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 If a stop notice is withdrawn, this does not prevent another stop notice in respect of the same activity.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.
