29th January 2025
72.The existing regulatory framework governing the spending and funding (political or campaign finance) of candidates, political parties and third-party campaigners and other campaigners is contained within the Representation of the People Act 1983 (the “
73.Part 4 of the Elections Act 2022 made some changes to campaign finance rules for UK elections which are reserved to Westminster (in terms of the Scotland Act 1998). This Part contains provisions which provide for consistency with some of the changes to the rules made by the Elections Act 2022, as they concern devolved Scottish elections.
74.The Elections Act 2022 made amendments to the 1983 Act and PPERA in relation to reserved elections, to clarify the law in relation to notional expenditure, to ensure that benefits in kind, such as property, goods, services or facilities that are supplied to a candidate, party or campaign for free or at a discount, should only qualify as an election expense for the relevant campaign where it is authorised or directed by the campaign. This clarification came as a result of a Supreme Court judgment (R v Mackinlay and others [2018])(17) that held such notional expenditure was an election expense without the need for authorisation.
75.The Elections Act 2022 also introduced some restrictions on the ability of third parties, meaning individuals or organisations that are not registered political parties, to incur controlled expenditure in regulated periods in advance of elections to the House of Commons or to the Northern Ireland Assembly. Broadly speaking, controlled expenditure relates to reportable expense to support specified activity that meets the purpose of influencing voters to vote in a particular way.
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.
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.
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.
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).
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.
83.This section amends section 90C(1A) of the 1983 Act to clarify that expenditure on behalf of a candidate in a Scottish local election should only be considered incurred by the candidate where it has been directed, encouraged or authorised by them.