11 Under the present voting procedure rules, voters in England, Scotland and Wales are, at polling stations, asked to confirm (i) if they are the person registered at a particular address on the electoral register and (ii) if they have already voted. This is effectively the only check that takes place related to the identity of electors. The law requires polling clerks to call out the name of electors before they are issued with a ballot paper so objections can be made if the person is identified by someone else present as not being who they claim to be. This is no longer consistently done and, in any event, people present in a polling station are no longer likely to know everyone else in their local area. These measures are therefore outdated and no longer fit for purpose as a means of checking the identity of voters and avoiding personation. Meanwhile, in Northern Ireland voters have been required to produce personal identification before voting in polling stations since 1985, with photographic identification being required since 2003.
12 In August 2016, Sir Eric (now Lord) Pickles as the Government’s Anti-Corruption Champion published a review into electoral fraud entitled Securing the Ballot ("the Pickles Report") 1 , issuing a number of recommendations designed to address electoral fraud and to strengthen the integrity and security of voting.
13 In the report, Lord Pickles noted that the statutory questions which may be asked of voters under the current legislation were both basic and optional and in practice rarely used in polling stations. The report also points out that people could be ‘coached’ to commit personation (assuming the identity of another person with the intention to deceive) and could overcome that check. As a result, one of the final recommendations made in the review was for the Government to consider the options for electors to have to produce personal identification before voting at polling stations in Great Britain, and that the Government may wish to pilot different methods of identification.
14 This recommendation was supported by and echoed other recommendations advanced by the Electoral Commission in its 2014 report Electoral fraud in the UK 2, which concluded that there should be a requirement for electors across Great Britain to present an acceptable form of identification prior to voting at the polling station. In addition, in reports of their observation of the 2010 and 2015 UK Parliamentary General Elections, the Organisation for Security and Co-operation in Europe’s (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) recommended the introduction of more robust mechanisms for identification of voters, citing the use of voter identification in Northern Ireland as an example.
15 The Government accepted the recommendation and ran pilot schemes trialling different methods of identification, which took place during local elections in England in May 2018 and 2019. Data from the pilot evaluations in 2018 and 2019 showed that the requirement to show identification increased voter confidence in the elections process. The Conservative Party manifestos of 2017 and 2019 committed to introducing voter identification for voting at polling stations. The Bill delivers this commitment, and on 6 January 2022 the Government published a policy statement 3 which sets out more detail on the implementation plans for voter identification policy.
16 As stated above, Northern Ireland has had the requirement to produce identification in place since 1985. In respect of Northern Ireland the Bill makes some amendments to the voter identification process by requiring the Chief Electoral Officer (who is an independent Crown appointment, and the Returning Officer and Registration Officer for all 18 constituencies in Northern Ireland) to provide every polling station in Northern Ireland with lists containing the dates of birth of all voters allotted to vote at that station. This will facilitate compliance with an existing legal duty on polling station staff in Northern Ireland to check the dates of birth of voters in cases where the apparent age of the voter, compared to the date supplied at registration or on the proxy vote application form, raises a reasonable doubt as to whether the voter is the elector or proxy they represent themselves to be. The Bill also mirrors for Northern Ireland some of the provisions being introduced for Great Britain.
Online service for applying for an Absent vote
17 As it stands, it is not possible for electors to apply for an absent vote (postal and proxy) online. Electors who wish to apply for an absent vote must do so via a paper form, which they must submit to their local Electoral Registration Officer (ERO) by post (although some EROs also accept scanned and emailed paper forms – except in Northern Ireland). This is in contrast to the process by which an individual can apply to register to vote online, using the Register to Vote digital service, which has made registering to vote easier and more convenient.
18 The Bill amends existing legislation to provide the appropriate enabling powers to allow detailed provisions to be set out in secondary legislation for an online service through which applications for an absent vote can be made. It will also enable the identity of absent vote applicants in Great Britain to be verified. The identity verification process will apply to paper applications as well as to applications made online.
19 In Northern Ireland there is an existing identity verification process in place for paper absent vote applications. The Bill makes provision to allow digital identity verification to be carried out on paper and online applications in any future online service and would allow changes to be made to the existing process to facilitate online applications.
20 It is intended that the measures, including the introduction of identity verification in Great Britain, will make the absent vote application process more secure, resilient and efficient for both electors and electoral administrators. Digitising the absent vote application process will also benefit overseas electors who typically vote by post or proxy; and will complement the Bill measures that will remove the current 15 year limit for the registration of overseas electors.
