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Clause 12: Election expenses: guidance by the Commission
50. Clause 12 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 candidate’s election.
Clause 13: Election falling within canvass period
51. Clause 13 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.
52. 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.
53. 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).
54. 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 person’s 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 person’s entry.
55. Subsection (6) of the new section provides that a notice altering the register must be issued on the appropriate publication date (the fifth or sixth 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 fifth or sixth day before the poll date.
56. Subsection (2) of clause 13 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.
Clause 14: Disposal of election documents in Scotland
57. Clause 14 amends section 63 of, and Schedule 1 to the Representation of the People Act 1983. The amendment to Schedule 1 substitutes a revised rule 58, which confers responsibility for the storage of, and provision of access to, the election records and documents for a UK Parliamentary election in Scotland on the Parliamentary Returning Officer for the election.
Clause 15 - Filling vacant European Parliament seats in Northern Ireland
58. Clause 15 amends section 5 of the European Parliamentary Elections Act 2002 to extend the power to make regulations in respect of filling vacant seats for Northern Ireland in the European Parliament. Currently, section 5 of the 2002 Act only provides for regulations to be made in respect of by-elections or where a seat has been filled using a party list. The party list system does not operate in Northern Ireland and the effect of section 5 is that a by-election must ensue if a seat for Northern Ireland in the European Parliament is vacated during term.
59. Subsection (1) of clause 15 inserts new subsections (4) and (5) into section 5 of the 2002 Act. New subsections (4) and (5) provide a power for the Secretary of State to make regulations requiring a vacant European Parliament seat in Northern Ireland to be filled in two different ways. Subsection (4) provides that where the previous MEP was a member of a registered party when returned regulations may require the vacancy to be filled by a person nominated by the nominating officer of that registered party. If the previous MEP was not a member of a registered party when returned, the regulations may provide for a person named in a list of possible replacements submitted by the previous MEP to fill the vacancy.
60. As further regulations will be required to give full effect to the new policy, subsection (2) of clause 15 makes transitional provision to ensure that arrangements provided for in the regulations made under the new subsections inserted by subsection (1) may have effect in relation to any vacancy arising before clause 15 comes into force but in respect of which a notice of by-election has not yet been issued.
Clause 16: Local Returning Officers for elections to the European Parliament
61. Clause 16 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.
Clause 17: CORE Information and action to be taken by electoral registration officers
62. Clause 17 amends section 2 of the Electoral Administration Act 2006 (“the 2006 Act”) in relation to the Co-ordinated Online Record of Electors (“CORE”).
63. The amendments in subsection (2) extend the circumstances of which the CORE keeper is required to inform an electoral registration officer (ERO) in accordance with section 2(5) of the 2006 Act. Their effect is that the CORE keeper must inform an ERO where more than a specified number of postal votes are requested in respect of the same address, and where the same person is appointed as, or votes as, proxy for more than two electors.
64. Subsections (3) and (5) extend the order-making powers of the Secretary of State in relation to the establishment of a CORE scheme. Subsection (3) inserts new subsection (6A) into section 2 of the 2006 Act, which provides that where the CORE keeper informs an ERO of the circumstances in section 2(6) of the 2006 Act or of any suspicions that the CORE keeper has concerning the commission of an offence under the 1983 Act, or other impropriety, a CORE scheme may require the ERO to respond by taking such steps, if any, as appear to be appropriate to the ERO. It also provides that a CORE scheme may require an ERO to notify the CORE keeper of the steps taken, or of the reasons for not taking any. The amendments in subsection (5) enable the CORE scheme to authorise an ERO to share information with another ERO when responding to information provided by the CORE keeper.
65. Subsection (4) enables the CORE keeper to provide an ERO with such information as the CORE keeper thinks is relevant about suspicions that the CORE keeper has concerning the commission of an offence under the 1983 Act or other impropriety.
Clause 18: Interpretation
66. Clause 18 defines phrases which are used in the Bill.
Clause 19: Amendments and repeals
67. Clause 19 gives effect to Schedules 4 and 5. Schedule 4 makes minor and consequential amendments and Schedule 5 is the repeals Schedule.
Clause 20: Transitional provision
68. Clause 20 is a transitional provision which is needed because certain provisions of the Criminal Justice Act 2003 increasing the power of magistrates’ courts to impose imprisonment (in England and Wales) are not yet in force.
Schedule 1: Investigatory powers of the Commission: Schedule to be inserted into the 2000 Act
69. Schedule 1 of the Bill contains new Schedule 19A to the 2000 Act. This gives the Electoral Commission increased investigatory powers.
