When things go wrong with electoral administration, the results can be devastating. The consequences in Britain are not as bad as in Kenya, but breaches, whether apparent or real, of laws concerning political parties, elections and political funding can nevertheless produce a corrosive perception of sleaze. Even if the government can credibly defend itself and criticise opposition practices, it is likely to be particularly damaged.
Some of the recent scandals – or perceived scandals – have resulted from poorly drafted laws, which are difficult for politicians and parties to obey. The small print of massive new laws such as the Political Parties Elections and Referendums Act 2000 inevitably leads to ambiguities and to contradictions between a new law and other laws already on the statute book. In a recent publication, the Electoral Commission complained of ‘late … fragmented, ambiguously drafted … poorly planned legislation’.
Even though the long police investigation into alleged ‘loans for lordships’ resulted – rightly, in my view – in the decision that no charges were to be brought, the matter had by then done a lot of political harm. The affair resulted in large part from the 2000 act’s untested definition of a loan to a party on other than ‘commercial terms’.
As this piece goes to press, it is still premature to comment on the most recent political finance scandals or to make any partisan points. Concerning the accusations involving David Abrahams, Peter Hain and George Osborne, the complex disclosure rules may not be the root cause of the alleged difficulties. But, in general, politicians’ lives will become much easier and the public interest will be served if political funding laws are clearer and, where legislation is untested or ambiguous, there is better guidance from the electoral regulator.
The Electoral Commission has been harshly criticised by the committee on standards in public life. Its failure to give advice on the meaning of a loan on ‘commercial terms’ was condemned as a prime example of regulatory failure.
When it comes to the commission’s future role, the government and the commission itself have accepted the central recommendations of the standards committee. The Electoral Commission must focus on its core job as a regulator. It should no longer dissipate its energies by engaging in political education and in advising on changes of policy. It needs to create a special unit responsible for enforcement, as distinct from day-to-day administration of the rules. It should provide advisory opinions on the meaning of unclear rules.
If these measures are put into practice, I believe that they will largely remedy the current problems. Unfortunately, the commission appears to be playing games. It declares its support for the key recommendations of the standards committee but hesitates to implement them.
In December 2007, the commission effectively kicked the ball of change into the long grass, when it published a policy document announcing that it intends to ‘lead a detailed examination into the structure of electoral administration in the UK’. This will go back to ‘fundamental principles’. ‘Initial findings’ to be published by next summer will then ‘provide the basis for further discussion’.
In the case of the accuracy of the electoral register, especially important in the battle against electoral fraud, the commission intends in February 2008 to discuss the methodology needed to research into the matter. This preliminary discussion will be 18 months after the commission set out its plans and commitments to the standards committee.
Concerning improved implementation, the commission replied to a Freedom of Information request that it ‘has accepted … the need to develop a strong investigative capability’. However, ‘proposals are not yet finalised’.
In the crucial matter of advisory opinions on the meaning of ambiguous laws, the commission stated to the committee on standards that it favours a system of advisory opinions similar to those in countries such as the US and Canada. But, here too, the commission appeared to be dithering when it replied to a subsequent FOI request that ‘the term “advisory opinion” can be interpreted in many different ways’ and ‘the Director of Party and Election Finance has commenced a review of the advisory request process’.
It could be a mistake to consider yet further laws – which would probably produce further ambiguities – until there is a robust process for clarifying and implementing the existing ones. There is agreement about the key changes the Electoral Commission must make. But time is of the essence. The commission’s typical plea of ‘mañana’ is not good enough.