Postal and Proxy Voting
21 The 2016 Pickles Report also considered the current arrangements in relation to postal and proxy voting (collectively called ‘absent’ or ‘remote’ voting) at elections.
22 The report noted that the existing availability of postal voting on demand in Great Britain encouraged many legitimate electors to use their vote effectively and engage with the democratic process and concluded that it should be allowed to continue. At the same time, it considered how the security of current absent voting arrangements could be strengthened and made a number of recommendations to achieve this.
23 This Bill implements recommendations made in the report to improve the integrity and robustness of both postal and proxy voting.
24 In particular, under the present system, there is no statutory prohibition on political campaigners handling postal votes belonging to others. The Pickles Report noted that this left scope for the integrity of postal voting to be undermined and recommended that completed postal ballot packs should only be handled by an individual who is a family member or designated carer of the voter. The Bill introduces a ban and a new criminal offence on the handling of a postal ballot paper/voting document that was issued to someone by a political campaigner, and allows a limit to be set (the number to be specified in secondary legislation) on the number of electors on behalf of whom a person may hand in postal votes to a Returning Officer or at a polling station.
25 Currently, electors in England, Scotland and Wales may apply for a postal vote either for a particular election, for a specified period of time that may cover a number of polls, or to vote by post on an indefinite basis. Electors who have a postal vote on a long-term basis are currently required to provide a fresh signature every five years to ensure the data held by Electoral Registration Officers is up to date and reduce the risk of postal votes being rejected at polls due to personal identifiers (e.g. a person’s signature) no longer matching those originally given. The Pickles Report concluded that removing the ability to hold a postal vote on an indefinite basis, and instead requiring electors to reapply at specified intervals, would provide a more regular basis for review and assessment of the eligibility and veracity of applications and would strengthen the integrity of postal voting. The Bill implements this recommendation, requiring postal voters in Great Britain to re-apply every three years to continue to vote by this method.
26 Current rules also allow a person to act as a proxy for up to two electors and an unlimited number of close relatives in any constituency or any electoral area at a local election. Lord Pickles found that these current requirements gave potential for coercion in the appointment of proxies in areas where fraud was already an issue, and recommended limiting to two the number of electors that someone could be appointed to act as a proxy for, regardless of relationship. The Bill introduces a limit of four on the number of electors for whom, regardless of relationship, a person can act as a proxy but specifying that within the four electors, no more than two electors can be domestic electors. Domestic electors are those electors who are neither service electors nor overseas electors.
27 Currently, requirements protecting the secrecy of a person’s vote are in place for people voting in a polling station. The Pickles Report noted the secrecy of the ballot as fundamental for voters to be able to cast their vote without pressure to vote in a specific way, and recommended that secrecy provisions be extended to those voting by proxy and through a postal vote to prevent undue influence, and assist in the prosecution of cases where the latter may have occurred. In line with this recommendation, the Bill extends secrecy provisions to postal and proxy voting.
28 Recent reports have recommended several improvements to the existing corrupt practice of undue influence, which is the electoral offence designed to protect electors from malicious interference and intimidation. The Pickles Report recommended that "a lower test of ‘intimidation’ than the one currently set in the Representation of the People Act 1983 should be introduced" and that "undue influence should retain a reference to spiritual / religious influence." The Law Commissions’ Electoral Law: a joint final report 4(2020) recommended that "undue influence should be restated". The (previous) Government committed to clarifying the offence of undue influence after 100% of respondents to the Protecting the Debate 5 consultation (2018) agreed that the law requires greater clarity.
29 These recommendations and commitments also reflect some of the conclusions of the Tower Hamlets Election Court, set out in the judgment Erlam & Ors v Rahman & Anor 6  EWHC 1215 (QB). Commissioner Richard Mawrey concluded that "undue influence involving the threat of spiritual injury" occurred at the 2014 Tower Hamlets mayoral election, to the extent that the election had to be declared void. He also concluded that section 115 of the Representation of the People Act 1983 ("RPA 1983") is insufficient to tackle intimidation of electors because it "does not penalise thuggish conduct at polling stations of the sort that occurred in 2014."
