by the Commission, this inquiry was that it has tended to whoever it is has to be seen to be acting concentrate on peripheral issues rather with the full authority of the Commission. than addressing real problems whether [Sir Howard Bernstein 21/09/06, 46] in its current role as regulator of political party funding or on the current state of 2.74 The Electoral Commission has very recently electoral administration. announced that it intends to set up a very limited regional network in England to 2.71 Following visits to Belfast, Edinburgh and operate the new responsibilities placed on Cardiff, it was clear to the Committee that it in the Electoral Administration Act 2006. the Commission has been at its most The Commission has also indicated that the effective in the work undertaken at offices four English regional teams would support in these three countries. Good working wider corporate objectives in the same way relationships with the main stakeholders as its current offices in Northern Ireland, have been established and, more Scotland and Wales. The Commission has importantly, local knowledge has been used announced that there will be a Head of to good effect in highlighting problems the English regions and four regional and identifying solutions: officers based in the South West, the

39 Review of The Electoral Commission

South including London, the Midlands and 2.79 An effective regional structure must reflect the North. local sensibilities. The current Electoral Commission blueprint has four regional 2.75 Although the recognition of the benefits offices in England with one each in of a regional approach is welcome, the Northern Ireland, Scotland and Wales. This Committee does not believe such a is too few to ensure effective working structure is sufficient or focused to deliver relationships with electoral administrators the improvement in standards required. in well over 400 local authorities First, the proposed number of offices is too throughout the country. Instead, we believe small and does not take the size of the there should be nine REOs in England population in England into account. covering similar geographic units to the Second, we believe such an approach will current Government Offices for the be too centralised and top-down to be Regions, two in Scotland and one in Wales. effective. Such an approach could lead to inertia rather than proactivity and time 2.80 In Northern Ireland, REOs are not, at wasted fighting for influence within the present, applicable as electoral Commission’s organisational hierarchy. This administration is centralised under the type of approach ultimately produces Chief Electoral Officer. ineffective outcomes.

2.76 The Committee is therefore recommending RECOMMENDATIONS the establishment in statute of regional electoral officers (REOs) accountable R9 The posts of regional electoral directly through the chief executive to The officers (REOs) should be established Electoral Commission who will: in statute, accountable through the chief executive to The Electoral • take responsibility for monitoring and Commissioners, with responsibility reporting on the performance standards for monitoring and reporting on of local authorities; the performance standards of local authorities in their region. • work closely with local authorities to ensure that they were fully aware of R10 The standards of electoral what was required; and administration must be maintained in every part of Great Britain. • encourage joint working to ensure the Regional electoral officers should be highest standards of electoral registration, appointed for Scotland and Wales the conduct of elections and identifying with the same status, responsibilities and eliminating electoral fraud. and accountability as for each region of England. 2.77 The REOs should be appointed, after open competition, by the electoral commissioners. The REOs would report to the commissioners Performance standards on the performance of the local authorities in their regional area, including the state of 2.81 The Electoral Administration Act has given the electoral registers, the conduct of The Electoral Commission the power to set elections and the means to identify and and publish performance standards for tackle electoral fraud. Once all avenues electoral registration officers, returning became exhausted in relation to improving officers and counting officers, relating to a local authority’s performance, REOs maintaining the electoral registers and should have the authority to recommend to the delivery of electoral and referendum the commissioners that it request the services. When asked by the Committee at Secretary of State for Constitutional Affairs a public hearing on 21 September where to exercise his power of direction (as set he wanted to see standards improved, out in section 52 (1) of the Representation the Secretary of State for Constitutional of the People Act 1983) over that local Affairs replied: authority. My overall concern is plainly to see two 2.78 The Committee believes that the creation things: the highest number of people who of REOs is essential if performance should be registered being registered standards set out in the Electoral accurately and, secondly, the conduct of Administration Act 2006 are to work. elections, including remote voting, being

40 Mandate of the Electoral Commission

done to the highest standards of investigations into irregularities in the administration and integrity. voting process. There was no evidence [Lord Falconer of Thoroton, Secretary of provided to suggest that fraud is endemic State for Constitutional Affairs 21/09/06, 34] throughout the electoral system. However, no research has been carried out either by 2.82 The introduction of performance standards The Electoral Commission or others, into the is to be welcomed. However, to be scale of electoral fraud so it is difficult to effective, they must focus on achieving: be certain how widespread it is. Neither has the Commission kept any statistics relating • electoral registers that are accurate and to instances of electoral fraud since it was comprehensive in all parts of the UK; created. However, what evidence there is suggests it is prevalent in certain communities • elections that are fair and secure; in the North of England, the Midlands and some London Boroughs where there are • elections where the rules are consistently marginal wards or where there is factional applied throughout the country; and infighting for control within local political parties or those communities. • minimal electoral fraud. 2.87 Fraud can damage not only the integrity of 2.83 It is also essential that electoral the electoral system but the confidence of administrators embrace these standards not electors in the outcome of elections. The as a bureaucratic imposition but as a tool Committee believes performance standards to deliver high quality electoral services. should be extended to focus on minimising The REO’s role will be vital in this respect. such fraud by ensuring that systems are put REOs will know the strengths and in place to identify and address weaknesses weaknesses of electoral administration in in current practices. the local authorities in their region and can use that information to help target low Enforcing standards performing local authorities. 2.88 It is essential that if performance standards 2.84 Current legislation already makes provision are to work then action needs to be taken for the Commission to set standards in against consistent poor performers. Under relation to electoral registration and the current legislation The Electoral Commission conduct of elections but the Committee has no authority to impose sanctions on proposes that standards should also be set poorly performing electoral administrators for minimising electoral fraud and for the apart from naming and shaming: funding of electoral services. There is nothing whatsoever statutorily to Electoral fraud stop us going along to the chief executive of a local authority saying ‘You know and I 2.85 In oral evidence to the Committee, Rt Hon know that we have some risk here, we have Kenneth Clarke QC MP said the following: some problems here. Here, in the name of The Electoral Commission, is our advice on I would suggest that if you went back ten what you need to do about it’. It’s not an years ago only an eccentric would have insignificant thing to do and we can do queried the integrity and functioning of that without statutory power. the British electoral system…it was [Peter Wardle, Chief Executive, Electoral regarded as a model for secure, free and Commission 14/09/06, 306] fair elections and no sensible people doubted it. 2.89 Before reaching the stage of imposing [11/07/06, 436] sanctions, part of the process must entail the regional electoral officers working 2.86 The evidence presented to the Committee closely with the poor performing suggests that this is no longer true (for administrators to improve performance. more detail see Chapter 5). There have Only when this fails should the possibility been a number of high profile fraud cases of applying sanctions be considered. in relation to the abuse of postal and proxy voting and, following the local elections in 2006, there are a number of current police

41 Review of The Electoral Commission

2.90 In the Representation of the People Act 1983 [10] the Secretary of State has a RECOMMENDATIONS power of direction over electoral administrators. The Committee thinks that, R12 The Electoral Commission should once all other avenues have been pursued make public reports on their to improve performance, The Electoral assessment of levels of performance Commission, following a direct of electoral administrators. In recommendation from the respective REO, circumstances where it has identiﬁed should recommend to the Secretary of and publicised unacceptably low State that he/she use their power of standards, and where there has been direction to ensure that change is failure by the relevant electoral implemented. A further option open to the administrators to agree to implement Secretary of State would be to ask The the necessary measures for Electoral Commission, as the responsible improvement, The Electoral regulator, to decide how electoral services Commission should formally request in that local authority should be delivered the Secretary of State for in the future. This could involve the services Constitutional Affairs (Secretary of being operated by a nearby high State for Scotland if electoral performing local authority. In the event administrator is Scottish) to exercise that a request from The Electoral his existing powers of direction Commission to exercise this power is contained in the Representation of declined, then the Secretary of State should the People Act 1983 over the said be required to report to Parliament on the ofﬁcers. In the event that any such reasons for the refusal. request is declined then the Secretary of State should be required to report 2.91 We believe the Commission should develop to Parliament on the reasons for his these performance standards working refusal to exercise the power. closely with local authorities and also with the Audit Commission, which has extensive R13 The Electoral Commission should experience in this area. Further, the report to Parliament annually on Commission, for this part of its mandate in standards of electoral administration, England should be included in the ‘family’ including any action it is proposing to of regulators that will come under the tackle areas of underperformance in Audit Commission’s ‘Lead Inspectorate’ relation to electoral registration, the framework. conduct of elections and minimising the risk of electoral fraud.

RECOMMENDATION R14 The Government should consider whether Northern Ireland should R11 The Electoral Commission should use adopt these arrangements once they its powers enacted in the Electoral have been successfully established in Administration Act 2006 to establish, the rest of the United Kingdom. monitor and report on performance standards for electoral administrators in the areas of electoral registration, Funding of electoral administration the conduct of elections and and elections minimising electoral fraud. 2.92 The Committee received conﬂicting evidence as to how the electoral system should be funded.

2.93 The Committee recognises the wider issues raised by ring-fencing funding for local authorities and that using The Electoral Commission as a funding channel would compromise the Commission’s role as regulator of the electoral administration system. Progress might be made if the Department for Constitutional Affairs were to indicate – each year – an appropriate

42 Mandate of the Electoral Commission

level of expenditure for a local authority to parliamentary boundary commissions be allocate to perform its statutory duties in brought under the umbrella of The relation to electoral registration and the Electoral Commission. In addition, it conduct of elections. The Electoral proposed that the Local Government Commission would then have the Commission for England also be brought opportunity to monitor the level of funding within The Electoral Commission and actually allocated as part of its duty of combined with the English Parliamentary reporting on the performance of local Boundary Commission. Similar mergers authorities. were envisaged for setting local boundaries in devolved administrations with provision made for each administration, if it so RECOMMENDATIONS decided, to transfer its respective local government boundary-setting functions R15. The current funding arrangements to The Electoral Commission. for electoral administration and for elections should be retained. The 2.97 The Government made clear that its Department of Constitutional Affairs intention was not for these transfers to should publish annually indicative happen immediately. In the case of levels of local authority expenditure parliamentary boundaries, this would only allocated to deliver electoral services. take place after the completion of the fifth general review which began in 1999, and R16. The Electoral Commission should was expected to be completed in 2005. consider the level of funding Provision for all these transfers was provided for electoral administration therefore made in PPERA [2]. as part of its monitoring and reporting on the performance of 2.98 The Local Government Commission for individual local authorities. England was transferred to The Electoral Commission on 1 April 2002 and became the Boundary Committee for England, Electoral boundaries chaired by Pamela Gordon, Electoral Commissioner. The transfer took place 2.94 The Electoral boundaries of local during the periodic electoral review of local government wards and parliamentary government boundaries in England which constituencies are the building blocks of had started in 1996. This was successfully our representative democracy. For public completed in 2004 and recommendations confidence and consent in the electoral made to the Secretary of State in 2005, to process the way in which they are set the apparent satisfaction of those concerned. (through periodic reviews which take However, the devolved administrations account of population changes) must be have, we understand, indicated no desire or demonstrably fair, impartial and intention to transfer their local boundary independent. The UK has mostly succeeded setting functions to The Electoral in this respect in the last half century and Commission. Also, the fifth general review the experience of other countries, where of parliamentary boundaries in England this has not been achieved, is salutatory. only completed its work in 2006, so no orders to transfer parliamentary boundary 2.95 In its Fifth Report, the Committee did not commissions have yet been made. consider in detail whether the Commission should assume responsibility for 2.99 During this inquiry, commentators, parliamentary electoral boundaries, practitioners, the Government and The although it did note that the current Electoral Commission itself agreed that the system appeared to work well and that partial merger of these functions is not transfer to the Commission might seriously sustainable. There is broad agreement that overload it, given the other responsibilities we need to establish clear and consistent that were proposed [1]. boundary-setting responsibilities for the future. 2.96 In its response to the Fifth Report [3] the Government concluded that the creation 2.100 This review of The Electoral Commission’s of The Electoral Commission afforded an mandate concerning the boundary opportunity to re-examine the commissions is therefore particularly timely arrangements for the review of electoral – a point endorsed by Bridget Prentice MP, boundaries. It proposed that the four Parliamentary Undersecretary of State for

43 Review of The Electoral Commission

Constitutional Affairs, in evidence to the ‘horizontal’ consistency of a common Committee [18/07/06, 571-573] and in the approach to parliamentary boundaries by Westminster Hall debate on The Electoral each of the four parliamentary Commission on 3 July 2006 [10]. The commissions, and likewise for local Secretary of State for Constitutional Affairs, boundaries; and so called ‘vertical’ Lord Falconer of Thoroton said in evidence consistency between the approach of each to us: local government commission with their respective parliamentary commission I am not sure what the answer to what we (because ward boundaries are the building do about the boundaries is at the moment. blocks for parliamentary boundaries). [Peter We set off on one route in the 2000 Act Wardle, Chief Executive Officer, The and it is taking a long time to get to that Electoral Commission, 13/06/06, 241-261] particular conclusion. I think we need to look at the whole thing and review what 2.105 The Electoral Commission subsequently the right way forward is. wrote to the Committee concerning their [21/09/06, 112] developing thoughts on this issue, and this was set out more fully in their additional 2.101 Concerns have also been expressed for written evidence of September 2006: some time, particularly by the parliamentary boundary commissions but In summary, our view is that local by others as well about other aspects of government and parliamentary boundary this, including the rules that the review work should be conducted by Commissions follow when reviewing organisations in England, Scotland, Wales parliamentary boundaries; the consequent and Northern Ireland which are separate length of the review process; and the lack from The Electoral Commission. In this of sequencing between local and context, the Commission sees its role in parliamentary reviews. relation to boundary work as being more strategic than hitherto… 2.102 This is the context in which the Committee has considered electoral boundaries as part …Additionally, we see considerable merit in of this inquiry. To assist our understanding, ensuring that a common approach is taken we commissioned Dr David Butler and to parliamentary reviews in each part of Professor Iain McLean of Nuffield College the country. In this respect, the Commission Oxford – leading experts in this field – to is probably the best placed to take the lead undertake a short piece of research in the and have responsibility for setting boundary issues. We wish to record our standards across the United Kingdom. gratitude for this very helpful work. We [Electoral Commission, 74/7-9] refer to the research throughout this section and a copy can be found on the 2.106 The Commission also made suggestions CD-ROM of Volume 2 that accompanies regarding a review of the rules governing this report. parliamentary reviews (which we cover later) and acknowledged that there might 2.103 Finally, the Committee has considered this be alternative and complementary issue in the context of our wider proposals. recommendations on the mandate of the Commission, and our recommendations on 2.107 Other witnesses also saw merit in a similar Governance contained in the next chapter. overarching role for the Commission or for a new body to keep the rules under review The boundary-setting role of The Electoral and ensure consistency of approach, in Commission respect of parliamentary boundaries or a combined UK Parliamentary Boundary 2.104 In its initial evidence The Electoral Commission. The latter suggestion is, in Commission indicated that it was giving effect a variation of the others as, in further consideration to its boundary- practice, there would need to be sub- setting role as part of a current strategic commissions for Scotland, Wales and review [Sam Younger, Chair of The Electoral Northern Ireland and at least one, possibly Commission, 13/06/06, 249]. The key issues more, for England. revolved around potentially competing requirements for consistency: so called

44 Mandate of the Electoral Commission

2.108 The Committee agrees with The Electoral Joint secretariats Commission that it should withdraw from all boundary-setting work. This will require 2.110 There was a broad consensus that the the transfer-out of the Local Boundary option of merging each local government Committee for England and a removal of commission with their respective the provisions in PPERA allowing for the parliamentary commission, in the pursuit transfer of the four parliamentary of so called ‘vertical’ consistency (as well commissions and devolved local as efficiencies) is now precluded by the government boundary functions. In devolution settlements. The difficulties with reaching this conclusion, the Committee has this model is that each merged Commission been particularly guided by awareness that in Scotland Wales and Northern Ireland the current process has been shown to be would have separate accountabilities and demonstrably impartial and independent – have to look in two different directions for i.e. “if it’s not broken then don’t fix it”. the two operational areas [Local Government Also, given our strongly held view that the Boundary Commission for Wales 75/1]. Even Commission must fundamentally refocus its in England, merger could produce potential efforts on the two cores regulatory roles, problems given the difference in remit discussed above, we believe that any role in between parliamentary and local the setting of electoral boundaries would boundaries, in particular the requirement risk diversion from these tasks. of the latter also to ensure effective and convenient local government [Boundary 2.109 For these reasons we do not believe that Commission for England 62/2]. the Commission should assume any overarching regulatory role over the four 2.111 The Committee also received evidence that, parliamentary boundary commissions. in practice, there was already a good There are arguments for keeping the degree of ‘vertical’ consistency in both Wales operation of the rules under review and and Scotland because there were joint ensuring consistency of approach by the secretariats for the respective parliamentary four boundary commissions. However, the and local boundary commissions [Susan precise scope and scale of this role is, we Smith, Local Government Boundary believe, unclear until some of the Commission for Wales, 06/07/06 opening underlying problems with the rules statement]. The benefits that can be themselves are resolved (which appear to realised from such an approach include: be the principal cause of inconsistency). We suggest that this issue (but not whether • spreading the peaks and troughs of the The Electoral Commission should assume respective (local and parliamentary) any role) be considered as part of the review cycles; review of the rules we discuss below. • improving efficiency and effectiveness since the respective Commissions can RECOMMENDATIONS more easily share the same hard and soft intelligence; R17. The Electoral Commission should no longer have any involvement in • more stable staffing with the retention electoral boundary matters and the of knowledge and expertise (a problem provision in PPERA to allow the acknowledged by The Electoral transfer of boundary-setting Commission as concerns the Local functions to the Commission should Boundary Committee for England); and be repealed. • costs savings. R18. The Boundary Committee for England should become a separate 2.112 The Committee therefore believes that this independent body in line with local is an approach that should be adopted government boundary commissions across the UK. in the rest of the United Kingdom.