70. Paragraph 1 of the new Schedule restates with some changes powers that the Electoral Commission have in relation to registered parties and others and which are contained in the current section 146 of the 2000 Act. Sub-paragraph (1) lists the individuals and organisations to which the investigatory powers set out in paragraph 1 can be applied. Broadly, these individuals and organisations are those considered to be the primary focus of the Commission’s function of monitoring compliance as, together, they are the individuals and organisations on whom obligations under the 2000 Act are principally imposed. The substantive difference between the powers contained in paragraph 1 and those contained in its precursor in the original section 146 is that the power of entry contained in subsection (3) of the latter was restricted so that it could be used only in relation to registered parties, recognised third parties or permitted participants. Paragraph 1 enables that power also to be used in relation to regulated donees, candidates and their agents.
71. Sub-paragraphs (2) and (3) allow the Commission, after issuing a “disclosure notice”, to require an individual, or an officer of an organisation, to produce or provide documents or an explanation in relation to income or expenditure where the information in question is reasonably required by the Commission to carry out their functions. Sub-paragraph (4) obliges the person to comply with a requirement set out in a disclosure notice within a reasonable time. It is a criminal offence not to do so without reasonable excuse, under paragraph 12 of the Schedule.
72. Sub-paragraph (5) enables a person authorised by the Commission to enter premises at any reasonable time and inspect relevant documentation, to enable the Commission to carry out their functions. The use of the power in sub-paragraph (5) is subject to paragraph 2(6). Paragraph 2(6) provides that the Electoral Commission may not use its power under sub-paragraph (5) to enter premises and inspect documents for the purposes of an investigation by the Commission of a suspected offence or contravention in relation to which powers under paragraphs 2 and 3 are available.
73. Paragraph 2 provides the Commission with a new power in cases where they form a reasonable suspicion that an offence under the 2000 Act has been committed or that a contravention of any restriction or requirement of the Act has taken place. Where the Commission hold such a suspicion they may, under sub-paragraph (2), issue a notice to a person requiring that person to produce or provide any documents or explanation reasonably required for an investigation by them of the suspected offence or contravention. Sub-paragraph (3) obliges the person to comply with the disclosure notice within a reasonable time. It is a criminal offence not to do so without reasonable excuse, under paragraph 12 of the same Schedule. This power is wider than that set out in paragraph 1 because it is not restricted to documentation or information relating to income or expenditure nor is it restricted to a list of specified individuals or bodies.
74. Sub-paragraph (4) allows an investigator authorised by the Commission to require a person to come and answer in person any questions that the investigator reasonably considers relevant to the investigation. The powers created by paragraph 2 can be used in relation to a person who is also covered by paragraph 1, albeit for a different purpose (i.e. that of investigating purported wrongdoing), and may be used against any other person who holds, or is thought to hold, information reasonably required for an investigation by the Commission. It follows that use of the power is not limited to the individual or body suspected by the Commission of having committed an offence or contravention.
75. Paragraph 3 allows a justice of the peace (or a sheriff in Scotland) to issue a warrant, following the giving of information on oath by the Commission, if satisfied that there are reasonable grounds for believing that there has been an offence under, or contravention of, the 2000 Act and that there are certain documents on any premises. These may be documents that a person has failed to produce in response to a disclosure requirement under paragraph 2(2), or they may be other documents relevant to an investigation by the Commission of the suspected offence or contravention.
76. Sub-paragraph (3) provides that the warrant authorises a constable to use reasonable force to enter the premises, to search the premises and to take other necessary steps in order to take possession of and preserve the documents to which the warrant relates. It also authorises the constable to require an explanation about the documents or their location from any person named in the warrant. Sub-paragraph (4) specifies that a warrant issued under this paragraph will be valid for one month.
77. Paragraph 4 specifies that no application can be made for a warrant to enter and search premises without the written authorisation of the chief executive of the Commission, or where the office of the chief executive is vacant or the chief executive is absent or unable to act, a member of staff of the Commission who the chief executive considers to have sufficient seniority and experience and who they have previously designated for these purposes and whose designation is still in force.
78. Paragraph 5 specifies that documents seized under paragraph 3 may be retained for three months. However, if during that time any relevant criminal proceedings are begun, or notices are issued or penalties imposed under the new civil sanctions powers given by Schedule 19B, the documents may generally be retained until they are no longer required in relation to the proceedings or civil sanctions.
79. Paragraph 6 provides that the Commission, or a person authorised by the Commission, may make copies or records of relevant information or explanations obtained under the Schedule.
80. Paragraph 7 requires that any authorisation of a person by the Commission made under this Schedule must be in writing.
