Analysis: July 5th Elections Bill

06/07/2021 News

The Elections Bill covers a lot of territory and deserves adequate time in Parliament for its vast implications to be properly scrutinised. While there are some small positive steps in certain areas such as election finance, overseas electors and digital imprints, these are unfortunately nullified by the bill’s regressive stipulations, including voter ID and the curbing of the Electoral Commission’s independence and prosecutorial capabilities. 

Where positive, the bill often doesn’t go far enough (as in the case of election finance) or leaves significant legal loopholes (digital imprints). 

Fair Vote UK welcomes the effort to protect democracy, but our years of experience and research indicate that this bill will not accomplish that task to anywhere near the degree that democracy requires in the digital age.

Voter Identification: 

Schedule 1 of the bill addresses Voter Identification. Amending RPA 1983, it mandates that a valid form of photo identification must be produced at polling stations. Acceptable IDs include passports, driving licenses, concessionary travel passes, and photocard parking permits. Notably, student ID cards, student travel cards, and other forms of identification likely to be held by younger people are omitted from the list of valid IDs given in the bill. 

The bill does stipulate that voters can apply for free electoral identification cards if they lack any valid form of identification (as well as an anonymous elector’s ID with an electoral number in lieu of one’s name). Applications for ID may be discarded if certain deadlines are not met or certain information is not provided, potentially leaving voters with no recourse to vote if they are not fully checked in to the process. People with full-time jobs, young children, serious illness or other time-consuming life circumstances who lack valid ID may not have time to deal with this new process. 

Generally, even with free ID cards available, this legislation serves only to wedge a new and unnecessary layer of bureaucracy between would-be voters (especially members of marginalised groups) and their democratic right to a vote for no evidence-based  purpose whatsoever. It will cost millions of pounds to issue these identification cards nation-wide, and an estimated £17.9 million each election to administer.

There is no doubt that this will result in more eligible voters being turned away from polling stations. Voter fraud is not a serious problem and this treatment is far worse than the alleged disease. 

Fair Vote UK believes voter ID is a waste of time, effort, and taxpayer funds. Several prominent Conservative MPs agree, including David Davis MP, who said that voter ID “will potentially disenfranchise thousands of people” and that it is an “illogical and illiberal solution to a non-existent problem.” 

Postal and Proxy Voting Measures: 

Schedules 2 and 3 address changes to postal and proxy voting. 

Those who vote by post in the long-term will be required to re-apply every 3 years to do so. This is completely unnecessary and, like Voter ID, only serves to ultimately limit the number of people casting votes in any given election. 

To combat what Chloe Smith MP calls “postal vote harvesting”, the bill will also ban campaigners from handling postal votes. No evidence is provided to suggest this is actually a problem. 

The number of people on behalf of whom a person can vote by proxy is limited to four. Of those four, no more than two can be non-service or overseas voters. We disagree with this as it could potentially affect certain families and co-habitants that depend on proxy voting to cast all of their votes. 

Clarification of Undue Influence: 

Schedule 4 addresses deception and intimidation of electors at polling stations or elsewhere in order to affect the outcome of their vote. 

Notably, calling into question the validity of the electoral process or election administration can also amount to undue influence. This is a welcome change though again, no evidence is provided to suggest this is a serious problem. 

Accessibility of Polls: 

This section encourages election officials to make polling stations more accessible for citizens with disabilities and removes restrictions on who can act as a companion to disabled voters. This is absolutely welcome. 

Overseas Electors:

Schedule 6 scraps the 15 year time limit on overseas electors’ right to vote in Parliamentary elections. Other improvements make it easier for overseas voters to stay registered and verify their identity and connection to a UK residence. 

While an expansion of suffrage is welcome, the bill contradicts itself in that overseas voters are being re-enfranchised while the voting rights of electors living in the country itself are being limited by voter ID and postal and proxy voting requirements. 

EU Voting / Candidacy Rights: 

Schedule 7 establishes circumstances in which EU citizens in the UK can vote in non-devolved local elections. Citizens of EU nations that have voting rights agreements with the UK (Luxembourg, Spain, Portugal, and Poland) and EU citizens that have maintained residence in the UK prior to 31 December 2020 can still vote in those elections. We again welcome expanding suffrage and believe this aspect of the bill could go even further.

The Electoral Commission:

The bill introduces the ‘Strategy & Policy Statement’, which will be “developed through a statutory consultation with key stakeholders” and, crucially, approved by Parliament. The Statement will set the priorities and principles that the Commission is expected to operate within. 

The bill also increases the remit of the Speaker’s Committee (which the Commission currently reports to), making the Commission more accountable to the Committee for its “performance and delivery of general objectives”. With Westminster’s governing party holding a majority on the Committee, this would further bring the Commission under the Government’s control.

Making the Electoral Commission beholden to the Government of the day will greatly diminish its operational independence, making it a weaker and less impartial institution. This will likely erode public trust and give the party of government undue influence over the mechanisms of an Election in which they – by definition – have an interest. 

The Commission possesses a uniquely robust understanding of Electoral Law and should not be beholden to those without its same focus and expertise. This represents a serious conflict of interest, one with potentially severe consequences for free and fair elections in our democracy. 

