‘Lack of courage, competence and leadership,’ ‘timidity,’ a ‘passive approach,’ and ‘regulatory failure’: these were just a few of the accusations against the Electoral Commission published in January 2007 by the Committee on Standards in Public Life and by its then chair, Sir Alistair Graham.
The Commission had failed in its core job of administering and giving advisory opinions on the electoral laws enacted in 2000. It preferred the softer tasks of political education and policy advising. It had almost ignored the serious problem of electoral fraud.
Most important, it was guilty of ‘undermining the confidence of the public and political parties in the regulatory framework of parties and elections’. The parties were blamed for the ‘Loans for Lordships’ affair whereas the Electoral Commission bore a significant responsibility as well.
In the early stages of its investigation into the alleged sale of honours, Scotland Yard intended to hang its case on charges against Labour and the Conservatives for failing to disclose loans as required by the Political Parties, Elections and Referendums Act 2000. This subsidiary offence was vital. Scotland Yard realised it would struggle to gather sufficient evidence to prove the central allegation – a direct trade of a donation (or loan) for a peerage contrary to the Honours (Prevention of Abuses) Act 1925.
Initially, Scotland Yard felt it would be easier to pin charges of non-disclosure on the main parties. However, the 2000 Act required disclosure only of loans at below ‘commercial terms’. Unfortunately for Scotland Yard, the Electoral Commission had twice refused during the 2005 general election to give any opinion on what constituted a ‘commercial’ loan arguing it was not its job to act as ‘a referee in real time’.
Once this was revealed in evidence to the Standards Committee, the prospect of prosecutions against the parties for non-disclosure of loans virtually disappeared. Scotland Yard was very angry when it learned the Electoral Commission’s regulatory shortcomings had destroyed its strategy. The police now had to rely on proving another subsidiary offence, namely that there had been a perversion of the course of justice. Their failure to establish this meant that the entire case crumbled.
The Electoral Commission has fought to rebuild its reputation in the face of the Standards Committee’s exceptionally harsh criticisms. The Commission has outwardly agreed to have a narrower, regulatory mandate; no longer should it provide policy advice or political education.
Nevertheless, relationships between the Standards Committee and the Commission remain icy. The Committee mistrusts and is ‘distinctly underwhelmed’ by the Commission’s response. The Commission’s website, its corporate plan, its recent annual report and its formal reply to the Standards Committee’s recommendations are all regarded as expressions of defiance and denial. The Commission has not yet set out a procedure for issuing advisory opinions on legislation. It has actively deterred the police from investigating and prosecuting allegations of electoral offences. It still appears to be in denial about the seriousness of electoral fraud.
One immediate cause for concern is the structure of the Commission’s ‘independent’ inquiry into the flawed 2007 elections in Scotland. The Canadian evaluators have impeccable reputations. But their staff members include permanent Commission officials. This obviously deters people from coming forward with evidence critical of the Commission. One major contractor has told me that they have detailed evidence of the faults of the electronic voting systems used in the elections but feels unable to testify to the inquiry. Their identity would risk being revealed to the Commission and future contracts could be endangered.
The government’s formal response to the recommendations of the Standards Committee about the Electoral Commission will be presented to parliament shortly by one of the most experienced and respected ministers, Jack Straw. It is in everyone’s interest that he pulls no punches and that he insists on far-reaching reforms of the Electoral Commission. These are vitally needed to restore public trust in the integrity of our elections.