Schedule 2: Civil sanctions: Schedule to be inserted into the 2000 Act
240.Schedule 2 to the Act inserts new Schedule 19C into the 2000 Act. It sets out the range of new civil sanctions available to the Commission.
Part 1: Fixed monetary penalties
241.Paragraph 1 allows the Electoral Commission to impose fixed monetary penalties where they are satisfied beyond reasonable doubt that a prescribed offence under the 2000 Act has been committed or that a contravention of a prescribed requirement or restriction contained in that Act has taken place. “Prescribed” means prescribed in an order by the Secretary of State. Under sub-paragraph (1) a fixed monetary penalty can be imposed on a person who has committed the breach. In this context a “person” means any entity regulated under PPERA, including a regulated individual, party, third party or permitted participant.
242.Sub-paragraphs (2) to (4) allow the Commission to impose a fixed monetary penalty on a political party, a recognised third party or a permitted participant respectively, where a person acting on behalf of that organisation has committed an offence. These sub-paragraphs allow the penalty to be imposed in addition to any penalty imposed under sub-paragraph (1). The purpose of the additional sub-paragraphs (2) to (4) is primarily to enable an order made under paragraph 16 of this Schedule to replicate or expand upon the approach in the previous section 147 of the 2000 Act, whereby civil sanctions could be imposed on an organisation for the act of one of its officers. So, for example, in the case of a registered party a notice may be served on the party itself if the Commission are satisfied beyond reasonable doubt that a person holding office within the party has committed an offence or contravened a requirement that has been prescribed for the purposes of sub-paragraph (2). Doing so would have no effect on the position that the individual or the party may, as a separate matter, be primarily liable itself for an offence or breach of requirement, and therefore subject to a penalty, that has been prescribed for the purposes of sub-paragraph (1).
243.Sub-paragraph (5) explains that the imposition of a fixed monetary penalty will require the individual or other person concerned to pay a prescribed amount of money to the Commission. Sub-paragraph (6) states that where an individual is issued with a fixed monetary penalty for an offence which is triable summarily (whether or not it can also be tried on indictment) and punishable on summary conviction by a fine, the penalty imposed must not be higher than the maximum fine available in summary proceedings.
244.Paragraph 2 sets out the representations and appeals processes. Sub-paragraph (1) requires the Commission to serve notice of any intention to impose a fixed monetary penalty on a person. This notice must offer the person the opportunity to discharge the penalty at that point by paying a prescribed amount, which cannot exceed the amount of the proposed penalty (sub-paragraph (2)). Alternatively, the person can opt to make written representations and objections to the Commission against the proposal to impose the penalty (sub-paragraph (3)). If the deadline for making representations and objections passes without the person having paid the prescribed amount under sub-paragraph (2), the Commission must decide whether to impose the penalty. If the Commission does decide to impose it, a further notice recording that must be served on the relevant person (sub-paragraph (4)). Sub-paragraph (5) provides that if the person’s representations have raised any matter that leads the Commission to no longer suspect the person of having committed a prescribed offence or contravened a prescribed requirement or restriction of the 2000 Act, the Commission may not impose the penalty. That sub-paragraph also enables the Secretary of State to prescribe other circumstances in which a penalty may not be imposed. The person may appeal against the decision to impose the penalty on the grounds set out in sub-paragraph (6). Sub-paragraph (7) specifies that these appeals will be made to a county court, or in Scotland the sheriff.
245.Paragraph 3 explains what information the Commission must include when giving notice of an intention to impose a fixed monetary penalty on a person or when giving notice of a subsequent decision to impose the penalty. This must include information such as the grounds for imposition of the sanction, the right to make representations or appeals and the time periods in which these can be made.
246.Paragraph 4 limits the criminal proceedings that can be taken against a person for a prescribed offence or other breach of the 2000 Act that may be dealt with by way of fixed monetary penalty. Under sub-paragraph (1) if the Commission notify the person of their intention to impose a fixed monetary penalty for the breach, no criminal proceedings for the breach can be brought during the period when liability can be discharged under paragraph 2(2). This sub-paragraph also precludes such proceedings being taken against a person who does discharge liability by making a payment under paragraph 2(2). Finally, paragraph 4(2) precludes a person on whom the Commission imposes a fixed monetary penalty under paragraph 2(4) from being convicted of an offence for the breach.
