Campaign
Section 13 - Campaign rules
170.Section 13 introduces schedule 3, which makes provision about the conduct of campaigning in the referendum. This includes limiting the expenses that can be incurred by campaigners, restricting publication of certain material and controlling donations and loans and credit to certain campaigners.
Section 14 - Monitoring and securing compliance with the campaign rules
171.Section 14 of this Act gives the Electoral Commission responsibility for monitoring and securing compliance with the rules which regulate campaigning at the referendum contained in schedule 3. It also gives the Commission power to issue guidance on how to comply with the requirements or restrictions. The section introduces schedules 4 and 5 which replicate the Commission’s usual investigatory powers and power to impose civil sanctions to help them fulfil their duties under section 14.
Section 15 - Inspection of Electoral Commission’s registers etc.
172.Under section 15, the Commission must make the register of declarations they hold under schedule 3 paragraph 6, available for public inspection, either in their offices or at a location deemed convenient by them, by arrangement, or by providing a copy. The Commission are entitled to charge a reasonable fee for this service.
Section 16 - Campaign rules: general offences
173.Section 16 specifies that a person commits an offence by altering, suppressing, concealing or destroying a document liable to be produced for inspection, in order to falsify the document or circumvent the campaign control provisions of this Act contained in schedules 3 to 5. It is also an offence for an office-holder in a supervised organisation (that is, a permitted participant as defined in schedule 3 paragraph 2 other than an individual) to fail to provide information to an individual who is a permitted participant, or to the responsible person as defined in schedule 7) without a reasonable excuse, or to knowingly provide false information. It is also an offence for a person to withhold information required for the purposes of schedules 3 to 5 from the responsible person or individual who is a permitted participant where there is intent to deceive. Offences under this section can be prosecuted by summary proceedings or on indictment, and carry a penalty of imprisonment or a fine, or both.
Section 17 - Campaign offences: summary proceedings
174.Section 17 sets out that summary proceedings under section 16 or schedules 3 to 5 may be taken in respect of a body at any place where it has a place of business and, in the case of an individual, at any place where that individual is for the time being. Subsection (2) disapplies the time bar in section 136 of the Criminal Procedure (Scotland) Act 1995 and allows criminal proceedings to be commenced at any time within three years after the offence is committed, or within six months of the prosecutor having knowledge of sufficient evidence to justify proceedings.
Section 18 - Duty of court to report convictions to the Electoral Commission
175.Section 18 places an obligation on the courts to notify the Electoral Commission of a conviction for any offence under section 16 or schedules 3 to 5 of this Act as soon as practicable after it arises.
Schedule 3: Campaign rules
Part 1: Interpretation
176.Paragraph 1 contains definitions of words and phrases used in the schedule and also sets out which individuals and organisations are permissible donors for referendum purposes. It should be noted that in this Act, unlike in the Political Parties, Elections and Referendums Act 2000, Scottish Partnerships (paragraph 1(2)(l)) are separately identified. This Act was drafted in this way, not because Scottish Partnerships were not permissible donors under the 2000 Act, but for clarity and ease of understanding in the Scottish context.
Part 2: Permitted participants and designated organisations
177.Paragraph 2 of schedule 3 provides that if an individual or an organisation (including a political party) wishes to spend more than £10,000 (a limit set by schedule 3, paragraph 19) on campaigning, they will have to declare to the Electoral Commission the outcome they will campaign for at the referendum. Paragraph 2 also sets out the criteria that individuals and bodies must fulfil to be eligible to become permitted participants.
178.Paragraph 3 sets out the requirements for the declarations. Declarations made by a registered political party must be signed by the responsible officers of the party (usually the treasurer) or in the case of a minor party (one that contests only one or more parish or community election) it must include the name of the person who will be responsible for the party’s compliance with the referendum campaign rules.
179.Declarations made by individuals wishing to become permitted participants must be signed by the individual and give their full name and home address.
180.Declarations made by registered companies; trade unions; building societies; limited liability partnerships; friendly societies and unincorporated associations of two or more must be signed by the secretary or similar office bearer of the body and must include the name and address of the organisation, including, in the case of a company, its registered number. Unincorporated associations must provide additional details of their officers (if they have more than 15 members) or their members.
181.Declarations made by bodies incorporated by Royal Charter, charitable incorporated organisations and partnerships must be signed by the secretary or similar office bearer of the body and must include the name and address of the body’s principal office or main office in the United Kingdom.
182.Declarations to be a ‘permitted participant’ must be accompanied by a signed statement from the responsible person confirming that they are willing to exercise the functions conferred on the responsible person.
183.Paragraph 4 provides that the Electoral Commission may reject a declaration given by an unincorporated association with a name that is, in the opinion of the Commission, obscene, offensive, criminal or is either the same as, or similar to, the name of an existing permitted participant so as to be likely to result in confusion. Where an unincorporated association seeks to change its name on the register to one that, in the opinion of the Electoral Commission, fits those criteria, the Commission do not have to enter the name on the register, or make public any documents bearing that name, although the fact that the name is not entered in the register does not mean that the association ceases to be a permitted participant.
184.Paragraph 5 prohibits a responsible person for a permitted participant from making a declaration under paragraph 2 as or on behalf of another permitted participant. If an individual is a permitted participant and also treasurer of a registered party other than a minor party, the individual ceases to be a permitted participant if the party registers as a permitted participant. A declaration by a qualifying body or minor party will be considered not to satisfy the requirements of paragraph 3(1)(b), 3(3)(a)(ii) or 3(5)(a)(ii) to notify who is the responsible person for a permitted participant if the intended responsible person is already a responsible person for another permitted participant or a permitted participant in their own right. References to treasurers are to be read in some circumstances as references to campaigns officers.
185.Paragraph 6 places a duty on the Electoral Commission to create and maintain a register of declarations made by registered parties, individuals and other organisations who wish to become permitted participants in the referendum. The register must not include the home address of an individual who has made a declaration.
186.Paragraphs 7 and 8 provide that a permitted participant may apply to the Electoral Commission to be the principal campaign organisation representing one of the outcomes of the referendum. These permitted participants are called ‘designated organisations’ and have a higher campaign spending limit (full limits are set out in paragraph 20 of schedule 3). Paragraph 8 specifies the form that applications must take and sets out the timetable for applications and for the Electoral Commission’s decision. It provides that where only one application has been made respect of a particular outcome, the Electoral Commission must make the designation provided they are satisfied that the applicant is adequately representative of those campaigning for that outcome. Where there is more than one application in respect of a particular outcome, the Commission must designate whichever of the applications appears to represent to the greatest extent those campaigning for that outcome (unless they are not satisfied that any of the applicants is adequately representative). The Commission may designate an organisation in relation to any of the possible outcomes under paragraph 7(3). The Commission may designate the same organisation for more than one of the possible outcomes under paragraph 7(4).
187.Paragraph 9 provides that designated organisations are entitled to use school rooms or meeting rooms in publicly maintained buildings for public campaign meetings during the 28 day period before the referendum is held.