30 The main purpose of this Bill measure is to clarify the activities which constitute undue influence in order to make the legislation easier to interpret and enforce. This is achieved by updating section 115 of the RPA 1983 - which originated in the nineteenth century - and using modern terminology. The Bill makes clear that the following activities constitute undue influence, when carried out for the purpose of forcing an elector to vote in a particular way, forcing them not to vote at all, or otherwise interfering with their free exercise of the franchise:
a. Physical violence;
b. Damage or destruction to property;
c. Reputational damage;
d. Causing financial loss;
e. Causing spiritual injury or exerting undue spiritual pressure. ‘Undue spiritual pressure’ refers to a level of improper or inappropriate pressure which goes beyond the free expression of opinions on political or other matters that have implications for the principles of a religion;
f. Any other act or omission designed to intimidate a person which is not already covered above;
g. Any act or omission designed to deceive a person in relation to the administration of an election.
31 Undue influence will also continue to be a corrupt practice. As the RPA 1983 (or other legislation governing the conduct of an election, referendum or recall petition) already sets out, a person who is convicted of the corrupt practice of undue influence is liable to up to one year’s imprisonment or a fine or both. This person (or a person who is named personally guilty of the corrupt practice in the report of an election court) is also incapable of being elected to or holding certain elective offices for five years; if the person already holds elective office, they would be forced to vacate that position. This Bill measure also provides that the effects of this five-year incapacity will apply consistently across the UK: this means that if a person is guilty of undue influence in relation to any electoral event in the UK, they will be incapable of being elected to or holding all relevant UK elective offices.
32 Under current electoral law, provisions to support disabled people to vote are limited and very specific. Returning Officers are required to provide a number of items to support voters with sight loss including a large print ballot paper and a device for use by blind and partially sighted people to support them to vote at the polling station. The device has been prescribed in secondary legislation and is commonly known as the Tactile Voting Device ("TVD").
33 In September 2017, the Government launched a Call for Evidence on Access to Elections 7, asking for views on how people with disabilities experience registering to vote and voting itself with a view to considering if current measures were sufficient and to look at accessibility more broadly. In total, 256 responses were received, including from individuals, organisations, charities, NHS Foundation Trusts, sector representative bodies, and local authority teams.
34 The evidence received was analysed by the Government in partnership with the Government-chaired Accessibility of Elections Working Group (whose membership includes the Royal Mencap Society, Royal National Institute of Blind People, United Response, NHS, the Association of Electoral Administrators, representatives of the devolved administrations, the Electoral Commission and Scottish Assessors Association). The Government’s response, published on 30 August 2018, set out key findings and recommended actions to improve the democratic participation of disabled people.
35 A specific action contained in the Call for Evidence considered what improvements could be made to the existing arrangements to support voters with sight loss. The responses received to the Call for Evidence included a view that the TVD was not an effective method of support for a blind or partially sighted person to vote at the polling station and that inclusion of it as a requirement in legislation worked against Returning Officers considering other options.
36 Current requirements also limit, to a qualified elector or a close family member aged 18 or over, who can act in the role of ‘companion’ to assist a disabled person to vote at a polling station. This has been highlighted through the Call for Evidence process as being a barrier to disabled people being able to obtain assistance to participate in elections as it excludes carers who are not entitled to vote in the poll.
37 This Bill responds to the Call for Evidence comments and replaces current limited requirements with a broader requirement for Returning Officers to provide such equipment as is reasonable to enable voters with disabilities to cast their vote. It also expands the criteria for who can act in the role of ‘companion’ by redefining that as someone who is aged 18 or over.
Simple Majority Voting (‘First Past the Post’)
38 Under current legislation, elections for Police and Crime Commissioners (PCCs) in England and Wales, the Mayor of London, combined authority mayors and local authority mayors in England are held using the Supplementary Vote system where there are more than two candidates. Under this system voters have a first and second preference vote. If a candidate receives more than 50 percent of the first preference votes they are elected. If no candidate reaches a majority at the first stage, all but the two candidates with the most votes are eliminated and the second preference votes of voters whose first preference vote was cast for the eliminated candidates are allocated to the remaining candidates. The candidate with the most (first preference + second preference) votes is elected.
39 Under Simple Majority voting, also known as the "First Past the Post" voting system, voters have a single vote and the candidate who wins the most votes is elected. First Past the Post is used to elect Members of Parliament and local councillors in England and also applies in PCC and mayoral elections where there are only two candidates.
