|Electoral Administration Bill - continued||House of Commons|
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Part 6: Conduct of elections etc.
Clause 24 Omission of references to Maundy Thursday
131. This clause removes Maundy Thursday from the list of days that are to be disregarded for the purposes of the electoral timetable. The clause gives effect to Part 4 of Schedule 1, which specifies the amendments to current enactments necessary to achieve this.
Clause 25 Use of candidates' common names
132. This clause amends Schedule 1 (parliamentary election rules) to the 1983 Act by making a new provision to enable candidates to use the name which they commonly use (their "common name") on the ballot paper. Examples of such names include
133. Subsection (2) inserts new paragraph (2A) into rule 6 (Nomination of candidates), which provides that if a candidate commonly uses a surname or a forename which is different from any other surname or forename he has, the nomination paper may state the commonly used surname or forename in addition to any other name.
134. Subsection (3) inserts new paragraphs (2A) to (2C) into rule 14 (Publication of statement of persons nominated). Paragraph (2A) provides that where a nomination paper bears a commonly used name the statement of persons nominated shall show the person's commonly used name instead of the other name.
135. Paragraph (2B) provides that paragraph (2A) does not apply if the returning officer thinks that the commonly used name may be likely to mislead or confuse voters or is obscene or offensive. Paragraph (2C) requires the returning officer to give notice in writing of his reasons for refusing the use of a commonly used name.
136. Subsection (4) amends the Form of Nomination Paper in the Appendix of Forms in Schedule 1 by adding additional columns in which a candidate can include his commonly used surnames and forenames, if applicable.
137. Subsection (5) amends the notes accompanying the Form of Nomination Paper. The candidate is advised that he may include his commonly used name on the nomination paper, but that if he does so it is that name which will appear on the ballot paper. The notes also advise of the circumstances in which a returning officer might refuse the use of a common name.
Clause 26 Offences as to false statements in nomination papers
138. This clause amends section 65A of the 1983 Act. It provides that it shall be a corrupt practice at a parliamentary election or a local government election in England and Wales to make a false statement in the consent to nomination given by the candidate. The following would constitute a false statement:
Clause 27 Amount of expenses which may be incurred by third party
139. This clause amends section 75 of the 1983 Act (Prohibition of expenses not authorised by election agent), as previously amended by section 131 of the 2000 Act.
140. Subsections (2) and (3) amend section 75(1) of the 1983 Act. Section 75(1)(a) to (d) provides that no expenses, with a view to promoting or procuring the election of a candidate at an election (or, in the case of an election of the London Members of the London Assembly at an ordinary election, a registered political party or candidates of that party), shall be incurred by any person other than the candidate, his election agent and persons authorised in writing by the election agent on account of:
141. By way of exception, section 75(1), as amended, also provides that a third party campaigning for or against a candidate at a Parliamentary election may incur expenditure up to a maximum of £500 ("the permitted sum").
142. The intention of earlier amendment to section 75(1) was to allow a third party to incur expenses up to the permitted sum on promoting or procuring the election of a candidate through any of the means listed under section 75(1)(a) to (d) above, and the Electoral Commission had interpreted it this way. However, as drafted, the amendment gave rise to ambiguity, raising concerns that the exception only applied to those matters listed at (1)(c) and (d).
143. Subsection (2) amends section 75(1) of the 1983 Act to remove any ambiguity. The result is that the exception allowing a third party to incur expenditure up to the permitted sum applies to all those matters listed at (1)(a) to (d) above and ensures that other exceptions to (1)(c) and (d) continue to apply.
144. Subsection (5) inserts new subsections (8), (9) and (10) in section 75 of the 1983 Act. The effect of new subsection (8) is to provide that expenditure incurred by a third party will count against a candidate's election expenditure if it is incurred in the "relevant period", namely:
145. New subsection 75(9) applies in the case of a Parliamentary general election held less than four months after the preceding Parliamentary general election. In this case the relevant period begins the day after the date of poll for the earlier election and ends on the date of poll of the election in question.
146. New subsection 75(10) provides that, for the purposes of subsection (1), where third party expenditure has been incurred before the relevant period, the expenditure is to be treated as having being incurred during the relevant period if it is incurred in connection with anything which is used or takes place during the relevant period. New subsection (10)(b) provides that it is immaterial whether at the time the expenditure is incurred it is known who will be a candidate at the election.
147. Subsection (6) provides that the amendments made by this clause, with the exception of subsections (2)(a) and (5), must be taken to have had effect from 16 February 2001 (the date of coming into force of section 131 of the 2000 Act).
