Commission’s general functions
44.Sections 5 to 13 provide the Electoral Commission with a broad range of functions primarily in relation to the oversight of electoral matters in the United Kingdom.
Section 5 : Reports on elections and referendums
45.Section 5 requires the Commission to prepare and publish reports on the administration of elections to the United Kingdom, European and Scottish Parliaments and to the Welsh and Northern Ireland Assemblies and of referendums to which Part VII of the Act applies (that is, a referendum held throughout the United Kingdom or one or more of its constituent parts, or in one or more of the nine English regions specified in Schedule 1 to the Regional Development Agencies Act 1998). Subsection (3) additionally provides for the Commission, if requested to do so by the National Assembly for Wales, to report on referendums held under section 36 of the Government of Wales Act 1998. (Section 36 of the 1998 Act empowers the National Assembly for Wales to hold a poll for the purpose of ascertaining the views of the public about whether or how any of the Assembly’s functions should be exercised.)
Section 6 : Reviews of electoral and political matters
46.While legislation on electoral matters will remain the responsibility of the government, section 6 provides for the Commission to keep under review and report on matters relating to elections and referendums, the redistribution of parliamentary and local government boundaries, the regulation and funding of political parties, political advertising and the law relating to all such matters. While the Commission will be expected to exercise its own initiative in reviewing electoral law, there may also be particular issues which the government of the day considers should be examined as a matter of priority. Subsection (2) therefore provides the Secretary of State with a power to require the Electoral Commission to review and report upon any such matter within a prescribed timescale.
Section 7 : Commission to be consulted on changes to electoral law
47.Section 7 identifies a number of instrument-making powers under existing electoral law which are now to be exercised by the Secretary of State only after consulting the Electoral Commission. These powers are generally concerned with the administration of elections – for example, powers to designate returning officers for elections and to specify arrangements for the conduct of local government elections and elections to the devolved legislatures. The extant instruments made under the statutory provisions listed in subsection (2) are:
The European Parliamentary Elections Regulations 1999 (SI 1999/1214);
The European Parliamentary Elections (Returning Officers) Order 1999 (SI 1999/948);
The Returning Officers (Parliamentary Constituencies) (England) Order 1995 (SI 1995/2061, as amended), the Returning Officers (Parliamentary Constituencies) (Wales) Order 1996 (SI 1996/897) and the Returning Officers (Parliamentary Constituencies) (Scotland) (No.2) Order 1996;
The Local Elections (Principal Areas) Rules 1986 (SI 1986/2214, as amended); the Local Elections (Parishes and Communities) Rules 1986 (SI 1986/2215, as amended); and the Parish and Community Meetings (Polls) Rules 1987 (SI 1987/1, as amended);
The Representation of the People Regulations 1986 (SI 1986/1081, as amended), the Representation of the People (Scotland) Regulations 1986 (SI 1986/1111, as amended) and the Representation of the People (Northern Ireland) Regulations 1986 (SI 1986/1091, as amended);
The National Assembly for Wales (Representation of the People) Order 1999 (SI 1999/450). No order has yet been made under section 36(4) or (5) of the Government of Wales Act 1998;
The Scottish Parliament (Elections etc.) Order 1999 (SI 1999/787);
No order has yet been made under section 34 of the Northern Ireland Act 1998.
No order has yet been made under section 17A(3) of the Greater London Authority Act 1999.
Section 8 : Powers with respect to elections exercisable only on Commission’s recommendation
48.Section 8 specifies a number of functions of the Secretary of State which will be exercisable only upon the recommendation of the Commission. Subsection (1) provides that one such function is that of giving directions to registration officers under section 52(1) of the Representation of the People Act; hitherto this power has not been exercised. Subsection (3) identifies a number of instrument-making powers to set limitations on expenses by candidates and parties at elections. The Secretary of State is empowered, by subsection (2), to vary the monetary limits to take account of inflation, but any more substantial variation can only be made on a recommendation of the Commission.
49.The extant instruments made under the statutory provisions listed in subsection (3) are:
Article 3 of the Greater London Authority Election (Expenses) Order 2000 (SI 2000/789) sets limits on election expenses by candidates at elections to the Greater London Authority;
Articles 41 and 42 of the Scottish Parliament (Elections etc.) Order 1999 (SI 1999/787) and Articles 46 to 48 of the National Assembly for Wales (Representation of the People) Order 1999 (SI 1999/450) set limits on expenses by candidates and registered parties at elections to the Scottish Parliament and Welsh Assembly respectively;
Regulation 15 of the European Parliamentary Elections Regulation 1999 (SI 1999/1214) sets limits on election expenses by registered parties at elections to the European Parliament. Section 76 of the Representation of the People Act 1983 as applied, with modifications, by Schedule 1 to the European Parliamentary Elections Regulations 1999 sets limits on election expenses by individual candidates.
