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Elections Act 2022

Contents

Part 5: Disqualification of offenders for holding elective office etc

Section 30: Disqualification orders

  1. Subsection (1) of section 30 sets out the circumstances in which the section applies, i.e.:
    1. An offender is convicted by a criminal court of an offence listed in Schedule 9 which was committed when the offender was aged 18 or over; and
    2. The offence is aggravated by hostility related to candidates (as defined in section 32), holders of relevant elective offices (as defined in section 33) or campaigners (as defined in section 34).
  2. Subsection (2) provides that, in those circumstances, the court must, when dealing with the offender for the offence, also make a disqualification order. The effect of the disqualification order is that the offender is disqualified from being nominated for election to, being elected to or holding certain elective offices for a period of 5 years. This 5-year period starts on the date the order is made. Section 37 lists the relevant elective offices to which the disqualification applies.
  3. Under subsection (3) the court does not have to make the disqualification order if they consider it would be unjust due to particular circumstances about the offence or the offender. Where the court determines not to make the order, the court must give its reasons for not doing so in open court.
  4. Subsections (4) and (5) provide the criteria by which a court determines whether an offence is aggravated by hostility related to a candidate, holder of elective office or campaigner for the purposes of subsection (1)(c). Subsection (4)(a) provides that an offence is aggravated by hostility if the offender demonstrated hostility towards the victim of the offence because the victim is, or the offender presumes the victim to be, a candidate etc. Examples of this hostility include, but are not limited to, hostility based on: the victim’s status as a candidate etc.; activities undertaken wholly or partly in the victim’s capacity as a candidate etc.; an opinion held or not held by the candidate etc.; a policy advocated or opposed by the candidate etc. The hostility must be demonstrated by the offender at the time of committing the offence, or immediately before or after the commission of the offence.
  5. Subsection (4)(b) provides that an offence is aggravated by hostility if the offence was motivated (wholly or partly) by hostility towards persons in their capacity as candidates, holders of relevant elective offices or campaigners. Subsection (4)(b) does not specify that the ‘victim’ of the offence must be a candidate etc. in order for the offence to be aggravated by the necessary hostility. This means that an offence could be aggravated by hostility for the purposes of subsection (1)(c) where (for example) an offender commits a relevant offence against person A (e.g., a candidate’s parent) and that offence is motivated by the offender’s hostility towards person B because B is a candidate.
  6. Subsection (5) provides that it is immaterial for the purposes of subsection (4) whether or not an offender’s hostility is also based (to any extent) on any other factor not listed in that subsection, i.e., a factor other than the victim being or being presumed by the offender to be a candidate etc., or a factor other than hostility towards persons in their capacity as a candidate etc.
  7. Subsection (6) allows the court to consider evidence presented by the prosecution or defence in deciding whether or not to make a disqualification order under this section. Subsection (7) allows the court to consider such evidence even where that evidence would not have been admissible in the proceedings in which the offender was convicted.
  8. Subsection (8) provides, for the purposes of determining whether an offender was aged 18 or over when the offence was committed, that where an offender is found to be committed over more than a single day it is taken to have been committed on the last of those days.
  9. Subsection (9) provides definitions used in this section.

Section 31: Vacation of office etc

  1. Section 31 sets out the process by which a holder of a relevant elective office who is disqualified from holding that office as a result of a disqualification under section 30 should vacate their office. It is modelled on the existing provision in section 173(4) to (8) of the RPA 1983 which governs the process for a person vacating an office as the result of incapacities arising from being convicted of a corrupt or illegal practice (although the new disqualification order is not a corrupt or illegal practice.)
  2. Subsection (2) provides that the holder’s office is vacated at the end of the 3-month period after the court made the disqualification order or, if earlier, the end of the period during which an appeal against the criminal conviction or sentence is allowed if such an appeal is not made by the person during that period.
  3. When the office-holder makes an appeal against their conviction or the making of a disqualification order subsection (3) provides that the office is vacated at the end of the 3-month period unless:
    1. the appeal is dismissed or abandoned before the 3-month period expires, in which case the office is vacated at that earlier time; or
    2. the appeal is upheld before the 3-month period expires, in which case the holder is not required to vacate their office.
  4. Subsection (4) provides that the office-holder is suspended from performing any of the functions of their office from the date that the disqualification order is made until either the date on which the holder’s office is vacated in accordance with this section, or the date within the 3-month period on which a court upholds the appeal against the officeholder’s conviction or the making of the disqualification order (as described in subsection (3)). In the latter case, the holder’s office is not vacated and the suspension also ceases.
  5. Subsection (5) provides that, where an office-holder’s appeal is successful after their office has already been vacated in accordance with this section, the former office-holder is not entitled to resume that office as a result of that successful appeal.
  6. Subsection (6) defines the term "order date", which is used in the section.

