Policy paper

Draft Electoral Commission Strategy and Policy Statement

Published 22 August 2022

This policy paper was withdrawn on 19 June 2023

The consultation on this Draft Electoral Commission Strategy and Policy Statement has closed. Please see the government response and revised draft.

1. Priorities for the Electoral Commission

This section comprises the government’s view of the Electoral Commission’s priorities and functions that support the government’s priorities in relation to elections, referendums and other matters in respect of which the Commission has functions. As such, this is not an exhaustive list of all the Commission’s duties and responsibilities and does not suggest that the Commission should cease to carry out any of its other statutory duties. This Statement does not apply to the Commission’s devolved Welsh or Scottish functions, and any reference in this Statement to “functions” excludes those devolved functions.

1. The Electoral Commission is the independent regulatory body responsible for giving guidance and support to Electoral Registration Officers and Returning Officers in undertaking electoral registration and conducting elections effectively and in accordance with the law. The Commission sets performance standards for these officers in Great Britain in terms of their activities and produces statutory reports on electoral events. It is also responsible for registering political parties, giving guidance to political parties, candidates and third party campaigners among others on electoral rules, and regulating donations and loans to political parties and other campaigners, and their spending.

2. The Chair of the Commission has the responsibility in law for acting as the Chief Counting Officer at national referendums in the UK (held under the Political Parties, Elections and Referendums Act 2000) and the staff of the Commission support the Chair in that role, when it is required, to work through local electoral authorities to deliver such events.

3. The government believes the Electoral Commission has an important role to play in maintaining the integrity of our elections and public confidence in that integrity. As a statutory body, the Electoral Commission has a range of duties and responsibilities, most notably set out in the Political Parties, Elections and Referendums Act 2000. Amongst these duties and responsibilities, the government considers several to be core priority functions. It is the government’s view that these priority functions should be the focus of the Electoral Commission’s work and allocation of resources. This Statement is intended to provide guidance to which the Commission must have regard in the discharge of its functions. This Statement does not seek to interfere with the governance of the Commission and the Commission remains operationally independent. When preparing the Statement, the Secretary of State has had regard to the duty placed on the Commission by section 145(1) of the Political Parties, Elections and Referendums Act 2000 to monitor and ensure compliance with the rules set out in that Act. Further, this Statement does not affect the ability of the Commission to undertake enforcement activity within its remit as it sees fit and it cannot include reference to specific investigatory or enforcement activity of the Commission. The duty to have regard to the Statement means that when carrying out its functions, the Electoral Commission will be required to consider this Statement and weigh it up against any other relevant considerations. The Statement seeks to ensure greater accountability to the UK Parliament on how the Electoral Commission discharges its functions.

4. The government considers the core priority functions of the Electoral Commission, rooted in priorities already established in law, are as follows:

a) The Commission is responsible for supporting Returning Officers and Electoral Registration Officers with clear advice and guidance, and in Great Britain for setting and monitoring robust performance standards, to ensure the successful delivery of polls that meet the UK’s high standards of democratic integrity and free and fair elections.

b) The Commission is responsible for informing the public about and promoting awareness of current electoral systems in the UK, including systems that have been enacted by the UK Parliament but are not yet in force, and connected matters. As part of this duty, the Commission encourages accurate voter registration and access to polls.

c) Alongside the police and prosecution authorities, the Commission is responsible for enforcing the rules as legislated by Parliament relating to the regulation of political finance and electoral spending that provide for an even playing field and public confidence in the electoral process. As part of this, the Commission has a wide range of investigatory and civil sanctioning powers and can refer criminal matters to the police. The Electoral Commission has never brought criminal prosecutions. The Elections Act 2022 maintains that status quo and makes clear that the proper place for criminal prosecutions relating to electoral law lies with the prosecution authorities.

d) The Commission is responsible for providing clear and high-quality guidance, advice and support to political parties, candidates and other campaigners, that help their understanding of the rules as legislated by Parliament, with which they must comply.

e) With regards to national referendums held in pursuance of the Political Parties, Elections and Referendums Act 2000, the Commission’s core functions include considering the wording of the referendum question and reporting on its intelligibility; maintaining a register of permitted participants; and enforcing the rules as legislated by Parliament relating to the regulation of referendum expenses. The Chief Counting Officer (be it the Chair of the Commission or someone appointed by the Chair) is responsible for the conduct of these referendums and for certifying the results of these referendums.