45 Review of The Electoral Commission

• a lack of a requirement for careful RECOMMENDATION sequencing of local and parliamentary reviews can add to delays and/or R19. The Parliamentary Boundary undermine the use of wards as the Commission and local boundary building blocks of parliamentary commission in each of the four constituencies. home countries should share a joint secretariat. 2.114 In the Committee’s view, these are serious problems which must be addressed. There is an opportunity now, immediately following The rules governing parliamentary reviews the fifth general review of parliamentary boundaries, for a thorough review of the It is essential that the boundary-drawing rules so that any changes can be in place process should be fair to electors for the beginning of the sixth general throughout the UK; it should be non- review, due around 2012. Failure to take partisan, immune from political this opportunity could cause the interference, and up to date with continuation and deepening of these population movements. The current problems in our electoral boundaries into arrangements satisfy the second and third the second quarter of the century. criteria but not the first or the fourth. [Dr David Butler and Professor Iain McLean, 2.115 PPERA currently provides The Electoral Nuffield College, Oxford 13/07/06 opening Commission with the power to instigate statement] such a review and make recommendations. In evidence [74/8] the Commission indicated 2.113 There appears to be broad consensus it would consider the exercise of these between most academics, observers, the powers following this Committee’s report. four boundary commissions, The Electoral However, consistent with recommendation Commission, and many politicians (but not, 17 that the Commission should cease to at present, the Government) of the need have any role in Electoral Boundaries, we for a review of the rules governing the believe the Commission should not conduct review of parliamentary boundaries, and of such a review. The existing rules derive the time taken to complete such reviews from the 1948 Act [11] which followed (specifically in England). The report the Speaker’s Conference of 1943-4. The produced for the Committee by Dr Butler Boundary Commission for Wales [75/2], and Professor McLean contains a concise using this precedent, suggested that an summary of virtually all of the concerns alternative to The Electoral Commission about the current rules that were raised in conducting such a review would be for evidence and an analysis of underlying the Speaker’s Committee to be given problems. In our view it bears careful responsibility to commission the review reading and could form the basis for any and for the outcome to be presented to review of the rules. Principally, the Parliament though the Speaker (who is problems and contradictions within the the ex-officio chair of each of the four current rules have led to: parliamentary boundary commissions). This, in the Committee’s view, has • inbuilt bias that leads to an increase in considerable merits. the House of Commons at each review1;

• inbuilt, progressive inequality of electoral quotas which over time will signiﬁcantly erode equal representation ‘one vote one value’, well outside accepted international norms;

• unnecessary delays in the review process – on current form the boundaries for general elections of 2008/9 and 2013/14 will be based upon electoral registers of 2000; and

1 This was corrected, somewhat, recently by the reduction in the number of seats in Scotland from 72 to 59 under the terms of the Scotland Act 1998. This does not however remove the inbuilt bias in the rules for increases in the overall size. 46 Mandate of the Electoral Commission

The Electoral Commission will have an RECOMMENDATION important educational role in promoting public awareness of and participation in R20. There is strong case for the current the democratic process. The setting up of a legislation in relation to the conduct fully independent body, free of any of parliamentary boundary work to suspicion of political partisanship, offers an be reviewed and where necessary opportunity to make a step change in this amended before the commencement area. Hopefully, this work will have a of the sixth general review due contribution to make to improving the around 2012. poor turnout in elections in this country compared with others [1]. The review should, in particular consider: 2.117 PPERA provided a statutory duty for The Electoral Commission to promote public • addressing the progressive awareness of: inequality of electoral quotas, and increase in the size of the House of • current electoral systems in the United Commons that appear inbuilt to the Kingdom; operation of the current rules; • current systems of local government • the time taken to conduct reviews, and national government in the United particularly in England where, in Kingdom; and addition to changes to the procedures, the possibility of • institutions of the European Union. carrying out inquiries on a regional basis should be considered; 2.118 The Act also gave the Commission the duty to: • alignment between the timing of local and parliamentary boundary • carry out programmes of education or reviews to ensure stable local information to promote public awareness government boundaries as the of the democratic process; or basis for each parliamentary review; and • make grants to other persons or bodies for the purpose of enabling them to carry • the question of a role for keeping out such programmes. the operation of the rules under review and ensuring consistency 2.119 There are currently two distinct parts to of approach by the four Boundary this role: Commissions. • highlighting to the public the mechanics This review should not be of participation in the democratic process; undertaken by The Electoral and Commission. An independent review commission for this purpose could be • an educational and inspirational role to established and overseen by the try and get more people involved in the Speaker’s Committee with the democratic process. outcome presented to Parliament through the Speaker. 2.120 It is important in any democratic society that individuals are made aware of the mechanics of participation in the electoral Increasing participation in the process. This involves: democratic process • informing individuals how they register 2.116 In its formal response to this Committee’s on the electoral roll, including eligibility; Fifth Report, the Government indicated that The Electoral Commission should have • notiﬁcation of impending elections; and an important educational role in promoting public awareness and participation in the • the process of voting, including eligibility democratic process. for postal and proxy voting.

47 Review of The Electoral Commission

2.121 Communicating this information has In contrast to this, others were critical: become even more vital over recent years because of changes in electoral legislation, I think this is an important issue, but I the use of different voting systems in think somebody else ought to be doing it. different elections held on the same day [Oliver Heald MP, Shadow Secretary of and changes to the actual voting process. State for Constitutional Affairs and Shadow Chancellor of the Duchy of Lancaster, 2.122 For example, The Electoral Commission has 15/06/06, 174] played and continues to play an important role in Northern Ireland. It was responsible 2.126 The Government’s primary reason for for informing electors about the changes giving the Commission this remit in PPERA that came into being following was alarm at the continuing drop in establishment of the Electoral Fraud Act turnout at various elections. Why 2002. It ran high profile advertising individuals do not register or vote is a campaigns on television, radio and the highly subjective issue. A number of print media both during the annual canvass reasons were put forward in evidence to and in the run-up to elections in 2003, 2004 the Committee including: and 2005. Currently, it is running a campaign to inform the electorate about • disenchantment with politicians and the the changes to registration brought in by political process; the Miscellaneous Provisions (Northern Ireland) Act 2006 [12]. • no real differences between the main political parties; 2.123 Another example is the elections in Scotland in 2007. Here the Commission has • apathy; a vital role to play to inform voters about the three different voting systems being • social exclusion; and used at the two sets of elections. Without this type of input it is clear that a • the growth of individualism and the significant number of voters in the case of decline of communal cohesion. Northern Ireland would have turned up to the polling station without any 2.127 Those who gave evidence advocating a photographic identification and in Scotland role for the Commission in this area were it should lead to a significantly reduced primarily concerned with ensuring that number of spoilt votes. individuals were encouraged to vote:

2.124 The Committee believes that this area of The new Politics Network believes that voter education is closely linked to The The Electoral Commission has an important Electoral Commission’s core remit. As such role to play in raising public awareness of the Commission should continue to have elections and the importance of voting. responsibility for promoting awareness of This role was not effectively carried out how to register and how to vote. before the creation of The Electoral Commission and it is a difﬁcult role for Voter participation the Government to perform. [24/3]

2.125 This part of the Commission’s current Torfaen County Borough Council provided mandate evoked a significant amount of written evidence to say: comment, particularly during the Committee’s public hearings. Some The promotion of public awareness and witnesses commended the Commission for participation in elections should rest with its work in this area. The Electoral Commission alone and sufficient funds should be made available To me it is very much the role of The to make this meaningful. [20/1] Electoral Commission. It is part of their core remit, along with regulation, to 2.128 In its written evidence to the Committee, promote democracy. The Electoral Commission defended its role [Bridget Prentice MP, Minister for Electoral in this area while making it clear this role Policy 18/07/06, 464] represented a significant shift in political culture and that not all politicians had welcomed the move. In evidence to the

48 Mandate of the Electoral Commission

Committee Andrew Tyrie MP reflected 2.132 The Commission’s statutory duty, supported that position: by a ring-fenced £7.5m per annum budget, is, in the Committee’s view, not within, or The first area where I think a mistake has supportive of, its core regulatory tasks. probably been made was in asking The The evidence of any impact, in terms of Electoral Commission to take responsibility increased turnout at elections is at best for voter participation. I am confident in mixed and some have argued negligible. retrospect that most people think that it The Commission’s own work suggests that should not have. I think that it is the the main reason why people choose to responsibility of political parties. If exercise their right to vote is related to people are not interested in politics competitive political parties and policies. it is our fault, primarily. We therefore recommend that this broad [Andrew Tyrie 11/7/06 263,265] statutory duty be removed from the Commission. 2.129 In other evidence, Rt Hon Hazel Blears MP, Chair of the Labour Party suggested a 2.133 The evidence provided on this issue firmly Foundation for Democracy be set up to pointed to this function as being the encourage participation in the democratic responsibility of political parties. However, process: it is unlikely that they have the capacity to do more work in this area than they do The Foundation for Democracy would offer already and, therefore, the question of training, advice, support and material some limited public funding arises. This falls assistance for local campaigning, citizenship clearly in the remit of Sir Hayden Phillips’ education and involving more people in review of political party funding, which democratic politics. includes consideration of increased state [Rt Hon Hazel Blears MP, Chair of The funding. The Committee has alerted Sir Labour Party 15/6/06, 433] Hayden to its conclusions in respect of the Commission’s mandate on voter engagement 2.130 The Secretary of State for Constitutional and no doubt he will consider this issue as Affairs took the view that it was part of his review. worthwhile for The Electoral Commission to explain to electors when they should vote and how to vote but that it was not RECOMMENDATIONS particularly worthwhile for it to get involved in wider work about democratic R21 The Electoral Commission should participation. retain a clearly defined statutory [Rt Hon Lord Falconer of Thoroton QC, duty for the provision of public Secretary of State for Constitutional Affairs information on the mechanics of the and Lord Chancellor, 21/9/06, 141] electoral process including electoral registration procedures, how to vote 2.131 On balance, the Committee shares the and explaining any changes to the views expressed by Sir Hayden Phillips when electoral system. he gave oral evidence: R22 The Electoral Commission should no I have to say that it is up to political parties longer have the wider statutory duty themselves to take the lead in engaging to encourage participation in the the public. That is actually what they are democratic process. there for and it is a challenge to them. It is not a good thing in my view, if people reach to ask others to undertake the task Policy development and advice of getting people to get engaged with party politics and political issues, which is 2.134 Before the provisions in PPERA came into what it means when you talk about in the effect, electoral policy was the responsibility jargon ‘democratic engagement’. I would of a very small unit in the Home Office, and look to the parties to do this rather than at the time it appeared to make sense to a quango, however distinguished. give The Electoral Commission responsibility [Sir Hayden Phillips 21/09/06, 270] for developing policy on electoral matters particularly as the Government was keen to proceed with a comprehensive electoral

49 Review of The Electoral Commission

modernisation strategy. However, in 2003, Moving more into the operational area following government changes, responsibility probably means pulling a little bit away for electoral issues was transferred to the from others. We would still be an influence newly created Department for Constitutional on policy but the notion of The Electoral Affairs (DCA). Since then, DCA has built up Commission as the sort of lead on electoral a substantial Electoral Policy Division which policy seems to me to be actually a bridge is responsible for government policy on most too far. electoral matters in England and Wales. [Sam Younger, Chair of The Electoral Commission 13/6/06, 95] 2.135 Since its creation, The Electoral Commission has published various policy documents the 2.139 In addressing this issue the Committee most significant being Voting for Change, agrees with the Government’s view that it published in 2003, which made a number is no longer appropriate for The Electoral of recommendations for changing the Commission to have responsibility for electoral system in the United Kingdom. A reviewing electoral policy: large number of these recommendations were accepted by the Government and Decisions on the electoral system are formed the basis of the Electoral political ones, and in the final analysis they Administration Act 2006. However, the must be taken by politicians. most significant proposal, to introduce [Andrew Tyrie MP 35/9] individual registration, was rejected by the Government. 2.140 The Committee has taken this view for two major reasons: 2.136 In its evidence to the Committee, the Government said: • it is the role of government to develop policy and introduce legislation to The role of the Commission in the Parliament; and development of policy has probably taken on a prominence that was not expected • there is a potential conflict of interest for back in 2000. Expectations about what it is any independent body between being an able to achieve have risen as a result. At effective regulator and formulating policy the same time it faces a number of that could have a direct impact on the operational challenges which would not area the body is regulating. have been foreseen in 2000. [47/1] 2.141 While the Committee is proposing that The Electoral Commission no longer take the 2.137 It is clear that DCA now has the capacity to lead on electoral policy, it firmly believes develop electoral policy on behalf of the that it should have a role in providing Government and it is right and proper that advice on the suitability of existing and they do so. The Committee also believes new electoral legislation. As a regulator it that The Electoral Commission must be seen should, in the course of its operations, to be independent if it is to carry out its develop a thorough knowledge of what is regulatory functions effectively: working and what is not. If something is not working or policy proposals are likely It has to be, I think, a body that is separate to cause problems (see also Chapter 5, R42 from the policy formulation position. They p2.28), then The Electoral Commission can give information about things but if should have a duty to make such you want to be somebody completely observations public. separate from the political process, which I am absolutely sure The Electoral Commission should be, then it is much RECOMMENDATION easier to be in that position if there is not an overlapping policy role between R23 The Electoral Commission should no government on the one hand and The longer have a role in undertaking Electoral Commission on the other. policy development in relation to [Lord Falconer of Thoroton, Secretary of electoral legislation. This function State for Constitutional Affairs 21/9/06, 146] should be the responsibility of the appropriate Secretary of State for 2.138 The Electoral Commission itself appears to Constitutional Affairs. be aware that the current status quo is no longer tenable:

50 Mandate of the Electoral Commission

Administration Act, including the RECOMMENDATION effectiveness of the provisions of postal voting on demand (see also Chapter 5, R24 The Electoral Commission should R41). continue to provide advice on the suitability of existing and new 2.145 Although The Electoral Commission does electoral legislation in respect of its not currently have a statutory duty to ability to perform its two principal report on local elections, the Committee statutory duties. believes that the Commission’s remit should be widened to cover local elections in England, Northern Ireland, Scotland Election reports and Wales.

2.142 In the Fifth Report the Committee recommended that The Electoral RECOMMENDATIONS Commission should publish a report on the conduct and administration of each major R25. The Electoral Commission’s reports on election or referendum within six months each election should cover incidents of it taking place. In PPERA this was of electoral fraud and the actions speciﬁed as reporting on General Elections, taken to minimise fraud, also the European Parliamentary Elections or effectiveness of the new provisions elections to the three devolved legislatures. on postal voting on demand. This should apply in reports for the May 2.143 The Electoral Commission has published 2007 local elections. a number of election reports since 2001. They have been particularly welcomed R26. The Electoral Commission’s statutory in Northern Ireland, Scotland and Wales remit to report on the conduct of and the evidence the Committee received elections should be extended to indicated that, because of the various cover local elections in Northern changes to electoral law and voting systems Ireland, Scotland and Wales. in the various elections to the devolved legislatures, those particular reports had useful recommendations to make. However, the Committee was disappointed by the standard of the Commission’s report on the 2005 General Election which was not a comprehensive or considered account. It should be expected that, following the next General Election, the Commission publishes a comprehensive report in one volume on the important aspects of that election.

2.144 At the time of its Fifth Report, the Committee envisaged that such a post- election report would draw attention to any novel features of the election; also to any deﬁciencies that had emerged in its administration and in the law governing it. We think these reports should cover such areas but they should also include a speciﬁc section concerning incidents and allegations of electoral fraud. This section should also cover what action was taken by electoral administrators to minimise the risk of electoral fraud. Additionally, following elections in May 2007, it is essential that The Electoral Commission includes in its election reports an assessment of the provisions introduced by the Electoral

51 Review of The Electoral Commission

References

1. Committee’s Fifth Report, The Funding of Political Parties in the United Kingdom (Cm 4057 – October 1998).

2. Political Parties, Elections and Referendums Act 2000, c41.

3. The Funding of Political Parties in the United Kingdom: The Government’s proposals for legislation in response to the Fifth Report of the Committee on Standards in Public Life (Cm 4413 – July 1999).

4. Committee on Standards in Public Life: Review of The Electoral Commission, Issues and Questions Paper, February 2006.

5. The Review of Funding of Political Parties: An interim assessment, Sir Hayden Phillips, October 2006.

6. House of Commons Constitutional Affairs Committee, Party Funding HC 163-1.

7. The Electoral Administration Act 2006.

8. Donations: guidance for political parties, The Electoral Commission.

9. Representation of the People Act 1983.

10. Hansard, 3 July 2006.

11. Representation of the People Act 1948.

12. Miscellaneous Provisions (Northern Ireland) Act 2006.

52 Governance of The Electoral Commission

CHAPTER 3: GOVERNANCE OF THE ELECTORAL COMMISSION

Introduction 3.4 The Government, in its response to the Committee’s Fifth Report [2], accepted 3.1 In the previous chapter the Committee set these recommendations and proposed that: out its recommendations for an amended and refocused regulatory mandate for The • there should be not less than five, but not Electoral Commission. In this chapter we more than nine electoral commissioners consider the governance of The Electoral and all would be Crown appointments. Commission, which is of major importance The number of commissioners was to fulfilling its mandate effectively. increased from that proposed by the Committee to take account of the wider 3.2 The framework put in place for the mandate proposed by the Government governance of The Electoral Commission and, in particular, to deal with the must ensure its independence, impartiality prospect of the Commission assuming and competence. The Commission must responsibilities for parliamentary be governed so as to ensure the confidence boundaries; of the public, of political parties and of electoral administrators who are subject to • the commissioners and the chair should its regulatory approach. To do this it must be appointed under Royal Warrant. show leadership and integrity in fulfilling The powers of Her Majesty would be its mandate. exercisable on an Address from the House of Commons, with no motion 3.3 This Committee’s principal concern in its being made for such an Address without Fifth Report [1] regarding the governance the agreement of the Speaker of the of The Electoral Commission was to ensure House of Commons and after consultation that the Commission was independent of with the leaders of registered parties government and of political parties. From (with at least two members in the House this the Committee derived a number of of Commons); and important principles that it believed should underpin the procedures for determining • commissioners would be appointed for the membership of the Commission’s a term of up to ten years and are only governing body, the electoral commissioners. removable within their period on specific The recommendations made by the grounds and then with the agreement of Committee reflected these principles, but the House of Commons. Terms would be were not prescriptive about how they renewable but with the expectation that, might be achieved: in line with the Commissioner for Public Appointments’ guidance, no-one would R75 The Commission should be, and be serve longer than ten years. seen to be, an independent and impartial body. Its members [Commissioners] should 3.5 These arrangements were reflected in the be chosen on a non-partisan basis and by Political Parties, Elections and Referendums means of a non-partisan procedure. Its Act 2000 (PPERA) [3]. However, during the members should nevertheless be acceptable course of the passage of the legislation the to the leaders of the main political parties. Government brought forward a number of important amendments that were designed R76 The members of the Commission to further strengthen confidence in the should be given long periods of office and independent and impartial nature of The should enjoy substantial security of tenure. Electoral Commission. As a result PPERA also provides for: R77 The Commission should consist of five part-time members.

53 Review of The Electoral Commission

• restrictions on who can be the chair of 3.7 There are five current electoral the Commission, an electoral commissioners: Sam Younger (chair), commissioner or the chief executive of Glyn Mathias, Karamjit Singh CBE, Sir Neil the Commission. Restrictions include any McIntosh CBE, and Pamela Gordon. member, officer or employee of a Peter Wardle is the chief executive and registered party; anyone who, in the last accounting officer. On 8 November 2006, ten years, has been an officer or the Speaker’s Committee announced [4] employee of a political party; and any that Sam Younger had accepted a further donor in the register of donations; period of office, to expire on 31 December 2008, subject to the statutory consultation • as a consequence, the chair of the required of the registered leaders of certain Commission, an electoral commissioner or political parties and the agreement of the the chief executive of the Commission is House of Commons. The announcement required to stand down from office if he made clear that the reappointment was in or she consents to being nominated as a accordance with the Commissioner for candidate at a relevant election or to Public Appointments’ Code of Practice. being included in a list of candidates at such an election; or takes up office or Overview employment with a registered party or is named as a donor; or becomes a party 3.8 The restrictions placed on who can be an member; and electoral commissioner or an employee of the Commission, introduced during the • further restrictions were placed upon passage of PPERA, are a robust (and it who could be an employee of The could be argued draconian) approach to Electoral Commission. Except for the ban implement the principles of membership of on political party membership, these the Commission set out by this Committee mirror the restrictions on who may be in its Fifth Report. The measures were commissioner or chief executive, including clearly intended to ensure that The ceasing to be an employee if any of these Electoral Commission as a whole restrictions occur during employment. (commissioners and staff) is, and is demonstrably seen to be, independent and 3.6 The first electoral commissioners were impartial in the discharge of its statutory appointed in January 2001; two for a four- functions. year term, three for a five-year term and the chairman for a six-year term. At that 3.9 It is clear, however, that the practical effect time, the Home Office was the lead of the restrictions on commissioners and government department for electoral staff, the so called ’ten-year rule’, is to matters and undertook the appointments more or less exclude anyone who has had process through open competition and an direct experience of a political party and independent selection panel. In 2004 it was through that, direct involvement in the necessary to decide what to do in relation political process. As Dr Alan Whitehead MP to the first batch of appointments due to said in reference to the restrictions on expire – given that PPERA does not explain Commission staff [11/07/06, 219]: where the responsibility lies, nor the required process for the selection of Bearing in mind that most employees of candidates leading up to a recommendation The Electoral Commission at middle ranking to the Speaker. Given the statutory and junior level are under the age of 40, independence of the Commission it was felt effectively that means that they are barred to be inappropriate for government to take for life from ever being involved in the the lead and, in view of the Speaker’s political process, which seems strange. statutory role in the appointments process (paragraph 3.4 above), he took overall 3.10 A number of witnesses during the inquiry charge. A similar procedure was followed in questioned whether such restrictions, 2005 when the second batch of although aimed at ensuring an important appointments was due to expire. On both principle (independence and impartiality), occasions each of the commissioners who are appropriate for a regulator which, by had completed a first term was definition, must possess expertise, reappointed for a further term. knowledge and competence of the sector to operate effectively. Comparisons have

54 Governance of The Electoral Commission

been made with other regulators operating restrictions, the ten-year rule, placed on in similarly sensitive sectors which, although employees of the Commission are having clear rules to prevent real and disproportionate and place a significant apparent conflicts of interest among non- barrier to the Commission effectively executive Board members and staff, do not delivering its mandate. This view is shared preclude contemporary experience and to varying extents by the Government, the involvement in the regulated sector. Indeed Speaker’s Committee, political parties, MPs, most regulators actively seek such electoral administrators, academics and contemporary experience. commentators and includes The Electoral Commission itself [74/11]. Most witnesses 3.11 The Committee’s concern therefore has expressed a view that the restrictions had been to consider whether, after five years, created a perverse situation whereby some these measures have ensured real and of the very people who have the necessary perceived impartiality and independence of experience and knowledge that would the Commission, and helped the most assist the Commission to become Commission to fulfil its statutory mandate, the effective regulator are excluded in particular its regulatory functions. from employment. Inevitably, our consideration of the Commission’s appropriate future 3.15 This is a view that the Committee shares. governance arrangements takes account of We do not believe that such a blanket rule our recommendations in Chapter 2 for a is justified, proportionate, or indeed clearer, refocused mandate for the necessary to ensure the impartiality and Commission, including the removal of some independence of staff employed in the statutory duties – in particular, any Commission, or more broadly, of the responsibility for electoral boundaries. Commission itself.