188.Paragraph 10 requires the designated organisation to contact the education authority in advance if it wishes to use a school room and entitles it to inspect a list of the rooms that are available for its use.
Part 3: Referendum expenses
189.Paragraph 11 defines referendum expenses as any of the activities specified in paragraph 12 which are incurred in the conduct or management of a referendum campaign, or are incurred in connection with promoting or procuring any particular outcome in the referendum.
190.Paragraph 12 sets out different types of activities which qualify to be counted as referendum expenses. Sub-paragraph (2) confirms that the definition of referendum expenses does not extend to any expenses which fall to be met out of public funds (see paragraph 1(4) and (5) of schedule 3), any campaign staff costs, reasonable expenses attributable to individuals’ disability, reasonable expenses incurred for providing security at rallies or public events, reasonable expenses attributable to the translation of material into languages other than English, any expenses incurred by an individual which are not reimbursed, or any expenses related to the publication of material about the referendum which is not an advertisement.
191.Sub-paragraphs (3) to (5) give the Electoral Commission a power to issue guidance on the different kinds of expenses that qualify as referendum expenses, and requires them to provide a copy of this guidance to Scottish Ministers, who will lay a copy before the Scottish Parliament.
192.Paragraph 13 deals with the concept of notional referendum expenses, where an individual or body is given property or allowed to use property, services or other facilities either free of charge or at more than 10% discount from the market rate for their use, for the purposes of campaigning for an outcome in the referendum. Notional expenses are counted towards the referendum expenses limit of the individual or body. There are four situations where notional expenses are calculated:
Where a property is provided free of charge, the ‘appropriate amount’ of expenses is calculated as a reasonable proportion of the market value of the property taking into account the use of the property.
Where the property is provided at a discount of more than 10%, the appropriate amount of expenses is the reasonable proportion of the difference between the market value of the property and the amount actually spent.
Where property, services or other facilities are provided free of charge, the appropriate amount of expenses is calculated as a reasonable proportion of the commercial rate for their use of the property taking into account the use of the property.
Where property, services or other facilities are provided at a discount of more than 10%, the appropriate amount of expenses is the reasonable proportion of the difference between the commercial rate for their use and the amount actually spent.
193.Where an employer makes the services of an employee available to the individual or body, the notional referendum expenses are taken to be the person’s salary (but not other payments such as bonus payments for example) during the time they are working on behalf of the individual or body.
194.The effect of sub-paragraphs (9) and (10) is that only the proportion of the expenses incurred for the use of the property, services, facilities or employees during the referendum period (the referendum period is defined in schedule 7 as the “period of 10 weeks ending with the date of the referendum”) is to be declared by a permitted participant in a return to the Electoral Commission. Only notional referendum expenses of over £200 need be declared. Notional referendum expenses do not include the costs associated with the transmission of a referendum campaign broadcast, any free mailshot of referendum material, or the use of public rooms under paragraphs 9 and 10 for designated organisations. Time or services given voluntarily by an individual are also excluded. Under sub-paragraph (11), someone who makes a false declaration in the return commits an offence.
195.Paragraph 14 requires that any expenditure incurred on behalf of a permitted participant must have the authority of the responsible person (e.g. its treasurer or other named officer as defined in schedule 7) or someone authorised in writing by the responsible person. Anyone who spends money without this authority commits an offence.
196.Similarly, paragraph 15 requires that any payment made by the permitted participant in connection with referendum expenses must have the authority of the responsible person or someone authorised in writing by the responsible person and there must be an invoice or receipt for any payment over £200. When a payment of over £200 is made by someone authorised by the responsible person, that person must notify the responsible person that the payment has been made and give the responsible person the relevant invoice or receipt. If anyone fails to follow these rules they commit an offence.
197.Paragraph 16 requires someone with a claim for payment of referendum expenses to submit it to the permitted participant’s responsible person or someone authorised by the responsible person within 30 days of the date of the referendum. Claims can be submitted beyond the 30-day period if the Electoral Commission agree that it is appropriate to do so. All other claims must be paid within 60 days of the date of the referendum. Paying a claim after that time is an offence. Paying a claim that should not be paid is also an offence. Any other rights a creditor of the permitted participant may have in relation to payment (for example right to earlier payment under a contract agreed by the creditor and permitted participant) are not affected by the timescale for payment of not later than 60 days after the referendum period.
198.Sub-paragraph (8) of paragraph 16 applies section 77(9) and (10) of the Political Parties, Elections and Referendums Act 2000, to prevent the 30 and 60-day periods from ending on a Saturday, Sunday or other national day of thanksgiving, mourning or holiday.
199.Where the permitted participant’s responsible person (or someone allegedly authorised to incur the expenditure) fails or refuses to pay a claim for referendum expenses within 60 days of the date of the referendum, this is known as a ‘disputed claim’. Paragraph 17 allows the person who made the claim to bring a court action to decide whether the claim ought to be paid, whether the 60-day period has passed or not. The court may consider whether there is a special reason for the claim to be paid if it was submitted after the 30-day period was over. Paragraph 18 confirms that the rights of the creditors of permitted participants to receive payments due to them are not affected by a permitted participant having incurred expenditure or spent money when prohibited by the campaign rules in schedule 3 from doing so, so long as the creditor was unaware that the contract or expenditure contravened those rules.
200.Paragraph 19 sets a spending limit of £10,000 in the referendum campaign for individuals or bodies that are not permitted participants. Sub-paragraphs (8) to (10) include within the £10,000 limit the appropriate sum of notional referendum expenses for property, services or facilities incurred before or during the referendum period. If that limit is exceeded, then the individual or body is guilty of an offence, and in the case of a body, the person who authorised the expenses is also guilty of an offence if that person knew or should have known that the limit would be exceeded as a result of the payment. It is a defence for an individual or body to show that they complied with a code of practice issued by the Electoral Commission at the time of deciding whether to incur the expense, and in so doing, had not exceeded the spending limit at that time.
201.Paragraph 20 sets out the spending limits for permitted participants during the referendum period. Where a permitted participant is a designated organisation, they will have a campaign spending limit of £1,500,000. Permitted participants who are registered political parties and for whom constituency and regional votes were cast in the last election for the Scottish Parliament before the relevant day will have a spending limit of whichever is the greater of £3,000,000 multiplied by their percentage share of the votes cast at that election, or £150,000. The ‘relevant day’ is the day on which any Act, or regulations made under an Act, providing for a referendum come into force.
202.Permitted participants who are not designated organisations or political parties will have a limit of £150,000. If a permitted participant is a member of a designated organisation (but not the organisation itself), that will not affect their separate entitlement to incur expenditure up to their own limit. Sub-paragraphs (8) to (10) of paragraph 19 also apply to these spending limits the notional appropriate sum of property, services or facilities incurred before or during the referendum period. Any referendum expenses incurred before the individual or body became a permitted participant also count towards the spending limit and should be noted in their expense return to the Electoral Commission.