5. In addition, whilst the Commission is not responsible for taking enforcement action regarding electoral fraud allegations, it plays an important role in tackling fraud through some of its other core statutory duties. As part of this, the Commission should:

a) Effectively support Electoral Registration Officers and Returning Officers in the discharge of their functions by providing them with clear guidance to deliver robust polls that meet the UK’s high standards of democratic integrity. In particular, the Commission should support Returning Officers in ensuring the secrecy of the ballot inside polling stations, by making it clear in both advice and guidance that any breach of the secrecy laws or attempt to influence someone’s vote while in the polling booth is an offence. The law expressly provides for children accompanying their parents into polling stations. The government considers this important in order to allow children to witness how the democratic process works. The law also expressly provides for a companion (to assist a disabled voter). The Commission should also pay specific attention to the need to provide greater support to Electoral Registration Officers and Returning Officers through advice and guidance in local authorities at higher risk of electoral fraud, including those with a history of electoral fraud.

b) Effectively support Returning Officers, Electoral Registration Officers and the police in identifying and addressing the risk of corrupt and illegal practices, including intimidation and undue influence as evident from past Election Court judgements including the London Borough of Tower Hamlets in 2015. This includes identifying and reporting on the observation of potential electoral fraud when publishing reports on the administration of elections and referendums.

c) Assist the relevant authorities in tackling electoral fraud when observing working practices of Electoral Registration Officers, Returning Officers and Counting Officers.

d) Have regard to the importance of improving electoral integrity when setting performance standards and monitoring the level of performance against those standards, by Electoral Registration Officers, Returning Officers and Counting Officers.

e) Support tackling electoral fraud when promoting public awareness about current electoral systems in the UK and any pending such systems and connected matters as detailed in paragraph 9 of this Statement.

6. Any allegations of electoral fraud should be referred to the police and prosecution authorities for investigation and prosecution.

2. Executive priorities in relation to elections as approved by Parliament

This section contains functions and responsibilities of the Commission that are included in the Elections Act 2022. As such, the parts of the Statement that relate to such a function will only apply after that function in the Act has been commenced.

7. The UK government’s 2019 manifesto set out this government’s commitment to protecting our democracy and ensuring that it remains secure, modern, transparent and fair. The government places citizens’ participation at the heart of our democracy, trusting their choices and maintaining their confidence in our elections. We are guided by important principles that underpin our democracy:

a) that those who are entitled to vote should always be able to exercise that right freely, securely and in an informed way;

b) that fraud, intimidation and interference have no place in our democracy;

c) that we are the stewards of our shared democratic heritage which we seek to keep up to date for our age.

8. The Commission in its work should support the government’s delivery of legitimate executive priorities in relation to elections during this Parliament, including changes brought by the Elections Act 2022 and as listed below.

9. To support the government’s objective of tackling electoral fraud with the introduction of voter identification in Great Britain and by addressing weaknesses in the current absent voting arrangements, the Commission should:

a) Support continued effective delivery of voter identification by raising public awareness about the requirements to show an approved form of photographic identification before taking part in UK parliamentary elections, local elections in England and elections in Northern Ireland.

b) Support issuing authorities in meeting the requirement to issue a free Electoral Identity Document to any elector requiring it through the provision of guidance to Electoral Administrators and the police that will support their understanding of the operation of voter identification.

c) Assist in tackling electoral fraud by promoting awareness amongst voters about absent voting arrangements (postal and proxy voting).

10. The government aims to improve accessibility of elections by allowing a wider range of people to assist voters with disabilities if needed when voting in a polling station and by broadening the requirements for Returning Officers to provide equipment to support voters with disabilities in polling stations. The Commission should support this goal by issuing guidance to Returning Officers on these new requirements introduced by the Elections Act 2022, and reviewing and updating the guidance where appropriate.

