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C o m m i t t e e o n S t a n d a r d s i n P u b l i c L i f e

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The Committee on Standards in Public Life35 Great Smith StreetLondon SW1P 3BQ

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Internet: www.public-standards.gov.ukE-mail: [email protected]

January 2007

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The Seven Principles of Public Life

Selflessness

Holders of public office should act solely in terms of the public interest. They

should not do so in order to gain financial or other material benefits for

themselves, their family, or their friends.

Integrity

Holders of public office should not place themselves under any financial or

other obligation to outside individuals or organisations that might seek to

influence them in the performance of their official duties.

Objectivity

In carrying out public business, including making public appointments,

awarding contracts, or recommending individuals for rewards and benefits,

holders of public office should make choices on merit.

Accountability

Holders of public office are accountable for their decisions and actions to the

public and must submit themselves to whatever scrutiny is appropriate to

their office.

Openness

Holders of public office should be as open as possible about all the decisions

and actions that they take. They should give reasons for their decisions and

restrict information only when the wider public interest clearly demands.

Honesty

Holders of public office have a duty to declare any private interests relating

to their public duties and to take steps to resolve any conflicts arising in a

way that protects the public interest.

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 ofThe Electoral Commission

Report

Presented to Parliament by the Prime Ministerby Command of Her Majesty

January 2007Cm 7006 £18.63 (inc. VAT in UK)

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i

Chairman:Sir Alistair Graham January 2007

I have pleasure in presenting the Committee’sEleventh Report which deals with a review ofthe mandate, governance and accountability of The Electoral Commission, which wasestablished in 2000 following recommendationsin this Committee’s Fifth Report in 1998.

The establishment of an independent ElectoralCommission by your Government in 2000 wasvery welcome and, in the view of manycommentators, overdue. We continue to believe that the Commission is a necessary and, if effective, vital part of the institutionalarchitecture needed to support and maintainour democratic system. However, the evidencereceived by the Committee during our inquiryindicates that there has been a reduction inconfidence in issues that underpin two keypillars of our democratic process: the integrityof our electoral administration system; and theframework for the regulation of political partyfunding; both of which in the Committee’s viewshould have been the core tasks and prioritiesof The Electoral Commission. This has not beenthe case to date.

Confidence and consent in our democraticprocesses is the bedrock on which all publicoffice is built. We believe that to restoreconfidence in these two key pillars we need an Electoral Commission that will, in future,operate as a tightly focussed, independent,strategic regulator concentrating on these twocore tasks and with the necessary leadership,governance, skills and experience to performthem effectively.

We have therefore set out a package of inter-related recommendations to refocus radicallythe mandate of the Commission on these twocore duties and to provide the framework thatwill enable it to deliver this successfully. In lightof the core role we envisage the Commissionplaying as the regulator of electoraladministration we have also addressed issuesregarding the integrity of the electoral processitself, and recommend that a decision be madenow to move to a system of individual voterregistration after the next general election.

Our proposals also include a strengthening of the governance of the Commission, by the inclusion of commissioners and staff withcontemporary experience of politics and thepolitical process, and also improvements to the transparency and effectiveness of theaccountability of the Commission to Parliament,principally through the Speaker’s Committee.

Many of our recommendations will requirelegislation, which we propose should beintroduced in the next parliamentary session,and are therefore directed at the Government.Some others can be achieved without legislationand are therefore directed at the either TheElectoral Commission itself, or the Speaker’sCommittee of the House of Commons.

We are clear however that implementation of these measures will not, on their own, besufficient to restore confidence. Government,Parliament and political parties all have theirown critical role to play.

Finally, the Committee has kept in close touchwith Sir Hayden Phillips who is conducting thereview of political party funding on your behalf.We are confident that our proposals regardingthe regulatory role of the Commission will becomplementary and supportive to any changesto the regulatory framework he proposes in hisfinal report to you.

My colleagues and I commend this report to you.We believe that the health of our democraticprocesses would be greatly enhanced by theadoption of our recommendations.

Alistair Graham

CONTENTS

EXECUTIVE SUMMARY AND LIST OF RECOMMENDATIONS 1

Chapter 1 INTRODUCTION AND CONTEXT 19

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

Chapter 2 MANDATE OF THE ELECTORAL COMMISSION 27

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

Chapter 3 GOVERNANCE OF THE ELECTORAL COMMISSION 53

Introduction 53Overview 54Restrictions on staff of The Electoral Commission 55Electoral commissioners 56Devolved administrations 60The role of the chair and commissioners 61Appointment of the chair and commissioners 62Conclusions 62

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Review of The Electoral Commission

Chapter 4 ACCOUNTABILITY OF THE ELECTORAL COMMISSION 65

Introduction 65Accountability to Parliament for the proper expenditure of funds 66Accountability of general performance to Parliament 72Accountability to the devolved administrations 74Accountability to political parties 75Conclusion 76

Chapter 5 INTEGRITY OF THE ELECTORAL PROCESS 79

Introduction 79Electoral fraud 80Electoral registration 91

Appendices

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

About the Committee 105

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Contents

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1. Introduction

1.1 The Committee on Standards in Public Lifewas established in October 1994 by thethen Prime Minister, the Rt Hon Sir JohnMajor. It was given wide terms of referenceto examine current concerns about thestandards of conduct of all public office-holders. The Committee’s terms ofreference were extended in November1997, by the present Prime Minister, the RtHon Tony Blair MP, to include issues inrelation to the funding of political parties.The Committee has published ten reportscovering virtually all public office-holdersand the funding of political parties.

1.2 The Committee’s Eleventh Inquiry: AReview of The Electoral Commission beganin February 2006 with the publication of anIssues and Questions Paper [1]. Since thenthe Committee has carried out a thoroughprocess of consultation and analysis, takingoral evidence from 83 witnesses andreceiving 78 submissions. In addition wehave commissioned two pieces ofsupporting research; and Committeemembers visited five local authorityelectoral administration offices and a smallgroup undertook a study tour ofcomparable institutions in Canada and theUSA.

1.3 This, our Eleventh Report, sets out theCommittee’s findings in full and theassociated CD-Rom includes all of theevidence, written and oral as well as theresearch reports and a summary of theoverseas study tour. This executive summaryprovides an overview of the main findingsand a full list of the recommendations wehave made.

1.4 The Electoral Commission was establishedas an independent statutory body on 30November 2000, following therecommendations of the Committee’s FifthReport, The Funding of Political Parties inthe United Kingdom [2] and thesubsequent commencement of the PoliticalParties, Elections and Referendums Act2000 (PPERA) [3].

1.5 The mandate of The Electoral Commissionhas an impact on key issues such aselectoral administration, conduct ofelections and standards of propriety infinancing political parties. Each of theseissues has been the subject of recent publicconcern, and each affects the way peopleengage in politics and the broader questionof political legitimacy.

1.6 For these reasons the Committee believed it was important to ask now, some fiveyears after its creation and following thesecond general election to be held since itsestablishment, whether the Commission’scurrent mandate, governance arrangementsand accountability framework areappropriate for the purpose required of the Commission [1].

1.7 This inquiry is not therefore a review or stock-take of how or whether therecommendations in the Committee’s FifthReport have been implemented by theGovernment or others. Rather, it looksforward to ensuring that The ElectoralCommission can play its important role indelivering the outcomes required from theregulatory frameworks for elections andpolitical parties.

1.8 The inquiry took place against a backdropof continuing public concerns about: thearrangements for voter registration; postalvoting on demand, and the link to anumber of high-profile legal cases onelectoral fraud; and allegedly circumventoryloans to political parties with allegationsthat these were connected to the awardingof honours. The latter influenced the PrimeMinister’s decision in March 2006 to ask SirHayden Phillips to undertake a review ofthe funding of political parties, which hasyet to report [4].

1.9 These concerns directly relate to two keypillars of our democratic system that wereconstantly referred to during our inquiryand have formed the principles againstwhich the standards we wish to seeachieved in the areas of interest may be measured:

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Executive summary and list of recommendations

EXECUTIVE SUMMARYAND LIST OF RECOMMENDATIONS

1.10 Free and fair elections. Effective electoraladministration underpins our democracy.There cannot be democracy withoutelections and elections cannot be free andfair unless electoral rules are fair andcoherent, unless they are properlyadministered and unless they are activelyenforced [5]. Core functions that must beeffectively undertaken to achieve this are:

• ensuring that everyone who is entitled tovote is included on the electoral registerbefore an election and that everyoneregistered can exercise their vote, insecrecy if they wish. The right to registerand the right to vote is an equal right forthose who are eligible and should bekept as simple as possible and anybarriers kept to a minimum whilstensuring that;

• everyone not entitled to vote is excludedfrom the register and from voting. Votingfraud should be minimised by avoidingrules that facilitate such fraud and byproactive deterrence and enforcement;and

• determining electoral boundaries in away that is fair to electors, non-partisan,immune from political interference andup to date with population movements [6].

1.11 Healthy, competitive political parties.Political parties are essential to democracy.We elect a Government through aparliamentary democracy which is notabout voting on single issues but about a wide range of important choices andpriorities [7]. The way in which politicalparties are funded, and how those fundsare expended, are therefore a matter oflegitimate public interest. People ask who is paying? And how much? In return forwhat? Is it British or foreign money? [2].A regulatory framework for the funding of political parties has therefore beenrequired to eradicate the grounds forcriticism and suspicion which leads to public scepticism, and damages the politicalparties. The successful implementation ofthe regulatory framework, however,depends upon the approach taken by theregulator who must:

• show courage, confidence andcompetence in pursuing an independentand impartial approach to ensuringcompliance with the regulations. It mustaccept that it will not always be popularwith the parties and that pressure, overtand covert, will always be applied inattempts to influence its approach. It mustuse a risk-based approach to decisionsand actions1; and, at the same time

• recognise that political parties are muchmore like large voluntary organisationsthan organisations in the public or privatesector usually subject to regulation.Behind each career politician stands aregiment of dedicated voluntary partyworkers; even the local treasurers andelection agents (who are subject toregulation) of the largest parties aremostly volunteers. The approach of theregulator must be sensitive andproportionate to the voluntary nature of much of political parties’ infrastructure.

1.12 It is within this framework that theCommittee has considered the role of TheElectoral Commission.

2. Overview

2.1 The Electoral Commission is a necessaryand, if effective, vital part of the moderninstitutional architecture needed to supportand maintain our democratic system. Itscreation five years ago was, in the view ofmany, overdue and occurred long aftermany comparative democracies createdsimilar institutions.

2.2 Since its creation the Commission has beenwelcomed by many electoral administratorsand some politicians. Its expertise, guidanceand role as a central point on electoralissues has been helpful and, without doubt,its presence has been a significant factor inhighlighting the importance of electoralissues to the democratic process. All this isto be welcomed.

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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 theconfidence the public and political parties have in the regulatory framework.

2.3 However, in terms of the principles that areset out in paragraphs 1.10 and 1.11 above,are the outcomes in the period since theCommission’s formation, highlighted inevidence during our inquiry, point tosubstantive matters of concern:

• a reduction in the confidence of theintegrity of the electoral administrationprocess. This has been caused, in part, by the introduction of postal voting on demand and subsequent incidents of electoral fraud and perceptions thatthis may be increasing. Added to this are concerns about the accuracy andcomprehensiveness of the electoralregister, and the significant variations in standards of electoral administrationacross the country; and

• a reduction of confidence in theframework for the regulation of politicalparty funding and campaign expenditure,caused in part by the controversysurrounding large loans taken out by themain parties and undeclared at the timeof the last general election.

2.4 Responsibility for this lowering ofconfidence must not be laid solely at the Commission’s door. It can be arguedthat some changes were made against itsadvice, or without the safeguards they hadidentified and is a result of its advisoryrather than regulatory role in relation toelectoral administration. It can also beargued that the Commission was merelyoperating in the regulatory role itunderstood Parliament had prescribed forit, and that it is not responsible fordecisions the parties themselves took inrelation to their own finances.

Nevertheless the evidence received duringthis inquiry suggests that:

• the very wide breadth of theCommission’s mandate has led to aconcentration on issues such as policydevelopment and voter participationwork at the expense of a morecontentious proactive regulatory andadvisory role;

• that this breadth of mandate introducedpotential conflicts between a clear focuson ensuring the integrity and effectivenessof the electoral process and encouraging

voter participation, combined with a wishto work closely with government on itselectoral modernisation programme;

• the Commission has not fulfilled its roleas a regulator of party political fundingand campaign expenditure. Uncertaintyover its statutory role (in PPERA) combinedwith a degree of timidity, has led to anadministrative rather than a proactiverisk-based regulatory approach. This hascontributed to what the Committeeregards as regulatory failure and hasundermined the confidence of the publicand political parties in the regulatoryframework; and

• disproportionate restrictions (in PPERA)designed to protect the independenceand impartiality of the staff of theCommission, have contributed to a lack ofnecessary expertise within the Commissionfor it to perform its role effectively.

2.5 The Committee’s recommendations havebeen made to ensure that The ElectoralCommission will operate as a tightlyfocused, independent, strategic regulatorwith the necessary leadership, governance,skills and experience to enhance theintegrity and effectiveness of our electoral processes.

3. Mandate

3.1 The Commission’s current mandate is too broad, diffuse and potentially conflictswith the core tasks we believe it should be in business to deliver. We thereforerecommend that its statutory mandateshould be amended and refocused so thatthe Commission’s two principal statutoryduties are as regulator of political partyfunding and campaign expenditure; and as a regulator of electoral administration;with the stated aim of ensuring integrityand public confidence in both. Werecommend that certain current statutoryduties of the Commission are removed orsignificantly curtailed so it can focus onthese fundamental roles.

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Regulation of political party funding andcampaign expenditure

3.2 In order to ensure that the Commission hasthe necessary clarity of mandate andarrangements to ensure a proactive risk-based approach to the regulation ofpolitical party finance, we make a numberof further recommendations, mostsignificantly:

• removal of any uncertainty about theregulatory role Parliament requires theCommission to play – it should no longerbe required in statute to “monitor” butto “regulate”;

• establishment of a compliance unit within the Commission, separate from theadministration of the regulations, whichcan take prompt, proportionate,investigative action;

• adoption by the Commission of thepractice of issuing advisory opinions onareas of uncertainty and lack of clarity inthe law, based upon sound competentlegal advice; and

• the introduction of a system of financialpenalties which can be applied by theCommission for non-compliance, with anappropriate appeal mechanism. Thiswould supplement the existing criminalsanctions that would continue to applyfor the most serious breaches.

3.3 However, these measures on their own willnot produce the necessary transformationof the Commission to a strategic risk-basedregulator. This will also require leadership,a change of culture, and staff with thenecessary specialist skills and experience toperform this role. The recommendationsthat result from Sir Hayden Phillips’ review may also add to the Commission’sregulatory tasks in this area and theCommission must consider carefully howbest it can effectively deliver these. Where,for example, there may be a requirementfor a programme of risk-based audit, theCommission must consider contracting thisout to an organisation such as the NationalAudit Office, which already has the skillsand experience in this field.

Regulation of electoral administration

3.4 We have aimed to build upon the measurescontained in the Electoral AdministrationAct 2006 which, for the first time, providedthe Commission with a regulatory role inrespect of electoral administration throughthe responsibility to set performancestandards for local authorities. TheCommittee recommends that, in light ofthe significant concerns about the variationin standards of electoral administration,this role is strengthened and deepened.Most importantly we recommend thecreation of regional electoral officers, asstatutory office-holders in each of regionsin England, and in Wales and Scotland.Their responsibility will be to monitor andreport on performance standards and, in co-operation with local authorities, to driveup standards of electoral administration ineach region. In extreme cases, where therehas been a failure to agree or to implementmeasures for improvement in a particularlocal authority, the regional electoralofficers, via electoral commissioners, shouldbe able to request the Secretary of State toexercise powers of direction over particularelectoral officers.

3.5 The regional electoral officers are thereforecritical to the regulatory framework thatwe propose for electoral administration.Equally important will be the performancestandards themselves which must beproportionate and based on outcomes, notprocess. We believe the Commission shoulddevelop these standards working closelywith local authorities and also with theAudit Commission, which has extensiveexperience in this area. Further, theCommission, for this part of its mandate inEngland should be included in the ‘family’of regulators that will come under theAudit Commission’s ‘Lead Inspectorate’framework.

3.6 In light of the Commission’s regulatory role in electoral administration we haveconcluded that to enable a clear focus and to avoid potential conflicts, theresponsibility for directing funding ofelectoral administration and of electionsshould remain with central government.However, levels of funding provided forelectoral administration should form partof the Commission’s considerations whenreporting on the performance of individuallocal authorities.

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Electoral Boundaries

3.7 The Committee agrees with The ElectoralCommission that it should withdraw fromall boundary-setting work. In reaching thisconclusion the Committee has been guidedby “if its not broken then don’t fix it”; andthe current process has been shown to beimpartial and independent. Nor do webelieve it is necessary for the Commissionto have an oversight role concerning theboundary commissions. However, we dobelieve that there are significant benefitsfrom having joint secretariats of therespective parliamentary and localboundary commissions in England,Scotland, Wales and Northern Ireland.

3.8 During the inquiry the Committee receivedstrong evidence pointing to deficiencies inthe rules governing the review ofparliamentary boundaries and the lengthof time such reviews take. These are seriousproblems which can undermine ourelectoral system and must be addressed.Following the recent completion of thefifth general review, the opportunity existsnow for a review of the rules that could beimplemented in time for the sixth generalreview due around 2012. We recommendthat the Speaker’s Committee shouldcommission such a review.

Increasing participation in the democratic process

3.9 The Commission’s statutory duty –supported by a ring-fenced £7.5m perannum budget – to increase participation inthe democratic process does not, in theCommittee’s view, support or fit with itscore regulatory tasks. It is clear that theCommission has performed this role withgreat professionalism and its work is widelyrespected by experts in this field. Howeverthe evidence of any impact of this work, interms of increased turnout at elections, isat best mixed. Some have argued there hasbeen negligible impact. The Commission’sown work suggests that it is competitivepolitical parties that motivate people toexercise their right to vote. We thereforerecommend that this broad statutory dutybe removed from the Commission.However, we recognise the importance ofcreating effective public informationcampaigns and publicity on the mechanicsof the electoral process. The Commissionshould retain this duty as it is clearly alliedto its core role.

Policy development and advice

3.10 In the Committee’s view, the Commission’sresponsibility to develop policy on electoralmatters sits uncomfortably and ispotentially in conflict with its core role as aregulator of electoral matters. TheDepartment of Constitutional Affairs nowhas the capacity to develop electoral policyon behalf of the Government which iswholly appropriate. This responsibilityshould therefore be removed from theCommission’s mandate. We stronglybelieve, however, that the Commissionshould continue to advise on the suitabilityof existing and new electoral legislationbut in respect of its core duties – that is, toensure integrity and public confidence inthe electoral process.

4. Governance

4.1 Striking the right balance betweengovernance arrangements that ensureindependence and impartiality, and theneed for contemporary experience andknowledge of the sector, is a challengefaced by all regulators. But getting theright balance is critical. It will help secure the confidence of the public and those beingregulated, demonstrate independence andimpartiality, and ensure the regulator’scompetence to fulfil its mandate.

4.2 The restrictions governing who can be anemployee of the Commission or become anelectoral commissioner has, in our view, ledto a shortfall in experience and knowledgeof the contemporary political process in theCommission. Evidence gathered during thisinquiry shows that this has reduced theconfidence of political parties andpoliticians who are subject to regulation,and this in turn has had an impact on theCommission’s effectiveness. We havetherefore recommended a relaxation ofthese restrictions that will:

• avoid direct conflicts of interest;

• maintain the independence andimpartiality of the Commission;

• retain the unified nature of the board ofcommissioners, also taking account of thedevolved administrations;

• enable the appointment of staff whohave direct contemporary experience andknowledge of politics and politicalparties; and

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• enable the appointment of a minority ofcommissioners who also have directcontemporary experience and knowledgeof politics and political parties.

4.3 We also believe that the chair andcommissioners should now play an explicitlynon-executive role in their governance ofthe Commission. Under the chair’sleadership, the commissioners must nowassume collective responsibility, as non-executive board members, for setting the Commission’s overall strategy andoverseeing its effective delivery by theexecutive team. Finally, we recommend that the Speaker’s Committee shouldoversee the process of appointing the chair and commissioners, and that theseappointments are made through an open,competitive and independent process inline with the requirements of theCommissioner for Public Appointments.

5. Accountability

5.1 Establishing effective accountabilityarrangements for The Electoral Commissionpresents a particular challenge. As amechanism the Speaker’s Committee does,in principle, strike the right balancebetween holding The Electoral Commissionto account for the use of public money infulfilling its statutory functions andprotecting its independence andimpartiality from possible undue influencefor partisan political electoral advantage.

5.2 However, evidence and experience indicatesthat the Speaker’s Committee couldoperate more effectively if its deliberationswere made more transparent and if moreresources were made available to supportit. We have made recommendations thatwe believe will enable this.

5.3 The Committee also considers that moreformal arrangements should be put in placefor The Electoral Commission to give awider account of its activities to Parliament.These would significantly improve theengagement between the Commission andMembers of Parliament. The Committeebelieves that this can be achieved if theConstitutional Affairs Select Committee(CASC) were to become the mainmechanism through which the Commissioncan account for its performance toParliament; and also by holding regularparliamentary debates about theCommission’s work.

6. Integrity of the electoral process

6.1 Maintaining integrity in the electoralprocess is central to the success of theCommission’s work. During the inquiry wereceived evidence regarding some wellpublicised concerns about the electoralprocess including:

• the introduction of postal voting ondemand, the subsequent piloting of all-postal voting and the most recentchanges to postal voting;

• incidents of electoral fraud andperceptions that this may be increasing;and

• the accuracy and comprehensiveness ofthe electoral register, and the system ofelectoral registration itself.

6.2 We recommend that in future The ElectoralCommission must spell out, clearly andpublicly to government and Parliament, ifproposed changes to electoral law have thepotential to undermine confidence in orthe integrity of the electoral process.

6.3 Electoral fraud is a serious matter and theCommittee believes that the politicalparties and Parliament should becontinually vigilant about any threats toour democratic processes. Evidencepresented to the Committee, and cases thathave gone to court, indicate that electoralfraud is, if not entrenched, then a seriousproblem in certain groups, and affectingparticular communities. We believe it isessential for The Electoral Commission toseek to minimise this problem as a key partof its regulatory approach. Regionalelectoral officers, working closely withelectoral administrators, will have a criticalrole in identifying weaknesses in currentpractices and improving standards of fraudprevention and detection.

6.4 Finally, the system of electoral registrationis perhaps the most critical element of theelectoral administration process. It istherefore essential that the electoralregister and the system of electoralregistration retains the trust andconfidence of both the electorate andpolitical parties. There appears to be aconsensus among political parties, TheElectoral Commission and most electoraladministrators that individual registration,as opposed to registration completed andsigned by one named person in the

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household, is likely to be a more accuratemeans of registering eligible voters.Individuals would then be responsible fortheir own registration in order to vote.There are however differences of view as to the pace at which such an importantchange should be made. We recommendthat the decision should be made now tointroduce a system of individual voterregistration that includes an additional,objective, personal identifier, immediatelyfollowing the next General Election or by2010 at the latest.

7. Resources

7.1 In the current financial year (2006/07) theCommission is expecting to spend about£27.4 million under its current statutorymandate [8]. In the Committee’s view,savings made from our proposals to removeor significantly curtail a number of itscurrent statutory duties will offset theadditional resources required to implementour recommendations for a strategic andproactive regulatory approach and the newframework of regional electoral officers.Clearly where functions continue but are be transferred, such as for English localgovernment boundary reviews, then theexpenditure will also transfer, although we anticipate some savings from jointboundary commission secretariats.

7.2 The budget for increasing voterparticipation, £7.5m per annum, will befreed up and could be used to help fundthe introduction of individual registration.The evidence received on this issue firmlypointed to increasing voter participation asbeing principally the responsibility of politicalparties. However it is unlikely that politicalparties have the capacity to do any morespecific work in this area than they doalready. Therefore, the question of somelimited public funding arises. This fallsclearly to Sir Hayden’s Phillips’ review ofpolitical party funding, whose remit includesconsideration of increased state funding ofpolitical parties. The Committee has alertedSir Hayden to its conclusions in respect ofthe Commission’s mandate on voterparticipation and no doubt he will considerthis issue as part of his wider review.

8. Conclusion

8.1 An effective Electoral Commission is anecessary and vital part of the moderninstitutional architecture. Its core dutiesshould be as a regulator to ensure integrityand public confidence in the electoralprocess and in the framework that governsthe political party funding and campaignexpenditure. Through a combination ofdeficiencies in its current mandate, that istoo weak in some areas and too broad inothers, combined with a lack of courage,competence and leadership in its regulatoryand advisory approach, it has notsuccessfully performed these core duties.This has contributed to a loss of confidenceby the public and political parties in theintegrity of both the electoral process, andin political party funding and campaignexpenditure. As to the former, theCommission should have shown greaterfocus and courage in alerting the risk tothe integrity of the system from legislativechanges, principally postal voting ondemand. On the latter, its passive regulatory approach has led to regulatory failure onthe issue of loans to political parties.

8.2 The Committee has therefore made a rangeof recommendations designed to refocusthe mandate of the Commission on thesetwo core duties and to provide theframework that will enable it to deliver thismandate successfully. Implementation ofour recommendations will not, however, ontheir own be sufficient to avoid the problemsthat have arisen in the last five years.

• First, government, Parliament andpolitical parties have a duty to heed and consider with care the advice theCommission will give on the potentialimpact of changes to our electoral lawupon the integrity and public confidencein the electoral process; and

• Second, political parties also have aresponsibility, not just to endeavour tocomply with the letter of the regulatoryframework, but also with the spirit oftransparency that underpins it. Theregulatory framework was established tohelp eradicate grounds for suspicions andcriticism about the way they are funded;it was agreed by all parties and passed bya parliament made up of representativesof all major parties. Public scepticism isjustified if parties are subsequently seento avoid or circumvent the principle of transparency.

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References

1. Review of The Electoral Commission, Issuesand Questions Paper, The Committee onStandards in Public Life, February 2006.

2. Committee’s Fifth Report, The Funding ofPolitical Parties in the United Kingdom (Cm4057- October 1998).

3. Political Parties, Elections and ReferendumsAct 2000, c41.

4. The Review of the Funding of PoliticalParties: Terms of Reference available fromwww.partyfundingreview.gov.uk.

5. Dr Michael Pinto-Duschinsky, BrunelUniversity, written evidence to the inquiry41/1.

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

7. The Review of the Funding of PoliticalParties: An interim assessment, Sir HaydenPhillips, October 2006.

8. The Electoral Commission, 2006.

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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 2007/08in PPERA should be amended and refocused so that it forward legislative parliamentaryhas two principal statutory duties: as regulator of political changes to PPERA sessionparty 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 2007/08Electoral Commission has a duty to investigate proactively forward legislative parliamentary allegations or suspicions of failures to comply with the changes to PPERA sessionregulatory framework. We recommend that the term “monitor” be replaced by “regulate”.

R3. The Electoral Commission should establish a Electoral Commission Within one yearcompliance 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 yearcompliance 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 Immediateof 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 yearresponsibility for monitoring and regulating campaign and constituency expenditure in Scotland, Wales and Northern Ireland to its regional offices.

LIST OF RECOMMENDATIONS

10


CHAPTER 2: MANDATE (continued)


Regulation of political party funding and expenditure (continued)

R7. The Government should consider introducing a system Government to bring During 2007/08of financial penalties, with an appropriate appeal forward legislative parliamentarymechanism, that could be applied by the Electoral changes to PPERA sessionCommission 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 2007/08results in greater frequency of reporting on donations, or forward legislative parliamentaryother additional reporting requirements, the Government changes to PPERA sessionshould consider a lighter reporting regime for very small political parties that have no representation at European,national, devolved or local level.


R9. The posts of regional electoral officers (REOs) should Government to bring During 2007/08be established in statute, accountable through the chief forward legislative parliamentaryexecutive to the electoral commissioners, with the changes to PPERA sessionresponsibility 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 2007/08be maintained in every part of Great Britain. Regional forward legislative parliamentaryelectoral officers should be appointed for Scotland and changes to PPERA sessionWales 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 yearenacted 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 yearon 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.

11




Regulation of electoral administration (continued)

R13. The Electoral Commission should report to Parliament Electoral Commission First Reportannually on standards of electoral administration, during 2007/08including any action it is proposing to tackle areas of parliamentaryunderperformance in relation to electoral registration, sessionthe 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 yearshave been successfully established in the rest of the changesUnited Kingdom.

Funding of electoral administration and elections

R15. The current funding arrangements for electoral Government Within one yearadministration 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 yearof 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 2007/08any involvement in electoral boundary matters and the forward legislative parliamentaryprovision in PPERA to allow the transfer of boundary- changes to PPERA sessionsetting functions to the Commission should be repealed.

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

R19. The Parliamentary Boundary Commission and local Parliamentary Within one yearboundary commission in each of the four home countries Boundary Commissionsshould share joint secretariats. and local government

boundary commissions

12




Electoral boundaries (continued)

R20. There is strong case for the current legislation in Speaker’s Committee The review torelation to the conduct of parliamentary boundary work begin by theto be reviewed and where necessary amended before end of 2007the 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 2007/08defined statutory duty for the provision of public forward legislative parliamentaryinformation on the mechanics of the electoral process changes to PPERA sessionincluding 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 2007/08wider statutory duty to encourage participation in the forward legislative parliamentarydemocratic process. session


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

13




Policy development and advice (continued)

R24. The Electoral Commission should continue to provide Government to bring During 2007/08advice on the suitability of existing and new electoral forward legislative parliamentarylegislation 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 2007should 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 2007/08on the conduct of elections should be extended to cover forward legislative parliamentarylocal elections in Northern Ireland, Scotland and Wales. changes to PPERA session

14


CHAPTER 3: GOVERNANCE


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

R28. The total number of commissioners (including the Government to bring During 2007/08chair) 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 2007/08electoral commissioner should be revised for four forward legislative parliamentarycommissioner appointments to enable the appointment changes to PPERA sessionof 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 yearsnew 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 OngoingScotland 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 yearspart-time non-executive role. Commissioners should also be non-executive and part-time.

15


CHAPTER 3: GOVERNANCE (continued)


R33. PPERA should be amended to make clear that Government to bring During 2007/08responsibility for the oversight of the recruitment and forward legislative parliamentaryselection process for electoral commissioners lies with changes to PPERA sessionthe 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.

16


CHAPTER 4: ACCOUNTABILITY


R34. Evidence-gathering meetings of the Speaker’s The Speaker’s ImmediateCommittee should be held in public and the transcripts Committeepublished. 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, Immediateperforms for the Boundary Commissions, standing back the Speaker’sfrom the day-to-day running of the Committee. A senior Committeeback 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 Immediatea formal role to scrutinise The Electoral Commission’s Committeeannual financial plans and to advise the Speaker’s Committee.

R37. There should be an annual debate in Parliament on The Speaker’s Immediatethe work of The Electoral Commission. It might be helpful Committeeif 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 Immediateshould build upon its emerging practice of taking regular Constitutional Affairsopportunities to scrutinise The Electoral Commission’s policies, actions and decisions.

17


CHAPTER 5: INTEGRITY OF THE ELECTORAL SYSTEM


R39. The Electoral Commission should undertake detailed Electoral Commission Within eighteenresearch into the scale of electoral fraud in the United monthsKingdom.

R40. The Electoral Commission should, as part of its Electoral Commission By November statutory reports on the 2007 Elections, include a specific 2007section 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 2007/08Commission’s views (see R24) on proposed primary parliamentaryand secondary legislation on electoral issues should sessionaccompany the draft legislation when it is introduced into Parliament.