Clause 28 Return as to election expenses
148. This clause amends section 81 (return as to election expenses) of the 1983 Act, by inserting a new subsection (3A) and omitting subsection (3).
149. Section 81(3), as amended by the 2000 Act, prescribes the information to be included in a candidate's election expenses return to the Electoral Commission and the form in which the information should be presented. The Electoral Commission expressed concern that the information as required to be presented by section 81(1) to (3) is too prescriptive and complex. Consequently the election expenses return that the Electoral Commission must produce is difficult to understand.
150. New subsection (3A) allows the Electoral Commission greater flexibility in prescribing the form in which the information required should be presented, without reducing the amount of information that must be included in the return.
Clause 29 Meaning of election expenses for purposes of the 1983 Act
151. This clause inserts new section 90ZA (meaning of election expenses) after section 90 of the 1983 Act.
152. New section 90ZA(1) provides that "election expenses" in relation to a candidate at an election means any expenses incurred at any time in respect of any matter specified in Part 1 of Schedule 4A, which is used for the purposes of the candidate's election during the relevant period. This is subject to the provisions in section 90ZA(2) and (3) and section 90C of the 1983 Act.
153. New subsection (2) provides that for the purposes of subsection (1), it is immaterial whether any such matter is so used before or after the date when the candidate becomes a candidate at the election, as long as it occurs within the relevant period.
154. New subsection (4) provides that the phrase "for the purposes of a candidate's election" means with a view to, or otherwise in connection with, promoting or procuring the candidate's election at the election.
155. New subsection (5) defines the "relevant period" (i.e. the period during which expenditure is to be treated as election expenditure) as:
156. New subsection (6) applies in the case of a parliamentary general election held less than four months after the preceding parliamentary general election. In this case the relevant period begins the day after the date of poll for the earlier election and ends on the date of poll of the election in question.
157. New subsection (7) confirms that election expenditure is such expenditure as is incurred by the candidate or his agent or by any person authorised by the candidate or his election agent to incur election expenses.
158. Part 1 of new Schedule 4A lists those items qualifying as election expenses. Part 2 of the Schedule lists those items that are to be excluded from the meaning of election expenses. These lists are based on those for political parties' campaign expenditure contained in Schedule 8 to the 2000 Act, and will provide simpler and clearer reporting requirements.
159. Part 3 of new Schedule 4A makes provision for the Electoral Commission to provide guidance on the subject of election expenses and to prepare a draft code for observance by candidates and their agents. The code must be approved by the Secretary of State and thereafter be laid, either with or without amendments, before each House of Parliament, subject to the negative resolution procedure, before coming into force on such date as the Secretary of State may by order appoint. If the Secretary of State should make any modifications to the code he must, at the same time as laying the code, lay a statement of his reasons for making them.
160. Part 3 of the new Schedule also empowers the Secretary of State to amend Parts 1 and 2 of the Schedule by order. An order made under this provision must either give effect to a recommendation of the Electoral Commission or be made after consultation with the Electoral Commission. The order must be laid before each House of Parliament and is subject to the affirmative resolution procedure.
Clause 30 Discretion to report on parliamentary by-elections
161. This clause amends section 5 of the 2000 Act by inserting new subsection 2(A), which gives the Electoral Commission discretion to prepare a report on parliamentary by-elections and elections to the Scottish Parliament and National Assembly for Wales. The discretion is in addition to the Electoral Commission's duty to report on parliamentary general and certain other elections under sections 5 and 6 of the 2000 Act.
Clause 31 Observation of proceedings at elections and referendums
162. This clause amends the 2000 Act:
163. This clause inserts four new sections into the Act after section 6.
164. New section 6A (Attendance of representatives of Commission at elections etc.) provides for representatives of the Electoral Commission to apply to the returning officer at an election, or to the counting officer at a referendum, to attend any proceedings which fall to their responsibilities. It provides for permission to be granted and revoked by them. It also specifies who can be regarded as a representative of the Electoral Commission for these purposes as well as defining the term "counting officer" and identifying the elections and referendums to which this section applies.
165. New section 6B (Observation of working practices by representatives of Commission) provides for representatives of the Electoral Commission to apply to an ERO, a returning officer, or a counting officer to observe their working practices or those of any person acting under the relevant officer's direction. It also provides for permission to be granted and revoked by the relevant officer.