3.12 During the inquiry the Committee received 3.16 The Committee is not aware of any other a spectrum of views from witnesses about regulators that have such restrictions on all the effectiveness of the current governance staff in terms of their previous experience arrangements for The Electoral Commission. and employment. Such rules do not pertain On the issue of the current restrictions on among comparable overseas Electoral who can be a commissioner, the views Commissions, such as the Federal Election expressed were to some extent polarised. Commission (USA), Elections Canada and There is a clear consensus that, whatever the Australian Election Commission. As a the arrangements, a key aim should be to matter of course many regulators do continue to ensure the real and perceived require a ‘cooling off’ period for individuals independence and impartiality of the moving from a regulated body to the Commission from government and political regulator (and visa versa). There are also parties. However, views varied markedly on strict rules to deal with real and perceived whether the current arrangements had conflicts of interests once an individual is delivered this in practice, particularly given employed. However, the imposition of a the current breadth of the Commission’s blanket ten-year rule on all employees mandate. There was also varied comment appears unprecedented. concerning whether the competence and experience to deliver the mandate 3.17 Some witnesses did recognise that certain effectively may have been sacrificed. restrictions on staff might still be appropriate, in particular for the most 3.13 In the following section we set out some of senior members of staff. This avoids real or the arguments put forward and the perceived bias and ensures that the public evidence received during the inquiry, and political parties remained confident in before outlining the Committee’s views and the regulator’s independence: recommendations on how to address the key issues. …we have no objection to a relaxation of the ten-year rule in relation to staff – and Restrictions on staff of potentially even the removal of any The Electoral Commission restriction whatsoever. A possible model might be to apply the sort of rules that 3.14 The evidence the Committee received operate in respect of civil servants. The only during the inquiry indicates that there is a exceptions to this might be the most senior broad consensus that the current blanket staff of the Commission who have

55 Review of The Electoral Commission

delegated responsibility (or significant otherwise of enabling some commissioners influence in) decision-making. to have direct and contemporary [The Electoral Commission 74/11] experience of political parties. The arguments for and against some relaxation 3.18 The Committee agrees that a balance needs of the ten-year rule have been laid out and to be struck to avoid potential conflicts of there are valid points on both sides. The interest and/or perceptions of bias. The risk arguments are finely balanced and may rest of this will be highest and potentially most upon perceptions, which are important, as damaging for the most senior executive much as practical realities which, ultimately, positions in the Commission: the chief should be the main concern: executive and members of the executive management board, who will include the By all means, have admirable party regional electoral officers we recommend advisory committees who can express in Chapter 2. These positions will most views, have some forum in which they influence regulatory decisions. The can express views, but keep them Committee therefore believes that absolutely off the Commission. That is the restrictions should remain for these posts, thing we both of us felt very strongly about but need not be as draconian as the ten- as we talked about. year rule. A five-year rule would be more [Dr David Butler 13/07/06, 234] appropriate. My own view is that falling over backwards 3.19 For other staff it was suggested that the to avoid having politicians on the body, of rules that operate for civil servants could course you must make sure party political apply. However, these rules [5] deal only views do not in any way intrude. Of course with restrictions on political activity when you must ensure the politicians cannot, as it already employed and for ’politically were, dominate the body. But The Electoral restricted’ posts (which would be Commission is engaged in seeing how the appropriate for The Electoral Commission). political process in part works. You should This would not therefore address the issue have people who have been engaged in of any cooling-off period restriction on the political process there to help you – not employees. Given the refocused regulatory you but The Electoral Commission – or mandate we propose for the Commission in there will be people who say it does not Chapter 2, we believe that it would not be have the confidence of those engaged in appropriate, for example, for a party agent the process. It needs the confidence of to move directly from this post to deal, the them but it also needs the confidence of next day, with regulatory matters the public as well. I think you can do both. concerning that party. For this reason, we [The Rt Hon Lord Falconer of Thoroton QC, believe a limited period of restriction is still Lord Chancellor and Secretary of State for necessary and suggest that one-year is Constitutional Affairs 21/09/06, 168]. appropriate. 3.21 Very broadly, academics, some commentators, electoral administrators, RECOMMENDATION boundary commissioners, some smaller political parties and The Electoral R27. The current ban on employing Commission itself believe that the ten-year individuals at The Electoral rule on the appointment of Commissioners Commission who have been politically protects the independence and impartiality active over the previous ten years of the Commission (real and perceived) and should be reduced to one year. For should therefore remain. In summary the senior management and regional principal arguments put forward against electoral officers the length of the any relaxation of the restrictions are: ban should be reduced to five years. • commissioners who have any direct affiliation, current or previous, with any Electoral commissioners political party would compromise both the real and perceived independence of 3.20 The issue of the restrictions on who can be the Commission. The Commission could an electoral commissioner generated some become a forum for brokering ‘deals’ of the greatest interest and debate in this between the parties on key regulatory inquiry. People tended to hold strong and, issues; at times, passionate views on the merits or

56 Governance of The Electoral Commission

• as such, commissioners could act as to that expertise and experience, and that representatives of their particular party’s we recognise. interests and, collectively, such [Sam Younger, Chair, Electoral Commission commissioners could seek to influence 14/09/06, 388] the Commission as a whole in favour of political parties’ interests, rather than the The Commission is now making efforts to public interest. Electoral Commissions in address this issue by setting up an informal other countries where the governance advisory group which could be put on a structure is overtly political were cited statutory footing: as examples; There are various ways we have tried to • decisions on difficult regulatory issues – plug that gap. Most recently, and I think such as a decision to impose a fine (as we probably this is overdue, and I hope it will recommend in Chapter 2) or reference to work and is without prejudice to what the Director of Public Prosecutions (DPP) might happen in the future either for a prosecution, would be tainted with statutorily or otherwise – but we have the perception of possible political bias or established a small reference group of ‘quid pro quo’ deals; and three members of the House of Lords, three members of the House of Commons, from • the current unitary1 nature of the each of the main parties. Commission would be undermined. Even [Sam Younger, Chair, Electoral Commission if the rules were relaxed only for a minority 14/09/06, 391] of commissioners, the Commission as a governance body could be perceived, 3.24 Irrespective of this Committee’s conclusions and might operate merely as a forum for about the future governance arrangements representatives of particular groups to for the Commission, we believe that this is pursue their different interests, not just a welcome development by the Commission political parties but also local government that should be continued. and devolved administrations. 3.25 On the other hand, all the main political 3.22 However, it must be acknowledged that parties, some MPs and commentators, and some of those expressing these views were the Speaker’s Committee have argued doing so specifically in the context of strongly for more direct contemporary Commission’s current mandate, including political experience in the governance responsibility for electoral boundaries arrangements. Most suggest some (for example, Dr David Butler [13/07/06, relaxation of the ten-year rule for the 233], and the Boundary Commission for appointment of electoral commissioners. England [5/2]). Almost without exception, those who have argued for some relaxation are not seeking 3.23 Many of the witnesses who opposed any a majority of commissioners with such relaxation of the rules nevertheless direct experience, recognising the balance recognise a shortfall in the extent to which to be struck and perceptions of the Commission has managed to engage independence. Rather they seek a with elected politicians and political parties significant minority that would reflect in key aspects of its work. A number experience across the political spectrum. proposed the establishment of a statutory In summary, the principal arguments put advisory group, similar to arrangements forward are that: that exist in Canada and Australia [see overseas summary in volume 2]. The • it is fundamentally untenable for a Electoral Commission itself clearly has regulator to have a governing body concerns about this issue and, in particular, which contains no-one with direct their engagement with elected experience of the sector under representatives: regulation;

…the one thing we [commissioners] do not • for a regulator to be effective and have is the experience of operating as credible it must have the conﬁdence of either elected politicians or actively within those it regulates. The Commission will parties. Therefore we need to have access continue to fail to generate this conﬁdence if its governance structure

1 A board which includes different views, backgrounds and experience but in which no-one sits as a representative, far less an agent, of particular parties (in the legal rather than political sense) or organisations and where decisions are taken collegially. 57 Review of The Electoral Commission

does not include people with direct, years. Indeed the Commission’s own concern contemporary political experience; about “lack of engagement with MPs and politicians more widely” is symptomatic of • some aspects of the Commission’s work this shortcoming. We strongly believe that that have led to justified criticism over establishing confidence between the last five years would not have commissioners and those they regulate is occurred with a governing body more in essential for the Commission’s future tune with the way political parties and governance arrangements. the political process work in practice; There were other cases where I think the • true independence and impartiality is Commission did not understand the best ensured by input from experience distinction between those things which of the various sides of politics and the confer advantage on a candidate in an political process and helps avoid election, and therefore should be looked at unwitting bias to either the government and costed by them and declared to them, or any particular political party; and and those things which are part and parcel of being a member of parliament and • the current restriction contributes to the carrying out public duties… All of these unhelpful perception that politics is an things, I think, illustrated a lack of untrustworthy and undesirable activity awareness of what went on in the real whose participants cannot be trusted to world of being a politician and not of a act in the public rather than politically partisan character. partisan interest. [Rt Hon Alan Beith MP 15/06/06, 369].

3.26 The Committee believes the arguments for 3.28 The Committee also notes that the and against some relaxation of the ten-year involvement of politicians in other bodies rule for electoral commissioners are well concerned with the broader regulation of balanced. The Electoral Commission does politics has worked well and brought appear to have established itself in the eyes significant benefits. This is the case in the of the public as a truly independent body. Committee’s own composition and also in Experience from overseas and international bodies such as the House of Lords best practice [6] demonstrates that Appointments Commission and the independence of such bodies is highly Advisory Committee on Business prized and any erosion of this would be a Appointments. We do recognise that these significant loss for The Electoral bodies have only advisory not executive Commission. However, the inclusion of functions, unlike the Commission, and that direct contemporary political experience on this may argue against similar political the governing body does not necessarily party nominees as electoral commissioners. imply a loss of independence [6]. The However, in local government, the Committee has much sympathy with those Standards Board for England and the Audit who regard such claims as feeding public Commission have executive regulatory cynicism in politics and a perception, powers and both have ‘political’ board fuelled by the media, that politics is some members in a minority. In these cases, sort of disreputable activity that should although nominations for suitable be avoided at all cost. This is not true and candidates are sought from the three main such perceptions damage public life and parties, the positions are also advertised the engagement of the public in the and the selection process is a competitive political process. one. In addition to requirements for political experience, successful candidates 3.27 The Committee has therefore focused on must also satisfy the criteria that apply to the competence and experience of other ‘non-political’ board member or commissioners required for the Commission commissioners. These bodies have been to deliver its statutory mandate effectively. involved in difficult and controversial issues Some of the evidence that we have received but none of them, we believe, could be indicates that those whom the Commission justifiably accused of a lack of has regulated have not been uniformly independence or impartiality. confident about the commissioners’ experience of the political process, elections and political party finances in the last five

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3.29 On balance therefore, the Committee cautious of representative appointments, believes that some relaxation of the ten- fearing that the Commission could became year rule is necessary to enable a minority of a forum for party political deals without Commissioners to have direct, contemporary due weight given to the public interest: political experience. This will ensure that the Commission can operate effectively as a …I do not think it should be what the regulator and retain the confidence of Germans call die Proporz. It should not all those whom it regulates. To accommodate be lined up. This is my own view; I am not commissioners with experience across the sure we have Hansard Society view. I think political spectrum (for example from the that there is a danger that you get what three main parties and one from a smaller has happened with the Federal Electoral political party), the number of Commissioners Commission in the States, which has really would need to be increased, so that just become a forum in which the parties together these fours posts were in a negotiate. It is really no more than that; it significant minority. Such an arrangement is a place, as you have no doubt observed, would also need to reflect some key where the parties cut their deals. I think principles to maintain the unitary nature that would be extremely undesirable… of the board and avoid direct conflicts of interest for holders of the four new There is a danger, if the party nominees commissioner posts. bounce in the traditional way, that you are implicitly saying to the other members of 3.30 The Labour Party in its evidence [37/2] the Commission, “You sit back while the proposed that: politicians do the deals”. I do not think this should be a deal-led body; I think it should the number of commissioners be increased be a public-interest, rule-led body. That is to twelve, of which seven (including the what makes me slightly nervous about Chairman) would be independent as set out getting over mechanistic in that way. But in PPERA 2000 at present. The remaining the presence on the staff and on the five would be appointed on the following Commission itself of people with political basis. One commissioner appointed by each clout and nous, albeit it no longer in the of the three main parties in the House of middle of the fray, seems a good thing. Commons (the Labour Party, The [Lord Holme, Chairman, Hansard Society Conservative Party, The Liberal Democrats) 07/09/06, 263-266] one commissioner appointed by the other minor parties in the House of Commons, 3.32 The Committee therefore believes that an and one commissioner appointed by the open competitive selection process for such Association of Electoral Administrators. positions is the best approach and this could include political parties encouraging The Conservative Party and the Liberal particular individuals to put themselves Democrat Party suggested similar models. forward for appointment. [Oliver Heald MP, Conservative, Shadow Secretary of State for Constitutional Affairs 3.33 As we have noted, other regulators do and Shadow Chancellor of the Duchy of include people with direct contemporary Lancaster 15/06/06, 185; and Simon Hughes experience of the regulated sector on their MP, Shadow Secretary of State for boards although they have protections in Constitutional Affairs and Attorney place against conflicts of interest. Any General, President of the Liberal Democrat relaxation of the ten-year rule for the Party 15/06/06, 308] Commission must ensure similar protections. Some witnesses who argued 3.31 The Committee does not believe that direct for a relaxation of the rules referred to the nomination or appointment by political need to recruit commissioners with “very parties of even a minority of commissioners recent” political experience or “no longer is the appropriate way forward. Such a active politicians” or those “no longer mechanism might imply that these holding an official position within a commissioners would be representatives of political party”. These views reflect the that particular party’s interests in any need to ensure that a commissioner does Commission deliberations or decisions. This not have a direct conflict of interest with would, in our view, undermine the unitary the issues or decisions dealt with by the nature of the Board of Commissioners. A Commission. The principal potential conflict number of witnesses who supported is a direct interest in the fortunes, electoral relaxation of the ten-year rule were also or financial, of a particular political party.

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We do not believe that this extends as far as membership of a party. But it does R30. The background and political clearly extend to a commissioner who experience of the four new continues to be an elected representative commissioners must respectively of that party or an appointed ofﬁcial or represent the three main political representative (i.e. a Peer taking the party parties (Labour, Conservative and whip). These restrictions should, in our Liberal Democrat) and one of the view, remain. minor parties in the House of Commons. Although individuals may

3.34 Finally, and as we highlighted in Chapter 2, be encouraged to apply by political there are substantial concerns about the parties each post should be publicly absolute separation of political interests advertised and candidates must from the actual process of deciding satisfy all other criteria that apply for electoral boundaries – as opposed to commissioner posts and be subject to presenting evidence and making a selection process based upon merit representations about them. Our following the Commission for Public recommendations here in respect of the Appointments’ Code of Practice. commissioners are made in light of the recommendation in Chapter 2 that all responsibilities for electoral boundaries Devolved administrations should be removed from The Electoral Commission. 3.35 The Committee has also considered whether the current governance arrangements sufficiently take account of RECOMMENDATIONS devolution and the Commission’s UK-wide remit. Currently, there are three R28. The total number of commissioners commissioners who take a lead interest (including the chair) should be within the Commission in each of the three increased to ten. devolved administrations, although they are not formal representatives. The R29. The current restrictions on who may commissioners for Scotland and Wales are become an electoral commissioner from each of these countries and have should be revised for four respective experience and knowledge of Commissioner appointments to enable them. The ‘lead commissioner’ for Northern the appointment of individuals with Ireland is not from or resident in the recent experience of politics and the Province, although the Commission told the political process. New commissioners Committee that it planned to recruit such a would be appointed as individual commissioner in the near future. Witnesses members of a unitary board, not as in Belfast also highlighted the difficulty of representatives or delegates of a finding a candidate who would be particular political party. perceived as impartial to all the political parties in Northern Ireland [Tim Attwood On taking up appointment, SDLP 21/06/06, 85, Richard Bullick DUP such commissioners: 21/06/06, 185, Sean Begley Sinn Fein 21/06/06, 377]. • must not be an employee or officer of any political party and/or an 3.36 The evidence the Committee received in elected representative (at European, Scotland, Wales and Northern Ireland was national, devolved or local level) or supportive of these arrangements. This an appointed Peer who takes the approach appears to have worked well and political party whip; and has been well received by the devolved administrations, respective electoral • would cease being a commissioner on administrators and politicians. There were becoming any of these during their some witnesses who suggested that there term of office. should be a statutory requirement for Scottish, Welsh and Northern Irish commissioners whose role would be specifically to represent the interests of each of the three countries.

