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These notes refer to the Political Parties and Elections Bill as introduced in the House of Commons on 17th July 2008 [Bill 141]
POLITICAL PARTIES AND ELECTIONS BILL
1. These explanatory notes relate to the Political Parties and Elections Bill as introduced in the House of Commons on 17th July 2008. They have been prepared by the Ministry of Justice in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. On 16th June 2008, the Secretary of State for Justice announced the publication of a Government white paper on Party Finance and Expenditure in the United Kingdom. This set out the Governments intention to bring forward immediate legislation to tighten controls on spending by political parties and candidates. The Bill is intended to fulfil that commitment.
4. The main features of the Bill:
Bill 141EN 54/3
The Bill also makes two reforms to the current system for administering elections in the United Kingdom, which are designed better to ensure the successful delivery of elections in the future. These will:
5. The Bill extends to the whole of the United Kingdom. The provisions contained in clause 8 (declaration as to source of donation) include a power enabling the Secretary of State to modify how these provisions (and the accompanying provisions in Schedule 3) apply to Northern Ireland. This is necessary to take account of the different arrangements that exist in Northern Ireland for the regulation of the funding of political parties.
6. Some of the amendments made by the Bill are to provisions in the Political Parties, Elections and Referendums Act 2000 (the 2000 Act) which extend to Gibraltar. The amendments do not extend there, but there is a power in section 12 of the European Parliament (Representation) Act 2003 which could be used to extend them to Gibraltar.
7. Because the Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
8. The Bill does not have any special effect on Wales and does not affect the National Assembly for Wales.
Clause 1: Compliance with controls imposed by the 2000 Act etc
9. Subsections (1) and (2) of clause 1 amend section 145 of the 2000 Act to provide that, in addition to its existing function of monitoring compliance with various requirements (relating to registered party accounting, political donations, campaign and election expenditure, and referendums), the Commission shall have the function of taking such steps as it considers appropriate to secure compliance with those requirements. The purpose of this provision is to clarify that the Commission is required to both monitor and regulate compliance. Subsection (3) allows the Commission to publish guidance as to what conduct it considers to be necessary or sufficient in order to comply with the legislative requirements, and what conduct it considers to be best practice in view of the purpose of those requirements.
10. Subsection (1) of this clause substitutes a new section 146 of the 2000 Act (investigatory powers of the Commission). This new section gives effect to new Schedule 19A which is inserted into the 2000 Act by subsection (2) of the clause. Schedule 1 to the Bill contains new Schedule 19A (which is discussed in more detail at paragraphs 51 to 66 below). Schedule 19A provides the Commission with investigatory powers, designed to enable it to require access to financial records and information, and to enter premises to inspect and make copies of relevant documents. Subsection (3) makes provision as to the penalties for offences under the new Schedule (which largely mirror the penalties for existing offences).
11. Clause 3 gives the Electoral Commission new powers to apply a range of civil sanctions to offences and contraventions under the 2000 Act.
12. Subsection (1) substitutes a new section 147 of the 2000 Act (civil sanctions). This new section gives effect to new Schedule 19B which is inserted into the 2000 Act by subsection (2). Schedule 2 to the Bill contains new Schedule 19B. It sets out the range of new civil penalties available to the Commission, including monetary penalties, discretionary requirements, stop notice and enforcement undertakings. The new Schedule also explains how and when the Commission is able to apply these sanctions, who they apply to and what appeal processes are available to an individual or organisation subject to a sanction. Subsection (3) provides for the penalty for commission of the offence, under the new Schedule, of failing to comply with a stop notice.