40 The Conservative Party 2019 Manifesto included the following commitment: "We will continue to support the First Past the Post system of voting, as it allows voters to kick out politicians who don’t deliver, both locally and nationally." Similar commitments favouring First Past the Post were included in the 2017 Manifesto: "We will retain the first past the post system of voting for parliamentary elections and extend this system to police and crime commissioner and mayoral elections", and in the 2015 Manifesto: "We will respect the will of the British people, as expressed in the 2011 referendum, and keep First Past the Post for elections to the House of Commons." The 2011 Referendum asked voters whether or not the system for electing Members of Parliament should be changed from First Past the Post to the Alternative Vote; 67.9% of voters voted to retain First Past the Post.
41 The Home Secretary set out findings from the first part of the Home Office’s two-part Review into the role of PCCs in a Written Ministerial Statement to Parliament on 16 March 2021 (HCWS849) 8 . The Statement included the following commitment: "In line with the Government’s manifesto position in favour of First Past the Post, which provides for strong and clear local accountability, and reflects that transferable voting systems were rejected by the British people in the 2011 nationwide referendum, the Home Office will work with the Cabinet Office and the Ministry of Housing, Communities and Local Government to change the voting system for all Combined Authority Mayors, the Mayor of London and PCCs to First Past the Post. This change will require primary legislation, which we will bring forward when Parliamentary time allows." Part One of the Review collated views and evidence from stakeholders across policing, fire and local government as well as voluntary and community organisations. Through polling and focus groups, the Review also took account of public views and opinions.
42 The Bill changes the voting system used for electing PCCs, the Mayor of London and combined authority mayors from the Supplementary Vote system to First Past the Post. To ensure consistency in the voting system used for electing all directly-elected mayors in England, and deliver manifesto commitments, the voting system for electing local authority mayors in England is also changed to First Past the Post.
43 The Government’s 2019 manifesto included a commitment to "make it easier for British expats to vote in Parliamentary elections, and get rid of the arbitrary 15-year limit on their voting rights."
44 The overseas franchise was created by the Representation of the People Act 1985, which first enabled British citizens resident abroad to vote in UK elections. It set a limit of 5 years from the date of last being registered or (in limited circumstances) resident in the UK. This limit was extended in 1989 to 20 years, and then reduced in 2002 to the current limit of 15 years.
45 Under the present system, British citizens (including British citizens who were born in Northern Ireland and identify as Irish) who have moved abroad and wish to vote in UK Parliamentary elections can apply to register as an overseas elector in the UK constituency in which they were last registered before leaving the UK, provided they were registered within 15 years of making that application. Also eligible are those who were too young to register to vote when they left the UK, if their parent or guardian was on the electoral register at the place where they were resident in the UK, subject to a 15 year limit, from when the person left the UK.
46 This Bill will remove the 15 year limit on expatriates' right to vote in UK Parliamentary elections and enfranchise all British citizens overseas who were previously registered or resident in the UK.
47 As under the current system, overseas applicants will be required to prove their identity and have their connection to the relevant previous UK address verified before they can be added to the electoral register. Applicants will be entitled to register in respect of the last UK address at which they were registered, or, if they were never registered, the last UK address at which they were resident.
48 The Bill will also extend the registration period for overseas electors from one year to up to three years. Electors will be able to reapply or refresh their absent vote arrangements at the same time as renewing their registration.
European Citizens Voting and Candidacy Eligibility
49 At present, citizens of European Union (EU) Member States resident in England and Northern Ireland are automatically granted voting and candidacy rights in local elections, Northern Ireland Assembly elections and Police and Crime Commissioner (PCC) elections, by virtue of being EU citizens. The rights in respect of local elections were granted as a consequence of the UK’s membership of the EU and were given effect by domestic legislation in 1995, following a 1994 Directive of the Council of the European Communities which required Member States to allow EU residents to vote and stand in local elections. The rights granted to European citizens in the United Kingdom were therefore reciprocated so that UK citizens living in all EU Member States were also granted local voting and candidacy rights in the respective countries. Since these rights were granted on the basis of freedom of movement, no immigration-based eligibility criteria are attached to the grant of these rights in UK domestic law.
50 The UK left the EU on the 31t January 2020 and the Implementation Period ended at 11pm on 31 December 2020. Now that the UK has left the EU, and with the ending of free movement and introduction of the new points-based immigration system in the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, the basis for an automatic grant of voting and candidacy rights to European citizens no longer exists. Correspondingly, individual EU Member States are now able to set their own rules for local voting rights with reference to resident UK citizens. Some EU Member States allow non-EU third country nationals to vote and stand (subject to minimum residency requirements); others do not.
