Select Committee on Delegated Powers and Deregulation Twenty-Ninth Report



ANNEX

POLITICAL PARTIES, ELECTIONS AND REFERENDUMS BILL

Memorandum by the Home Office

This memorandum is concerned with the Political Parties, Elections and Referendums Bill and is supplemental to the memorandum dated 17 March 2000 and reported on in the Eleventh Report of the Committee (29 March 2000).

The Bill has been amended on the first day of Committee in the House of Lords (on 11 May 2000). The Government has also tabled further amendments. This memorandum concerns the amendments which have not yet been considered and which confer powers for delegated legislation. It explains in each case the purpose of the power, the reason why the matter has been left to delegated legislation and the nature and reason for the procedure selected.

References are to the Bill as brought from the Commons and ordered to be printed on 16 March 2000.

Proposed amendment to Clause 12 (amendment 50 on the Marshalled List) - education about electoral and democratic systems

An amendment is proposed to clause 12, which provides for the Commission to promote public awareness of electoral and democratic systems. The amendment, which adds subsection (7) to (11), would enable Scottish Ministers by order to provide that, despite subsection (3), the Commission may perform the functions conferred by clause 12 in relation to local government elections or to local government in Scotland. Subsection (8) would provide that subsection (6), which specifies the total expenditure the Commission may incur under clause 12, shall not apply to expenditure incurred by virtue of an order under subsection (7), but that such expenditure shall not exceed a sum specified by an order made by the Scottish Ministers. Subsection (9) would provide for the Scottish Ministers to reimburse the Commission for expenditure incurred pursuant to subsection (8). The power to make consequential, incidental, transitional or savings provisions and to make different provision for different cases is applied by subsection (10). The orders under these amendments would be made by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.

This matter has been left to delegated legislation because, pursuant to the Scotland Act 1998, local government elections in Scotland are a transferred matter. It is therefore for the Scottish Executive to decide whether the Commission should be able to provide advice and assistance in respect of such elections. That decision will be made at a future date. The order is subject to annulment by the Scottish Parliament consistent with devolution.

Proposed new clause after clause 17 (supplement I(k) to the Marshalled List) - Local Government Boundary Commission for Scotland

This proposed new clause enables the Scottish Ministers by order to make provision for the transfer to the Electoral Commission or the Boundary Committee for Scotland (see clause 13) any of the functions of the Local Government Boundary Commission for Scotland ("the Scottish Commission"). Once each of the functions of the Scottish Commission is transferred the Scottish Ministers may by order make provision for the abolition of the Scottish Commission. An order under subsection (1) or (3) may include provision for the transfer to the Commission of staff and property of the Scottish Commission and may include provision for the abolition of any duty of the Scottish Commission. Clause 146(5) applies to orders made under this new clause, which enables consequential etc. provisions to be made. The order would be made by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.

This matter has been left to delegated legislation since different functions may be transferred at different times, depending upon the capacity of the Commission to take on these functions and the will of Scottish Ministers. This will also dictate when the Scottish Commission can be abolished. It will not be possible to identify those staff and property that should be transferred until the function has been identified. The order would be subject to annulment by the Scottish Parliament consistent with devolution. The new clause mirrors clause 18 which makes similar provision in respect of the Local Government Boundary Commission for Wales.

Proposed new clause to be inserted after clause 46 (supplement I(k) to the Marshalled List) - Sponsorship

The proposed new clause defines sponsorship for the purposes of Part IV of the Bill (controls on donations to registered parties and their members). It does so by reference to the transfer of money to help a party in meeting the expenses set out in subsection (2). This is subject to the exclusions in subsection (3). Under subsection (4), the Secretary of State may by order made on the recommendation of the Electoral Commission amend subsections (2) or (3). By virtue of an amendment to clause 146(4), such an order would be subject to the affirmative resolution procedure.

The definition of sponsorship by reference to specific activities is a new area of law. Practice may show that some other activities should be included or that there should be further exclusions from the definition. The power to amend these provisions by subordinate legislation enables such a change to be made. There are two safeguards. First, the change can be made only on the recommendation of the Electoral Commission. Secondly, such a change requires the approval of each House of Parliament.

Equivalent definitions of sponsorship are included in amendments to Schedule 6 (control of donations to individuals and members associations), Schedule 10 (control of donations to recognised third parties), Schedule 14 (control of donations to permitted participants at a referendum) and Schedule 15 (control of donations to candidates: new Schedule 2A to the Representation of the People Act 1983). An equivalent power to amend the definitions (by order of the Secretary of State made on the recommendation of the Electoral Commission) is included in each case. By virtue of amendments to clause 146(4) these powers (except the one in Schedule 15) are subject to the affirmative resolution procedure; provision making such an order subject to the affirmative resolution procedure is include in paragraph 2A(5) of new Schedule 2A which Schedule 15 will insert in the Representation of the People Act 1983.

Proposed amendment to Clause 65 (supplement I(e) to the Marshalled List) and Schedule 6 (supplement I(j) to the Marshalled List) - Special provisions for Northern Ireland parties

The proposed amendments to clause 65 would widen the provision which allows for an order exempting from specified provisions of Part IV any specified information and would enable the order to disapply any specified provisions of Part IV. In addition the order may apply specified provisions of Part IV with modifications. Equivalent amendments are made to Schedule 6.

This matter has been left to delegated legislation because the terms of the order will depend upon the situation in Northern Ireland at a particular time. A subsequent proposed amendment to clause 146 makes the order subject to affirmative resolution, in response to an undertaking given to the House of Commons (Hansard 14.3.2000, col 204).