13. Subsection (4) inserts new subsection (4A) into section 156 of the 2000 Act. This specifies that an order made under paragraph 16 of new Schedule 19B relating to the following matters is subject to the affirmative resolution procedure:
14. Clause 4 amends section 3 of the 2000 Act, which governs the appointment of Electoral Commissioners and the Commission chairman. Subsection (2) of the clause inserts a new subsection (2) into section 3 which expands the series of requirements which must be met in relation to the appointment procedures. Her Majesty will continue to appoint Commissioners on presentation of an Address from the House of Commons; but, in addition to the existing requirements set out in current subsection (2) that the Speaker agree to the making of the motion and that the leader of each party which has two or more members in the House of Commons be consulted on the motion, paragraph (c) of the substituted subsection (2) requires that each person proposed for appointment must have been selected in accordance with a procedure put in place and overseen by the Speakers Committee.
15. Subsection (3) inserts a subsection (5A) into section 3 of the 2000 Act, providing that a Commissioner may be re-appointed without undergoing a fresh selection procedure if recommended by the Speakers Committee.
16. Clause 5 makes provision facilitating the appointment to the Commission of four Commissioners with recent political experience (nominated Commissioners). Subsection (1) inserts new subsection (4A) into section 3 of the 2000 Act which disapplies, for the nominated Commissioner positions, the restrictions which would normally prevent a person who belongs to a political party or has been engaged in recent political activity from being appointed. Subsection (4A) does not affect the prohibition on appointing a serving officer or employee of a political party or the holder of a relevant elected office.
17. Subsection (2) inserts new section 3A into the 2000 Act, which makes provision about the appointment of nominated Commissioners. Subsections (1) and (2) of the new section provide that there shall be four nominated Commissioners, each of whom shall be nominated by the leader of a party with two or more representatives in the House of Commons (a qualifying party). Subsections (3) and (4) provide that, of those four Commissioners, three must be selected from the three largest parties (measured according to the criteria set out in subsection (7) of new section 3A) that have nominated more than one candidate for appointment or that have nominated an individual who was appointed and is expected to continue to hold office.
18. Subsection (5) of the new section prevents the appointment of two or more nominated Commissioners from the same political party. The effect of this provision is to ensure that the fourth nominated Commissioner must be nominated by the leader of a party which is not one of the three largest parties. Subsection (6) prevents a nominated Commissioner from being appointed as Chair of the Electoral Commission. Subsection (8) provides that Members of the House of Commons who have not sworn the oath required by the Parliamentary Oaths Act 1866 (or the corresponding affirmation) or who have been disqualified from sitting and voting in the House are not counted for the purposes of the new section.
19. Subsection (3) of clause 5 amends section 14 of the 2000 Act, which sets out the Commissions boundary functions, to prevent a nominated Commissioner from being appointed to a Boundary Committee.
20. This clause amends section 1 of the 2000 Act to increase the minimum and maximum number of Electoral Commissioners that may be appointed. The effect of the clause is to increase the minimum from 5 to 9, and the maximum from 9 to 10. The increase in the minimum is intended to ensure that the nominated Commissioners will always be a minority of Commissioners.
21. Clause 7 relaxes the restrictions that apply to the political activities of Electoral Commissioners (other than nominated Commissioners) and Electoral Commission staff.
22. Subsection (1) of clause 7 amends section 3 of the 2000 Act so that a person will only be prohibited from appointment as an Electoral Commissioner if they have engaged in certain political activities within the past five years, rather than the past 10 years as is currently the case.
23. Subsection (2) inserts a new paragraph 11A in Schedule 1 to the 2000 Act which reduces the restrictions which currently apply to the political activities of Electoral Commission staff, both on appointment and while they hold office. Sub-paragraph (1) of paragraph 11A specifies that staff cannot be appointed to the Electoral Commission if they have been engaged in certain political activities within the relevant period. Sub-paragraph (2) defines this period (which was previously the last 10 years for all staff) as the last five years for the post of chief executive of the Commission and the last 12 months for all other members of staff.
24. Sub-paragraph (3) of the new paragraph 11A makes clear that the chief executive of the Commission cannot be a member of a registered party. Sub-paragraph (4) provides that the appointment of a member of staff shall be terminated if, after appointment, they become engaged in any of the types of political activity that would have prevented their appointment.
