Referendums (Scotland) Act 2020

PART 4 Enforcement undertakings

Enforcement undertakings

18 (1) This paragraph applies where—

(a) the Electoral Commission have reasonable grounds to suspect that a person has committed a campaign offence listed in Part 7,

(b) the person offers an undertaking (an “enforcement undertaking”) to take such action, within such period, as is specified in the undertaking,

(c) the action so specified is—

(i) action to secure that the offence does not continue or recur,

(ii) action to secure that the position is, so far as possible, restored to what it would have been if the offence had not happened, and

(d) the Commission accept the undertaking.

(2) Unless the person has failed to comply with the undertaking or any part of it—

(a) the person may not at any time be convicted of a campaign offence in respect of the act or omission to which the undertaking relates,

(b) the Commission may not impose on the person any fixed monetary penalty that they would otherwise have power to impose by virtue of paragraph 1 in respect of that act or omission,

(c) the Commission may not impose on the person any discretionary requirement that they would otherwise have power to impose by virtue of paragraph 6 in respect of that act or omission.

Enforcement undertakings: further provision

19 (1) An enforcement undertaking must be in writing and include—

(a) a statement that the undertaking is an enforcement undertaking regulated by this Act,

(b) the terms of the undertaking,

(c) the period within which the action specified in the undertaking must be completed,

(d) details of how and when a person is to be considered to have complied with the undertaking, and

(e) information as to the consequences of failure to comply in full or in part with the undertaking, including reference to the effect of paragraph 18(2).

(2) The enforcement undertaking may be varied or extended if the person who has given the undertaking and the Electoral Commission agree.

(3) The Commission may publish any enforcement undertaking which they accept in whatever manner they see fit.

Compliance certificate

20 (1) Where, after accepting an enforcement undertaking from a person, the Electoral Commission are satisfied that the undertaking has been complied with in full they must issue a certificate to that effect.

(2) An enforcement undertaking ceases to have effect on the issue of a certificate relating to that undertaking.

(3) A person who has given an enforcement undertaking may at any time apply for a certificate, and the Commission must make a decision whether to issue a certificate within the period of 28 days beginning with the day on which they receive such an application.

(4) An application under sub-paragraph (3) must be accompanied by such information as is reasonably necessary to enable the Commission to determine whether the undertaking has been complied with.

(5) Where, on an application under sub-paragraph (3), the Commission decide not to issue a certificate they must notify the applicant and provide the applicant with information as to—

(a) the grounds for the decision not to issue a certificate, and

(b) rights of appeal.

(6) The Commission may revoke a certificate if it was granted on the basis of inaccurate, incomplete or misleading information.

(7) Where the Commission revoke a certificate, the enforcement undertaking has effect as if the certificate had not been issued.

Appeals

21 (1) A person who has given an enforcement undertaking may appeal to the sheriff against a decision not to issue a certificate under paragraph 20 on the ground that the decision was—

(a) based on an error of fact,

(b) wrong in law, or

(c) unfair or unreasonable.

(2) An appeal must be made within the period of 28 days beginning with the day on which notification of the Electoral Commission’s decision is received.