Section 9 : Involvement of Commission in changes in electoral procedures
50.Section 9 provides for the involvement of the Electoral Commission in pilot schemes to test new electoral procedures conducted under section 10 of the Representation of the People Act 2000. Section 10 of the 2000 Act enables local authorities to conduct pilot schemes, with the approval of the Secretary of State, to test alternative procedures as to when, where or how voting at local government elections is to take place, or how the votes cast at such elections are to be counted. Section 9 enables the Commission to co-sponsor particular pilot schemes in conjunction with a local authority. The section also confers on the Commission the functions in relation to pilot schemes and the roll-out of successfully piloted electoral innovations which are set out in sections 10 and 11 of the 2000 Act, as amended by paragraphs 16 and 17 of Schedule 21 to the Act.
Section 10 : Giving of advice and assistance
51.Section 10 empowers the Commission to provide advice and assistance to local authorities, the devolved administrations and international bodies. Under this provision the Commission could, for example, provide assistance to the National Assembly for Wales with the conduct of a poll under section 36 of the Government of Wales Act 1998, to the Scottish Executive with a review of aspects of the law in respect of local elections in Scotland and to the United Nations or the Commonwealth with the organisation or monitoring of elections in another member state.
52.Subsection (3) also enables the Commission to provide advice and assistance to registration and returning officers, registered political parties, recognised third parties (within the meaning of section 88), permitted participants in a referendum campaign (within the meaning of section 105), and others. The Commission is expected to take over from the Home Office the functions of promoting best practice in the way in which registration and returning officers discharge their functions under the Representation of the People Acts and other enactments relating to elections.
Section 11 : Broadcasters to have regard to Commission’s views on party political broadcasts
53.Section 11 provides that the Commission’s broad oversight of the way elections are conducted should extend to providing guidance on party political broadcasts. At present, sections 36 and 107 of the Broadcasting Act 1990 provide for the Independent Television Commission and the Radio Authority to draw up conditions requiring a licence holder both to include party political broadcasts in its services and to observe any rules in relation to party political broadcasts which the Commission or Authority may determine. The Independent Television Commission and the Radio Authority may determine the political parties on whose behalf party political broadcasts may be made and the length and frequency of such broadcasts. The British Broadcasting Corporation and Sianel Pedwar Cymru are not subject to any similar statutory requirement, but nonetheless provide air time for party political broadcasts as part of their role as public service broadcasters.
54.The Neill Committee suggested that, while it should not be for the government to direct that broadcasters provide party political broadcasts, there could be a role for the Electoral Commission in putting forward non-binding views in relation to, for example, the scheduling of broadcasts. Section 11 requires the Independent Television Commission and the Radio Authority, in determining the rules provided for under sections 36 and 107 of the Broadcasting Act 1990, to have regard to the views of the Electoral Commission. Subsection (3) would place the British Broadcasting Corporation and Sianel Pedwar Cymru, in determining their policy with respect to party political broadcasts, under a similar duty. It is not intended that these provisions should give the Commission a prescriptive role in relation to editorial and broadcasting decisions, which are properly a matter for the broadcasters themselves, nor is it intended that broadcasters should be required to seek the views of the Commission before deciding whether to transmit each and every party political broadcast.
Section 12 : Policy development grants
55.Section 12 provides for the Commission to develop and, once it is approved by the Secretary of State, administer a scheme for the payment of policy development grants to registered political parties. It will be for the Commission to propose, and the Secretary of State to approve, the formula or criteria by which such grants are allocated to eligible political parties. Subsection (1) restricts the making of such grants to parties which are represented by at least two sitting Members of the House of Commons (in the current Parliament there are eight such parties: Labour, Conservative, Liberal Democrat, Ulster Unionists, Scottish National Party, Plaid Cymru, Social Democratic and Labour Party and Democratic Unionist Party). The purpose of such grants will be restricted to the development of policies which are to form part of individual parties’ political platforms; it is not intended that they be used for the development of parties’ internal policies or in respect of their organisation and administration or of campaigning. Subsection (8) limits the total amount of disbursements under such a scheme to £2 million in any financial year.
Section 13 : Education about electoral and democratic systems
56.Section 13 of the Act provides for the Commission to have a role to play in encouraging voters’ participation in the democratic process by enabling it both to carry out programmes of education or information and to provide financial assistance to other bodies carrying out such programmes. The scope of this section is intended to be such that voter education is not restricted to addressing the mechanics of exercising the vote but is also able to address, through attention to the role of government and other elected bodies both at local, national and European level, the purpose and importance of exercising the vote. Any programmes conducted by the Commission under this section may only explain any current or pending electoral systems or systems of local and national government. Subsection (2) defines a ‘pending’ system as a system that has been enacted by Parliament but is not yet in force. The Commission will not be empowered to put the case for alternative electoral systems which have not been enacted by Parliament.