Expenditure in respect of Scottish Parliament elections
Section 21 – Notional and third party expenditure: Scottish Parliament elections
76.This section amends sections 73(1A), 86(1A), and 94(8A) of PPERA so that the amended provisions in relation to notional spending by political parties and third parties also now apply to campaign periods for Scottish Parliament general elections during devolved regulated periods.
Section 22– Third parties capable of giving notification
77.This section inserts section 88(11) and (12) into PPERA, to allow the Scottish Ministers to amend the list of third parties who can incur controlled expenditure during a Scottish devolved regulated period, defined as the period (normally 4 months) before a Scottish Parliament election for which campaign limits are applied in terms of paragraph 5 of schedule 10 of PPERA. Third parties can be added to or removed from the list, or the list can be varied, but changes to the list can only be effected on the recommendation of the Electoral Commission. Any regulations made by the Scottish Ministers under section 88(11) of PPERA will be subject to the affirmative procedure.
Section 23 – Restriction on which third parties may incur controlled expenditure
78.This section introduces a further restriction on third parties that may incur controlled expenditure (including notional controlled expenditure) in connection with a Scottish election campaign. It does this by inserting a new section 89B into PPERA, providing that only those third parties that would fall within the categories of third party listed in section 88(2) of PPERA are able to incur controlled expenditure expenses above a de minimis threshold of £700 during a Scottish devolved regulated period. Inserted section 89B also includes an either way offence of authorising expenses in breach of the section, which is punishable by fine.
Section 24– Transitional provision: offences relating to third party expenditure
79.This section sets out a transitional provision to provide that the changes made by section 16 have effect only in relation to a Scottish devolved regulated period beginning on or after the day on which section 23 comes into force. It is an offence for a non-eligible third party (see section 88(2) of PPERA) to incur controlled expenditure (or for someone to do so on their behalf).
Section 25– Code of practice on controls relating to third parties
80.This section inserts new sections 100AA and 100BA into PPERA, which broadly mirrors sections 100A and 100B of that Act, which were inserted into PPERA by the Elections Act 2022. These new sections place a duty on the Electoral Commission to produce a statutory code of practice on the application of expenditure controls for third party campaigners contained within that Act as it relates to Scottish devolved elections and Scottish devolved regulated periods.
81.The Electoral Commission must, when preparing the code, follow the process set out in these sections which includes a requirement to consult with the Scottish Parliament, and any other persons the Electoral Commission considers appropriate. Section 100BA also sets out the process to be followed for the Code to be approved. The Scottish Ministers may approve a draft code with or without modifications and must then lay it before the Parliament. Parliament then has 40 days to resolve not to approve the Code.
82.The provision contained in this section also provides that compliance with any code issued under this section is a potential defence where the offence relates to expenditure incurred or treated as incurred by a third party during a Scottish devolved regulated period. This means where a person, for example, is charged with an offence in relation to controlled expenditure (or where expenditure is treated as controlled expenditure) and they determine what is or is not controlled expenditure (or is to be treated as such) in accordance with an issued code then there is a defence open to them.