203.Breach of the spending limits is treated as an offence, in the case of a political party, both by the party itself and by its responsible person or deputy treasurer. If the permitted participant is an individual, then the individual is guilty of the offence and, if the permitted participant is some other body, then both the body and the responsible person are guilty of the offence if the spending limits are exceeded. As with those who are not permitted participants, it is a defence to show that they had complied with a code of practice issued by the Electoral Commission at the time of deciding whether to incur the expense, and in so doing, had not exceeded the spending limit at that time.
204.Paragraph 21 makes provision for campaigners working together as part of a common plan or arrangement, to provide a co-ordinated message to voters, while preventing an organisation or body declaring themselves a permitted participant under a number of different names in order to take advantage of multiple spending limits. Referendum expenses incurred by two or more permitted participants working together to a common plan or arrangement are to be treated as counting towards the spending limits of each permitted participant for the purposes of the spending limits in paragraphs 19 and 20. Such expenditure also counts towards the spending limit of a non-permitted participant, if one is involved in the common plan or arrangement. To allow a designated organisation to lead co-ordinated activity amongst campaigners, where a designated organisation is involved in a common plan, the designated organisation is taken to have incurred the total amount of common plan expenditure, and the other participants do not count any common plan expenditure against their individual spending limits. Any unregistered campaigner who spends more than £10,000 as part of a common plan with a designated organisation is, however, required to register as a permitted participant. Unregistered campaigners who spend less than £10,000 in a common plan with a designated organisation are effectively exempt from the common plan rules. These rules on working together do not apply unless there is a designated organisation for each of the possible outcomes in the referendum.
205.Paragraph 22 requires each permitted participant to provide a report to the Electoral Commission about its finances including its spending, any disputed claims in which it was involved, unpaid claims and any relevant donations it has received (with the exception of registered political parties, which are separately required under UK legislation to submit a return about their donations to the Electoral Commission). The report must also include details of any expenditure incurred by or on behalf of an individual, body or permitted participant which must be treated as expenses incurred as part of a common plan under paragraph 21 of schedule 3, including any expenses which were incurred on behalf of a permitted participant before they became a permitted participant.
206.This report or ‘return’ must include all invoices and receipts in relation to expenditure and a statement identifying the amount of any notional referendum expenses incurred. The return need not include details of, but must be accompanied by a declaration of the total amount of, any referendum expenses incurred before the individual or body became a permitted participant. The Electoral Commission have a power under sub-paragraph (15) to issue guidance about the form to be used for the return. Those who are not permitted participants do not need to submit a return to the Commission.
207.Paragraph 23 requires permitted participants that have spent over £250,000 to submit an auditor’s report on their financial return to the Electoral Commission. The auditor has the right to access the permitted participant’s books and other paperwork and the responsible person must provide any relevant additional information that the auditor requires for the purposes of the audit. If the responsible person fails to do so, the Commission may direct them to do so. If the responsible person fails to comply with the written directions of the Commission, the Commission can apply to the Court of Session to deal with the person as if they had failed to comply with a court order. A deliberately misleading, deceptive or false statement, whether oral or in writing, by the responsible person to an auditor about the finances of the designated organisation is an offence under sub-paragraphs (5) and (6) of paragraph 23.
208.Under paragraph 24, returns which require an auditor’s report must be submitted to the Commission within six months of the date when the referendum took place. Returns that do not need an auditor’s report must be submitted to the Commission within three months. Where the Electoral Commission decides that a claim for expenses that was submitted after the 30-day deadline should be paid (under paragraph 16), the responsible person must, within seven days of the payment, submit to the Commission a return detailing the payment. The responsible person commits an offence by failing to comply with the requirements of this paragraph.
209.Paragraph 25 requires the responsible person to sign the return and provide a declaration to the effect that they have examined the return and to the best of their knowledge and belief it is complete and correct and all expenses in the return have been paid by the responsible person or someone authorised by them. Where the permitted participant is not a registered political party, the declaration must also state that all relevant donations recorded in the return have been accepted from permissible donors and that no other donations have been accepted. The responsible person commits an offence if they knowingly or recklessly make a false declaration in the return.
210.Paragraph 26 requires the Commission to make a copy of the returns they receive from permitted participants under paragraph 22 available for public inspection while the return is in the Commission’s possession. The Commission must ensure that where a donor is an individual rather than an organisation, the donor’s address is not made public in the statement of relevant donations. A similar restriction applies where the return contains information about a regulated transaction. If the transaction was entered into with an individual, the individual’s address should not be made public. The Commission have a power to destroy returns and any other papers they receive once two years have passed since they first received them, or else at the responsible person’s request the Commission must send the return and other papers back to the permitted participant.
Part 4: Publications
211.Paragraph 27 provides that, for the 28-day period ending with the date of the referendum, the Scottish Ministers and certain public authorities in Scotland cannot publish any material providing general information about the referendum, dealing with issues raised by the question to be voted on in the referendum, putting any arguments for or against a particular answer to the question to be voted on, or which is designed to encourage voting in the referendum. However, this rule does not apply to information made available following a specific request; specified material published by or under the auspices of the Scottish Parliament Corporate Body; any information from the Electoral Commission, a designated organisation, the CCO, any other counting officer or registration officer; or to any published information about how the poll is to be held.
212.Under paragraph 28, printed material associated with the referendum cannot be published unless it meets the following requirements:
If the material is contained on a single side of a printed page, then the name and address, which can include a PO box, of the printer, the promoter and the person on behalf of whom the material is being published must be on the face of the document.
If the printed material is not on a single sided page, then those names and addresses must appear on the first or last page of the document.
If the printed material is a newspaper or periodical advertisement, then the name and address of the printer of the newspaper or periodical must appear on its first or last page and the names and address of both the promoter and the person on behalf of whom the material is being printed must be in the advertisement.
213.The rule also prevents non-printed material associated with the referendum, such as material on the internet, from being published unless it includes the name and address of the person on behalf of whom the material is being published. There are exceptions if the material is published by an individual, expresses their own personal opinion and is published on their own behalf with no payment involved or where the material cannot reasonably be regarded as being published with a view to promoting or procuring a particular outcome at the referendum. The exception for individuals from the requirement to include an imprint of name and address details on referendum materials does not extend to permitted participants, their responsible persons or those who would be liable for corporate offences under this Act, i.e. directors and similar officers of permitted participants.
214.If any printed material is published without meeting the requirements, then the promoter of the material, the printer, and any person who publishes it are all guilty of an offence. If any non-printed material fails to meet the requirements, then the promoter of the material and publisher are guilty of an offence. In both cases, it is a defence to show that circumstances beyond the person’s control caused the offence to be committed and that they took all reasonable steps to avoid committing an offence.
215.Paragraph 29 applies the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984 in relation to the display on any site of an advertisement relating specifically to the referendum as they have effect in relation to the display of an advertisement relating specifically to parliamentary election.