Part 2: Discretionary requirements
247.Paragraph 5(1) allows the Electoral Commission to impose a discretionary requirement on a person where they are satisfied, beyond reasonable doubt, that the person has committed a prescribed offence or contravened a prescribed restriction or requirement of the 2000 Act. Sub-paragraphs (2) to (4) achieve for discretionary requirements the same effect as is achieved for fixed monetary penalties by paragraph 1(2) to (4) of this Schedule. Sub-paragraph (5) defines a discretionary requirement as a sanction that can take the form of a monetary penalty or, alternatively, an instruction to take certain actions designed to either prevent the recurrence of the offence or contravention or restore the position to what it would have been had the offence or contravention not occurred. Sub-paragraph (6) limits the use of discretionary requirements by preventing the Commission from imposing a discretionary requirement on a person more than once for the same act or omission. Sub-paragraph (8) sets the financial limit of a variable monetary penalty for offences which are triable summarily, stating that, where such offences are punishable by a fine, the variable monetary penalty must not be greater than the maximum fine.
248.Paragraph 6(1) requires that, where the Commission intend to impose a discretionary requirement on a person for a prescribed offence or other breach of the 2000 Act, they must first notify the person of their intention. Sub-paragraph (2) allows the person to make written representations and objections to the Commission against the proposed penalty. If anything is raised which leads the Commission to no longer be satisfied that the prescribed offence or contravention took place, the Commission may not impose the penalty (sub-paragraph (4)). In all other cases, the Commission may proceed to serve on the person a notice formally imposing the discretionary requirement, which will specify what the requirement is (sub-paragraph (5)). The person may appeal to a county court (or Sheriff in Scotland) against the decision to impose the discretionary requirement, on a number of specified grounds (sub-paragraphs (6) and (7)).
249.Paragraph 7 explains what information the Commission must include when giving the initial notice of an intention to impose a discretionary requirement on a person. This includes the grounds for imposing the requirement and the period within which representations and objections may be made (no less than 28 days from the day on which the notice is received). Sub-paragraph (3) sets out the information that must be provided by the Commission when they are imposing a discretionary requirement. This is: the grounds for the proposed discretionary requirement, details of any monetary penalty, rights of appeal and the consequences of non-compliance.
250.Paragraph 8 limits the use of other sanctions against a person who has had a discretionary requirement imposed upon them. It provides that if a discretionary requirement is imposed on a person for an offence or a contravention of a restriction or requirement under the 2000 Act, that person cannot be convicted of a criminal offence arising from the same act or omission. However, this protection from future prosecution does not apply in cases where the discretionary requirement imposed was non-monetary, no variable monetary penalty was imposed, and the person failed to comply with the non-monetary discretionary requirement.
251.Paragraph 9 allows the Commission to impose a “non-compliance penalty” on a person who fails to comply with a non-monetary discretionary requirement; and also sets out the grounds and avenue of appeal against a non-compliance penalty (sub-paragraphs (3) and (4)).
Part 3: Stop notices
252.Paragraph 10 provides that the Electoral Commission can impose a stop notice on a person in order to prevent them from continuing or repeating a particular activity which the Commission reasonably believe is (or is likely to be) a prescribed offence or a contravention of a prescribed requirement or restriction under the 2000 Act. In this context a “person” means any entity regulated under the 200 Act, including political parties. A stop notice can also be imposed where the Commission believe that a person’s behaviour is likely to lead to them committing an offence or acting in contravention of a prescribed requirement or restriction contained in the 2000 Act. In both cases the Commission must believe that the activity, or potential activity, is seriously damaging to public confidence in the effectiveness of the controls in the 2000 Act on income or expenditure by registered parties and others, or that it significantly risks doing so.
253.Paragraphs 11 to 14 set out the details and limitations of how the stop notice system operates. Paragraph 11 lists the information to be included in a stop notice which is the grounds for imposition, rights of appeal and consequences of non-compliance. Paragraph 12 requires the Commission to issue a “completion certificate” once they are satisfied that the person has taken the steps set out in the stop notice (at which point it will cease to have effect). The person upon whom a notice has been imposed may apply for a completion certificate at any time and the Commission must make a decision on the application within 14 days of receipt. Paragraph 13 explains how a person may appeal against the imposition of a stop notice, or against a decision not to issue a completion certificate, and provides that any appeal will be heard by a county court (or the sheriff in Scotland). It also sets out the grounds for appeal in both circumstances. Paragraph 14 provides that a person who does not comply with a stop notice is guilty of an offence.