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3.37 There are some similarities in these The role of the chair and commissioners suggestions with the debate on representation of political parties and 3.39 Developments in systems of governance maintaining a unitary board of in the public and private sector have led Commissioners as discussed above. The to a clear separation of executive and Electoral Commission believes the current non-executive roles to clarify operational arrangements can adequately address responsibilities and governance devolution and a regional approach in accountabilities. In the Committee’s Fifth England without requiring representative Report, we envisaged that, after the initial commissioners and breaking the concept of set-up of the Commission, the chair would a unitary board: be a non-executive role and the chief executive would have responsibility for day- I think we would all say that what the most to-day decisions [1, paragraph 11.10]. important thing to all of us has been that every commissioner has an equal status on 3.40 In the event, setting up the Commission all issues in the sense that they come to the required the chair to take a hands-on Commission in order to take an interest executive role. This continues, although it and make decisions across the full range of has reduced over time. The current chair the Commission’s activities. That said, it explained to the Committee that he was would be inconceivable that we would not indeed now starting to take a more be looking for a balance of commissioners conventional non-executive role [Sam to represent various [devolved] areas. Younger 13/06/06, 265] and the Speaker’s Committee confirmed that they were in …And we also need to think in terms, process of considering this issue [Peter particularly if we move down a regional Viggers MP, 13/06/06, 428]. Given the broad route, of thinking about how we might mandate of the Commission, the reflect regions within England. So there is commissioners themselves appear to have an awful lot of balancing work to be done. needed to take a more executive role in the But the core of it, I think, is that you need early days of establishment, including to have a corporate body where you feel responsibilities for boundaries, which everybody both can be and is accepted as required a significant commitment of time having an equal voice across the board. from each commissioner: [Sam Younger, Chair, Electoral Commission 14/09/06, 418-419] We are not like a lot of non-executive directors. I think it is fair to say that my 3.38 In the Committee’s view, the current colleagues and I on average, and it does 1 approach strikes the right balance between vary, are spending 2 ⁄2 to 3 days a week on reflecting devolution in the governance Commission business. When we were doing arrangements and maintaining a board on the local government reviews in the North which commissioners are not a collection of of England I was more than full time. representatives but a collegiate body. [Pamela Gordon, Electoral Commissioner, 14/09/06, 383]

RECOMMENDATION 3.41 The Committee accepts that setting up the Commission, and its broad mandate, has R31. The practice of appointing a required both the chair and the commissioner from Scotland and a commissioners to play a greater part in the commissioner from Wales who have executive functions than would normally be the lead interest in Scottish and expected from what were anticipated to be Welsh matters should continue and non-executive board appointments. the Speaker’s Committee should However, now the Commission is proceed with appointing a established, and with a more focused commissioner from Northern Ireland mandate – as proposed in Chapter 2 – we who will play a similar role. believe that it is important to make the roles of the chair, commissioners and chief executive explicit. The changes we propose for the composition of commissioners require the chair to have a leading role in the governance structure. When the new

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chair is recruited (within the next two about who has responsibility for the years) we expect the appointment to be process – the Commission or the Speaker’s on a part-time basis, with remuneration Committee? reﬂecting this, and clearly as a non- executive role. The same should apply to 3.45 The Committee believes it is important to the appointment of new commissioners. address both the issue of responsibility and of process. Using the example of ministerial 3.42 Under the chair’s leadership, the appointments, where the sponsoring commissioners should have collective department is responsible for the responsibility for setting the overall appointment process, then the Speaker’s strategy of the Commission and overseeing Committee should be responsible for its effective delivery against its statutory commissioner appointments. The Speaker’s mandate. Advised by the chief executive, Committee would be responsible for commissioners will need to take key beginning the process in a timely manner, regulatory decisions and account for the setting the role speciﬁcations and Commission’s use of public funds to the overseeing the open competition, which Speaker’s Committee and for the would include setting up an independent Commission’s activities in general. The chief selection panel. The Speaker would then executive and his/her senior management agree the selection panel’s recommendation must be responsible for the delivery of the after consultation with the leaders of overall strategy. registered parties (with at least two members in the House of Commons). Although not a ministerial appointment, RECOMMENDATION and therefore outside of the formal scope of the Commissioner for Public Appointments, R32. The chair of The Electoral Commission the Speaker’s Committee should follow the should be a part-time non-executive OCPA Code, including the use of an role. Commissioners should also be independent assessor. non-executive and part-time.

RECOMMENDATION Appointment of the chair and commissioners R33. PPERA should be amended to make clear that responsibility for the 3.43 PPERA provides that no commissioner oversight of the recruitment and appointments should be made without the selection process for electoral agreement of the Speaker of the House of commissioners lies with the Speaker’s Commons (and after consultation by the Committee, including setting the role Prime Minister with the leaders of specification and convening an registered parties) but it does not specify independent selection panel. Either the selection process or which body has PPERA or the Speaker’s Committee responsibility for this. Initial appointments procedures should stipulate that the were made by the Home Office (then Commissioner for Public responsible for electoral matters) through Appointments, Code of Practice will an open competition based on merit, be followed in such appointments. which is now the established method for ministerial public appointments. Conclusion 3.44 Both the Commission [Sam Younger 13/06/06, 269] and the Speaker’s Committee 3.46 Striking the right balance between [Dr Christopher Ward, Clerk to the governance arrangements that ensure Speaker’s Committee 13/06/06, 406] gave independence and impartiality and the the Committee assurances that the need for contemporary experience and principles of the Commissioner for Public knowledge of the sector is a challenge Appointments’ Code of Practice would faced by all regulators. But getting the be followed for future commissioner right balance is critical. It will secure the appointments. However, a number of confidence of the public and those being witnesses expressed concern about the regulated, demonstrate independence and transparency of the appointment and impartiality and ensure the regulator’s reappointment process and a lack of clarity competence to fulfil its mandate.

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3.47 Achieving this for The Electoral Commission 3.50 Finally, we recommend that the Speaker’s is a particular challenge given the Committee should assume the responsibility importance of public conﬁdence and for oversight of the process of appointing consent in the democratic process which it the chair and commissioners, and that these regulates and bearing in mind that the appointments are made through an open, regulated sector is the political system and competitive and independent process in political parties – the source of members of line with the requirements of the the legislature(s) and executive(s). Commissioner for Public Appointments.

3.48 The restrictions governing who could be an employee of the Commission or become an electoral commissioner, has left a gap in the contemporary experience and knowledge of the political process within the Commission. Evidence gathered during this inquiry shows that this gap has reduced the conﬁdence of political parties and politicians under the Commission’s regulation, and had an impact on the effectiveness of the Commission. We have recommended the relaxation of these restrictions to:

• avoid direct conﬂicts of interest;

• maintain the independence and impartiality of the Commission;

• retain the uniﬁed nature of the board of commissioners, also taking account of the devolved administrations;

• enable the appointment of staff who have direct contemporary experience and knowledge of politics and political parties; and

• enable the appointment of a minority of commissioners who also have direct contemporary experience and knowledge of politics and political parties.

3.49 Five years after the establishment of the Commission we also believe that the chair and commissioners should now play an explicitly non-executive role in their governance of the Commission, leaving the executive management team with day-to- day operational responsibilities. Under the chair’s leadership, the commissioners must now assume collective responsibility, as non-executive board members, for setting the Commission’s overall strategy and overseeing its effective delivery by the executive team.

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References

1. Fifth Report of the Committee on Standards in Public Life, The Funding of Political Parties in the United Kingdom, Cm 4057, October 1998.

2. The funding of political parties in the Untied Kingdom: The Government’s proposals for legislation in response to the Fifth Report of the Committee on Standards in Public Life, Cm 4413, July 1999.

3. Political Parties Elections and Referendums Act 2000, c41.

4. House of Commons Hansard, column 576, 6 November 2006.

5. Civil Service Management Code, July 2006.

6. Council of Europe – European Commission for Democracy through law (Venice Commission): Code of Good Practice in electoral matters (CDL-AD (2002)23rev).

64 Accountability of The Electoral Commission

CHAPTER 4 ACCOUNTABILITY OF THE ELECTORAL COMMISSION

Introduction • its governance arrangements, which should be designed to ensure its day-to- 4.1 The question “Who guards the guardians?” day independence, impartiality and is one that is often posed in the context of competence and therefore sustain the organisations and individuals charged with confidence of the public and also political regulating the activities of government parties and elected representatives who bodies and elected representatives in a are subject to its regulatory activities. democratic society (for example see [1]). In a mature democracy such as the UK, The Committee has considered these issues systems of accountability, both to the in Chapters 2 and 3, and believes that the executive (and through it to legislature) changes it has proposed to give focus and and directly to elected representatives have clarity to the mandate and enhanced been developed and modified over time. governance arrangements will, in themselves, strengthen the effectiveness 4.2 However, in the case of The Electoral of accountability arrangements for The Commission, charged with the regulation Electoral Commission. of key aspects of the democratic process itself, this poses a particular challenge. The 4.4 During the inquiry witnesses raised four key regulation of party political finances and areas where the issue of appropriate and the electoral system involves potential effective accountability arrangements for conflicts of interest among members of the The Electoral Commission were considered executive and the legislature – principally important: the House of Commons. Regulation of these areas can directly affect the political (i) Accountability to Parliament for the prospects of individual MPs, Ministers and proper expenditure of its funds – i.e. their political parties. In a parliamentary the setting of the budget and through democracy it is necessary for the regulator, that oversight of the economic, The Electoral Commission, to be held efficient and effective discharge of its accountable, either by the Government – statutory mandate; and through it to Parliament – or by Parliament directly, particularly for the use (ii) Accountability to Parliament for its of public money in fulfilling the statutory general activities, policies and decisions functions set for it by Parliament. But any in discharging its statutory mandate – system of accountability must also protect i.e. its overall performance; the Commission’s independence and impartiality from the possibility of undue (iii) Accountability to the devolved influence for partisan political or electoral administrations, recognising that The advantage. Electoral Commission is a UK-wide body but that its activities are a matter of 4.3 The effectiveness of any accountability legitimate interest for the devolved system for The Electoral Commission will legislatures and that some of these also depend on: activities are in areas under devolved supervision; and • the clarity and focus of its mandate as set out in statute, for this will be the basis on (iv) Accountability to the political parties which it seeks to justify resources to and electoral administrators – i.e. to achieve particular outcomes, and also the those that it directly regulates. basis on which it must give an account more generally on its activities; and

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4.5 It is through the mechanisms for each of examines the proposed budget before these areas, particularly i-ii, that The submitting it to the Treasury. This Electoral Commission is accountable to the parliamentary committee is distinct from public through Parliament. The Commission the more familiar Public Accounts is also accountable to the public indirectly Committee, which uses the work of the in the usual manner as for other public NAO to hold the executive to account for bodies, for example through annual reports the economic, efficient and effective use and stakeholder surveys. However, for the of public money. purposes of this inquiry, the Committee has focused on the Commission’s direct lines of 4.9 In its response to the Fifth Report [3], the accountability (i-iv above). Government agreed with the Committee’s recommendation that the Commission’s 4.6 The Committee’s approach has therefore budget should not be controlled by a been to examine the appropriateness and government department and adopted the effectiveness of the current accountability suggestion that a model similar to that arrangements for The Electoral Commission used for the NAO should be put in place. in each of these four areas, balanced The Government proposed the creation of against the protection of its independence “The Speaker’s Committee” for this and impartiality. For each area we have purpose, made up of nine members: examined the background to the current arrangements in place before turning to an • six MPs appointed for the duration of the analysis of the evidence received about Parliament by the Speaker; and how well these are working in practice. As we show, there are some overlaps between • three ex-officio members, one the chair each area but the principle we have of the relevant select committee and two adopted is that each area is potentially a Ministers, one with responsibility for separate line of accountability. electoral matters and one for local government matters. Accountability to Parliament for the proper expenditure of funds The Speaker’s Committee was to be tasked with examining the Commission’s budget 4.7 In the Committee’s Fifth Report [2], the and presenting it, with any modification it accountability mechanisms considered for the saw fit, before the House of Commons. To then proposed Electoral Commission were provide assurance that the absence of mostly concerned with setting budgets: ministerial departmental oversight would not lead to runaway expenditure, the One of the main prerequisites of the Speaker’s Committee, in approving the independence of the Commission would budget, was required to heed advice from be its independence of budget. A body the Treasury (again, this is similar to the whose budget was determined through NAO arrangement). a government department and which consequently had to fight for resources 4.10 These arrangements were reflected in the against competing priorities in government Political Parties, Elections and Referendums could never be perceived as truly Act 2000 (PPERA) [4], subject to one independent. We therefore believe it is important amendment that was made essential that a mechanism should be during the passage of the Act [5]. The developed for setting the Commission’s legislation was amended to provide for the budget which stresses the Commission’s Speaker to be a member and ex-officio independence while at the same time chair of the Speaker’s Committee and it retaining a degree of accountability to was envisaged that he or she would play an Parliament for the proper expenditure active role in its day-to-day administration. of public funds. By employing the constitutional impartiality of the Speaker, the intention was to 4.8 The Committee suggested that the reinforce the independence from party mechanism for setting the budget for the political interference in the accountability National Audit Office (NAO) might be a arrangements for The Electoral Commission. useful model. This is done through a This is a variant of the long-standing committee of MPs, the House of Commons arrangements for setting parliamentary Public Accounts Commission, which electoral boundaries. However, as we

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discuss later in this section, this has had this to the House of Commons. In this role some unintended consequences in terms the Speaker’s Committee must consult with of the day-to-day operation of the Treasury and receive reports from the Speaker’s Committee. Comptroller and Auditor General on value for money aspects of the Commission’s 4.11 The powers and duties of the Speaker’s work. If the Speaker’s Committee decides Committee as set out in PPERA [4] are not to follow recommendations made, it is summarised in Table 4.1. Although the required to explain its reasons in its annual Speaker’s Committee does have some report to the House of Commons. In additional duties related to the number of Chapter 3 of this report, we have deputy commissioners, the removal of recommended that the Speaker’s commissioners, and the designation of the Committee’s adoption of the role of Commission’s accounting officer, its core overseeing appointments and duties and powers relate to its role to reappointments of the chair and ensure that The Electoral Commission is commissioners of The Electoral Commission operating economically, efficiently and be explicitly set out as a formal role in effectively. Principal among these is the PPERA (Recommendation 33, page 62). duty to approve the Commission’s estimate This would add a further statutory duty to (budget) and five-year plan, and reporting the list in table 4.1.

TABLE 4.1: DUTIES OF THE SPEAKER’S COMMITTEE

Agree with The Electoral Commission the maximum number of deputy electoral S.15(2) commissioners (who serve only as members of Boundary Committees).

To report to the House that one or more of the statutory grounds for removal of Sch 1, para 3(5) an electoral commissioner has occurred, before making a Motion for an Address for the removal of a commissioner.

To designate the Commission’s accounting ofﬁcer and to specify his responsibilities. Sch 1, para 19(1) and 19(2)

To receive The Electoral Commission’s annual accounts. Sch 1, para 18(1)(b)

To report to the House, at least once a year, on the exercise of its functions. Sch 2, para 1

To examine The Electoral Commission’s estimates; decide whether the Committee Sch 1, para 14(3) is satisﬁed that these are consistent with the economical, efﬁcient and effective discharge by the Commission of its functions and modify them as necessary to make them consistent.

To lay before the House of Commons, with or without modiﬁcation, the Electoral Sch 1, para 15(4) Commission’s ﬁve-year plan.

To consult the Treasury, and have regard to any advice it may give, before Sch 1, para 14(4) reaching decisions on The Electoral Commission’s estimates and ﬁve-year plan. and (6); and 15

To receive the Comptroller and Auditor General’s reports on the economy, Sch 1, para efﬁciency and effectiveness with which the Commission has used its resources, 16(1); 14(4) and and to have regard to the most recent report when considering the Commission’s (6); and 15(3) estimates and ﬁve-year plan. and (5)

If the Committee modiﬁes an estimate or ﬁve-year plan, or does not follow any Sch 1, para 14(6) recommendations in a report to the Comptroller and Auditor General, or any and 15(5) statutory advice from the Treasury, it should include a statement of the reasons in its next report to the House.

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TABLE 4.2: MEMBERSHIP OF THE SPEAKER’S COMMITTEE

Ex-ofﬁcio

Chair, Speaker of the House of Commons (Rt Hon Michael Martin MP)

Secretary of State for Constitutional Affairs (Rt Hon Lord Falconer of Thoroton QC)

Chair of the Department of Constitutional Affairs Select Committee of the House of Commons (Rt Hon Alan Beith MP)

Appointed by the Prime Minister

Minister of State for Communities and Local Government (Phil Woolas MP)

Appointed by Mr Speaker

Gary Streeter MP (Conservative)

Lady Sylvia Hermon MP (Ulster Unionist)

Rt Hon Gerald Kaufman MP (Labour)

Humphrey Malins MP (Conservative)

Peter Viggers MP (Conservative)

4.12 The membership of the Speaker’s member of the Speaker’s Committee. There Committee at December 2006 is set out in has also been one House of Commons table 4.2. The Speaker’s Committee debate on 3 July 2006 [6] engineered by explained in its written evidence [39/1] that the Speaker’s Committee on the work of this composition reflects the fact that the The Electoral Commission. The Speaker’s Speaker has exercised his power to Committee also commissioned a review by nominate five backbench members in a the House of Commons Scrutiny Unit into manner which “ensures no individual The Electoral Commission with the political party has an overall majority, underlying purpose “to improve the unlike the Public Accounts Commission”. effectiveness with which the Committee discharges its statutory duty” [7]. This 4.13 Since the establishment of the Speaker’s review was completed in February 2006 and Committee in early 2001 it has met on provided extremely useful background and average three to four times a year and evidence for this inquiry. published seven reports on its activities, including summary minutes of its meetings. The National Audit Office has conducted five ‘value for money studies’ in addition to its annual auditing of The Electoral Commission’s accounts. There is an opportunity for MPs to table written Parliamentary Questions about the work of the Speaker’s Committee and The Electoral Commission and, since January 2002, an opportunity for oral questions. The latter takes the form of a 15-minute period every four weeks shared with questions on the Church Commissioners and Public Accounts Commission. These oral questions are currently taken by Peter Viggers MP, a

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4.14 The House of Commons Scrutiny Unit the Speaker’s Committee and/or held the Report made 40 specific recommendations view that a new mechanism should be applicable to both The Electoral considered to address the deficiencies they Commission and to the Speaker’s identified. There was common agreement, Committee. These were in four broad areas: shared by this Committee, that it is fully appropriate for The Electoral Commission’s • financial planning and management (of accountability to be direct to Parliament The Electoral Commission); rather than to the executive through a government department: • corporate planning and management (ditto); I do think that it is right for constitutional watchdogs like The Electoral Commission to • the role of the Treasury and the come under Parliament not the executive. Comptroller and Auditor General (in The challenge I think for Parliament is to advising the Speaker’s Committee); and find more satisfactory means of calling The Electoral Commission properly to account. • the Speaker’s Committee and the [Professor Robert Hazell, School of Public estimates and five-year plan. Policy, University College London 15/06/06, 55] The report identified significant weaknesses in The Electoral Commission’s budget 4.16 One concern raised by many witnesses management and monitoring, performance was the lack of a clear mechanism for management and risk management. It Parliament to hold The Electoral recognised that these were not necessarily Commission to account for its policies, peculiar to The Electoral Commission, and decisions and activities: were well known by the Commission, also that remedial steps were already being The Commission’s lines of accountability are taken. Nevertheless, the recommendations opaque. It seems extraordinary that a body were designed to reinforce the that is supposed to be a standard bearer Commission’s determination to address for political practice should be overseen these concerns. The Electoral Commission by a [Speaker’s] Committee in such an accepted all the Scrutiny Unit obscure manner.” recommendations that were directed to [Andrew Tyrie MP 35/13] them [31/1] and the Speaker’s Committee also confirmed that they broadly accepted This is a gap in the current arrangements the thrust of those recommendations that that the Commission itself recognises and applied to them [Peter Viggers MP would like to see addressed. 07/09/06, 34]. The Committee endorses the Scrutiny Unit’s findings and welcomes their The bit that I feel is missing is that there is acceptance by both The Electoral no vehicle at the moment for there being a Commission and the Speaker’s Committee. broad parliamentary interest taken in the We consider it essential that progress in work of The Electoral Commission, either implementing these is carefully monitored through a select committee or through the by the Speaker’s Committee on advice from ability to have a debate on the floor of the the Scrutiny Unit (see paragraph 4.27 below). House. That is, I think, the bit where the gap is. 4.15 The Committee also received additional [Sam Younger, Chair, Electoral Commission views in evidence about whether the 13/06/06, 3.21]. Speaker’s Committee, as it has operated since 2001, was an appropriate and A number of witnesses proposed establishing effective accountability mechanism for The a completely new accountability mechanism Electoral Commission. Some witnesses, for to Parliament to address both the proper example Rt Hon Rhodri Morgan AM, First expenditure of public funds, and this wider Minister, National Assembly of Wales accountability issue. Suggestions ranged [06/07/06, 362] expressed satisfaction with from transferring the responsibility to the the way the mechanism had operated to Constitutional Affairs Select Committee, date. However, most witnesses considered creating a new Electoral Affairs Select that some significant improvements could Committee, to creating a new Joint be made to the current arrangements for Committee of both Houses.

