Author: Toby S. James
Until the turn of the 21st century, there had been very few changes in the way that elections are run in the UK, or in the organizations and individuals responsible for them. The foundations of electoral practices remained rooted in the Municipal Ballots Act of 1872 and the Representation of the People Act of 1918. However, the new century brought major change. The New Labour governments from 1997–2010 introduced changes such as rolling registration, postal voting on demand and innovative electoral pilot schemes. [1] Changes have also been made to the organization and governance of elections. The Electoral Commission was established in 2000 and has quickly established itself as a source of expertise on electoral law. It has fearless independence from the government and has had an important influence on the practice of elections in the UK.
However, UK electoral governance is increasingly complex and fluid, in part because a range of organizations play a role in running elections. Ultimate responsibility for running elections remains with officers employed by local authorities; therefore the UK formally best fits the Government Model of electoral management. However, there are different arrangements for different jurisdictions within the UK, partly as a result of the recent creation of an elected Scottish Government, Welsh Assembly Government and Northern Irish Assembly. Scotland now has its own EMB, Wales has recently discussed the decentralization of election law, and Northern Ireland has long had unique arrangements.
The Electoral Commission is a new organization, and its role has already changed since its creation in 2000. It has been granted more power over local authorities, and wants more still. If granted, it may better approximate the Mixed Model than the Governmental Model. Yet the uncodified nature of the British constitution means that the Electoral Commission, like all public organizations, can be abolished at any time by a government that has a majority in Parliament.
Elections have historically been run by returning officers, who are appointed by local authorities. They are responsible for the conduct of the poll and have some discretion over the timing of the count. An electoral registration officer is responsible for compiling the electoral register. Both returning officers and electoral registration officers are local government employees, but are independent of both the central and local governments with respect to their electoral duties. They are instead accountable to the courts system as independent statutory officers, and can be prosecuted for being in breach of their duties. [2]
There are some important variations across the UK. In England and Wales, the electoral registration officer and returning officer are often the same person working within the same local authority. However in Scotland, electoral registration is organized by Valuation Joint Boards, which undertake the task of valuing properties for the purpose of local taxation. The assessor in charge of the Valuation Joint Board is therefore the electoral registration officer. In Northern Ireland, a chief electoral officer acts as both the returning officer and the electoral registration officer. (S)he is supported by the Electoral Office for Northern Ireland and appointed by the secretary of state for Northern Ireland.
Electoral registration officers and returning officers implement elections according to electoral law, which is determined by the central UK government. Prior to 2000, a small Elections Department was responsible for developing advice and information from the Home Office. In 2000 a UK Electoral Commission was set up to provide advice and guidance on election administration and to regulate the financing of political parties.
In some senses, therefore, the Electoral Commission is not an EMB according to the definition used in this Topic Area. It only has the power to direct officials involved in administering referenda. However, it undoubtedly plays an important role in the governance of elections. And the trajectory is toward a growing role. The Electoral Administration Act of 2006 amended the Political Parties, Elections and Referendums Act of 2000 to give the Electoral Commission the power to set performance standards for returning officers, electoral registration officers and referendum counting officers. [3] These have been an important way through which the commission can manage electoral administrators without having formal control. [4]
A further development has been the creation of the Electoral Management Board for Scotland. This was created by the Scottish Government in the Scottish Parliament (Local Electoral Administration (Scotland) Act 2011) with the aim of supporting local authorities and promoting best practice. It is convened by a returning officer, who is appointed by ministers. The Scottish EMB has statutory power of direction over local returning officers in local government elections. The Electoral Commission has welcomed the establishment of the Scottish EMB, noting that its statutory powers are limited to local elections, but that it may help to develop methods of best practice for other elections. [5] The Scottish Government proposed that the poll and count for the independence referendum be conducted by local authorities under the direction of the Scottish EMB. The Electoral Commission would therefore provide advice and regulation of the campaign. [6]
In Wales, an Elections Planning Group (comprising the Welsh Government, the Electoral Commission, representatives of the political parties and returning officers) meets to agree on uniform approaches to local and Welsh Assembly elections, such as the timing of the count. The group has no statutory power. However, the Welsh Government is considering asking for powers to be devolved to Wales to give it legisla- tive control over local and Assembly elections. [7]
There are four advisory, non-governmental Boundary Commissions (for England, Wales, Scotland and Northern Ireland) that conduct periodic reviews of electoral districts and provide Parliament with recommendations on any changes. Their proposals are subject to a vote in the House of Commons.
Electoral justice is primarily dealt with by the court system. Election Courts can be convened by the High Court if a petition is raised challenging the result of an election. The Electoral Commission has some powers of sanction for election finance law (see below), but this is mostly dealt with by the broader legal system.
In short, Parliament retains ultimate power in deciding electoral law, and this is implemented by employees of local authorities, with a range of other institutions playing advisory or supervisory roles. Since it is the primary EMB, the remainder of this case study will focus on the role of the UK Electoral Commission.
