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Elections Act 2022

Contents

Part 3: The Electoral Commission

Strategy and policy statement

Section 16: Strategy and Policy Statement

  1. Section 16 amends Part 1 of PPERA by inserting new sections 4A to 4E that make provision for the introduction of a ‘Strategy and Policy Statement’ (‘the Statement’) which will provide guidance to which the Electoral Commission (‘the Commission’) must have regard.
  2. The Statement will be drafted, designated and published by the Secretary of State under new section 4A of PPERA. The Statement may contain guidance about:
    1. Government strategic and policy priorities relating to elections, referendums and other matters in respect of which the Commission have functions (section 4A(2)(a));
    2. the role and responsibilities of the Commission in supporting or enabling those priorities (section 4A(2)(b));
    3. the Commission’s exercise of their functions (section 4A(3)(a));
    4. any other information (for example, about the roles and responsibilities of other persons) the Secretary of State considers appropriate (section 4A(3)(b)).
  3. Under section 4A(4), the Secretary of State must, when drafting the Statement, have regard to the responsibilities of the Commission under s145(1) of PPERA to secure compliance with relevant controls under that Act.
  4. Section 4A(5) requires that the draft Statement must not contain guidance about how the Commission carry out their existing duties under the Act in relation to investigatory powers or the issuing of civil sanctions, in relation to a particular person.
  5. Section 4A(6) ensures that the Statement cannot contain provision relating to the Commission’s devolved Scottish functions or devolved Welsh functions, as defined by section 4A(8), and therefore will only contain provision about the Commission’s reserved functions.
  6. Under new section 4B, the Commission are required to have regard to a designated Statement when carrying out their functions, save for any guidance within the Statement that pertains to the roles and responsibilities of other persons (section 4B(3)).
  7. Subsections (4) and (8) of section 4B require the Commission to publish a report on what they have done as a result of the Statement, and provide a copy of that report to the Speaker’s Committee on the Electoral Commission (‘the Speaker’s Committee’). These provisions do not require this report to take a particular form and so this obligation can be met by a standalone report or as part of the Commission’s existing annual reporting requirements to the House of Commons under PPERA (existing paragraphs 18 and 20 of Schedule 1 to that Act). This duty only applies after the end of a 12-month reporting period from the day a Statement has been designated by the Secretary of State and every 12 months thereafter.
  8. Under section 4B(5), if a new Statement is designated during the reporting period applying to a previous Statement, to avoid placing an undue burden on the Commission, the Commission are only required to report on the discharge of their functions against the later Statement, after the end of a 12-month period from the designation of the later Statement.
  9. In addition, under section 4B(7) if a Statement is withdrawn during a reporting period, the Commission are not required to report on consideration given to the withdrawn Statement during that particular reporting period.
  10. New section 4C of PPERA outlines the consultation and approval process required before designating the Statement.
  11. Under section 4C(2), the Secretary of State is required to consult the Commission, the Speaker’s Committee, and the Levelling Up, Housing and Communities Committee on the draft Statement.
  12. Under section 4C(3), following this consultation, the Secretary of State must then make any changes to the draft the Secretary of State considers appropriate (which could be none) and must prepare a response to that consultation. Under the enhanced scrutiny procedure set out in section 4C(4) to (6), after the consultation process, the Secretary of State must lay a document before Parliament, explaining the Secretary of State’s proposals and setting them out in the form of a draft Statement, and including the report prepared in response to the consultation. Under subsections (5) and (6), there is a 60-day period within which members of both Houses of Parliament may make representations on the document, and the Secretary of State must consider these representations.
  13. Under section 4C(7) and (8), if the Secretary of State wishes to proceed with the draft Statement after the expiry of the 60-day period, that draft Statement is subject to parliamentary approval via the affirmative resolution procedure on a non-amendable motion, which means the Statement must be approved by both Houses of Parliament within a 40-day period, in order for the Secretary of State to designate it. Either House can reject it by not so approving it. The 40-day period and the 60-day period are defined in section 4C(9) and (10).
  14. Under sections 4C(11) and 4C(12) of PPERA, if the name or elections-related functions of the Levelling Up, Housing and Communities Committee change or become the functions of a different committee, then any reference to the Levelling Up, Housing and Communities Committee under section 4C(2)(c) is to be read as a reference to the committee which for the time being has that new name or those functions.
  15. New section 4D of PPERA outlines the 5-year review and designation process for the Statement.
  16. Under section 4D(1) to (3), when five years have elapsed since a Statement was last designated after being subject to the statutory consultation process in new section 4C(2), the Secretary of State must as soon as reasonably practicable review the existing Statement and, under section 4D(4), then either revise it, leave it unchanged or withdraw it (by de-designating it).
  17. Under section 4D(5), where the Secretary of State decides not to withdraw the Statement as a result of reviewing it, the Secretary of State must designate the Statement (whether or not it has been revised) within twelve months of the review date, or it will be treated as withdrawn.
  18. Under section 4D(7), the same publication, consultation and parliamentary approval processes apply to the designation of the Statement under 4D as to the original Statement.
  19. New section 4E outlines the Secretary of State’s powers to revise the Statement outside the 5-yearly review process under section 4D.
  20. Under section 4E(1) and (2), the Secretary of State may review and revise a designated Statement either on the Secretary of State’s own initiative or at the request of the Commission or the Speaker’s Committee, provided that the body making the request notifies the Secretary of State and gives details of the changes to the Statement that they propose should be made (new section 4E(2)). Where the request is made by the Commission, they must also give notice to the Speaker’s Committee in addition to the Secretary of State, in the form set out above. In response to a request from either body, the Secretary of State must then inform the Commission or the Speaker’s Committee (as the case may be) how the Secretary of State proposes to deal with the request (section 4E(3)).
  21. Under section 4E(4) and (5), on revising the Statement the Secretary of State must designate it, and may determine that the consultation process outlined in new section 4C does not apply to the revised Statement. The effect of new section 4E(4) is that any revisions (save for typographical or clerical errors) to the Statement under new section 4E must be submitted for parliamentary approval under section 4C. When making revisions to the Statement under section 4E(4), the consultation and enhanced scrutiny procedure requirements under new section 4C may be disapplied. When consultation requirements are disapplied, the revised Statement will be subject to the affirmative procedure under section 4C(7), rather than to the enhanced parliamentary scrutiny under section 4C(4) to (6).
  22. Before making the determination about consultation and enhanced scrutiny procedure, the Secretary of State is required under new section 4E(6) to consult the Speaker’s Committee on whether the proposed changes to the Statement warrant a statutory consultation and enhanced scrutiny procedure and consider the Committee’s view. If the Secretary of State disagrees with the Committee’s view and makes a determination not to consult, the Secretary of State must explain this decision to Parliament under new section 4E(8) and (9).
  23. Under section 4E(7), the Secretary of State must also inform the statutory consultees listed in new section 4C(2) of any proposed changes to the Statement if the Secretary of State determines that a statutory consultation is not required.

