1. Applying electoral sanctions to existing criminal offences
The consultation asks for views on introducing a new offence in electoral law. However, the consultation actually focuses on applying new electoral sanctions to existing criminal offences. Our response below reflects this interpretation.
- We agree with the Government that allowing electoral sanctions to be applied as well as criminal sanctions could act as a strengthened deterrent against intimidating candidates or campaigners.
- Removing the right to vote would be a disproportionate sanction, but stopping someone from standing for election may not be a sufficient deterrent for people who do not want to become a candidate.
- The Government should consider whether increasing the maximum sentence for serious offences relating to elections, as recommended by the UK’s Law Commissions, would also act as an strengthened deterrent against intimidation.
Question 1: Do you agree that the new electoral offence should apply electoral sanctions to existing offences of intimidatory behaviour, such as those identified by the CSPL, listed in Annex A, and equivalent offences in Scotland and Northern Ireland?
- We agree that electoral sanctions should be applied to these existing offences.
- It is important that people are deterred from intimidating candidates so that people can stand for election and campaign without fearing abuse or intimidation.
- Voters must have confidence in the candidates standing in elections and those campaigning in a referendum. Seeing or hearing about intimidation should not stop them from voting, nor should it influence how someone votes.
- Applying electoral sanctions should deter some people from engaging in behaviour that intimidates candidates.
Any changes to the legislation would need to be applied by the Welsh and Scottish Governments for the relevant elections in Wales and Scotland. The legislation in Northern Ireland would need to be changed by the UK Government through the Northern Ireland Office.
We agree that the UK Government should examine existing legislation and make sure that the ‘new’ legislation reflects any future criminal legislation.
Penalty for the new offence
Question 2: We propose that the new electoral offence will attract the sanction of being barred from standing for elected office for 5 years. Do you agree?
- We agree that if an individual is found guilty of a specified offence they should be prohibited from standing or holding any elected office for a period of 5 years.
Applying this sanction would make sure that there is consistency with other relevant sanctions for corrupt practices such as undue influence which is also about intimidation, although of voters.
Without this sanction there would also not be consistency across different elections and referendums for someone being automatically disqualified from standing for election if they had been convicted of any of the offences listed in Annex A.
Question 3: Do you think the new electoral offence should remove an offender’s right to vote?
- We do not agree that an individual found guilty of intimidation should have their right to vote removed.
Corrupt practices under the Representation of the People Act 1983 (RPA), which have a sanction of removing a person’s right to vote, are those which abuse someone’s right to vote. Intimidating a candidate or campaigner does not do this.
However, stopping someone from standing for election for five years may not be enough of a deterrent for people who have no intention of putting themselves up for election.
We think that this area needs to be explored further to see if there is another, more suitable, sanction that could also or instead be used.
Prison sentences could be a more effective deterrent. A person who has been found guilty of any offence and is detained in prison is not allowed to vote.
The UK’s Law Commissions have recommended increasing the maximum sentence in cases of serious electoral fraud to 10 years. The Government should consider whether to apply this maximum sentence to intimidation offences set out in Annex A that are committed during election and referendum periods.
Which elections would be covered?
Question 4: We think that offences committed against candidates and campaigners during all types of polls should attract the additional electoral sanctions. Do you agree? If not, please explain.
- Intimidating candidates and campaigners is not acceptable at any poll. Offences committed against candidates and campaigners should attract the additional electoral sanctions for all types of poll.
It is important to ensure consistency across all polls. Consistency will prevent confusion as to when, and at what elections, the sanctions apply. It will also send a clear message to campaigners and voters that intimidation is unacceptable behaviour and has serious consequences.
Question 5: We propose that offences against campaigners during a referendum campaign should attract the additional electoral sanctions. Do you agree? If not, please explain.
- We agree that electoral sanctions should apply to offences against campaigners during a referendum campaign.
- Applying these electoral sanctions should deter some people from engaging in behaviour that intimidates campaigners.