There is no single piece of legislation that consolidates electoral law or the responsibility for elections. The Law Commission recently expressed concern that for the May 2010 elections electoral administrators had to consult 25 different pieces of legislation, some of which were UK wide and others that only related to part of the UK. [8] Some electoral administrators find the fragmented legal framework confusing, and commonly report that this makes them more likely to make errors. [9]
The Electoral Commission’s role is defined by the Political Parties, Elections and Referendums Act of 2000 as amended by the Political Parties and Elections Act of 2009. The duties of electoral registration officers and returning officers are primarily specified by the Representation of the People Act of 1983. The role of the Electoral Office for Northern Ireland is covered in various legislation dating back to the 1970s. [10] Party finance regulations are covered in the Political Parties, Elections and Referendums Act of 2000, as amended by the Electoral Administration Act of 2006 and the Political Parties and Elections Act of 2009. There is a powerful case for legal consolidation.
The Electoral Commission works in five broad areas. First, it is responsible for the regulation of election finances and party donations. There are caps on the campaign spending of political parties at both the national and constituency levels. There are also regulations on who can make donations to political parties and the size of these donations. The commission maintains public registers of political parties and the details of their donations, borrowing, campaign expenditures and annual accounts. The commission compiles this information and presents it in an intelligible format to the public. They also investigate breaches of the regulations. The Political Parties and Elections Act of 2009 provided the commission with a range of sanctions (e.g. fines) that it can impose when it is clear beyond a reasonable doubt that the law has been broken. However, some breaches remain subject to criminal prosecution only. [11] The commission is also responsible for the registration of political parties.
Second, the commission undertakes considerable policy and research work on election administration, political broadcasting and election finance. It has a statutory requirement to coordinate evaluations of all elections run in the UK. It is also required to evaluate a range of specified innovations, such as recent efforts by the UK Government to use electronic databases to improve the electoral register. [12] Finally, it must keep electoral matters under review. This latter function gives the commission some freedom to undertake research that it considers important. It therefore regularly undertakes reviews of the effectiveness of existing electoral practices and public opinion toward them. For example, it has evaluated the completeness of the electoral register [13] and has recently stated an intent to review the case for voter identification requirements at polling stations, even though no political party has called for this. These reports are then used to develop policy positions and are fed into the development of legislation.
Third, the commission advises on party election and referendum broadcasts. Policy is ultimately determined by the broadcasting authorities, but they are required to consider the commission’s views.
Fourth, the commission provides support and guidance to electoral administrators, parties and candidates, and the general public. It publishes resources for staff in local authorities delivering the elections. It has a password-protected area on its website where it provides a range of key resources, but it also fields miscellaneous queries. During 2011–12 it claimed to have responded to almost 4,000 queries on matters of electoral law and practice and party and election finance. [14] Electoral law in the UK has become increasingly complex, in part because of an increase in the number of elections and the use of different electoral systems, and administrators often value this resource. [15] The commission also provides information for the general public, including a website explaining how to register to vote that was well used during the 2010 general election. The commission originally had a statutory requirement and a ring-fenced GBP 7.5 million budget to promote public participation, but this was removed after a committee that was reviewing the commission’s role suggested that it focus on its regulatory functions. [16]
Fifth, the commission has recently been granted the power to set performance standards for returning officers, electoral registration officers and referendum counting officers in Britain. The commission publishes a set of standards, and election officials are required to self-assess as to whether they are ‘below’, ‘at’ or ‘above’ the standard. The results are then made publically available in Electoral Commission reports and an online search tool. This is an innovative approach from an international perspective, and has been an important way in which the commission can manage electoral administrators without having direct control. [17]
The Electoral Commission, however, has recently revised how the scheme works. Originally, standards were published and administrators were asked to report on their performance after an election. In May 2012 a new set of indicators was devised for returning officers, who were then asked to report in real time whether they had undertaken a specific task so that the commission could check the progress of implementation. This followed a similar approach in the Welsh Assembly and alternative vote referendums in 2011. The commission currently lacks the power to direct election officials who have not undertaken a specific task for elections, but has made the case for being granted this authority, which would be a significant development because it would grant the commission much more control, and it would more closely fit the Mixed rather than the Governmental Model.