166. New section 6C (Accredited observers: individuals) provides for anyone over the age of 16 to apply to the Electoral Commission to be accredited as an observer at elections or referendums. It further specifies the proceedings to which such accredited persons can have access. These are:
167. It further provides for accredited persons to then apply to the returning officer or counting officer to attend proceedings at a particular election or referendum, and for permission to be granted and revoked by them. It also provides for the Electoral Commission to refuse or revoke accreditation and requires them to give reasons in writing for doing so. It specifies that all applications must be made in accordance with a code of practice.
168. New subsection 6D (Accredited observers: organisations) provides for organisations to apply to the Electoral Commission to be accredited for the purpose of nominating members of that organisation to attend those same proceedings which an individual accredited observer may attend. It further provides for the organisation to then apply on behalf of its nominated members to the returning officer or counting officer to attend those proceedings at a particular election or referendum and for permission to be granted and revoked by the relevant officer. It again provides that the Electoral Commission may refuse or revoke accreditation and must give written reasons for doing so. Again it specifies that all applications must be made in accordance with a code of practice.
169. New section 6E (Code of practice on attendance of observers at elections etc) requires the Electoral Commission to prepare and publish a code of practice to regulate the processes involved in applying for accreditation and access as an observer and the behaviour of those giving access and observing. It specifies what particulars must be included in the code, and requires that the Electoral Commission should consult the Secretary of State before preparing it. It also requires the Electoral Commission to lay the code before each House of Parliament. It requires the Electoral Commission and its representatives as well as returning officers and counting officers to have regard to the code. It allows the Electoral Commission to revise the code at any time, following the same procedure for preparing the code.
170. Part 5 of Schedule 1 to the Bill makes necessary consequential amendments to the 1983 Act to allow the Electoral Commission and other observers access to various electoral proceedings. It also amends rule 32 of Schedule 1 of the 1983 Act, which specifies who may attend at a polling station. This will now include observers, but will also include those under voting age who may accompany voters to the polling station and observe the democratic process at first hand. The presiding officer's power to regulate the total number of voters to be admitted to the polling station at the same time is extended to include those persons under the age of 18 who accompany them.
Clause 32 Ballot paper design
171. This clause amends the rules in Schedule 1 to the 1983 Act and the Appendix of Forms included in that Schedule. The Secretary of State is given a power to prescribe a different form of ballot paper from that which is currently depicted in the Appendix of Forms, and to amend the directions to printers of ballot papers and those for the guidance of voters in voting. The current directions have been clarified to provide that the front of the ballot paper may contain two columns of named candidates.
Clause 33 Replacement of counterfoils
172. This clause amends the parliamentary elections rules. Ballot papers will no longer be attached by a perforation to counterfoils. Instead, electoral officials will be provided with a corresponding number list (new rule 19A) of all the numbered ballot papers. The official must insert the electoral register number of the voter to whom a ballot paper is issued (amended rule 37(1)(b) and (d) to which paragraph 71 of Schedule 1 refers). On being given a ballot paper, voters will be required to sign on the corresponding number list beside their electoral register number and ballot paper number. At the close of the poll, the corresponding number list is added to the other lists that must be forwarded to the count (amendments to rule 43). After the announcement of the result, the corresponding number list is forwarded for safe keeping in case it needs to be produced in legal proceedings (amendments to rules 55 to 57).
Clause 34 Translations etc. of certain documents
173. This clause inserts section 199B (translations etc. of certain documents) into the 1983 Act.
174. Subsection (1) of section 199B provides that subsection (2) applies to any document required or authorised to be given to voters or to be displayed in any place for the purposes of a parliamentary or local government election.
175. New subsection (2)(a) to (c) gives the person who is required or authorised to give or display the documents mentioned in subsection (1) the discretion to make those documents available in Braille and translate them into languages other than English. In addition he may also make graphical representations of the information contained in the documents.
176. New subsection (3) provides that the discretion in subsection (2) does not apply to the nomination paper or front of the ballot paper.
177. New subsections (4) and (5) provide for the returning officer to exhibit an enlarged sample copy of the ballot paper during the poll. The words 'VOTE FOR ONE CANDIDATE ONLY' (or, alternatively and where necessary for local government elections "VOTE FOR NO MORE THAN [here insert the maximum number of candidates to be elected] CANDIDATES") must appear both at the top and immediately below the list of candidates on the enlarged sample copy as well as such translations of those words printed below the list of candidates as considered appropriate by the returning officer.
178. New subsections (6) and (7) provide that the returning officer must have a large, hand-held sample ballot paper available at the polling station for partially sighted voters - this is not intended for the purpose of voting on and as such should be clearly marked as a specimen.