R42. A decision should be made and legislation developed Government Within one yearto 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 2010to 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 2010the new system should include a focus on measures to minimise under-registration.

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

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

18


The Committee and its terms of reference

1.1 The Committee on Standards in Public Lifewas set up in October 1994 by the thenPrime Minister, the Rt Hon Sir John MajorKG CH. Its terms of reference are:

To examine current concerns aboutstandards of conduct of all holders ofpublic office, including arrangementsrelating to financial and commercialactivities, and make recommendations as toany changes in present arrangements whichmight be required to ensure the higheststandards of propriety in public life.

1.2 On 12 November 1997, the present PrimeMinister, the Rt Hon Tony Blair MP,announced additional terms of reference:

To review issues in relation to the fundingof political parties, and to makerecommendations as to any changes inpresent arrangements.

1.3 The Committee has published ten reports.They are listed at Appendix C. Furtherinformation about the Committee is at theback of this report, which also includes itsmembership during this Eleventh1 Inquiry.

The purpose and scope of the inquiry

1.4 The Electoral Commission occupies animportant position in the institutionalarchitecture designed to secure highstandards and build trust in the democraticprocess. The Commission was established asan independent statutory authority on 30November 2000. This followed therecommendations of the Committee’s FifthReport, The Funding of Political Parties inthe United Kingdom [1] and thesubsequent commencement of the PoliticalParties, Elections and Referendums Act2000 [2]. Through its work, the Commissionhas the stated aim of gaining publicconfidence and encouraging people to take

part in the democratic process within theUnited Kingdom. Unlike many electoralcommissions outside the United Kingdom, itdoes not have responsibility for maintainingand updating electoral rolls, employingelectoral services staff, or conductingparliamentary or local elections.

1.5 The Commission is headed by a chairmanwith four other commissioners, none ofwhom can have had any connection to anypolitical party in the previous ten years. TheCommission is not accountable to theGovernment, but reports directly toParliament through a committee chaired bythe Speaker of the House of Commons (‘theSpeaker’s Committee’). The Commission hasa UK-wide remit and has offices in London,Edinburgh, Cardiff and Belfast.

1.6 The Commission’s mandate encompassesboth executive and advisory functions andis wider than that envisaged in theCommittee’s Fifth Report [1]. TheCommission is responsible for overseeing a number of aspects of electoral law: theregistration of political parties; themonitoring and publication of significantdonations to registered political parties;powers to investigate possible breaches ofthe donations regulations; the regulationof national party spending on electioncampaigns; and a partially commenced rolein setting electoral boundaries. TheCommission also has a number of rolesrelating to the conduct of referendumsheld in the UK; promoting voter awareness;advising those involved in elections onpractice and procedure; and reporting onthe administration of every major election.

1.7 In the current financial year (2006/07) theCommission is expecting to spend about£27.4 million of which [3]:

• £12.3 million is for encouraging citizenparticipation in the democratic processand on voter education about theelectoral process;

19

Introduction

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

CHAPTER 1INTRODUCTION

• £10.1 million is for advice and guidanceabout registration and electionmanagement to local authorities;boundary reviews; and the developmentof performance standards for localauthorities;

• £2.2 million is for regulatory activitiesconcerned with the registration, fundingand the expenditure of political parties;and

• £2.8 million is for administrative costs.

1.8 The executive and advisory mandate of TheElectoral Commission therefore has astrong impact on issues such as electoraladministration, conduct of elections andstandards of propriety in financing politicalparties. Each of these issues has been thesubject of recent public concern, and eachaffects the way people engage in politicsand the broader question of politicallegitimacy.

1.9 For these reasons the Committee believed itwas important to ask now, some five yearsafter its creation and following the secondgeneral election to be held since itsestablishment, whether the Commission’smandate, governance arrangements andaccountability framework are fit for thepurpose required of the Commission [4].

1.10 This inquiry is not a review of how orwhether the recommendations in theCommittee’s Fifth Report have beenimplemented by the Government or others.Rather, it is an assessment of how TheElectoral Commission can best deliver theoutcomes required by legislation governingelections and political parties. The secondnational survey of public attitudespublished by the Committee in September2006 [5] again highlighted the public’sstrong expectation that public office-holders should admit and, mostimportantly, learn from their mistakes. Ouraim in this report is to do just that and in away which bolsters a culture of continuousimprovement in securing high standards,not a culture of blame.

The inquiry process

1.11 The work of the Committee is evidence-based. Where conclusions are reached andrecommendations made they are on thebasis of an analysis of the evidence received

and generated during an inquiry. Evidencefor this inquiry has come from three mainsources: written submissions, publichearings, and specifically commissionedresearch. The Committee has also drawnupon its own previously published workand on relevant work published by otherbodies. All sources are referencedthroughout the report.

Written submissions

1.12 With the publication of the Issues andQuestions Paper [4] on 16 February 2006,the Committee invited written submissionson any or all of the selected areas(paragraph 1.9 above) and in respect ofsome specific questions. The paper wascirculated widely to both Houses ofParliament, to members of the devolvedadministrations in Northern Ireland,Scotland and Wales, to all local authoritiesand to all registered political parties. Thepaper was distributed to a number ofacademics and other politicalcommentators as well as to those membersof the public who showed an interest inour work. The paper was also available onthe Committee’s website. Seventy-eightsubmissions were subsequently received. All written submissions can be found on the CD-ROM which forms part of this reportand on the Committee’s website (except, inaccordance with the Committee’s long-standing procedure, those which we wereasked to treat as confidential or those weconsidered might be defamatory). A list ofthose who submitted written evidence is atAppendix A. The CD-ROM also contains acopy of this report, transcripts of the oralevidence and copies of the researchcommissioned to support the inquiry. In thisreport, references to the written evidencegive the submission number and the pagebeing referenced, for example, [23/4].

Public hearings

1.13 Between June and October 2006, theCommittee took evidence at 12 sessions ofpublic hearings in London, Belfast, Cardiff,and Edinburgh. Appendix B carries a list ofthe 83 witnesses who gave evidence, eitheron their own behalf or in a representativecapacity. In this report, references to thetranscripts provide the date of the hearingand the paragraph number on thetranscript, for example [13/06/06, 41].

20


Supporting research

1.14 Within its modest resources, the Committeedecided to commission (through acompetitive process) two pieces of researchcovering two areas of the Commission’smandate (both published in full on the CD-ROM and on the Committee’s website).

1.15 The first piece of research was undertakenby Dr David Butler and Professor IainMcLean of Nuffield College, Oxford on The Electoral Commission and theRedistribution of Seats. This was basedupon an extensive reading of the BoundaryCommission reports and of the academicliterature. It was also informed by a one-day seminar attended by representatives ofthe Boundary Commissions and otherstakeholders. The research is discussed inthe section, Electoral boundaries, inChapter 2.

1.16 The second piece of research wasundertaken by Dr Justin Fisher of BrunelUniversity on Proposals for the funding ofpolitical parties in the context of TheElectoral Commission’s existingresponsibilities for the regulation ofdonations to political parties. This wasbased upon desk research and four semi-structured interviews with senior ElectoralCommission staff. The research is discussedin the section, Regulation of political partyfunding and expenditure, in Chapter 2.

Study visits

1.17 During May 2006 a small group ofCommittee members visited Canada andthe USA to learn about the mandate,governance and accountability ofcomparable institutions. These were chosenbecause they exemplified differingapproaches to both electoral administrationand political party funding and campaignexpenditure. A summary of the mainfindings from the study visit can be foundin Volume 2 of the report on the CD-ROM,as well as on the Committee’s website.

1.18 Small groups of Committee members alsovisited a range of local authority electoraladministration offices during October andNovember 2006 to observe theadministration and registration process atfirst hand. We visited the London Boroughof Hammersmith, Southampton CityCouncil, Huntingdon District Council,

Renfrewshire Valuation Joint Board and theChief Electoral Officer for Northern Ireland.

1.19 The Committee would like to express itsgratitude to all those who gave us theirtime and insights during these visits.

Structure of the report andrecommendations

1.20 The main part of the report is set out in thefollowing four chapters. The first threecover The Electoral Commission’s mandate,governance and accountably, respectively.The final chapter covers the Committee’sobservations and recommendations onsome critical aspects of the integrity of theelectoral process itself. There is anexecutive summary that includes aconsolidated list of all the Committee’srecommendations.

Context of the inquiry

1.21 The inquiry took place against a backdropof continuing public concerns about: thearrangements for voter registration; postalvoting on demand, and the link to anumber of high-profile legal cases onelectoral fraud; and allegedlycircumventory loans to political parties withallegations that these were connected tothe awarding of honours.

1.22 These concerns directly relate to two keypillars of our democratic system that wereconstantly referred to during the inquiryand have formed the principles againstwhich the standards we wish to seeachieved in the areas of interest may bemeasured:

1.23 Free and fair elections. Effective electoraladministration is one of the keystones ofdemocracy. There cannot be democracywithout elections and elections cannot befree and fair unless electoral rules are fairand coherent, unless they are properlyadministered and unless they are activelyenforced [6]. Core functions that must beeffectively undertaken to achieve this are:

• ensuring that everyone who is entitled tovote is included on the electoral registerbefore an election and that everyoneregistered can exercise their vote, insecrecy if they wish. The right to registerand the right to vote is an equal right forthose who are eligible and should be

21

Introduction

kept as simple as possible and anybarriers kept to a minimum whilstensuring that;

• everyone not entitled to vote is excludedfrom the register and from voting. Votingfraud should be minimised by avoidingrules that facilitate such fraud and byproactive deterrence and enforcement;and

• determining electoral boundaries in away that is fair to electors, non-partisan,immune from political interference and upto date with population movements [7].

1.24 Healthy, competitive political parties.Political parties are essential to democracy.We elect a government through aparliamentary democracy which is notabout voting on single issues but about a wide range of important choices andpriorities. [8]. The way in which politicalparties are funded, and how those fundsare expended, are therefore a matter oflegitimate public interest. People ask who is paying? And how much? In return forwhat? Is it British or foreign money? [1].A regulatory framework for the funding of political parties has therefore beenrequired to eradicate the grounds forcriticism and suspicion which leads to public scepticism, and damages the politicalparties. The successful implementation ofthe regulatory framework, however, dependsupon the approach taken by the regulatorwho must:

• show courage, confidence andcompetence in pursuing an independentand impartial approach to ensuringcompliance with the regulations. It mustaccept that it will not always be popularwith the parties and that pressure, overtand covert, will always be applied inattempts to influence its approach. It mustuse a risk-based approach to decisionsand actions2; and, at the same time

• recognise that political parties are muchmore like large voluntary organisationsthan organisation in the public or privatesector usually subject to regulation.Behind each career politician stands aregiment of dedicated voluntary partyworkers. Even the local treasurers andelection agents (who are subject toregulation) of the largest parties aremostly volunteers. The approach of the

regulator must be sensitive andproportionate to the voluntary nature ofmuch of political parties’ infrastructure.

1.25 It is within this framework that theCommittee has considered the role of TheElectoral Commission.

Developments since 2000

1.26 It is important to recognise that there havebeen a significant number of developmentsin the political and electoral environmentover the last five years that have presentedthe Commission with some profoundchallenges and had a direct effect on itswork. Some of these issues were unforeseenwhen the Commission was created; somehave arisen because of legislative changes;and some have resulted from workundertaken by the Commission itself. It istherefore important to reflect upon thecontext in which it has operated over thelast five years.

Legislative changes

1.27 Since 2000 there have been more majorchanges to the electoral system in theUnited Kingdom than at any time since thecurrent system came into being in the 19thcentury. These have included:

• the introduction of postal voting ondemand in Great Britain;

• all postal ballots in parts of Great Britainfor certain elections;

• extensive piloting of different votingsystems and changes to the conduct ofelections;

• the introduction of individual registrationin Northern Ireland together with anumber of anti-fraud measures includingphotographic identification at pollingstations;

• the Electoral Administration Act 2006which among other things has given TheElectoral Commission the power to setperformance standards for localauthorities; and

• the Miscellaneous Provisions (NorthernIreland) Act 2006 which has abolished theannual canvass for electoral registrationand given the Chief Electoral Officer for

22


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 theconfidence the public and political parties have in the regulatory framework.

Northern Ireland powers to access dataheld by other public sector bodies toenable him to maintain an accurate andcomprehensive register.

1.28 These legislative changes have had and willcontinue to have far-reaching implicationsfor electoral administration throughout theUnited Kingdom both for electoralregistration and the conduct of elections.The Electoral Commission has been a keyplayer in advocating change and advisingthe Government on implementation issues.

Participation in the electoral process

1.29 Another significant feature of the last fiveyears has been the continuing perceptionof growing apathy and cynicism by thepublic towards the democratic process ingeneral and traditional forms of politics inparticular. Evidence cited for this are thelow turnouts for the General Elections of2001 and 2005 (59% and 61% respectively)and the continued fall in membership of allthe major political parties. It is against thisbackdrop that The Electoral Commissionhas undertaken its statutory role toincrease participation in the democraticprocess with a ring-fenced budget of £7.5million per annum. Also the Government,and the Commission, believed that puttingin place new arrangements to make votingeasier (see 1.27 above) would increaseturnouts and interest in the politicalprocess. The Electoral Commission played amajor role advising on and implementingthe ‘modernisation’ agenda, particularly inoverseeing electoral pilots and the use ofpostal voting on demand.

Electoral fraud

1.30 However, some commentators believe thata by-product of making the process ofvoting easier has been perceived loss ofconfidence in the integrity of the electoralsystem. The well publicised issue ofelectoral fraud relating to postal voting didnot help this. Indeed, there were a numberof major court cases where individuals werefound guilty of committing electoral fraudthrough the abuse of postal voting.

1.31 Before 2000 reported instances of electoralfraud in Great Britain were extremely rare,and confidence levels in the security of theelectoral process were high. Electoral fraudwas perceived only as a problem in

Northern Ireland which is why theGovernment put in place new anti-fraudmeasures through the Electoral Fraud(Northern Ireland) Act 2002. However,following a number of high-profile courtcases it became evident that, while notnecessarily widespread, pockets oforganised electoral fraud were taking placemostly in urban areas.

1.32 The Electoral Commission duly beganworking closely with electoraladministrators and the police on ways ofcombating fraud. The ElectoralAdministration Act 2006 also contains anumber of measures aimed at makingfraud more difficult, including a newrequirement for voters to provide personalidentifiers if they want to vote by post.

Transfer of electoral policy to the Departmentfor Constitutional Affairs

1.33 For many years electoral policy was theresponsibility of the Home Office whichwas the sponsoring department for thePolitical Parties, Elections and ReferendumsAct 2000 (PPERA). However, followingmachinery of government changes in 2003,responsibility for electoral policy wastransferred to the new Department forConstitutional Affairs (DCA). Over the lastthree years the Electoral Policy Unit in DCAhas expanded and developed a stronger-policy making capacity than existed whenpolicy was the responsibility of the HomeOffice.

Loans to political parties

1.34 The issue of widespread financing ofpolitical parties through substantial loanswas first reported during the 2005 GeneralElection [9] and raised concerns that, at thevery least, the spirit of the rules ontransparency of parties finances was beingcircumvented. This was one of the currentconcerns that led to this inquiry [4,10]. Theissue became a matter of major publiccontroversy in March 2006 when the fullscale of the loans began to emerge andallegations were made of a link to theawarding of honours and the possibilitythat the loans were not made oncommercial terms. Under PPERA, thebenefit accrued by loans on a non-commercial basis are treated as a donationand subject to the rules on disclosure. As aresult of the controversy the Electoral

23

Introduction

Administration Act 2006 made all loanssubject to disclosure. It now appears thatthe total amount of loans to the mainpolitical parties current at the 2005 General Election was over £30 million,predominantly to the Labour andConservative parties. At the time ofprinting this report, a police investigationcontinues into the allegations of a link to the awarding of honours (under theHonours (Prevention of Abuses) Act 1925)and any possible breaches of PPERA.

Review of the funding of political parties

1.35 The controversy over loans to politicalparties resulted in the Prime Ministerasking Sir Hayden Phillips to conduct areview of the funding of political parties inMarch 2006. The terms of reference for thereview are:

To conduct a review of the funding ofpolitical parties.

In particular:

• to examine the case for state funding ofpolitical parties including whether itshould be enhanced in return for a capon the size of donations;

• to consider the transparency of politicalparties’ funding; and

• to report to the Government by the endof December 2006 with recommendationsfor any changes in the currentarrangements.

At the time of going to print, theconclusions of the review had not yet beenpublished, although an interim assessment[8] was published in October 2006summarising the main options underconsideration. The Committee has liaisedclosely with Sir Hayden in order to ensurethat any proposals we make concerning theregulatory role of the Commission wouldapply equally should the regulatoryframework be extended to include any ofthe options under consideration.

Summary

1.36 This inquiry took place at a time of dynamic and critical change affecting ourdemocratic system. We have endeavouredto make our recommendations tocomplement recent legislative reform while seeking to ensure the maintenance of fundamental principles that haveunderpinned our democratic system forwell over 100 years.

The framework within which theCommittee works

1.37 This Committee is an advisory body only. It reports to the Prime Minister but sets itsown programme after consultation betweenthe Committee and the Government. It hasno legal powers. It cannot summon witnessesto appear before it. It has no powers ofenforcement and has, therefore, no powerto impose any of its recommendations.

Acknowledgements

1.38 We would like to record our thanks tothose who took the time and trouble tomake a written submission, or whoprovided additional evidence at our requestand in particular those who appearedbefore us to give oral evidence. We werefortunate to receive evidence from a widerange of well-informed witnesses whoseexperience and insights have provedextremely valuable. We would also like to thank Dr Butler and Professor McLean,Nuffield College Oxford and Dr Pinto-Duschinsky, Brunel University, for theiradvice and assistance in the preparation of this report.

24


References

1. Committee’s Fifth Report, The Funding ofPolitical Parties in the United Kingdom (Cm4057- October 1998).


3. The Electoral Commission 2006.

4. Review of The Electoral Commission, Issuesand Questions Paper, The Committee onStandards in Public Life, February 2006.

5. Survey of Public Attitudes towards conductin public life 2006, prepared by Ipsos/MORIfor the Committee on Standards in PublicLife, September 2006.

6. Dr Michael Pinto-Duschinsky, BrunelUniversity, written evidence to the inquiry41/1.

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

8. The Review of the Funding of PoliticalParties: An interim assessment, Sir HaydenPhillips, October 2006.

9. The Times 21 April 2005.

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

25

Introduction

26


Overview

2.1 Defining the mandate of The ElectoralCommission is at the heart of this inquiry.Ensuring the effectiveness of theCommission’s governance andaccountability arrangements are essentialbut it only matters if this body’s remit iscrystal clear.

2.2 The Electoral Commission was createdfollowing a recommendation by thisCommittee in its Fifth Report [1]. TheCommittee recommended that the primaryfocus of the Commission should be as theregulator of the new arrangements forparty political finance. However, themandate set by the Government for TheElectoral Commission and legislated for byParliament in Political Parties, Elections andReferendums Act 2000 (PPERA) [2] isbroader than originally envisaged and verywide in scope. It ranges from theregulation of political donations andexpenditure by political and third partiesthrough to promoting greater participationin the democratic process and havingresponsibility for electoral policy reviews.

2.3 This chapter examines in detail whether thecurrent mandate of The ElectoralCommission as set-out in PPERA is stillappropriate, not only in relation to howeffective the Commission has been but alsoas concerns changes in the last five years tothe wider environment in which theCommission has operated.

Record of The Electoral Commission

2.4 Some evidence received by the Committeeclearly indicates that The ElectoralCommission has made a positive impactsince its creation. In particular, its adviceand guidance on electoral issues hasgenerally been welcomed by electoraladministrators and some politicians. Itspresence has also helped to highlight the importance of electoral issues to thedemocratic process.

2.5 Other evidence received by the Committee,however, raises concerns about theCommission’s overall impact, as follows:

• it is seen as lacking the leadership,knowledge and courage to enforce itsregulatory duties in relation to politicalparty funding and campaign expenditure;

• it has paid too much attention to routineadministration in its regulatory role at theexpense of proactive, risk-based compliancework which would identify areas of theregulatory framework open to potentialabuse. It has been particularly criticised inrelation to how it has regulated campaign expenditure and reacted to the ‘loans topolitical parties’ issue;

• the very wide breadth of theCommission’s mandate has led to aconcentration on ’softer’ issues such as policy development and voterparticipation work at the expense of a ’harder edged’, more contentiousregulatory and advisory role; and

• the breadth of this mandate has alsointroduced potential conflicts betweenencouraging voter participation – inkeeping with the Commission’s wish toassist the Government in the process ofelectoral modernisation – and focusing on the integrity and effectiveness of theelectoral process.

2.6 The Commission did acknowledge in itsevidence that sometimes it has not got thebalance right, and that now is the right timeto make a judgement about the direction itshould follow in the future:

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CHAPTER 2MANDATE OF THE ELECTORAL COMMISSION

Mandate of the Electoral Commission

I really think what we are beginning tohome in on is that the core of what theCommission is better placed to do… I thinkthat plays out in terms of a core focus onthe regulation of political parties… Thesecond is supporting improvements ofstandards in electoral administration.[Sam Younger, Chairman of The ElectoralCommission 14/09/06 233,234]

Other witnesses made the followingcomments:

The Electoral Commission has actually donea very good job in its first five years, albeitunder rather confused circumstances.[Alan Whitehead MP 11/07/06, 127]

We have some wide concerns about thevery wide focus the Commission has…andoften there is not enough attention todetail on really crucial issues.[Oliver Heald MP, Shadow Secretary ofState for Constitutional Affairs and ShadowChancellor of the Duchy of Lancaster,15/06/06, 73]

2.7 The Commission has undoubtedly madesome positive contributions to thedemocratic health of the United Kingdomover the last five years. The Committee wasparticularly impressed by its close workwith political parties and electoraladministrators in Northern Ireland, Scotlandand Wales and by its effective work withelectoral administrators generally. However,there is concern that the evidence does notsuggest that the underlying health of theelection process would be the weakerwithout the Commission’s input. TheCommittee takes the view that TheElectoral Commission must become a morefocused regulator that stops doing a widevariety of activities and concentrates onachieving some core tasks. It believes asharper focus on a smaller number of corefunctions will greatly strengthen theeffectiveness of the Commission and thehealth of the electoral process.

2.8 The Committee believes that The ElectoralCommission should have two principalstatutory duties:

• the regulation of political party funding,third-party and campaign expenditure inthe UK; and

• the regulation of the electoraladministration system in Great Britain.

2.9 On the basis that these are the core tasks that the Commission must performeffectively, judgement is required abouthow other parts of Commission’s currentmandate add value to these core tasks. This implies that some of the Commission’scurrent tasks should be removed orsignificantly curtailed.

2.10 It is time for the Commission to focus onthe issues that matter most; ‘to do less andto do it better’ [Andrew Tyrie MP, 11/07/06,426]. The Committee firmly believes thatthe acceptance of these two core statutoryduties will enable the Commission to focuson restoring the health of our electoralprocess as a fair but robust regulator ofpolitical finance and as body capable ofrestoring confidence in the fairness andsecurity of electoral administration.

Regulation of political party fundingand expenditure

2.11 In this Committee’s Fifth Report [1] westrongly recommended establishing a newframework, based upon the principle oftransparency, to provide public confidencein the future funding of, and expenditureby, political parties. The creation of TheElectoral Commission was a keyrecommendation – a body whose main taskwould be to regulate the proposed controlson political party funding and expenditure:

The extensive changes we propose haveconvinced us of the need for a totallyindependent and authoritative ElectionCommission with widespread executive and

RECOMMENDATION

R1. The mandate of The ElectoralCommission as set out in PPERAshould be amended and refocused so that it has two principal statutoryduties: as regulator of political partyfunding and campaign expenditure in the United Kingdom; and asregulator of electoral administrationin Great Britain; with the aim ofensuring integrity and publicconfidence in the system of politicalparty funding and campaignexpenditure and in the administrationand conduct of elections.

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investigative powers, and the right to bringcases before an election court forjudgement [1].

2.12 The Committee clearly saw The ElectoralCommission as having responsibility for theadministration and enforcement requiredto ensure compliance with the proposedregulatory framework. It is also clear fromthe Government’s response [3] to the FifthReport that it accepted the Committee’srecommendation to establish anindependent and authoritative ElectoralCommission that would have regulatoryresponsibility for controls on donations topolitical parties and limits on campaignexpenditure.

2.13 PPERA put in place the legislative provisionsfor the new framework for regulatingpolitical party finances. In summary theCommission was made responsible for:

• The registration of political parties (andthe maintenance of the registers) ofpolitical and third parties and for thewide range of elections to localgovernment, decentralised administrations,the UK and European Parliaments. Therequirement to register was introduced tominimise confusion to voters by stoppingcandidates attempting to impersonatemainstream parties and to ensure thatthe finances of all political groups areproperly regulated and, once a party hasregistered with the Commission, it issubject to rigorous financial controls. A party may not be registered unless it has adopted a scheme, approved by the Commission, which sets out thearrangements for regulating the financial affairs of the party and their income and expenditure.

• The regulation of donations to politicalparties. All political parties registered onthe Great Britain register of parties(excluding parties registered as minorparties) are legally required to abide by the regulations on accepting andreporting donations. Political parties arerequired to submit a quarterly donationreport to the Commission listing alldonations of more than £5,000 acceptedby the party’s headquarters. TheCommission is required to register all recordable donations.

• Control of campaign expenditure. PPERAlimits the amount of campaignexpenditure that can be incurred bypolitical parties and third parties atgeneral elections to the UK and EuropeanParliaments and devolved legislatures.Under PPERA there is a ceiling on theamount of campaign expenditure that canbe incurred during a ‘relevant period’. It is an offence for a party to exceed thecampaign expenditure limits specified.There are reporting requirements forparties contesting elections and, ifexpenditure is in excess of £250,000,returns to The Electoral Commission mustbe prepared by a qualified auditor andsigned off by the party treasurer.

2.14 In relation to The Electoral Commission’soverall regulatory role the Act [2] providesthat:

The Commission shall have the generalfunction of monitoring compliance with therestrictions and other requirementsimposed by or by virtue of Parts III to VII;and the restrictions and other requirementsimposed by other enactments to electionexpenses incurred by or on behalf ofcandidates at elections, or donations tosuch candidates or their elections agents.

2.15 The Act then goes on, as recommended inthe Committee’s Fifth Report, to providethe Commission with the investigativepowers of inspection, entry etc in relationto fulfilling their function and which areconsistent with powers provided to otherregulators.

2.16 The purpose of this inquiry, as concerns thispart of the Commission’s mandate, was todetermine whether, in light of the PPERAframework, The Electoral Commission hasbeen an effective and strategic regulator ofpolitical party funding and expenditure [4].

2.17 Soon after the launch of the inquiry, thePrime Minister asked Sir Hayden Phillips toconduct a review of party political fundingwhich itself had been triggered by thecontroversy over large loans being taken bythe main political parties at the time of thelast general election. At the time ofpublication, Sir Hayden had not publishedhis final report, although an interim reportwas published in October 2006 which setout the main options for any changes tothe regulatory framework under

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consideration [5]. The Committee hasliaised closely with Sir Hayden, who alsogave evidence to this inquiry [21/09/06]. Webelieve that the proposals we set out in thisdocument would apply equally (if not moreso) should the regulatory framework beextended to include the options underconsideration as set out in the Phillipsinterim report. The Constitutional AffairsCommittee has also very recently publisheda report on the funding of political partieswhich covers some of the issues addressedin this inquiry [6].

The Commission’s regulatory role

2.18 The evidence received during the inquirysuggests that The Electoral Commission wasbroadly effective and proportionate inintroducing the new regulatoryrequirements to political parties, underPPERA. There was also a broad consensusthat, in the main, the Commission has beeneffective in its administration of theregulations, i.e. collection and publicationof information:

I think it has done some extremely goodwork in ensuring that there is moretransparency around the funding ofpolitical parties.[Rt Hon Hazel Blears MP, Chair of theLabour Party 15/06/06, 420]

2.19 This is a considerable achievement. It isimportant to remember that, beforePPERA, political parties had not beensubject to any real regulation outside ofcampaign periods, and then only very lightregulation. Political parties more closelyresemble large voluntary sectororganisations than organisations in theprivate or public sector and have more incommon with volunteer groups such as theScout Movement or the WRVS than withthe major charities. Activities such asrecruitment and training of volunteers,selection of candidates, preparing leaflets,delivering pamphlets, organising meetingsand canvassing are carried out by ordinarycitizens on a voluntary basis. Indeed eventhe local treasurers and election agents(who are subject to regulatory controls) ofeven the largest parties are normallyvolunteers. The Electoral Commission was clearly sensitive to this in its approach toestablishing the practical operation of theregulatory framework.

2.20 The Committee has stressed this issue in itsconsiderations. Political parties enable theelectorate to vote on a range of choicesand priorities, which is essential to ourdemocracy. Party politics is a competition toserve the public interest: that is its purpose.Both the regulatory requirements and theapproach of the regulator must balancepublic trust in the integrity andtransparency of political party funding andexpenditure against the burden placedupon essentially voluntary organisations.

2.21 Has the Commission achieved this balance?Evidence received by the Committeestrongly suggests that it has been lesssuccessful in acting as an effective andstrategic regulator in a manner whichensures public trust and confidence. Theroot of this, from the evidence we havereceived, appears to lie in the Commission’sinterpretation of its regulatory mandate in PPERA and, in consequence, its overlypassive approach. Despite the clearintentions in the Fifth report and theGovernment’s response that The ElectoralCommission should be an active regulatorwith investigatory powers the evidencereceived suggests that that wording used in PPERA has led to some uncertainty as towhether this is an active or passive role:

The role of the Commission in relation to regulation is to receive information andpublish it from the political parties and tomonitor the extent to which the partiescomply. “Monitor” is the word in thelegislation. That can be interpreted in anumber of ways. It could be a prettypassive function. The basic assumption inthe way the legislation is drawn is that theprimary responsibility to comply with thelegislation rests fairly and squarely with the parties.

The legislation very much puts the onus onthe parties to comply and some of theinformation that we need, which cantrigger our investigations, does not comeinto our possession until such time as theparties do that under the legislation. Thatis a pretty crucial question that there needsto be some debate about.[Peter Wardle, Chief Executive, ElectoralCommission 13/06/06, 165]

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2.22 Indeed the interpretation of theCommission’s regulatory role as a passiveone appears to be shared by theGovernment:

The Electoral Commission’s role, as set outby PPERA 2000, was not to investigate. Itwas simply to be a recipient of information.They were in a sense exactly the same asthe Register of Companies (CompaniesHouse). That was the way they were set up.Judgements about whether or not therehave been breaches of electoral law by aparticular political party ultimately are notto be made by The Electoral Commission;they are to be made by the prosecutingauthorities.[Lord Falconer of Thoroton, Secretary ofState for Constitutional Affairs 14/9/06, 147]

2.23 The Committee was rather surprised by thisinterpretation of The Electoral Commission’sregulatory role. While it is correct to saythat the Fifth Report advocated that theonus should be on the responsible officer ineach political party to disclose informationto The Electoral Commission, the reportmade clear that The Electoral Commissionshould have an active role in regulatingparty finance:

We envisage that the Election Commissionwill have statutory powers to call forinformation and, where necessary, toappoint investigating officers oraccountants to look into the affairs of anypolitical party. The powers would beexercisable in case of actual or suspectedfailure to comply with reportingrequirements. [1]

2.24 Indeed, the Government’s response to theFifth Report also made clear that TheElectoral Commission would:

…investigate the financial affairs ofpolitical parties to ensure compliance withthe rules on disclosure; perform a similarfunction in relation to the prohibition onforeign funding; receive, scrutinise and, asnecessary, investigate accounts of generalelection expenditure by registered politicalparties and third parties; and receivereturns, of individual candidates’ electionsexpenses and investigate possible breachesof the spending limits.