11. Another key government priority is supporting participation by championing freedom of expression and tolerance and by working to stamp out intimidation in public life through the delivery of a new electoral sanction. The Commission should support this work and candidates facing intimidatory or abusive behaviour by updating guidance in the ‘Joint Guidance on Intimidation for Candidates’ jointly produced with the National Police Chiefs Council, Crown Prosecution Service and the College of Policing. The Commission should also update other relevant guidance, including the guidance for candidates about qualifications for standing for election and the guidance for Returning Officers regarding the nomination process for offenders who have been disqualified from standing at a relevant election.

12. The Commission should also support participation by informing the public about the franchise and electoral registration, as well as associated changes such as extension of the franchise to all British citizens overseas who were previously registered or resident in the UK, and a new online application process for absent vote arrangements. This will include:

a) Making sure electors are clear about the online and offline process for registering to vote and for applying for an appropriate absent vote arrangement where desired.

b) Raising awareness among British citizens overseas of the extension of the franchise for expatriates.

13. To support the government in combating foreign interference in UK elections by ensuring compliance with the political finance framework, the Commission should:

a) Publish clear and easily accessible information about the rules and requirements in relation to the registration, spending, and donations received, of political parties candidates, campaigners and others. The Commission should also produce high-quality and accessible guidance for campaigners on how to comply with new rules legislated by Parliament in the Elections Act, such as the restriction on foreign third-party campaigning (section 26).

b) When carrying its functions under section 100A of the Political Parties, Elections and Referendums Act 2000 (PPERA) to prepare a code of practice on the controls for third party campaigners, the Commission should ensure that this guidance is clear, easily accessible and comprehensive. In particular, with regards to guidance on qualifying expenses in Part 1 of Schedule 8A of PPERA, the Commission should include clear and comprehensive guidance about the test of who should count as “the public at large or any section of the public”. As part of the statutory consultation process, the Commission must consult “such other persons as the Commission consider appropriate” and the Commission must have regard to the desirability of doing a public consultation before submitting the draft code to the Secretary of State.

14. To further the aim of improving transparency in UK elections, alongside the police and prosecuting authorities, the Electoral Commission must have regard to the importance of proportionate enforcement of the new digital imprint regime, including the need to avoid disproportionate sanctions against genuine mistakes where reasonable steps have been taken to comply with the new digital imprint regime. The Commission should also support compliance with the regime and recognise the importance of protecting free speech by individuals when producing the statutory guidance for the digital imprint regime.

15. To support the government’s efforts to clarify the law on notional expenditure, the Commission should reflect changes to the law on notional expenditure introduced by the Elections Act 2022 when updating the guidance on spending.

3. Principles for the Electoral Commission

This section contains the government’s view of the core principles that should be prioritised by the Electoral Commission in the exercise of its functions. This does not suggest that these are the only relevant considerations that the Commission may wish to consider.

16. Impartiality: The Commission should uphold and demonstrate the principle of political impartiality by ensuring that the Commission and its staff communicate and treat all operations, decisions, regulated entities and political matters neutrally and impartially.

17. Accountability: The Commission should be fully accountable as a public body with such important responsibilities relating to our democratic processes. The Commission should, as appropriate, provide transparency around its decision making including but not limited to its Report required under section 4B(4) of the Political Parties, Elections and Referendums Act 2000 in relation to this Statement. The Commission should work closely with the Speaker’s Committee on the Electoral Commission, as well as the UK Parliament to ensure public and democratic accountability.

18. Responsiveness to the public and the public interest: The Commission should respond to the need of the public and the public interest in the discharge of its functions, including when prioritising competing interests. For example, the Commission must have regard to the importance of accurate and prompt election results through supporting Returning Officers’ conduct of counts and setting adequate performance standards for Great Britain.

19. Value for money: The Commission should ensure value for taxpayers’ money in the discharge of its functions by carefully considering the balance between executive priorities in relation to elections as approved by Parliament listed in this Statement and its other functions. As part of this, the Commission should consider the principles set out in government guidance entitled ‘Managing Public Money’ on the spending of money in the UK public sector, including Cabinet Office guidance on grant standards and on lobbying by public bodies. For example, the Commission should ensure value for taxpayers’ money when exercising its discretionary power to give advice and assistance (under section 10 of the Political Parties, Elections and Referendums Act) by considering whether such requests are in the public interest and a justifiable use of the Commission’s resources.

