Part VIII : Election campaigns and proceedings
Section 130 and Schedule 16 : Control of donations to candidates
225.Section 130 and Schedule 16 insert new section 71A and new Schedule 2A in the Representation of the People Act 1983. The new section gives effect to the new Schedule which provides for controls on donations to candidates of more than £50 made for the purpose of meeting election expenses. Part I of new Schedule 2A defines donations to candidates in terms equivalent to those in sections 50 to 53 in respect of donations to registered parties. Part II of new Schedule 2A applies restrictions on the acceptance of donations equivalent to those in sections 54 to 61. Part III of new Schedule 2A provides that the return as to election expenses, required under section 81 of the 1983 Act, must include a statement giving details of the source and amount of donations of more than £50. The statement must also detail donations received, but not accepted, from impermissible or unidentifiable donors.
Section 131 : Election expenses incurred otherwise than by candidate
226.Section 131 amends section 75 of the Representation of the People Act 1983. The effect of subsections (2) and (3) is to substitute new limits on third party expenditure in support of or in opposition to a candidate at a parliamentary or local government election. The existing limit of £5 was held by the European Court of Human Rights in the case of Bowman v United Kingdom (9 February 1998) to be so low as to amount to an unjustified restriction on freedom of expression. A new limit of £500 is set for parliamentary elections. The new limit for a local government election is £50 plus 0.5 pence per elector. By virtue of subsections (4) and (5) the new limit for local government elections will also apply to Greater London Authority elections in place of the special provision made by and under section 75(1B) and (1C) of the 1983 Act (as inserted by paragraph 19(4) of Schedule 3 to the Greater London Authority Act 1999).
Section 132 : Financial Limits applying to candidates’ election expenses
227.Section 132 amends section 76 of the Representation of the People Act 1983. Subsection (2) inserts a new section 76(1) in place of the existing provision. The effect of the new subsection is to align this provision with the new definition of election expenses in new section 90A (inserted by section 134). Subsection (4) inserts new subsection (1B) into section 76 of the 1983 Act. This new subsection re-casts the criminal offence of exceeding the election expenses limit so that it is in similar terms to parallel offences created by this Act in respect of, for example, campaign expenditure by political parties. Subsection (3) makes consequential amendments to section 76(1A) which is concerned with elections to the Greater London Authority.
228.Under section 76(2) of the 1983 Act, the expenditure limit for parliamentary by-elections is presently limited by a formula based upon whether the constituency is a borough or a county constituency and the number of registered voters in the constituency (the average is some £34,000). The Neill Committee observed that the limits on by-election expenditure imposed by the existing formula were unrealistic, given the intensity of by-election campaigns, and recommended that a higher maximum be set. Subsection (5) increases to £100,000 the maximum amount a candidate may spend at a parliamentary by-election. This new flat-rate limit applies to all constituencies.
Section 133 : Power to vary provisions about election expenses
229.Section 133 substitutes a new section 76A of the Representation of the People Act 1983. Under the existing section 76A the various monetary limits in sections 73, 74, 75 and 76 of the 1983 Act may only be varied, by order, to the extent necessary to keep pace with inflation. The revised section 76A preserves that power, but also enables more significant variations in the monetary limits in question where the Electoral Commission so recommends.
Section 134 : Meaning of “election expenses”
230.Restrictions on candidates’ expenses are currently imposed by Part II of the Representation of the People Act 1983. For the purposes of that Part, section 118 of the 1983 Act defines “election expenses” in relation to an election as “expenses incurred, whether before, during or after the election on account of or in respect of the conduct of management of the election”.
231.The purpose of section 134 which inserts new section 90A to 90D, is to clarify the meaning of “election expenses”. In particular, these new sections provide for benefits in kind given to candidates to be regarded as election expenses. In doing so, they bring the 1983 Act’s treatment of notional expenses into line with the provisions of this Act in respect of campaign expenditure by political parties, controlled expenditure by third parties (as defined in Part VI) and referendum expenses by permitted participants (as defined in Part VII).