As envisaged by the Neill Committee, The Electoral Commission will have widepowers to call for financial informationfrom political parties, registered thirdparties and referendum campaignorganisations, and to enter their premisesto inspect and take copies of financialdocuments or records. [The Government’s Response to the FifthReport [3] ]

2.25 The investigative powers provided in PPERAwould appear to confirm that this intentionwas reflected in the subsequent legislation.Nevertheless, in light of the evidencereceived, the Committee believes thatPPERA should be amended to remove anyuncertainty that The Electoral Commission is able to proceed and investigateallegations or suspicions of regularityfailure. We believe this will remove anyconfusion and strengthen The ElectoralCommission’s regulatory role.

2.26 In advocating this change the Committee is not suggesting that The ElectoralCommission should continually, ordisproportionately, intervene in thefinancial affairs of political parties:

Our approach has always been that actuallythese are voluntary associations that ought,insofar as is compatible with the rules, tobe left to get on with it and not have anorganisation crawling all over them all the time.[Sam Younger, Chairman of The ElectoralCommission 13/06/06, 224]

I think that needs to be examined verycarefully because at the same time as youwant to have a nimble, if you like, andeffective regulator, what you want it to be is proportionate to the issues at stake.[Sir Hayden Phillips, 14/09/06, 227]

RECOMMENDATION

R2. PPERA should be amended to make it clear that The Electoral Commissionhas a duty to investigate proactivelyallegations or suspicions of failures to comply with the regulatoryframework. We recommend that the term “monitor” be replaced by “regulate”.

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2.27 The Committee takes the view that theCommission should strike a balancebetween expecting the political parties todisclose what is required of them andadopting a risk-based approach to ascertainthose parts of the regulatory frameworkthat might be more open to abuse ormisinterpretation. Which, in this case,means where a risk of non-compliance orlack of clarity in the regulations could leadto a significant undermining of theconfidence the public and political partieshave in the regulatory framework. In thisway, the Commission is in a position to dealwith potential non-compliance before itbecomes a problem. It is clear that theCommission itself recognises this:

…in terms of the core focus on theregulation of political parties…[we are]conscious that we need to take a strategicand, in particular, a more risk-basedapproach than we did in the early days.[Sam Younger, Chairman of The ElectoralCommission 14/9/06, 233]

2.28 Substantiating the Committee’s view, we received evidence during the inquiryconcerning possible issues aboutcompliance with the regulations that haveundermined confidence in the regulatoryframework. We summarise these below and make further recommendationsintended to lay the basis of an effectiveand strategic regulatory approach for TheElectoral Commission.

2.29 The issue of loans to political parties wasfirst raised publicly in The Times on 21 April2005, just before the General Election. TheConservative party was reported to havesecured a number of multi-million poundloans from various individuals to help fundtheir General Election campaign. Before the Electoral Administration Act 2006 [7], a party did not have to declare the loanunder the rules of donations provided the amount borrowed was repaid at acommercial rate of interest.

2.30 Following the publication of The Times’article, Dr Michael Pinto-Duschinsky wroteto The Electoral Commission seekingclarification on a number of issues,including whether it had made clear to the political parties its definition of acommercial rate of interest. The ElectoralCommission’s response to Dr Pinto-Duschinsky was to quote from section

50(20) (e) of PPERA which provides that any money lent to a party otherwise oncommercial terms is treated as a controlleddonation. This response appeared not togive a definition of the meaning of‘commercial’.

2.31 Dr Pinto-Duschinsky believes that thisresponse did not clarify whether TheElectoral Commission had issued clearguidance to the political parties,particularly on its definition of acommercial loan. He considers that such an oversight was a major failure by the Commission.

One would have expected that with a term like ‘commercial loan’ The ElectoralCommission would have explained what it understood to be a ‘commercial loan’. I believe that a lot of trouble would havebeen saved had The Electoral Commission,in this case and in others, gone further toissue guidelines and advisory opinions andit would have helped the political partiesand donors to make sure that they were inconformity with the law. [Dr Michael Pinto-Duschinsky 13/06/06, 20]

2.32 Commenting on whether The ElectoralCommission ought to have offered moreguidance on the loans issue, Peter Wardlesaid:

What we had was a piece of untestedlegislation with definitions that wereuntested and having to be quite careful asto what we said in terms of what was rightor wrong in a situation where we did notwant to be accused by one party or theother of coming up with an answer thatmay or may not have been convenient toone party or the other. We took the viewthat we would stand on the legislation andcarry on with the view that the party hadlooked at the legislation, interpreted it andgot on with compliance.[Peter Wardle, Chief Executive of TheElectoral Commission 13/06/06, 198]

2.33 Throughout this inquiry the Committeeparticularly noted the reluctance of TheElectoral Commission to commit itself firmly on any given subject under itsregulatory responsibilities. It is commonpractice with many other regulators toproduce advisory opinions on subjects ofuncertainty or concern.

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2.34 In the same article in The Times, on 21 April2005, Lord Goodhart QC, Liberal DemocratShadow Lord Chancellor; Spokesperson forConstitutional Affairs, a former member ofthis Committee, was quoted as questioningwhether the political parties werecircumventing the spirit of the rules ontransparency. Sam Younger, Chair of TheElectoral Commission, was also quoted inthe article as saying:

The law does not currently require a loanmade to a political party on commercialterms to be declared as a donation.However, given that the thrust of thelegislation is to provide transparency, we will be reviewing this as part of ourstatutory report after the election.

2.35 However, the Committee is not aware ofany evidence that The Electoral Commissionaddressed this issue in the material itpublished on the 2005 General Election, or instigated any investigation into thecircumstances behind the loans. On thebasis of Lord Goodhart’s public concerns,the Committee included the issue in itspost-election consultation document on its future work-plan, the process which led to the instigation of this inquiry.

2.36 In fact The Electoral Commission does notappear to have taken any further action on this issue until it became a majorcontroversy in 2006 when allegations weremade that peerages were being given inreturn for loans and donations. Theseallegations and questions about the statusof the loans under PPERA are currentlysubject to a police inquiry.

2.37 When asked by the Committee whether the Commission had issued guidance beforeor during the 2005 Election campaign,Peter Wardle replied that there was“comprehensive guidance that theCommission has issued”. When pressedwhether it was in place at the time he said,“Yes. I am pretty sure of that.” He was thenasked whether the Commission had writtento the parties to say that they were worriedabout the way events were shaping up andto remind the parties that the guidancewas available. He responded:

No we did not…I have absolutely no doubtthat any of the major political parties wasin any doubt as to what the law providedand was in any doubt as to what our

guidance said at the time. I did not feelthat it was necessary for us to go beyondthat. I really did not think that the majorparties, about whom these conversationswere taking place, were unaware of whatthe law provided or of what our guidancesaid. There has to be a reason for us tomake a public intervention in a situationlike that when we are actually satisfied thatthe parties are aware of what the rules say.Apart from drawing further attention to itin a situation where we might well becriticised by saying, ’Why should you drawfurther attention to this? We knowperfectly well what the rules are’, there is ajudgement to be taken about this. We didnot at the time have any evidence tosuggest that the parties were as heavilyreliant across the board on loan finance asis subsequently suggested they have been.[Peter Wardle, Chief Executive, TheElectoral Commission 13/06/06, 187]

2.38 The Electoral Commission currently hasseparate guidance on its interpretation of a ‘commercial loan’ on its website in theform of a letter to the political parties sentin March 2006. The chair of the Committeewrote to Sam Younger to clarify whatguidance was available to the politicalparties in 2005 and, if so, when it was first published. In his reply, Sam Youngerindicated that the guidance available to thepolitical parties in 2005 was the first versionof the guidance which was published in2001 and would have been made availableon its website and via Commission-runtraining events for party officials. The guidance on loans issued by theCommission and extant before and duringthe 2005 General Election was [8].

Any money lent to a party other than oncommercial terms, e.g. Where a party isloaned £1m at 0% interest, and the loan isto be repaid over two years, the value ofthe donation would be the commercial rateof interest for a loan of £1m (not the £1mwhich is to be repaid), e.g. if the relevantcommercial interest rate is 10%, thedonation would be £100,000. [Donations to Political Parties 2.5]

2.39 This guidance does not make clear whatconstitutes a commercial rate of interest.The Committee believes that theCommission should have provided guidancefar earlier than it did on what it consideredconstituted a commercial loan. Even when

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this omission was highlighted by Dr Pinto-Duschinsky the Commission did not seek toclarify the issue. By the time it had givenclear guidance to the parties in March 2006the issue was already a source of major public controversy. The evidence suggests thatuncertainty over its regulatory role causedby the term “monitor” in the legislationand timidity in its failure to use thesignificant investigative powers providedfor in the Act meant that the Commissiondid not investigate the loans when this firstcame to its attention and any investigationonce the issue became a matter of publiccontroversy was overtaken by a separatepolice investigation. In the Committee’sview taken together this constitutes aregulatory failure. As Dr Justin Fisherconcluded in his research paper [Volume 2]commissioned by the Committee, the loans episode raises a key issue for theCommission in terms of whether it shouldbe more investigative in its approach.

2.40 The Committee shares Lord Goodhart’sview that, by taking out large loans beforethe General Election of 2005 and not beingopen at the time about their source andsize, the political parties were actingcontrary to the spirit of transparency thatunderpins the arrangements for politicalparty funding. Whether there was anybreach of PPERA or other legislation issubject to a police investigation and mayultimately be a matter for decision by acourt of law, and is not therefore an issueon which the Committee will make anycomment.

2.41 The Commission’s passive regulatoryapproach was also raised in other evidence.This concerned the scrutiny of returns oncampaign expenditure. An examplebrought to the attention of the Committeewas the case of the Social Democratic andLabour Party (SDLP) who wrote to TheElectoral Commission in August 2004formally to raise concerns it had about thepublished returns for campaignexpenditure incurred by other partiesduring the 2003 Northern Ireland Assemblyelection. The SDLP only received a formalreply from The Electoral Commission 12months later in August 2005. In a furtherletter to the SDLP in December 2005 whichthe chair of the Committee read out at theBelfast Public Hearing, The ElectoralCommission said:

The starting point for the Commission’sinquiries in pursuit of its monitoring role,

continues to be the information which theparties themselves provide to us. We havebeen able to identify significant issues viathis route and have had associateddiscrepancies corrected by the partiesinvolved. I do not believe that moving to adifferent approach, where the Commissionmounted investigations of parties’ affairswhich did not stem directly from theexamination of statutory reports, is a viable option for the Commission withinthe framework.[p122 21/06/06, 122]

2.42 The Committee raised this response fromThe Electoral Commission with the SDLP atthe public hearing in Belfast:

I think The Electoral Commission seethemselves as having a monitoring role. We have kept saying to them that we think they need to be more robust andthey have an investigative role. In theFunding of Political Parties White Paper, the Government said, as well as monitoringthey should investigate the financial affairsof political parties to ensure compliancewith the rules of disclosure. We clearlybelieve that the legislation allows for morerobust and investigative laws from TheElectoral Commission, and we think theyhave been found wanting.[Tim Attwood, SDLP 21/06/06, 541]

2.43 This Committee recommended in its Fifth Report that it was essential that TheElectoral Commission was an independentbody so that it would be perceived asimpartial. Just as important, beingindependent would give it the authority totake difficult decisions. In the Committee’sview The Electoral Commission has beentoo timid in taking hard decisions and hasnot had the systems in place to ensureeffective compliance in some key areas ofthe regulatory framework.

2.44 To carry out its regulatory duties theCommittee believes that the Commissionrequires an investigative capability.Therefore, in order to be as effective aspossible, a separate compliance unit shouldbe set up to make prompt investigations of possible breaches of the regulatoryframework on the basis of primae facieevidence, however received, of possibleproblems. This unit should have no role in the day-to-day work related to theadministration of the regulatory controls.This is an arrangement that we understandis common among comparable regulators

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of political finance [see: Summary of theStudy tour to Canada and the USA, Vol 2]

2.45 This will also require a robust system forassessing the potential seriousness, and risk to public confidence, of any allegationbefore launching an investigation. Theestablishment of such a compliance unit,however, must not lead to widespread andnumerous investigations into vexatious,trivial and politically motivated complaints.

2.46 In relation to The Electoral Commission’srole in regulating campaign expenditurethe Committee believes that in NorthernIreland, Scotland and Wales some of itsregulatory activities would be much moreeffective if responsibility for monitoringand regulating campaign expenditure wasdecentralised in those three countries.

2.47 As there are, in most cases, separate partystructures in Northern Ireland, Scotland andWales, experience in the devolvedadministrations has shown that by usinglocally-based people with local knowledgeThe Electoral Commission can buildrelationships with the political partiesbased on trust and gain a betterunderstanding of how the system isworking or if rules are being broken orunobserved. It should also help TheElectoral Commission to acquire a morecomprehensive knowledge of localexpenditure patterns at elections.

Penalties

2.48 Currently, the only sanctions The ElectoralCommission has if parties do not complywith the legislation is to name and shameor, if the offence is sufficiently serious, torefer the matter to the Crown ProsecutionService (CPS) for a criminal prosecution.Understandably, in virtually all cases theCommission has been reluctant to refer thematter to the CPS because, usually, such amove would be out of all proportion to theoffence committed and a prosecution unlikelyto be judged as in the public interest.

2.49 In its Fifth Report the Committee madeclear that The Electoral Commission shouldnot have any substantial judicial power. TheGovernment accepted this recommendationand the Committee continues to believethat this is the right approach. However, we did receive evidence suggesting that the Commission should be given additionalpowers to levy administrative financialpenalties for non-compliance with theregulatory requirements that might notjustify current sanctions.

I think the question of administrativepenalties is the other area we would belooking for change in the law.[Peter Wardle, Chief Executive, TheElectoral Commission 14/09/06, 325]

RECOMMENDATION

R6. The Electoral Commission shoulddecentralise responsibility formonitoring and regulating campaignand constituency expenditure inScotland, Wales and Northern Irelandto its regional offices.

RECOMMENDATIONS

R3. The Electoral Commission shouldestablish a compliance unit, separatefrom the administration of theregulations, which can take promptinvestigative action, using the powerprovided in PPERA followinginformation received either externallyor internally of possible breaches ofthe regulatory framework. Ifnecessary the results of anyinvestigation should be referred tothe Crown Prosecution Service.Unless there is evidence of breachesof the law, other than PPERA, theCommittee would question the needfor the Commission to refer any suchinvestigations to the police.

R4. The Electoral Commission shouldensure that the compliance unit has a robust and effective system forassessing the potential seriousnessand potential risk to publicconfidence of any allegation.

R5. The Electoral Commission shouldestablish the practice of issuingtimely advisory opinions, based uponsound and competent legal advice,on areas of concern or uncertaintyabout the practical interpretation ofthe relevant legislation.

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2.50 The Committee accepts that this approachis the sensible way forward with the clearproviso that there should be an appropriateindependent appeal mechanism. Such anapproach would supplement the existingcriminal sanctions that would continue toapply for the most serious breaches of the law.

Smaller political parties

2.51 Within any regulatory framework it isessential that there is a sense ofproportionality in relation to the size of theconcern being regulated. The Committeereceived some evidence that the currentregulatory framework has a disproportionateeffect on very small political parties inrelation to the reporting burdens imposedby the current legislation:

The bureaucratic burden fallsdisproportionately on small parties. A largeestablished party should have no difficultyin applying its resources to meeting theaccounting and other demands of the Act.A small party with limited resourcesinvariably struggles.[Alliance for Green Socialism writtenevidence 65]

2.52 The Committee strongly believes that thesame standards should apply to all politicalparties, irrespective of their size. However,we accept that there may be a case forreducing the reporting burdens (not theregulatory standards) for small parties whodo not have representation at European,national, devolved or local level. This willbe particularly true if the review beingconducted by Sir Hayden Phillips results ingreater frequency of reporting donationsor other additional reporting requirements.


Current position

2.53 As was set out in the overview to thischapter, evidence received by theCommittee during this inquiry hashighlighted concerns about wide variationsin standards of electoral administration inGreat Britain between individual localauthorities:

I think it is probably fair to say thatadministration varies in terms of how active it is in different parts of the country.[Rt Hon Hazel Blears MP, Chair of theLabour Party 15/06/06, 466]

My point about consistency betweenelectoral officers is, I believe, veryimportant. I think the inconsistencies aremainly put down to the diligence andculture of local authorities as to whether or not the senior officials take it seriously.[Phil Woolas MP, Minister for LocalGovernment 13/07/06, 105]

A picture of patchy administration, good in some places, bad in others, is a picture I too have.[Lord Falconer of Thoroton 21/09/06, 3]

2.54 These concerns are also voiced by electoraladministrators, other politicians, academicsand The Electoral Commission itself andsuggest that improvements are required to ensure that our electoral systemcontinues to produce elections that arefree, fair and secure and outcomes that are accepted by all.

RECOMMENDATION

R8. If the review being conducted by Sir Hayden Phillips results in greaterfrequency of reporting on donations,or other additional reportingrequirements, the Governmentshould consider a lighter reportingregime for very small political partiesthat have no representation atEuropean, national, devolved or local level.

RECOMMENDATION

R7. The Government should considerintroducing a system of financialpenalties, with an appropriate appealmechanism that could be applied byThe Electoral Commission for non-compliance with the regulatoryframework. Responsibility forprosecution should continue to liewith the Crown Prosecution Service.

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2.55 The present arrangements for theadministration of the electoral process dateback to the Victorian era. Although modernelectoral practice emanates from theRepresentation of the People Act 1983 [9]and various enactments amending it, muchof the 1983 Act itself derives fromlegislation enacted in the 19th century. TheCommittee is not suggesting that the ageof this legislation makes it irrelevant. Butsociety has changed a great deal since the1870s, not least there is a much largerpopulation and, therefore, franchise.Having a head of household takeresponsibility for registering others sitsrather oddly with more modern concepts of individual responsibility and equality.Individuals are asked to prove their identitywhen applying for or using a broad rangeof services both in the public and privatesectors. It is, therefore, surprising thatwhen it comes to electoral registration orvoting, in Great Britain, there are virtuallyno safeguards to establish someone’scorrect identity and protect the integrity of the process.

2.56 Both electoral registration and the runningof elections are conducted at localauthority level. Electoral registrationofficers (EROs) are the officials with thestatutory responsibility for the preparationand maintenance of the electoral registerand lists of absent voters in their respectivelocal areas. The appointment of an ERO is prescribed in Section 8 of theRepresentation of the People Act 1983 [10]. Although EROs are local governmentofficials they are not answerable to theirlocal authority in respect of their electoralduties but to the courts based on statutelaw. The statutory responsibility forpreparing and conducting elections are inthe hands of returning officers who are, atleast in England and Wales, invariably thesame individuals as EROs. In Scotland thetwo posts are separate as an ERO also has responsibility for property and land valuation. In Northern Ireland anindependent Chief Electoral Officer isresponsible for both registration and theconduct of all elections.

2.57 The cost of registration is borne by localauthorities in Great Britain and by theNorthern Ireland Office in Northern Ireland.The funding for local elections is borne bylocal government in England and thedevolved administrations in Scotland and

Wales, but the cost of parliamentaryelections is met from the ConsolidatedFund. Funding for the elections to thedevolved legislatures is the responsibility of the devolved administrations.

Current role of The Electoral Commission

2.58 Until recently The Electoral Commission had no statutory role in the electoraladministrative process apart fromresponsibility for the conduct ofreferendums. However, PPERA did give theCommission a statutory role to give adviceand assistance to those involved in theelectoral process including political partiesand electoral administrators. TheCommission’s role in the electoral processhas now changed. The ElectoralAdministration Act 2006 [7] has given theCommission the responsibility for settingperformance standards for local authoritiesin relation to registration and the conduct ofelections. The Act requires the Commissionto consult the Secretary of State beforedetermining the standards and laying thembefore Parliament.

2.59 Many of those who contributed evidenceacknowledged the strengths of Britishelectoral administration but expressedconcerns about issues that they believeundermine the consistency of standards ofadministration throughout the country.

2.60 There are wide differences in the numberof eligible individuals who are registered ineach local government area. The Committeewas told by witnesses that, in some localauthorities, registration rates were littleover 60 per cent while in others they werewell over 90 per cent.

2.61 Some explanations for these inconsistencieswere given to the Committee:

Because it is carried out by a large numberof local authorities, some of which are sodifferent in shape and form and thereforeresource base, there is always going to bethis difference… Equally, because it islargely in terms of how the canvas isconducted, a matter of choice how much or how little, then the results are likely tobe different in terms of the number ofregistered electors that come through that process.[John Turner, Chairman Association ofElectoral Administrators 13/07/06, 278]

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...the register is only as good as theorganisation that supports its preparationand the administration. I think, being fairlyblunt about it, there is an issue of scale andit is easier for us to be able to resource theeffective management of the electionsprocess when you have more scale to beable to actually play with.[Ged Fitzgerald, Chief Executive,Sunderland City Council 07/09/06, 313-315]

2.62 Effective electoral administration is offundamental importance in any healthydemocracy. An effective electoraladministration system should ensure:

• that those entitled to vote are includedon the electoral register and that thosenot entitled to vote are excluded fromthe register (comprehensiveness andaccuracy);

• that the voting process is free, fair andsecure;

• the proactive enforcement of the rules tostop electoral fraud;

• a consistent approach to registration andthe conduct of elections throughout theUnited Kingdom; and

• that electors have confidence in theeffectiveness and outcome of thedemocratic process.

2.63 As regards under-representation of voterson the register (as evidenced by thediscrepancy in percentages of eligiblevoters registered between local authorities)detailed research has been carried out,including by The Electoral Commission. Thisshows that an estimated 3.5 million eligibleindividuals are not registered. But there hasbeen virtually no research into the accuracyof the electoral register. This is significantas some evidence received by theCommittee from Dr Michael Pinto-Duschinsky suggests that there might be upto four million redundant names on thecurrent electoral register.

2.64 The Committee can confirm that there arelocal authorities that are delivering highquality standards in electoraladministration. But, as electoraladministrators have testified, there aremany local authorities where standards inelectoral administration are low.

2.65 Having closely examined the evidence theCommittee believes that while the systemof electoral administration is not broke –there are some local authorities deliveringhigh standards – it is, in some areas, in astate of serious disrepair. However, theCommittee has also rejected the secondoption of centralising electoraladministration with The ElectoralCommission, believing that:

• the actual day-to-day running ofregistration and conducting electionsshould remain at a local level;

• there is no evidence to suggest thatcentralisation would lead to higherstandards of electoral administration. If anything, evidence suggests thatcentralisation has not worked for other services previously delivered on a local basis;

• giving the Commission responsibility foradministering electoral registration andrunning elections could compromise itsrole as a regulator. For a regulator to beeffective it is preferable that it does nothave an operational role in the business it is regulating, otherwise potentialconflicts of interest could arise; and

• it was also made clear by the Commissionin its evidence that it would not welcomebeing given responsibility for such a role.

2.66 The Committee has taken into account thenew powers The Electoral Commission hasbeen given in the Electoral AdministrationAct to set and monitor performancestandards, although there is no mechanismin the Act for the Commission to enforcethe performance standards, naming andshaming. It can be argued that the newchanges contained in the ElectoralAdministration Act will enable TheElectoral Commission to put in place aframework of minimum standards that willlead to greater consistency in electoralregistration. However, the Committee is notconvinced that, without clarifying andstrengthening the Commission’s currentmandate and plans that it has for regionaloffices, the Commission will be effective inraising standards of electoraladministration to a consistently acceptablelevel throughout the United Kingdom.

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2.67 Under the current arrangements, thereremains an underlying lack of accountabilityand transparency which makes it verydifficult to identify poor practice and enablechange to happen. The Committee stronglybelieves that for change to be effectivethere has to be a robust regulator thatshines a light on bad practices and is ableto ensure that the right changes are made.

2.68 Therefore the Committee is recommendingthat The Electoral Commission is given astatutory oversight and regulatory role inelectoral administration to enable it tohighlight where the problems are and toensure that solutions are put in place.

Regional electoral officers

2.69 Considering how The Electoral Commissionmight take best advantage of aresponsibility for regulating electoraladministration, the Committee believesthat any regulatory approach must:

• be focused on outcomes not processes;

• be based on expertise and experience ofthe electoral system;

• take ownership of the processes;

• concentrate on proactive engagementwith stakeholders;

• have awareness of regional and localvariations throughout the UnitedKingdom; and

• be responsive to problems andunderperformance.

2.70 One of the main criticisms voiced about thework of The Electoral Commission duringthis inquiry was that it has tended toconcentrate on peripheral issues ratherthan addressing real problems whether in its current role as regulator of politicalparty funding or on the current state ofelectoral administration.

2.71 Following visits to Belfast, Edinburgh andCardiff, it was clear to the Committee thatthe Commission has been at its mosteffective in the work undertaken at officesin these three countries. Good workingrelationships with the main stakeholdershave been established and, moreimportantly, local knowledge has been usedto good effect in highlighting problemsand identifying solutions:

From the perspective of SOLAR I would saythat The Electoral Commission have fulfilled what I understand to be their mandate in terms of promoting integrity andinvolvement and effectiveness in localdemocracy. I think they have done that forproviding a focus for modernisation andstandardisation and simplification by alladministrators in Scotland. We might notregard ourselves as iconoclasts, but we havebeen keen to move and modernise theelectoral process and I think that the ElectoralCommission has provided that focus for us,and I think it has been very effective.[Jeff Hawkins, Returning Officer, EastRenfrewshire Council, 27/06/06, 331]

2.72 The Committee believes that the focus ofthe Commission’s regulatory work onelectoral administration should be atregional level in England and in Scotlandand Wales. This raises the question of whatform this role should take.

2.73 When Sir Howard Bernstein, ChiefExecutive of Manchester City Council, wasasked whether he thought there was a casefor somebody from the Commission to berooted in each of the regions to act as aregional arm of the Commission, heresponded by saying:

I think there are a number of models thatyou could portray. That is certainly one ofthem and it is one that I find mostattractive because whoever discharged thatregional role would need to be able tohave the full authority to act for and onbehalf of the Commission. I think that isquite an important principle. So whether itis a direct commissioner appointed by theCommission, whether it is somebody likeme or somebody similar elsewhere in theNorth West appointed by the Commission,whoever it is has to be seen to be actingwith the full authority of the Commission.[Sir Howard Bernstein 21/09/06, 46]

2.74 The Electoral Commission has very recentlyannounced that it intends to set up a verylimited regional network in England tooperate the new responsibilities placed onit in the Electoral Administration Act 2006.The Commission has also indicated that the four English regional teams would supportwider corporate objectives in the same wayas its current offices in Northern Ireland,Scotland and Wales. The Commission hasannounced that there will be a Head of the English regions and four regionalofficers based in the South West, the

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South including London, the Midlands andthe North.

2.75 Although the recognition of the benefits of a regional approach is welcome, theCommittee does not believe such astructure is sufficient or focused to deliverthe improvement in standards required.First, the proposed number of offices is toosmall and does not take the size of thepopulation in England into account.Second, we believe such an approach willbe too centralised and top-down to beeffective. Such an approach could lead toinertia rather than proactivity and timewasted fighting for influence within theCommission’s organisational hierarchy. Thistype of approach ultimately producesineffective outcomes.

2.76 The Committee is therefore recommendingthe establishment in statute of regionalelectoral officers (REOs) accountabledirectly through the chief executive to TheElectoral Commission who will:

• take responsibility for monitoring andreporting on the performance standardsof local authorities;

• work closely with local authorities toensure that they were fully aware ofwhat was required; and

• encourage joint working to ensure thehighest standards of electoral registration,the conduct of elections and identifyingand eliminating electoral fraud.

2.77 The REOs should be appointed, after opencompetition, by the electoral commissioners.The REOs would report to the commissionerson the performance of the local authoritiesin their regional area, including the state ofthe electoral registers, the conduct ofelections and the means to identify andtackle electoral fraud. Once all avenuesbecame exhausted in relation to improvinga local authority’s performance, REOsshould have the authority to recommend tothe commissioners that it request theSecretary of State for Constitutional Affairsto exercise his power of direction (as setout in section 52 (1) of the Representationof the People Act 1983) over that localauthority.

2.78 The Committee believes that the creationof REOs is essential if performancestandards set out in the ElectoralAdministration Act 2006 are to work.

2.79 An effective regional structure must reflectlocal sensibilities. The current ElectoralCommission blueprint has four regionaloffices in England with one each inNorthern Ireland, Scotland and Wales. Thisis too few to ensure effective workingrelationships with electoral administratorsin well over 400 local authoritiesthroughout the country. Instead, we believethere should be nine REOs in Englandcovering similar geographic units to thecurrent Government Offices for theRegions, two in Scotland and one in Wales.

2.80 In Northern Ireland, REOs are not, atpresent, applicable as electoraladministration is centralised under theChief Electoral Officer.

Performance standards

2.81 The Electoral Administration Act has givenThe Electoral Commission the power to setand publish performance standards forelectoral registration officers, returningofficers and counting officers, relating tomaintaining the electoral registers and the delivery of electoral and referendumservices. When asked by the Committee ata public hearing on 21 September where he wanted to see standards improved, the Secretary of State for ConstitutionalAffairs replied:

My overall concern is plainly to see twothings: the highest number of people whoshould be registered being registeredaccurately and, secondly, the conduct ofelections, including remote voting, being

RECOMMENDATIONS

R9 The posts of regional electoralofficers (REOs) should be establishedin statute, accountable through the chief executive to The ElectoralCommissioners, with responsibilityfor monitoring and reporting on the performance standards of localauthorities in their region.

R10 The standards of electoraladministration must be maintained in every part of Great Britain.Regional electoral officers should beappointed for Scotland and Waleswith the same status, responsibilitiesand accountability as for each region of England.

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done to the highest standards ofadministration and integrity.[Lord Falconer of Thoroton, Secretary ofState for Constitutional Affairs 21/09/06, 34]

2.82 The introduction of performance standardsis to be welcomed. However, to beeffective, they must focus on achieving:

• electoral registers that are accurate andcomprehensive in all parts of the UK;

• elections that are fair and secure;

• elections where the rules are consistentlyapplied throughout the country; and

• minimal electoral fraud.

2.83 It is also essential that electoraladministrators embrace these standards notas a bureaucratic imposition but as a toolto deliver high quality electoral services.The REO’s role will be vital in this respect.REOs will know the strengths andweaknesses of electoral administration inthe local authorities in their region and canuse that information to help target lowperforming local authorities.

2.84 Current legislation already makes provisionfor the Commission to set standards inrelation to electoral registration and theconduct of elections but the Committeeproposes that standards should also be setfor minimising electoral fraud and for thefunding of electoral services.

Electoral fraud

2.85 In oral evidence to the Committee, Rt HonKenneth Clarke QC MP said the following:

I would suggest that if you went back tenyears ago only an eccentric would havequeried the integrity and functioning ofthe British electoral system…it wasregarded as a model for secure, free andfair elections and no sensible peopledoubted it.[11/07/06, 436]

2.86 The evidence presented to the Committeesuggests that this is no longer true (formore detail see Chapter 5). There havebeen a number of high profile fraud casesin relation to the abuse of postal and proxyvoting and, following the local elections in2006, there are a number of current police

investigations into irregularities in thevoting process. There was no evidenceprovided to suggest that fraud is endemicthroughout the electoral system. However,no research has been carried out either byThe Electoral Commission or others, into the scale of electoral fraud so it is difficult tobe certain how widespread it is. Neither hasthe Commission kept any statistics relatingto instances of electoral fraud since it wascreated. However, what evidence there issuggests it is prevalent in certain communitiesin the North of England, the Midlands andsome London Boroughs where there aremarginal wards or where there is factionalinfighting for control within local politicalparties or those communities.

2.87 Fraud can damage not only the integrity ofthe electoral system but the confidence ofelectors in the outcome of elections. TheCommittee believes performance standardsshould be extended to focus on minimisingsuch fraud by ensuring that systems are putin place to identify and address weaknessesin current practices.