20. Enforcement:

a) The Commission should ensure robust, consistent, transparent and proportionate enforcement of the rules legislated by Parliament, by balancing the need to engage constructively with campaigners to support compliance, with the need to sanction electoral offences. Proportionate enforcement includes the need for the Commission to balance the impact of its enforcement policy on providing an effective deterrent for deliberate breaches of electoral law and not unduly discouraging participation in public life. The Commission should be sensitive and proportionate to the voluntary nature of much of political parties’ infrastructure. The Government is committed to engaging with the police to assess where support may be needed to enforce electoral regulation proactively and effectively. In addition, as recommended by the Committee on Standards in Public Life’s report on ‘Regulating Election Finance’, the Commission must have regard to the importance of improving confidence in the fairness of its decision-making. This includes providing, where appropriate, those it regulates with a clear explanation of the rationale for the size of the sanctions it imposes in individual cases.

b) In its approach to enforcement, the Electoral Commission should consider best practice from other regulators (such as the ‘Macrory principles’), including where appropriate the use of requests for improvements before resorting to fines and the need to conduct investigations in a timely manner. The Electoral Commission should work closely and effectively with the police who hold responsibility for enforcing areas of electoral law and investigating where criminal offences are suspected.

21. Cooperation: Where appropriate, the Electoral Commission should cooperate with other regulators (such as the Information Commissioner and Ofcom) and public bodies and executive agencies (such as Companies House), to deliver its functions and avoid regulatory duplication or confusion. This includes ensuring the effective enforcement of electoral law by continuing to work with the Crown Prosecution Service, the Crown Office and Procurator Fiscal Service and the Public Prosecution Service NI for criminal prosecutions. Where decisions are taken by the prosecuting bodies not to take forward prosecutions, and where the Commission is aware of a decision not to prosecute and it is appropriate to do so, the Commission should ensure the record is clear that individuals or organisations do not remain under criminal investigation.

22. Communication and consultation: The Commission should consider the views of political parties, candidates and other campaigners to better understand the realities of campaigning activities when preparing guidance by seeking regular feedback and consulting with relevant stakeholders including the Parliamentary Parties Panel to ensure its guidance is helpful to campaigners. This will help to ensure engagement with the guidance and trust in the Electoral Commission amongst the public and interested parties. The Commission should use the full skills and experience of its Electoral Commissioners, including those nominated by parties.

23. Devolution: The Commission is a UK wide body with responsibilities relating to electoral matters in all parts of the United Kingdom. The Commission must have regard to the importance of acting for all parts of the UK equally. This will involve an understanding of where electoral law, processes and practices differ and ensuring that the Electoral Commission in the discharge of its functions, particularly through advice provided to campaigners and published guidance, reflect such differences accurately. This includes providing clear advice and guidance to political parties, candidates and third-party campaigners among others in relation to the impact on reserved rules of any regulatory divergence which may arise across the UK’s nations as a result of the devolution settlements. In relation to political finance regulation, this should include the application of the reserved rules during combined regulated periods, which can occur retrospectively.

24. Support to campaigners: The Commission should provide campaigners with clear, consistent and user-friendly guidance that supports campaigners in complying with electoral law. Electoral law can be complex and the Commission should provide guidance that sets out the rules as simply as possible and offers practical advice, with illustrative examples, of how to comply with the rules, as legislated by Parliament. As recommended by the Committee on Standards in Public Life’s report on ‘Regulating Election Finance’, the Commission should ensure that its website and online guidance are as user-friendly, interactive and accessible as possible to campaigners and the public. As recommended in the same report, the Commission should seek regular feedback from the Parliamentary Parties Panel and voluntary organisations, to ensure the Commission’s advice meets the needs of those that require it.

25. Ensuring clarity on the law: When drafting guidance for campaigners, the Commission should clearly identify whether the guidance is statutory, which must reflect electoral law (and other legislation) or whether it is non-statutory guidance. In any guidance, the Commission should clearly identify the scope of legal obligations. Such guidance should clearly distinguish between legal requirements which must be complied with, and behaviour or activity which is being encouraged or discouraged as a matter of best practice, to help campaigners in their decision-making.