Part 5: Control of donations
216.This Act deals with controls of donations to permitted participants who are not registered parties or are minor parties. Donations to registered political parties are reserved to the UK Parliament and are already subject to the regulatory regime established in the Part 4 of the Political Parties, Elections and Referendums Act 2000. The rules set out in Part 5 of schedule 3 of this Act define what donations are allowed, both by description and by monetary value (or a determination of monetary value), who is allowed to make a donation and what a permitted participant must do to record and report the donations of over £500 that they receive.
217.Paragraph 30 defines a ‘relevant donation’ in this context as meaning a donation to a permitted participant for the purposes of meeting referendum expenses. Under sub-paragraph (6), only permitted participants that are designated organisations can accept donations from registered political parties.
218.Sub-paragraph (7)(a) adds anti-avoidance provisions in order to cover donations provided so that expenses are not incurred, and sub-paragraph (7)(b) provides for a test of reasonably assuming something to be a donation.
219.Sub-paragraphs (8) to (10) provide an explanation of what constitutes a donation in relation to any money spent in paying any referendum expenses incurred by or on behalf of the permitted participant. Sub-paragraph (11) makes it immaterial where a donation is received.
220.Paragraph 31 sets out the general rules for determining whether something is a donation. Sub-paragraph (1) sets out what constitutes a donation for the purposes of the referendum. Sub-paragraph (2) provides that where money or other property is transferred to a permitted participant in relation to any transaction or arrangement entered into by or on behalf of the permitted participant of any property, services or facilities or other consideration, at less than the market rate, the money or property transferred to a permitted participant is taken to be a gift and therefore a donation made to the permitted participant. Sub-paragraph (3) sets out that in order to determine whether property, services or facilities are provided to a permitted participant on terms better than a commercial rate, a comparison is needed with the total sum involved. Further clarification is provided in sub-paragraph (5) which provides that anything given to someone representing a permitted participant that is not for their personal use is assumed to be a donation to the permitted participant.
221.A donation to a permitted participant includes any sponsorship of the permitted participant. Paragraph 32 sets out that sponsorship in this context includes any money given to the permitted participant in order to help with referendum expenses or to avoid incurring costs in the referendum. This includes the sponsorship of conferences or other events run by or on behalf of the permitted participant, costs associated with a publication by or on behalf of the permitted participant and any study or research it undertakes. However, sponsorship does not include someone paying for admission to a conference, buying a publication or payment for an advertisement where the cost involved is charged at the usual commercial rate.
222.Paragraph 33 outlines other payments that are not donations for the purposes of this Act. These include grants from public funds, the use of public rooms under paragraphs 9 and 10 of schedule 3, any rights to a free mailshot which are given to a designated organisation under any enactment (which would include provision by order under the Scotland Act 1998), transmission by a broadcaster of referendum campaign broadcasts, the services of someone volunteering to work with or for the permitted participant at no charge, or any interest that may accrue on a donation. Any donation with a value of £500 or less is to be disregarded.
223.Paragraph 34 sets out how the value of a donation is to be established. The value of any donation other than money is to be taken as the market value of the property involved. Where goods or services are provided to the permitted participant at a rate preferential to the commercial rate, the value of the donation is taken to be the difference in value between what was actually paid and what would have been paid had the commercial rate been applied. The value of sponsorship is taken as either the money involved, or the market value of any property transferred to the permitted participant. Any value accruing to the sponsor from the sponsorship is to be disregarded. The value of any loan, or property, services or other facilities provided at a rate better than the commercial rate is taken to be the difference between the amount actually paid by the permitted participant and the amount that would have been paid had the commercial rate been applied. If the permitted participant benefits from such a donation over a period of time, for example through paying a lower rent over several months, the donation involved is the total amount saved over those months.
224.Paragraph 35 prohibits permitted participants from accepting certain donations. Only donations from people or bodies listed in paragraph 1(2) of schedule 3 as ‘permissible donors’ can be accepted:
individuals registered on the electoral register.
companies registered under the Companies Act 2006, incorporated in the UK or EU, and that conduct business in the UK.
registered parties under Part 2 of the Political Parties, Elections and Referendums Act 2000 (only designated organisations may receive donations from registered parties, under sub-paragraph 30(6)).
trade unions.
building societies.
limited liability partnerships registered under the Limited Liability Partnership Act 2000, and carrying on business in the UK.
friendly societies.
unincorporated associations carrying on business or other activities wholly or mainly and having their main office in the UK.
a body incorporated by Royal Charter.
a Scottish or UK charitable incorporated organisation.
a partnership constituted under Scots law which carries on business in the UK.
225.In addition, donations from exempt trusts are to be counted as relevant donations.(1) However, a donation from a trustee of any property which is not an exempt trust donation, or if the beneficiaries under the trust are not permitted participants or members of an unincorporated association which is a permissible donor, is to be taken as a donation from an impermissible donor, i.e. it should not be accepted by the permitted participant.
226.Where someone provides a donation to the permitted participant on behalf of themselves together with someone else as a ‘principal donor’, or an agent provides a donation on behalf of others, then each donation of over £500 is to be taken as a donation from each of the individuals. In such cases, the responsible person of the permitted participant must be given certain details about the donor. An offence is committed by the principal donor or the agent if the details are not provided. The details to be provided depend on the status of the donor but usually it involves their name and address. These details are to be provided for each donation in the statement of donations to be submitted to the Electoral Commission under paragraph 40 of schedule 3.
227.Under paragraph 36, if a donation is accepted by the permitted participant, they should make every effort to verify that the donor is who they say they are, that the donor is a permissible donor and the details which are required by paragraph 41(1)(c) such as the donor’s name and address. If the permitted participant receives a donation they should not accept, then the donation should be returned within 30 days to whoever provided it. An offence is committed if these steps are not taken within the 30-day period but it is a defence to show that within the 30 days all reasonable steps were taken to identify the donor and it was concluded that the donation was from a permissible donor.
228.Under paragraph 37, if the donation was provided in such a way that the identity of the donor is not obvious, it should be returned to the person who provided it on the donor’s behalf or the financial institution they used to send it. If that is not possible, the donation should be sent to the Electoral Commission which will then pay it into the Scottish Consolidated Fund.
229.Under paragraph 38, where a permitted participant accepts a donation that it should not have accepted (because the identity of the donor is not known or because it is made by someone other than a permissible donor), a sheriff can, regardless of whether legal proceedings have been brought in connection with an offence, order the permitted participant to forfeit money equivalent to the amount of the donation. The permitted participant can appeal against the sheriff’s decision to the Court of Session. If the amount of the donation is forfeited, then the money is paid into the Scottish Consolidated Fund.
230.If someone deliberately tries in any way to make a donation to a permitted participant when the donor is not a permissible donor, that person commits an offence under the provisions of paragraph 39. An offence is also committed if someone provides deliberately false information to the responsible person of the permitted participant about the amount of a donation or the donor. Similarly, an offence is committed if someone deliberately tries to deceive the responsible person of the permitted participant by withholding information about the amount of a donation or the donor.
231.As part of the return to the Electoral Commission, which is required under paragraph 22, the permitted participant is required by the provisions of paragraph 40 to provide a statement of relevant donations.