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4.17 The concern raised is an important and statutory mandate. It is not clear to the legitimate one. However, the Committee Committee that this could be replicated in believes that there is an important any of the alternative suggestions put distinction between the accountability for forward (4.14 above), namely: setting and approving The Electoral Commission’s budget, scrutinising its (i) The use of the office of the Speaker effectiveness, efficiency and economy on (founded as it is on political the one hand; and accountability to impartiality) as a route into the Parliament for its policies, actions and accountability to Parliament for the decisions on the other. Such a separation proper expenditure of funds is a means cannot be absolute and clear cut; the body of constitutionally protecting the responsible for the budget and effective use independence and impartiality of The of that budget is bound to take account of Electoral Commission; comments and views on performance as part its scrutiny. Conversely, any wider (ii) The composition of the Speaker’s accountability for performance is also bound Committee ensures that no political to take account of the allocation and use of party has a majority1 (although this resources. But, in the Committee’s view, requires the continuation of the there is a significant risk that if these two Speaker’s current practice for functions are combined in the same nominating members which should be parliamentary committee then there would formalised in the procedures of the be, at the very least, a perception that The Speaker’s Committee); and Electoral Commission’s impartiality and independence could be compromised. (iii) The inclusion of relevant Ministers with responsibility for electoral matters, That is in order to demonstrate and ensure although not in majority, is a necessary that The Electoral Commission cannot be element in the current accountability influenced in its regulatory or policy roles model. In this way, the executive is by dependence on ministers for its budget included without undermining the role …I want to emphasise that the statutory of Parliament or the independence and responsibilities of the Speaker’s Committee impartiality of The Electoral Commission. do not include policy recommendations or policy development which the Commission 4.19 However, we believe there are ways of may be engaged with. Those are matters improving the effectiveness of the for select committee scrutiny. Speaker’s Committee and its contribution [Rt Hon Alan Beith MP 15/06/06, 346 to enabling wider parliamentary scrutiny of and 349] The Electoral Commission. We consider these below and in the next section. In short, the Committee believes there would be the risk that The Electoral 4.20 One of the main concerns raised by many Commission could became unduly witnesses about the current operation of influenced in the way it performed its the Speaker’s Committee is the lack of operational activities by concerns about the transparency in its work. A number of possible impact these might have on the witnesses pointed out that: setting of its budget. • none of the Committee’s evidence 4.18 For this reason the Committee does not sessions are held in public; believe that the remit of the Speaker’s Committee should be extended to include • transcripts of meetings are not published, wider scrutiny of the activities, policies and only summary minutes: and decisions of The Electoral Commission, nor that a new parliamentary body be created • information about the Committee, its role with such a combined and extended and reports are difficult to find on the mandate. The current status and parliamentary website. composition of the Speaker’s Committee make it, in our view, the most appropriate These are significant concerns. body to continue the scrutiny of the Accountability is not effective without effective, efficient and economical transparency. If Members of Parliament and discharge of Electoral Commission’s the public cannot judge for themselves

1 We do however recognise that the Standards and Privileges Committee does provide an example of a Select Committee where this is the case.

70 Accountability of The Electoral Commission

about the scrutiny to which The Electoral public meetings of the Speaker’s Commission is subject, then they will not Committee are not appropriate. However, have confidence in the process. Fraser we believe that if most evidence sessions Kemp MP made the point succinctly to us of the Speaker’s Committee were held in [18/07/06, 440]: public and full transcripts were published this would enhance the effectiveness of My personal view is that any committee the accountability mechanism and that meets in secret cannot by definition improve confidence. do accountability in 2006.

4.21 However, as Peter Viggers MP made clear in RECOMMENDATIONS giving evidence on behalf of the Speaker’s Committee [13/06/06, 351], the practice of R34. Evidence-gathering meetings of the meeting in private is a consequence of the Speaker’s Committee should be held constitutional position of the Office of The in public and the transcripts Speaker, in that the holder of the office published. Committee deliberations does not, by convention, make public may continue to be held in closed comment. This is an unintended session as may certain evidence consequence of the amendment made to sessions where the subject matter PPERA during its passage (paragraph 4.10 makes this necessary. above). The chairman of the Committee met with Mr Speaker during the course of R35. The Speaker should assume a role this inquiry to discuss this. Further discussion similar to that he performs for the was held, in public, with Peter Viggers MP Boundary Commissions, standing when he returned to give further evidence back from the day-to-day running of to the Committee [07/09/06, 5-9]. the Committee. A senior backbench MP, possibly from the Opposition, 4.22 Here the Committee was concerned to as deputy chair could assume the explore whether there was scope within day-to-day responsibility for the the procedural arrangements for the Committee, including chairing Speaker’s Committee to overcome this meetings. unintended consequence without losing the benefit, identified in paragraph 4.18 (i) of the involvement of the Office of The 4.24 Some witnesses also expressed concerns Speaker in the accountability mechanism. about whether the frequency and length The Committee had in mind an approach of the Speaker’s Committee meetings were similar to the Parliamentary Boundary sufficient for the level of scrutiny required Commissions where the Speaker is also of a public body whose annual budget had the ex-officio chair but plays no part in grown to well over £20 million: the day-to-day work of the Commissions. It appears that a similar arrangement At the moment I think that the would be possible, through the procedures accountability arrangements are not of the Speaker’s Committee, without a satisfactory and I would like to see the need to change the legislative basis of committee meeting more frequently and in the Committee. public so that we can see The Electoral Commission being held properly to account. 4.23 Such an arrangement would enable the [Professor Robert Hazell, 15/06/06, 68]. Speaker’s Committee to meet in public and for full transcripts of these meetings The Electoral Commission itself noted that to be published as they are for most it would welcome more frequent Select Committees. It would also bring interaction with the Speaker’s Committee the Speaker’s Committee in line with the [Sam Younger 13/06/06, 324]. Peter Viggers practice recently adopted by the Public MP told the Committee [13/06/06, 366] that Accounts Commission [8], the original some steps had been taken to address this model for the Speaker’s Committee. As concern by setting up an informal sub- Peter Viggers MP [13/06/06, 411] and the committee that would meet more regularly Secretary of State for Constitutional Affairs to work through and prepare issues that have explained [21/09/06, 201] there will would come forward for decision by the be some occasions, for example the full Speaker’s Committee. We welcome this appointment of commissioners, where development.

71 Review of The Electoral Commission

4.25 In its written evidence [47/11], the 4.27 As well as secretariat support the Speaker’s Government suggested that provision could Committee must also receive appropriate be made for Constitutional Affairs Ministers specialist financial advice to assist its other than the Secretary of State to attend scrutiny of the Commission’s estimates and meetings of the Speaker’s Committee on his five-year plan. The National Audit Office is behalf. This would ease the problem of a key resource for the Speaker’s Committee conflicting commitments which sometimes (through its value for money reports, and make it difficult for the Secretary of State annual audit of accounts) but we believe to attend. However, Peter Viggers MP was that the Scrutiny Unit Report demonstrated personally concerned that such a move the need for some additional support for might be perceived as ’downgrading’ the the effective scrutiny of The Electoral status of the Speaker’s Committee Commission’s annual financial estimates. [07/09/06, 19]. The Committee understands Peter Viggers MP indicated [07/09/06, 39] that such a provision could be made by the that such expertise might be available from Speaker’s Committee in its procedural the Scrutiny Unit. arrangements, without requiring a legislative change. We therefore think that this is best left to the Speaker’s Committee RECOMMENDATION itself if, in light of the new arrangements we have recommended, it decides this is R37. The House of Commons Scrutiny Unit necessary. should be given a formal role to scrutinise The Electoral Commission’s annual financial plans and to advise 4.26 In the Committee’s view a matter of greater concern is the level of resources the Speaker’s Committee. currently available to the Speaker’s Committee to fulfil its accountability function. This was highlighted in evidence Accountability of general performance (for example, the Government’s written to Parliament evidence [47/11] and in the Scrutiny Unit Report [7]).The level of resource devoted 4.28 As we have made clear in the preceding to an accountability mechanism must be section, the Committee recognises that proportionate to the amount of public there will be some overlap between the money it is scrutinising. The Electoral scrutiny of resources and that of Commission is now a medium-sized public performance in an effective accountability body with an annual budget well in excess mechanism. We also believe that the of £20 million. However, the current level Speaker’s Committee should play a of administrative support available to the facilitation role in this wider accountability Speaker’s Committee consists of half a to Parliament. There is already a committee clerk and two support staff mechanism for parliamentary questions on [Peter Viggers MP 13/06/06,436]. In the the work of The Electoral Commission. Committee’s view this is not sufficient. We However, we were surprised to learn [Mr believe it is important that the Viggers MP 13/06/06, 347] that at the accountability mechanism is to Parliament. beginning of our inquiry there had not But Parliament itself has a duty to ensure been a House of Commons debate on the that an appropriate level of resource is work of The Electoral Commission since it provided to make this effective. While the was established some five years ago. The Committee cannot prescribe what an Electoral Commission itself indicated that it appropriate level of resource would be, a would welcome such a debate as a useful comparison with that provided for contribution to their engagement with Departmental Select Committees appears to Members of Parliament: us to be a reasonable benchmark. The area where I think we would see scope for greater parliamentary oversight than RECOMMENDATION there is now, is more structured occasions on which the work of the Commission is R36. There should be an appropriate looked at by and debated by Parliament increase in the allocation of resources more widely. At the moment there is no given to the secretariat support for requirement that, for example, any select the Speaker’s Committee. committee looks at the annual report and

72 Accountability of The Electoral Commission

that the actual Commissioner gets involved in some of the substance. There are no RECOMMENDATION vehicles for a debate on the work of the Commission in Parliament. We would R38. There should be an annual debate in welcome that wider relationship with Parliament on the work of The Parliament. Electoral Commission. It might be [Sam Younger, Chair of The Electoral helpful if this followed the Commission 13/06/06, 299] Commission’s annual report on standards of electoral administration in the UK (R13). 4.29 This omission was remedied on 3 July 2006 in a debate engineered by the Speaker’s Committee under the ‘estimate days’ procedure. The debate [6] drew 4.32 Although it is useful, an annual debate on considerable interest from MPs and many the work of The Electoral Commission does of the issues considered in this inquiry were not in itself provide members with a direct raised. Given the importance of The account of the policies, actions and Electoral Commission to the democratic decisions of the Commission. The well process, this is unsurprising. established mechanism for such scrutiny of public bodies is the Departmental Select 4.30 As was made clear to the Committee either Committee system. On a number of the Government or the opposition parties occasions, The Electoral Commission has could, if they so wished, have allocated given written and oral evidence to a variety some of their parliamentary time to hold of Select Committees. any number of such debates since 2000. The Committee is also mindful of the 4.33 However, all these were inquiries into danger of artificially engineering such specific policy areas; they did not seek debates when there may be little appetite to review more widely The Electoral from MPs [Peter Viggers MP 07/09/06, 25]. Commission’s policies, actions and decisions However, the Committee believes that in discharging its statutory remit. A number regular debates by the House of Commons of witnesses who expressed concern about on the work of The Electoral Commission the effectiveness of the accountability would assist its wider accountability to mechanism for The Electoral Commission Parliament and support the Speaker’s identified this as a gap in the current formal Committee in its role. We believe that the arrangements [for example, Professor Robert more focused regulatory remit proposed in Hazell, 15/06/06, 55, Oliver Heald MP, Chapter 2 will make the work of the 15/06/06, 181, Simon Hughes MP, 15/06/06, Commission of greater, not less, interest to 312 and Dr Alan Whitehead MP, 57/6]. members. The annual report to Parliament Because of its independent status, The on standards of electoral administration, Electoral Commission has no sponsoring including the electoral register (as we government department and therefore recommend in Chapter 2) could, alongside no specific Select Committee to whom the draft five-year corporate plan, provide it can give an account for the full range a suitable opportunity for such annual of its activities. debates. The statutory reports by The Electoral Commission on each election, in 4.34 As a number of witnesses, including its the format we propose in Chapter 2, also Chair, Rt Hon Alan Beith MP [15/06/06, 339], offer a platform for such debates. explained, the Constitutional Affairs Select Committee (CASC) has the greatest interest 4.31 The use of the estimate days procedure to in the work of The Electoral Commission engineer a debate may not be the most among all the Select Committees. CASC has appropriate route to ensure that they take taken evidence from the Commission on a place regularly. One option would be for number of recent occasions [15/06/06, 350]. debates to take place in Westminster Hall The Committee would not wish to make a in the time allotted to the Government. recommendation that could affect the scope of the current departmental Select Committee arrangements, merely to deal with the anomaly that the status of The Electoral Commission presents. However, we do believe it would be helpful to find a

73 Review of The Electoral Commission

way to establish CASC as the principal 4.37 The evidence the Committee received Select Committee to whom The Electoral during its hearings in Edinburgh and Commission would give a regular account Cardiff, from the respective electoral of its policies, actions and decisions. The commissioners with lead interest indicated more focused statutory mandate proposed that the Commission had established good in Chapter 2 provides an even closer fit to links with the relevant parliamentary and policy responsibilities of the Department assembly Committees and had given for Constitutional Affairs, reinforcing this evidence to these on a number of occasions argument for CASC to play a lead role in [Sir Neil McIntosh 27/06/06, 309 and Glyn making the Commission accountable for its Mathias 06/07/06, 228]. The situation in performance to Parliament. Northern Ireland was obviously affected by the suspension of the assembly in 2002 but, as Commissioner Karamjit Singh comments RECOMMENDATION [21/06/06, 222], there is no reason to expect that similar effective links would not be R39. The Select Committee on made as and when the assembly is restored. Constitutional Affairs should build Witnesses in the devolved administrations upon its emerging practice of taking generally expressed satisfaction with the regular opportunities to scrutinise way in which the Commission had sought The Electoral Commission’s policies, to give an account of its activities. The actions and decisions. Committee welcomes the steps The Electoral Commission has taken to account for its activities to the relevant parliamentary Accountability to the devolved and assembly Committees in Scotland and administrations Wales, particularly in respect of its statutory reports on election to the devolved 4.35 As we have already noted in Chapters 2 legislatures, as well its reports on UK and 3, although PPERA [4] took account parliamentary and European elections. These of the various devolution settlements in appear to offer sufficient accountability for Scotland, Wales and Northern Ireland in electoral matters which are not devolved. setting the mandate of The Electoral Commission, the practical implications of 4.38 PPERA [4] also provides for The Electoral such a body operating on a UK-wide basis Commission to give advice and assistance to have taken time to work through as the the devolved administrations – at their devolution arrangements themselves have request – in respect of devolved electoral begun to mature. As The Electoral functions. So far this has primarily taken Commission has developed its mandate the form of requests to produce reports on and governance to take account of local government elections [Electoral devolved practice, this has reflected Commission written evidence 48, 49 and on its accountability to the devolved 50]. We have recommended in Chapter 2 administrations. that such reports be a requirement (rather than an option) in the future, so as to 4.36 The Electoral Commission has a UK-wide ensure comprehensive reporting on remit, and electoral and political party elections in the UK. In the Committee’s funding law are not devolved matters The view it is for the devolved parliament and Commission stated in its written evidence assemblies to decide on mutually (31/11) that it has been conscious that the acceptable mechanisms for The Electoral electoral process and political dynamics Commission to account for these reports of the different parts of the UK vary and any other activities to the devolved considerably and that it had tried to reflect administrations. The lead commissioner this in its work. For example, it has and regional electoral officers for Scotland dedicated offices in Belfast, Cardiff and and Wales we propose in (Chapter 2 Edinburgh, and commissioners with lead paragraph 2.79) would clearly play a key responsibility for different parts of the UK. role in communications with the parliament and assembly.

4.39 The Committee did hear arguments for a more formal accountability role for the devolved administrations [Electoral

74 Accountability of The Electoral Commission

Commission 31/13], in particular for the Party 37/2]. This is not surprising, and is inclusion of the Speakers/Presiding Officers arguably in line with the intention in from the devolved parliament and PPERA, because the panel mainly comprises assemblies in the Speaker’s Committee representatives of the parties’ [Liberal Democrat Party 46/3, and the Rt administration rather than politicians. Hon Rhodri Morgan 06/07/06, 360]. However, The Electoral Commission has a 4.42 However, the panel does appear to have UK-wide remit set by the UK Parliament. It performed a valuable role as a forum for receives its funding from the Consolidated consultation and discussion about the detail Fund following approval by the House of of the regulatory framework, the Commons and is a regulator of electoral regulatory approach of The Electoral and political party funding laws which are Commission and practical issues regarding not devolved. It is therefore appropriate compliance with the framework [The that formal accountability lies with the Electoral Commission 31/14]. This level of House of Commons through the Speaker’s consultation and discussion is important Committee. In the Committee’s view, and we believe it is part of The Electoral including representatives from devolved Commission’s accountability framework. legislatures would not be consistent with The panel’s role is likely to become more the current constitutional status of The important in light of our recommendations Electoral Commission. However, in concerning the Commission’s more focused circumstances where the Speaker’s regulatory powers and of the Committee considers Commission work recommendations arising from Sir Hayden specifically in relation to the devolved Phillip’s review of party political funding administrations, it may be appropriate to [9]. Discussion and engagement between involve the respective Secretary of State for The Electoral Commission and senior the particular nation to attend that session administrators in the parties who are [Government written evidence 47/11]. responsible for compliance is clearly critical for the Commission to achieve the Accountability to political parties outcomes intended from the regulatory framework. 4.40 A successful regulator must have in place mechanisms that enable it to engage with 4.43 We believe it is unrealistic to expect the and consult those it directly regulates. panel, as currently constituted, to provide PPERA (4, section 4) provides for the wider political input into the work of the establishment of a Parliamentary Parties Commission; this could compromise its Panel as an additional mechanism of current effective function. We have accountability for The Electoral Commission. addressed the issue of political input in The panel consists of a representative of other terms in this inquiry report; namely, each political party, with two or more MPs, through recommendations to improve appointed by the treasurer of each party. governance arrangements and through the The intention was for the panel to provide means of ensuring wider accountability to a forum for consultation between the Parliament. We do not believe any change Commission and political parties on the to the composition of the Political Parties work of the Commission and, in particular, Panel or creating additional advisory to enable parties to make representations bodies, as some witnesses have suggested to the Commission about regulatory issues. [Electoral Commission 31/14], would add to The panel was convened in February 2001 this objective. and has met quarterly since then. On a similar basis, the Commission has 4.44 The Electoral Commission has established established panels in Scotland, Wales and the equivalent of the Westminster panel in Northern Ireland. Scotland, Wales and Northern Ireland. These have also been successful as forums 4.41 However, the Westminster panel has not for consultation and discussion and are been the means of drawing wider political valued by the senior party administrators. input and expertise into the work of The In the devolved nations, these panels also Electoral Commission as initially expected. appear to have fulfilled a wider role of This was widely acknowledged in evidence engagement with political parties, which is [for example, the Government 47/12, The probably explained by the smaller size of Electoral Commission 31/14, and Labour political communities compared to

75 Review of The Electoral Commission

Westminster. The Electoral Commission panels as useful forums for discussing should continue with these devolved regulatory issues with political parties. equivalents of the Westminster panel. Indeed, the regional electoral officers that 4.49 Overall, it is important to stress that the we recommend in Chapter 2 might consider effectiveness of these accountability the use of a similar model to ensure arrangements will depend upon the clarity engagement and consultation with party and focus of The Electoral Commission’s representatives (local treasurers/agents) in mandate and the extent to which its their own regions. governance arrangements can sustain the confidence of the public and the political Conclusion parties and elected representatives who are subject to its regulatory activities. 4.45 Establishing effective accountability The recommendations we make in arrangements for The Electoral Commission, other chapters have been prepared as we have discussed, presents a particular for this purpose. challenge. As a mechanism the Speaker’s Committee does, in principle, strike the right balance between holding The Electoral Commission accountable for the use of public money in fulfilling its statutory functions and protecting its independence and impartiality from possible undue influence for partisan political electoral advantage. The Committee believes that, to preserve this balance, it is important to separate these principal subject areas from the accountability to Parliament of the Commission’s general performance.

4.46 However, evidence and experience indicates that the Speaker’s Committee could operate more effectively if its deliberations were made more transparent and if more administrative support were made available. We have made recommendations that we believe will enable this.

4.47 The Committee also considers that more formal arrangements should be put in place for The Electoral Commission to give a wider account of its activities to Parliament. These would signiﬁcantly improve the engagement between the Commission and Members of Parliament. The Committee believes that this can be achieved if the Constitutional Affairs Select Committee (CASC) were to become the main mechanism through which the Commission can account for its performance to Parliament; also by holding regular parliamentary debates about the Commission’s work.