Enforcing standards

2.88 It is essential that if performance standardsare to work then action needs to be takenagainst consistent poor performers. Undercurrent legislation The Electoral Commission has no authority to impose sanctions onpoorly performing electoral administratorsapart from naming and shaming:

There is nothing whatsoever statutorily tostop us going along to the chief executiveof a local authority saying ‘You know and Iknow that we have some risk here, we havesome problems here. Here, in the name ofThe Electoral Commission, is our advice onwhat you need to do about it’. It’s not aninsignificant thing to do and we can dothat without statutory power.[Peter Wardle, Chief Executive, ElectoralCommission 14/09/06, 306]

2.89 Before reaching the stage of imposingsanctions, part of the process must entailthe regional electoral officers workingclosely with the poor performingadministrators to improve performance.Only when this fails should the possibilityof applying sanctions be considered.

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2.90 In the Representation of the People Act1983 [10] the Secretary of State has apower of direction over electoraladministrators. The Committee thinks that,once all other avenues have been pursuedto improve performance, The ElectoralCommission, following a directrecommendation from the respective REO,should recommend to the Secretary ofState that he/she use their power ofdirection to ensure that change isimplemented. A further option open to theSecretary of State would be to ask TheElectoral Commission, as the responsibleregulator, to decide how electoral servicesin that local authority should be deliveredin the future. This could involve the servicesbeing operated by a nearby highperforming local authority. In the eventthat a request from The ElectoralCommission to exercise this power isdeclined, then the Secretary of State shouldbe required to report to Parliament on thereasons for the refusal.

2.91 We believe the Commission should developthese performance standards workingclosely with local authorities and also withthe Audit Commission, which has extensiveexperience in this area. Further, theCommission, for this part of its mandate inEngland should be included in the ‘family’of regulators that will come under theAudit Commission’s ‘Lead Inspectorate’framework.

Funding of electoral administration and elections

2.92 The Committee received conflictingevidence as to how the electoral systemshould be funded.

2.93 The Committee recognises the wider issuesraised by ring-fencing funding for localauthorities and that using The ElectoralCommission as a funding channel wouldcompromise the Commission’s role asregulator of the electoral administrationsystem. Progress might be made if theDepartment for Constitutional Affairs wereto indicate – each year – an appropriate

RECOMMENDATIONS

R12 The Electoral Commission shouldmake public reports on theirassessment of levels of performanceof electoral administrators. Incircumstances where it has identifiedand publicised unacceptably lowstandards, and where there has beenfailure by the relevant electoraladministrators to agree to implementthe necessary measures forimprovement, The ElectoralCommission should formally requestthe Secretary of State forConstitutional Affairs (Secretary ofState for Scotland if electoraladministrator is Scottish) to exercisehis existing powers of directioncontained in the Representation ofthe People Act 1983 over the saidofficers. In the event that any suchrequest is declined then the Secretaryof State should be required to reportto Parliament on the reasons for hisrefusal to exercise the power.

R13 The Electoral Commission shouldreport to Parliament annually onstandards of electoral administration,including any action it is proposing totackle areas of underperformance inrelation to electoral registration, theconduct of elections and minimisingthe risk of electoral fraud.

R14 The Government should considerwhether Northern Ireland shouldadopt these arrangements once theyhave been successfully established inthe rest of the United Kingdom.

RECOMMENDATION

R11 The Electoral Commission should useits powers enacted in the ElectoralAdministration Act 2006 to establish,monitor and report on performancestandards for electoral administratorsin the areas of electoral registration,the conduct of elections andminimising electoral fraud.

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level of expenditure for a local authority toallocate to perform its statutory duties inrelation to electoral registration and theconduct of elections. The ElectoralCommission would then have theopportunity to monitor the level of fundingactually allocated as part of its duty ofreporting on the performance of localauthorities.

Electoral boundaries

2.94 The Electoral boundaries of localgovernment wards and parliamentaryconstituencies are the building blocks ofour representative democracy. For publicconfidence and consent in the electoralprocess the way in which they are set(through periodic reviews which takeaccount of population changes) must bedemonstrably fair, impartial andindependent. The UK has mostly succeededin this respect in the last half century andthe experience of other countries, wherethis has not been achieved, is salutatory.

2.95 In its Fifth Report, the Committee did notconsider in detail whether the Commissionshould assume responsibility forparliamentary electoral boundaries,although it did note that the currentsystem appeared to work well and thattransfer to the Commission might seriouslyoverload it, given the other responsibilitiesthat were proposed [1].

2.96 In its response to the Fifth Report [3] theGovernment concluded that the creation of The Electoral Commission afforded anopportunity to re-examine thearrangements for the review of electoralboundaries. It proposed that the four

parliamentary boundary commissions bebrought under the umbrella of TheElectoral Commission. In addition, itproposed that the Local GovernmentCommission for England also be broughtwithin The Electoral Commission andcombined with the English ParliamentaryBoundary Commission. Similar mergerswere envisaged for setting local boundariesin devolved administrations with provisionmade for each administration, if it sodecided, to transfer its respective localgovernment boundary-setting functions to The Electoral Commission.

2.97 The Government made clear that itsintention was not for these transfers tohappen immediately. In the case ofparliamentary boundaries, this would onlytake place after the completion of the fifthgeneral review which began in 1999, andwas expected to be completed in 2005.Provision for all these transfers wastherefore made in PPERA [2].

2.98 The Local Government Commission forEngland was transferred to The ElectoralCommission on 1 April 2002 and becamethe Boundary Committee for England,chaired by Pamela Gordon, ElectoralCommissioner. The transfer took placeduring the periodic electoral review of localgovernment boundaries in England whichhad started in 1996. This was successfullycompleted in 2004 and recommendationsmade to the Secretary of State in 2005, tothe apparent satisfaction of those concerned.However, the devolved administrationshave, we understand, indicated no desire orintention to transfer their local boundarysetting functions to The ElectoralCommission. Also, the fifth general reviewof parliamentary boundaries in Englandonly completed its work in 2006, so noorders to transfer parliamentary boundarycommissions have yet been made.

2.99 During this inquiry, commentators,practitioners, the Government and TheElectoral Commission itself agreed that thepartial merger of these functions is notsustainable. There is broad agreement thatwe need to establish clear and consistentboundary-setting responsibilities for thefuture.

2.100 This review of The Electoral Commission’smandate concerning the boundarycommissions is therefore particularly timely– a point endorsed by Bridget Prentice MP,Parliamentary Undersecretary of State for

RECOMMENDATIONS

R15. The current funding arrangementsfor electoral administration and forelections should be retained. TheDepartment of Constitutional Affairsshould publish annually indicativelevels of local authority expenditureallocated to deliver electoral services.

R16. The Electoral Commission shouldconsider the level of fundingprovided for electoral administrationas part of its monitoring andreporting on the performance ofindividual local authorities.

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Constitutional Affairs, in evidence to theCommittee [18/07/06, 571-573] and in theWestminster Hall debate on The ElectoralCommission on 3 July 2006 [10]. TheSecretary of State for Constitutional Affairs,Lord Falconer of Thoroton said in evidenceto us:

I am not sure what the answer to what wedo about the boundaries is at the moment.We set off on one route in the 2000 Actand it is taking a long time to get to thatparticular conclusion. I think we need tolook at the whole thing and review whatthe right way forward is.[21/09/06, 112]

2.101 Concerns have also been expressed forsome time, particularly by theparliamentary boundary commissions butby others as well about other aspects ofthis, including the rules that theCommissions follow when reviewingparliamentary boundaries; the consequentlength of the review process; and the lackof sequencing between local andparliamentary reviews.

2.102 This is the context in which the Committeehas considered electoral boundaries as partof this inquiry. To assist our understanding,we commissioned Dr David Butler andProfessor Iain McLean of Nuffield CollegeOxford – leading experts in this field – toundertake a short piece of research in theboundary issues. We wish to record ourgratitude for this very helpful work. Werefer to the research throughout thissection and a copy can be found on the CD-ROM of Volume 2 that accompanies this report.

2.103 Finally, the Committee has considered thisissue in the context of our widerrecommendations on the mandate of theCommission, and our recommendations onGovernance contained in the next chapter.

The boundary-setting role of The ElectoralCommission

2.104 In its initial evidence The ElectoralCommission indicated that it was givingfurther consideration to its boundary-setting role as part of a current strategicreview [Sam Younger, Chair of The ElectoralCommission, 13/06/06, 249]. The key issuesrevolved around potentially competingrequirements for consistency: so called

‘horizontal’ consistency of a commonapproach to parliamentary boundaries byeach of the four parliamentarycommissions, and likewise for localboundaries; and so called ‘vertical’consistency between the approach of eachlocal government commission with theirrespective parliamentary commission(because ward boundaries are the buildingblocks for parliamentary boundaries). [PeterWardle, Chief Executive Officer, TheElectoral Commission, 13/06/06, 241-261]

2.105 The Electoral Commission subsequentlywrote to the Committee concerning theirdeveloping thoughts on this issue, and thiswas set out more fully in their additionalwritten evidence of September 2006:

In summary, our view is that localgovernment and parliamentary boundaryreview work should be conducted byorganisations in England, Scotland, Walesand Northern Ireland which are separatefrom The Electoral Commission. In thiscontext, the Commission sees its role inrelation to boundary work as being morestrategic than hitherto…

…Additionally, we see considerable merit inensuring that a common approach is takento parliamentary reviews in each part ofthe country. In this respect, the Commissionis probably the best placed to take the leadand have responsibility for settingstandards across the United Kingdom.[Electoral Commission, 74/7-9]

2.106 The Commission also made suggestionsregarding a review of the rules governingparliamentary reviews (which we coverlater) and acknowledged that there mightbe alternative and complementaryproposals.

2.107 Other witnesses also saw merit in a similaroverarching role for the Commission or fora new body to keep the rules under reviewand ensure consistency of approach, inrespect of parliamentary boundaries or acombined UK Parliamentary BoundaryCommission. The latter suggestion is, ineffect a variation of the others as, inpractice, there would need to be sub-commissions for Scotland, Wales andNorthern Ireland and at least one, possiblymore, for England.

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2.108 The Committee agrees with The ElectoralCommission that it should withdraw fromall boundary-setting work. This will requirethe transfer-out of the Local BoundaryCommittee for England and a removal ofthe provisions in PPERA allowing for thetransfer of the four parliamentarycommissions and devolved localgovernment boundary functions. Inreaching this conclusion, the Committee hasbeen particularly guided by awareness thatthe current process has been shown to bedemonstrably impartial and independent –i.e. “if it’s not broken then don’t fix it”.Also, given our strongly held view that theCommission must fundamentally refocus itsefforts on the two cores regulatory roles,discussed above, we believe that any role inthe setting of electoral boundaries wouldrisk diversion from these tasks.

2.109 For these reasons we do not believe thatthe Commission should assume anyoverarching regulatory role over the fourparliamentary boundary commissions.There are arguments for keeping theoperation of the rules under review andensuring consistency of approach by thefour boundary commissions. However, theprecise scope and scale of this role is, webelieve, unclear until some of theunderlying problems with the rulesthemselves are resolved (which appear tobe the principal cause of inconsistency). Wesuggest that this issue (but not whetherThe Electoral Commission should assumeany role) be considered as part of thereview of the rules we discuss below.

Joint secretariats

2.110 There was a broad consensus that theoption of merging each local governmentcommission with their respectiveparliamentary commission, in the pursuit of so called ‘vertical’ consistency (as well as efficiencies) is now precluded by thedevolution settlements. The difficulties withthis model is that each merged Commissionin Scotland Wales and Northern Irelandwould have separate accountabilities andhave to look in two different directions forthe two operational areas [Local GovernmentBoundary Commission for Wales 75/1]. Evenin England, merger could produce potentialproblems given the difference in remitbetween parliamentary and localboundaries, in particular the requirementof the latter also to ensure effective andconvenient local government [BoundaryCommission for England 62/2].

2.111 The Committee also received evidence that,in practice, there was already a gooddegree of ‘vertical’ consistency in both Walesand Scotland because there were jointsecretariats for the respective parliamentaryand local boundary commissions [SusanSmith, Local Government BoundaryCommission for Wales, 06/07/06 openingstatement]. The benefits that can berealised from such an approach include:

• spreading the peaks and troughs of therespective (local and parliamentary)review cycles;

• improving efficiency and effectivenesssince the respective Commissions canmore easily share the same hard and soft intelligence;

• more stable staffing with the retention of knowledge and expertise (a problemacknowledged by The ElectoralCommission as concerns the LocalBoundary Committee for England); and

• costs savings.

2.112 The Committee therefore believes that thisis an approach that should be adoptedacross the UK.

RECOMMENDATIONS

R17. The Electoral Commission should no longer have any involvement inelectoral boundary matters and theprovision in PPERA to allow thetransfer of boundary-setting functions to the Commission shouldbe repealed.

R18. The Boundary Committee for England should become a separateindependent body in line with localgovernment boundary commissions in the rest of the United Kingdom.

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The rules governing parliamentary reviews

It is essential that the boundary-drawingprocess should be fair to electorsthroughout the UK; it should be non-partisan, immune from politicalinterference, and up to date withpopulation movements. The currentarrangements satisfy the second and thirdcriteria but not the first or the fourth.[Dr David Butler and Professor Iain McLean,Nuffield College, Oxford 13/07/06 openingstatement]

2.113 There appears to be broad consensusbetween most academics, observers, thefour boundary commissions, The ElectoralCommission, and many politicians (but not,at present, the Government) of the needfor a review of the rules governing thereview of parliamentary boundaries, and ofthe time taken to complete such reviews(specifically in England). The reportproduced for the Committee by Dr Butlerand Professor McLean contains a concisesummary of virtually all of the concernsabout the current rules that were raised inevidence and an analysis of underlyingproblems. In our view it bears carefulreading and could form the basis for anyreview of the rules. Principally, theproblems and contradictions within thecurrent rules have led to:

• inbuilt bias that leads to an increase inthe House of Commons at each review1;

• inbuilt, progressive inequality of electoralquotas which over time will significantlyerode equal representation ‘one vote onevalue’, well outside acceptedinternational norms;

• unnecessary delays in the review process – on current form the boundaries forgeneral elections of 2008/9 and 2013/14will be based upon electoral registers of2000; and

• a lack of a requirement for carefulsequencing of local and parliamentaryreviews can add to delays and/orundermine the use of wards as thebuilding blocks of parliamentaryconstituencies.

2.114 In the Committee’s view, these are seriousproblems which must be addressed. There isan opportunity now, immediately followingthe fifth general review of parliamentaryboundaries, for a thorough review of therules so that any changes can be in placefor the beginning of the sixth generalreview, due around 2012. Failure to takethis opportunity could cause thecontinuation and deepening of theseproblems in our electoral boundaries intothe second quarter of the century.

2.115 PPERA currently provides The ElectoralCommission with the power to instigatesuch a review and make recommendations.In evidence [74/8] the Commission indicatedit would consider the exercise of thesepowers following this Committee’s report.However, consistent with recommendation17 that the Commission should cease tohave any role in Electoral Boundaries, webelieve the Commission should not conductsuch a review. The existing rules derivefrom the 1948 Act [11] which followed the Speaker’s Conference of 1943-4. TheBoundary Commission for Wales [75/2],using this precedent, suggested that analternative to The Electoral Commissionconducting such a review would be for the Speaker’s Committee to be givenresponsibility to commission the review and for the outcome to be presented toParliament though the Speaker (who is the ex-officio chair of each of the fourparliamentary boundary commissions). This, in the Committee’s view, hasconsiderable merits.

RECOMMENDATION

R19. The Parliamentary BoundaryCommission and local boundarycommission in each of the four home countries should share a joint secretariat.

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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 Act1998. This does not however remove the inbuilt bias in the rules for increases in the overall size.

Increasing participation in thedemocratic process

2.116 In its formal response to this Committee’sFifth Report, the Government indicatedthat The Electoral Commission should havean important educational role in promotingpublic awareness and participation in thedemocratic process.

The Electoral Commission will have animportant educational role in promotingpublic awareness of and participation inthe democratic process. The setting up of afully independent body, free of anysuspicion of political partisanship, offers anopportunity to make a step change in thisarea. Hopefully, this work will have acontribution to make to improving thepoor turnout in elections in this countrycompared with others [1].

2.117 PPERA provided a statutory duty for TheElectoral Commission to promote publicawareness of:

• current electoral systems in the UnitedKingdom;

• current systems of local government and national government in the UnitedKingdom; and

• institutions of the European Union.

2.118 The Act also gave the Commission the duty to:

• carry out programmes of education orinformation to promote public awarenessof the democratic process; or

• make grants to other persons or bodiesfor the purpose of enabling them to carryout such programmes.

2.119 There are currently two distinct parts tothis role:

• highlighting to the public the mechanicsof participation in the democratic process;and

• an educational and inspirational role totry and get more people involved in thedemocratic process.

2.120 It is important in any democratic societythat individuals are made aware of themechanics of participation in the electoralprocess. This involves:

• informing individuals how they registeron the electoral roll, including eligibility;

• notification of impending elections; and

• the process of voting, including eligibilityfor postal and proxy voting.

RECOMMENDATION

R20. There is strong case for the currentlegislation in relation to the conductof parliamentary boundary work tobe reviewed and where necessaryamended before the commencementof the sixth general review duearound 2012.

The review should, in particularconsider:

• addressing the progressiveinequality of electoral quotas, andincrease in the size of the House ofCommons that appear inbuilt to theoperation of the current rules;

• the time taken to conduct reviews,particularly in England where, inaddition to changes to theprocedures, the possibility ofcarrying out inquiries on a regionalbasis should be considered;

• alignment between the timing oflocal and parliamentary boundaryreviews to ensure stable localgovernment boundaries as thebasis for each parliamentaryreview; and

• the question of a role for keepingthe operation of the rules underreview and ensuring consistency of approach by the four BoundaryCommissions.

This review should not beundertaken by The ElectoralCommission. An independent reviewcommission for this purpose could beestablished and overseen by theSpeaker’s Committee with theoutcome presented to Parliamentthrough the Speaker.

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2.121 Communicating this information hasbecome even more vital over recent yearsbecause of changes in electoral legislation,the use of different voting systems indifferent elections held on the same dayand changes to the actual voting process.

2.122 For example, The Electoral Commission hasplayed and continues to play an importantrole in Northern Ireland. It was responsiblefor informing electors about the changesthat came into being followingestablishment of the Electoral Fraud Act2002. It ran high profile advertisingcampaigns on television, radio and theprint media both during the annual canvassand in the run-up to elections in 2003, 2004and 2005. Currently, it is running acampaign to inform the electorate aboutthe changes to registration brought in bythe Miscellaneous Provisions (NorthernIreland) Act 2006 [12].

2.123 Another example is the elections inScotland in 2007. Here the Commission hasa vital role to play to inform voters aboutthe three different voting systems beingused at the two sets of elections. Withoutthis type of input it is clear that asignificant number of voters in the case ofNorthern Ireland would have turned up tothe polling station without anyphotographic identification and in Scotlandit should lead to a significantly reducednumber of spoilt votes.

2.124 The Committee believes that this area ofvoter education is closely linked to TheElectoral Commission’s core remit. As suchthe Commission should continue to haveresponsibility for promoting awareness ofhow to register and how to vote.

Voter participation

2.125 This part of the Commission’s currentmandate evoked a significant amount ofcomment, particularly during theCommittee’s public hearings. Somewitnesses commended the Commission forits work in this area.

To me it is very much the role of TheElectoral Commission. It is part of their core remit, along with regulation, topromote democracy.[Bridget Prentice MP, Minister for ElectoralPolicy 18/07/06, 464]

In contrast to this, others were critical:

I think this is an important issue, but I think somebody else ought to be doing it.[Oliver Heald MP, Shadow Secretary ofState for Constitutional Affairs and ShadowChancellor of the Duchy of Lancaster,15/06/06, 174]

2.126 The Government’s primary reason forgiving the Commission this remit in PPERAwas alarm at the continuing drop inturnout at various elections. Whyindividuals do not register or vote is ahighly subjective issue. A number ofreasons were put forward in evidence tothe Committee including:

• disenchantment with politicians and thepolitical process;

• no real differences between the mainpolitical parties;

• apathy;

• social exclusion; and

• the growth of individualism and thedecline of communal cohesion.

2.127 Those who gave evidence advocating a role for the Commission in this area wereprimarily concerned with ensuring thatindividuals were encouraged to vote:

The new Politics Network believes that The Electoral Commission has an importantrole to play in raising public awareness ofelections and the importance of voting.This role was not effectively carried outbefore the creation of The ElectoralCommission and it is a difficult role for the Government to perform. [24/3]

Torfaen County Borough Council providedwritten evidence to say:

The promotion of public awareness andparticipation in elections should rest withThe Electoral Commission alone andsufficient funds should be made availableto make this meaningful. [20/1]

2.128 In its written evidence to the Committee,The Electoral Commission defended its rolein this area while making it clear this rolerepresented a significant shift in politicalculture and that not all politicians hadwelcomed the move. In evidence to the

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Committee Andrew Tyrie MP reflected that position:

The first area where I think a mistake hasprobably been made was in asking TheElectoral Commission to take responsibilityfor voter participation. I am confident inretrospect that most people think that itshould not have. I think that it is theresponsibility of political parties. If people are not interested in politics it is our fault, primarily.[Andrew Tyrie 11/7/06 263,265]

2.129 In other evidence, Rt Hon Hazel Blears MP,Chair of the Labour Party suggested aFoundation for Democracy be set up toencourage participation in the democraticprocess:

The Foundation for Democracy would offertraining, advice, support and materialassistance for local campaigning, citizenshipeducation and involving more people indemocratic politics.[Rt Hon Hazel Blears MP, Chair of TheLabour Party 15/6/06, 433]

2.130 The Secretary of State for ConstitutionalAffairs took the view that it wasworthwhile for The Electoral Commission toexplain to electors when they should voteand how to vote but that it was notparticularly worthwhile for it to getinvolved in wider work about democraticparticipation.[Rt Hon Lord Falconer of Thoroton QC,Secretary of State for Constitutional Affairsand Lord Chancellor, 21/9/06, 141]

2.131 On balance, the Committee shares theviews expressed by Sir Hayden Phillips whenhe gave oral evidence:

I have to say that it is up to political partiesthemselves to take the lead in engagingthe public. That is actually what they arethere for and it is a challenge to them. It is not a good thing in my view, if peoplereach to ask others to undertake the taskof getting people to get engaged withparty politics and political issues, which iswhat it means when you talk about in thejargon ‘democratic engagement’. I wouldlook to the parties to do this rather than a quango, however distinguished.[Sir Hayden Phillips 21/09/06, 270]

2.132 The Commission’s statutory duty, supportedby a ring-fenced £7.5m per annum budget,is, in the Committee’s view, not within, orsupportive of, its core regulatory tasks. The evidence of any impact, in terms ofincreased turnout at elections is at bestmixed and some have argued negligible.The Commission’s own work suggests thatthe main reason why people choose toexercise their right to vote is related tocompetitive political parties and policies.We therefore recommend that this broadstatutory duty be removed from theCommission.

2.133 The evidence provided on this issue firmlypointed to this function as being theresponsibility of political parties. However,it is unlikely that they have the capacity todo more work in this area than they doalready and, therefore, the question ofsome limited public funding arises. This fallsclearly in the remit of Sir Hayden Phillips’review of political party funding, whichincludes consideration of increased statefunding. The Committee has alerted SirHayden to its conclusions in respect of theCommission’s mandate on voter engagementand no doubt he will consider this issue aspart of his review.


2.134 Before the provisions in PPERA came intoeffect, electoral policy was the responsibilityof a very small unit in the Home Office, andat the time it appeared to make sense togive The Electoral Commission responsibilityfor developing policy on electoral mattersparticularly as the Government was keen toproceed with a comprehensive electoral

RECOMMENDATIONS

R21 The Electoral Commission shouldretain a clearly defined statutoryduty for the provision of publicinformation on the mechanics of theelectoral process including electoralregistration procedures, how to voteand explaining any changes to theelectoral system.

R22 The Electoral Commission should nolonger have the wider statutory dutyto encourage participation in thedemocratic process.

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modernisation strategy. However, in 2003,following government changes, responsibilityfor electoral issues was transferred to thenewly created Department for ConstitutionalAffairs (DCA). Since then, DCA has built upa substantial Electoral Policy Division whichis responsible for government policy on mostelectoral matters in England and Wales.

2.135 Since its creation, The Electoral Commissionhas published various policy documents themost significant being Voting for Change,published in 2003, which made a numberof recommendations for changing theelectoral system in the United Kingdom. Alarge number of these recommendationswere accepted by the Government andformed the basis of the ElectoralAdministration Act 2006. However, themost significant proposal, to introduceindividual registration, was rejected by theGovernment.

2.136 In its evidence to the Committee, theGovernment said:

The role of the Commission in thedevelopment of policy has probably takenon a prominence that was not expectedback in 2000. Expectations about what it isable to achieve have risen as a result. Atthe same time it faces a number ofoperational challenges which would nothave been foreseen in 2000.[47/1]

2.137 It is clear that DCA now has the capacity todevelop electoral policy on behalf of theGovernment and it is right and proper thatthey do so. The Committee also believesthat The Electoral Commission must be seento be independent if it is to carry out itsregulatory functions effectively:

It has to be, I think, a body that is separatefrom the policy formulation position. Theycan give information about things but ifyou want to be somebody completelyseparate from the political process, which I am absolutely sure The ElectoralCommission should be, then it is mucheasier to be in that position if there is notan overlapping policy role betweengovernment on the one hand and TheElectoral Commission on the other.[Lord Falconer of Thoroton, Secretary ofState for Constitutional Affairs 21/9/06, 146]

2.138 The Electoral Commission itself appears tobe aware that the current status quo is nolonger tenable:

Moving more into the operational areaprobably means pulling a little bit awayfrom others. We would still be an influenceon policy but the notion of The ElectoralCommission as the sort of lead on electoralpolicy seems to me to be actually a bridgetoo far.[Sam Younger, Chair of The ElectoralCommission 13/6/06, 95]

2.139 In addressing this issue the Committeeagrees with the Government’s view that itis no longer appropriate for The ElectoralCommission to have responsibility forreviewing electoral policy:

Decisions on the electoral system arepolitical ones, and in the final analysis theymust be taken by politicians.[Andrew Tyrie MP 35/9]

2.140 The Committee has taken this view for twomajor reasons:

• it is the role of government to developpolicy and introduce legislation toParliament; and

• there is a potential conflict of interest forany independent body between being aneffective regulator and formulating policythat could have a direct impact on thearea the body is regulating.

2.141 While the Committee is proposing that TheElectoral Commission no longer take thelead on electoral policy, it firmly believesthat it should have a role in providingadvice on the suitability of existing andnew electoral legislation. As a regulator itshould, in the course of its operations,develop a thorough knowledge of what isworking and what is not. If something isnot working or policy proposals are likelyto cause problems (see also Chapter 5, R42p2.28), then The Electoral Commissionshould have a duty to make suchobservations public.

RECOMMENDATION

R23 The Electoral Commission should nolonger have a role in undertakingpolicy development in relation toelectoral legislation. This functionshould be the responsibility of theappropriate Secretary of State forConstitutional Affairs.

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Election reports

2.142 In the Fifth Report the Committeerecommended that The ElectoralCommission should publish a report on theconduct and administration of each majorelection or referendum within six monthsof it taking place. In PPERA this wasspecified as reporting on General Elections,European Parliamentary Elections orelections to the three devolved legislatures.

2.143 The Electoral Commission has published a number of election reports since 2001.They have been particularly welcomed in Northern Ireland, Scotland and Walesand the evidence the Committee receivedindicated that, because of the variouschanges to electoral law and voting systemsin the various elections to the devolvedlegislatures, those particular reports haduseful recommendations to make. However,the Committee was disappointed by thestandard of the Commission’s report on the2005 General Election which was not acomprehensive or considered account. Itshould be expected that, following the nextGeneral Election, the Commission publishesa comprehensive report in one volume onthe important aspects of that election.

2.144 At the time of its Fifth Report, theCommittee envisaged that such a post-election report would draw attention toany novel features of the election; also toany deficiencies that had emerged in itsadministration and in the law governing it.We think these reports should cover suchareas but they should also include a specificsection concerning incidents andallegations of electoral fraud. This sectionshould also cover what action was taken byelectoral administrators to minimise the riskof electoral fraud. Additionally, followingelections in May 2007, it is essential thatThe Electoral Commission includes in itselection reports an assessment of theprovisions introduced by the Electoral

Administration Act, including theeffectiveness of the provisions of postalvoting on demand (see also Chapter 5,R41).

2.145 Although The Electoral Commission doesnot currently have a statutory duty toreport on local elections, the Committeebelieves that the Commission’s remit shouldbe widened to cover local elections inEngland, Northern Ireland, Scotland and Wales.

RECOMMENDATIONS

R25. The Electoral Commission’s reports oneach election should cover incidentsof electoral fraud and the actionstaken to minimise fraud, also theeffectiveness of the new provisionson postal voting on demand. Thisshould apply in reports for the May2007 local elections.

R26. The Electoral Commission’s statutoryremit to report on the conduct ofelections should be extended tocover local elections in NorthernIreland, Scotland and Wales.

RECOMMENDATION

R24 The Electoral Commission shouldcontinue to provide advice on thesuitability of existing and newelectoral legislation in respect of itsability to perform its two principalstatutory duties.

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References

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


3. The Funding of Political Parties in theUnited Kingdom: The Government’sproposals for legislation in response to theFifth Report of the Committee on Standardsin Public Life (Cm 4413 – July 1999).

4. Committee on Standards in Public Life:Review of The Electoral Commission, Issuesand 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 AffairsCommittee, 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.

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Introduction

3.1 In the previous chapter the Committee setout its recommendations for an amendedand refocused regulatory mandate for TheElectoral Commission. In this chapter weconsider the governance of The ElectoralCommission, which is of major importanceto fulfilling its mandate effectively.

3.2 The framework put in place for thegovernance of The Electoral Commissionmust ensure its independence, impartialityand competence. The Commission must be governed so as to ensure the confidenceof the public, of political parties and ofelectoral administrators who are subject toits regulatory approach. To do this it mustshow leadership and integrity in fulfillingits mandate.

3.3 This Committee’s principal concern in itsFifth Report [1] regarding the governanceof The Electoral Commission was to ensurethat the Commission was independent ofgovernment and of political parties. Fromthis the Committee derived a number ofimportant principles that it believed shouldunderpin the procedures for determiningthe membership of the Commission’sgoverning body, the electoral commissioners. The recommendations made by theCommittee reflected these principles, butwere not prescriptive about how theymight be achieved:

R75 The Commission should be, and beseen to be, an independent and impartialbody. Its members [Commissioners] shouldbe chosen on a non-partisan basis and bymeans of a non-partisan procedure. Itsmembers should nevertheless be acceptableto the leaders of the main political parties.

R76 The members of the Commissionshould be given long periods of office andshould enjoy substantial security of tenure.

R77 The Commission should consist of fivepart-time members.

3.4 The Government, in its response to theCommittee’s Fifth Report [2], acceptedthese recommendations and proposed that:

• there should be not less than five, but notmore than nine electoral commissionersand all would be Crown appointments.The number of commissioners wasincreased from that proposed by theCommittee to take account of the widermandate proposed by the Governmentand, in particular, to deal with theprospect of the Commission assumingresponsibilities for parliamentaryboundaries;

• the commissioners and the chair shouldbe appointed under Royal Warrant. The powers of Her Majesty would beexercisable on an Address from the House of Commons, with no motionbeing made for such an Address withoutthe agreement of the Speaker of theHouse of Commons and after consultationwith the leaders of registered parties(with at least two members in the Houseof Commons); and

• commissioners would be appointed for a term of up to ten years and are onlyremovable within their period on specificgrounds and then with the agreement ofthe House of Commons. Terms would berenewable but with the expectation that,in line with the Commissioner for PublicAppointments’ guidance, no-one wouldserve longer than ten years.