Clause 35 Assistance for certain postal voters
179. This clause substitutes a new rule 24 (Postal ballot papers). This rule specifies the materials that should be issued to those entitled to vote by post by the returning officer. It clarifies that he can include information about how to access translations or graphical representations of the guidance.
180. Rule 24(1) is substituted for the current rule 24(1) and provides, in Great Britain, for a "postal voting statement", replacing the current declaration of identity, to be issued with the postal ballot paper. The form of the postal voting statement may be prescribed in secondary legislation. In Northern Ireland the current position is retained.
181. Rule 24(2)(a) and (b) makes provision for returning officers to provide information which alerts voters to the availability of translated or Braille versions of the directions on how to vote by post. This might take the form of a hyperlink or internet address to a web page containing foreign language or audio versions of the instructions, or a phone number for contacting the local electoral services department.
182. Rule 24(2)(c) allows for returning officers to provide visual representations and pictograms in order to aid clarity of comprehension of directions to voters contained in prescribed forms.
183. Rule 24(3) provides that the prescribed form (i.e. the new postal voting statement and, in Northern Ireland, the declaration of identity) accompanying the postal ballot paper shall include provision for it to be signed by the elector as a minimum. Other requirements may be prescribed.
Clause 36 Tendered votes in certain circumstances
184. This clause amends rule 40, the Representation of the People Acts 1983 and 1985, and Schedule 4 to the Representation of the People Act 2000 (Absent voting in Great Britain). The clause outlines two new circumstances where a tendered ballot can be issued to a voter.
185. Subsection (1) relates to an elector who discovers, upon attending his polling station, that he has without his knowledge been included on the list of postal voters or postal proxy voters who may not vote in person at a polling station. The new rule 40(1ZA) to (1ZC) provides that such a person is to be permitted to mark a tendered ballot paper. The person can be asked questions to determine whether they come within the scope of the provision. The questions - inserted by the new rule 35 substituted by paragraph 70 of Schedule 1 - concern whether they applied to vote by post and why they have not voted by post.
186. Subsection (2) also amends rule 40, in this case adding rule 40(1ZD) and (1ZE). It will become possible for a postal voter or postal proxy voter to be issued with a tendered ballot paper at a polling station if the deadline for requesting a replacement postal ballot paper has expired, and before the close of voting. The elector will be allowed to mark a tendered ballot paper if their answer satisfies the presiding officer that they have lost or not received their postal ballot paper.
187. Paragraph 70 of Schedule 1 inserts the new questions that may be put to the voters into rule 35. This rule outlines the questions a Presiding Officer may ask a person who has requested a ballot paper at the polling station.
188. Subsection (3) inserts section 61(6A) of the 1983 Act, which relates to certain voting offences. The new provision excepts from the scope of voting offences the circumstances covered in subsections (1) and (2) of this clause. A person who votes at a polling station when entitled to vote by post is not guilty of a voting offence if the vote cast is a tendered ballot paper. Similarly, a person who votes in person as a proxy for another elector when entitled to vote as a postal proxy, is not committing an offence when voting by a tendered ballot paper.
189. Subsection (6) makes two amendments to Schedule 4 of the Representation of the People Act 2000, in relation to Great Britain. The insertion of paragraph 2(6A) of the Schedule removes the prohibition on absent voters voting at a polling station. The effect is that paragraph 2 does not apply to voters casting a tendered ballot paper in the circumstances referred to above. Similarly, the insertion of paragraph 7(10) means that paragraph 7 of Schedule 4 does not prohibit postal proxies casting a tendered vote at a polling station in the circumstances referred to above. Subsections (4) and (5) similarly amend the equivalent legislation in relation to Northern Ireland, namely sections 5 and 9 of the Representation of the People Act 1985 respectively (which have been repealed as regards Great Britain).
Clause 37 Undue influence
190. This clause amends section 115 of the 1983 Act (undue influence) and addresses attempts by persons to exert undue influence that do not prove to be successful. The amendment will remedy the fact that unsuccessful attempts at preventing the free exercise of the franchise or prevailing upon an elector to vote or to refrain from voting may not at present amount to the corrupt practice of undue influence. The lacuna was identified in the 1992 case of R v. Rowe ex parte Mainwairing. The case related to the circulation of a fraudulent pamphlet that was designed to mislead electors into voting against, or withdrawing their support from, the opposing party's candidates. The persons responsible could not be penalised because it could not be proved that the pamphlet had had this result.
