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New Tory Leader Must "Get Hold Of The Reins" Of Public Trust in Elections Rules, Watchdog’s Former Chief Warns

Bob Posner said the passing of the Elections Act this year has damaged confidence in the independence of the Electoral Commission (Alamy)

5 min read

The former chief executive of the Electoral Commission has warned the incoming Prime Minister they need to work hard to show they aren’t removing the watchdog’s independence after Boris Johnson’s government passed a controversial piece of legislation.

The new Elections Act, which was given Royal Assent at the end of April, brings in a requirement for photo ID in polling stations, which critics say could disenfranchise millions of voters, while the introduction of a new “strategy and policy statement” for the commission written by ministers has led to accusations the body is now under a form of government control.

Bob Posner, who recently stood down as chief executive of the Electoral Commission, said the legislation created the “perception” elected politicians would now be involved in how the regulator oversees campaigning and campaign financing, and “that's not a healthy thing in a democracy”.

He told PoliticsHome he believes whoever wins the Conservative leadership contest to replace Boris Johnson, who is due to stand down in September, must “get hold of the reins” and work with others from across the political spectrum so the public do not lose confidence in how elections are run.

The legislation has long been criticised by Labour over its plans to begin forcing all voters to show photographic ID to cast their ballots.

All but one member of the Electoral Commission’s board wrote to the government in February saying the bill would seriously undermine its independence by allowing ministers to draw up the “strategy and policy statement”.

It means the incumbent government can outline its electoral priorities, whether it is around political finance or how campaigns are regulated, and the commission is bound by law to follow it.

Posner, who stood down from the commission last month after 15 years covering four referendums and four general elections, criticised the fact the act was not passed with cross-party support, calling it “a missed opportunity”.

“Because when it went through Parliament, it really went through without cross-party debates and amendments," he explained. 

“The nature of recent years of our politics have been fractious, but really, we've had this situation where there's not a lot of cross-party work on things like this. So when you look at the select committees, all the votes were down party lines."

He said all amendments – even from Conservative back benchers, such as the one passed by Lord Willetts to extend the types of ID that could be used to vote – were blocked.

"The government wasn't open to change,” he explained.

"What you've got was a bill presented to Parliament, and the Act that was passed was virtually as the bill was originally presented, and that's not good for election law, which actually should develop through good debate.”

He said it would now be “hard work to make it work” in practice, and believed that the new government will have to pass “an awful lot of secondary legislation”, but some damage has already been done.

"Does the UK have an 'independent' Electoral Commission?” Posner asked.

“Well the act introduces a government control mechanism through the strategy statement, so in terms of perception it will inevitably harm that perception of independence. There's no getting away from that."Posner said whether it does so in reality is “an alternative debate”, based on how the related legislation is drafted and implemented, and how “in practice, the government behaves”.

When coupled with the voter ID element of the Elections Act, which has been criticised as a “blatant attempt of voter suppression” by Labour, the Tories have been accused of trying to rig future ballots in their favour.

Posner said they could counter this criticism by making a clear commitment that the act will be “implemented in a fair and balanced way”.

He added that he hoped the new government would "get hold of the reins and make sure that is the case”.

Posner said he would also like to see political parties taking more responsibility when they are found to have broken electoral law, especially around campaign financing.

“There is something of a tendency when the rules are broken for those in politics to describe them as technical breaches, or not significant breaches, as if they don't matter,” he explained.

"I think it's fantastic we have a culture of compliance, but there is this culture of trying to play it down and say ‘well, it didn't matter, it wouldn't have made a difference to voters’.

“But mostly it does matter, and it would have made a difference, so I would like to see UK political campaigning a bit more open to accepting that breaches do matter.”

Although Posner has retired from the commission, he is not done with electoral rules, and is joining law firm Bates Wells as a consultant to help their clients navigate the sometimes complex legislation around campaigning.

He accepts the Electoral Commission hasn’t got everything right, but suggested he did not mind if it lost some court cases as it was a sign of a “healthy democracy”.

“There are some countries in the world where the regulators go to the courts, and the courts are also rather questionable, and every single time the state wins. Well, that's not democracy,” Posner said.

“You don't want the regulator to lose too many times in the court, but a healthy democracy means they don't always get it right.”

Following the EU referendum in 2016, there were a number of high-profile cases involving the commission as they sought to prosecute some pro-leave campaigners over alleged financial impropriety, leading to calls the body was politicised and should be abolished – including by then-Conservative Party chair Amanda Milling.

In 2020 she accused the organisation of a "lack of accountability" and of operating by an "unclear rulebook”, adding that if it failed to change “then the only option would be to abolish it”.

Posner said “that would be a very sad day for UK democracy if it ever did happen”, and hoped the new government would abandon such rhetoric in favour of reform.

“I think the abolition debate is not on the table anymore, and quite rightly so,” he said.

"The debate should be about making sure that regulators are enabled and have the tools and the powers to do their job and do it properly. So that's what one would hope going forward.”

The Department for Levelling Up, which is responsible for the Elections Act, has been contacted for comment.

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