It happened so quietly you might have missed it, but this spring UK democracy suffered a severe setback. The Elections Bill—which slid onto the statute book in late April—contains the most draconian electoral provisions seen in living memory. It will introduce photo ID in polling stations, which could effectively disenfranchise millions of Britons. It will also bring the Electoral Commission under a form of government control.
When the proposals were first trailed, it was the voter ID requirements that most alarmed experts. The new law will make voting impossible for those—disproportionately poor and from ethnic minority backgrounds—who do not have identification and are unwilling, or unable, to navigate the bureaucracy for obtaining it.
Voter fraud in the UK is vanishingly rare, so the new measures seemed like a solution in search of a problem. The changes also benefit the governing party, since the demographic groups who stand to lose out usually tend towards Labour. But there is genuine public concern about the risk of fraud in elections, and these proposals—while objectionable—are not the most alarming element of the legislation. That dubious honour is reserved for the clauses on the regulator.
For an election to be free and fair, it must meet various criteria:
- All voters must be able to cast a ballot without coercion for the candidate of their choice;
- there must be no political interference in the counting of those votes;
- the result must be accepted as legitimate by those on the losing side;
- voters must be provided with clear information and facilitated in their
- efforts to participate;
- campaigns must meet certain standards of propriety, including financial propriety;
- electoral boundaries must be drawn impartially;
- there must be an independent regulator to invigilate the entire event.
Several of these conditions are at risk of no longer being met in the UK, and we can now say categorically that the last of them—an independent regulator—is not met. One of the oldest democracies in the world is entering dangerous waters.
The UK’s elections regulator, the Electoral Commission, was established by the Political Parties, Elections and Referendums Act 2000, at the recommendation of the Committee on Standards in Public Life, in order to help set the standards for how votes across the UK are run. It conducts public information campaigns, publishes election data (for example on turnout), and is responsible for the administration and smooth running of the vote at a high level (work on the ground is carried out by returning officers in local areas). For referendums, it recommends the wording of the question and designates the official campaigns. It also ensures the integrity and transparency of campaign finance across the board and has the power to impose a penalty where either is undermined.
When I asked the chair of the Commission, John Pullinger, if the Elections Act is incompatible with the body’s independence, he was direct: “Yes.”
It’s easy to see why he takes this view. In future, the UK government will issue a regular strategy and policy statement outlining its electoral priorities, which the Commission will be bound by law to follow—whether these relate to political finance, guidance for electoral administrators or anything else, and no matter how objectionable they are. All commissioners but one objected to this proposal in a letter to ministers in February; it was pushed through anyway.
“Most people would think that the government of the day has only one strategy and policy priority for the next election, and that’s to win it for themselves,” said Pullinger. “Powers on the face of a bill like that are inconsistent with the Electoral Commission acting as an independent regulator,” he told me.
Pullinger is a mild-mannered man of 63, not prone to hyperbole, but the stakes here are driving normally cautious characters to sound the alarm. The UK has a proud—if historically imperfect—democratic tradition. Now, after centuries of grinding progress, we have taken a giant leap backwards. Without an independent invigilator to ensure the fairness of the vote, there is concern the government could go into polling day with an inbuilt advantage. That could undermine voters’ confidence that they have taken part in a sound election, and events in the United States show how dangerous that is. So, is the government making these changes simply because it has failed to grasp the dangers inherent in such meddling—or is there something more sinister at work?
Helen Mountfield, a leading QC specialising in democracy and human rights, posed the question in this way: “How can the Electoral Commission conceivably be an independent regulator of elections if it has to take policy direction from the government of the day?”
Former Conservative attorney general Dominic Grieve said such proposals for government supervision should have been stripped from the legislation. And Shami Chakrabarti, the Labour peer and former director of human rights organisation Liberty, was least impressed of all: “Britain is an old unbroken democracy because of respect for referees and the ‘rules of the game,’” she said, but with this legislation Boris Johnson is “closely emulating Trump.”
The Electoral Commission has 10 commissioners: one from each of the three largest political parties; another from the remaining parties; one from each of Scotland, Wales and Northern Ireland; and three more flexible appointments, of whom one is the chair. Their independence from government is usually a foregone conclusion.
But now, thanks to the Elections Act, not only will the government be at liberty to set the overarching direction of the Commission but, in the most extreme circumstances, the relevant secretary of state could direct it to avoid looking into anything inconvenient, and refuse to fund activities that he or she doesn’t like. Compliance with the strategy statement will be monitored by the Speaker’s Committee in parliament, which oversees the Commission’s work and counts government ministers and Tory MPs among its membership.
Governments have only one priority for the next election: to win it
There is little precedent for such measures among advanced democracies: “We have not been able to find another example where, on the face of the act, there is an opportunity for the government to issue [such] a statement… we’ve not found one anywhere,” said Pullinger of the strategy and policy document.
Igor Judge, former lord chief justice of England and Wales, led the fight against the legislation in the House of Lords. He told me that if the Electoral Commission is still independent, then it “seems to me to be really rather an unusual form of independence.” Assurances from the government are only worth so much. As Judge told the Lords: “Self-evidently, the Commission cannot say, ‘Aha, here’s the statement, yippee,’ and chuck it out the window or put it in the bin. It will influence the decision; that is the point of it and exactly its purpose.”