25. Some of the provisions of the new paragraph 11A restate sub-paragraphs (2) and (4) of paragraph 11 of Schedule 1 to the 2000 Act, and these sub-paragraphs are accordingly repealed (in Schedule 5).
26. Clause 8 makes amendments to the disclosure requirements currently imposed on donors by the 2000 Act. It places a new responsibility on those causing donations of over £200 to be received by a political party to clarify the source of the donations; and imposes a responsibility on recipients of donations to return the donation if a declaration under this clause has not been received (see subsection (1)).
27. Subsection (2) of this clause inserts new section 54A into the 2000 Act. Subsections (1) and (2) of new section 54A require the apparent donor of over £200 to a political party to make a declaration as to whether another person is providing them with any money or other benefit worth more than £200 in connection with the making of the donation. This is designed to reveal whether the person apparently making the donation is the true donor or is acting on behalf of someone else. If the person states that they are receiving a benefit worth more than £200 in connection with making the donation, but they are nonetheless the true donor, they must state why they believe this (subsection (3) of the new section).
28. Subsection (4) of new section 54A provides that the declaration must provide the full name and address of the person who makes it. If the declaration is made by a person authorised to do so on behalf of a body it must also state that the person is authorised to make it and describe their role or position in the body in question. Subsection (5) of new section 54A makes it a criminal offence for a person knowingly or recklessly to make a false declaration about a donation. Subsection (6) of the new section requires a party receiving a declaration to take all reasonable steps to verify it.
29. Subsection (7) provides that the Secretary of State may make provision in regulations as to how the value of a benefit is to be calculated for the purposes of subsection (2). By virtue of section 156 of the 2000 Act, the regulations must be made by statutory instrument, subject to the negative resolution procedure.
30. Subsection (3) of the clause makes changes to section 56 of the 2000 Act so that the donation, or an equivalent amount, must be returned to the person appearing to be the donor if a declaration under section 54A has not been received. Subsection (4) makes the party and the treasurer guilty of an offence for failure to do so.
31. Subsection (5) inserts in Schedule 6 to the 2000 Act a new paragraph 1A requiring that where a donation report is required to be made in respect of a particular donation the report must include a statement from the party confirming that a declaration under new section 54A has been received, that all reasonable steps have been taken to verify the declaration, and either that the party has no reason to suspect that the declaration is untruthful or, if it suspects it to be untruthful, why this is so. Schedule 6 is also amended so that where a donation is made without a declaration the party must report this to the Commission under paragraph 6 of the Schedule (subsection (6)).
32. Subsection (7) of the clause amends Schedule 20 to the 2000 Act to set out the sanctions for making a false declaration.
33. Subsection (8) gives effect to Schedule 3, which makes equivalent provision to the above in respect of regulated recipient, recognised third parties and permitted participants as defined by the 2000 Act. Subsection (9) provides that, after consultation with the Electoral Commission, the Secretary of State may by order amend the insertions made by this clause or the related Schedule, in their application to Northern Ireland; and may make consequential or supplemental provision. Subsections (10) and (11) require orders made under this provision to be by way of a statutory instrument, which is subject to affirmative resolution of both Houses.
34. Clause 9 amends section 56 of the 2000 Act by inserting a new subsection (3A). New subsection (3A) clarifies that if a party or a treasurer is charged with an offence of accepting an impermissible donation, the party or party treasurer will not be guilty if they can show that they took all reasonable steps to verify that the donation was from a permissible donor.
35. Restrictions on candidates expenses are currently imposed by Part 2 of the Representation of the People Act 1983 (the 1983 Act). Clause 10 amends Part 2 of the 1983 Act to change the point from which expenditure limits set out in section 76(2) of that Act start to apply.
36. Subsection (2) of this clause amends subsection (1) of section 90ZA of the 1983 Act so that, in relation to parliamentary general elections, the definition of election expenses in that Act (i.e. matters listed in Schedule 4A to the Act) is capable of applying to expenses used by a person prior to the dissolution of Parliament or a persons formal nomination or declaration as a candidate (as well as those used after then). Consequently, those expenses will be caught by the relevant expenditure limits provided that the expenses in question are incurred for the purposes of the candidates election.
