The Secretary of State for Levelling Up, Housing and Communities, Michael Gove, has insisted that the Electoral Commission will remain operationally independent and governed by their Commissioners, rejecting concerns raised by MPs about the impact of reforms in the Elections Bill on the watchdog.
The Public Administration and Constitutional Affairs Committee (PACAC) had earlier this month urged the Government to scrap its proposals for new powers to set the strategic direction for the work of the Commission.
The PACAC’s concerns were echoed last week by the Committee on Standards in Public Life.
In his response to the PACAC, which can be obtained here, the Secretary of State refused to accept amendments laid in the House of Lords that would remove Clauses 15 (Strategy and policy statement) and 16 (Examination of duty to have regard to strategy and policy statement) or to accept the compromise recommendations the committee set out.
Gove said: “The Government is clear that these measures are necessary. The Strategy and Policy Statement (clause 15) will provide an opportunity for the Government, with the approval of the UK Parliament, to outline a clear articulation of principles and priorities for the Commission to have regard to when going about their work - particularly in areas where primary legislation is not explicit and the Commission are exercising the significant amount of discretion they are afforded in terms of activity, priorities, and approach.
“The expansion of the role of the Speaker’s Committee on the Electoral Commission (SCEC), to include a power to examine the Commission’s compliance with their duty to have regard to the Strategy and Policy Statement (clause 16), will enable the SCEC to perform a scrutiny function similar to that of Parliamentary Select Committees, in that it will be able to retrospectively examine the Electoral Commission’s activities in light of their duty. This measure aims to provide the UK Parliament an opportunity for greater visibility and scrutiny of the Commission’s work.”
Turning to the PACAC’s first recommendation – namely to amend the provisions to provide that the Electoral Commission is able to depart from the guidance set out in the Statement if they have a statutory duty to do so or if they reasonably believe it is justified in specific circumstances – the Secretary of State said the Government did not believe this change was necessary.
"As previously stated, the provisions provide that the Commission will be required to have regard to the Strategy and Policy Statement. To be clear, the new duty to have regard to the Statement will not replace the Commission’s other statutory duties or give the Government new powers to direct the Electoral Commission’s decision-making. The Commission will remain operationally independent and governed by their Commissioners,” Gove said.
The minister added that the duty to have regard was an established concept in legislation that did not require further clarification in law. “Similar duties are already widely interpreted in legislation as meaning that when carrying out their functions, the public bodies to which they apply are to ‘have regard’ to specific considerations in the carrying out of their functions. An example of a duty of this nature is the public sector equality duty, and there is no such language as proposed in your letter included in that provision.”
With regard to the PACAC’s second recommendation (to apply the ‘super-affirmative procedure’ for approval of the Statement), Gove said the Government continued to consider that the affirmative resolution procedure would provide both Houses of Parliament with appropriate and meaningful opportunities to debate and scrutinise the Statement in full before determining whether to approve or reject it.
The Secretary of State clarified that the provisions of the Bill provide that a draft Strategy and Policy Statement cannot be amended, but can be either rejected or accepted in full by either House, as is usually the case with the affirmative resolution procedure. He insisted that the Government remained committed to ensuring that parliamentary time was made available for these debates.
“The use of the affirmative resolution procedure is not unusual for statutory instruments and documents of this kind. The Statement will be subject to the approval of the UK Parliament which we believe, as outlined, will allow a greater role for the UK Parliament in scrutinising the Commission. Further, in applicable circumstances, the Statement will already be subject to statutory consultation to allow the views of key stakeholders to be considered before submitting the draft Statement for parliamentary approval.”