Clause 38 Offences relating to applications for postal and proxy votes
191. This clause inserts a new section 62A of the 1983 Act. It will be both a corrupt practice and criminal offence to apply for a postal or proxy vote with the intention of stealing another person's vote or gaining a vote to which the applicant is not entitled.
192. Section 62A(1) outlines the acts and the intentions that must be proved in order to establish that the offence has been committed. Section 62A(1)(b) specifies that the intention that must be proved is that the person intended to deprive another of the opportunity to vote, or intended to gain a vote to which the person was not entitled, or intended to make some other financial gain.
193. Section 62A(2) details the acts that underpin the offence. These include the applicant pretending to be another elector, or making any other false statement in an application for a postal or proxy vote. It also covers the applicant causing the diversion of communications from the entitled elector or preventing their delivery.
194. Paragraphs 101 to 107 of Schedule 1 to the Bill make consequential amendments to the 1983 Act. If found guilty by an election court, a person may be disqualified from standing for election or from being registered as a voter, for a period of five years. If found guilty on a criminal prosecution, a person may be imprisoned for up to two years and fined.
Clause 39 Control of documents after parliamentary election
195. This clause amends Schedule 1 to the 1983 Act. It transfers the responsibility for storing electoral documents after an election from the Clerk of the Crown to local EROs. Subsection (5) inserts new paragraphs (3) to (9) of rule 57 detailing the extent of the right of access to documents. Parties and candidates may be supplied with marked copies of the register, the postal voters list, the list of proxies and the postal proxy voters list (rule 57(4)). Conditions may be imposed by regulations limiting the purposes for which the documents may be used and limiting onward supply to others (rule 57(7) and (8)). Subsection (6) makes provision for the handling of such documents in Scotland. Subsection (7) makes provision for the handling of such documents in Northern Ireland.
196. Subsection (9) creates a new offence of failure to comply with conditions relating to the supply of election documents. This is inserted as section 66B of the 1983 Act. It enforces compliance with the provisions of rule 57 as amended by subsection (5). The maximum penalty for those found guilty on summary conviction is a fine of £5,000.
Clause 40 Access to other election documents
197. This clause provides for access to election documents for elections other than parliamentary elections in a similar way to that provided for parliamentary elections. It also gives the Secretary of State a power to make regulations to impose conditions on that access and to charge for it. It also makes it a criminal offence not to comply with the regulations and prescribes the maximum penalty for conviction.
198. Subsection (1) imposes requirements on EROs who hold documents for elections other than parliamentary elections and local government elections in Scotland and Northern Ireland to make them available for public inspection. The conditional duty to supply copies or extracts on request is cast in similar terms to those for parliamentary elections. Subsection (2) identifies who can request copies of the register and the list of proxies marked to show who has been issued with a ballot paper in a polling station, and the marked lists of postal and postal proxy voters who returned their ballot papers.
199. Subsections (3) to (10) contain regulation-making powers and define what regulations may or may not provide.
Clause 41 Access to other election documents: contravention of regulations
200. This clause creates an offence of contravening regulations governing access to post-election documentation. This offence will apply as regards documentation relating to elections other than parliamentary elections. The maximum penalty for those found guilty on summary conviction is a fine of £5,000. For parliamentary elections, a similarly worded offence is created by clause 39 as a new section 66B of the 1983 Act.
Clause 42 Access to election documents: supplementary
201. This clause defines some of the terms used in clause 40. It provides the meaning of "electoral area" which is relevant for the purposes of elections other than parliamentary elections. The remaining terms are to be interpreted in a manner consistent with the interpretation they bear in the parliamentary elections rules: relevant ERO, relevant election documents, registered party, marked copy of the register, the list of proxies, the postal voters list, and the postal proxy voters list.
Clause 43 Marked postal voters list
202. This clause amends rule 31. When a postal voter has returned a postal vote or a postal proxy vote, the returning officer must mark the relevant list. It also enables regulations to be made prescribing the circumstances in which that mark should be made. It also makes consequential amendments to rule 55.
Clause 44 Returning Officers: correction of procedural errors
203. This clause allows returning officers to correct errors or omissions that arise during the preparation for and conduct of elections. This will apply to acts and omissions that are made by those administering elections (returning officers, EROs and their staff) and those supplying goods and services to the administrators. By way of example, electoral documents printed with incorrect details would be capable of correction under this provision.
Clause 45 Miscellaneous amendments of the 1983 Act
204. This clause makes provision for the application of Part 5 of Schedule 1, which makes amendments relevant to the conduct of elections. Similar amendments are made to the 1983 Act and the Electoral Law Act (Northern Ireland) 1962.
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