“The truth of the matter is that over the years the Electoral Commission will become more and more dependent on what the secretary of state’s statement asserts,” as Judge put it on another occasion. If similar rules were applied to the judiciary—if their approach was dictated to them by the government—there would be uproar. Yet the Electoral Commission, a quasi-judicial body, has been subjected to precisely this treatment.
All this is hard to reconcile with the founding principles of the Commission, articulated in the 1998 report from the Committee on Standards in Public Life: “An Election Commission in a democracy like ours could not function properly, or indeed at all, unless it were scrupulously impartial and believed to be so by everyone seriously involved and by the public at large.”
Yet the strategy statement is not the only change contained in the act. In addition to the introduction of voter ID, the Commission has been robbed of the power to bring criminal prosecutions. This power would have enabled it to work independently from the police to prosecute serious electoral fraud: now the police, overstretched and with limited specialist expertise, have sole capability. This is accompanied by tweaks to campaign finance rules and the membership of the Speaker’s Committee (both largely technical), and changes to overseas voting.
How suspicious should we be of the motivations behind the reforms?
The Electoral Commission issues penalties across the political spectrum: a glance at its list of cases quickly reveals fines for a spread of different parties, the Stronger in Europe campaign (for reporting payments in the aggregate rather than individually), and a £16,700 fine for the Corbynite Momentum group (for an inaccurate 2017 general election spending return and failure to properly report donations). But a sequence of decisions has radicalised a group of right-wing critics, who see in the findings of the Electoral Commission an intolerable bias.
When the official Brexit campaign was found in 2018 to have committed serious offences under electoral law, it knew who was really to blame. The Commission was pursuing a “highly political agenda” and its findings were “wholly inaccurate,” said those associated with Vote Leave.
The Elections Act is a power grab in the truest sense of the term
“The particular concern” then, Pullinger told me, was whether different groups “were truly independent of each other.” The verdict—that Vote Leave co-ordinated with a pro-Brexit youth group called BeLeave in the spending of more than £675,000, and thus exceeded its total spending limit by almost £500,000—was immensely controversial. A year later Vote Leave dropped its appeal. It had, in the words of the Commission, broken the “rules set out by parliament to ensure fairness, confidence and legitimacy at an electoral event.” The sanction—£61,000—was paid in full.
That case was entangled with equally fraught accusations against BeLeave’s founder, the prominent Brexit supporter Darren Grimes. Grimes faced his own £20,000 fine for alleged wrongdoing, including knowingly exceeding spending limits for non-registered campaigners and reporting BeLeave’s spending as his own. He appealed and the court found in his favour. Also in the background was the fact that the Tory Party itself had fallen foul of the regulator a couple of years before, and was fined £70,000 for significant failures in the reporting of campaign expenses in three by-elections in 2014 and in the general election of 2015.
It doesn’t take a conspiracist to wonder if there might be a connection between these events and the Elections Act. The Commission has come to be associated in the minds of some Leavers with the establishment “blob,” thwarting the will of the people. That so many members of the Vote Leave team—Dominic Cummings and other staffers, as well as politicians including Johnson, Michael Gove and Priti Patel—have been in government over the past few years could suggest an element of payback.
The Grimes case, in particular, damaged the Commission’s credibility in the eyes of some. “We got that one wrong,” admits Pullinger, “and we have apologised.” But if the Commission has made mistakes, you fix that by working carefully to avoid any repeat of them—not, in the words of Judge, “by saying it’s in the hands of the secretary of state.”
Also at play here is that a government on the rocks over Partygate and the cost of living is desperate to throw red meat to its supporters. Abolishing the Human Rights Act, implementing draconian restrictions on the right to protest and waging a war on public service broadcasters are all of a piece with the attack on the Commission, designed to distract from other crises and shore up the support of hardliners.
The Elections Act may be more serious even than this other legislation, because no matter how alarming a government’s programme, there is always the possibility that you can boot them out. In chipping away at that principle, the act takes on a uniquely sinister character. It represents a power grab in the truest sense of the term.
The UK is clearly still a democracy. Events in the US show the perils of rushing to discredit an entire electoral process. Despite recent reports of cash for peerages, anxiety about meddling by foreign states and the threat of online disinformation at election time, we are able to eject those running the country if we don’t like them. It has been said that the best sight in UK democracy is when a moving van pulls up outside No 10: a symbol of the peaceful transfer of power. That will still happen. But a Rubicon has been crossed. Chakrabarti told me that the government is “more than close” to trying to rig elections in its own favour.
What now? When the government issues its first strategy statement, MPs should fight back on any provisions that further compromise the role of the Commission. Judge implored lawmakers to be robust in amending anything that fails to uphold regulatory independence.
And for Pullinger, “as long as I’m the chair of the Electoral Commission, I will act independently and impartially,” he said. “If people start thinking, well, maybe the government’s pulling the strings, then there is a risk. And we need to be very careful of that risk.”