81. Paragraph 8 requires the person entering premises to provide evidence of their right to do so if the person on the premises asks for this.
82. Paragraph 10 deals with documents held in electronic form. Sub-paragraph (1)(a) gives the Commission a power to require such documents to be made available in a legible, non-encrypted form. Sub-paragraph (1)(b) enables a person authorised to inspect documents to require any person on premises being searched to give reasonable assistance to allow the inspector to make legible copies of electronic documents, or records of information contained in them. Under this power an inspector can also inspect and check any computer or associated apparatus used in connection with the information.
83. Paragraph 11 exempts information subject to legal professional privilege (or confidentiality of communications in Scotland) from any requirement to produce information (in whatever form) under any power provided by this Schedule. The appropriate test is whether a claim to legal professional privilege or confidentiality of communications could be maintained in legal proceedings in respect of the material in question.
84. Paragraph 12 deals with the admissibility of statements provided under compulsion. Sub-paragraph (1) provides that a statement made in response to a requirement under the Schedule may be used in any proceedings, provided that it complies with any other rules of evidence in those proceedings. But sub-paragraph (2) provides that the statement is not admissible against the maker of the statement in criminal proceedings or proceedings under the new Schedule 19B, unless evidence about the statement is relied on, or a question about it is asked, by the maker, or unless the proceedings are for an offence mentioned in sub-paragraphs (3) and (4). (These offences are similar to perjury.)
85. Paragraph 13 provides that it is an offence to fail to comply with any requirement imposed under the Schedule (for example, to refuse to supply the Commission with information requested under paragraph 1 or 2); to obstruct intentionally somebody performing functions under the Schedule; or knowingly or recklessly provide false information in response to a requirement imposed under the Schedule.
86. Paragraph 14 imposes a duty on the Electoral Commission to publish guidance on the matters set out in sub-paragraph (1), which concern the ways in which it will make use of the investigatory powers set out in Schedule 19A. Sub-paragraph (2) obliges the Commission to keep the guidance under review, and sub-paragraph (3) places a requirement on the Commission to consult such persons as they consider appropriate before publishing guidance or revised guidance. Sub-paragraph (4) requires the Commission to have regard to the guidance or revised guidance in exercising their functions.
87. Paragraph 15 requires the Electoral Commission to report on its use of the investigatory powers contained in new Schedule 19A to the 2000 Act (contained in Schedule 1 to the Bill), in its annual report which it lays before Parliament under paragraph 20 of Schedule 1 to that Act.
88. Sub-paragraph (2) explains what information the Commission must include in the report on the use of its investigatory powers. Sub-paragraph (3) exempts the Commission from having to report any information that, in their opinion, it would be inappropriate to include because it would be unlawful or because it would prejudice an ongoing investigation or proceedings.
Schedule 2: Civil sanctions: Schedule to be inserted into the 2000 Act
89. Schedule 2 to the Bill inserts new Schedule 19B into the 2000 Act. It sets out the range of new civil sanctions available to the Commission.
Part 1: Fixed monetary penalties
90. Paragraph 1 allows the Electoral Commission to impose fixed monetary penalties where they are satisfied beyond reasonable doubt that a prescribed offence under the 2000 Act has been committed or that a contravention of a prescribed requirement or restriction contained in that Act has taken place. “Prescribed” means prescribed in an order by the Secretary of State. Under sub-paragraph (1) a fixed monetary penalty can be imposed on a person who has committed the breach. Sub-paragraphs (2) to (4) allow the Commission to impose a fixed monetary penalty on a political party, a recognised third party or a permitted participant respectively. In the case of a registered party the notice may be served on the party itself if the Commission is satisfied beyond reasonable doubt that a person holding office within the party has committed an offence or contravened a requirement. In the case of a recognised third party or a permitted participant the Commission may impose a penalty on the responsible person where it is satisfied beyond reasonable doubt that an offence has occurred or a requirement has been contravened.. Sub-paragraph (5) explains that the imposition of a fixed monetary penalty will require the individual or other person concerned to pay a prescribed amount of money to the Commission. Sub-paragraph (6) states that where an individual is issued with a fixed monetary penalty for an offence which is triable summarily (whether or not it can also be tried on indictment) and punishable on summary conviction by a fine, the penalty imposed must not be higher than the maximum fine available in summary proceedings.