The Electoral Commission therefore cannot initiate any changes to electoral procedures itself, and its role, apart from its involvement in referenda, is advisory. In practice, however, the role that the commission plays in keeping procedures under review and advising government and other agencies means that it has often been effective at putting or keeping certain issues on the political agenda. For example, it has long argued for the introduction of individual registration in Britain and this is now being implemented. However, governments have also ignored the commission’s advice and introduced changes for partisan ends. For example, New Labour governments ignored its recommendations on individual registration and the use of postal voting in the 2004 European elections. [18]
As noted above, a vast range of other actors are involved in the delivery of elections in the UK, and the commission has active relationships with each of them. The commission is well respected by the media, and its views are usually reported when changes to the law are proposed or if there are news stories relating to elections. The Political Parties, Elections and Referendums Act of 2000 allows the commission to provide assistance to overseas organizations and governments if it is requested. Overseas delegations from Australia, Bangladesh, Korea and Taiwan have observed elections in recent years. Organizations such as the OSCE have also published reports on the quality of elections in the UK. [19]
The commission is comprised of nine or ten commissioners who are supported by a chief executive, executive team and approximately 140 staff. Originally the commissioners were required to be independent of the political parties. However, the Political Parties and Elections Act of 2009 reduced the restriction on political activity for some commissioners on the basis that they brought more recent experience from party politics. As a result of these changes, there are up to six ‘ordinary’ commissioners who remain subject to restrictions on political activity. These are selected by a Speakers Committee in the House of Commons. There are also up to four ‘nominated’ commissioners whose names are put forward by the leaders of the political parties in the House of Commons and considered by the Speakers Committee. Having considered the candidates and made a recommendation on the appointment of the commissioners, the Speakers Committee has a statutory requirement to consult with the leaders of the political parties. [20] The appointment of the commissioners has not yet been a partisan issue, but there is scope for it to be.
The commission is primarily based in its central office in London, but there are smaller regional offices in Belfast, Cardiff, Edinburgh, York and Coventry. Teams in these offices provide specialized support and training for electoral administrators working in these regions or countries.
The commission is accountable to the UK Parliament, which funds it. This accountability functions through a committee chaired by the speaker for the House of Commons. The Speaker’s Committee provides a report to the House of Commons, at least once a year, on how the Electoral Commission has carried out its functions. The commission is required to submit annual resource requirements to the Speaker’s Committee, which it may modify before the final request for funding is put to the House of Commons for approval. The commission must submit its accounts to the Speaker’s committee. The committee also receives reports from the comptroller and auditor general on the economy, efficiency and effectiveness with which the commission has used its resources, and appoints an accounting officer for the commission. The commission had a budget of approximately GBP 21 million in 2011–12, although an additional GBP 100 million was granted to meet the one-off costs of a referendum that year. [21]
The professionalism of Electoral Commission staff, like most employees of UK public institutions, has not been questioned. Staff appointments are based on experience and skill. Some staff have previously worked in the implementation of elections in local authorities and are members of the Association of Electoral Administrators (AEA). Most staff in local authorities are also members of the AEA. This organization provides training and formal qualifications for those involved in administering elections. Professionalism is also extremely high, although there have been accusations that a few election officials have not always carried out their duties effectively in some cases, such as at the 2010 general election. An Electoral Commission report on this election identified problems with queues at polling stations that denied some voters the opportunity to cast their ballot. [22]
The commission exists so long as Parliament wishes for it to exist. The uncodified nature of the British constitution means that a government with a majority in the House of Commons that is able to control its party can make any changes that it wishes. Thus a change of government in Westminster could bring about major changes in the role of the commission or abolish it entirely. In 2010 a coalition government was formed between the Liberal Democrat and Conservative parties, which sought to make significant cuts to public sector spending. It therefore embarked on a ‘quango bonfire’ in which a number of other regulatory organizations, such as the National Audit Office, were abolished and their functions passed to other organizations. Before coming to office, Prime Minister David Cameron claimed that the commission had ‘overreached’ its role. The commission eventually survived the bonfire, however, with the government stating that it provided ‘a vital independent and impartial oversight of our democratic process’. [23] The commission’s existence therefore seems to have been accepted by all of the major political parties, even if there are some disagreements about its precise role and function.
One of the commission’s key strengths is that it is a fearless organisation. It prizes its independence from the central government and will commonly criticize current government policy. It also provides an important coordination and information role in an increasingly complex and fragmented system. However, important tasks are also played by other organizations. The AEA, for example, continues to lead on the training and professional development of local authority staff who ultimately run elections. The commission has stated that it needs further authority over the administration of elections in order to ensure that errors are not made. This might be considered a weakness, but it is unclear whether this would necessarily improve elections. The principal weakness of the organization is that Parliament can abolish it at any point and remains able to ignore its advice.
Notes
[1] James 2012a, pp. 125–68, 2012c.
[2] Gay 2010.
[3] Electoral Commission 2008, p. 1.
[4] James 2012b.
[5] Electoral Commission 2011b.
[6] Scottish Government 2012, pp. 16–22.
[7] Welsh Government 2012, pp. 18–19.
[8] Law Commission 2011, p. 14.
[9] James 2012d.
[10] Electoral Office for Northern Ireland ND, pp. 3–4.
[11] Electoral Commission 2012c.
[12] Electoral Commission 2012b.
[13] Electoral Commission 2011a.
[14] Electoral Commission 2012a, p. 1.
[15] James 2012d.
[16] Committee on Standards in Public Life 2007, p. 5.
[17] James 2012b.
[18] James 2010.
[19] Office for Democratic Institutions and Human Rights 2005.
[20] Speakers Committee 2012.
[21] Electoral Commission 2012a, p. 17.
[22] Electoral Commission 2010.
[23] Cameron 2009.
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