Who would be protected?
Question 6: We propose that the existing definition of when someone becomes a ‘candidate’, with reference to any election campaign, would be clear and workable for the new electoral offence. Do you agree? If not, please explain.
- We do not agree that the existing definition of when someone becomes a candidate will be workable for the new electoral sanction.
This is explained in our response to questions 8 and 9.
Question 7a: Do you think the new electoral offence should extend to campaigners? If so, please explain which campaigners you think should fall within the scope of the new electoral offence, given the above considerations. If not, please explain.
Question 7b: If you think that campaigners should be included, do you have a suggestion as to how this could be done for use in the relevant legislation?
- We agree that protection of new electoral sanctions should be extended to campaigners.
When defining a campaigner, and who should fall within the scope of the new sanctions, the UK Government may want to consider the approach taken in the Postal Voting Bill. This is Private Members Bill introduced under the 10 minute rule and due a second reading on 26 October. Instead of using the term ‘campaigner’ it defines ‘a person who engages in activities for the purpose of promoting a particular outcome at a relevant election’. This was drafted with input from the Cabinet Office.
We would be happy to work with the UK Government on any amendments to the legislation which would enable the new electoral sanction to be applied to campaigners.
Applicable time period
Question 8: Do you agree that protection should start from the period of notice of elections? If not, please explain.
Question 9: Should there be a period before notice of election for a scheduled poll, for example during the long campaign period, during which this offence applies? If so, what would be a suitable time period of protection? If not, please explain.
- We do not agree that the provision should be tied to the notice of election. Protection should cover people who have publicly stated they are going to stand for election but their candidacy has not officially commenced for the purpose of electoral law.
The earliest day someone can become a candidate for the purpose of electoral law (for example in relation to the regulation of their campaign spending) is either the last day for publication of the notice of election or, at a UKPGE, the day of dissolution of Parliament. Protection therefore could start at the point of becoming a candidate under electoral law.
However a person might declare their candidacy publicly prior to this. For example the lead up to a UK parliamentary general election where there is a long campaign. During this period the spending rules apply and people are actively campaigning, but their candidacy has not officially commenced.
This means that someone could be subject to intimidation during this time but before becoming a candidate under electoral law. They would not be protected by the electoral sanctions if it was to start from the period of notice of election.
The Government should consider whether there needs to be a defined start date from which the new electoral sanctions could be applied. For example, it could be for the prosecution and sentencing judge to determine if a person was subject to intimidation because of the fact they were a candidate, based on the specific circumstances in each individual case.
Question10a: Do you agree that protection, under the new electoral offence, should end seven calendar days after the close of poll?
Question10b: If not, when do you think protection under the new electoral offence should end?
- If the protection of a new electoral sanction were to end seven days after the close of poll, there is a risk that elected representatives could be subject to intimidation. This could mean that they are prevented from carrying out their elected mandate.
Ideally, there would be no end date to the application of the new electoral sanctions. The Government should ask further advice from the police, prosecutors and the judiciary should advise on how this could be achieved in practice.
Question 11: Do you agree that protection, under the new electoral offence, should apply during the referendum period, as determined by the relevant referendum legislation? If not, please explain.
- The protection should start once the relevant legislation setting the date of the referendum has come into force.
Once the date of the referendum has been set in legislation everyone knows when polling day is and that referendum is definitely going ahead. Therefore, regardless of whether the regulated period for referendum campaign spending has started, campaigners can start campaigning and may be at risk of being intimidated.
Ensuring the offence applies only in appropriate cases
Question 12: Do you agree that a new electoral offence should only be applicable in cases where a candidate or campaigner is intimidated because they are a candidate or campaigner?
- We agree that the new electoral sanction should only apply when a candidate or campaigner is intimidated because they are candidate or campaigner.
We think that the police, prosecutors and the judiciary should advise on how this could be achieved in practice as they will be the enforcers of the new electoral sanctions.