Section 32: Candidates etc.

  1. Section 32 describes the first category of persons referred to in section 30, hostility against whom on the part of an offender may result in the making of a disqualification order under that section. Subsection (1) provides that this category includes:
    1. candidates or future candidates in respect of elections for a relevant elective office or a relevant Scottish elective office;
    2. substitutes or nominees in relation to the seats of a member of the Northern Ireland Assembly or a member of a district council in Northern Ireland.
  2. Subsection (2) provides that "candidate" in subsection (1) includes individuals named on a list of candidates for those elections where winning candidates are selected from submitted lists (for example, elections to the Scottish Parliament or the London Assembly).
  3. Subsection (3) defines "future candidate" for the purposes of this section as an individual whose intention to stand as a candidate at the next scheduled election for a relevant elective office or a relevant Scottish elective office has been declared, but whose formal candidacy has not yet officially begun.
  4. Subsection (4) defines "substitute" for the purposes of this section as an individual who is included (or is being considered for inclusion) on a list or notice of possible substitutes provided by an independent member of the Northern Ireland Assembly or of a district council in Northern Ireland. When the office of such an independent member becomes vacant, an individual is chosen from that list or notice to fill the vacancy.
  5. Subsection (5) defines "nominee" for the purposes of this section as an individual who has been nominated (or is being considered for nomination) by the nominating officer of a registered political party to fill a vacancy in the office of a member of the Northern Ireland Assembly or of a district council in Northern Ireland where that member was a member of the registered political party. The term "nominee" also includes an individual who is being considered for such a nomination by a nominating officer. Subsection (6) provides that where a member of a district council was a member of more than one registered political party, the references to the nominating officer in subsection (5)(b) are to be read as references to the nomination officers of each of the registered political parties concerned.
  6. Subsection (7) defines other terms used in the section.

Section 33: Holders of relevant elective offices

  1. Section 33 describes the second category of persons referred to in section 30 as holders of a relevant elective office or a relevant Scottish elective office (these offices are listed in section 37).
  2. The terms of some relevant elective offices do not commence immediately after the results of an election to that office have been declared: several days can pass between election and the start of a term of office. Subsection (2) clarifies that a person elected to such an office is treated as a "holder of a relevant elective office" for these purposes from the time of their successful election even if their term of office has not yet commenced.

Section 34: Campaigners

  1. Section 34 sets out the third category of persons referred to in section 30 as campaigners. Subsection (1) lists the five types of campaigner for these purposes. The first four types of campaigner (listed in subsection (1)(a) to (d)) are:
    1. an individual who is a permitted participant in relation to a referendum (within the meaning of section 105 PPERA);
    2. an individual who is a recognised third party (within the meaning of section 160 PPERA);
    3. an individual who is involved in the conduct or management of a local referendum campaign; or
    4. an individual who is an accredited campaigner in relation to a recall petition (within the meaning of Part 5 of Schedule 3 to the Recall of MPs Act 2015).
  2. Subsection (1)(e) sets out a fifth type of campaigner. This type of campaigner covers individuals who undertake campaigning activities for election, referendum or recall petition purposes and who are employed or engaged by a person listed in subsection (5) (e.g., a candidate, registered political party, recognised third party, or permitted participant etc.) wholly or partly for the purpose of carrying out such activities. It does not cover individuals who carry out these campaigning activities but who are not employed or engaged wholly or partly for that purpose.
  3. Subsection (2) defines "election purposes" for the purposes of subsection (1)(e). Activities are undertaken "for election purposes" if they are undertaken for the purposes of, or in connection with: (a) promoting or procuring (i) electoral success for a registered party at a relevant election or (ii) the election of a candidate at a relevant election; (b) enhancing the standing of a registered party or a candidate in connection with future elections; and (c) prejudicing the electoral prospects or standing of a registered party or candidate. This includes campaigners who undertake relevant campaigning activities (such as fundraising) at any time of year, not only during a specific election period. This reflects the fact that relevant campaigning takes place, particularly online, outside of formal election periods. Subsections (3) and (4) define "referendum purposes" and "recall petition purposes" respectively for the purposes of subsection (1)(e).
  4. Subsection (5) lists the persons who may employ or engage campaigners for the purposes of subsection (1)(e). Subsection (6) defines other terms used in the section.
  5. Subsection (7) explains that a campaigner can be "engaged by" a candidate etc. for the purposes of subsection (1)(e) if the campaigner provides their services without remuneration. This means that this type of "campaigner" includes volunteers.