232.New section 90A of the 1983 Act defines “election expenses” as any expenses incurred for the acquisition or use of property or for the provision of services or facilities used for the purposes of the candidate’s election. Subsection (3) provides for a number of exemptions from the definition of “election expenses”, including the payment of the candidate’s deposit, material relating to the election published in a newspaper or periodical or included in a broadcast service (other than advertisements), facilities made available to candidates under the 1983 Act (for example, free mailing facilities), and the provision of services by a person free of charge and in his own time.
233.New section 90B is concerned with the calculation of election expenses incurred for the purposes of new section 90A. Subsection (1) deals with the valuation of property, goods, services or facilities acquired direct by the candidate or his agent. Subsection (2) is concerned with the apportionment of the cost of property, goods, services or facilities which is or are not used exclusively for the purposes of the candidate’s election. Such apportionment may be appropriate, for example, where parliamentary and local government elections are held on the same day and a party’s candidates for such elections jointly acquire premises to act as their campaign headquarters in respect of both elections.
234.New section 90C makes provision for treating as election expenses the value of any property, goods, services or facilities provided for the use of a candidate either free of charge or at a substantial discount. New section 90D modifies the application of sections 90A to 90C to fit the circumstances of an election of the London members of the London Assembly.
Section 135 : Meaning of “candidate”
235.Section 135 amends the definition of a “candidate” currently in section 118 of the Representation of the People Act 1983. The new definition is contained in a separate section, section 118A, in the 1983 Act which is inserted by subsection (2). The definition of a candidate is relevant to determining the date from which the restrictions on incurring election expenses apply. The revised definition makes two substantial changes. First, in relation both to a parliamentary and a local government election, the reference to a candidate who is elected is omitted; this will ensure that sitting MPs and councillors are treated on an equal footing with other candidates. The second change is that the definition of a local government candidate now includes a starting time for a person’s candidature, namely the last day for the publication of the notice of election (that is, 25 working days before the date of the election). The definition of a candidate in a local government election is also expanded to cover an election of the London members of the Greater London Authority. To avoid election expenses being incurred before that time in an attempt to evade the limit on election expenditure, new section 90A(2) of the 1983 Act (as inserted by section 134) provides that any expenditure on property, goods, services or facilities, purchased in advance of the relevant time but used after it, will nonetheless need to be accounted for as election expenses.
Section 136 : Corrupt and illegal practices : consequences for persons convicted of such practices
236.Section 136 substitutes new sections 173and 173A of the Representation of the People Act 1983 for the existing section 173. At present section 173 of the 1983 Act precludes a person convicted of a corrupt practice from sitting in the House of Commons or holding any public or judicial office, but there is no such provision in respect of conviction for an illegal practice. Section 173 as substituted by this clause brings the consequences of conviction for an illegal practice into line with those for conviction for a corrupt practice. Subsections (4) and (5) of the new section 173 are intended to clarify the law in respect of the vacation of a seat or office following conviction for a corrupt or illegal practice. The vacation of a seat or office under subsection (4) will be final. However, subsection (5) makes provision for a stay of vacation where a notice of appeal against conviction is given, until either the determination of that appeal or the end of a period of three months whichever is sooner. The revised section 173 clarifies the statutory provisions following the Divisional Court’s decision of 30 April 1999 in the case of Fiona Jones. In its revised form section 173 will now deal only with the electoral consequences of a conviction for a corrupt or illegal practice. The loss of any public or judicial office (other than an elected office) will henceforth be dealt with under the normal conditions of employment for such offices. However, new section 173A of the 1983 Act preserves in respect of Scotland the penalty of loss of any public or judicial office following a conviction for a corrupt practice.
Section 137 and Schedule 17 : Corrupt and illegal practices: election petitions etc
237.Section 137 introduces Schedule 17 which amends the provisions of the Representation of the People Act 1983 in respect of the procedure on election petitions and the consequences of reports by election courts. The changes to the 1983 Act made by Schedule 17 in respect of election petitions are largely by way of repeal of provisions which are no longer considered necessary to the effective operation of the petitioning procedures.
Section 138 and Schedule 18 : Election campaigns and proceedings: miscellaneous amendments
238.Section 138 introduces Schedule 18 which makes various changes to Parts II and III of the Representation of the People Act 1983. Paragraphs 2, 12, and 13 of Schedule 18 repeal sections 72, 101 to 105, and 108 of the 1983 Act respectively, which are considered out of date and no longer serve a useful purpose.