3.5 These arrangements were reflected in thePolitical Parties, Elections and ReferendumsAct 2000 (PPERA) [3]. However, during thecourse of the passage of the legislation theGovernment brought forward a number ofimportant amendments that were designedto further strengthen confidence in theindependent and impartial nature of TheElectoral Commission. As a result PPERAalso provides for:

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Governance of The Electoral Commission

CHAPTER 3:GOVERNANCE OF THE ELECTORAL COMMISSION

• restrictions on who can be the chair ofthe Commission, an electoralcommissioner or the chief executive ofthe Commission. Restrictions include anymember, officer or employee of aregistered party; anyone who, in the lastten years, has been an officer oremployee of a political party; and anydonor in the register of donations;

• as a consequence, the chair of theCommission, an electoral commissioner orthe chief executive of the Commission isrequired to stand down from office if heor she consents to being nominated as acandidate at a relevant election or tobeing included in a list of candidates atsuch an election; or takes up office oremployment with a registered party or isnamed as a donor; or becomes a partymember; and

• further restrictions were placed uponwho could be an employee of TheElectoral Commission. Except for the banon political party membership, thesemirror the restrictions on who may becommissioner or chief executive, includingceasing to be an employee if any of theserestrictions occur during employment.

3.6 The first electoral commissioners wereappointed in January 2001; two for a four-year term, three for a five-year term andthe chairman for a six-year term. At thattime, the Home Office was the leadgovernment department for electoralmatters and undertook the appointmentsprocess through open competition and anindependent selection panel. In 2004 it wasnecessary to decide what to do in relationto the first batch of appointments due toexpire – given that PPERA does not explainwhere the responsibility lies, nor therequired process for the selection ofcandidates leading up to a recommendationto the Speaker. Given the statutoryindependence of the Commission it was feltto be inappropriate for government to takethe lead and, in view of the Speaker’sstatutory role in the appointments process(paragraph 3.4 above), he took overallcharge. A similar procedure was followed in2005 when the second batch ofappointments was due to expire. On bothoccasions each of the commissioners whohad completed a first term wasreappointed for a further term.

3.7 There are five current electoralcommissioners: Sam Younger (chair), Glyn Mathias, Karamjit Singh CBE, Sir NeilMcIntosh CBE, and Pamela Gordon. Peter Wardle is the chief executive andaccounting officer. On 8 November 2006,the Speaker’s Committee announced [4]that Sam Younger had accepted a furtherperiod of office, to expire on 31 December2008, subject to the statutory consultationrequired of the registered leaders of certainpolitical parties and the agreement of theHouse of Commons. The announcementmade clear that the reappointment was inaccordance with the Commissioner forPublic Appointments’ Code of Practice.

Overview

3.8 The restrictions placed on who can be anelectoral commissioner or an employee ofthe Commission, introduced during thepassage of PPERA, are a robust (and itcould be argued draconian) approach toimplement the principles of membership ofthe Commission set out by this Committeein its Fifth Report. The measures wereclearly intended to ensure that TheElectoral Commission as a whole(commissioners and staff) is, and isdemonstrably seen to be, independent andimpartial in the discharge of its statutoryfunctions.

3.9 It is clear, however, that the practical effectof the restrictions on commissioners andstaff, the so called ’ten-year rule’, is tomore or less exclude anyone who has haddirect experience of a political party andthrough that, direct involvement in thepolitical process. As Dr Alan Whitehead MPsaid in reference to the restrictions onCommission staff [11/07/06, 219]:

Bearing in mind that most employees ofThe Electoral Commission at middle rankingand junior level are under the age of 40,effectively that means that they are barredfor life from ever being involved in thepolitical process, which seems strange.

3.10 A number of witnesses during the inquiryquestioned whether such restrictions,although aimed at ensuring an importantprinciple (independence and impartiality),are appropriate for a regulator which, bydefinition, must possess expertise,knowledge and competence of the sectorto operate effectively. Comparisons have

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been made with other regulators operatingin similarly sensitive sectors which, althoughhaving clear rules to prevent real andapparent conflicts of interest among non-executive Board members and staff, do notpreclude contemporary experience andinvolvement in the regulated sector. Indeedmost regulators actively seek suchcontemporary experience.

3.11 The Committee’s concern therefore hasbeen to consider whether, after five years,these measures have ensured real andperceived impartiality and independence ofthe Commission, and helped theCommission to fulfil its statutory mandate,in particular its regulatory functions.Inevitably, our consideration of theCommission’s appropriate futuregovernance arrangements takes account ofour recommendations in Chapter 2 for aclearer, refocused mandate for theCommission, including the removal of somestatutory duties – in particular, anyresponsibility for electoral boundaries.

3.12 During the inquiry the Committee receiveda spectrum of views from witnesses aboutthe effectiveness of the current governancearrangements for The Electoral Commission.On the issue of the current restrictions onwho can be a commissioner, the viewsexpressed were to some extent polarised.There is a clear consensus that, whateverthe arrangements, a key aim should be tocontinue to ensure the real and perceivedindependence and impartiality of theCommission from government and politicalparties. However, views varied markedly onwhether the current arrangements haddelivered this in practice, particularly giventhe current breadth of the Commission’smandate. There was also varied commentconcerning whether the competence andexperience to deliver the mandateeffectively may have been sacrificed.

3.13 In the following section we set out some ofthe arguments put forward and theevidence received during the inquiry,before outlining the Committee’s views andrecommendations on how to address thekey issues.

Restrictions on staff of The Electoral Commission

3.14 The evidence the Committee receivedduring the inquiry indicates that there is abroad consensus that the current blanket

restrictions, the ten-year rule, placed onemployees of the Commission aredisproportionate and place a significantbarrier to the Commission effectivelydelivering its mandate. This view is sharedto varying extents by the Government, theSpeaker’s Committee, political parties, MPs,electoral administrators, academics andcommentators and includes The ElectoralCommission itself [74/11]. Most witnessesexpressed a view that the restrictions hadcreated a perverse situation whereby someof the very people who have the necessaryexperience and knowledge that wouldmost assist the Commission to become the effective regulator are excluded from employment.

3.15 This is a view that the Committee shares.We do not believe that such a blanket ruleis justified, proportionate, or indeednecessary to ensure the impartiality andindependence of staff employed in theCommission, or more broadly, of theCommission itself.

3.16 The Committee is not aware of any otherregulators that have such restrictions on allstaff in terms of their previous experienceand employment. Such rules do not pertainamong comparable overseas ElectoralCommissions, such as the Federal ElectionCommission (USA), Elections Canada andthe Australian Election Commission. As amatter of course many regulators dorequire a ‘cooling off’ period for individualsmoving from a regulated body to theregulator (and visa versa). There are alsostrict rules to deal with real and perceivedconflicts of interests once an individual isemployed. However, the imposition of ablanket ten-year rule on all employeesappears unprecedented.

3.17 Some witnesses did recognise that certainrestrictions on staff might still beappropriate, in particular for the mostsenior members of staff. This avoids real orperceived bias and ensures that the publicand political parties remained confident inthe regulator’s independence:

…we have no objection to a relaxation ofthe ten-year rule in relation to staff – andpotentially even the removal of anyrestriction whatsoever. A possible modelmight be to apply the sort of rules thatoperate in respect of civil servants. The onlyexceptions to this might be the most seniorstaff of the Commission who have

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delegated responsibility (or significantinfluence in) decision-making.[The Electoral Commission 74/11]

3.18 The Committee agrees that a balance needsto be struck to avoid potential conflicts ofinterest and/or perceptions of bias. The riskof this will be highest and potentially mostdamaging for the most senior executivepositions in the Commission: the chiefexecutive and members of the executivemanagement board, who will include theregional electoral officers we recommendin Chapter 2. These positions will mostinfluence regulatory decisions. TheCommittee therefore believes thatrestrictions should remain for these posts,but need not be as draconian as the ten-year rule. A five-year rule would be moreappropriate.

3.19 For other staff it was suggested that therules that operate for civil servants couldapply. However, these rules [5] deal onlywith restrictions on political activity whenalready employed and for ’politicallyrestricted’ posts (which would beappropriate for The Electoral Commission).This would not therefore address the issueof any cooling-off period restriction onemployees. Given the refocused regulatorymandate we propose for the Commission inChapter 2, we believe that it would not beappropriate, for example, for a party agentto move directly from this post to deal, thenext day, with regulatory mattersconcerning that party. For this reason, webelieve a limited period of restriction is stillnecessary and suggest that one-year isappropriate.

Electoral commissioners

3.20 The issue of the restrictions on who can bean electoral commissioner generated someof the greatest interest and debate in thisinquiry. People tended to hold strong and,at times, passionate views on the merits or

otherwise of enabling some commissionersto have direct and contemporaryexperience of political parties. Thearguments for and against some relaxationof the ten-year rule have been laid out andthere are valid points on both sides. Thearguments are finely balanced and may restupon perceptions, which are important, asmuch as practical realities which, ultimately,should be the main concern:

By all means, have admirable party advisory committees who can express views, have some forum in which they can express views, but keep themabsolutely off the Commission. That is thething we both of us felt very strongly aboutas we talked about.[Dr David Butler 13/07/06, 234]

My own view is that falling over backwardsto avoid having politicians on the body, ofcourse you must make sure party politicalviews do not in any way intrude. Of courseyou must ensure the politicians cannot, as itwere, dominate the body. But The ElectoralCommission is engaged in seeing how thepolitical process in part works. You shouldhave people who have been engaged inthe political process there to help you – notyou but The Electoral Commission – orthere will be people who say it does nothave the confidence of those engaged inthe process. It needs the confidence ofthem but it also needs the confidence ofthe public as well. I think you can do both.[The Rt Hon Lord Falconer of Thoroton QC,Lord Chancellor and Secretary of State forConstitutional Affairs 21/09/06, 168].

3.21 Very broadly, academics, somecommentators, electoral administrators,boundary commissioners, some smallerpolitical parties and The ElectoralCommission itself believe that the ten-yearrule on the appointment of Commissionersprotects the independence and impartialityof the Commission (real and perceived) andshould therefore remain. In summary theprincipal arguments put forward againstany relaxation of the restrictions are:

• commissioners who have any directaffiliation, current or previous, with anypolitical party would compromise boththe real and perceived independence ofthe Commission. The Commission couldbecome a forum for brokering ‘deals’between the parties on key regulatoryissues;

RECOMMENDATION

R27. The current ban on employingindividuals at The ElectoralCommission who have been politicallyactive over the previous ten yearsshould be reduced to one year. Forsenior management and regionalelectoral officers the length of theban should be reduced to five years.

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• as such, commissioners could act asrepresentatives of their particular party’sinterests and, collectively, suchcommissioners could seek to influence the Commission as a whole in favour ofpolitical parties’ interests, rather than thepublic interest. Electoral Commissions inother countries where the governancestructure is overtly political were cited as examples;

• decisions on difficult regulatory issues –such as a decision to impose a fine (as werecommend in Chapter 2) or reference tothe Director of Public Prosecutions (DPP)for a prosecution, would be tainted withthe perception of possible political bias or‘quid pro quo’ deals; and

• the current unitary1 nature of theCommission would be undermined. Evenif the rules were relaxed only for a minority of commissioners, the Commission as a governance body could be perceived,and might operate merely as a forum forrepresentatives of particular groups topursue their different interests, not justpolitical parties but also local governmentand devolved administrations.

3.22 However, it must be acknowledged thatsome of those expressing these views weredoing so specifically in the context ofCommission’s current mandate, includingresponsibility for electoral boundaries (for example, Dr David Butler [13/07/06,233], and the Boundary Commission forEngland [5/2]).

3.23 Many of the witnesses who opposed anyrelaxation of the rules neverthelessrecognise a shortfall in the extent to whichthe Commission has managed to engagewith elected politicians and political partiesin key aspects of its work. A numberproposed the establishment of a statutoryadvisory group, similar to arrangementsthat exist in Canada and Australia [seeoverseas summary in volume 2]. TheElectoral Commission itself clearly hasconcerns about this issue and, in particular,their engagement with electedrepresentatives:

…the one thing we [commissioners] do nothave is the experience of operating aseither elected politicians or actively withinparties. Therefore we need to have access

to that expertise and experience, and thatwe recognise.[Sam Younger, Chair, Electoral Commission14/09/06, 388]

The Commission is now making efforts toaddress this issue by setting up an informaladvisory group which could be put on astatutory footing:

There are various ways we have tried toplug that gap. Most recently, and I thinkprobably this is overdue, and I hope it willwork and is without prejudice to whatmight happen in the future eitherstatutorily or otherwise – but we haveestablished a small reference group ofthree members of the House of Lords, threemembers of the House of Commons, fromeach of the main parties.[Sam Younger, Chair, Electoral Commission14/09/06, 391]

3.24 Irrespective of this Committee’s conclusionsabout the future governance arrangementsfor the Commission, we believe that this isa welcome development by the Commissionthat should be continued.

3.25 On the other hand, all the main politicalparties, some MPs and commentators, andthe Speaker’s Committee have arguedstrongly for more direct contemporarypolitical experience in the governancearrangements. Most suggest somerelaxation of the ten-year rule for theappointment of electoral commissioners.Almost without exception, those who haveargued for some relaxation are not seekinga majority of commissioners with suchdirect experience, recognising the balanceto be struck and perceptions ofindependence. Rather they seek asignificant minority that would reflectexperience across the political spectrum. In summary, the principal arguments putforward are that:

• it is fundamentally untenable for aregulator to have a governing bodywhich contains no-one with directexperience of the sector underregulation;

• for a regulator to be effective andcredible it must have the confidence ofthose it regulates. The Commission willcontinue to fail to generate thisconfidence if its governance structure

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

does not include people with direct,contemporary political experience;

• some aspects of the Commission’s workthat have led to justified criticism overthe last five years would not haveoccurred with a governing body more intune with the way political parties andthe political process work in practice;

• true independence and impartiality isbest ensured by input from experience of the various sides of politics and thepolitical process and helps avoidunwitting bias to either the governmentor any particular political party; and

• the current restriction contributes to theunhelpful perception that politics is anuntrustworthy and undesirable activitywhose participants cannot be trusted toact in the public rather than politicallypartisan interest.

3.26 The Committee believes the arguments forand against some relaxation of the ten-yearrule for electoral commissioners are wellbalanced. The Electoral Commission doesappear to have established itself in the eyesof the public as a truly independent body.Experience from overseas and internationalbest practice [6] demonstrates thatindependence of such bodies is highlyprized and any erosion of this would be asignificant loss for The ElectoralCommission. However, the inclusion ofdirect contemporary political experience onthe governing body does not necessarilyimply a loss of independence [6]. TheCommittee has much sympathy with thosewho regard such claims as feeding publiccynicism in politics and a perception,fuelled by the media, that politics is somesort of disreputable activity that should be avoided at all cost. This is not true andsuch perceptions damage public life andthe engagement of the public in thepolitical process.

3.27 The Committee has therefore focused onthe competence and experience ofcommissioners required for the Commissionto deliver its statutory mandate effectively.Some of the evidence that we have receivedindicates that those whom the Commissionhas regulated have not been uniformlyconfident about the commissioners’experience of the political process, electionsand political party finances in the last five

years. Indeed the Commission’s own concernabout “lack of engagement with MPs andpoliticians more widely” is symptomatic ofthis shortcoming. We strongly believe thatestablishing confidence betweencommissioners and those they regulate isessential for the Commission’s futuregovernance arrangements.

There were other cases where I think theCommission did not understand thedistinction between those things whichconfer advantage on a candidate in anelection, and therefore should be looked atand costed by them and declared to them,and those things which are part and parcelof being a member of parliament andcarrying out public duties… All of thesethings, I think, illustrated a lack ofawareness of what went on in the realworld of being a politician and not of apartisan character.[Rt Hon Alan Beith MP 15/06/06, 369].

3.28 The Committee also notes that theinvolvement of politicians in other bodiesconcerned with the broader regulation ofpolitics has worked well and broughtsignificant benefits. This is the case in theCommittee’s own composition and also inbodies such as the House of LordsAppointments Commission and theAdvisory Committee on BusinessAppointments. We do recognise that thesebodies have only advisory not executivefunctions, unlike the Commission, and thatthis may argue against similar politicalparty nominees as electoral commissioners.However, in local government, theStandards Board for England and the AuditCommission have executive regulatorypowers and both have ‘political’ boardmembers in a minority. In these cases,although nominations for suitablecandidates are sought from the three mainparties, the positions are also advertisedand the selection process is a competitiveone. In addition to requirements forpolitical experience, successful candidatesmust also satisfy the criteria that apply toother ‘non-political’ board member orcommissioners. These bodies have beeninvolved in difficult and controversial issuesbut none of them, we believe, could bejustifiably accused of a lack ofindependence or impartiality.

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3.29 On balance therefore, the Committeebelieves that some relaxation of the ten-year rule is necessary to enable a minority ofCommissioners to have direct, contemporarypolitical experience. This will ensure thatthe Commission can operate effectively as aregulator and retain the confidence ofthose whom it regulates. To accommodatecommissioners with experience across thepolitical spectrum (for example from thethree main parties and one from a smallerpolitical party), the number of Commissionerswould need to be increased, so thattogether these fours posts were in asignificant minority. Such an arrangementwould also need to reflect some keyprinciples to maintain the unitary nature of the board and avoid direct conflicts ofinterest for holders of the four newcommissioner posts.

3.30 The Labour Party in its evidence [37/2]proposed that:

the number of commissioners be increasedto twelve, of which seven (including theChairman) would be independent as set outin PPERA 2000 at present. The remainingfive would be appointed on the followingbasis. One commissioner appointed by eachof the three main parties in the House ofCommons (the Labour Party, TheConservative Party, The Liberal Democrats)one commissioner appointed by the otherminor parties in the House of Commons,and one commissioner appointed by theAssociation of Electoral Administrators.

The Conservative Party and the LiberalDemocrat Party suggested similar models.[Oliver Heald MP, Conservative, ShadowSecretary of State for Constitutional Affairsand Shadow Chancellor of the Duchy ofLancaster 15/06/06, 185; and Simon HughesMP, Shadow Secretary of State forConstitutional Affairs and AttorneyGeneral, President of the Liberal DemocratParty 15/06/06, 308]

3.31 The Committee does not believe that directnomination or appointment by politicalparties of even a minority of commissionersis the appropriate way forward. Such amechanism might imply that thesecommissioners would be representatives ofthat particular party’s interests in anyCommission deliberations or decisions. Thiswould, in our view, undermine the unitarynature of the Board of Commissioners. Anumber of witnesses who supportedrelaxation of the ten-year rule were also

cautious of representative appointments,fearing that the Commission could becamea forum for party political deals withoutdue weight given to the public interest:

…I do not think it should be what theGermans call die Proporz. It should not allbe lined up. This is my own view; I am notsure we have Hansard Society view. I thinkthat there is a danger that you get whathas happened with the Federal ElectoralCommission in the States, which has reallyjust become a forum in which the partiesnegotiate. It is really no more than that; itis a place, as you have no doubt observed,where the parties cut their deals. I thinkthat would be extremely undesirable…

There is a danger, if the party nomineesbounce in the traditional way, that you areimplicitly saying to the other members ofthe Commission, “You sit back while thepoliticians do the deals”. I do not think thisshould be a deal-led body; I think it shouldbe a public-interest, rule-led body. That iswhat makes me slightly nervous aboutgetting over mechanistic in that way. Butthe presence on the staff and on theCommission itself of people with politicalclout and nous, albeit it no longer in themiddle of the fray, seems a good thing.[Lord Holme, Chairman, Hansard Society07/09/06, 263-266]

3.32 The Committee therefore believes that anopen competitive selection process for suchpositions is the best approach and thiscould include political parties encouragingparticular individuals to put themselvesforward for appointment.

3.33 As we have noted, other regulators doinclude people with direct contemporaryexperience of the regulated sector on theirboards although they have protections inplace against conflicts of interest. Anyrelaxation of the ten-year rule for theCommission must ensure similarprotections. Some witnesses who arguedfor a relaxation of the rules referred to theneed to recruit commissioners with “veryrecent” political experience or “no longeractive politicians” or those “no longerholding an official position within apolitical party”. These views reflect theneed to ensure that a commissioner doesnot have a direct conflict of interest withthe issues or decisions dealt with by theCommission. The principal potential conflictis a direct interest in the fortunes, electoralor financial, of a particular political party.

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We do not believe that this extends as faras membership of a party. But it doesclearly extend to a commissioner whocontinues to be an elected representativeof that party or an appointed official orrepresentative (i.e. a Peer taking the partywhip). These restrictions should, in ourview, remain.

3.34 Finally, and as we highlighted in Chapter 2,there are substantial concerns about theabsolute separation of political interestsfrom the actual process of decidingelectoral boundaries – as opposed topresenting evidence and makingrepresentations about them. Ourrecommendations here in respect of thecommissioners are made in light of therecommendation in Chapter 2 that allresponsibilities for electoral boundariesshould be removed from The ElectoralCommission.

Devolved administrations

3.35 The Committee has also consideredwhether the current governancearrangements sufficiently take account ofdevolution and the Commission’s UK-wideremit. Currently, there are threecommissioners who take a lead interestwithin the Commission in each of the threedevolved administrations, although theyare not formal representatives. Thecommissioners for Scotland and Wales arefrom each of these countries and haverespective experience and knowledge ofthem. The ‘lead commissioner’ for NorthernIreland is not from or resident in theProvince, although the Commission told theCommittee that it planned to recruit such acommissioner in the near future. Witnessesin Belfast also highlighted the difficulty offinding a candidate who would beperceived as impartial to all the politicalparties in Northern Ireland [Tim AttwoodSDLP 21/06/06, 85, Richard Bullick DUP21/06/06, 185, Sean Begley Sinn Fein21/06/06, 377].

3.36 The evidence the Committee received inScotland, Wales and Northern Ireland wassupportive of these arrangements. Thisapproach appears to have worked well andhas been well received by the devolvedadministrations, respective electoraladministrators and politicians. There weresome witnesses who suggested that thereshould be a statutory requirement forScottish, Welsh and Northern Irishcommissioners whose role would bespecifically to represent the interests ofeach of the three countries.

R30. The background and politicalexperience of the four newcommissioners must respectivelyrepresent the three main politicalparties (Labour, Conservative andLiberal Democrat) and one of theminor parties in the House ofCommons. Although individuals maybe encouraged to apply by politicalparties each post should be publiclyadvertised and candidates mustsatisfy all other criteria that apply forcommissioner posts and be subject toa selection process based upon meritfollowing the Commission for PublicAppointments’ Code of Practice.

RECOMMENDATIONS

R28. The total number of commissioners(including the chair) should beincreased to ten.

R29. The current restrictions on who maybecome an electoral commissionershould be revised for fourCommissioner appointments to enablethe appointment of individuals withrecent experience of politics and thepolitical process. New commissionerswould be appointed as individualmembers of a unitary board, not asrepresentatives or delegates of aparticular political party.

On taking up appointment, such commissioners:

• must not be an employee or officerof any political party and/or anelected representative (at European,national, devolved or local level) oran appointed Peer who takes thepolitical party whip; and

• would cease being a commissioner onbecoming any of these during theirterm of office.

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3.37 There are some similarities in thesesuggestions with the debate onrepresentation of political parties andmaintaining a unitary board ofCommissioners as discussed above. TheElectoral Commission believes the currentarrangements can adequately addressdevolution and a regional approach inEngland without requiring representativecommissioners and breaking the concept ofa unitary board:

I think we would all say that what the mostimportant thing to all of us has been thatevery commissioner has an equal status onall issues in the sense that they come to theCommission in order to take an interestand make decisions across the full range ofthe Commission’s activities. That said, itwould be inconceivable that we would notbe looking for a balance of commissionersto represent various [devolved] areas.

…And we also need to think in terms,particularly if we move down a regionalroute, of thinking about how we mightreflect regions within England. So there isan awful lot of balancing work to be done.But the core of it, I think, is that you needto have a corporate body where you feeleverybody both can be and is accepted ashaving an equal voice across the board.[Sam Younger, Chair, Electoral Commission14/09/06, 418-419]

3.38 In the Committee’s view, the currentapproach strikes the right balance betweenreflecting devolution in the governancearrangements and maintaining a board onwhich commissioners are not a collection ofrepresentatives but a collegiate body.

The role of the chair and commissioners

3.39 Developments in systems of governance in the public and private sector have led to a clear separation of executive and non-executive roles to clarify operationalresponsibilities and governanceaccountabilities. In the Committee’s FifthReport, we envisaged that, after the initialset-up of the Commission, the chair wouldbe a non-executive role and the chiefexecutive would have responsibility for day-to-day decisions [1, paragraph 11.10].

3.40 In the event, setting up the Commissionrequired the chair to take a hands-onexecutive role. This continues, although ithas reduced over time. The current chairexplained to the Committee that he wasindeed now starting to take a moreconventional non-executive role [SamYounger 13/06/06, 265] and the Speaker’sCommittee confirmed that they were inprocess of considering this issue [PeterViggers MP, 13/06/06, 428]. Given the broadmandate of the Commission, thecommissioners themselves appear to haveneeded to take a more executive role in theearly days of establishment, includingresponsibilities for boundaries, whichrequired a significant commitment of timefrom each commissioner:

We are not like a lot of non-executivedirectors. I think it is fair to say that mycolleagues and I on average, and it doesvary, are spending 21⁄2 to 3 days a week onCommission business. When we were doingthe local government reviews in the Northof England I was more than full time.[Pamela Gordon, Electoral Commissioner,14/09/06, 383]

3.41 The Committee accepts that setting up theCommission, and its broad mandate, hasrequired both the chair and thecommissioners to play a greater part in theexecutive functions than would normally beexpected from what were anticipated to benon-executive board appointments.However, now the Commission isestablished, and with a more focusedmandate – as proposed in Chapter 2 – webelieve that it is important to make theroles of the chair, commissioners and chiefexecutive explicit. The changes we proposefor the composition of commissionersrequire the chair to have a leading role inthe governance structure. When the new

RECOMMENDATION

R31. The practice of appointing acommissioner from Scotland and acommissioner from Wales who havethe lead interest in Scottish andWelsh matters should continue andthe Speaker’s Committee shouldproceed with appointing acommissioner from Northern Irelandwho will play a similar role.

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chair is recruited (within the next twoyears) we expect the appointment to be on a part-time basis, with remunerationreflecting this, and clearly as a non-executive role. The same should apply tothe appointment of new commissioners.

3.42 Under the chair’s leadership, thecommissioners should have collectiveresponsibility for setting the overallstrategy of the Commission and overseeingits effective delivery against its statutorymandate. Advised by the chief executive,commissioners will need to take keyregulatory decisions and account for theCommission’s use of public funds to theSpeaker’s Committee and for theCommission’s activities in general. The chiefexecutive and his/her senior managementmust be responsible for the delivery of theoverall strategy.

Appointment of the chair andcommissioners

3.43 PPERA provides that no commissionerappointments should be made without theagreement of the Speaker of the House ofCommons (and after consultation by thePrime Minister with the leaders ofregistered parties) but it does not specifythe selection process or which body hasresponsibility for this. Initial appointmentswere made by the Home Office (thenresponsible for electoral matters) throughan open competition based on merit, which is now the established method forministerial public appointments.

3.44 Both the Commission [Sam Younger13/06/06, 269] and the Speaker’s Committee[Dr Christopher Ward, Clerk to theSpeaker’s Committee 13/06/06, 406] gavethe Committee assurances that theprinciples of the Commissioner for PublicAppointments’ Code of Practice would be followed for future commissionerappointments. However, a number ofwitnesses expressed concern about thetransparency of the appointment andreappointment process and a lack of clarity

about who has responsibility for theprocess – the Commission or the Speaker’sCommittee?

3.45 The Committee believes it is important toaddress both the issue of responsibility andof process. Using the example of ministerialappointments, where the sponsoringdepartment is responsible for theappointment process, then the Speaker’sCommittee should be responsible forcommissioner appointments. The Speaker’sCommittee would be responsible forbeginning the process in a timely manner,setting the role specifications andoverseeing the open competition, whichwould include setting up an independentselection panel. The Speaker would thenagree the selection panel’s recommendationafter consultation with the leaders ofregistered parties (with at least twomembers in the House of Commons).Although not a ministerial appointment,and therefore outside of the formal scope ofthe Commissioner for Public Appointments,the Speaker’s Committee should follow theOCPA Code, including the use of anindependent assessor.

Conclusion

3.46 Striking the right balance betweengovernance arrangements that ensureindependence and impartiality and theneed for contemporary experience andknowledge of the sector is a challengefaced by all regulators. But getting theright balance is critical. It will secure theconfidence of the public and those beingregulated, demonstrate independence andimpartiality and ensure the regulator’scompetence to fulfil its mandate.

RECOMMENDATION

R33. PPERA should be amended to makeclear that responsibility for theoversight of the recruitment andselection process for electoralcommissioners lies with the Speaker’sCommittee, including setting the rolespecification and convening anindependent selection panel. EitherPPERA or the Speaker’s Committeeprocedures should stipulate that theCommissioner for PublicAppointments, Code of Practice willbe followed in such appointments.

RECOMMENDATION

R32. The chair of The Electoral Commissionshould be a part-time non-executiverole. Commissioners should also benon-executive and part-time.

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3.47 Achieving this for The Electoral Commissionis a particular challenge given theimportance of public confidence andconsent in the democratic process which itregulates and bearing in mind that theregulated sector is the political system andpolitical parties – the source of members ofthe legislature(s) and executive(s).

3.48 The restrictions governing who could be anemployee of the Commission or become anelectoral commissioner, has left a gap in thecontemporary experience and knowledgeof the political process within theCommission. Evidence gathered during thisinquiry shows that this gap has reduced theconfidence of political parties andpoliticians under the Commission’sregulation, and had an impact on theeffectiveness of the Commission. We haverecommended the relaxation of theserestrictions to:

• avoid direct conflicts of interest;

• maintain the independence andimpartiality of the Commission;

• retain the unified nature of the board ofcommissioners, also taking account of thedevolved administrations;

• enable the appointment of staff whohave direct contemporary experience andknowledge of politics and politicalparties; and

• enable the appointment of a minority of commissioners who also have directcontemporary experience and knowledgeof politics and political parties.

3.49 Five years after the establishment of theCommission we also believe that the chairand commissioners should now play anexplicitly non-executive role in theirgovernance of the Commission, leaving theexecutive management team with day-to-day operational responsibilities. Under thechair’s leadership, the commissioners mustnow assume collective responsibility, asnon-executive board members, for settingthe Commission’s overall strategy andoverseeing its effective delivery by theexecutive team.

3.50 Finally, we recommend that the Speaker’sCommittee should assume the responsibilityfor oversight of the process of appointingthe chair and commissioners, and that theseappointments are made through an open,competitive and independent process inline with the requirements of theCommissioner for Public Appointments.

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References

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

2. The funding of political parties in theUntied Kingdom: The Government’sproposals for legislation in response to theFifth Report of the Committee on Standardsin Public Life, Cm 4413, July 1999.

3. Political Parties Elections and ReferendumsAct 2000, c41.

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

5. Civil Service Management Code, July 2006.

6. Council of Europe – European Commissionfor Democracy through law (VeniceCommission): Code of Good Practice inelectoral matters (CDL-AD (2002)23rev).

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Introduction

4.1 The question “Who guards the guardians?”is one that is often posed in the context oforganisations and individuals charged withregulating the activities of governmentbodies and elected representatives in ademocratic society (for example see [1]). In a mature democracy such as the UK,systems of accountability, both to theexecutive (and through it to legislature)and directly to elected representatives havebeen developed and modified over time.