232.Paragraph 41 sets out the information to be provided in the statement of relevant donations. For individual donations of over £7,500 or cumulative donations of over £7,500 from the same donor, the statement must include the amount of the donation or its value if the donation was something other than money, the date when it was accepted by the permitted participant and other information about the donor, which, although dependent on the status of the donor, is in most cases the donor’s name and address.
233.Where the donation is made by a body incorporated by Royal Charter, a charitable incorporated organisation or a partnership constituted under Scots law which carries on business in the UK, then the name of the body and the address of its principal or main office in the UK must be provided.
234.The total value of all the other donations which are under £7,500 should also be provided in the statement. Where someone who has an anonymous entry on the electoral register has made a donation, the statement should also include a copy of the evidence that the donor has an anonymous entry.
235.Where a donation has been received by a permitted participant from an impermissible donor in accordance with the rules for such donations in paragraph 35(1)(a), paragraph 42 requires that the statement should record the name and address of the donor, the amount of the donation or its value if the donation was something other than money, the date the donation was received and the date it was sent back to the donor or the person acting on the donor’s behalf in accordance with paragraph 36(3)(a). Where a donation has been received by a permitted participant from an unidentifiable donor in accordance with the rules for such donations in paragraph 35(1)(b), the statement should record the name and address of the donor, the amount of the donation or its value if the donation was something other than money, the date the donation was received and the date it was dealt with in accordance with paragraph 36(3)(b).
236.Paragraph 43 requires that reports are prepared by responsible persons for permitted participants during the referendum period. The reports must include details of donations received of more than £7,500 that are to be used for the purpose of meeting referendum expenses incurred by the permitted participant during the referendum period. Reports must be prepared in respect of:
the period beginning with the passing of an Act providing for the holding of the referendum or regulations made under such an Act are laid in Parliament and ending with the fourteenth day of the referendum period;
the next period of four weeks; and
the period from the end of these four-week periods until the end of the day before the date of the referendum.
237.If no donations of more than £7,500 were received, this information must also be included in the report. The reports must be delivered to the Electoral Commission within seven days at the end of each period. It is an offence to fail to make such a report, or if the report does not comply with the requirements of this rule.
238.Paragraph 44 requires each of these reports to be accompanied by a declaration, signed by the responsible person, confirming that the report is complete. A false declaration, or a failure to make one by a responsible person, is also an offence.
239.Paragraph 45 requires the Electoral Commission to make pre-poll donation reports publicly available as soon as practicable, and keep a copy available for public inspection for a period of 2 years, after which they are to be destroyed or returned to the permitted participant.
Part 6: Control of loans and credit
240.The rules set out in Part 6 of schedule 3 provide for the control of ‘regulated transactions’, i.e. loan or credit transactions entered into by permitted participants who are not registered parties. Paragraph 46 sets out the scope of operation of this Part of the schedule.
241.Paragraph 47 defines a regulated transaction as an agreement by someone to lend money or provide credit to a permitted participant, where the permitted participant intends to use all or part of the money or credit to meet referendum expenses. An agreement of this type may also be supplemented by a ‘connected transaction’, where a third party backs up the permitted participant by offering security to the lender. In this case, the connected transaction is also considered to be a regulated transaction. Agreements where the value is less than £500, and payments which are already covered in statements of relevant donations to the Electoral Commission under paragraph 40, do not count as regulated transactions.
242.Paragraph 48 sets out how a regulated transaction should be valued. Where the transaction is a loan agreement, the value is the full amount of the money to be lent. Where the transaction is a credit agreement, the value is the maximum credit limit. Both of these exclude any interest provisions in the agreement. Where the transaction is arranged on the basis of a security, the value is the liability under the security.
243.Paragraph 49 prohibits permitted participants from entering into regulated transactions with anyone who is not a permissible donor as defined in paragraph 1(2) of schedule 3.
244.Under paragraph 50, any transaction between a permitted participant and an impermissible donor is void. Any money received under the transaction must be repaid, along with any interest due. If the money is not repaid, the Electoral Commission may apply to a sheriff to make an order to return the money or discharge any security, with the effect that both parties return to the positions they would have been in if the transaction had never existed.
245.Paragraph 51 provides that where a regulated transaction is void due to impermissibility of the donor as set out under paragraph 50, any security for a loan of money as described in paragraph 47(3)(b) is also void. If the lender is unable to recover the full amount owed by the permitted participant, the lender may recover such sums from the third party.
246.Paragraph 52 provides that any attempt by an authorised participant to transfer their interest in a regulated transaction to an unauthorised participant is not valid.
247.Paragraph 53 provides for the offences related to regulated transactions, including:
it is an offence for a permitted participant to enter into a regulated transaction in the knowledge (or where it ought reasonably to have been known) that the other party is not an authorised participant.
where a permitted participant has entered into a transaction with an unauthorised participant, but could not reasonably have been expected to know, it is still an offence not to take reasonable steps to repay the money after the impermissibility of the other party becomes apparent.
it is an offence to benefit from or be in line to benefit from a connected transaction which involves an unauthorised participant where their impermissibility was known or could reasonably have been expected to have been known. It is also an offence, where the impermissibility was not known, to fail to take all reasonable steps to repay the benefits once the impermissibility becomes apparent.
it is an offence to knowingly enter into, or knowingly facilitate, any arrangement which is likely to result in a permitted participant being involved in a regulated transaction with an unauthorised participant.
248.The offences include situations where the other party was originally an authorised participant but later ceased to be one. It is a defence for a person who is the responsible person for the permitted participant to show that they took all reasonable steps to prevent the permitted participant entering into the transaction.
249.It is an offence for a permitted participant knowingly to receive money under a loan or other regulated transaction from a person who has ceased to be an authorised participant, or to fail to repay money received under a loan or other regulated transaction from a person who has ceased to be an authorised participant after becoming aware the person has so ceased. It is a defence for a person to show that they took all reasonable steps, as soon as practicable, to repay the loan or regulated transaction.
250.Paragraph 54 details the penalties associated with the offences listed in paragraph 53, which, depending on the offence, are either a fine or imprisonment for a term of up to 12 months (or both).
251.Paragraph 55 sets out the requirement for permitted participants to include regulated transactions in the statements prepared for the Electoral Commission under paragraph 22. The transaction need only be included in the return where the value exceeds £7,500, or where the aggregate value of the transaction and any other relevant benefits (being donations or other regulated transactions) exceeds £7,500.
252.Paragraph 56 sets out the information that must be recorded in the statement prepared under paragraph 22 in relation to each recordable transaction to which an authorised participant was a party.
253.Paragraphs 57 and 58 require the statement to include details of any authorised or unauthorised participants, and it must also include details of the transaction in line with schedule 6A to the Political Parties, Elections and Referendums Act 2000 (which deals with transaction reports prepared by registered political parties), subject to the modifications made by paragraph 58(2) and any other necessary modifications.
254.Under paragraph 59, where there is any change to the agreement, such as different participants, the information from before and after the change must be included in the statement, as well as the date the change was made. Where the loan has been repaid in full or the debt released this information must be included.