Part 4: Enforcement undertakings
254.Paragraph 15 outlines the powers of the Commission to accept an enforcement undertaking from a person whom the Commission have reasonable grounds for believing has committed a prescribed offence or contravened a prescribed restriction or requirement of the 2000 Act. In this context a “person” means any entity regulated under the 2000 Act, including political parties. An enforcement undertaking may be offered by the person suspected of the offence or contravention and outlines the action they will take (within a specified period). The action may be with a view to preventing the recurrence of the offence or contravention or returning the position to what it would have been had the offence or contravention not taken place or it may be action of a kind that has been prescribed in an order by the Secretary of State. Sub-paragraph (1)(d) requires that the undertaking will take effect only if the Commission accept it. Sub-paragraph (2) provides that a person who has complied with the accepted undertaking will generally be exempt from other sanctions, including criminal proceedings, in relation to the acts or omissions on which the undertaking is based as long as the undertaking is complied with.
Part 5: Power to make supplementary provision etc by order
255.Paragraph 16 gives the Secretary of State the power to make orders that are supplemental to, consequential on or incidental to this Schedule. Such provisions may include transitional provision. This includes the power to amend, repeal or revoke any enactment.
256.Paragraph 17 sets out the consultation process that the Secretary of State must carry out prior to making a supplementary order under paragraph 16. As part of this process the Electoral Commission must be consulted, along with other persons that the Secretary of State considers appropriate. Under sub-paragraph (2) further consultation is required where, following the outcome of the initial consultation, it is apparent that substantial changes to an order will be necessary. Any consultations which are conducted prior to the commencement of this Schedule may count for these purposes.
257.Paragraph 18 sets out the details of what can be included in a supplementary order regarding the Commission’s power to impose financial sanctions, including fixed monetary penalties, variable monetary penalties and non-compliance penalties. In particular, provision made by virtue of this paragraph may include detail about early payment discounts, late payment penalties, late payment interest and enforcement.
258.Paragraph 19 sets out the details of what can be included in a supplementary order in relation to enforcement undertakings. The order may include a wide range of detail about procedural matters relating to undertakings, for example, how undertakings are entered into and in what circumstances undertakings are regarded as having been complied with.
259.Paragraph 20 states that a supplementary order may extend the time available to institute criminal proceedings against a person in certain instances. The first of these is where a non-monetary discretionary requirement (but no variable monetary penalty) has been imposed and the person has failed to comply with the non-monetary discretionary requirement. The second is where there has been a breach of all or part of an enforcement undertaking.
260.Paragraph 21 allows a supplementary order to set out the details of the appeals process in relation to the imposition of a requirement or the service of a notice under this Schedule. Such an order may include provision conferring relevant powers on courts (for example, to withdraw the requirement or notice against which there is an appeal).
Part 6: General and supplemental
261.Paragraph 22 limits the use of fixed monetary penalties, discretionary requirements and stop notices. It explains that a fixed monetary penalty may not be imposed on a person if they are 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, they cannot be given a discretionary requirement or a stop notice in relation to the breach.
262.Paragraph 23 provides that, if someone is required under Schedule 19B to the 2000 Act to make a statement as part of an investigation by the 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 19B to the 2000 Act.
263.Paragraph 24 stipulates that any financial penalty imposed on an unincorporated association must be paid from its own funds.
264.Paragraph 25 requires the Commission to publish guidance about enforcement of the 2000 Act. 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 its functions.
265.Paragraph 26 stipulates that all monetary penalties paid to the Commission as a result of the imposition of the civil sanctions under the Schedule must be paid into the Consolidated Fund.
266.Paragraph 27 requires the Commission to include in their annual report a list of the cases (other than those where sanctions have been successfully appealed against) in which they have imposed fixed monetary penalties, discretionary notices 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 (2) enables the Commission to exclude information if it might be unlawful for the report to include it (for example, because its inclusion might breach the right to respect for private and family life protected by Article 8 of the European Convention on Human Rights, or there is a statutory restriction on its disclosure). It also enables the Commission to exclude any information that might adversely affect ongoing investigations or proceedings.
267.Paragraph 28 lists the public bodies from which the Commission may request information when exercising the powers under the Schedule. It also precludes disclosures that would contravene certain other relevant legislation on data protection, and provides that powers of disclosure that are independent of this power are not affected by it.
Part 7: Interpretation
268.Paragraph 29 sets out definitions of words and expressions used in the Schedule.