4.2 However, in the case of The ElectoralCommission, charged with the regulation of key aspects of the democratic processitself, this poses a particular challenge. Theregulation of party political finances andthe electoral system involves potentialconflicts of interest among members of theexecutive and the legislature – principallythe House of Commons. Regulation ofthese areas can directly affect the politicalprospects of individual MPs, Ministers andtheir political parties. In a parliamentarydemocracy it is necessary for the regulator,The Electoral Commission, to be heldaccountable, either by the Government –and through it to Parliament – or byParliament directly, particularly for the useof public money in fulfilling the statutoryfunctions set for it by Parliament. But anysystem of accountability must also protectthe Commission’s independence andimpartiality from the possibility of undueinfluence for partisan political or electoraladvantage.

4.3 The effectiveness of any accountabilitysystem for The Electoral Commission willalso depend on:

• the clarity and focus of its mandate as setout in statute, for this will be the basis onwhich it seeks to justify resources toachieve particular outcomes, and also thebasis on which it must give an accountmore generally on its activities; and

• its governance arrangements, whichshould be designed to ensure its day-to-day independence, impartiality andcompetence and therefore sustain theconfidence of the public and also politicalparties and elected representatives whoare subject to its regulatory activities.

The Committee has considered these issuesin Chapters 2 and 3, and believes that thechanges it has proposed to give focus andclarity to the mandate and enhancedgovernance arrangements will, inthemselves, strengthen the effectiveness of accountability arrangements for TheElectoral Commission.

4.4 During the inquiry witnesses raised four keyareas where the issue of appropriate andeffective accountability arrangements forThe Electoral Commission were consideredimportant:

(i) Accountability to Parliament for theproper expenditure of its funds – i.e.the setting of the budget and throughthat oversight of the economic,efficient and effective discharge of itsstatutory mandate;

(ii) Accountability to Parliament for itsgeneral activities, policies and decisionsin discharging its statutory mandate –i.e. its overall performance;

(iii) Accountability to the devolvedadministrations, recognising that TheElectoral Commission is a UK-wide bodybut that its activities are a matter oflegitimate interest for the devolvedlegislatures and that some of theseactivities are in areas under devolvedsupervision; and

(iv) Accountability to the political partiesand electoral administrators – i.e. tothose that it directly regulates.

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Accountability of The Electoral Commission

CHAPTER 4ACCOUNTABILITY OF THE ELECTORAL COMMISSION

4.5 It is through the mechanisms for each ofthese areas, particularly i-ii, that TheElectoral Commission is accountable to thepublic through Parliament. The Commissionis also accountable to the public indirectlyin the usual manner as for other publicbodies, for example through annual reportsand stakeholder surveys. However, for thepurposes of this inquiry, the Committee hasfocused on the Commission’s direct lines ofaccountability (i-iv above).

4.6 The Committee’s approach has thereforebeen to examine the appropriateness andeffectiveness of the current accountabilityarrangements for The Electoral Commissionin each of these four areas, balancedagainst the protection of its independenceand impartiality. For each area we haveexamined the background to the currentarrangements in place before turning to ananalysis of the evidence received abouthow well these are working in practice. Aswe show, there are some overlaps betweeneach area but the principle we haveadopted is that each area is potentially aseparate line of accountability.

Accountability to Parliament for theproper expenditure of funds

4.7 In the Committee’s Fifth Report [2], theaccountability mechanisms considered for thethen proposed Electoral Commission weremostly concerned with setting budgets:

One of the main prerequisites of theindependence of the Commission would be its independence of budget. A bodywhose budget was determined through a government department and whichconsequently had to fight for resourcesagainst competing priorities in governmentcould never be perceived as trulyindependent. We therefore believe it isessential that a mechanism should bedeveloped for setting the Commission’sbudget which stresses the Commission’sindependence while at the same timeretaining a degree of accountability toParliament for the proper expenditure of public funds.

4.8 The Committee suggested that themechanism for setting the budget for theNational Audit Office (NAO) might be auseful model. This is done through acommittee of MPs, the House of CommonsPublic Accounts Commission, which

examines the proposed budget beforesubmitting it to the Treasury. Thisparliamentary committee is distinct fromthe more familiar Public AccountsCommittee, which uses the work of theNAO to hold the executive to account forthe economic, efficient and effective use of public money.

4.9 In its response to the Fifth Report [3], theGovernment agreed with the Committee’srecommendation that the Commission’sbudget should not be controlled by agovernment department and adopted thesuggestion that a model similar to thatused for the NAO should be put in place.The Government proposed the creation of“The Speaker’s Committee” for thispurpose, made up of nine members:

• six MPs appointed for the duration of theParliament by the Speaker; and

• three ex-officio members, one the chairof the relevant select committee and twoMinisters, one with responsibility forelectoral matters and one for localgovernment matters.

The Speaker’s Committee was to be taskedwith examining the Commission’s budgetand presenting it, with any modification itsaw fit, before the House of Commons. Toprovide assurance that the absence ofministerial departmental oversight wouldnot lead to runaway expenditure, theSpeaker’s Committee, in approving thebudget, was required to heed advice fromthe Treasury (again, this is similar to theNAO arrangement).

4.10 These arrangements were reflected in thePolitical Parties, Elections and ReferendumsAct 2000 (PPERA) [4], subject to oneimportant amendment that was madeduring the passage of the Act [5]. Thelegislation was amended to provide for theSpeaker to be a member and ex-officiochair of the Speaker’s Committee and itwas envisaged that he or she would play anactive role in its day-to-day administration.By employing the constitutional impartialityof the Speaker, the intention was toreinforce the independence from partypolitical interference in the accountabilityarrangements for The Electoral Commission.This is a variant of the long-standingarrangements for setting parliamentaryelectoral boundaries. However, as we

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discuss later in this section, this has hadsome unintended consequences in terms of the day-to-day operation of theSpeaker’s Committee.

4.11 The powers and duties of the Speaker’sCommittee as set out in PPERA [4] aresummarised in Table 4.1. Although theSpeaker’s Committee does have someadditional duties related to the number ofdeputy commissioners, the removal ofcommissioners, and the designation of theCommission’s accounting officer, its coreduties and powers relate to its role toensure that The Electoral Commission isoperating economically, efficiently andeffectively. Principal among these is theduty to approve the Commission’s estimate(budget) and five-year plan, and reporting

this to the House of Commons. In this rolethe Speaker’s Committee must consult withTreasury and receive reports from theComptroller and Auditor General on valuefor money aspects of the Commission’swork. If the Speaker’s Committee decidesnot to follow recommendations made, it isrequired to explain its reasons in its annualreport to the House of Commons. InChapter 3 of this report, we haverecommended that the Speaker’sCommittee’s adoption of the role ofoverseeing appointments andreappointments of the chair andcommissioners of The Electoral Commissionbe explicitly set out as a formal role inPPERA (Recommendation 33, page 62). This would add a further statutory duty tothe list in table 4.1.

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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, para19(1) and 19(2)

To receive The Electoral Commission’s annual accounts. Sch 1, para18(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) andand 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.

4.12 The membership of the Speaker’sCommittee at December 2006 is set out intable 4.2. The Speaker’s Committeeexplained in its written evidence [39/1] thatthis composition reflects the fact that theSpeaker has exercised his power tonominate five backbench members in amanner which “ensures no individualpolitical party has an overall majority,unlike the Public Accounts Commission”.

4.13 Since the establishment of the Speaker’sCommittee in early 2001 it has met onaverage three to four times a year andpublished seven reports on its activities,including summary minutes of its meetings.The National Audit Office has conductedfive ‘value for money studies’ in addition to its annual auditing of The ElectoralCommission’s accounts. There is anopportunity for MPs to table writtenParliamentary Questions about the work ofthe Speaker’s Committee and The ElectoralCommission and, since January 2002, anopportunity for oral questions. The lattertakes the form of a 15-minute period everyfour weeks shared with questions on theChurch Commissioners and Public AccountsCommission. These oral questions arecurrently taken by Peter Viggers MP, a

member of the Speaker’s Committee. Therehas also been one House of Commonsdebate on 3 July 2006 [6] engineered bythe Speaker’s Committee on the work ofThe Electoral Commission. The Speaker’sCommittee also commissioned a review bythe House of Commons Scrutiny Unit intoThe Electoral Commission with theunderlying purpose “to improve theeffectiveness with which the Committeedischarges its statutory duty” [7]. Thisreview was completed in February 2006 andprovided extremely useful background andevidence for this inquiry.

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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)

4.14 The House of Commons Scrutiny UnitReport made 40 specific recommendationsapplicable to both The ElectoralCommission and to the Speaker’sCommittee. These were in four broad areas:

• financial planning and management (ofThe Electoral Commission);

• corporate planning and management(ditto);

• the role of the Treasury and theComptroller and Auditor General (inadvising the Speaker’s Committee); and

• the Speaker’s Committee and theestimates and five-year plan.

The report identified significant weaknessesin The Electoral Commission’s budgetmanagement and monitoring, performancemanagement and risk management. Itrecognised that these were not necessarilypeculiar to The Electoral Commission, andwere well known by the Commission, alsothat remedial steps were already beingtaken. Nevertheless, the recommendationswere designed to reinforce theCommission’s determination to addressthese concerns. The Electoral Commissionaccepted all the Scrutiny Unitrecommendations that were directed tothem [31/1] and the Speaker’s Committeealso confirmed that they broadly acceptedthe thrust of those recommendations thatapplied to them [Peter Viggers MP07/09/06, 34]. The Committee endorses theScrutiny Unit’s findings and welcomes theiracceptance by both The ElectoralCommission and the Speaker’s Committee.We consider it essential that progress inimplementing these is carefully monitoredby the Speaker’s Committee on advice fromthe Scrutiny Unit (see paragraph 4.27 below).

4.15 The Committee also received additionalviews in evidence about whether theSpeaker’s Committee, as it has operatedsince 2001, was an appropriate andeffective accountability mechanism for TheElectoral Commission. Some witnesses, forexample Rt Hon Rhodri Morgan AM, FirstMinister, National Assembly of Wales[06/07/06, 362] expressed satisfaction withthe way the mechanism had operated todate. However, most witnesses consideredthat some significant improvements couldbe made to the current arrangements for

the Speaker’s Committee and/or held theview that a new mechanism should beconsidered to address the deficiencies theyidentified. There was common agreement,shared by this Committee, that it is fullyappropriate for The Electoral Commission’saccountability to be direct to Parliamentrather than to the executive through agovernment department:

I do think that it is right for constitutionalwatchdogs like The Electoral Commission tocome under Parliament not the executive.The challenge I think for Parliament is tofind more satisfactory means of calling TheElectoral Commission properly to account.[Professor Robert Hazell, School of PublicPolicy, University College London 15/06/06, 55]

4.16 One concern raised by many witnesses was the lack of a clear mechanism forParliament to hold The ElectoralCommission to account for its policies,decisions and activities:

The Commission’s lines of accountability areopaque. It seems extraordinary that a bodythat is supposed to be a standard bearerfor political practice should be overseen by a [Speaker’s] Committee in such anobscure manner.”[Andrew Tyrie MP 35/13]

This is a gap in the current arrangementsthat the Commission itself recognises andwould like to see addressed.

The bit that I feel is missing is that there isno vehicle at the moment for there being abroad parliamentary interest taken in thework of The Electoral Commission, eitherthrough a select committee or through theability to have a debate on the floor of theHouse. That is, I think, the bit where thegap is.[Sam Younger, Chair, Electoral Commission13/06/06, 3.21].

A number of witnesses proposed establishinga completely new accountability mechanismto Parliament to address both the properexpenditure of public funds, and this wideraccountability issue. Suggestions rangedfrom transferring the responsibility to theConstitutional Affairs Select Committee,creating a new Electoral Affairs SelectCommittee, to creating a new JointCommittee of both Houses.

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4.17 The concern raised is an important andlegitimate one. However, the Committeebelieves that there is an importantdistinction between the accountability forsetting and approving The ElectoralCommission’s budget, scrutinising itseffectiveness, efficiency and economy onthe one hand; and accountability toParliament for its policies, actions anddecisions on the other. Such a separationcannot be absolute and clear cut; the bodyresponsible for the budget and effective useof that budget is bound to take account ofcomments and views on performance aspart its scrutiny. Conversely, any wideraccountability for performance is also boundto take account of the allocation and use ofresources. But, in the Committee’s view,there is a significant risk that if these twofunctions are combined in the sameparliamentary committee then there wouldbe, at the very least, a perception that TheElectoral Commission’s impartiality andindependence could be compromised.

That is in order to demonstrate and ensurethat The Electoral Commission cannot beinfluenced in its regulatory or policy rolesby dependence on ministers for its budget…I want to emphasise that the statutoryresponsibilities of the Speaker’s Committeedo not include policy recommendations orpolicy development which the Commissionmay be engaged with. Those are mattersfor select committee scrutiny.[Rt Hon Alan Beith MP 15/06/06, 346 and 349]

In short, the Committee believes therewould be the risk that The ElectoralCommission could became undulyinfluenced in the way it performed itsoperational activities by concerns about thepossible impact these might have on thesetting of its budget.

4.18 For this reason the Committee does notbelieve that the remit of the Speaker’sCommittee should be extended to includewider scrutiny of the activities, policies anddecisions of The Electoral Commission, northat a new parliamentary body be createdwith such a combined and extendedmandate. The current status andcomposition of the Speaker’s Committeemake it, in our view, the most appropriatebody to continue the scrutiny of theeffective, efficient and economicaldischarge of Electoral Commission’s

statutory mandate. It is not clear to theCommittee that this could be replicated inany of the alternative suggestions putforward (4.14 above), namely:

(i) The use of the office of the Speaker(founded as it is on politicalimpartiality) as a route into theaccountability to Parliament for theproper expenditure of funds is a meansof constitutionally protecting theindependence and impartiality of TheElectoral Commission;

(ii) The composition of the Speaker’sCommittee ensures that no politicalparty has a majority1 (although thisrequires the continuation of theSpeaker’s current practice fornominating members which should beformalised in the procedures of theSpeaker’s Committee); and

(iii) The inclusion of relevant Ministers withresponsibility for electoral matters,although not in majority, is a necessaryelement in the current accountabilitymodel. In this way, the executive isincluded without undermining the roleof Parliament or the independence andimpartiality of The Electoral Commission.

4.19 However, we believe there are ways ofimproving the effectiveness of theSpeaker’s Committee and its contributionto enabling wider parliamentary scrutiny ofThe Electoral Commission. We considerthese below and in the next section.

4.20 One of the main concerns raised by manywitnesses about the current operation ofthe Speaker’s Committee is the lack oftransparency in its work. A number ofwitnesses pointed out that:

• none of the Committee’s evidencesessions are held in public;

• transcripts of meetings are not published,only summary minutes: and

• information about the Committee, its roleand reports are difficult to find on theparliamentary website.

These are significant concerns.Accountability is not effective withouttransparency. If Members of Parliament andthe public cannot judge for themselves

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

about the scrutiny to which The ElectoralCommission is subject, then they will nothave confidence in the process. FraserKemp MP made the point succinctly to us[18/07/06, 440]:

My personal view is that any committeethat meets in secret cannot by definition do accountability in 2006.

4.21 However, as Peter Viggers MP made clear ingiving evidence on behalf of the Speaker’sCommittee [13/06/06, 351], the practice ofmeeting in private is a consequence of theconstitutional position of the Office of TheSpeaker, in that the holder of the officedoes not, by convention, make publiccomment. This is an unintendedconsequence of the amendment made toPPERA during its passage (paragraph 4.10above). The chairman of the Committeemet with Mr Speaker during the course ofthis inquiry to discuss this. Further discussion was held, in public, with Peter Viggers MPwhen he returned to give further evidenceto the Committee [07/09/06, 5-9].

4.22 Here the Committee was concerned toexplore whether there was scope withinthe procedural arrangements for theSpeaker’s Committee to overcome thisunintended consequence without losingthe benefit, identified in paragraph 4.18 (i)of the involvement of the Office of TheSpeaker in the accountability mechanism.The Committee had in mind an approachsimilar to the Parliamentary BoundaryCommissions where the Speaker is also the ex-officio chair but plays no part in the day-to-day work of the Commissions. It appears that a similar arrangementwould be possible, through the proceduresof the Speaker’s Committee, without aneed to change the legislative basis of the Committee.

4.23 Such an arrangement would enable theSpeaker’s Committee to meet in public and for full transcripts of these meetings to be published as they are for most Select Committees. It would also bring the Speaker’s Committee in line with thepractice recently adopted by the PublicAccounts Commission [8], the originalmodel for the Speaker’s Committee. AsPeter Viggers MP [13/06/06, 411] and theSecretary of State for Constitutional Affairshave explained [21/09/06, 201] there will be some occasions, for example theappointment of commissioners, where

public meetings of the Speaker’sCommittee are not appropriate. However,we believe that if most evidence sessions of the Speaker’s Committee were held inpublic and full transcripts were publishedthis would enhance the effectiveness of the accountability mechanism and improve confidence.

4.24 Some witnesses also expressed concernsabout whether the frequency and length of the Speaker’s Committee meetings weresufficient for the level of scrutiny requiredof a public body whose annual budget hadgrown to well over £20 million:

At the moment I think that theaccountability arrangements are notsatisfactory and I would like to see thecommittee meeting more frequently and inpublic so that we can see The ElectoralCommission being held properly to account.[Professor Robert Hazell, 15/06/06, 68].

The Electoral Commission itself noted thatit would welcome more frequentinteraction with the Speaker’s Committee[Sam Younger 13/06/06, 324]. Peter ViggersMP told the Committee [13/06/06, 366] thatsome steps had been taken to address thisconcern by setting up an informal sub-committee that would meet more regularlyto work through and prepare issues thatwould come forward for decision by thefull Speaker’s Committee. We welcome thisdevelopment.

RECOMMENDATIONS

R34. Evidence-gathering meetings of theSpeaker’s Committee should be heldin public and the transcriptspublished. Committee deliberationsmay continue to be held in closedsession as may certain evidencesessions where the subject mattermakes this necessary.

R35. The Speaker should assume a rolesimilar to that he performs for theBoundary Commissions, standingback from the day-to-day running ofthe Committee. A senior backbenchMP, possibly from the Opposition, as deputy chair could assume theday-to-day responsibility for theCommittee, including chairingmeetings.

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4.25 In its written evidence [47/11], theGovernment suggested that provision couldbe made for Constitutional Affairs Ministersother than the Secretary of State to attendmeetings of the Speaker’s Committee on hisbehalf. This would ease the problem ofconflicting commitments which sometimesmake it difficult for the Secretary of Stateto attend. However, Peter Viggers MP waspersonally concerned that such a movemight be perceived as ’downgrading’ thestatus of the Speaker’s Committee[07/09/06, 19]. The Committee understandsthat such a provision could be made by theSpeaker’s Committee in its proceduralarrangements, without requiring alegislative change. We therefore think thatthis is best left to the Speaker’s Committeeitself if, in light of the new arrangementswe have recommended, it decides this isnecessary.

4.26 In the Committee’s view a matter ofgreater concern is the level of resourcescurrently available to the Speaker’sCommittee to fulfil its accountabilityfunction. This was highlighted in evidence(for example, the Government’s writtenevidence [47/11] and in the Scrutiny UnitReport [7]).The level of resource devoted to an accountability mechanism must beproportionate to the amount of publicmoney it is scrutinising. The ElectoralCommission is now a medium-sized publicbody with an annual budget well in excessof £20 million. However, the current levelof administrative support available to theSpeaker’s Committee consists of half acommittee clerk and two support staff[Peter Viggers MP 13/06/06,436]. In theCommittee’s view this is not sufficient. Webelieve it is important that theaccountability mechanism is to Parliament.But Parliament itself has a duty to ensurethat an appropriate level of resource isprovided to make this effective. While theCommittee cannot prescribe what anappropriate level of resource would be, acomparison with that provided forDepartmental Select Committees appears tous to be a reasonable benchmark.

4.27 As well as secretariat support the Speaker’sCommittee must also receive appropriatespecialist financial advice to assist itsscrutiny of the Commission’s estimates andfive-year plan. The National Audit Office isa key resource for the Speaker’s Committee(through its value for money reports, andannual audit of accounts) but we believethat the Scrutiny Unit Report demonstratedthe need for some additional support forthe effective scrutiny of The ElectoralCommission’s annual financial estimates.Peter Viggers MP indicated [07/09/06, 39]that such expertise might be available fromthe Scrutiny Unit.

Accountability of general performanceto Parliament

4.28 As we have made clear in the precedingsection, the Committee recognises thatthere will be some overlap between thescrutiny of resources and that ofperformance in an effective accountabilitymechanism. We also believe that theSpeaker’s Committee should play afacilitation role in this wider accountabilityto Parliament. There is already amechanism for parliamentary questions onthe work of The Electoral Commission.However, we were surprised to learn [MrViggers MP 13/06/06, 347] that at thebeginning of our inquiry there had notbeen a House of Commons debate on thework of The Electoral Commission since itwas established some five years ago. TheElectoral Commission itself indicated that itwould welcome such a debate as a usefulcontribution to their engagement withMembers of Parliament:

The area where I think we would see scopefor greater parliamentary oversight thanthere is now, is more structured occasionson which the work of the Commission islooked at by and debated by Parliamentmore widely. At the moment there is norequirement that, for example, any selectcommittee looks at the annual report and

RECOMMENDATION

R37. The House of Commons Scrutiny Unitshould be given a formal role toscrutinise The Electoral Commission’sannual financial plans and to advisethe Speaker’s Committee.

RECOMMENDATION

R36. There should be an appropriateincrease in the allocation of resourcesgiven to the secretariat support forthe Speaker’s Committee.

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that the actual Commissioner gets involvedin some of the substance. There are novehicles for a debate on the work of theCommission in Parliament. We wouldwelcome that wider relationship withParliament.[Sam Younger, Chair of The ElectoralCommission 13/06/06, 299]

4.29 This omission was remedied on 3 July 2006in a debate engineered by the Speaker’sCommittee under the ‘estimate days’procedure. The debate [6] drewconsiderable interest from MPs and manyof the issues considered in this inquiry wereraised. Given the importance of TheElectoral Commission to the democraticprocess, this is unsurprising.

4.30 As was made clear to the Committee eitherthe Government or the opposition partiescould, if they so wished, have allocatedsome of their parliamentary time to holdany number of such debates since 2000.The Committee is also mindful of thedanger of artificially engineering suchdebates when there may be little appetitefrom MPs [Peter Viggers MP 07/09/06, 25].However, the Committee believes thatregular debates by the House of Commonson the work of The Electoral Commissionwould assist its wider accountability toParliament and support the Speaker’sCommittee in its role. We believe that themore focused regulatory remit proposed inChapter 2 will make the work of theCommission of greater, not less, interest tomembers. The annual report to Parliamenton standards of electoral administration,including the electoral register (as werecommend in Chapter 2) could, alongsidethe draft five-year corporate plan, providea suitable opportunity for such annualdebates. The statutory reports by TheElectoral Commission on each election, inthe format we propose in Chapter 2, alsooffer a platform for such debates.

4.31 The use of the estimate days procedure toengineer a debate may not be the mostappropriate route to ensure that they takeplace regularly. One option would be fordebates to take place in Westminster Hallin the time allotted to the Government.

4.32 Although it is useful, an annual debate onthe work of The Electoral Commission doesnot in itself provide members with a directaccount of the policies, actions anddecisions of the Commission. The wellestablished mechanism for such scrutiny ofpublic bodies is the Departmental SelectCommittee system. On a number ofoccasions, The Electoral Commission hasgiven written and oral evidence to a varietyof Select Committees.

4.33 However, all these were inquiries intospecific policy areas; they did not seek to review more widely The ElectoralCommission’s policies, actions and decisionsin discharging its statutory remit. A numberof witnesses who expressed concern aboutthe effectiveness of the accountabilitymechanism for The Electoral Commissionidentified this as a gap in the current formalarrangements [for example, Professor RobertHazell, 15/06/06, 55, Oliver Heald MP,15/06/06, 181, Simon Hughes MP, 15/06/06,312 and Dr Alan Whitehead MP, 57/6].Because of its independent status, TheElectoral Commission has no sponsoringgovernment department and therefore no specific Select Committee to whom it can give an account for the full range of its activities.

4.34 As a number of witnesses, including itsChair, Rt Hon Alan Beith MP [15/06/06, 339],explained, the Constitutional Affairs SelectCommittee (CASC) has the greatest interestin the work of The Electoral Commissionamong all the Select Committees. CASC hastaken evidence from the Commission on anumber of recent occasions [15/06/06, 350].The Committee would not wish to make arecommendation that could affect thescope of the current departmental SelectCommittee arrangements, merely to dealwith the anomaly that the status of TheElectoral Commission presents. However,we do believe it would be helpful to find a

RECOMMENDATION

R38. There should be an annual debate inParliament on the work of TheElectoral Commission. It might behelpful if this followed theCommission’s annual report onstandards of electoral administrationin the UK (R13).

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way to establish CASC as the principalSelect Committee to whom The ElectoralCommission would give a regular accountof its policies, actions and decisions. Themore focused statutory mandate proposedin Chapter 2 provides an even closer fit topolicy responsibilities of the Departmentfor Constitutional Affairs, reinforcing thisargument for CASC to play a lead role inmaking the Commission accountable for itsperformance to Parliament.

Accountability to the devolvedadministrations

4.35 As we have already noted in Chapters 2and 3, although PPERA [4] took account of the various devolution settlements inScotland, Wales and Northern Ireland insetting the mandate of The ElectoralCommission, the practical implications ofsuch a body operating on a UK-wide basishave taken time to work through as thedevolution arrangements themselves havebegun to mature. As The ElectoralCommission has developed its mandate and governance to take account ofdevolved practice, this has reflected on its accountability to the devolvedadministrations.

4.36 The Electoral Commission has a UK-wideremit, and electoral and political partyfunding law are not devolved matters TheCommission stated in its written evidence(31/11) that it has been conscious that theelectoral process and political dynamics of the different parts of the UK varyconsiderably and that it had tried to reflectthis in its work. For example, it hasdedicated offices in Belfast, Cardiff andEdinburgh, and commissioners with leadresponsibility for different parts of the UK.

4.37 The evidence the Committee receivedduring its hearings in Edinburgh andCardiff, from the respective electoralcommissioners with lead interest indicatedthat the Commission had established goodlinks with the relevant parliamentary andassembly Committees and had givenevidence to these on a number of occasions[Sir Neil McIntosh 27/06/06, 309 and GlynMathias 06/07/06, 228]. The situation inNorthern Ireland was obviously affected bythe suspension of the assembly in 2002 but,as Commissioner Karamjit Singh comments[21/06/06, 222], there is no reason to expectthat similar effective links would not bemade as and when the assembly is restored.Witnesses in the devolved administrationsgenerally expressed satisfaction with theway in which the Commission had soughtto give an account of its activities. TheCommittee welcomes the steps TheElectoral Commission has taken to accountfor its activities to the relevant parliamentaryand assembly Committees in Scotland andWales, particularly in respect of its statutoryreports on election to the devolvedlegislatures, as well its reports on UKparliamentary and European elections. Theseappear to offer sufficient accountability forelectoral matters which are not devolved.

4.38 PPERA [4] also provides for The ElectoralCommission to give advice and assistance tothe devolved administrations – at theirrequest – in respect of devolved electoralfunctions. So far this has primarily takenthe form of requests to produce reports onlocal government elections [ElectoralCommission written evidence 48, 49 and50]. We have recommended in Chapter 2that such reports be a requirement (ratherthan an option) in the future, so as toensure comprehensive reporting onelections in the UK. In the Committee’sview it is for the devolved parliament andassemblies to decide on mutuallyacceptable mechanisms for The ElectoralCommission to account for these reportsand any other activities to the devolvedadministrations. The lead commissioner and regional electoral officers for Scotlandand Wales we propose in (Chapter 2paragraph 2.79) would clearly play a keyrole in communications with the parliamentand assembly.

4.39 The Committee did hear arguments for amore formal accountability role for thedevolved administrations [Electoral

RECOMMENDATION

R39. The Select Committee onConstitutional Affairs should buildupon its emerging practice of takingregular opportunities to scrutinise The Electoral Commission’s policies,actions and decisions.

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Commission 31/13], in particular for theinclusion of the Speakers/Presiding Officersfrom the devolved parliament andassemblies in the Speaker’s Committee[Liberal Democrat Party 46/3, and the RtHon Rhodri Morgan 06/07/06, 360].However, The Electoral Commission has aUK-wide remit set by the UK Parliament. Itreceives its funding from the ConsolidatedFund following approval by the House ofCommons and is a regulator of electoraland political party funding laws which arenot devolved. It is therefore appropriatethat formal accountability lies with theHouse of Commons through the Speaker’sCommittee. In the Committee’s view,including representatives from devolvedlegislatures would not be consistent withthe current constitutional status of TheElectoral Commission. However, incircumstances where the Speaker’sCommittee considers Commission workspecifically in relation to the devolvedadministrations, it may be appropriate toinvolve the respective Secretary of State forthe particular nation to attend that session[Government written evidence 47/11].

Accountability to political parties

4.40 A successful regulator must have in placemechanisms that enable it to engage withand consult those it directly regulates.PPERA (4, section 4) provides for theestablishment of a Parliamentary PartiesPanel as an additional mechanism ofaccountability for The Electoral Commission.The panel consists of a representative ofeach political party, with two or more MPs,appointed by the treasurer of each party.The intention was for the panel to providea forum for consultation between theCommission and political parties on thework of the Commission and, in particular,to enable parties to make representationsto the Commission about regulatory issues.The panel was convened in February 2001and has met quarterly since then. On asimilar basis, the Commission hasestablished panels in Scotland, Wales andNorthern Ireland.

4.41 However, the Westminster panel has notbeen the means of drawing wider politicalinput and expertise into the work of TheElectoral Commission as initially expected.This was widely acknowledged in evidence[for example, the Government 47/12, TheElectoral Commission 31/14, and Labour

Party 37/2]. This is not surprising, and isarguably in line with the intention inPPERA, because the panel mainly comprisesrepresentatives of the parties’administration rather than politicians.

4.42 However, the panel does appear to haveperformed a valuable role as a forum forconsultation and discussion about the detailof the regulatory framework, theregulatory approach of The ElectoralCommission and practical issues regardingcompliance with the framework [TheElectoral Commission 31/14]. This level ofconsultation and discussion is importantand we believe it is part of The ElectoralCommission’s accountability framework.The panel’s role is likely to become moreimportant in light of our recommendationsconcerning the Commission’s more focusedregulatory powers and of therecommendations arising from Sir HaydenPhillip’s review of party political funding[9]. Discussion and engagement betweenThe Electoral Commission and senioradministrators in the parties who areresponsible for compliance is clearly criticalfor the Commission to achieve theoutcomes intended from the regulatoryframework.

4.43 We believe it is unrealistic to expect thepanel, as currently constituted, to providewider political input into the work of theCommission; this could compromise itscurrent effective function. We haveaddressed the issue of political input inother terms in this inquiry report; namely,through recommendations to improvegovernance arrangements and through themeans of ensuring wider accountability toParliament. We do not believe any changeto the composition of the Political PartiesPanel or creating additional advisorybodies, as some witnesses have suggested[Electoral Commission 31/14], would add tothis objective.

4.44 The Electoral Commission has establishedthe equivalent of the Westminster panel inScotland, Wales and Northern Ireland.These have also been successful as forumsfor consultation and discussion and arevalued by the senior party administrators.In the devolved nations, these panels alsoappear to have fulfilled a wider role ofengagement with political parties, which isprobably explained by the smaller size ofpolitical communities compared to

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Westminster. The Electoral Commissionshould continue with these devolvedequivalents of the Westminster panel.Indeed, the regional electoral officers thatwe recommend in Chapter 2 might considerthe use of a similar model to ensureengagement and consultation with partyrepresentatives (local treasurers/agents) intheir own regions.

