26. Taken overall, the fact that the advertisements
appeared virtually simultaneously; the proximity of publication
to the Welsh Assembly elections; the prominent use of party logos;
and the extensive nature of the reports' distribution beyond the
Members' own constituencies, in our view constitutes campaigning,
and therefore breaches paragraph 6.1.1. of the Green Book.
27. We recognise that all three Members took steps
to seek to ensure compliance with the rules, but the advice given
to them, in good faith, was based on incomplete information, as
the investigation demonstrated.
The Members concerned must bear responsibility for the outcome.
28. We have already said that Mr Williams should
repay the sum claimed from his Communications Allowance in respect
of his advertisement. Mr Llwyd and Mr Price should do likewise.
29. This case has also raised the possible application
in some circumstances of the provisions of section 72 of the Political
Parties, Elections and Referendums Act 2000 (PPERA) to Communications
Allowance funded expenditure. In essence, the issue is the circumstances
in which such expenditure may be classified as 'campaign expenditure'
for the purposes of that section. The Commissioner has helpfully
attached to his report an extract of the relevant statutory provisions.
30. This is the first occasion on which this point
has been raised in the context of the publication of a parliamentary
newsletter. As the Commissioner points out,
this question, which is a matter for the Electoral Commission,
is separate and distinct from that of whether such a publication
complies with the requirements of the Communications Allowance,
not least because of differences in the scope of what constitutes
'campaigning' between the rules for the Allowance and for the
purposes of section 72 (which is much broader). There is nevertheless
clearly an interaction between the two.
31. We consider that it would be helpful to Members
if, in his forthcoming report on general Communications Allowance
related matters, the Commissioner considered the possible implications
for Members of the interaction between the Communications Allowance
rules and the requirements of section 72, PPERA.