255.Paragraph 60 requires that the statement also includes the total value of regulated transactions that are not recordable.
256.Paragraph 61 requires that reports must be prepared by the responsible person in relation to permitted participants detailing regulated transactions which have a value exceeding £7,500 that are to be used for the purpose of meeting referendum expenses incurred by the permitted participant during the referendum period. These transaction reports must be prepared in respect of the same periods as required in paragraph 43 for donations. If no such transactions were entered into, the report must state this. Failure to make a report and failure to comply with the requirements of paragraph 61 are offences.
257.Paragraph 62 requires each of these transaction reports to be accompanied by a declaration, signed by the responsible person, confirming that the report is complete. Making a false declaration, or a failure to make one by a responsible person, is also an offence.
258.Paragraph 63 requires the Electoral Commission to make pre-poll transaction reports publicly available as soon as practicable, and to keep a copy available for public inspection for a period of 2 years, after which they are to be destroyed or returned to the permitted participant.
259.Paragraph 64 deals with a situation where a sheriff, on the application of the Commission, is satisfied that a failure to comply with any requirement under this part of the schedule was caused by a person attempting to conceal the existence of, or true value of, the transaction. In this case, the sheriff may make an order which will return the parties to the same position as if the transaction had never been made.
260.Paragraph 65 makes provision in relation to the court proceedings before the sheriff in relation to reversing a regulated transaction or disclosure of information relating to a transaction under paragraphs 50 or 64. It sets out that they will take place as civil proceedings and that orders of the sheriff are appealable to the Court of Session. Rules of court may make provision with respect to court applications or appeals.
261.Paragraph 66 contains definitions of words and phrases used in this schedule.
Schedule 4: Campaign rules: investigatory powers of the Electoral Commission
262.Schedule 4, introduced by section 14(4), contains the investigatory powers afforded to the Electoral Commission to allow them to monitor and enforce compliance with the campaign rules.
263.Paragraph 1 allows the Commission, after issuing a ‘disclosure notice’, to require the following persons to produce or provide documents or an explanation in relation to income or expenditure where reasonably required by the Commission to carry out its functions:
the treasurer or another officer of an organisation which is a permitted participant;
an individual permitted participant;
a qualifying individual resident in the UK who is registered in an electoral register, who the Electoral Commission have reasonable grounds to suspect is not so resident or registered;
a qualifying body as set out in paragraph 2(4) of schedule 3 which the Electoral Commission have reasonable grounds to suspect is not a qualifying body;
an individual or a body which is not registered as a permitted participant but which the Electoral Commission have reasonable grounds to believe is incurring referendum expenses;
an individual or body which the Electoral Commission have reasonable grounds to believe has received a relevant donation;
an individual or body which the Electoral Commission have reasonable grounds to believe has entered into a regulated transaction (i.e. loan or credit under Part 6 of schedule 3);
an individual or body which the Electoral Commission have reasonable grounds to believe is providing goods, services or facilities to a permitted participant or a non-registered individual or body who appears to be incurring referendum expenses; and
a body, not being a permitted participant, which the Electoral Commission has reasonable grounds to believe has published material subject to the imprint requirement to include name and address on referendum campaign material,
264.Sub-paragraph (8) obliges the person issued with a disclosure notice to comply with a requirement set out in the notice within a reasonable time.
265.In the case of a qualifying body or individual which the Electoral Commission have reasonable grounds to suspect is not a qualifying body or individual, the disclosure notice may require them to provide an explanation or information to support their claimed status.
266.In the case of an individual or body which the Electoral Commission have reasonable grounds to believe has received a relevant donation or entered into a relevant transaction a disclosure notice may require the person or body to provide any information or explanation required by the Commission for the purposes of their duties in relation to control of donations or loans and credit. If the disclosure notice relates to a permitted participant then sub-paragraphs (2) and (3) mean that it also includes any information or explanation of any donation or transaction which took place before the individual or body became a permitted participant.
267.In the case of a body which the Commission has reasonable grounds to believe has published material subject to the imprint requirement, the disclosure notice may require the provision of any information or explanation to allow the Commission to fulfil its functions in relation to compliance with the imprint requirements.
268.Paragraph 2 enables a member of the Commission’s staff to enter premises at any reasonable time and inspect relevant documentation, to enable the Commission to carry out their functions. This power can only be exercised after the Commission have obtained a warrant from a sheriff or justice of the peace authorising entry of the specified premises and is restricted so that it can only be used in relation to permitted participants.
269.An inspection warrant will be valid for one month from the day on which it is issued and may not be used in connection with an investigation by the Commission of a suspected breach of schedule 3 or campaign offence (being an offence under section 16 or schedules 3 to 5).
270.Paragraph 3 provides that, where the Commission have reasonable grounds for suspecting that a campaign offence has been committed or the restrictions or requirements of schedule 3 have otherwise been contravened, they may issue a notice to a person requiring that person to produce or provide any documents or explanation reasonably required for an investigation by the Commission of the suspected offence or contravention. ‘Campaign offence’ is defined in schedule 7 as an offence under section 16 or any of schedules 3 to 5. Sub-paragraph (4) obliges the person to comply with the notice within a reasonable time. This power is wider than that 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. Sub-paragraph (5) 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.
271.The powers created by paragraph 3 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 the power may be used in respect of the individual or body suspected by the Commission of having committed an offence or contravention, but is not limited to such an individual or body.
272.Paragraph 4 applies where the Commission have given a notice under paragraph 3 requiring documents to be produced. Sub-paragraph (2) allows the Court of Session to issue a document disclosure order against a person following an application from the Commission if satisfied of four things. First, that there are reasonable grounds for believing that a campaign offence has been committed, or that another contravention of schedule 3 has occurred. Second, that documents referred to in the notice under paragraph 3 have not been produced in response to that notice. Third, that the documents are reasonably required for the purposes of an investigation. Finally, that the documents are in the custody of the person against whom the order is issued. The order requires the person to whom it is given to deliver to the Commission documents referred to in the order within the timeframe set out in the order. A document is in a person’s control if the person has possession of it, or a right to possession of it. Sub-paragraph (5) stipulates that a person who fails to comply with the order may not be punished for both contempt of court and an offence under paragraph 12 of the schedule.
273.Paragraph 5 applies where the Commission have given notice under paragraph 3 requiring any information or explanation to be produced. The Court of Session can issue an information disclosure order against a person on an application from the Commission if satisfied of four things. First, that there are reasonable grounds to suspect a person has committed a campaign offence or has otherwise contravened schedule 3. Second, that the information or explanation referred to in the notice under paragraph 3 has not been provided. Third, that that it is reasonably required for the purposes of an investigation. Finally, the respondent is able to provide the information or explanation. The order requires the person to whom it is given to provide the Commission with information or explanation referred to in the order within the timeframe set out in the order. A person who fails to comply with the order may not be punished for both contempt of court and an offence under paragraph 12(1) of the schedule.