Section 17: Examination of duty to have regard to strategy and policy statement

  1. Section 17(1) inserts new section 13ZA into PPERA. This new section expands the role of the Speaker’s Committee to include a power to examine the performance by the Commission of their duty to have regard to the Statement.
  2. To support this work, section 13ZA(2) gives the Speaker’s Committee powers to request relevant information from the Commission. Under section 13ZA(3), the Commission are required to provide this information as soon as reasonably practicable and in such form as the Committee may reasonably require. The Speaker’s Committee could, for example, request the information in the form of oral evidence.
  3. Under section 13ZA(4) to (7), the Commission are not required to disclose to the Speaker’s Committee information that, in the Commission’s opinion, might adversely affect any current investigation or proceedings or where disclosure would contravene data protection legislation.
  4. Section 17(2) inserts new paragraph 4 into Schedule 2 to PPERA, and makes provision preventing evidence given by a witness (written or oral) to the Speaker’s Committee from being used against the witness in civil, disciplinary or criminal proceedings, unless the evidence was given in bad faith. This paragraph also provides that publication by the Speaker’s Committee of any witness evidence is absolutely privileged in relation to defamation claims. This includes evidence from the Commission and any other person providing evidence to the Speaker’s Committee.

Membership of the Speaker’s Committee

Section 18: Membership of the Speaker’s Committee

  1. Section 18(1) and (2) make amendments to section 2 of, and paragraph 2 of Schedule 2 to, PPERA, which set out the membership of the Speaker’s Committee. The amendments allow concurrent membership for the Secretary of State for Levelling Up, Housing and Communities and an MP who is a Minister of the Crown and is appointed by the Prime Minister (new sub-section (2A) of section 2) and clarify the meaning of "appointed member" in the context of concurrent membership (new paragraph 2(1A) of Schedule 2)).
  2. Section 18(3)(a) revokes the Transfer of Functions (Speaker’s Committee) Order 2021 (S.I. 2021/310) which served a similar purpose to section 18(1). Section 18(3)(b) revokes sub-paragraphs (b) and (c) in article 7(1) of the Transfer of Functions (Secretary of State for Levelling Up, Housing and Communities) Order 2021 (S.I. 2021/1265) which are superseded by section 18(1).

Criminal Proceedings

Section 19: Criminal proceedings

  1. Section 19 amends paragraph 2 of Schedule 1 to PPERA by inserting provisions which expressly remove the potential for the Commission to bring criminal prosecutions in England, Wales and Northern Ireland (new paragraph 2(2)(b) of Schedule 1).

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