Conclusion

4.45 Establishing effective accountabilityarrangements for The Electoral Commission,as we have discussed, presents a particularchallenge. As a mechanism the Speaker’sCommittee does, in principle, strike theright balance between holding TheElectoral Commission accountable for theuse of public money in fulfilling itsstatutory functions and protecting itsindependence and impartiality frompossible undue influence for partisanpolitical electoral advantage. TheCommittee believes that, to preserve thisbalance, it is important to separate theseprincipal subject areas from theaccountability to Parliament of theCommission’s general performance.

4.46 However, evidence and experience indicatesthat the Speaker’s Committee couldoperate more effectively if its deliberationswere made more transparent and if moreadministrative support were madeavailable. We have made recommendationsthat we believe will enable this.

4.47 The Committee also considers that moreformal arrangements should be put in placefor The Electoral Commission to give awider account of its activities to Parliament.These would significantly improve theengagement between the Commission andMembers of Parliament. The Committeebelieves that this can be achieved if theConstitutional Affairs Select Committee(CASC) were to become the mainmechanism through which the Commissioncan account for its performance toParliament; also by holding regularparliamentary debates about theCommission’s work.

4.48 The Electoral Commission should continueto build upon the arrangements it hasdeveloped to give an account of its activitiesto the devolved parliament and assembliesand upon the work of the political parties

panels as useful forums for discussingregulatory issues with political parties.

4.49 Overall, it is important to stress that theeffectiveness of these accountabilityarrangements will depend upon the clarityand focus of The Electoral Commission’smandate and the extent to which itsgovernance arrangements can sustain theconfidence of the public and the politicalparties and elected representatives who are subject to its regulatory activities. The recommendations we make in other chapters have been prepared for this purpose.

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References

1. Ethics and Standards: An Issues andQuestions Paper, Public AdministrationSelect Committee, November 2005.

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

3. The funding of political parties in theUnited Kingdom: The Government’sproposals for legislation in response to the Fifth Report of the Committee onStandards in Public Life, Cm 4413, July 1999.

4. Political Parties Elections and ReferendumsAct 2000, c41.

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

6. House of Commons debate on The ElectoralCommission 3 July 2006.

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

8. Twelfth Report of the Public AccountsCommission, HC216, January 2005.

9. The Review of the Funding of PoliticalParties 2007, Sir Hayden Phillips [to bepublished].

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Introduction

5.1 The Committee has recommended inChapter 2 that The Electoral Commission begiven a clear statutory duty to be theregulator of electoral administration withthe aim of ensuring that electoralregistration and the conduct of electionsare delivered in a consistent and effectivemanner across the country. Issues regardingthe integrity of the electoral process itselfare central to The Electoral Commissionsuccessfully performing this duty.

5.2 Since The Electoral Commission wasestablished in November 2000 there havebeen some well publicised concerns aboutelements of the electoral process, including:

• the introduction of postal voting ondemand, the subsequent piloting of all-postal voting and the most recentchanges to postal voting introduced inthe Electoral Administration Act 2006 [1];

• incidents of electoral fraud andperceptions that this may be increasing;and

• the accuracy and comprehensiveness ofthe electoral register, and the system ofelectoral registration itself.

5.3 The Electoral Commission has taken publicpositions on each of these issues some ofwhich have created controversy in theirown right. The Committee thereforebelieves it is appropriate to discuss theevidence received concerning these issuesand to comment on how The ElectoralCommission might take steps to addressthem as part of its new mandate proposedin Chapter 2. We also makerecommendations on how to improvespecific aspects of the electoral process toassist The Electoral Commission in itsregulatory role.

5.4 The Committee’s overriding aim inaddressing the issue of integrity is to

improve confidence in the electoral process.A fundamental tenet of our democraticsociety, based on the universal franchise, isthat voters and the political parties havefull confidence that the electoral system isfree, fair and secure. In the introduction tothe White Paper, Combating Electoral Fraudin Northern Ireland [2] the Governmentsaid the following:

Electoral abuse is an affront to democracyand the Government is determined tocombat it wherever it occurs.

5.5 The electoral system in Great Britain isbased on trust. There is no checking thatthe names supplied at registration duringthe annual canvass are accurate nor is thereany systematic checking of voters’identification at polling stations. InNorthern Ireland the situation is somewhatdifferent as the Electoral Fraud (NorthernIreland) Act 2002 requires individuals toprove their identity before registering orvoting. There should be nothing surprisingabout a system based on trust; this is trueof many aspects of a civil society. However,while acknowledging that most individualsare honest it is unfortunately true that asignificant minority are not. Hence theincreasing numbers of anti-fraud measuresthat have been introduced into a widerange of public services and the financialservices industry. In its report [3] on the2005 General Election the Office forDemocratic Institutions and Human Rightsconcluded that:

The introduction of postal voting ondemand without the need to present areason for the application, hasdemonstrated the vulnerability of any trust-based electoral process.

5.6 While it is clearly imperative for as manyeligible individuals as possible toparticipate in the democratic process, wecan no longer base our electoral system on trust alone if we wish to protect theintegrity of our electoral system.

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Integrity of the electoral process

CHAPTER 5INTEGRITY OF THE ELECTORAL PROCESS

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Electoral fraud

5.7 Electoral fraud is an affront to thedemocratic principle of one person onevote. If left unchecked, it will eventuallyundermine trust and confidence in thedemocratic process. In any democracy thekey indicator to any election is whether theelectorate consent to the outcome.Therefore it is essential that the primarytask of any electoral system is to secureconsent. Confidence in the integrity of theprocess is key to this.

5.8 The perceived wisdom over many years inGreat Britain has been that electoral fraudwas virtually non-existent. There was theodd case of electoral fraud carried out byindividuals but if there was any organisedfraud it never came to light. Elections wereseen as free, fair and secure. However,evidence received by the Committeesuggests that since the introduction ofpostal voting on demand there has been agrowing perception that the electoralsystem is more susceptible to organisedelectoral fraud.

If you looked at what the public view ofthe integrity of the voting system was, say,five years ago and what it is now, I thinkthere is no doubt that the public havebecome very concerned about fraud in theelectoral system and the way in which itoperated over that period.[Oliver Heald MP, Shadow Secretary ofState for Constitutional Affairs and ShadowChancellor of the Duchy of Lancaster15/06/06, 73].

As far as the Committee is awareinformation about the extent ofinvestigation and cases of electoral fraud isnot collected centrally by The ElectoralCommission (or any other body). In table5.1 we have completed a list ofinvestigations and cases of electoral fraudsince 2000. This is for illustrative purposesonly and is not a comprehensive list.

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TABLE 5.1 EXAMPLES OF CASES OF ELECTORAL FRAUD INVESTIGATED BY POLICE2001–2006

(Including cases involving allegedly fraudulent electoral registration)

Completed cases as of 1 January 2007

LOCATION ELECTION ALLEGATION/ ACCUSED PROSECUTION OUTCOMEDATE OFFENCE

OldhamMetropolitanBoroughCouncil(Coldhurst, St Mary’s &Werneth wards)

Local elections2000

Personationoffences

12 menincluding Labour & LiberalDemoctrats

Yes 11 pleaded guilty,one found notguilty. Sentences of60 to 120 hours ofcommunity serviceimposed.

Burnley Generalelection May 2001

Twelve countsof forgery ofnominationsignatures

Male BNPorganiser

Yes Six monthsimprisonment.Barred for 5 yearsfrom standing for any electoraloffice

HackneyBoroughCouncil,London(Northwoldward)

Conviction date 2001

Hundreds offorged postaland proxy votes

Conservativeman and LibDem man

Yes Conservative six monthsimprisonment,Liberal Democratfour monthsimprisonment

Blackburnwith DarwenBoroughCouncil(Bastwell ward)

Local electionsMay 2002

233 fraudulentvotes

1 Labourcouncillor

Yes Three years andseven monthsimprisonment

HavantBoroughCouncil

Conviction date 2002

22 forgedpostal andproxy votes,forgery ofnominationpapers

One Labourcouncillor andthree LiberalDemocrats (twocouncillors andone candidate)

Yes Labour man four monthsimprisonment.One Lib Dem two monthsimprisonment.Two other LibDems fined £200 each

OldhamMetropolitanBoroughCouncil

Local elections2003

Personation &conspiracy todefraud

9 people No File submitted toDPP but not takenforward – lack offorensic evidence

GuildfordBoroughCouncil(Merrowward)


Three chargesof forgingdocuments

FormerConservativecouncillor

Yes Four monthsimprisonment

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

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OldhamMetropolitanBoroughCouncil

Local elections2004

Postal votefraud

1 man No Man dismissedfrom LiberalDemocrat party

BirminghamCity Council(Aston &BordesleyGreen wards)

Local electionsJune 2004

Stealing &falsifying postalballot papers

6 Labourcouncillors.

Yes Six found guilty ofcorrupt and illegalpractices. One ofthose found guiltywas later cleared bythe Appeal Court.The election of allsix councillors wasannulled. The judgeestimated there hadbeen at least 1,000fraudulent votes inAston and 1,500 –2,000 in BordesleyGreen

Bristol City Council(Lawrence Hill ward)

Local elections2004

Nine counts offorgery and oneof conspiracy todefraud

Former LiberalDemocratcouncillor

Yes Five monthsimprisonment

BurnleyBoroughCouncil


167 proxy votessubmittedfraudulently

2 LiberalDemocratcouncillors

Yes 55 proxy votesfound to befraudulent – bothfound guilty ofsubmitting thesevotes and eachdefendantsentenced to 18monthsimprisonment

HaltonBoroughCouncil(Castlefieldsward)

Local &Europeanelections June2004

Multiple countsof making falsestatements(postal voting)

Former LabourMayor

Three relatives

Yes Fined £3,000(Found not guiltyon two counts ofPersonation) Fined £2,300

ColeraineBoroughCouncil

General & localelections May2005

Impersonationof 15 postalvotes

DUP councillor Yes 4 monthsimprisonment. The irregularitywas discoveredduring the electioncount and thevotes were notincluded

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Stoke onTrent(Stoke North)

GeneralelectionMay 2005

43 Postal votestampered with

Unknown No Ballot papersdeclared invalidand destroyed

WokingBoroughCouncil(Maybury &Sheerwaterward)


Personation One man No The person wascautioned forpersonation. Theborough councilissued majorpaper on widerproblems ofelectoral fraud inthe borough


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




Ongoing or pending cases as of 1 January 2007


PeterboroughCity council(Severalwards)


Total of 40offencesincludingconspiring todefraud theelectoral services officerand counts ofmaking afraudulentinstrument,namely forgedpoll cards

3 Labour Partycandidatesincluding aformer mayor

Yes Further courthearings pending

TowerHamletsBoroughCouncil,London(severalwards)


Election fraudregardingpostal votingin particular

Unknown Election petitionsconcerningBethnal GreenSouth and MileEnd wardsscheduled to beheard on 29January 2007.Also MetropolitanPolice continuinga ‘majorinvestigation.’

Derby CityCouncil(Arboretumward)


Election fraud‘looking atpostal votes inparticular’

Unknown Ongoing as of 1 Dec 2006, policelaunchinginvestigation

Bradford(BradfordWest)

General election April2005

Conspiracy todefraud areturningofficer

1 Conservativecouncillor (nowan independentcouncillor) and12 other people

File submittedto the CPS on11 people

CPS reviewingcase

BirminghamCity Council

Local elections May2006

190 potentialillegal votes inone ward and‘peculiaranomalies’ inseveral wards

One man andone woman(wife of Lib-Demcandidate) – not necessarilyconnected

Arrested onsuspicion ofconspiracy todefraud

On bail pendingfurther inquiries

5.9 Electoral fraud can take many forms, themost common being:

• fraudulent registration where attemptsare made to influence the outcome ofelections by registering fictitious orineligible individuals;

• impersonation at the polling station; and

• the misuse of postal or proxy votes.

5.10 The perennial difficulty with identifyinglevels of fraud is that, if successful, it goesundetected. However, evidence from anumber of witnesses suggests that thesystems currently in place in Great Britainto deter electoral fraud are not particularlyeffective. These problems arise mainlybecause of the issue of trust; informationon registration forms provided to electoralregistration officers is taken at face value asbeing accurate. We received evidence atpublic hearings and on visits to a numberof electoral registration officers whichconfirmed that there is little or no checkingof completed registration forms to ensuretheir authenticity. There are also virtuallyno checks to establish a person’s identitywhen voting at a polling station and,despite new checks being introduced forpostal voting, determined fraudsters caneasily sidestep these by registering falseidentities on the electoral register. Concernshave also been raised about how effectivenew security measures may be. Forexample, the new provision in the ElectoralAdministration Act 2006 will require votersat polling stations to provide a signaturebefore they receive their ballot paper:

Signing for a ballot paper at a pollingstation is not remotely strong. This is asignature which is then not checked againstany other record because no records areheld, unless you are the person who signedthe household form then it is possible thatyou could track back to that person.[Andrew Scallen, Manchester City Council14/09/06, 154]

5.11 However, it is also true that, if greatereffort and focus is given to detectingelectoral fraud, this is likely to result in anincrease in the number of cases beingbrought to light and to a perception thatfraud is a growing problem. The difficultyof establishing a reliable basis about trendsof electoral fraud probably lies behind

some of the conflicting evidence theCommittee received from witnessesconcerning its extent:

Electoral fraud has been overstated forsome time. I think some of the issues arearound culture, around the way in whichdifferent communities perceive theoperation and management of elections.Some of these issues need to be treatedwith a degree of sensitivity.[Sir Howard Bernstein, Manchester CityCouncil, 14/09/06, 54]

I do want to emphasis that constant cries of fraud in our electoral process in itselfundermines the process and thereforebeing confident that we have in place a variety of systems that will reduce anyopportunity for fraud is very important to give confidence back to the electorate.[Bridget Prentice MP, Parliamentary Under-Secretary of State, Department forConstitutional Affairs 18/07/06, 472]

I think that there has always been morefraud than people have recognised. Theblind eye has been an aspect of the Britishsystem. So I think there has been a cultureof denial and still is, among manyauthorities. Having said that, postal votingon demand very much added to the problems.[Dr Michael Pinto-Duschinsky 14/09/06, 201]

It is clear that confidence – and we havedone a fair bit of research into this – hasbeen damaged. [Sam Younger, Chair, Electoral Commission14/09/06, 240]

5.12 There has been no serious research todetermine how widespread the problem is by academics or by The ElectoralCommission itself. Nor has the Commissioncollected any statistics on the number ofreported cases of fraud. The lack of properresearch on electoral fraud makes itdifficult for the Committee or anyone elseto comment authoritatively on the scale ofthe problem:

How much electoral fraud is there in thecountry? Nobody appears to have done anydetailed research in relation to it.[Lord Falconer of Thoroton, Secretary ofState for Constitutional Affairs 21/09/06, 36]

5.13 This is something The Electoral Commissionwill want to remedy, particularly in its new

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role as regulator of electoraladministration. The Committee recognisesthat such research is not straightforwardbut it is essential that a serious attempt ismade to ascertain the scale of the problem.The Electoral Commission should, forexample, work closely with the AuditCommission which has been undertaking a great deal of effective work through theNational Fraud Initiative.

5.14 However, where fraud has been detectedand prosecutions made, this has indicatedproblems in certain communities. Suchfindings are sensitive but it is essential thatboth The Electoral Commission and localelectoral administrators address thisproblem as a matter of urgency. Electoralfraud should be treated as a serious matter;it undermines the principle of one personone vote which is fundamental to ourdemocratic process.

5.15 The Electoral Commission has been workingclosely with electoral administrators andthe police in the run-up to elections andissues guidance on combating fraud. TheCommittee welcomes this initiative but isconcerned that the police might not alwaysbe primed on the intricacies of electorallaw. In police investigations, electoral fraudhas not been among their priorities in thepast. We think it would be helpful if eachpolice force in the United Kingdom had atleast one officer with an in-depthknowledge of electoral law.

Northern Ireland experience

5.16 Unlike Great Britain, there has always beena view that electoral fraud was a problemin Northern Ireland. Its precise extent wasnot known as there had been virtually noprosecutions. The perception that fraud waswidespread came from anecdotal evidenceand a general belief among both politiciansand voters that it was a problem. TheGovernment decided that this widespreadperception was having the effect ofdiscrediting the outcomes of elections, thusundermining the authority of electedrepresentatives. It therefore introduced a

number of proposals in Parliament whichbecame the Electoral Fraud (NorthernIreland) Act 2002 [4]. The main measures inthe Act include:

• the introduction of individualregistration;

• eligible individuals have to provide threepersonal identifiers at registration:signature, date of birth and NationalInsurance number;

• the three personal identifiers are alsorequired when applying for an absentvote;

• the requirement to provide a personalsignature and date of birth when acompleted absent vote is returned; and

• the requirement for electors to providespecified photographic identificationwhen voting at a polling station.

5.17 These measures were introduced in time forthe 2002 annual canvass and have been inuse since then for registration and atelections. The measures have been judgedsuccessful by the electorate and politicalparties in both combating fraud anddecreasing the perception of fraud. Inresearch produced by The ElectoralCommission, 72 per cent of respondentsthought the measures should reduceelectoral fraud. Additionally, at thecombined elections in 2005 there were noreported incidents to the police ofattempted impersonation at pollingstations or other fraudulent activity. Inrelation to absent vote fraud the chiefelectoral officer was able to detect andstop attempted fraud through abuse ofproxy voters by checking the personalidentifiers.

Postal voting on demand

5.18 Following the introduction of theRepresentation of the People Act 2000 [5](RPA) and the Representative of the PeopleRegulations 2001, postal voting on demandwas introduced in Great Britain but notNorthern Ireland where the previousrestrictions remained. It is now no longernecessary to state a reason for applying fora postal vote, or to obtain attestation ofillness from a medical practitioner oremployer. Applications may be requestedand allowed for an indefinite period, adefinite period or for a particular election.

RECOMMENDATIONS

R40 The Electoral Commission shouldundertake detailed research in to the scale of electoral fraud in theUnited Kingdom.

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5.19 The RPA 2000 also made provision for localauthorities to pilot new electoralarrangements for local elections. A numberof pilots were tested in May 2000 and intheir review the Local GovernmentAssociation found that all-postal voting wasthe only new electoral arrangement tohave potential for significantly increasingturnout at local elections.

5.20 There were further pilots in 2003 to testalternative voting methods at localelections, including all-postal voting.Following these elections The ElectoralCommission published a report [6] on thepilot schemes. The Commission found thatall-postal voting was effective at boostingturnout and concluded that all-postalelections were ready to be made availableat local elections in Great Britain. In makingthis recommendation the Commission putforward a number of pre-conditions for all-postal voting, including increasing securityand proposing the introduction ofindividual registration that in its viewshould be implemented at the same time.

5.21 In its response to The Electoral Commission,the Government [7] accepted the broadthrust of the Commission’s recommendationsfor all-postal voting as a basis forconsultation.

5.22 However, the accord about all-postal votingbetween the Government and The ElectoralCommission was to break down in 2004. Inits evaluation of the elections in 2004 [8],which included piloting all-postal voting inthe European elections, The ElectoralCommission reversed its position on all-posting voting. It stated in the executivesummary that there was strong publicsupport for a choice in voting methods.Later, buried in the report, The ElectoralCommission explained that it could nolonger support all-postal voting because itsrecommendation in 2003 was conditionalon the implementation of parallelrecommendations that would haveincreased the security of postal voting andpromoted the introduction of individualregistration. The Committee takes the viewthat it would have been more helpful if TheElectoral Commission had made clearer in2004 that its original recommendation onextending all-postal voting was dependenton the introduction of other measures. Theissue was further complicated by thecontroversy generated about the security of

postal voting following a number ofallegations made during the elections in2004 about electoral fraud and postalvoting. These culminated in the ElectoralCourt convened to try a number ofcouncillors in Birmingham on allegations ofpostal vote fraud.

5.23 Some of the evidence was critical about therole of The Electoral Commission played inthe debate on all postal voting, citing itsinitial keenness for such a measure in 2003:

I think the need to increase turnoutoverrode everything else and it looked aneasy solution.[Norman Macleod, Electoral ServicesManager, London Borough of Hackney18/6/06, 130]

I think for the very reasons that these issueswere detected [in Birmingham] and therewas no mechanism to do anything about it,clearly they could not go down the samepath in promoting that process for localgovernment elections or, indeed, anyelections.[Malcolm Dumper, Democratic ServicesManager, Southampton City Council18/7/06, 127]

5.24 The debate about the pros and cons ofpostal voting on demand was overtaken bythe verdict in the Birmingham fraud trial inApril 2005 in which the Judge, RichardMawrey QC, said the following:

In this judgement I have set out at lengthwhat has clearly been shown to be theweakness of the current law relating topostal votes…Until very recently none ofthe political parties has treated electoralfraud as representing a problem…thetendency of politicians of all parties hasbeen to dismiss these warnings as scaremongering.

The systems to deal with fraud are notworking well. They are not working badly.The fact is there are no systems to dealrealistically with fraud and there neverhave been. Until there are, fraud willcontinue unabated.

It can be argued that this judgement was aturning point in the public perception ofelectoral fraud in Great Britain. The fraudcases in Birmingham showed how easily theelectoral system could be corrupted and

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how easy it was to steal votes though thefraudulent use of postal voting.

5.25 A number of witnesses at the publichearings cited the introduction of postalvoting on demand as a major contributingfactor to problems with the integrity of theelectoral system:

The one setback… which clearly caused aproblem was the perception that postalvoting might not have always been valid,honest and accurate. That is the one majorsetback we have had in recent years.[Simon Hughes MP, Liberal DemocratShadow Secretary of State forConstitutional Affairs and AttorneyGeneral; President Liberal Democrat Party15/6/06, 199]

I think that postal voting unlocked aPandora’s Box that some unscrupulouspeople were able to exploit. The problem is when that becomes public as it did in thefull light of the Birmingham cases, then it is inevitably going to knock publicconfidence.[John Turner, Chairman, Association ofElectoral Administrators 13/7/06, 270]

What makes the situation all the moreserious is, to my mind, the irresponsibleextension of postal voting because whenyou have errors on the electoral registerand easy postal voting you have adangerous, if not a lethal cocktail whichamounts to extensive and almostguaranteed voter fraud. That is indeedwhat we are seeing many signs of, not onlyin the Birmingham case but much moreextensively.[Dr Michael Pinto-Duschinsky 13/6/06, 14]

5.26 Polling conducted by The ElectoralCommission around this year’s localelections showed that 44 per cent of votersthought that postal voting was unsafe withonly 37 per cent responding that it wassafe. One in five voters thought thatelectoral fraud was a big problem with 55per cent saying that electoral fraud was nota big problem. These figures suggest votersare concerned about the security of theelectoral process through reports ofelectoral fraud.

5.27 In the Committee’s judgement it was, inhindsight, a mistake to introduce postalvoting on demand without any proper androbust safeguards to protect the integrity

of the voting process. The Committeeaccepts it is here to stay as a significantnumber of voters prefer to use this methodof voting and, certainly for some elections,it appears to have improved turnout. TheGovernment has also recently introducedmeasures in the Electoral AdministrationAct 2006 intended to address some of theconcerns about postal voting. However, aswe cover in the next section, electoraladministrators have expressed some seriousconcerns about administering the newsystem and about the new securitymeasures which they believe will notprevent fraudulent entries from beingmade on the electoral register.

Electoral Administration Act

5.28 Following the General Election in 2005, the Government published the ElectoralAdministration Bill which included anumber of anti-fraud measures but did not include a commitment to introduceindividual registration or measures toimprove the security of postal voting.However, following repeated attempts inthe House of Lords to introduce individualregistration, an amendment was acceptedin the House of Commons introducingpersonal identifiers for absent voting.

5.29 The Electoral Administration Act 2006introduced a number of measures in four key areas of the democratic process.These were:

• improving access and engagement;

• improving confidence;

• extending openness and transparency in party financing; and

• maintaining the professional delivery of elections.

5.30 In relation to improving security andtransparency, the Act introduced a numberof provisions that the Government hopeswill improve confidence in the integrity ofthe electoral system. They include:

• creating two new electoral offences toprovide stronger deterrents againstelectoral fraud. These are for supplyingfalse information or failing to supplyinformation to the electoral registrationofficer at any time, and for falselyapplying for a postal or proxy vote;

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• a provision for signatures and dates ofbirths to be made on absent voteapplications and absent vote statements;

• requiring voters to sign for their ballotpaper at the polling station;

• providing more time for the police tocarry out investigations into electoralfraud; and

• providing for statutory secrecy warningsto accompany postal and proxy votingpapers to deter anyone from unlawfullyattempting to influence another person’svote.

5.31 The Committee welcomes the fact that theGovernment has put in place a number ofmeasures to promote integrity in theelectoral system. We particularly welcomethe new offences created to deter andpunish those individuals intent ondefrauding the democratic process.However, the Committee has receivedevidence from electoral administratorsincluding the Association of ElectoralAdministrators and SOLACE that the newarrangements for postal voting might notbe as effective in deterring fraud asenvisaged in the Act.

5.32 Electors who apply for postal votes will berequired to supply a signature and date ofbirth but, as there will be no checks toensure that the names on the register arecorrect, this would allow a determinedfraudster to supply a false name atregistration and then supply that name anda fictitious date of birth when anapplication is made for a postal vote. TheCommittee understands that there will be aminimum requirement for returningofficers to check 20 per cent of postal votesfrom each bundle. If this were to happenthere is a distinct possibility that manyfraudulent postal votes would pass anychecking mechanism. Conversely, if anyquestionable signatures are found in the 20per cent, it is very likely that a candidate oragent will insist that a 100 per cent of thepostal votes are checked. Added to this isthe inherent difficulty of checking thevalidity of signatures, either manually orelectronically:

My instinct is that we ought to be movingto a point where we check all of them. I donot understand why only 20%.[Sir Howard Bernstein, Chief Executive,Manchester City Council 14/09/06, 75]

5.33 The Act also introduces a late window forelectoral registration. Until recently, under‘rolling’ registration a person who is not onthe register and who wanted to register intime for local elections in May would havehad to register by early March. His or hername would then be included in theupdate of the register published in April.Under the new provision a person can nowregister up to 11 days before an electionand apply for an absent vote.

5.34 During a number of visits to electoralregistration officers, the Committee noteda general concern that this provision couldhave a detrimental effect. Registrationofficers fear any fraudster would decide towait until the last moment beforeregistering and applying for postal votes inthe knowledge that the burden of workplaced on electoral administrators at thisstage would allow for only minimal checks.

5.35 In Northern Ireland, the MiscellaneousProvisions (Northern Ireland) Act 2006 [9]also allows a late registration window of 11days. However, to minimise fraud, all thoseregistering under the late window have toprovide additional identification over andabove the three personal identifiers andthey are not allowed to apply for an absentvote. It is argued that this represents abalanced approach as it encouragesparticipation by allowing individuals toregister to vote but helps to protect theintegrity of the system and diminishes thepossibility of fraud.

5.36 The Committee shares some of the concernsraised by electoral administrators about thepossible unintended consequences of thepostal vote measures contained in theElectoral Administration Act 2006 and thepotential for these to cause difficulties,particularly for the most imminent localelections in May 2007.

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Role of The Electoral Commission

5.37 The Committee believe that The ElectoralCommission, as part of its future mandate,should take a leading role in maintainingpublic confidence in the electoral systemand the outcome of elections. In writtenevidence to the Committee, Andrew TyrieMP stated:

The primary task of The ElectoralCommission must be to bolster theelectorate’s confidence in the democraticprocess and to respect the outcome ofelections. In my view, the conduct ofelections since The Electoral Commission’screation has resulted in diminution of thatconfidence. For a number of reasons, TheElectoral Commission has to bear someresponsibility for that.

5.38 As we discuss in Chapter 2, The ElectoralCommission has been closely identifiedwith the Government’s electoralmodernisation programme and somewitnesses expressed the view that this tosome extent compromised its focus on therisks that the introduction of such measuresmight pose to the integrity of the electoralprocess. While it is clearly right, anddesirable, for the Government to proposeand Parliament to pass new measuresintended to help increase participation inelections, it must also be the role of TheElectoral Commission to make it clear togovernment and Parliament if proposedchanges to electoral law have the potentialto undermine this integrity and diminishconfidence. A number of witnessesquestioned the Commission’s performancein this respect since 2000.

5.39 As we covered earlier in this chapter, TheElectoral Commission made recommendationsin 2003 for all-postal voting at local elections;yet 12 months later it recommended thatall-postal voting should not be used at anystatutory election. This about-turn has beencriticised by political parties and someelectoral administrators both for sowingconfusion and discrediting postal voting. In evidence to the Committee, theGovernment blamed The ElectoralCommission for confusing the issue onpostal voting by merging a number ofdifferent issues in relation to security andchoice, which led to a breakdown inconsensus about all-postal voting.

5.40 In Chapter 2 we recommended that TheElectoral Commission should continue toprovide advice on the suitability of existingand new electoral legislation as part of anew mandate to perform two statutoryduties. One of these is to regulate electoralregistration, with the aim of ensuringintegrity and public confidence in theadministration and conduct of elections.When legislation is introduced to Parliament,a Regulatory Impact Assessment is includedas a means of informing Parliament if theproposed legislation is likely to impose anynew regulatory burdens. The Committeeproposes that a similar requirement shouldapply to primary and secondary electorallegislation that is introduced to Parliament.This should take the form of an assessmentprepared by The Electoral Commissionwhich outline potential risks generated bythe proposed measures that might damagethe integrity of the electoral system; andalso ways to mitigate these risks. TheCommittee believes that if The ElectoralCommission raises objections to newelectoral legislation on these grounds, thenit is essential that both the Governmentand Parliament considers such concernsdirectly alongside the legislation.

RECOMMENDATIONS

R42. It should be a requirement that TheElectoral Commission’s views (see R24 Chapter 2) on proposed primaryand secondary legislation on electoralissues should accompany the draftlegislation when it is introduced into Parliament.

RECOMMENDATIONS

R41. The Electoral Commission should, aspart of its statutory reports on the2007 Elections, include a specificsection dealing with the impact of,and any problems encountered in theimplementation of the new measureson postal voting. In light of thisreport the Government shouldconsider similar measures in relationto registering immediately before anelection as have been put in place forNorthern Ireland in the MiscellaneousProvisions (Northern Ireland) Act 2006.

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Conclusion

5.41 It is important that the electoral system isfree, fair and secure – and seen as such.Defending the integrity of the electoralprocess should concern all political partiesand must not be based on partisanconcerns. The Electoral Commission mustspell out, clearly and publicly togovernment and Parliament if proposedchanges to electoral law have the potentialto undermine confidence in or the integrityof the electoral process.

5.42 The Committee believes that the politicalparties and Parliament should becontinually vigilant about any threats toour democratic processes. Electoral fraud isa serious matter. The Committee does notbelieve that it is occurring to a worryingdegree in every constituency or localauthority, but evidence suggests that thereare a number of hot spots where electoralfraud is a problem and, if not detected andstopped, threatens to undermineconfidence in the democratic system.

5.43 This is a good example of where a risk-based approach, highlighted in Chapter 2,can be very effective in identifying aproblem and putting in place measures totry and rectify it. We believe it is essentialfor The Electoral Commission to minimisethis problem as a key part of its regulatoryapproach. Regional electoral officers,working closely with electoraladministrators, will have a critical role inidentifying weaknesses in current practicesand improving standards of fraudprevention and detection.

Electoral registration

5.44 The system of electoral registration isperhaps the most critical element of theelectoral administration process andunderpins the most fundamental principlesand therefore legitimacy of the UnitedKingdom’s democratic processes. Thisfoundation of our democracy serves toensure:

• that the right to vote is available as auniversal right to those who are eligibleand choose to exercise it;

• that this is a personal right so that thevote is ‘owned’ by the eligible person onthe register – and no-one else; and

• that there can only be one vote cast pereligible voter.