91. Paragraph 2 sets out the representations and appeals processes. Sub-paragraph (1) requires the Commission to serve notice of any intention to impose a fixed monetary penalty on a person. This notice must offer the person the opportunity to discharge the penalty at that point by paying a prescribed amount, which cannot exceed the amount of the proposed penalty (sub-paragraph (2)). Alternatively, the person can opt to make written representations and objections to the Commission against the proposal to impose the penalty (sub-paragraph (3)). If the deadline for making representations and objections passes without the person having paid the prescribed amount under sub-paragraph (2), the Commission must decide whether to impose the penalty. If the Commission does decide to impose it, a further notice recording that must be served on the relevant person (sub-paragraph (4)). Sub-paragraph (5) provides that if the person’s representations have raised any matter that leads the Commission to no longer suspect the person of having committed a prescribed offence or contravened a prescribed requirement or restriction of the 2000 Act, the Commission may not impose the penalty. That sub-paragraph also enables the Secretary of State to prescribe other circumstances in which a penalty may not be imposed. The person may appeal against the decision to impose the penalty on the grounds set out in sub-paragraph (6). Sub-paragraph (7) specifies that these appeals will be made to a county court, or in Scotland the sheriff.
92. Paragraph 3 explains what information the Commission must include when giving notice of an intention to impose a fixed monetary penalty on a person or when giving notice of a subsequent decision to impose the penalty. This must include information such as the grounds for imposition of the sanction, the right to make representations or appeals and the time periods in which these can be made.
93. Paragraph 4 limits the criminal proceedings that can be taken against a person for a prescribed offence or other breach of the 2000 Act that may be dealt with by way of fixed monetary penalty. Under sub-paragraph (1) if the Commission notifies the person of their intention to impose a fixed monetary penalty for the breach, no criminal proceedings for the breach can be brought during the period when liability can be discharged under paragraph 2(2). This sub-paragraph also precludes such proceedings being taken against a person who does discharge liability by making a payment under paragraph 2(2). Finally, paragraph 4(2) precludes a person on whom the Commission imposes a fixed monetary penalty under paragraph 2(4) from being convicted of an offence for the breach.
Part 2: Discretionary requirements
94. Paragraph 5 allows the Electoral Commission to impose a discretionary requirement on a person, political party, recognised third party or permitted participant where they are satisfied, beyond reasonable doubt, that a person has committed a prescribed offence or contravened a prescribed restriction or requirement of the 2000 Act (sub-paragraphs (1) to (4)). Sub-paragraph (5) defines a discretionary requirement as a sanction that can take the form of a monetary penalty or, alternatively, an instruction to take certain actions designed to either prevent the recurrence of the offence or contravention or restore the position to what it would have been had the offence or contravention not occurred. Sub-paragraph (6) limits the use of discretionary requirements by preventing the Commission from imposing a discretionary requirement on a person more than once for the same act or omission. Sub-paragraph (8) sets the financial limit of a variable monetary penalty for offences which are triable summarily, stating that, where such offences are punishable by a fine, the variable monetary penalty must not be greater than the maximum fine.
95. Paragraph 6, sub-paragraph (1) requires that, where the Commission intends to impose a discretionary requirement on a person for a prescribed offence or other breach of the 2000 Act, they must first notify the person of their intention. Sub-paragraph (2) allows the person to make written representations and objections to the Commission against the proposed penalty. If anything is raised which leads the Commission to no longer be satisfied that the prescribed offence or contravention took place, the Commission may not impose the penalty (sub-paragraph (4)). In all other cases, the Commission may proceed to serve on the person a notice formally imposing the discretionary requirement, which will specify what the requirement is (sub-paragraph (5)). The person may appeal to a county court (or Sheriff in Scotland) against the decision to impose the discretionary requirement, on a number of specified grounds (sub-paragraph (6)).
96. Paragraph 7 explains what information the Commission must include when giving the initial notice of an intention to impose a discretionary requirement on a person. This includes the grounds for imposing the requirement and the period for appeal (no less than 28 days from the day on which the notice is received). Sub-paragraph (3) sets out the information that must be provided by the Commission when they are imposing a discretionary requirement. This is: the grounds for the proposed discretionary requirement, details of any monetary penalty, rights of appeal and the consequences of non-compliance.
97. Paragraph 8 limits the use of other sanctions against a person who has had a discretionary requirement imposed upon them. It explains that if a discretionary requirement is imposed on a person for an offence or a contravention of a restriction or requirement under the 2000 Act, this protects them from being convicted in a criminal court for the same offence. However, this protection from future prosecution does not apply in cases where the discretionary requirement imposed was non-monetary, no variable monetary penalty was imposed, and the person failed to comply with the non-monetary discretionary requirement.
98. Paragraph 9 allows the Commission to impose a “non-compliance penalty” on a person who fails to comply with a non-monetary discretionary requirement; and also sets out the grounds and avenue of appeal against a non-compliance penalty (sub-paragraphs (3) and (4)).
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