Commentary Schedule 5: Campaign rules: civil sanctions Part 2: Discretionary requirements
290.Paragraph 6 allows the Electoral Commission to impose a discretionary requirement on a person where they are satisfied, beyond reasonable doubt, that the person has committed one of the listed offences or (in the case of a permitted participant) there has been a contravention of the relevant return delivery requirements in paragraph 24 of schedule 3. A discretionary requirement as a sanction can take the form of a monetary penalty or alternatively an instruction to take certain actions designed either to prevent the recurrence of the offence or contravention or to restore the position to what it would have been had the offence or contravention not occurred. Sub-paragraph (4) 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. The maximum monetary penalty is £500,000 under sub-paragraph (3), but sub-paragraph (6) sets a further limit for offences which are triable summarily only—where such offences are punishable by a fine, the variable monetary penalty must not be greater than the maximum fine.
291.Paragraph 7(1) requires that, where the Commission intend to impose a discretionary requirement on a person for a listed campaign offence or other breach, 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 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 sheriff against the decision to impose the discretionary requirement on the grounds specified in sub-paragraph (6), and the discretionary requirement is suspended until the appeal is determined or withdrawn.
292.Paragraph 8(1) sets out 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, such as the grounds for the proposed discretionary requirement, details of any monetary penalty, rights of appeal and the consequences of non-compliance.
293.Paragraph 9 limits the use of other sanctions against a person who has had a discretionary requirement imposed upon them. If a discretionary requirement is imposed on a person, 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.
294.Paragraph 10 provides that where the Commission are satisfied that a discretionary requirement has been complied with, they must issue a certificate confirming that this is the case. This causes the original requirement notice to cease to have effect. A person who has been served with a discretionary requirement notice may apply to the Commission for a compliance certificate and the Commission must decide whether to issue one within 28 days. If the Commission decide not to issue a certificate, the applicant may appeal to a sheriff within 28 days of the date of receiving the Commission’s decision.
295.Paragraph 11 allows the Commission to impose a ‘non-compliance penalty’ on a person who fails to comply with a non-monetary discretionary requirement. The amount of a non-compliance penalty is to be decided by the Commission but must not exceed £10,000. A non-compliance penalty is paid to the Commission. A notice must be served including the grounds for imposing the penalty, specifying a period of at least 28 days to comply, and informing about the right of appeal to the sheriff against a non-compliance penalty (sub-paragraph (4)). A person served with a non-compliance penalty may appeal to a sheriff within 28 days against the notice on the ground that the decision to serve it was based on error of fact, wrong in law, or unfair or unreasonable. Where an appeal is made, the non-compliance penalty is suspended until the appeal is determined or withdrawn.
296.Paragraph 12 requires that a variable monetary penalty must be paid within 28 days of the relevant notice being received, or the amount of the penalty will increase by 25%. If the penalty is not paid within 56 days of the notice being received, it will increase by 50%. Where a penalty is upheld on appeal, or such an appeal withdrawn, the penalty falls to be paid within 28 days of the day of determination or withdrawal. If it is not paid within that period, similar increases apply from the determination or withdrawal of the appeal.