The Electoral Commission’s capacity to prosecute will also be clearly ruled out, under the supposition that it “wastes public money” and that responsibility should remain firmly within the remit of the police and Crown Prosecution Service. This constitutes the removal of a potentially important accountability enforcement mechanism for the Commission. An already stretched CPS does not need this burden. The Commission, specialists in the area, should be given the resources and power to properly prosecute infringements of electoral law. How, exactly, is this meant to increase the public’s trust in elections?

Beyond that, another bill is in its second reading in the House of Commons that seeks to abolish the Electoral Commission entirely. While the bill looks likely to be unsuccessful, it demonstrates a consistent commitment from sections of Parliament against an independent, non-partisan Electoral Commission.

Political Finance: 

The bill introduces five new measures that attempt to curb foreign spending in UK elections and increase fairness and transparency. The five new measures are as follows: 

– Third Party Campaigner Registration

  • Third parties spending over £10,000 will need to register with the Electoral Commission and adhere to existing transparency requirements as well as indicate that they are UK-based. 

– Restriction of Third Party Campaigning

  • Only third parties that are registered with the Commission will be able to campaign during regulated election periods, whether or not they spent above the £10,000 threshold. 

– Ban on Simultaneously Registering as a Political Party and Third Party

  • It will no longer be permitted to register as both a political party and a third party. This will prevent entities from using both spending limits. 

Restrictions on Coordinated Spending Between Political Parties and Third Parties

  • Third parties and political parties that campaign jointly will be required to account for their combined costs. 

– Requirement for New Political Parties to Declare Assets and Liabilities

  • Political parties will be required to declare assets and liabilities in order to register with the Electoral Commission.

Fair Vote UK suggested actions along similar lines in our 2020 report Defending Democracy in the Digital Age. The main concern is that these actions may not be robust enough to fully address the scale of the problem at hand in terms of foreign spending and dark money political donations. 

The £10,000 spending threshold should be lower – set to 1p – and the Electoral Commission should be given the necessary capacity to fine and even prosecute infractions against election finance protocol. Whether you’re spending £1 or £100,000, any entity attempting to influence an election should be registered with the Electoral Commission.

We would like to see this section of the bill taken much further.

Our recommendations on how to do that, drawn largely from our extensive consultation, are to: 

  • Regulate all donations by reducing permissibility check requirements from £500 to 1p for all non-cash donations.
  • Increase transparency and regulation of local candidate financial reports by shifting oversight to the Electoral Commission.
  • Streamline national versus local spending limits with a per-seat cap on total spending.
  • Modernise spending regulations by instituting per-annum spending limits. 
  • Standardise financial reporting.
  • Require corporate donations to come ONLY from profits reported in the UK.
  • Third Party Political Organisations and political parties should complete an “Exit” audit after an election period before they disband.
  • Include valuations of data set costs in spending regulations

Intimidation Sanctions: 

The bill stipulates that anyone convicted of abusing a candidate, campaigner or elected official will no longer be eligible to run as a candidate themselves for five years. 

This would not function as a deterrent, as the vast majority of those who would abuse candidates/campaigners/elected officials likely have no interest in running for office.

Digital Imprints:

The new long-awaited digital imprints regime will require political campaigners to show who they are and who they are promoting material for. This applies only to all paid-for digital material. 

Elected representatives and political parties will also require an imprint if the material is digital election material, referendum material, or recall petition material. 

The paid-for vs. unpaid distinction risks the creation of certain loopholes that could nullify the effectiveness of requiring digital imprints in the first place. It is also crucial that the imprint includes why the audience is being targeted. 

Transparency in modern political campaigning should mean political advertisers are open to members of the public about the (often very specific) reasons they are being targeted with a message.

There is also no specification that the imprint needs to be visible on the material, creating yet another concerning loophole especially as the material is shared and re-shared. 

Finally, the legislation does not put a legal duty on platforms to ensure campaigners put an imprint on electronic material before it is uploaded. This is a fundamental flaw in the regime as social media companies have vast resources and it would make more sense – even purely from a practical point of view – to require the implementation of digital imprints at the upload stage rather than expecting the Electoral Commission and police to monitor compliance after the fact.  

Our Final Take:

While there are some welcome new provisions in this bill, it is clear that the driving force behind it is not electoral integrity but instead power consolidation. Making it easier to vote while living abroad but harder to vote while living in the country is blatantly contradictory and serves no purpose but to disenfranchise the most vulnerable and most marginalised in society. Explicitly eliminating the investigative and prosecutorial power of the Electoral Commission is transparently reducing the enforcement power of election law and a welcome invitation to break the law. Why weaken the independence and deterrence power of the Electoral Commission if you’re attempting to increase confidence in elections and democracy? It doesn’t make sense.

The Electoral Integrity Bill is a huge opportunity to modernise election law with several missed goals. For example, Election Day could have been moved to a weekend or been made a bank holiday to ensure people can actually get to the polls. Instead, their postal vote now expires after three years and there are even more hoops to jump through to vote on the day, including expensive Voter ID provisions that are attempting to solve a problem that evidence suggests does not exist. 

If recent efforts to actively disenfranchise voters in the USA are any indication, this bill’s greatest outcome will be to reduce democratic participation and in turn, faith in the outcome of elections. We look forward to robustly amending the bill to turn it into an actual Electoral Integrity Bill that seeks to broaden participation, deter interference and law-breaking and strengthen faith in our most cherished institution – democracy.