If we are to have confidence that elections in Britain are free and fair, then it is essential that we have confidence in the independence of the Electoral Commission from the influence of Government.
It was therefore extraordinary to hear Bridget Phillipson MP, who is a member of the Speaker’s Committee that oversees the work of the Electoral Commission on behalf of parliament, defend the Electoral Commission’s failure to deliver promised reforms to the voting procedures for European parliamentary elections to make registration easier for EU citizens on the grounds that they didn’t expect the elections to take place.
In answer to a question from Tom Brake MP during exchanges in the House of Commons on 9 May, Bridget Phillipson MP said:
"following the EU referendum, the UK government made it clear that the Parliamentary elections to the European Parliament in 2019 would not take place, and therefore the Commission did not continue to develop any further recommendations in this area".
There are two serious problems with the Electoral Commission’s response.
Firstly, the Electoral Commission is not a creature of government. It is a body overseen by and responsible to parliament and the Crown. It is under no obligation to abandon promised reforms simply because the government says it no longer intends to hold elections.
Secondly, the government does not have a stable majority. Therefore the Electoral Commission had no reason to go along with the government’s predictions of what might or might not happen in the future and indeed whether there might or might not be European elections in the UK in 2019.
The procedures for EU citizens to register for EU elections in the UK are inadequate as the Electoral Commission recognised in 2014/15. Not only has the Electoral Commission failed to reform these procedures, it has also failed to administer the procedures in a timely way.
As a result, a high proportion of the 3.6 million EU citizens living in the UK face being disenfranchised from the EU elections which will take place on 23 May and the UK government may even be in violation of article 12 of the 1993 Directive, which requires member states to have informed EU nationals of the conditions and detailed arrangements for the exercise of their right to vote ‘in good time’.
If this analysis is correct, and these claims prove to be well-founded, we may be facing one of the most serious stains on British democracy in the whole of its post-war history.
From the moment the government lost its majority in June 2017, it was open to the Electoral Commission to have started contingency planning and other more practical planning for European elections to take place in the UK. At the absolute latest, it should have realised in December 2018, when the Attorney General gave his opinion on the Irish backstop, that European elections were a distinct possibility and started contingency planning and taking relevant action accordingly.
Bridget Phillipson’s response suggests that the Electoral Commission made no such contingency plans and undertook no further reforms because the government had said that it did not intend to hold European elections.
However, the Electoral Commission is independent of government and under no obligation to do the government’s bidding.
In every respect, the establishment and governance of the Commission is not constitutionally (and definitely should not therefore be in practical terms) under the control or even influence of government.
The Electoral Commission should also have realised that whether or not European elections would take place was not in the government’s gift. In order to be solely loyal to the Crown and to Parliament it should have realised that listening to the government foretelling the future was unlikely to be a particularly safe activity. It cannot blame the government for their (the Commission's) total lack of foresight.
Constitutionally, the Electoral Commission was perfectly at liberty to resume developing "further recommendations" to reform the voting procedures for European parliamentary elections and other plans and to seek to prepare the whole of the electorate in good time for such an eventuality. They were wrong not to do so.
The Electoral Commission’s first duty to Parliament and the Crown is to recommend measures to ensure the fair and equitable functioning of the electoral system and the widest possible participation.
Allowing around 3,000,000 potential voters to be, in effect, discriminated against, de facto on the basis of their national origin, is hardly in line with that objective
In reality, it was the Commission decision not to act and it must be held to account for failing to do so.
It will be a catastrophic day for the reputation of British democracy, if Bridget Phillipson’s response turns out to mean that the Electoral Commission’s abdicated their own responsibility to act as a result of government influence or intervention.