239.Paragraphs 3 to 5 of Schedule 18 are concerned with the payment of election expenses. Paragraph 3(2) and (5) amend subsections (1) and (5) of section 73 of the 1983 Act respectively so as to specify more clearly the circumstances in which the requirement that the payment of election expenses be made through an election agent applies. Paragraph 3(3) amends section 73(2) so that any payment of £20 or more in respect of election expenses may be vouched by an invoice or a receipt instead of an invoice and a receipt. New subsection (1B) of section 74 of the 1983 Act, which is inserted by paragraph 4(3), provides that a candidate may pay any election expenses incurred by him before the date on which he appoints an election agent. New section 74A of the 1983, inserted by paragraph 5, disapplies the requirement that election expenses are paid only through a candidate’s election agent in circumstances where the expenses are originally incurred by a candidate in respect of goods, services or facilities for purposes other than his election, but which subsequently fall to be treated, on account of their use for that purpose, as election expenses. In such circumstances, however, the candidate’s agent is required to make a declaration as to the amount of expenses that fall to be treated as election expenses as mentioned in new section 74A(1).
240.Paragraph 7 of Schedule 18 amends section 81 of the 1983 Act principally to omit the requirement that the form of return for candidates’ election expenses should be that in Schedule 3 to that Act. The form of return in Schedule 3 is now considered out of date referring, for example, to telegrams but not to modern forms of communication. New section 81(10A) of the 1983 Act, inserted by paragraph 7(7), instead provides that the Electoral Commission may set out a form of return in regulations.
241.Paragraph 8 of Schedule 18 repeals section 82(4) of the 1983 Act thereby removing the requirement that an election agent’s declaration as to the accuracy of an expenses return must be witnessed by a justice of the peace or other specified person.
242.Paragraph 9 of Schedule 18 inserts new section 87A into the 1983 Act. This new section places a duty on returning officers in respect of parliamentary elections and elections of the Mayor of London to forward returns as to election expenses to the Electoral Commission. As regards other local government elections, the returning officer is required to forward a copy of a particular return if requested to do so by the Commission. This provision links into the Commission’s functions of monitoring compliance with the restrictions on candidates’ election expenses contained in section 145 of this Act.
243.Paragraph 14 of Schedule 18 substitutes a new section 110 of the 1983 Act. This section is concerned with the information that must appear on election publications intended to promote or procure the election of a particular candidate. Subsections (3) to (6) of the new section 110 are concerned with printed documents such as leaflets, posters and newspaper advertisements. Subsection (3) specifies the relevant details that must be included in a printed document, namely the name and address of the printer, promoter, and any other person on behalf of whom the material is published (and who is not the promoter). The reference to the “promoter” of the material (in subsection (3)(b)) is intended to cover the agent of a candidate or of a third party who caused the material to be published. The person referred to in subsection (3)(c) is the candidate or third party itself. Subsection (4) is concerned with a single-sided document such as a poster. Subsection (5) is concerned with documents of two or more sides such as a leaflet. Subsection (6) is concerned with advertisements in newspapers or periodicals. Subsections (7) and (8) enable regulations to be made imposing requirements as to the inclusion of relevant details in any election material which is not a printed document. Subsections (9) to (12) create offences and provide for a defence where a contravention of the requirements took place in circumstances beyond a person’s control (for example, where the agent of a candidate supplied to a newspaper the text of an advertisement which included the relevant details, but owing to an error by the newspaper publisher these details did not appear in the advertisement as printed). Subsection (13) defines certain terms used in the section.
244.Paragraph 18 of Schedule 18 repeals various provisions of the 1983 Act relating to legal proceedings; such matters are now dealt with by rules of court.
245.Paragraph 19 of Schedule 18 updates the terminology used in the 1983 Act in relation to legal proceedings. The terms “writ” and “summons” are no longer appropriate. The current terminology varies as between the three legal jurisdictions in England and Wales, Scotland and Northern Ireland. The phrase “legal process” is therefore used as a catch-all and is defined so as to include new documents used in England and Wales (for example, a claim form and application form) and the existing terminology used in Scotland and Northern Ireland.
