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Government’s poisonous Elections bill is designed to cement Tory rule

I was an Electoral Commissioner. Boris Johnson’s bill will benefit the Conservative Party at the expense of British democracy

David Howarth
6 September 2021, 12.01am
Political polling
John Winder / Alamy Stock Photo

There’s an old trick governments use when drafting legislation: put something controversial in the early clauses, and hide the more important issues later on. Opposition MPs and journalists will put all their effort into the first part, and miss the other issues altogether.

The UK’s Elections Bill, which Parliament debates this autumn, is a classic of the genre. It begins with proposals about voter ID – already a controversial issue, with accusations flying about voter suppression. But it has all the hallmarks of a trap.

But surprisingly, this part of the proposal is not as bad as expected. For example, the bill says that local authorities must issue free local voter identification documents, as is already the case in Northern Ireland, with no discernible adverse effect on turnout. The debate will nevertheless rage, and the government might even concede on a few technical points. That debate over, the government hopes that everyone will lose interest in the bill.

But that would be a disaster. The rest of the bill contains three further proposals that are serious threats to the fairness of all future elections in Britain.

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Undermining the Electoral Commission

Of the three, the most important is undermining the independence of the Electoral Commission. Media reports have given a vague impression that the bill would merely increase the accountability of the commission to a committee in the House of Commons to which it already reports. But the reality is much worse.

Clause 12 subjects the commission to strategic and policy control, including guidance on specific cases – not by Parliament, but by government ministers. It is difficult to express just how appalling this is.

Many Conservative backbenchers have been gunning for the Electoral Commission ever since it made various decisions they didn’t like in the aftermath of the Brexit campaign. But Electoral Commissions, like the courts, do not exist to please elected politicians. They exist to protect free and fair elections, which they can’t do unless they are independent and free from the control of the ruling party.

Ministers could ‘guide’ the commission to interpret its powers in ways that would favour the ruling party

Policy control and even guidance on individual cases might be appropriate for other public bodies, for example those making decisions about infrastructure or planning permission. But it can never be right for the governing party to be able to give instructions to a body whose role requires it to make decisions that might well go against the interests of that party.

Under Clause 12, Ministers could ‘guide’ the commission to interpret its powers in ways that would favour the ruling party and its friends. The courts might provide a backstop in the most extreme cases, such as where guidance tries to permit illegal activities. But judicial intervention is unlikely in more strategic interventions, such as ministers telling the commission to restrict or halt its work on voter registration, which mainly targets young people, minorities and renters living in house shares.

Restricting the independence of the Electoral Commission is contrary to international norms. For instance, the Organisation for Security and Cooperation in Europe recently criticised Poland for proposals that would have transferred powers from its National Election Commission to ministers. Likewise, the European Commission for Democracy through Law insists that electoral commissions must be independent and politically balanced. Its investigations have “expressed concern on several occasions about transfers of responsibilities from a fully fledged multi-party electoral commission to an institution subordinate to the executive”.

International standards do not necessarily demand that bodies in charge of elections are completely separate from the executive, so long as it is impartial and the country has a “tradition of administrative authorities' independence”. In the past, Britain might well have counted as such a country, but the current government is plainly not committed to administrative independence. It is, for example, placing party loyalists in public positions, and the courts have found a “real danger of bias” in the way it operates the public procurement system. The Elections Bill is merely the latest example of that tradition being abandoned.

‘Third-party’ campaigning

The other two threats posed by the Elections Bill are more tactical, but they are also potentially poisonous for the fairness of future elections. They both concern campaigning by so-called ‘third parties’ – organisations that want to spend money supporting a political party’s national election campaign.

The law around these groups is complex, and the bill does go some way to increasing transparency around spending and donations. But it also includes changes that pose problems.

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Clause 23 of the bill gives ministers the power to add organisations to the list of those who qualify to register as a ‘third-party’ campaigner, which might seem unobjectionable, but it also gives them the power to remove groups, or change the way they are described. The government says, in its delegated powers memorandum, that it needs the power to add new types of organisations that might come into existence. Fair enough, but that is no justification for removing groups or amending their descriptions, and the memorandum offers no explanation.

Why is that a problem? Because the list includes – for example – trade unions, whose relationship with the Labour Party has been a longstanding target for the Conservatives. Ministers’ ability to amend the list might also allow them to ban organisations that it objects to, like Extinction Rebellion or Black Lives Matter, by creating conditions for inclusion such as not using disruptive protest methods.

The proposals also attack the ability of smaller parties to form an electoral pact. This is because Clause 20 of the bill makes it impossible for political parties to register as ‘third parties’.

At the moment, parties might decide not to put forward a candidate in every seat, and instead support the national campaign of another party (although supporting specific candidates in a seat is a different thing, and is already tightly controlled). But the current rules allow parties to spend money on campaigning for each other.

The effect of the bill would be to limit the total national spending by one party in support of another party’s national campaign to just £700 – down from hundreds of thousands currently. It is a proposal that favours single, monolithic parties over alliances of parties.

The main beneficiaries are almost too obvious to state. Like much of the rest of the Elections Bill, it is calculated to facilitate the entrenchment in power of the current ruling party.

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