5.45 Therefore it is essential that the electoralregister and the system of electoralregistration retain the trust and confidenceof both the electorate and political parties.

5.46 There has been considerable debate,comment and analysis in recent years aboutboth the current state of the electoralregister and of the system employed forelectoral registration. Debate embraces TheElectoral Commission through its Voting forChange [10] proposals, the Governmentwith the Electoral Administration Act,Parliament and political parties. During thecourse of this inquiry the Committeereceived significant amounts of evidenceabout the current state of the electoralregister in the UK. Concerns were expressedby all political parties and electoraladministrators about varying levels ofcomprehensiveness of registration andstandards of the register’s accuracy acrossthe country.

5.47 Given the fundamental importance of theelectoral register, the system of registrationand the statutory mandate and regulatoryrole we have proposed for The ElectoralCommission in Chapter 2 (building uponthe Electoral Administration Act 2006), theCommittee feels bound to comment on thisaspect of the electoral process. We will notreplicate the considerable debate andanalysis on this issue in recent years. Rather,we summarise the issues and the evidencewe have received, and then make proposalsthat we consider should have supportacross the political spectrum.

State of the current electoral register

5.48 As was pointed out in Chapter 2, wereceived strong opinions in evidenceconcerning the current state of theelectoral register:

The present system of how you register isindefensible, effectively.[Alan Whitehead MP 11/07/06 192]

I am in favour of individual registration. I do not know why we have not moved to that.[Rt Hon Kenneth Clarke MP 11/07/06, 444]

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It is totally unsatisfactory that there is noconsistency across the country.[Bridget Prentice MP 18/07/06, 491]

5.49 Evidence suggested that in some parts ofthe country registration is carried out to ahigh standard while in others little timeand resource is put into compiling theregister. This was confirmed by our ownvisits to electoral registration officersduring the course of this inquiry. Manypoliticians and others who gave evidencewere concerned that large numbers ofeligible individuals were not registeringand that little sustained effort appeared tobe made to encourage registration.

5.50 The Electoral Commission published areport [11] in September 2005 whichestimated that around 3.5 million eligiblepeople in England and Wales were missingfrom the electoral register. The reportfound that the majority were mostly youngpeople living with parents, people who hadmoved home less than six months beforethe annual canvass and those renting fromprivate landlords. It was also found thatthat an eligible individual’s relationshipwith the head of household was animportant predicator of non-registration.

5.51 A number of measures were introduced inthe Electoral Administration Act to try andimprove registration rates. These included:

• introducing a duty on electoralregistration officers to take steps tomaximise the electoral register; and

• extending the last date someone canregister after an election has been called.

5.52 Another major concern made in evidenceto the Committee was the accuracy of theelectoral register. It is important inretaining confidence in the fairness andsecurity of the electoral process that theregister only represents those individualswho are eligible to vote. Unfortunatelythere has been no research on the accuracyof the register undertaken by eitheracademics or The Electoral Commission. Inresponse to evidence presented to thisinquiry the Commission has undertaken toconduct such research, which theCommission welcomes.

System of electoral registration

5.53 Currently, the United Kingdom has acombination of household and individualregistration in Great Britain and individualregistration only in Northern Ireland. Aswas outlined earlier in this chapter, thisdiffering approach emerged because theGovernment, following growing concernabout the perceived level of electoralmalpractice in Northern Ireland, introduceda number of anti-fraud measures (ElectoralFraud Northern Ireland Act 2002) includingthe system of individual registration. Beforethis, Northern Ireland also used thehousehold registration system.

Household registration

5.54 Household registration dates back to the19th century when the vote was restrictedto male householders who were liable topay a property tax. Under the householdsystem an annual canvass form is sent toeach household by local authoritiesbetween September and November. Thehead of household or a named person isrequired to complete and return the formon their own behalf and on behalf of anyeligible voters who live in the household. It is an offence not to return a completedregistration form. However, there are rarelyany prosecutions mainly because it isdifficult to prove without doubt that anindividual has received a registration form.

5.55 The Representation of the PeopleRegulations 2001, made under theRepresentation of the People Act 2000,introduced significant changes to thesystem of registration in the UK. Beforethis, there was an annual qualifying datefor entry onto the register and individualswho did not register would have to waitfor another 12 months before registering.Similarly, those who moved house had toremain on the old area’s register until thenext canvass and could only vote in theprevious location if an election was held.However, since 2001, the introduction ofrolling registration or individualregistration outside of the canvass periodprovided individuals with a voluntarymeans to get onto the register and toamend their details.

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5.56 The benefits of household registrationinclude:

• simplicity – only one person in ahousehold needs to complete the formand, once registered, all that is requiredonce a year is that person’s signature or,in some areas, affirmation by phone orthrough the internet using a securitycode, if details remain the same;

• familiarity – the household system hasbeen used for many years; and

• it is likely to be more comprehensive thanindividual registration because manyindividuals do not have to do anything toget onto the register as the form iscompleted by the head of household.

5.57 Potential problems with householdregistration include:

• it can be open to abuse because theindividual who signs the form has controlover the information provided. Therefore,false information can be added;

• it is more likely to be inaccurate becausethere are no checks made on theinformation contained on the form – i.e.a person signing the form could quiteeasily submit false names;

• it removes individual voters’ personalresponsibility to register; and

• it can disenfranchise individuals if thehead of household does not register theirnames.

Individual registration

5.58 Individual registration requires all eligibleindividuals to register their own names andany other details required by theregistration officer personally. This is doneeither through the annual canvass orduring the process of rolling registration.Individual registration has been adopted inNorthern Ireland and applies throughrolling registration in the rest of the UnitedKingdom.

5.59 The benefits of individual registration arethat:

• in principle, it provides a more accuratereflection of eligible individuals livingwithin the registration area;

• it requires individuals to take personalresponsibility for registering;

• when combined with other measures, it isa more effective weapon againstattempted fraud; and

• it treats all electors equally.

5.60 The potential problems with individualregistration include:

• on introduction it is likely that thenumbers registered will drop;

• without specific measures, it may increaseproblems in registering young people andother ‘hard-to-reach’ groups; and

• on its own it is no guarantee ofpreventing electoral fraud.

5.61 There is consensus among political parties,The Electoral Commission and mostelectoral administrators that individualregistration is, in principle, a more accuratemeans of registering eligible voters andthat it is right that individuals should takepersonal responsibility for registering.However, there is no agreement on when to introduce it as a full replacementof the household registration system inGreat Britain.

Evidence

5.62 The Electoral Commission has been infavour of introducing individualregistration to Great Britain since itpublished Voting for Change in 2003. Whenthe Government announced that it was notincluding individual registration in theElectoral Administration Bill, The ElectoralCommission made clear publicly that itdisagreed with the Government and thatindividual registration should be includedin the Bill. As previewed in this chapter, itwas pressure from the House of Lordsduring the passage of the Bill that resultedin an amendment to bring in individualregistration that was accepted in theCommons. The Government’s view wasthat, while it accepted the approach inprinciple, it was not the time to introduce itbecause Northern Ireland experienceindicated that it would in all probabilitylead to a substantial diminution in thenumbers who register. The House of Lordsdropped its amendment after theGovernment decided to accept an

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amendment to improve anti-fraudmeasures for postal voting in Great Britainby introducing personal identifiers.

5.63 The Committee’s own position on therightness of individual registration followsclose consideration of what the registrationsystem is there to achieve and how thisapproach fits the purpose. The Governmenthas made it clear that it expects theelectoral register to be as comprehensiveand accurate as possible – a commonlyagreed objective. So the key question iswhether we can achieve this goal throughthe current system or whether individualregistration will increase thecomprehensiveness and accuracy of theregister?

5.64 Household registration has produced –when all the electoral registers in GreatBritain are compared – an average figure ofaround 91 per cent of eligible adultsregistered. However, this figure masks widediscrepancies between local authority areas.The important structural problem withhousehold registration is the difficulty ofdetermining levels of accuracy. This isbecause the system relies on trusting theaccuracy and comprehensiveness of theinformation provided by the one person inthe household who completes and signs theform.

5.65 Individual registration would produce – asdemonstrated in Northern Ireland – a muchmore accurate register because individualshave to engage personally in theregistration process. There are of course,concerns that on introduction there will bean initial fall in the numbers registered, ashappened in Northern Ireland. This hasbeen particularly levered as an argumentby those opposed to the introduction ofindividual registration.

Northern Ireland experience

5.66 In Northern Ireland the introduction ofindividual registration in 2002 resulted inthe number of names on the new registerdropping by nearly 11 per cent comparedto the previous register under householdregistration. The Government is on recordas saying that this drop owed to acombination of inaccuracy resulting fromweaknesses in the household-based systemand the withdrawal of the ‘carry forward’:previously individuals on the register, who

did not re-register during the canvass, werekept on the register for a further 12 months.The Electoral Commission agreed and,following detailed research, commentedthat the fall did indeed reflect the removalof the carry forward which had the effectof removing inflationary factors from theregister. The Commission also observed thatthe introduction of individual registrationhad a positive effect on restoring integrityto the registration process.

5.67 The Committee’s view is that individualregistration in Northern Ireland has not ledto the disenfranchisement of thousands ofvoters, as is widely believed to be the case.There are always a significant number ofindividuals who, for various reasons, do notre-register during the annual canvass;therefore the withdrawal of the carryforward effectively meant that each year a sizeable number of individuals would falloff the register. There would be a similarsignificant reduction in registration underthe household system if the carry forwardwas abolished.

5.68 The main problem with the NorthernIreland approach was the requirement on voters to re-register and provide theirpersonal identifiers afresh each year.Eligible voters saw the process was aburden. The result was that the registercontinued to fall year on year, although by much smaller percentages.

5.69 The Government’s response was tointroduce new legislation through theMiscellaneous Provisions (Northern Ireland)Act 2006. This has effectively abolished theannual canvass in favour of a system ofcontinuous registration. The Governmenthas recognised that there is little sense incontinuing to ask individuals for the sameinformation each year, particularly as theinformation they have supplied, includingthe objective personal identifier, has beenverified. This approach is also designed toreduce the burden on the individual andallow resources to be targeted moreproactively on those who are not registered and those on the register whomove house within Northern Ireland orleave the Province. To enable the ChiefElectoral Officer to target those not on the electoral register, the Act has given him new powers to access data held byother public sector organisations.

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Way forward

5.70 Despite the simplicity and familiarity ofhousehold registration, on balance theCommittee takes the view that, as there is agreement among all the major parties, it is the right time to recommend theintroduction of individual registration. Dueto the understandable concerns expressedby those opposed to individual registrationduring the passage of the ElectoralAdministration Act, a possible way forwardis to suggest that individual registration isintroduced immediately following the nextGeneral Election. This would give thepolitical parties time to reach a consensuson the principles of the new system and ona realistic timetable for implementation.Our reasons for recommending this include:

• in a democratic society eligible individualsshould take personal responsibility forregistering just as they have to applypersonally for other public and privateservices;

• the register will reflect more accuratelythose individuals who are entitled to beregistered;

• greater accuracy will help to restoreintegrity to the registration process; and

• if combined with other measures,individual registration should help tominimise electoral fraud.

5.71 The Electoral Commission should have arole in facilitating agreement amongpolitical parties represented at Westminsterabout a plan of implementation whichwould take account of lessons learned fromthe experience in Northern Ireland. Inparticular, the plan should cover measuresto minimise a fall in the numbers ofindividuals registered. This would be in linewith Electoral Commission’s new role asregulator of electoral administration, putforward in Chapter 2.

5.72 If individual registration is to be effective itis essential, in the Committee’s view, thatpersonal identifiers are introduced inparallel as part of the registration process.

5.73 As regards which personal identifiers aremost appropriate, two options are clearlyavailable:

• signature and date of birth, asrecommended by The ElectoralCommission and currently used for postalvoting in Great Britain; or

• signature, date of birth and a furtherobjectively verifiable identifier – asrequired in Northern Ireland – such as theNational Insurance number.

5.74 The Electoral Administration Act requiresthose wanting to vote by post to supplytwo personal identifiers: signature and dateof birth. This measure was put in place totry and restore public confidence in thepostal voting process because ofperceptions that it was leading to increasedelectoral fraud. As discussed earlier in thischapter, doubts have been expressed as tohow effective these identifiers are inestablishing an individual’s true identity,and whether they are truly effective indeterring a determined fraudster. Forexample, signatures are notoriouslysubjective because they can change overtime; checking signatures manually is verytime-consuming and even checks made bymachine still require manpower toinvestigate perceived discrepancies. Thewidespread use of signature-checkingmachinery would also require substantialextra funding.

5.75 On balance the Committee favours havingan additional objective verifier. TheNational Insurance number has been usedsuccessfully in Northern Ireland where thisobjective check has proved to be adeterrent. It is also relatively inexpensive,costing the Chief Electoral Officer just over£10,000 to have over one million numberschecked by the Department for Work andPensions. Those who oppose the use ofsuch an identifier claim it is too much of adisincentive because, for many people,finding the number would be too much ofan effort. There are also concerns that theNational Insurance number is unreliablebecause there are more in circulation thanthere are individuals. Yet evidence fromNorthern Ireland, shows that having toprovide a National Insurance number hasnot been seen as problematic and issupported by all political parties. TheCommittee also notes that the use of theNational Insurance number as an identifierhas been effective in its own NationalFraud Initiative work.

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5.76 The Committee advocates the use of thefollowing measures to mitigate the fall-offin the numbers registering, following theintroduction of individual registration:

• ensuring that all areas in each registrationdistrict are properly canvassed;

• promoting data-sharing within the publicsector to allow electoral registrationofficers to target non-registeredindividuals; and

• for The Electoral Commission to create ahigh-profile advertising campaign toinform voters about the new system.

As was noted earlier in this chapter, inNorthern Ireland the annual canvass hasbeen abolished and replaced with a systemof continuous registration. This has beenpossible because of individual registrationand the objective verification with theNational insurance number of each elector’sidentity. It is now easier for the ChiefElectoral Officer to use his resources totarget non-registered voters and thoseregistered who move address. In theCommittee’s view if this approach proves tobe successful then it should be adopted inthe rest of the United Kingdom.

Conclusion

5.77 The Committee has drawn conclusions thatwe believe are widely agreed across thespectrum of those involved in the electoralprocess, as follows:

(i) There is a compelling case for replacingthe current household system with asystem of individual voter registrationcomplemented by personal identifiers.The case is one of basic rights andresponsibilities for individual citizens. Itcannot be right in the 21st century forour democratic system to be foundedupon a system where the ‘head ofhousehold’ can influence theenfranchisement of other individualsliving in that property. The case is alsomade by the gain in integrity andconfidence in the electoraladministration process that such asystem is likely to foster if othermeasures are simultaneouslyintroduced. The new system is, webelieve, essential if the Governmentwishes to continue with themodernisation of the electoral system

to improve accessibility and ease ofvoting (through postal voting ondemand and possibly e-voting).

(ii) There are legitimate concerns aboutthe practical impact, in the short-to-medium-term, of the introduction of a system of individual electoralregistration on the comprehensivenessof the register. There is some kind ofelection every year in the UK whichstresses the importance of theseconcerns and the need to address themnow. However, there would bedemonstrable problems if newlegislation is rushed and not properlythought out or if insufficient care isgiven to the plan of implementationand timetable.

(iii) Fortunately, the experience ofindividual registration in NorthernIreland has highlighted some importantlessons and shows that the system isworkable, and that benefits can berealised, in tandem with goodplanning, sufficient resource andmeasures to prevent any loss ofcomprehensiveness.

(iv) The debate about the introduction of asystem of individual registration isheightened by concerns about the stateof the current household electoralregister and the variation of practiceand standards across Britain. However,the measures we propose in Chapter 2,building upon the ElectoralAdministration Act 2006, should makea significant impact over the next twoto four years and provide theframework for future successfulimplementation of a system ofindividual registration.

(v) We believe that it is important tointroduce the new system at theearliest realistic date. This demands thepolitical will and cross-party agreementas well as the development andimplementation of new legislation. In particular, there needs to be:

• agreement on the precise form thenew system;

• preparation by The ElectoralCommission, with local authorities, ofa detailed implementation plan; and

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• sufficient time (three to four years) tobe confident that the system will befully implemented and operatingsuccessfully for the anticipated dateof the (then) next General Election.

RECOMMENDATIONS

R43. A decision should be made andlegislation developed to implement asystem of individual voterregistration immediately followingthe next General Election or by 2010at the latest.

R44. Political parties should startdiscussions now in order to reachagreement on the precise form thenew system and the measuresneeded to assure comprehensivenessand accuracy.

R45. The Electoral Commission’simplementation plan for the newsystem should include a focus onmeasures to minimise under-registration.

R46. Any agreed system of individualregistration should include at leastone objective identifier such as theNational Insurance number.

R47. If the new arrangements in NorthernIreland, including the abolition of theannual canvass, are successful theyshould be adopted as part of the newsystem of individual registration inthe rest of the United Kingdom.

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References

1. Electoral Administration Act 2006.

2. Combating Electoral Fraud in NorthernIreland Cm 5080 March 2001.

3. Office for Democratic Institutions andHuman Rights: United Kingdom of GreatBritain and Northern Ireland GeneralElection 2005, OSCE/ODIHR AssessmentMission Report, August 2005.

4. The Electoral Fraud (Northern Ireland) Act2002: An assessment of its first year inoperation, Electoral Commission, December 2003.

5. The Representation of the People Act 2000.

6. The Shape of Elections to Come: a StrategicEvaluation of the 2003 Electoral PilotSchemes, Electoral Commission, August 2003.

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

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

9. Miscellaneous Provisions (Northern Ireland)Act 2006.

10. Voting for Change: an electoral lawmodernisation programme, ElectoralCommission, June 2003.

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

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LIST OF SUBMISSIONS

The following individuals and organisationssubmitted evidence to the Committee as part ofits consultation exercise. Copies of all thesubmissions can be found on the CD-Rom whichaccompanies the report. Evidence whichconcerned individual cases, or has been foundto contain potentially defamatory material, hasbeen excluded. All the evidence we received(including unpublished submissions) was givendue consideration in our work.

Aberdeenshire CouncilAlliance for Green SocialismAlliance Party of Northern IrelandAssociation of Electoral AdministratorsAssociation of Electoral Administrators,

Southern RegionAssociation of Electoral Administrators WalesDr John BastonAnn Begg MPBirmingham City CouncilSir Howard Bernstein, Chief Executive,

Manchester City CouncilBridgnorth District CouncilDr George CalvinLord Campbell-SavoursCarmarthenshire County CouncilJane and Stuart CarruthersThe Conservative PartyMichael CrickDisability Action, BelfastDr Jim Dyer, Scottish Parliamentary Standards

CommissionerThe Electoral CommissionThe Electoral Commission Northern IrelandThe Electoral Commission ScotlandThe Electoral Commission WalesElectoral Reform SocietyDr Matthew FlindersBob GoodhallHM GovernmentProfessor Robert HazellLocal Government Boundary Commission

for WalesLord Holme of Cheltenham, Chair, and

Claire Ettinghausen, Chief Executive, Hansard Society

Mark Heath, Solicitor, Southampton City CouncilPeter HooperKelvin Hopkins MPElectoral Officer, King’s Lynn and West Norfolk

Borough Council

Stanley KnillThe Labour PartyReturning Officer for Leicester City CouncilThe Liberal DemocratsWilliam MackesyRobert Marshall-Andrews QC, MPMidlothian CouncilDr John MarekDavid Monks, Chair Electoral Matters, SOLACERt Hon Rhodri Morgan AC/AM, First Minister

for Wales, Welsh Assembly GovernmentNew Politics NetworkThe Rt Hon the Lord Owen CHParliamentary Boundary Commission

for EnglandParliamentary Boundary Commission

for Northern IrelandParliamentary Boundary Commission for WalesJoe PattersonDr Michael Pinto-DuschinskyPlaid CymruThe Referendum PartyAndrew Robathan MPScarborough Borough CouncilScottish Green PartyThe Southport PartySpeaker’s Committee, House of CommonsStaffordshire Morlands District CouncilProfessor John StewartThe Rt Hon Gavin Strang MPAndrew Stunell MPTorfaen County Borough CouncilAndrew Turner MPAndrew Tyrie MPWest Berkshire CouncilWest Lancashire District CouncilDr Alan Whitehead MP

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Appendix A

APPENDIX A

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LIST OF WITNESSES WHO GAVE ORALEVIDENCE

Day 1 London13 June 2006

Dr Michael Pinto-DuschinskySam Younger, Chairman,

The Electoral CommissionPeter Wardle, Chief Executive,

The Electoral CommissionPeter Viggers MP, Speaker’s CommitteeDr Christopher Ward, Secretary to the

Speaker’s Committee

Day 2 London15 June 2006

Professor Robert Hazell, School of Public Policy,University of London

Oliver Heald MP, Shadow Secretary of State for Constitutional Affairs and ShadowChancellor of the Duchy of Lancaster

Simon Hughes MP, Shadow Secretary of Statefor Constitutional Affairs and AttorneyGeneral; President Liberal Democrat Party

Rt Hon Alan Beith MP, Chair of SelectCommittee on Constitutional Affairs

Rt Hon Hazel Blears MP, Chair of the LabourParty and Minister without Portfolio

Day 3 Belfast21 June 2006 (am)

Mark Devenport, Political Editor BBC Northern Ireland

Karamjit Singh CBE, Commissioner, The Electoral Commission,

Seamus Magee, Head of Office, The Electoral Commission Northern Ireland

Douglas Bain, Chief Electoral OfficerJune Butler, Assistant Chief Electoral OfficerDenis Stanley, Former Chief Electoral OfficerJohn Fisher, Northern Ireland Parliamentary

Commissioner

Day 3 Belfast21 June 2006 (pm)

Tim Attwood, Social Democratic and Labour Party

Nuala O’Neill, Social Democratic and Labour Party

Alan Ewart, Democratic Unionist PartyRichard Bullock, Democratic Unionist PartyAllan Leonard, Alliance PartySean Begley, Sinn FeinMargaret Adams, Sinn Fein

Day 4 Edinburgh27 June 2006

Douglas Fraser, Glasgow HeraldSir Neil McIntosh CBE, Commissioner,

The Electoral CommissionAndy O’Neill, Head of Office,

The Electoral CommissionWilliam Pollock, Administration Manager,

South Ayrshire CouncilAlan Henry, Electoral Registration Officer

for Dumfries and GallowayJeff Hawkins, Returning Officer for East

Renfrewshire CouncilMark McInnes, Scottish Conservative PartyDr Derek Barrie, Scottish Liberal Democrat PartyMrs Lesley Quinn, Scottish Labour PartyPeter Murrell, Scottish Nationalist Party

Day 5 Cardiff6 July 2006

Dr Roger Scully, University of Wales AberystwythGlyn Mathias, Commissioner,

The Electoral CommissionKay Jenkins, Head of Office,

The Electoral CommissionRt Hon Rhodri Morgan AM,

First Minister for WalesFrank Cuthbert, Office of the First MinisterRobert Screen, AEA, WalesPeter Woodward, AEA, WalesMatthew Lane, Welsh Conservative PartyDafydd Trystan, Plaid CymruJeff Canning, Plaid CymruStephen Smith, Welsh Liberal Democrat PartySusan Smith, Local Government Boundary

Commission for WalesEdward Lewis, Local Government Boundary

Commission for Wales

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Appendix B

APPENDIX B

Day 6 London11 July 2006

Michael CrickDr Alan Whitehead MPAndrew Tyrie MPThe Rt Hon Kenneth Clarke QC MP


Rt Hon John Spellar MPPhil Woolas MP, Minister of State, Department

for Communities and Local GovernmentDr David Butler, Nuffield College, OxfordProfessor Iain Maclean, Nuffield College, OxfordJohn Turner, Association of Electoral

AdministratorsDavid Monks, Electoral Matters Panel, SOLACEKen Ritchie, Electoral Reform Society


Malcolm Dumper, Executive Director Policy andExternal Affairs, Southampton City Council

Norman MacLeod, Electoral Service Manager,London Borough of Haringey

Peter Stanyon, Deputy Head of DemocraticServices, London Borough of Enfield

James Stevens, Brentwood Borough CouncilFraser Kemp MP, Houghton and Washington EastBridget Prentice MP, Parliamentary Under-

Secretary of State, Department forConstitutional Affairs

David Heath CBE MP, Shadow Leader of theHouse and Liberal Democrat Spokesperson forthe Cabinet Office

Day 9 London7 September 2006

Peter Viggers MP, Speaker’s CommitteeDr Christopher Ward, Secretary to the

Speaker’s CommitteeRt Hon Gavin Strang MPLord Holme of Cheltenham, Chairman,

Hansard SocietyClare Ettinghausen, Chief Executive,

Hansard SocietyGed Fitzgerald, Chief Executive,

Sunderland City CouncilPaul Rogerson, Chief Executive,

Leeds City CouncilKelvin Hopkins MP


Sir Howard Bernstein, Chief Executive,Manchester City Council

Susan Orrell, City Solicitor, Manchester City Council

Andrew Scallen, Head of Statutory Services,Manchester City Council

Dr Michael Pinto-DuschinksySam Younger, Chairman,

The Electoral CommissionPamela Gordon, Commissioner, The Electoral

Commission, and Chair of Local BoundaryCommittee for England

Peter Wardle, Chief Executive, The Electoral Commission


The Rt Hon Lord Falconer of Thoroton QC, Lord Chancellor and Secretary of State forConstitutional Affairs

John Sills, Head of Electoral Policy, Departmentfor Constitutional Affairs

Sir Hayden Phillips GCB

Day 12 Belfast23 October 2006

The Lord Maginnis of DrumglassSeamus Magee, Head of Office,

The Electoral Commission, Northern IrelandDr Tony Dignan, PricewaterhouseCooper

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PREVIOUS REPORTS BY THECOMMITTEE ON STANDARDS IN PUBLIC LIFE

The Committee has published reports on thefollowing subjects:

Members of Parliament, Ministers, civil servantsand quangos (First Report (Cm 2850)) (May 1995);

Local public spending bodies (Second Report(Cm 3270)) (June 1996);

Local government in England, Scotland andWales (Third Report (Cm 3702)) (July 1997);

The funding of political parties in the UnitedKingdom (Fifth Report entitled The Funding ofPolitical 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 permanentCivil Service (Ninth Report (Cm 5775)) (April 2003)

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

The Committee is a standing committee. It cantherefore not only conduct enquiries into newareas of concern about standards in public lifebut also, having reported its recommendationsfollowing an enquiry, it has can later re-visitthat area and monitor whether and how wellits recommendations have been put into effect.The Committee has so far conducted tworeviews, and in 2001 published a stock-take ofthe action taken on each of the 308recommendations made in the Committee’sseven reports since 1994:

A review of recommendations contained in theFirst and Second Reports relating to standardsof conduct in executive Non-DepartmentalPublic Bodies (NDPBs), NHS Trusts and localpublic spending bodies (Fourth Report)(November 1997);1

A review of recommendations contained in theFirst Report relating to Members of Parliament,Ministers, civil servants and ‘proportionality’ inthe public appointments system (Sixth Reportentitled Reinforcing Standards (Cm 4557))(January 2000);2

A stock-take of the action taken on each of the308 recommendations made in the Committee’sseven reports since 1994 (The First SevenReports – A Review of Progress) (September 2001).

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Appendix C

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 tothe nature and responsibilities of the post being filled.

APPENDIX C

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ABOUT THE COMMITTEE

Terms of reference

The Rt Hon Sir John Major KG CH, the thenPrime Minister, announced the establishment ofthe Committee on Standards in Public Life inthe House of Commons on 25 October 1994with the following terms of reference:

To examine current concerns about standards ofconduct of all holders of public office, includingarrangements relating to financial andcommercial activities, and makerecommendations as to any changes in presentarrangements which might be required toensure the highest standards of propriety inpublic life.

For these purposes, public office should include:Ministers, civil servants and advisers; Membersof Parliament and UK Members of theEuropean Parliament; members and seniorofficers of all non-departmental public bodiesand of National Health Service bodies; non-ministerial office-holders; members and othersenior officers of other bodies dischargingpublicly-funded functions; and elected membersand senior officers of local authorities. (Hansard(HC) 25 October 1994, col 758)

The remit of the Committee excludesinvestigation of individual allegationsof misconduct.

On 12 November 1997 the terms of referencewere extended by the Prime Minister:

To review issues in relation to the funding ofpolitical parties, and to make recommendationsas to any changes in present arrangements.

The Committee on Standards in Public Life hasbeen constituted as a standing body with itsmembers appointed for up to three years. SirAlistair Graham succeeded Sir Nigel Wicks asChairman on 26 April 2004. Sir Nigel succeededLord Neill as Chairman on 1 March 2001. LordNeill succeeded Lord Nolan, the Committee’sfirst Chairman, on 10 November 1997.

Membership of the Committee

Sir Alistair GrahamChairman

Lloyd Clarke QPMRita Donaghy CBE

Professor Dame Hazel Genn DBEDame Patricia Hodgson DBERt Hon Alun Michael JP MP

(from 1 October 2006)Baroness Maddock

Rt Hon Baroness Shephard JP DLDr Elizabeth Vallance JP

Dr Brian Woods-Scawen DL

The Committee is assisted by a small Secretariat:Dr Richard Jarvis (Secretary), Peter Hawthorne(Assistant Secretary), Jan Ashton (SecretariatManager), Gemma Craigan (SecretariatCoordinator) and Gloria Durham (SPS to theChairman and the Secretary).

Advice and assistance to the Committee for this study was also provided by: Radio TechnicalServices Ltd for the provision of soundrecording; WordWave for the provision oftranscription services during the publichearings; and Giles Emerson of Words forediting the draft report.

Expenditure

The estimated gross expenditure of theCommittee on this inquiry to the end ofDecember 2006 is £238,000.

This includes staff and administrative costs; thecosts of printing the Issues and Questions paperin February 2006; the estimated cost ofpreparing and publishing this Report; costsassociated with the public hearings throughoutthe summer of 2006 (eight held in London, two in Belfast, one each in Edinburgh andCardiff); the research trip to North America,visits to returning officers and all associatedsundry expenses.

Committee on Standards in Public Life35 Great Smith StreetLondon SW1P 3BQ

Tel: 020 7276 2595Fax: 020 7276 2585

Email: [email protected]

Internet: www.public-standards.gov.uk

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About the Committee

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The Seven Principles of Public Life

Selflessness

Holders of public office should act solely in terms of the public interest. They

should not do so in order to gain financial or other material benefits for

themselves, their family, or their friends.

Integrity

Holders of public office should not place themselves under any financial or

other obligation to outside individuals or organisations that might seek to

influence them in the performance of their official duties.

Objectivity

In carrying out public business, including making public appointments,

awarding contracts, or recommending individuals for rewards and benefits,

holders of public office should make choices on merit.

Accountability

Holders of public office are accountable for their decisions and actions to the

public and must submit themselves to whatever scrutiny is appropriate to

their office.

Openness

Holders of public office should be as open as possible about all the decisions

and actions that they take. They should give reasons for their decisions and

restrict information only when the wider public interest clearly demands.

Honesty

Holders of public office have a duty to declare any private interests relating

to their public duties and to take steps to resolve any conflicts arising in a

way that protects the public interest.

Leadership

Holders of public office should promote and support these principles by

leadership and example.

Eleventh ReportCm 7006

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The Committee on Standards in Public Life35 Great Smith StreetLondon SW1P 3BQ

Tel: 020 7276 2595Fax: 020 7276 2585

Internet: www.public-standards.gov.ukE-mail: [email protected]

January 2007

Documents

The Committee on Standards in Public Life Committee on ......The Eleventh Report of the Committee on Standards in Public Lifeon CD-ROM uses Adobe Reader which is pre-installed on most