Section 35: Election etc of a person to the House of Commons who is subject to a disqualification order

  1. Subsection (1) of section 35 specifies that if a person who is elected as a member of the House of Commons is subject to a disqualification order, then that person’s election is void.
  2. Subsection (2) makes an amendment to the House of Commons Disqualification Act 1975. The effect of this amendment is that a person may apply to Her Majesty in Council in accordance with section 7 of the 1975 Act for a declaration to the effect that a person purporting to be a member of the House of Commons is disqualified by virtue of a disqualification order, in the same way that a declaration can be sought that a person is disqualified for any other reason.

Section 36: Power to amend Schedule 9

  1. Section 36 allows the Secretary of State by subsequent regulations to add to, vary or omit offences from the list of criminal offences in Schedule 9 in respect of which a disqualification order can be made in accordance with section 30.

Section 37: Interpretation of Part

  1. Section 37 defines the terms "disqualification order", "relevant elective office" and "relevant Scottish elective office" which are used in Part 5.

Section 38: Minor and consequential amendments

  1. Section 38 gives effect to Schedule 10, which contains minor and consequential amendments resulting from Part 5.

Schedule 9: Offences for purposes of Part 5

  1. Schedule 9 lists the existing criminal offences of an intimidatory nature in respect of which a disqualification order can be made.

Schedule 10: Disqualification orders: minor and consequential amendments

  1. Paragraph 1 of Schedule 10 amends the rules for Northern Ireland local elections, as set out in Schedule 5 to the ELA (NI) 1962.
  2. Sub-paragraph (2) allows Returning Officers (ROs) to hold a nomination paper invalid in those circumstances where an RO is certain, based on information provided or otherwise available to the RO, that a candidate is disqualified by virtue of a disqualification order. This is not a duty or requirement and is very similar to the existing power which ROs already have under UK Parliamentary election rules, which allows them to hold a nomination paper invalid if a candidate is disqualified by virtue of the Representation of the People Act 1981.
  3. Sub-paragraph (3) makes a small change to the consent to nomination form to include a reference to the disqualification order as a reason why someone might be disqualified for being elected and to ensure that a candidate declares that they are not so disqualified when giving their consent.
  4. Paragraph 2 of Schedule 10 amends the Local Government Act 1972 ("the 1972 Act"). Section 85(1) of the 1972 Act provides that a local authority member ceases to be a member if they fail to attend a meeting of the authority within a period of six consecutive months. Paragraph 2(2) amends section 85(3A) so as to disregard any period of suspension arising from section 31(4) for the purpose of calculating the six-month consecutive period.
  5. Paragraph 2 also amends the 1972 Act so that, where a local authority member is disqualified as a result of a disqualification order, their office is vacated on the date determined in accordance with the procedure set out in section 31.
  6. Paragraph 3 of Schedule 10 amends the Local Government Act (Northern Ireland) 1972. The amendments are equivalent to the amendments to the Local Government Act 1972 described above.
  7. Paragraph 4 of Schedule 10 amends the rules for UK Parliamentary elections, as set out in Schedule 1 to the RPA 1983. The amendments are equivalent to the amendment to the rules in Schedule 5 to the ELA (NI) 1962 described above.
  8. Paragraphs 5 to 7 of Schedule 10 amend the Northern Ireland Act 1998, Greater London Authority Act 1999 and the Government of Wales Act 2006. The amendments relate to the Northern Ireland Assembly, the London Assembly, the office of the Mayor of London and the Senedd Cymru respectively, and are equivalent to the amendments to the Local Government Act 1972 described above.
  9. Paragraph 8 of Schedule 10 amends the Armed Forces Act 2006. New sections 236A and 236B of that Act enable a military court or commanding officer sentencing an offender who is subject to service law to impose a disqualification order in the same circumstances as an offender before a civilian criminal court.
  10. Paragraph 9 of Schedule 10 amends the Police Reform and Social Responsibility Act 2011. The amendments relate to the office of police and crime commissioner and are equivalent to the amendments to the Local Government Act 1972 described above.
  11. Paragraph 10 of Schedule 10 includes a reference to the new disqualification order provisions in section 379(1) of the Sentencing Act 2020.

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