51 The UK Government has sought agreements with EU Member States that will enable UK nationals living in those countries to vote and stand in their local elections in return for local voting and candidacy rights for citizens of these countries living in the UK. Voting and candidacy rights agreements with Spain, Portugal, Luxembourg and Poland have already been agreed.
52 As a result of this Bill, EU citizens who have been living in the UK since before the end of the Implementation Period will retain their local voting and candidacy rights in England and Northern Ireland, provided they hold lawful immigration status, regardless of whether they are citizens of Member States with which the UK has voting and candidacy rights agreements. For EU citizens who arrived in the UK after this point, voting and candidacy rights will rest on the principle of a mutual grant of rights, through agreements with the respective EU Member States.
53 The Bill will therefore remove the existing automatic grant of voting and candidacy rights to all EU citizens, and will create two new groups:
a. The first group, ‘EU citizens with retained rights’, comprises persons who have been living in the UK or Crown Dependencies since before Implementation Period Completion Day (IPCD) - 31 December 2020 - and hold lawful immigration status.
b. The second group, ‘qualifying EU citizens’, comprises citizens of those countries with which the UK has a voting and candidacy rights agreement. Such persons must also hold lawful immigration status.
54 When an individual meets the criteria of both groups, they will be considered as a ‘qualifying EU citizen’ (i.e. their eligibility for voting and candidacy rights will rest only on minimum immigration requirements - ‘any leave to enter or remain’) - rather than, additionally, being required to meet the ‘historical residency’ eligibility criteria for ‘EU citizens with retained rights’ (e.g. that a person must have been resident in the UK or Crown Dependencies since prior to IPCD).
55 These changes will not affect the voting and candidacy rights of Irish citizens, whose rights exist independently of the Republic of Ireland’s membership of the EU and long predate the UK’s membership. The rights of qualifying Commonwealth citizens will also not be changed by these measures. Citizens of Malta and Cyprus - which are both EU Member States and Commonwealth countries - will retain voting rights as Commonwealth citizens. In the event that Cyprus or Malta entered into a voting and candidacy rights treaty with the UK, Maltese and Cypriot citizens would benefit from the lower threshold for candidacy rights (e.g. any form of leave to remain as applies to ‘qualifying EU citizens’) whilst retaining all the other voting and candidacy rights granted to them as Commonwealth citizens.
56 These changes will apply to all UK elections and referendums which use the local election franchise and are reserved to the UK Government. They will also apply to Police and Crime Commissioner Elections in England and Wales, and to ward elections for Common Councillors in the City of London. This means that the changes will not affect any elections or referendums for which responsibility is devolved.
The Electoral Commission
57 The Electoral Commission is independent of Government and reports to the UK Parliament through the Speaker’s Committee on the Electoral Commission (SCEC) on its yearly estimates and accounts and its Five-Year Plan where related to the Commission’s reserved functions. The Electoral Commission has a broad range of functions which are set out in the Political Parties, Elections and Referendums Act 2000 (‘PPERA’).
58 In the Scotland Act 2016 and the Wales Act 2017, areas of electoral law were further devolved. The Electoral Commission now also reports to Senedd Cymru through the Llywydd’s Committee, and to the Scottish Parliament through the Scottish Parliamentary Corporate Body, on its yearly estimates and accounts and Five Year Plan where related to the Commission’s devolved Welsh and Scottish functions respectively.
59 The functions of the Speaker’s Committee as a statutory committee are set out in section 2 and other provisions of the PPERA and include: overseeing the appointment of Electoral Commissioners, examining and laying before the House of Commons the Electoral Commission's Estimates and Five Year Plans, and reporting annually to the House of Commons on the exercise of its functions.
60 The Bill will make provision for a power to designate a Strategy and Policy Statement, which will be drafted by Government and subject to Parliamentary approval. The Electoral Commission must have regard to it in the exercise of its functions. The regulator will remain independent and will be able to depart from this guidance if it felt that was justified or if it had a conflicting statutory duty to fulfil.
61 The Bill will also amend the functions of the Speaker’s Committee in order to further enhance the Electoral Commission’s accountability to Parliament. The Committee will be granted the power to examine the Electoral Commission’s compliance with its duty to have regard to the Strategy and Policy Statement introduced by this Bill.