37. Subsection (3) inserts new subsection (1A) into section 90ZA to make clear that whether election expenses that are incurred by a candidate at a parliamentary by-election or a local government election in England and Wales fall within the limit will continue to be determined by when the expenses are used: if they are used before the person becomes a candidate they will fall outside the limit, and if used after then they will fall within it.
38. Subsection (4) substitutes subsection (5) of section 90ZA to clarify that the expenditure limit will apply to expenses incurred by a person who becomes a candidate at a later date. Taken together, the effect of subsections (1) to (3) is that when determining whether election expenses are subject to the section 76 limits the key question will be whether the expenses in question are incurred for the purposes of the candidates election in a parliamentary general election. If they are incurred for this purpose, the time at which they are used, and whether or not at that time the person concerned is formally a candidate, will be immaterial.
39. Subsection (5) makes clear that the provisions in this clause will not apply to any expenses incurred before these provisions are commenced.
40. Clause 11 amends paragraph 14 of Schedule 4A to the 1983 Act. In addition to their existing power to issue guidance to candidates on the matters that are caught by the list of election expenses set out in paragraph 1 of that Schedule, the Electoral Commission will have a new power to issue guidance about the circumstances in which those expenses are to be regarded as having been incurred for the purpose of a candidates election.
41. Clause 12 introduces new arrangements designed to expedite the registration of eligible electors in the event of an election falling within a canvass period. Subsection (1) inserts new section 13BB into the 1983 Act, which enables electoral registration officers to amend the published register of electors before the election is held to show details of new electors or other changes that have been recorded on a canvass form.
42. Subsection (1) of the new section provides that the power to amend the register is triggered when an application for registration is made on a canvass form and notice of an election is published, the poll for which will be held in the period between 1 July and 1 December in the year of that canvass.
43. Subsection (2) of the new section provides that when the power to amend the register is triggered, the elector shall be treated as if they made their application for registration on the date the form is received by the returning officer or the date the notice of election is published, whichever is later. This subsection also allows the Secretary of State to prescribe circumstances in which the application should not be treated as made on either date (for instance where the elector has not yet taken up residence at the relevant address).
44. Subsection (3) of the section provides that the registration officer not determine an application as if it were made before the election if the canvass form was received by the returning officer after the last point at which it can be determined before the poll (currently the 11th day before the poll). Subsection (4) requires that amendments to the register must be made by way of a notice specifying the appropriate alterations. Subsection (5) provides that where, as a result of the determination that a person is entitled to be registered, that persons entry falls to be removed from the register for another area, and an election is going to be held in that other area during the canvass period, then the registration officer for the other area must (if they are informed about the determination in time) also amend their register to delete that persons entry.
45. Subsections (6) of the new section provides that a notice altering the register must be issued on the appropriate publication date (the 5th or 6th day before the poll) and that the alteration comes into effect from the beginning of the day on which it is published. Subsection (7) provides that the requirement to publish a notice altering the register will not apply if the registration officer publishes a revised register taking the changes into account before the 5th or 6th day before the poll date.
46. Subsection (2) of clause 12 inserts new subsection (1A) into section 13 of the 1983 Act. The effect of this new provision is that, in the event of an election taking place during the period from 1st July to 1st December, the electoral registration officer may suspend publication of the electoral register from 1st December until 1st February in the following year to allow time to compile the revised register.
47. Clause 13 substitutes a new definition of local returning officer for that in section 6(5A)(a) of the European Parliamentary Elections Act 2002. The effect of the new definition is that the local returning offices for European Parliamentary elections held in England, Wales and Scotland will be the persons who are returning officers for local authority elections in those countries rather than the persons who are returning officers for UK Parliamentary elections.
48. Clause 14 defines phrases which are used in the Bill.
49. Clause 15 gives effect to Schedules 4 and 5, which contain minor and consequential amendments and repeals.
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