Proposed new clause after clause 120 (supplement I(j) to the Marshalled List) - details to appear on referendum material

The proposed new clause relates to material relating to a referendum published during the referendum period. Printed documents must comply with subsection (3), (4) and (5); other material must comply with any requirements imposed by regulations under subsection (6). Those regulations may make provision in relation to including in the material details of the promoter and any person on behalf of whom the material is being published. The regulations may, in particular, specify the circumstances in which a requirement does not have to be complied with by a person specified and where a breach of such requirement is not to result in the commission of a criminal offence. The regulations would be made by statutory instrument subject to the negative resolution procedure.

This matter has been left to delegated legislation because there are a number of ways in which material may be published which do not involve printing and different requirements will need to be imposed on different media. Changes in technology may require amendments to be made to the regulations. It is thought that there should be some Parliamentary scrutiny of the regulations but as the Secretary of State must consult the Commission before making regulations it is thought that the negative resolution procedure is sufficient.

Proposed new clause after clause 126 (supplement I(j) to the Marshalled List) - Power to vary provisions about elections expenses

This proposed new clause which substitutes section 76A of the Representation of the People Act 1983 enables the Secretary of State, by order, to vary any of the sums specified in the sections listed in subsection (1), where he considers the variation is expedient in consequence of the changes in the value of money or in order to give effect to a recommendation of the Commission. The order is made by statutory instrument and if made under paragraph (b), subject to annulment in pursuance of a resolution of either House of Parliament. Subsection (2) of the new clause provides that the substituted subsection (1) of section 76A shall be a pre-commencement enactment, which will confer the power to make orders on Scottish Ministers in respect of devolved matters consistent with devolution. This matter has been left to delegated legislation because the specified sums will need to be amended from time to time. It is thought desirable that the order be subject to some Parliamentary scrutiny but in view of the limited circumstances when such an order may be made it is thought that the negative resolution procedure is sufficient. This is consistent with orders under clause 145(2).

New section 110 of the Representation of the People Act 1983 (to be inserted by a proposed addition to Schedule 17 - supplement I(j) to the Marshalled List) - Details to appear on election publications

The proposed replacement section 110 of the 1983 Act relates to material intended to promote or procure the election of a candidate at an election. Printed documents must comply with subsection (4), (5) and (6); other material must comply with any requirements imposed by regulations under subsection (7). Those regulations may make provision in relation to including in the material details of the promoter and any person on behalf of whom the material is being published. The regulations may, in particular, specify the circumstances in which a requirement does not have to be complied with by a person specified and where a breach of such requirement is not to result in the commission of a criminal offence. The regulations are made by statutory instrument subject to the negative resolution procedure.

This matter has been left to delegated legislation because there are a number of ways in which material may be published which do not involve printing and different requirements will need to be imposed on different media. Changes in technology may require amendment of the regulations. It is thought that there should be some Parliamentary scrutiny of the regulations but as the Secretary of State must consult the Commission before making regulations it is thought that the negative resolution procedure is sufficient.

Proposed new clause after clause 134 (supplement I(j) to the Marshalled List) - details to appear on election material

The proposed new clause relates to election material. Printed documents must comply with subsection (3), (4) and (5); other material must comply with any requirements imposed by regulations under subsection (6). Those regulations may make provision in relation to including in the material details of the promoter and any person on behalf of whom the material is being published. The regulations may, in particular, specify the circumstances in which a requirement does not have to be complied with by a person specified and where a breach of such requirement is not to result in the commission of a criminal offence. The regulations would be made by statutory instrument subject to the negative resolution procedure.

This matter has been left to delegated legislation because there are a number of ways in which material may be published which do not involve printing and different requirements will need to be imposed on different media. Changes in technology may means additions to the regulations. It is thought that there should be some Parliamentary scrutiny of the regulations but as the Secretary of State must consult the Commission before making regulations it is thought that the negative resolution procedure is sufficient.

Proposed amendment to Clause 135 (amendment 281 on the Marshalled List) - Enforcement of Act

The proposed amendment relates to the general functions of the Commission, which include monitoring compliance with the Act and resolutions and requirements imposed by other enactments in relation to election expenses and donations. Subsection (2) provides that the latter function does not apply to local government elections in Scotland unless and to the extent that the Scottish Ministers may by order so provide. The order would be made by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.

This matter has been left to delegated legislation because, pursuant to the Scotland Act 1998, local government elections in Scotland are a transferred matter. It is therefore for the Scottish Executive to decide whether the Commission should enforce compliance with legislation in respect of such elections. That decision will be made at a future date. The order is subject to annulment by the Scottish Parliament consistent with devolution.

Amendment to Clause 146 (amendment 316 on the Marshalled List) - Orders

This provision has been amended so that an order made under clause 65 (see above) is subject to affirmative resolution.

Amendment to section 29 of the Representation of the People Act 1983 (to be inserted by a proposed addition to Schedule 20 - supplement I(k) to the Marshalled List) - Payments by and to returning officers.

An amendment to Schedule 20 will replace subsections (3) to (9) of section 29(3) of the Representation of the People Act 1983 Act with new subsections. The effect of these will be to transfer from the Secretary of State to the Electoral Commission responsibility for the payment of the reasonable charges of returning officers at parliamentary elections. At present, those charges are governed by an order made by the Secretary of State with the consent of the Treasury. Under the new subsections the charges will be governed by regulations made by the Electoral Commission with the consent of the Treasury. As with the current order, these regulations will not be subject to any parliamentary procedure.

October 2000


 
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