62 Section 2 of the PPERA also sets out the membership of the Speaker’s Committee. Two government ministers are ex officio members of the Committee, namely (following the Transfer of Functions (Secretary of State for Levelling Up, Housing and Communities) Order 2021) the Secretary of State for Levelling Up, Housing and Communities and the Minister of the Crown with responsibilities in relation to local government appointed by the Prime Minister.
63 Given wider commitments it has not always been possible for the Secretary of State to attend the Speaker’s Committee’s meetings. In practice, the Minister known as the Minister of State for Levelling Up, the Union and Constitution generally exercises functions relating to elections and the constitution on behalf of the Secretary of State, but has in the past been unable to attend Speaker’s Committee meetings as only those members named in the legislation are entitled to be present.
64 The Bill will amend the membership of the Speaker’s Committee to allow concurrent membership of the Speaker’s Committee for the Secretary of State for Levelling Up, Housing and Communities and another Minister of the Crown appointed by the Prime Minister. It will also revoke the Transfer of Functions (Speaker’s Committee) Order 2021 and Article 7(1)(b) and (c) of the Transfer of Functions (Secretary of State for Levelling Up, Housing and Communities) Order 2021, which performed a similar purpose and are made redundant by the Bill.
65 Under Schedules 19B and 19C to PPERA the Electoral Commission has civil sanctioning and investigatory powers to enforce the rules around reporting spending, donations and loans. If a suspected breach occurs, the Electoral Commission has powers to take action unless the breach involves a criminal offence for which a civil sanction is not available (or for which the Commission considers a civil sanction may not be appropriate), in which case it is handled by the police and prosecuting authority.
66 The Electoral Commission has publicly stated in its Interim Corporate Plan 2020/21-2024/25 9 its intention to develop a prosecutorial capability that would allow it to investigate and bring suspected offences before the courts. This has never been explicitly agreed by the Government or Parliament.
67 Currently, the Crown Prosecution Service (CPS) in England and Wales, and the Public Prosecution Service (PPS) in Northern Ireland, are responsible for bringing prosecutions under electoral law. The Government wants to maintain the existing role of the CPS and PPS in enforcing electoral law by amending the Electoral Commission’s powers to expressly prevent it from bringing prosecutions in England, Wales and Northern Ireland. This will not apply in Scotland where there is already a single prosecutorial authority.
Political Finance and Notional Expenditure
68 The UK has a comprehensive regulatory framework which governs the spending and funding (political finance) of candidates, political parties, third-party campaigners and other campaigners. The political finance proposals in the Bill largely act as an expansion and strengthening of the existing rules outlined in the PPERA and the RPA 1983.
69 In 2018, the Electoral Commission published the report Digital Campaigning - increasing transparency for voters 10, recommending the introduction of a requirement for political parties to declare any assets and liabilities above £500 upon registration. This Bill provides an increased level of transparency regarding a political party's financial position prior to registration. A record of assets and liabilities is already a requirement of the duty to keep accounting records under electoral law. Measures in this Bill bring forward this transparency to the point of registration.
70 Electoral law allows groups to register as both a political party (who may field candidates) and a third-party campaigner (campaigners that do not field candidates). Through this they can potentially increase their spending limit during a regulated period leading up to an election, as they would receive a separate spending limit for each registration. Groups not on both registers would not have access to this increased spending limit. The Bill will narrow the criteria for registering as a political party, preventing third-party campaigners registering as a political party. As a result of this change, registered political parties will not be able to access third party campaign spending limits. This will maintain the integrity of spending limits by ensuring that campaigners attempting to bypass their spending limits by appearing on both registers cannot do so.
71 "Notional expenditure" describes benefits in kind (property, goods, services or facilities) which are supplied free of charge or at a discount to election candidates, political parties and other campaigners which, if paid for, would constitute an election or campaign expense.
72 In July 2018, the Supreme Court ruled in the case of R v Mackinlay and others  UKSC 42 11 that there is no requirement that the provision of these benefits has to be authorised by the candidate or their election agent. This has led to concerns from across the political spectrum that candidates and their agents could be liable for spending they were unaware of or not involved in, but were seen to have benefitted from. This widespread uncertainty risks a democratic chilling effect by discouraging parties from campaigning in marginal constituencies.
73 This Bill clarifies the law so that candidates only need to report benefits in kind which they have actually used, or directed someone else to use, and do not need to fear being responsible for benefits in kind of which they had no knowledge. This clarification will also be extended to other campaigners who are subject to notional expenditure controls. Expenditure which promotes an individual candidature would continue to count towards a candidate’s own spending limit.