274.Paragraph 6 specifies that the Commission may retain documents delivered to them in compliance with an order under paragraph 4 for three months. However, if during that time any relevant proceedings are begun, or notices are issued or penalties imposed under schedule 5, the documents may be retained until they are no longer required in relation to the proceedings or civil sanctions.
275.Paragraph 7 provides that the Commission, or a person authorised by the Commission, may make copies or records of relevant information or explanations obtained under paragraph 4 or provided under this schedule.
276.Paragraph 8 requires that any authorisation of a person by the Commission made under this schedule must be in writing.
277.Paragraph 9 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 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, such assistance may also be required by an inspector in order to enable the inspector to inspect and check any computer or associated apparatus used in connection with the information.
278.Paragraph 10 exempts information subject to confidentiality of communications from any requirement to produce information (in whatever form) under any power provided by this schedule. The appropriate test is whether a claim to confidentiality of communications could be maintained in legal proceedings in respect of the material in question.
279.Paragraph 11 deals with the admissibility of statements provided under compulsion. 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 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.)
280.Paragraph 12 provides that it is an offence to fail to comply with any requirement imposed under schedule 4 (for example, to refuse to supply the Commission with information requested under paragraph 1 or 3); 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.
281.Paragraph 13 imposes a duty on the Commission to publish guidance setting out how they will make use of the investigatory powers set out in schedule 4. Sub-paragraph (2) obliges the Commission to keep the guidance under review where appropriate, and sub-paragraph (3) requires the Commission to have regard to the guidance or revised guidance in exercising their functions.
282.Paragraph 14 requires the Commission to report on their use of the investigatory powers contained in schedule 4 in their report to the Scottish Parliament under section 29 on the conduct of the referendum, or in a separate report. The Commission must lay any report produced under this paragraph before the Scottish Parliament, and, after laying, publish the report.
283.Sub-paragraph (2) sets out what information the Commission must include in the report on the use of their 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 on-going investigation or proceedings.
Schedule 5: Campaign rules: civil sanctions
284.Schedule 5, introduced by section 14(5), of this Act contains powers for the Electoral Commission to impose civil sanctions in respect of specified campaign offences.
Part 1: Fixed monetary penalties
285.Paragraph 1 allows the Electoral Commission to impose fixed monetary penalties of £200 where they are satisfied beyond reasonable doubt that a campaign offence listed in Part 7 of schedule 5 has been committed or, in the case of a permitted participant, where there has been a contravention of requirements to deliver certain returns under paragraph 24 of schedule 3. The penalties can be imposed either on a person or on a permitted participant where the responsible person for that permitted participant has committed the offence.
286.Paragraph 2 sets out the representations and appeals processes. The Commission must serve notice of an intention to impose a fixed monetary penalty on a person. This must offer the opportunity to discharge the penalty by paying £200. Alternatively, the person can opt to make written representations and objections to the Commission against the penalty. If the deadline for making representations and objections passes without the person having paid, the Commission must decide whether to impose the penalty and serve a further notice imposing the penalty on the relevant person (sub-paragraph (4)). If the person’s representations have raised any matter that leads the Commission no longer to be satisfied that the person was at fault, the Commission may not impose the penalty. The person may appeal to the sheriff against the decision to impose the penalty on the grounds set out in sub-paragraph (6) within 28 days of a notice imposing the penalty being received, and the penalty is suspended until the appeal is determined or withdrawn.
287.Paragraph 3 sets out 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 the grounds for imposition of the sanction, the right to make representations or appeals and the time periods in which these can be made.
288.Paragraph 4 makes provision for the late payment of fixed monetary penalties. If the penalty is not paid within 28 days of the notice being received, the amount of the penalty is increased by 25%, and if it is not paid within 56 days, the amount is increased by 50%. Where a penalty is upheld on appeal, or such an appeal withdrawn, similar increases apply from the determination or withdrawal of the appeal.
289.Paragraph 5 limits the criminal proceedings that can be taken against a person for a listed campaign offence or other breach that may be dealt with by way of a fixed monetary penalty. If the Commission notify 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 paragraph also precludes such proceedings being taken against a person who does discharge liability by making the payment. Finally, paragraph 5(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
290.Paragraph 6 allows the Electoral Commission to impose a discretionary requirement on a person where they are satisfied, beyond reasonable doubt, that the person has committed one of the listed offences or (in the case of a permitted participant) there has been a contravention of the relevant return delivery requirements in paragraph 24 of schedule 3. A discretionary requirement as a sanction can take the form of a monetary penalty or alternatively an instruction to take certain actions designed either to prevent the recurrence of the offence or contravention or to restore the position to what it would have been had the offence or contravention not occurred. Sub-paragraph (4) 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. The maximum monetary penalty is £500,000 under sub-paragraph (3), but sub-paragraph (6) sets a further limit for offences which are triable summarily only—where such offences are punishable by a fine, the variable monetary penalty must not be greater than the maximum fine.
291.Paragraph 7(1) requires that, where the Commission intend to impose a discretionary requirement on a person for a listed campaign offence or other breach, 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 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 sheriff against the decision to impose the discretionary requirement on the grounds specified in sub-paragraph (6), and the discretionary requirement is suspended until the appeal is determined or withdrawn.
292.Paragraph 8(1) sets out 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 within which representations and objections may be made (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, such as the grounds for the proposed discretionary requirement, details of any monetary penalty, rights of appeal and the consequences of non-compliance.
293.Paragraph 9 limits the use of other sanctions against a person who has had a discretionary requirement imposed upon them. If a discretionary requirement is imposed on a person, that person cannot be convicted of a criminal offence arising from the same act or omission. 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.
294.Paragraph 10 provides that where the Commission are satisfied that a discretionary requirement has been complied with, they must issue a certificate confirming that this is the case. This causes the original requirement notice to cease to have effect. A person who has been served with a discretionary requirement notice may apply to the Commission for a compliance certificate and the Commission must decide whether to issue one within 28 days. If the Commission decide not to issue a certificate, the applicant may appeal to a sheriff within 28 days of the date of receiving the Commission’s decision.
295.Paragraph 11 allows the Commission to impose a ‘non-compliance penalty’ on a person who fails to comply with a non-monetary discretionary requirement. The amount of a non-compliance penalty is to be decided by the Commission but must not exceed £10,000. A non-compliance penalty is paid to the Commission. A notice must be served including the grounds for imposing the penalty, specifying a period of at least 28 days to comply, and informing about the right of appeal to the sheriff against a non-compliance penalty (sub-paragraph (4)). A person served with a non-compliance penalty may appeal to a sheriff within 28 days against the notice on the ground that the decision to serve it was based on error of fact, wrong in law, or unfair or unreasonable. Where an appeal is made, the non-compliance penalty is suspended until the appeal is determined or withdrawn.
296.Paragraph 12 requires that a variable monetary penalty must be paid within 28 days of the relevant notice being received, or the amount of the penalty will increase by 25%. If the penalty is not paid within 56 days of the notice being received, it will increase by 50%. Where a penalty is upheld on appeal, or such an appeal withdrawn, the penalty falls to be paid within 28 days of the day of determination or withdrawal. If it is not paid within that period, similar increases apply from the determination or withdrawal of the appeal.