4.48 The Electoral Commission should continue to build upon the arrangements it has developed to give an account of its activities to the devolved parliament and assemblies and upon the work of the political parties

76 Accountability of The Electoral Commission

References

1. Ethics and Standards: An Issues and Questions Paper, Public Administration Select Committee, November 2005.

2. Fifth Report of the Committee on Standards in Public Life, The Funding of Political Parties in the United Kingdom, Cm 4075, October 1998.

3. The funding of political parties in the United Kingdom: The Government’s proposals for legislation in response to the Fifth Report of the Committee on Standards in Public Life, Cm 4413, July 1999.

4. Political Parties Elections and Referendums Act 2000, c41.

5. Amendment during the passage of PPERA to provide for The Speaker to be a member and its ex-ofﬁcio Chair, Hansard 13/03/00, Column 92.

6. House of Commons debate on The Electoral Commission 3 July 2006.

7. House of Commons Scrutiny Unit Report: Review of The Electoral Commission for the Speaker’s Committee on The Electoral Commission.

8. Twelfth Report of the Public Accounts Commission, HC216, January 2005.

9. The Review of the Funding of Political Parties 2007, Sir Hayden Phillips [to be published].

77 Review of The Electoral Commission

78 Integrity of the electoral process

CHAPTER 5 INTEGRITY OF THE ELECTORAL PROCESS

Introduction improve conﬁdence in the electoral process. A fundamental tenet of our democratic 5.1 The Committee has recommended in society, based on the universal franchise, is Chapter 2 that The Electoral Commission be that voters and the political parties have given a clear statutory duty to be the full conﬁdence that the electoral system is regulator of electoral administration with free, fair and secure. In the introduction to the aim of ensuring that electoral the White Paper, Combating Electoral Fraud registration and the conduct of elections in Northern Ireland [2] the Government are delivered in a consistent and effective said the following: manner across the country. Issues regarding the integrity of the electoral process itself Electoral abuse is an affront to democracy are central to The Electoral Commission and the Government is determined to successfully performing this duty. combat it wherever it occurs.

5.2 Since The Electoral Commission was 5.5 The electoral system in Great Britain is established in November 2000 there have based on trust. There is no checking that been some well publicised concerns about the names supplied at registration during elements of the electoral process, including: the annual canvass are accurate nor is there any systematic checking of voters’ • the introduction of postal voting on identification at polling stations. In demand, the subsequent piloting of all- Northern Ireland the situation is somewhat postal voting and the most recent different as the Electoral Fraud (Northern changes to postal voting introduced in Ireland) Act 2002 requires individuals to the Electoral Administration Act 2006 [1]; prove their identity before registering or voting. There should be nothing surprising • incidents of electoral fraud and about a system based on trust; this is true perceptions that this may be increasing; of many aspects of a civil society. However, and while acknowledging that most individuals are honest it is unfortunately true that a • the accuracy and comprehensiveness of significant minority are not. Hence the the electoral register, and the system of increasing numbers of anti-fraud measures electoral registration itself. that have been introduced into a wide range of public services and the financial 5.3 The Electoral Commission has taken public services industry. In its report [3] on the positions on each of these issues some of 2005 General Election the Office for which have created controversy in their Democratic Institutions and Human Rights own right. The Committee therefore concluded that: believes it is appropriate to discuss the evidence received concerning these issues The introduction of postal voting on and to comment on how The Electoral demand without the need to present a Commission might take steps to address reason for the application, has them as part of its new mandate proposed demonstrated the vulnerability of any trust- in Chapter 2. We also make based electoral process. recommendations on how to improve specific aspects of the electoral process to 5.6 While it is clearly imperative for as many assist The Electoral Commission in its eligible individuals as possible to regulatory role. participate in the democratic process, we can no longer base our electoral system 5.4 The Committee’s overriding aim in on trust alone if we wish to protect the addressing the issue of integrity is to integrity of our electoral system.

79 Review of The Electoral Commission

Electoral fraud

5.7 Electoral fraud is an affront to the democratic principle of one person one vote. If left unchecked, it will eventually undermine trust and conﬁdence in the democratic process. In any democracy the key indicator to any election is whether the electorate consent to the outcome. Therefore it is essential that the primary task of any electoral system is to secure consent. Conﬁdence in the integrity of the process is key to this.

5.8 The perceived wisdom over many years in Great Britain has been that electoral fraud was virtually non-existent. There was the odd case of electoral fraud carried out by individuals but if there was any organised fraud it never came to light. Elections were seen as free, fair and secure. However, evidence received by the Committee suggests that since the introduction of postal voting on demand there has been a growing perception that the electoral system is more susceptible to organised electoral fraud.

If you looked at what the public view of the integrity of the voting system was, say, ﬁve years ago and what it is now, I think there is no doubt that the public have become very concerned about fraud in the electoral system and the way in which it operated over that period. [Oliver Heald MP, Shadow Secretary of State for Constitutional Affairs and Shadow Chancellor of the Duchy of Lancaster 15/06/06, 73].

As far as the Committee is aware information about the extent of investigation and cases of electoral fraud is not collected centrally by The Electoral Commission (or any other body). In table 5.1 we have completed a list of investigations and cases of electoral fraud since 2000. This is for illustrative purposes only and is not a comprehensive list.

80 Integrity of the electoral process

TABLE 5.1 EXAMPLES OF CASES OF ELECTORAL FRAUD INVESTIGATED BY POLICE 2001–2006

(Including cases involving allegedly fraudulent electoral registration)

Completed cases as of 1 January 2007

LOCATION ELECTION ALLEGATION/ ACCUSED PROSECUTION OUTCOME DATE OFFENCE

Oldham Local elections Personation 12 men Yes 11 pleaded guilty, Metropolitan 2000 offences including one found not Borough Labour & guilty. Sentences of Council Liberal 60 to 120 hours of (Coldhurst, Democtrats community service St Mary’s & imposed. Werneth wards)

Burnley General Twelve counts Male BNP Yes Six months election of forgery of organiser imprisonment. May 2001 nomination Barred for 5 years signatures from standing for any electoral ofﬁce

Hackney Conviction Hundreds of Conservative Yes Conservative Borough date 2001 forged postal man and Lib six months Council, and proxy Dem man imprisonment, London votes Liberal Democrat (Northwold four months ward) imprisonment

Blackburn Local elections 233 fraudulent 1 Labour Yes Three years and with Darwen May 2002 votes councillor seven months Borough imprisonment Council (Bastwell ward)

Havant Conviction 22 forged One Labour Yes Labour man Borough date 2002 postal and councillor and four months Council proxy votes, three Liberal imprisonment. forgery of Democrats (two One Lib Dem nomination councillors and two months papers one candidate) imprisonment. Two other Lib Dems ﬁned £200 each

Oldham Local elections Personation & 9 people No File submitted to Metropolitan 2003 conspiracy to DPP but not taken Borough defraud forward – lack of Council forensic evidence

Guildford Local elections Three charges Former Yes Four months Borough May 2003 of forging Conservative imprisonment Council documents councillor (Merrow ward)

N.B. Political afﬁliations are shown where this information is publicly available 81 Review of The Electoral Commission

TABLE 5.1 EXAMPLES OF CASES OF ELECTORAL FRAUD INVESTIGATED BY POLICE 2001–2006

(Including cases involving allegedly fraudulent electoral registration)

Completed cases as of 1 January 2007

LOCATION ELECTION ALLEGATION/ ACCUSED PROSECUTION OUTCOME DATE OFFENCE

Oldham Local elections Postal vote 1 man No Man dismissed Metropolitan 2004 fraud from Liberal Borough Democrat party Council

Birmingham Local elections Stealing & 6 Labour Yes Six found guilty of City Council June 2004 falsifying postal councillors. corrupt and illegal (Aston & ballot papers practices. One of Bordesley those found guilty Green wards) was later cleared by the Appeal Court. The election of all six councillors was annulled. The judge estimated there had been at least 1,000 fraudulent votes in Aston and 1,500 – 2,000 in Bordesley Green

Bristol City Local elections Nine counts of Former Liberal Yes Five months Council 2004 forgery and one Democrat imprisonment (Lawrence of conspiracy to councillor Hill ward) defraud

Burnley Local elections 167 proxy votes 2 Liberal Yes 55 proxy votes Borough June 2004 submitted Democrat found to be Council fraudulently councillors fraudulent – both found guilty of submitting these votes and each defendant sentenced to 18 months imprisonment

Halton Local & Multiple counts Former Labour Yes Fined £3,000 Borough European of making false Mayor (Found not guilty Council elections June statements on two counts of (Castleﬁelds 2004 (postal voting) Personation) ward) Three relatives Fined £2,300

Coleraine General & local Impersonation DUP councillor Yes 4 months Borough elections May of 15 postal imprisonment. Council 2005 votes The irregularity was discovered during the election count and the votes were not included

82 N.B. Political afﬁliations are shown where this information is publicly available Integrity of the electoral process

TABLE 5.1 EXAMPLES OF CASES OF ELECTORAL FRAUD INVESTIGATED BY POLICE 2001–2006

(Including cases involving allegedly fraudulent electoral registration)

Completed cases as of 1 January 2007

LOCATION ELECTION ALLEGATION/ ACCUSED PROSECUTION OUTCOME DATE OFFENCE

Stoke on General 43 Postal votes Unknown No Ballot papers Trent election tampered with declared invalid (Stoke North) May 2005 and destroyed

Woking Local elections Personation One man No The person was Borough May 2006 cautioned for Council personation. The (Maybury & borough council Sheerwater issued major ward) paper on wider problems of electoral fraud in the borough

N.B. Political afﬁliations are shown where this information is publicly available

83 Review of The Electoral Commission

TABLE 5.1 EXAMPLES OF CASES OF ELECTORAL FRAUD INVESTIGATED BY POLICE 2001–2006

(Including cases involving allegedly fraudulent electoral registration)

Ongoing or pending cases as of 1 January 2007

LOCATION ELECTION ALLEGATION/ ACCUSED PROSECUTION OUTCOME DATE OFFENCE

Peterborough Local elections Total of 40 3 Labour Party Yes Further court City council June 2004 offences candidates hearings pending (Several including including a wards) conspiring to former mayor defraud the electoral services ofﬁcer and counts of making a fraudulent instrument, namely forged poll cards

Bradford General Conspiracy to 1 Conservative File submitted CPS reviewing (Bradford election April defraud a councillor (now to the CPS on case West) 2005 returning an independent 11 people ofﬁcer councillor) and 12 other people

Birmingham Local 190 potential One man and Arrested on On bail pending City elections May illegal votes in one woman suspicion of further inquiries Council 2006 one ward and (wife of conspiracy to ‘peculiar Lib-Dem defraud anomalies’ in candidate) several wards – not necessarily connected

Derby City Local elections Election fraud Unknown Ongoing as of Council May 2006 ‘looking at 1 Dec 2006, police (Arboretum postal votes in launching ward) particular’ investigation

Tower Local elections Election fraud Unknown Election petitions Hamlets May 2006 regarding concerning Borough postal voting Bethnal Green Council, in particular South and Mile London End wards (several scheduled to be wards) heard on 29 January 2007. Also Metropolitan Police continuing a ‘major investigation.’

N.B. These cases are illustrative and do not claim to be a comprehensive list

N.B. Political afﬁliations are shown where this information is publicly available

84 Integrity of the electoral process

5.9 Electoral fraud can take many forms, the some of the conflicting evidence the most common being: Committee received from witnesses concerning its extent: • fraudulent registration where attempts are made to influence the outcome of Electoral fraud has been overstated for elections by registering fictitious or some time. I think some of the issues are ineligible individuals; around culture, around the way in which different communities perceive the • impersonation at the polling station; and operation and management of elections. Some of these issues need to be treated • the misuse of postal or proxy votes. with a degree of sensitivity. [Sir Howard Bernstein, Manchester City 5.10 The perennial difficulty with identifying Council, 14/09/06, 54] levels of fraud is that, if successful, it goes undetected. However, evidence from a I do want to emphasis that constant cries number of witnesses suggests that the of fraud in our electoral process in itself systems currently in place in Great Britain undermines the process and therefore to deter electoral fraud are not particularly being confident that we have in place effective. These problems arise mainly a variety of systems that will reduce any because of the issue of trust; information opportunity for fraud is very important on registration forms provided to electoral to give confidence back to the electorate. registration officers is taken at face value as [Bridget Prentice MP, Parliamentary Under- being accurate. We received evidence at Secretary of State, Department for public hearings and on visits to a number Constitutional Affairs 18/07/06, 472] of electoral registration officers which confirmed that there is little or no checking I think that there has always been more of completed registration forms to ensure fraud than people have recognised. The their authenticity. There are also virtually blind eye has been an aspect of the British no checks to establish a person’s identity system. So I think there has been a culture when voting at a polling station and, of denial and still is, among many despite new checks being introduced for authorities. Having said that, postal voting postal voting, determined fraudsters can on demand very much added to the problems. easily sidestep these by registering false [Dr Michael Pinto-Duschinsky 14/09/06, 201] identities on the electoral register. Concerns have also been raised about how effective It is clear that confidence – and we have new security measures may be. For done a fair bit of research into this – has example, the new provision in the Electoral been damaged. Administration Act 2006 will require voters [Sam Younger, Chair, Electoral Commission at polling stations to provide a signature 14/09/06, 240] before they receive their ballot paper: 5.12 There has been no serious research to Signing for a ballot paper at a polling determine how widespread the problem station is not remotely strong. This is a is by academics or by The Electoral signature which is then not checked against Commission itself. Nor has the Commission any other record because no records are collected any statistics on the number of held, unless you are the person who signed reported cases of fraud. The lack of proper the household form then it is possible that research on electoral fraud makes it you could track back to that person. difficult for the Committee or anyone else [Andrew Scallen, Manchester City Council to comment authoritatively on the scale of 14/09/06, 154] the problem:

5.11 However, it is also true that, if greater How much electoral fraud is there in the effort and focus is given to detecting country? Nobody appears to have done any electoral fraud, this is likely to result in an detailed research in relation to it. increase in the number of cases being [Lord Falconer of Thoroton, Secretary of brought to light and to a perception that State for Constitutional Affairs 21/09/06, 36] fraud is a growing problem. The difﬁculty of establishing a reliable basis about trends 5.13 This is something The Electoral Commission of electoral fraud probably lies behind will want to remedy, particularly in its new

85 Review of The Electoral Commission

role as regulator of electoral number of proposals in Parliament which administration. The Committee recognises became the Electoral Fraud (Northern that such research is not straightforward Ireland) Act 2002 [4]. The main measures in but it is essential that a serious attempt is the Act include: made to ascertain the scale of the problem. The Electoral Commission should, for • the introduction of individual example, work closely with the Audit registration; Commission which has been undertaking a great deal of effective work through the • eligible individuals have to provide three National Fraud Initiative. personal identifiers at registration: signature, date of birth and National 5.14 However, where fraud has been detected Insurance number; and prosecutions made, this has indicated problems in certain communities. Such • the three personal identifiers are also findings are sensitive but it is essential that required when applying for an absent both The Electoral Commission and local vote; electoral administrators address this problem as a matter of urgency. Electoral • the requirement to provide a personal fraud should be treated as a serious matter; signature and date of birth when a it undermines the principle of one person completed absent vote is returned; and one vote which is fundamental to our democratic process. • the requirement for electors to provide specified photographic identification 5.15 The Electoral Commission has been working when voting at a polling station. closely with electoral administrators and the police in the run-up to elections and 5.17 These measures were introduced in time for issues guidance on combating fraud. The the 2002 annual canvass and have been in Committee welcomes this initiative but is use since then for registration and at concerned that the police might not always elections. The measures have been judged be primed on the intricacies of electoral successful by the electorate and political law. In police investigations, electoral fraud parties in both combating fraud and has not been among their priorities in the decreasing the perception of fraud. In past. We think it would be helpful if each research produced by The Electoral police force in the United Kingdom had at Commission, 72 per cent of respondents least one officer with an in-depth thought the measures should reduce knowledge of electoral law. electoral fraud. Additionally, at the combined elections in 2005 there were no reported incidents to the police of RECOMMENDATIONS attempted impersonation at polling stations or other fraudulent activity. In R40 The Electoral Commission should relation to absent vote fraud the chief undertake detailed research in to electoral officer was able to detect and the scale of electoral fraud in the stop attempted fraud through abuse of United Kingdom. proxy voters by checking the personal identifiers.

Northern Ireland experience Postal voting on demand

5.16 Unlike Great Britain, there has always been 5.18 Following the introduction of the a view that electoral fraud was a problem Representation of the People Act 2000 [5] in Northern Ireland. Its precise extent was (RPA) and the Representative of the People not known as there had been virtually no Regulations 2001, postal voting on demand prosecutions. The perception that fraud was was introduced in Great Britain but not widespread came from anecdotal evidence Northern Ireland where the previous and a general belief among both politicians restrictions remained. It is now no longer and voters that it was a problem. The necessary to state a reason for applying for Government decided that this widespread a postal vote, or to obtain attestation of perception was having the effect of illness from a medical practitioner or discrediting the outcomes of elections, thus employer. Applications may be requested undermining the authority of elected and allowed for an indeﬁnite period, a representatives. It therefore introduced a deﬁnite period or for a particular election.