74 Currently foreign third-party campaigners can legitimately spend on UK elections under the recognised third-party campaigner registration thresholds, and this activity only becomes illegal once the thresholds are passed. Only UK-based groups/individuals or registered overseas electors are permitted to register with the Electoral Commission as third-party campaigners. This Bill will remove the scope for any legal spending by foreign third-party campaigners underneath the registration threshold but above a £700 ‘de minimis’. Inclusion of such a provision will balance the desire to prohibit spending by foreign entities without criminalising low-level, potentially inadvertent, breaches which are unlikely to adversely impact an election. This will support the Government’s 2019 manifesto commitment to "protect the integrity of our democracy, by introducing [...] measures to prevent any foreign interference in elections". It will also address some of the concerns raised in the 2019 Digital, Culture, Media and Sport (DCMS) Committee report Disinformation and ‘fake news’ 12 regarding foreign interference in UK elections.
75 In June 2020, the House of Lords, Report of Session 2019-21: Digital Technology and the Resurrection of Trust 13 recommended the introduction of a secondary registration scheme for third-party campaigners who would otherwise fall below current spending limits. This Bill will require third-party campaigners to give a notification to the Electoral Commission at a lower level of spending than is currently required, effectively creating a two-tier system for registration. This new lower tier will apply when a third-party campaigner intends to spend in excess of £10,000 on controlled expenditure during a regulated period across, or in any constituent part/s of, the UK, but below the existing country specific thresholds for registration, which act as their upper limit. All of these measures only apply to qualifying expenditure (i.e. expenditure that can reasonably be regarded as intended to promote or procure electoral success at any relevant election), not wider, non-electoral, campaigning that groups may undertake. Therefore, the lower tier third-party campaigners will be subject to the minimum of regulation necessary to ensure that they are UK-based or an eligible overseas entity.
76 There are existing rules which apply when one or more third parties work on a campaign together before an election, in which case the spending must be reported by all the campaigners in the joint campaign. This is to ensure that third parties cannot avoid their spending limits by registering multiple entities, or benefit from an increased spending limit when working together with another group for the same goal. These rules do not cover scenarios where political parties work with third-party campaigners. This Bill will have the effect of extending similar principles to third-party campaigners and political parties who work together on a joint campaign. Third-party campaigners and political parties who are working together on a joint campaign will both report any associated spending and identify the parties involved in the arrangement. This will ensure that campaigners are not able to bypass their spending limits using coordinated spending.
Intimidation: New Electoral Sanction
77 In 2017, the independent Committee on Standards in Public Life published the review Intimidation in public life 14. This highlighted that candidates and campaigners faced increased intimidation and suggested that "specific electoral sanctions would reflect the seriousness of this threat."
78 In 2019, following the Protecting the Debate 15 public consultation, the previous Government committed to "applying electoral sanctions to existing offences of intimidatory behaviour."
79 In 2021, the Minister of State for the Constitution and Devolution reiterated the Government’s intention to "legislate to introduce a new electoral sanction of intimidation" in a written ministerial statement ( HCWS833 ) 16 .
80 This Bill introduces a new electoral sanction in the form of a disqualification order, which is intended to provide additional protection to those who participate in elections and contribute to the political debate, and deter individuals from carrying out acts of intimidation. The disqualification order can be imposed on a person convicted of a criminal offence motivated by hostility towards a candidate, future candidate, substitute or nominee (in Northern Ireland), campaigner or holder of a relevant elective office. The effect of the new disqualification order is a five-year disqualification from standing for, being elected to or holding certain elective offices.
81 Under existing electoral law, campaigners are required to use an imprint to identify who they are and on behalf of whom they promote non-digital (i.e. printed) campaign material, such as leaflets and posters. Currently, imprints are required on printed election, referendum and recall petition material and serve to promote transparency about who is campaigning. Requiring an imprint ensures accountability in relation to these materials by making campaigners responsible for their communications and improves voter confidence. The imprint regime also assists the Electoral Commission and the police to enforce spending rules.
82 The rise of digital campaigning has resulted in traditional printed leaflets no longer being the dominant form of political communication. Despite the growth in digital political campaigning, imprint requirements have not been extended to digital campaign material. This represents a gap in the law that the Government is addressing through the introduction of a digital imprints regime.