Part 3: Stop notices
297.Paragraph 13 provides that the Electoral Commission can impose a stop notice on a person in order to prevent the person from continuing or repeating a particular activity until the person has taken the steps specified in the notice. The Commission can serve a stop notice where it reasonably believes that the person’s activity is (or is likely to be) an offence listed in Part 7 of schedule 5. A stop notice can also be imposed where the Commission believe that a person’s likely activity is (or is likely to be) a listed offence. In both cases the Commission must believe that the activity, or potential activity, is seriously damaging public confidence in the effectiveness of the controls in schedule 3, or significantly risks doing so. The stop notice must specify steps which would prevent the activity being a listed offence.
298.Paragraphs 14 to 17 set out the details and limitations of how the stop notice system operates. Paragraph 14 lists the information to be included in a stop notice—the grounds for imposition, rights of appeal and consequences of non-compliance. Paragraph 15 requires the Commission to issue a ‘completion certificate’ once they are satisfied that the person has taken the steps set out in the stop notice (at which point it will cease to have effect). The person upon whom a notice has been imposed may apply for a completion certificate at any time and the Commission must make a decision on the application within 14 days of receipt. Paragraph 16 sets out how a person may appeal against the imposition of a stop notice, or against a decision not to issue a completion certificate, and provides that any appeal will be heard by a sheriff. It also sets out the grounds for appeal in both circumstances. Paragraph 17 provides that a person who does not comply with a stop notice is guilty of an offence.
Part 4: Enforcement undertakings
299.Paragraph 18 sets out the powers of the Electoral Commission to accept an enforcement undertaking from a person whom the Commission have reasonable grounds for believing has committed a campaign offence listed in Part 7 of the schedule. An enforcement undertaking may be offered by the person suspected of the offence and outlines the action the person will take (within a specified period). The action may be with a view to preventing the recurrence of the offence or contravention or returning the position to what it would have been had the offence or contravention not taken place. Sub-paragraph (1)(d) states that the undertaking will take effect only if the Commission accept it. Sub-paragraph (2) provides that a person who has complied with the accepted undertaking will generally be exempt from other sanctions, including criminal proceedings, in relation to the acts or omissions on which the undertaking is based.
300.Paragraph 19 makes provision about the form of enforcement undertakings and provides that they may be varied by agreement between the person who has entered into it and the Commission. It also permits the Commission to publish enforcement undertakings. Paragraph 20 sets out the process by which the Commission may issue a compliance certificate for an enforcement undertaking, which has the effect that the undertaking ceases to have effect. Paragraph 21 provides for the grounds and time limit (28 days) for appeal against a decision not to issue a compliance certificate.
Part 5: General and supplemental
301.Paragraph 22 limits the use of fixed monetary penalties, discretionary requirements and stop notices. It provides that a fixed monetary penalty may not be imposed on a person if the person is already subject to a discretionary requirement or stop notice for a breach. Additionally, if a person has had a fixed monetary penalty imposed on them for a breach, or has paid a sum to discharge liability for a fixed monetary penalty, the person cannot be given a discretionary requirement or a stop notice in relation to the breach.
302.Paragraph 23 allows the Commission to withdraw a fixed penalty notice, withdraw or vary notice of a discretionary requirement and withdraw a stop notice. If a stop notice is withdrawn, this does not prevent another stop notice in respect of the same activity.
303.Paragraph 24 provides that, if someone is required under schedule 4 to make a statement as part of an investigation by the Electoral Commission, the Commission must not take account of that statement when deciding whether to impose a civil sanction on the person. The only exception is for the offence of providing false information set out in paragraph 12(3) of schedule 4.
304.Paragraph 25 stipulates that any financial penalty imposed on an unincorporated association must be paid from its own funds.
305.Paragraph 26 requires the Commission to publish guidance about enforcement of the campaign rules. The guidance must include details of the sanctions available (both civil and criminal), the circumstances in which civil sanctions may be used and the rights of appeal available. Sub-paragraph (7) requires the Commission to carry out consultations with persons that they consider appropriate prior to publishing guidance. Under sub-paragraph (8) the Commission are required to have regard to the guidance when exercising their functions.
306.Paragraph 27 enables the Commission to recover fixed monetary penalties, variable monetary penalties and non-compliance penalties as a civil debt. Any interest or financial penalty for late payment may also be recovered as a civil debt.
307.Paragraph 28 stipulates that the monetary penalties paid to the Commission as a result of the imposition of civil sanctions under schedule 5 must be paid into the Scottish Consolidated Fund.
308.Paragraph 29 requires the Commission to make a report about their powers under this schedule. The report must include the cases (other than those where sanctions have been successfully appealed against) in which they have imposed fixed monetary penalties, discretionary requirements or stop notices; cases in which liability for a fixed monetary penalty has been accepted through payment of a sum; and cases in which an enforcement undertaking has been accepted. Sub-paragraph (3) enables the Commission to exclude information if it might be unlawful for the report to include it or might adversely affect ongoing investigations or proceedings. The information may be included in the report on the conduct of the referendum under section 29, in a separate report, or in a combination of the two. The report must be laid before the Scottish Parliament, and published thereafter.
309.Paragraph 30 allows procurators fiscal or constables in Scotland to disclose information to the Electoral Commission when the Commission are exercising the powers under the schedule. It will not enable disclosure where that would breach the Data Protection Act 1998 or Part 1 of the Regulation of Investigatory Powers Act 2000 or in relation to certain reserved enactments. It also provides that other powers of disclosure that are independent of this power are not affected by it.
310.Paragraph 31 sets out the powers of a sheriff on appeals against civil sanctions imposed by the Commission. If a person appeals a fixed monetary penalty, the sheriff may overturn or confirm the penalty. On an appeal against a discretionary requirement, non-compliance penalty or stop notice, the sheriff may overturn, confirm or vary the sanction. The sheriff also has the same powers as the Commission as to steps that may be taken in response to such an appeal, or can remit the decision regarding the requirement or notice, or matters relating to the decision, to the Commission. On an appeal against a decision by the Commission not to issue a completion certificate for a stop notice, a compliance notice for a discretionary requirement, or a compliance certificate for an enforcement undertaking, the sheriff may require the Commission to issue the appropriate completion or compliance certificate.
Part 6: Interpretation
311.Paragraph 32 sets out definitions of words and expressions used in schedule 5.
Part 7: Listed campaign offences
312.Part 7 lists the campaign offences for which civil sanctions may be imposed under the provisions of schedule 5.
“Exempt trust donations” are donations received from a trustee where the trust was created before 27 July 1999 and which has had no property transferred to it after that date nor have the terms of the trust varied after that date or it is a donation received from a trustee where the trust was created either by a person who was a permissible donor under section 54 of the Political Parties, Elections and Referendums Act 2000 or created in the will of such a person and no property has been transferred to the trust other than by the person who created or by the will. (See section 162 of the 2000 Act and the definition in paragraph 1(1) of the Act).