86 Integrity of the electoral process

5.19 The RPA 2000 also made provision for local postal voting following a number of authorities to pilot new electoral allegations made during the elections in arrangements for local elections. A number 2004 about electoral fraud and postal of pilots were tested in May 2000 and in voting. These culminated in the Electoral their review the Local Government Court convened to try a number of Association found that all-postal voting was councillors in Birmingham on allegations of the only new electoral arrangement to postal vote fraud. have potential for signiﬁcantly increasing turnout at local elections. 5.23 Some of the evidence was critical about the role of The Electoral Commission played in 5.20 There were further pilots in 2003 to test the debate on all postal voting, citing its alternative voting methods at local initial keenness for such a measure in 2003: elections, including all-postal voting. Following these elections The Electoral I think the need to increase turnout Commission published a report [6] on the overrode everything else and it looked an pilot schemes. The Commission found that easy solution. all-postal voting was effective at boosting [Norman Macleod, Electoral Services turnout and concluded that all-postal Manager, London Borough of Hackney elections were ready to be made available 18/6/06, 130] at local elections in Great Britain. In making this recommendation the Commission put I think for the very reasons that these issues forward a number of pre-conditions for all- were detected [in Birmingham] and there postal voting, including increasing security was no mechanism to do anything about it, and proposing the introduction of clearly they could not go down the same individual registration that in its view path in promoting that process for local should be implemented at the same time. government elections or, indeed, any elections. 5.21 In its response to The Electoral Commission, [Malcolm Dumper, Democratic Services the Government [7] accepted the broad Manager, Southampton City Council thrust of the Commission’s recommendations 18/7/06, 127] for all-postal voting as a basis for consultation. 5.24 The debate about the pros and cons of postal voting on demand was overtaken by 5.22 However, the accord about all-postal voting the verdict in the Birmingham fraud trial in between the Government and The Electoral April 2005 in which the Judge, Richard Commission was to break down in 2004. In Mawrey QC, said the following: its evaluation of the elections in 2004 [8], which included piloting all-postal voting in In this judgement I have set out at length the European elections, The Electoral what has clearly been shown to be the Commission reversed its position on all- weakness of the current law relating to posting voting. It stated in the executive postal votes…Until very recently none of summary that there was strong public the political parties has treated electoral support for a choice in voting methods. fraud as representing a problem…the Later, buried in the report, The Electoral tendency of politicians of all parties has Commission explained that it could no been to dismiss these warnings as scare longer support all-postal voting because its mongering. recommendation in 2003 was conditional on the implementation of parallel The systems to deal with fraud are not recommendations that would have working well. They are not working badly. increased the security of postal voting and The fact is there are no systems to deal promoted the introduction of individual realistically with fraud and there never registration. The Committee takes the view have been. Until there are, fraud will that it would have been more helpful if The continue unabated. Electoral Commission had made clearer in 2004 that its original recommendation on It can be argued that this judgement was a extending all-postal voting was dependent turning point in the public perception of on the introduction of other measures. The electoral fraud in Great Britain. The fraud issue was further complicated by the cases in Birmingham showed how easily the controversy generated about the security of electoral system could be corrupted and

87 Review of The Electoral Commission

how easy it was to steal votes though the of the voting process. The Committee fraudulent use of postal voting. accepts it is here to stay as a significant number of voters prefer to use this method 5.25 A number of witnesses at the public of voting and, certainly for some elections, hearings cited the introduction of postal it appears to have improved turnout. The voting on demand as a major contributing Government has also recently introduced factor to problems with the integrity of the measures in the Electoral Administration electoral system: Act 2006 intended to address some of the concerns about postal voting. However, as The one setback… which clearly caused a we cover in the next section, electoral problem was the perception that postal administrators have expressed some serious voting might not have always been valid, concerns about administering the new honest and accurate. That is the one major system and about the new security setback we have had in recent years. measures which they believe will not [Simon Hughes MP, Liberal Democrat prevent fraudulent entries from being Shadow Secretary of State for made on the electoral register. Constitutional Affairs and Attorney General; President Liberal Democrat Party Electoral Administration Act 15/6/06, 199] 5.28 Following the General Election in 2005, I think that postal voting unlocked a the Government published the Electoral Pandora’s Box that some unscrupulous Administration Bill which included a people were able to exploit. The problem number of anti-fraud measures but did is when that becomes public as it did in the not include a commitment to introduce full light of the Birmingham cases, then it individual registration or measures to is inevitably going to knock public improve the security of postal voting. confidence. However, following repeated attempts in [John Turner, Chairman, Association of the House of Lords to introduce individual Electoral Administrators 13/7/06, 270] registration, an amendment was accepted in the House of Commons introducing What makes the situation all the more personal identifiers for absent voting. serious is, to my mind, the irresponsible extension of postal voting because when 5.29 The Electoral Administration Act 2006 you have errors on the electoral register introduced a number of measures in and easy postal voting you have a four key areas of the democratic process. dangerous, if not a lethal cocktail which These were: amounts to extensive and almost guaranteed voter fraud. That is indeed • improving access and engagement; what we are seeing many signs of, not only in the Birmingham case but much more • improving confidence; extensively. [Dr Michael Pinto-Duschinsky 13/6/06, 14] • extending openness and transparency in party financing; and 5.26 Polling conducted by The Electoral Commission around this year’s local • maintaining the professional delivery elections showed that 44 per cent of voters of elections. thought that postal voting was unsafe with only 37 per cent responding that it was 5.30 In relation to improving security and safe. One in five voters thought that transparency, the Act introduced a number electoral fraud was a big problem with 55 of provisions that the Government hopes per cent saying that electoral fraud was not will improve confidence in the integrity of a big problem. These figures suggest voters the electoral system. They include: are concerned about the security of the electoral process through reports of • creating two new electoral offences to electoral fraud. provide stronger deterrents against electoral fraud. These are for supplying 5.27 In the Committee’s judgement it was, in false information or failing to supply hindsight, a mistake to introduce postal information to the electoral registration voting on demand without any proper and officer at any time, and for falsely robust safeguards to protect the integrity applying for a postal or proxy vote;

88 Integrity of the electoral process

• a provision for signatures and dates of My instinct is that we ought to be moving births to be made on absent vote to a point where we check all of them. I do applications and absent vote statements; not understand why only 20%. [Sir Howard Bernstein, Chief Executive, • requiring voters to sign for their ballot Manchester City Council 14/09/06, 75] paper at the polling station; 5.33 The Act also introduces a late window for • providing more time for the police to electoral registration. Until recently, under carry out investigations into electoral ‘rolling’ registration a person who is not on fraud; and the register and who wanted to register in time for local elections in May would have • providing for statutory secrecy warnings had to register by early March. His or her to accompany postal and proxy voting name would then be included in the papers to deter anyone from unlawfully update of the register published in April. attempting to influence another person’s Under the new provision a person can now vote. register up to 11 days before an election and apply for an absent vote. 5.31 The Committee welcomes the fact that the Government has put in place a number of 5.34 During a number of visits to electoral measures to promote integrity in the registration officers, the Committee noted electoral system. We particularly welcome a general concern that this provision could the new offences created to deter and have a detrimental effect. Registration punish those individuals intent on officers fear any fraudster would decide to defrauding the democratic process. wait until the last moment before However, the Committee has received registering and applying for postal votes in evidence from electoral administrators the knowledge that the burden of work including the Association of Electoral placed on electoral administrators at this Administrators and SOLACE that the new stage would allow for only minimal checks. arrangements for postal voting might not be as effective in deterring fraud as 5.35 In Northern Ireland, the Miscellaneous envisaged in the Act. Provisions (Northern Ireland) Act 2006 [9] also allows a late registration window of 11 5.32 Electors who apply for postal votes will be days. However, to minimise fraud, all those required to supply a signature and date of registering under the late window have to birth but, as there will be no checks to provide additional identification over and ensure that the names on the register are above the three personal identifiers and correct, this would allow a determined they are not allowed to apply for an absent fraudster to supply a false name at vote. It is argued that this represents a registration and then supply that name and balanced approach as it encourages a fictitious date of birth when an participation by allowing individuals to application is made for a postal vote. The register to vote but helps to protect the Committee understands that there will be a integrity of the system and diminishes the minimum requirement for returning possibility of fraud. officers to check 20 per cent of postal votes from each bundle. If this were to happen 5.36 The Committee shares some of the concerns there is a distinct possibility that many raised by electoral administrators about the fraudulent postal votes would pass any possible unintended consequences of the checking mechanism. Conversely, if any postal vote measures contained in the questionable signatures are found in the 20 Electoral Administration Act 2006 and the per cent, it is very likely that a candidate or potential for these to cause difficulties, agent will insist that a 100 per cent of the particularly for the most imminent local postal votes are checked. Added to this is elections in May 2007. the inherent difficulty of checking the validity of signatures, either manually or electronically:

89 Review of The Electoral Commission

5.39 As we covered earlier in this chapter, The RECOMMENDATIONS Electoral Commission made recommendations in 2003 for all-postal voting at local elections; R41. The Electoral Commission should, as yet 12 months later it recommended that part of its statutory reports on the all-postal voting should not be used at any 2007 Elections, include a speciﬁc statutory election. This about-turn has been section dealing with the impact of, criticised by political parties and some and any problems encountered in the electoral administrators both for sowing implementation of the new measures confusion and discrediting postal voting. on postal voting. In light of this In evidence to the Committee, the report the Government should Government blamed The Electoral consider similar measures in relation Commission for confusing the issue on to registering immediately before an postal voting by merging a number of election as have been put in place for different issues in relation to security and Northern Ireland in the Miscellaneous choice, which led to a breakdown in Provisions (Northern Ireland) Act 2006. consensus about all-postal voting.

5.40 In Chapter 2 we recommended that The Role of The Electoral Commission Electoral Commission should continue to provide advice on the suitability of existing 5.37 The Committee believe that The Electoral and new electoral legislation as part of a Commission, as part of its future mandate, new mandate to perform two statutory should take a leading role in maintaining duties. One of these is to regulate electoral public confidence in the electoral system registration, with the aim of ensuring and the outcome of elections. In written integrity and public confidence in the evidence to the Committee, Andrew Tyrie administration and conduct of elections. MP stated: When legislation is introduced to Parliament, a Regulatory Impact Assessment is included The primary task of The Electoral as a means of informing Parliament if the Commission must be to bolster the proposed legislation is likely to impose any electorate’s confidence in the democratic new regulatory burdens. The Committee process and to respect the outcome of proposes that a similar requirement should elections. In my view, the conduct of apply to primary and secondary electoral elections since The Electoral Commission’s legislation that is introduced to Parliament. creation has resulted in diminution of that This should take the form of an assessment confidence. For a number of reasons, The prepared by The Electoral Commission Electoral Commission has to bear some which outline potential risks generated by responsibility for that. the proposed measures that might damage the integrity of the electoral system; and 5.38 As we discuss in Chapter 2, The Electoral also ways to mitigate these risks. The Commission has been closely identified Committee believes that if The Electoral with the Government’s electoral Commission raises objections to new modernisation programme and some electoral legislation on these grounds, then witnesses expressed the view that this to it is essential that both the Government some extent compromised its focus on the and Parliament considers such concerns risks that the introduction of such measures directly alongside the legislation. might pose to the integrity of the electoral process. While it is clearly right, and desirable, for the Government to propose RECOMMENDATIONS and Parliament to pass new measures intended to help increase participation in R42. It should be a requirement that The elections, it must also be the role of The Electoral Commission’s views (see Electoral Commission to make it clear to R24 Chapter 2) on proposed primary government and Parliament if proposed and secondary legislation on electoral changes to electoral law have the potential issues should accompany the draft to undermine this integrity and diminish legislation when it is introduced confidence. A number of witnesses into Parliament. questioned the Commission’s performance in this respect since 2000.

90 Integrity of the electoral process

Conclusion • that there can only be one vote cast per eligible voter. 5.41 It is important that the electoral system is free, fair and secure – and seen as such. 5.45 Therefore it is essential that the electoral Defending the integrity of the electoral register and the system of electoral process should concern all political parties registration retain the trust and confidence and must not be based on partisan of both the electorate and political parties. concerns. The Electoral Commission must spell out, clearly and publicly to 5.46 There has been considerable debate, government and Parliament if proposed comment and analysis in recent years about changes to electoral law have the potential both the current state of the electoral to undermine confidence in or the integrity register and of the system employed for of the electoral process. electoral registration. Debate embraces The Electoral Commission through its Voting for 5.42 The Committee believes that the political Change [10] proposals, the Government parties and Parliament should be with the Electoral Administration Act, continually vigilant about any threats to Parliament and political parties. During the our democratic processes. Electoral fraud is course of this inquiry the Committee a serious matter. The Committee does not received significant amounts of evidence believe that it is occurring to a worrying about the current state of the electoral degree in every constituency or local register in the UK. Concerns were expressed authority, but evidence suggests that there by all political parties and electoral are a number of hot spots where electoral administrators about varying levels of fraud is a problem and, if not detected and comprehensiveness of registration and stopped, threatens to undermine standards of the register’s accuracy across confidence in the democratic system. the country.

5.43 This is a good example of where a risk- 5.47 Given the fundamental importance of the based approach, highlighted in Chapter 2, electoral register, the system of registration can be very effective in identifying a and the statutory mandate and regulatory problem and putting in place measures to role we have proposed for The Electoral try and rectify it. We believe it is essential Commission in Chapter 2 (building upon for The Electoral Commission to minimise the Electoral Administration Act 2006), the this problem as a key part of its regulatory Committee feels bound to comment on this approach. Regional electoral ofﬁcers, aspect of the electoral process. We will not working closely with electoral replicate the considerable debate and administrators, will have a critical role in analysis on this issue in recent years. Rather, identifying weaknesses in current practices we summarise the issues and the evidence and improving standards of fraud we have received, and then make proposals prevention and detection. that we consider should have support across the political spectrum. Electoral registration State of the current electoral register 5.44 The system of electoral registration is perhaps the most critical element of the 5.48 As was pointed out in Chapter 2, we electoral administration process and received strong opinions in evidence underpins the most fundamental principles concerning the current state of the and therefore legitimacy of the United electoral register: Kingdom’s democratic processes. This foundation of our democracy serves to The present system of how you register is ensure: indefensible, effectively. [Alan Whitehead MP 11/07/06 192] • that the right to vote is available as a universal right to those who are eligible I am in favour of individual registration. and choose to exercise it; I do not know why we have not moved to that. • that this is a personal right so that the [Rt Hon Kenneth Clarke MP 11/07/06, 444] vote is ‘owned’ by the eligible person on the register – and no-one else; and

91 Review of The Electoral Commission

It is totally unsatisfactory that there is no System of electoral registration consistency across the country. [Bridget Prentice MP 18/07/06, 491] 5.53 Currently, the United Kingdom has a combination of household and individual 5.49 Evidence suggested that in some parts of registration in Great Britain and individual the country registration is carried out to a registration only in Northern Ireland. As high standard while in others little time was outlined earlier in this chapter, this and resource is put into compiling the differing approach emerged because the register. This was conﬁrmed by our own Government, following growing concern visits to electoral registration ofﬁcers about the perceived level of electoral during the course of this inquiry. Many malpractice in Northern Ireland, introduced politicians and others who gave evidence a number of anti-fraud measures (Electoral were concerned that large numbers of Fraud Northern Ireland Act 2002) including eligible individuals were not registering the system of individual registration. Before and that little sustained effort appeared to this, Northern Ireland also used the be made to encourage registration. household registration system.

5.50 The Electoral Commission published a Household registration report [11] in September 2005 which estimated that around 3.5 million eligible 5.54 Household registration dates back to the people in England and Wales were missing 19th century when the vote was restricted from the electoral register. The report to male householders who were liable to found that the majority were mostly young pay a property tax. Under the household people living with parents, people who had system an annual canvass form is sent to moved home less than six months before each household by local authorities the annual canvass and those renting from between September and November. The private landlords. It was also found that head of household or a named person is that an eligible individual’s relationship required to complete and return the form with the head of household was an on their own behalf and on behalf of any important predicator of non-registration. eligible voters who live in the household. It is an offence not to return a completed 5.51 A number of measures were introduced in registration form. However, there are rarely the Electoral Administration Act to try and any prosecutions mainly because it is improve registration rates. These included: difficult to prove without doubt that an individual has received a registration form. • introducing a duty on electoral registration officers to take steps to 5.55 The Representation of the People maximise the electoral register; and Regulations 2001, made under the Representation of the People Act 2000, • extending the last date someone can introduced significant changes to the register after an election has been called. system of registration in the UK. Before this, there was an annual qualifying date 5.52 Another major concern made in evidence for entry onto the register and individuals to the Committee was the accuracy of the who did not register would have to wait electoral register. It is important in for another 12 months before registering. retaining confidence in the fairness and Similarly, those who moved house had to security of the electoral process that the remain on the old area’s register until the register only represents those individuals next canvass and could only vote in the who are eligible to vote. Unfortunately previous location if an election was held. there has been no research on the accuracy However, since 2001, the introduction of of the register undertaken by either rolling registration or individual academics or The Electoral Commission. In registration outside of the canvass period response to evidence presented to this provided individuals with a voluntary inquiry the Commission has undertaken to means to get onto the register and to conduct such research, which the amend their details. Commission welcomes.

92 Integrity of the electoral process

5.56 The beneﬁts of household registration • it requires individuals to take personal include: responsibility for registering;

• simplicity – only one person in a • when combined with other measures, it is household needs to complete the form a more effective weapon against and, once registered, all that is required attempted fraud; and once a year is that person’s signature or, in some areas, afﬁrmation by phone or • it treats all electors equally. through the internet using a security code, if details remain the same; 5.60 The potential problems with individual registration include: • familiarity – the household system has been used for many years; and • on introduction it is likely that the numbers registered will drop; • it is likely to be more comprehensive than individual registration because many • without speciﬁc measures, it may increase individuals do not have to do anything to problems in registering young people and get onto the register as the form is other ‘hard-to-reach’ groups; and completed by the head of household. • on its own it is no guarantee of 5.57 Potential problems with household preventing electoral fraud. registration include: 5.61 There is consensus among political parties, • it can be open to abuse because the The Electoral Commission and most individual who signs the form has control electoral administrators that individual over the information provided. Therefore, registration is, in principle, a more accurate false information can be added; means of registering eligible voters and that it is right that individuals should take • it is more likely to be inaccurate because personal responsibility for registering. there are no checks made on the However, there is no agreement on information contained on the form – i.e. when to introduce it as a full replacement a person signing the form could quite of the household registration system in easily submit false names; Great Britain.

• it removes individual voters’ personal Evidence responsibility to register; and 5.62 The Electoral Commission has been in • it can disenfranchise individuals if the favour of introducing individual head of household does not register their registration to Great Britain since it names. published Voting for Change in 2003. When the Government announced that it was not Individual registration including individual registration in the Electoral Administration Bill, The Electoral 5.58 Individual registration requires all eligible Commission made clear publicly that it individuals to register their own names and disagreed with the Government and that any other details required by the individual registration should be included registration officer personally. This is done in the Bill. As previewed in this chapter, it either through the annual canvass or was pressure from the House of Lords during the process of rolling registration. during the passage of the Bill that resulted Individual registration has been adopted in in an amendment to bring in individual Northern Ireland and applies through registration that was accepted in the rolling registration in the rest of the United Commons. The Government’s view was Kingdom. that, while it accepted the approach in principle, it was not the time to introduce it 5.59 The benefits of individual registration are because Northern Ireland experience that: indicated that it would in all probability lead to a substantial diminution in the • in principle, it provides a more accurate numbers who register. The House of Lords reflection of eligible individuals living dropped its amendment after the within the registration area; Government decided to accept an

93 Review of The Electoral Commission

amendment to improve anti-fraud did not re-register during the canvass, were measures for postal voting in Great Britain kept on the register for a further 12 months. by introducing personal identifiers. The Electoral Commission agreed and, following detailed research, commented 5.63 The Committee’s own position on the that the fall did indeed reflect the removal rightness of individual registration follows of the carry forward which had the effect close consideration of what the registration of removing inflationary factors from the system is there to achieve and how this register. The Commission also observed that approach fits the purpose. The Government the introduction of individual registration has made it clear that it expects the had a positive effect on restoring integrity electoral register to be as comprehensive to the registration process. and accurate as possible – a commonly agreed objective. So the key question is 5.67 The Committee’s view is that individual whether we can achieve this goal through registration in Northern Ireland has not led the current system or whether individual to the disenfranchisement of thousands of registration will increase the voters, as is widely believed to be the case. comprehensiveness and accuracy of the There are always a significant number of register? individuals who, for various reasons, do not re-register during the annual canvass; 5.64 Household registration has produced – therefore the withdrawal of the carry when all the electoral registers in Great forward effectively meant that each year Britain are compared – an average figure of a sizeable number of individuals would fall around 91 per cent of eligible adults off the register. There would be a similar registered. However, this figure masks wide significant reduction in registration under discrepancies between local authority areas. the household system if the carry forward The important structural problem with was abolished. household registration is the difficulty of determining levels of accuracy. This is 5.68 The main problem with the Northern because the system relies on trusting the Ireland approach was the requirement accuracy and comprehensiveness of the on voters to re-register and provide their information provided by the one person in personal identifiers afresh each year. the household who completes and signs the Eligible voters saw the process was a form. burden. The result was that the register continued to fall year on year, although 5.65 Individual registration would produce – as by much smaller percentages. demonstrated in Northern Ireland – a much more accurate register because individuals 5.69 The Government’s response was to have to engage personally in the introduce new legislation through the registration process. There are of course, Miscellaneous Provisions (Northern Ireland) concerns that on introduction there will be Act 2006. This has effectively abolished the an initial fall in the numbers registered, as annual canvass in favour of a system of happened in Northern Ireland. This has continuous registration. The Government been particularly levered as an argument has recognised that there is little sense in by those opposed to the introduction of continuing to ask individuals for the same individual registration. information each year, particularly as the information they have supplied, including Northern Ireland experience the objective personal identifier, has been verified. This approach is also designed to 5.66 In Northern Ireland the introduction of reduce the burden on the individual and individual registration in 2002 resulted in allow resources to be targeted more the number of names on the new register proactively on those who are not dropping by nearly 11 per cent compared registered and those on the register who to the previous register under household move house within Northern Ireland or registration. The Government is on record leave the Province. To enable the Chief as saying that this drop owed to a Electoral Officer to target those not on combination of inaccuracy resulting from the electoral register, the Act has given weaknesses in the household-based system him new powers to access data held by and the withdrawal of the ‘carry forward’: other public sector organisations. previously individuals on the register, who

94 Integrity of the electoral process

Way forward • signature and date of birth, as recommended by The Electoral 5.70 Despite the simplicity and familiarity of Commission and currently used for postal household registration, on balance the voting in Great Britain; or Committee takes the view that, as there is agreement among all the major parties, • signature, date of birth and a further it is the right time to recommend the objectively verifiable identifier – as introduction of individual registration. Due required in Northern Ireland – such as the to the understandable concerns expressed National Insurance number. by those opposed to individual registration during the passage of the Electoral 5.74 The Electoral Administration Act requires Administration Act, a possible way forward those wanting to vote by post to supply is to suggest that individual registration is two personal identifiers: signature and date introduced immediately following the next of birth. This measure was put in place to General Election. This would give the try and restore public confidence in the political parties time to reach a consensus postal voting process because of on the principles of the new system and on perceptions that it was leading to increased a realistic timetable for implementation. electoral fraud. As discussed earlier in this Our reasons for recommending this include: chapter, doubts have been expressed as to how effective these identifiers are in • in a democratic society eligible individuals establishing an individual’s true identity, should take personal responsibility for and whether they are truly effective in registering just as they have to apply deterring a determined fraudster. For personally for other public and private example, signatures are notoriously services; subjective because they can change over time; checking signatures manually is very • the register will reflect more accurately time-consuming and even checks made by those individuals who are entitled to be machine still require manpower to registered; investigate perceived discrepancies. The widespread use of signature-checking • greater accuracy will help to restore machinery would also require substantial integrity to the registration process; and extra funding.