83 In 2017, the Committee on Standards in Public Life published a report which recommended electoral law be updated to require an imprint to be included on online campaign material. Following this, the Cabinet Office launched the consultation Protecting the Debate: Intimidation, Influence and Information 17 in July 2018 which included a proposal to extend the requirement for an imprint to digital material. The feedback to this consultation, published in the Government response, indicated broad support for this proposal and in May 2019 the Government committed to introducing a digital imprints regime. To support the delivery of this commitment, in August 2020, the Government then launched the technical consultation Transparency in digital campaigning: technical consultation on digital imprints , outlining the technical proposals for the regime. The consultation closed in November 2020 and the Government’s response was published on 15 June 2021.
84 The Bill introduces a new digital imprints regime requiring anyone paying for digital political material to be advertised to explicitly show who they are, and on whose behalf they are promoting the material. Paid material is paid-for advertising, in which costs have been incurred for the promotion or distribution of the material. Conversely, unpaid material is material for which no costs were involved in its promotion or distribution. Certain campaigners (registered political parties, candidates, future candidates, recognised third-party campaigners, referendum campaigners, holders of elected office and recall petition campaigners) will also be required to include an imprint on their unpaid material if it constitutes digital election, referendum or recall petition material.
1 Securing the Ballot - Report of Sir Eric Pickles’ review into electoral fraud; Sir Eric Pickles, August 2016 https://www.gov.uk/government/publications/securing-the-ballot-review-into-electoral-fraud
2 Electoral fraud in the UK Final report and recommendations; Electoral Commission, January 2014 https://www.electoralcommission.org.uk/sites/default/files/pdf_file/Electoral-fraud-review-final-report.pdf
3 Protecting the integrity of our elections: Voter identification at polling stations and the new Voter Card, The Department for Levelling Up, Housing and Communities, January 2022 https://www.gov.uk/government/publications/voter-identification-at-polling-stations-and-the-new-voter-card/protecting-the-integrity-of-our-elections-voter-identification-at-polling-stations-and-the-new-voter-card
4 Electoral Law: A joint final report, Law Commission and Scotland Law Commission, March 2020 https://www.electoralcommission.org.uk/sites/default/files/pdf_file/Electoral-fraud-review-final-report.pdf
5 Protecting the Debate: Intimidation, Influence and Information, May 2019 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/799873/Protecting-the-Debate-Government-Response-2019.05.01.pdf
6 Erlam & Ors v Rahman & Anor  EWHC 1215 (QB), https://www.bailii.org/ew/cases/EWHC/QB/2015/1215.html
7 Call for Evidence: Access to elections, September 2017 https://www.gov.uk/government/consultations/access-to-elections-call-for-evidence
8 Concluding Part One of the Police and Crime Commissioner Review, Written Ministerial Statement, 16 March 2021 https://questions-statements.parliament.uk/written-statements/detail/2021-03-16/hcws849
9 Interim Corporate Plan 2020/21 – 2024/25, Electoral Commission, April 2020; https://www.electoralcommission.org.uk/sites/default/files/2020-04/20200429-none-Electoral%20Commission%20Interim%20Corporate%20Plan.pdf
10 Digital campaigning Increasing transparency for voters, Electoral Commission, June 2018 https://www.electoralcommission.org.uk/sites/default/files/pdf_file/Digital-campaigning-improving-transparency-for-voters.pdf
11 R v Mackinlay and others  UKSC 42 https://www.supremecourt.uk/cases/uksc-2018-0091.html
12 Disinformation and ‘fake news’: Final Report, House of Commons Digital, Culture, Media and Sport Committee, February 2019 https://publications.parliament.uk/pa/cm201719/cmselect/cmcumeds/1791/1791.pdf
13 Digital Technology and the Resurrection of Trust, House of Lords Select Committee on Democracy and Digital Technologies, June 2020 https://committees.parliament.uk/publications/1634/documents/17731/default/
14 Intimidation in Public Life: A Review, Committee on Standards in Public Life, December 2017 https://www.gov.uk/government/publications/intimidation-in-public-life-a-review-by-the-committee-on-standards-in-public-life
15 Protecting the Debate: Intimidation, Influence and Information, May 2019 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/799873/Protecting-the-Debate-Government-Response-2019.05.01.pdf
16 Update on tackling intimidation in public life, Written Ministerial Statement, 9 March 2021 https://questions-statements.parliament.uk/written-statements/detail/2021-03-09/hcws833
17 See note 15 above