• if combined with other measures, 5.75 On balance the Committee favours having individual registration should help to an additional objective verifier. The minimise electoral fraud. National Insurance number has been used successfully in Northern Ireland where this 5.71 The Electoral Commission should have a objective check has proved to be a role in facilitating agreement among deterrent. It is also relatively inexpensive, political parties represented at Westminster costing the Chief Electoral Officer just over about a plan of implementation which £10,000 to have over one million numbers would take account of lessons learned from checked by the Department for Work and the experience in Northern Ireland. In Pensions. Those who oppose the use of particular, the plan should cover measures such an identifier claim it is too much of a to minimise a fall in the numbers of disincentive because, for many people, individuals registered. This would be in line finding the number would be too much of with Electoral Commission’s new role as an effort. There are also concerns that the regulator of electoral administration, put National Insurance number is unreliable forward in Chapter 2. because there are more in circulation than there are individuals. Yet evidence from 5.72 If individual registration is to be effective it Northern Ireland, shows that having to is essential, in the Committee’s view, that provide a National Insurance number has personal identifiers are introduced in not been seen as problematic and is parallel as part of the registration process. supported by all political parties. The Committee also notes that the use of the 5.73 As regards which personal identifiers are National Insurance number as an identifier most appropriate, two options are clearly has been effective in its own National available: Fraud Initiative work.

95 Review of The Electoral Commission

5.76 The Committee advocates the use of the to improve accessibility and ease of following measures to mitigate the fall-off voting (through postal voting on in the numbers registering, following the demand and possibly e-voting). introduction of individual registration: (ii) There are legitimate concerns about • ensuring that all areas in each registration the practical impact, in the short-to- district are properly canvassed; medium-term, of the introduction of a system of individual electoral • promoting data-sharing within the public registration on the comprehensiveness sector to allow electoral registration of the register. There is some kind of officers to target non-registered election every year in the UK which individuals; and stresses the importance of these concerns and the need to address them • for The Electoral Commission to create a now. However, there would be high-profile advertising campaign to demonstrable problems if new inform voters about the new system. legislation is rushed and not properly thought out or if insufficient care is As was noted earlier in this chapter, in given to the plan of implementation Northern Ireland the annual canvass has and timetable. been abolished and replaced with a system of continuous registration. This has been (iii) Fortunately, the experience of possible because of individual registration individual registration in Northern and the objective verification with the Ireland has highlighted some important National insurance number of each elector’s lessons and shows that the system is identity. It is now easier for the Chief workable, and that benefits can be Electoral Officer to use his resources to realised, in tandem with good target non-registered voters and those planning, sufficient resource and registered who move address. In the measures to prevent any loss of Committee’s view if this approach proves to comprehensiveness. be successful then it should be adopted in the rest of the United Kingdom. (iv) The debate about the introduction of a system of individual registration is Conclusion heightened by concerns about the state of the current household electoral 5.77 The Committee has drawn conclusions that register and the variation of practice we believe are widely agreed across the and standards across Britain. However, spectrum of those involved in the electoral the measures we propose in Chapter 2, process, as follows: building upon the Electoral Administration Act 2006, should make (i) There is a compelling case for replacing a significant impact over the next two the current household system with a to four years and provide the system of individual voter registration framework for future successful complemented by personal identifiers. implementation of a system of The case is one of basic rights and individual registration. responsibilities for individual citizens. It cannot be right in the 21st century for (v) We believe that it is important to our democratic system to be founded introduce the new system at the upon a system where the ‘head of earliest realistic date. This demands the household’ can influence the political will and cross-party agreement enfranchisement of other individuals as well as the development and living in that property. The case is also implementation of new legislation. made by the gain in integrity and In particular, there needs to be: confidence in the electoral administration process that such a • agreement on the precise form the system is likely to foster if other new system; measures are simultaneously introduced. The new system is, we • preparation by The Electoral believe, essential if the Government Commission, with local authorities, of wishes to continue with the a detailed implementation plan; and modernisation of the electoral system

96 Integrity of the electoral process

• sufﬁcient time (three to four years) to be conﬁdent that the system will be fully implemented and operating successfully for the anticipated date of the (then) next General Election.

RECOMMENDATIONS

R43. A decision should be made and legislation developed to implement a system of individual voter registration immediately following the next General Election or by 2010 at the latest.

R44. Political parties should start discussions now in order to reach agreement on the precise form the new system and the measures needed to assure comprehensiveness and accuracy.

R45. The Electoral Commission’s implementation plan for the new system should include a focus on measures to minimise under- registration.

R46. Any agreed system of individual registration should include at least one objective identiﬁer such as the National Insurance number.

R47. If the new arrangements in Northern Ireland, including the abolition of the annual canvass, are successful they should be adopted as part of the new system of individual registration in the rest of the United Kingdom.

97 Review of The Electoral Commission

References

1. Electoral Administration Act 2006.

2. Combating Electoral Fraud in Northern Ireland Cm 5080 March 2001.

3. Ofﬁce for Democratic Institutions and Human Rights: United Kingdom of Great Britain and Northern Ireland General Election 2005, OSCE/ODIHR Assessment Mission Report, August 2005.

4. The Electoral Fraud (Northern Ireland) Act 2002: An assessment of its ﬁrst year in operation, Electoral Commission, December 2003.

5. The Representation of the People Act 2000.

6. The Shape of Elections to Come: a Strategic Evaluation of the 2003 Electoral Pilot Schemes, Electoral Commission, August 2003.

7. The Government’s Response to The Electoral Commission’s Report: The Shape of Elections to Come: a Strategic Evaluation of the 2003 Electoral Pilot Schemes Cm 5975 September 2003.

8. Delivering Democracy? The future of postal voting, Electoral Commission August 2004.

9. Miscellaneous Provisions (Northern Ireland) Act 2006.

10. Voting for Change: an electoral law modernisation programme, Electoral Commission, June 2003.

11. Understanding Electoral Registration, The Extent and Nature of Non-Registration in Britain, Electoral Commission, September 2005.

98 Appendix A

APPENDIX A

LIST OF SUBMISSIONS Stanley Knill The Labour Party The following individuals and organisations Returning Ofﬁcer for Leicester City Council submitted evidence to the Committee as part of The Liberal Democrats its consultation exercise. Copies of all the William Mackesy submissions can be found on the CD-Rom which Robert Marshall-Andrews QC, MP accompanies the report. Evidence which Midlothian Council concerned individual cases, or has been found Dr John Marek to contain potentially defamatory material, has David Monks, Chair Electoral Matters, SOLACE been excluded. All the evidence we received Rt Hon Rhodri Morgan AC/AM, First Minister (including unpublished submissions) was given for Wales, Welsh Assembly Government due consideration in our work. New Politics Network The Rt Hon the Lord Owen CH Aberdeenshire Council Parliamentary Boundary Commission Alliance for Green Socialism for England Alliance Party of Northern Ireland Parliamentary Boundary Commission Association of Electoral Administrators for Northern Ireland Association of Electoral Administrators, Parliamentary Boundary Commission for Wales Southern Region Joe Patterson Association of Electoral Administrators Wales Dr Michael Pinto-Duschinsky Dr John Baston Plaid Cymru Ann Begg MP The Referendum Party Birmingham City Council Andrew Robathan MP Sir Howard Bernstein, Chief Executive, Scarborough Borough Council Manchester City Council Scottish Green Party Bridgnorth District Council The Southport Party Dr George Calvin Speaker’s Committee, House of Commons Lord Campbell-Savours Staffordshire Morlands District Council Carmarthenshire County Council Professor John Stewart Jane and Stuart Carruthers The Rt Hon Gavin Strang MP The Conservative Party Andrew Stunell MP Michael Crick Torfaen County Borough Council Disability Action, Belfast Andrew Turner MP Dr Jim Dyer, Scottish Parliamentary Standards Andrew Tyrie MP Commissioner West Berkshire Council The Electoral Commission West Lancashire District Council The Electoral Commission Northern Ireland Dr Alan Whitehead MP The Electoral Commission Scotland The Electoral Commission Wales Electoral Reform Society Dr Matthew Flinders Bob Goodhall HM Government Professor Robert Hazell Local Government Boundary Commission for Wales Lord Holme of Cheltenham, Chair, and Claire Ettinghausen, Chief Executive, Hansard Society Mark Heath, Solicitor, Southampton City Council Peter Hooper Kelvin Hopkins MP Electoral Ofﬁcer, King’s Lynn and West Norfolk Borough Council

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100 Appendix B

APPENDIX B

LIST OF WITNESSES WHO GAVE ORAL Day 3 Belfast EVIDENCE 21 June 2006 (pm) Tim Attwood, Social Democratic and Day 1 London Labour Party 13 June 2006 Nuala O’Neill, Social Democratic and Labour Party Dr Michael Pinto-Duschinsky Alan Ewart, Democratic Unionist Party Sam Younger, Chairman, Richard Bullock, Democratic Unionist Party The Electoral Commission Allan Leonard, Alliance Party Peter Wardle, Chief Executive, Sean Begley, Sinn Fein The Electoral Commission Margaret Adams, Sinn Fein Peter Viggers MP, Speaker’s Committee Dr Christopher Ward, Secretary to the Day 4 Edinburgh Speaker’s Committee 27 June 2006 Day 2 London Douglas Fraser, Glasgow Herald 15 June 2006 Sir Neil McIntosh CBE, Commissioner, The Electoral Commission Professor Robert Hazell, School of Public Policy, Andy O’Neill, Head of Office, University of London The Electoral Commission Oliver Heald MP, Shadow Secretary of State William Pollock, Administration Manager, for Constitutional Affairs and Shadow South Ayrshire Council Chancellor of the Duchy of Lancaster Alan Henry, Electoral Registration Officer Simon Hughes MP, Shadow Secretary of State for Dumfries and Galloway for Constitutional Affairs and Attorney Jeff Hawkins, Returning Officer for East General; President Liberal Democrat Party Renfrewshire Council Rt Hon Alan Beith MP, Chair of Select Mark McInnes, Scottish Conservative Party Committee on Constitutional Affairs Dr Derek Barrie, Scottish Liberal Democrat Party Rt Hon Hazel Blears MP, Chair of the Labour Mrs Lesley Quinn, Scottish Labour Party Party and Minister without Portfolio Peter Murrell, Scottish Nationalist Party Day 3 Belfast Day 5 Cardiff 21 June 2006 (am) 6 July 2006 Mark Devenport, Political Editor Dr Roger Scully, University of Wales Aberystwyth BBC Northern Ireland Glyn Mathias, Commissioner, Karamjit Singh CBE, Commissioner, The Electoral Commission The Electoral Commission, Kay Jenkins, Head of Office, Seamus Magee, Head of Office, The Electoral Commission The Electoral Commission Northern Ireland Rt Hon Rhodri Morgan AM, Douglas Bain, Chief Electoral Officer First Minister for Wales June Butler, Assistant Chief Electoral Officer Frank Cuthbert, Office of the First Minister Denis Stanley, Former Chief Electoral Officer Robert Screen, AEA, Wales John Fisher, Northern Ireland Parliamentary Peter Woodward, AEA, Wales Commissioner Matthew Lane, Welsh Conservative Party Dafydd Trystan, Plaid Cymru Jeff Canning, Plaid Cymru Stephen Smith, Welsh Liberal Democrat Party Susan Smith, Local Government Boundary Commission for Wales Edward Lewis, Local Government Boundary Commission for Wales

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Day 6 London Day 10 London 11 July 2006 14 September 2006

Michael Crick Sir Howard Bernstein, Chief Executive, Dr Alan Whitehead MP Manchester City Council Andrew Tyrie MP Susan Orrell, City Solicitor, Manchester The Rt Hon Kenneth Clarke QC MP City Council Andrew Scallen, Head of Statutory Services, Day 7 London Manchester City Council 13 July 2006 Dr Michael Pinto-Duschinksy Sam Younger, Chairman, Rt Hon John Spellar MP The Electoral Commission Phil Woolas MP, Minister of State, Department Pamela Gordon, Commissioner, The Electoral for Communities and Local Government Commission, and Chair of Local Boundary Dr David Butler, Nufﬁeld College, Oxford Committee for England Professor Iain Maclean, Nufﬁeld College, Oxford Peter Wardle, Chief Executive, John Turner, Association of Electoral The Electoral Commission Administrators David Monks, Electoral Matters Panel, SOLACE Day 11 London Ken Ritchie, Electoral Reform Society 21 September 2006

Day 8 London The Rt Hon Lord Falconer of Thoroton QC, 18 July 2006 Lord Chancellor and Secretary of State for Constitutional Affairs Malcolm Dumper, Executive Director Policy and John Sills, Head of Electoral Policy, Department External Affairs, Southampton City Council for Constitutional Affairs Norman MacLeod, Electoral Service Manager, Sir Hayden Phillips GCB London Borough of Haringey Peter Stanyon, Deputy Head of Democratic Day 12 Belfast Services, London Borough of Enfield 23 October 2006 James Stevens, Brentwood Borough Council Fraser Kemp MP, Houghton and Washington East The Lord Maginnis of Drumglass Bridget Prentice MP, Parliamentary Under- Seamus Magee, Head of Office, Secretary of State, Department for The Electoral Commission, Northern Ireland Constitutional Affairs Dr Tony Dignan, PricewaterhouseCooper David Heath CBE MP, Shadow Leader of the House and Liberal Democrat Spokesperson for the Cabinet Office

Day 9 London 7 September 2006

Peter Viggers MP, Speaker’s Committee Dr Christopher Ward, Secretary to the Speaker’s Committee Rt Hon Gavin Strang MP Lord Holme of Cheltenham, Chairman, Hansard Society Clare Ettinghausen, Chief Executive, Hansard Society Ged Fitzgerald, Chief Executive, Sunderland City Council Paul Rogerson, Chief Executive, Leeds City Council Kelvin Hopkins MP

102 Appendix C

APPENDIX C

PREVIOUS REPORTS BY THE A review of recommendations contained in the COMMITTEE ON STANDARDS First and Second Reports relating to standards IN PUBLIC LIFE of conduct in executive Non-Departmental Public Bodies (NDPBs), NHS Trusts and local public spending bodies (Fourth Report) The Committee has published reports on the (November 1997);1 following subjects: A review of recommendations contained in the Members of Parliament, Ministers, civil servants First Report relating to Members of Parliament, and quangos (First Report (Cm 2850)) Ministers, civil servants and ‘proportionality’ in (May 1995); the public appointments system (Sixth Report entitled Reinforcing Standards (Cm 4557)) Local public spending bodies (Second Report (January 2000);2 (Cm 3270)) (June 1996); A stock-take of the action taken on each of the Local government in England, Scotland and 308 recommendations made in the Committee’s Wales (Third Report (Cm 3702)) (July 1997); seven reports since 1994 (The First Seven Reports – A Review of Progress) The funding of political parties in the United (September 2001). Kingdom (Fifth Report entitled The Funding of Political Parties in the United Kingdom (Cm 4057)) (October 1998);

Standards of Conduct in the House of Lords (Seventh Report (Cm 4903)) (November 2000).

Standards of Conduct in the House of Commons (Eighth Report (Cm 5663)) (November 2002)

Deﬁning the Boundaries within the Executive: Ministers, Special Advisers and the permanent Civil Service (Ninth Report (Cm 5775)) (April 2003)

Getting the Balance Right: Implementing Standards of Conduct in Public Life (Tenth Report (Cm6407)) (January 2005)

The Committee is a standing committee. It can therefore not only conduct enquiries into new areas of concern about standards in public life but also, having reported its recommendations following an enquiry, it has can later re-visit that area and monitor whether and how well its recommendations have been put into effect. The Committee has so far conducted two reviews, and in 2001 published a stock-take of the action taken on each of the 308 recommendations made in the Committee’s seven reports since 1994:

1 This report was not published as a Command Paper. 2 ‘Proportionality’ is a term used to describe the principle that the length and complexity of appointment procedures should be commensurate to the nature and responsibilities of the post being ﬁlled. 103 Review of The Electoral Commission

104 About the Committee

ABOUT THE COMMITTEE Membership of the Committee

Terms of reference Sir Alistair Graham Chairman The Rt Hon Sir John Major KG CH, the then Lloyd Clarke QPM Prime Minister, announced the establishment of Rita Donaghy CBE the Committee on Standards in Public Life in Professor Dame Hazel Genn DBE the House of Commons on 25 October 1994 Dame Patricia Hodgson DBE with the following terms of reference: Rt Hon Alun Michael JP MP (from 1 October 2006) To examine current concerns about standards of Baroness Maddock conduct of all holders of public office, including Rt Hon Baroness Shephard JP DL arrangements relating to financial and Dr Elizabeth Vallance JP commercial activities, and make Dr Brian Woods-Scawen DL recommendations as to any changes in present arrangements which might be required to The Committee is assisted by a small Secretariat: ensure the highest standards of propriety in Dr Richard Jarvis (Secretary), Peter Hawthorne public life. (Assistant Secretary), Jan Ashton (Secretariat Manager), Gemma Craigan (Secretariat For these purposes, public office should include: Coordinator) and Gloria Durham (SPS to the Ministers, civil servants and advisers; Members Chairman and the Secretary). of Parliament and UK Members of the European Parliament; members and senior Advice and assistance to the Committee for officers of all non-departmental public bodies this study was also provided by: Radio Technical and of National Health Service bodies; non- Services Ltd for the provision of sound ministerial office-holders; members and other recording; WordWave for the provision of senior officers of other bodies discharging transcription services during the public publicly-funded functions; and elected members hearings; and Giles Emerson of Words for and senior officers of local authorities. (Hansard editing the draft report. (HC) 25 October 1994, col 758) Expenditure The remit of the Committee excludes investigation of individual allegations The estimated gross expenditure of the of misconduct. Committee on this inquiry to the end of December 2006 is £238,000. On 12 November 1997 the terms of reference were extended by the Prime Minister: This includes staff and administrative costs; the costs of printing the Issues and Questions paper To review issues in relation to the funding of in February 2006; the estimated cost of political parties, and to make recommendations preparing and publishing this Report; costs as to any changes in present arrangements. associated with the public hearings throughout the summer of 2006 (eight held in London, The Committee on Standards in Public Life has two in Belfast, one each in Edinburgh and been constituted as a standing body with its Cardiff); the research trip to North America, members appointed for up to three years. Sir visits to returning officers and all associated Alistair Graham succeeded Sir Nigel Wicks as sundry expenses. Chairman on 26 April 2004. Sir Nigel succeeded Lord Neill as Chairman on 1 March 2001. Lord Committee on Standards in Public Life Neill succeeded Lord Nolan, the Committee’s 35 Great Smith Street first Chairman, on 10 November 1997. London SW1P 3BQ

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