2006 Chapter 22

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     These Notes refer to the Electoral Administration Act (c.22) which received Royal Assent on 11 July 2006

ELECTORAL ADMINISTRATION ACT

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Electoral Administration Act which received Royal Assent on 11 July 2006. They have been prepared by the Department for Constitutional Affairs in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     The Electoral Administration Act, incorporates proposals affecting the administration and regulation of elections in the United Kingdom (UK).

4.     The Electoral Administration Act will introduce new measures working towards three key objectives:

• access to voting for all (everyone able to vote);

• highest possible turnout (everyone wants to vote); and

• lowest possible fraud (no one abuses the vote).

5.     Many of the proposals in the Act have emerged from a series of detailed studies and consultations carried out by the independent Electoral Commission from 2002/3. Following extensive consultation with the electoral community after the 2001 General Election, the Electoral Commission produced several reports recommending changes to the current administration of elections, culminating in two main reports, Voting for change (June 2003) and Delivering democracy? The future of postal voting (December 2004). The recommendations in these reports are aimed at improving the integrity, security and convenience for the electorate at UK elections.

6.     The Government's responses to the reports Voting for change and Delivering democracy? The future of postal voting were published and announced as command papers in December 2004.

7.     Following the Birmingham elections court case (2005) and allegations of fraud at the May 2005 General Election, none of which have resulted to date in prosecution, the Government undertook policy discussions with its stakeholders on a range of proposals aimed at safeguarding the integrity of the electoral system.

8.     A Government policy discussion paper was published between May 23 - June 10, and over 160 responses were received on the proposals, by the deadline. Discussion meetings were also held with the Association of Electoral Administrators, other returning officers and administrators, suppliers of electoral services and the political parties. On the basis of these comments and responses received during the discussions, the Government recommended a package of additional proposals, primarily focussing on security, to be included in the Act. These also took into account the recommendations of the Electoral Commission's Securing the vote report, published in May 2005.

9.     The Government's response to Securing the vote was published at the time of the introduction of the Bill for this Act in October 2005.

10.     The Act is also part of a wider Government programme of modernising the electoral system, to make it more convenient and accessible, and to pave the way for secure multi-channel voting options. This is necessary for achievement of the Government's target of an "e-enabled general election sometime after 2006".

OTHER RELEVANT LEGISLATION

11.     The Act primarily makes amendments to:

• the Representation of the People Act 1983 (1983 c.2) (called "the 1983 Act" in the Act and throughout these Notes);

• the parliamentary elections rules contained in Schedule 1 to the 1983 Act.

• the Political Parties, Elections and Referendums Act 2000 (c.41) (called "the 2000 Act" in the Act and throughout these Notes); and

• the Representation of the People Act 2000, Schedule 4, which governs postal and proxy voting in Great Britain.

12.     The provisions in the 1983 Act mainly, but not exclusively, concern the franchise for, conduct of, and proceedings relating to parliamentary elections in the UK and local government elections in Great Britain. Many of the amendments in the Act regarding the conduct of parliamentary elections are being applied, or may, in due course, be applied for the purposes of other types of elections and referendums. These would include: elections to the European Parliament, Scottish Parliament, National Assembly for Wales, Northern Ireland Assembly, local government elections, mayoral and executive elections and national or regional referendums. Delegated powers exist to apply the Act's provisions regarding the conduct of other elections under the following enactments:

• Section 7 of the European Parliamentary Elections Act 2002;

• Section 12 of the Scotland Act 1998;

• Section 11 of the Government of Wales Act 1998;

• Section 84 of the Northern Ireland Act 1998, as regards local elections in Northern Ireland (but not the franchise);

• Section 36 of the 1983 Act, as regards local government elections, including elections to the Greater London Authority;

• Sections 44 and 45 of the Local Government Act 2000 as regards Local Authorities Mayoral elections and Local Authorities executive arrangements; and

• Section 129 of the 2000 Act as regards national or regional referendums.

OVERVIEW OF THE STRUCTURE

13.     The explanatory notes are divided into 9 Parts reflecting the structure of the Act.

Part 1: Co-ordinated On-line Record of Electors

14.     Part 1 of the Act contains provisions for the establishment, by order made by the Secretary of State, of one or more Co-ordinated On-line Record of Electors (CORE) schemes. A CORE scheme would consolidate into a centralised record for the area covered by the scheme, such of the electoral registers and related information maintained by the local electoral registration officers (EROs) in that area as is specified in the scheme.

15.     A CORE scheme would be run by a keeper. The keeper, who could be the Electoral Commission, would be designated by the Secretary of State. Whilst the detail of how the scheme would operate would be set out in a scheme order itself, relevant EROs would generally be under a duty to supply the information in their registers, as well as other specified electoral registration information, to the keeper. A keeper would be required to inform relevant EROs of information indicative of duplicate entries. A scheme could permit the keeper to provide electoral registration information to organisations currently entitled to be provided with a copy of electoral registers by EROs under other legislation. The scheme would also govern access to the consolidated record and permit individual electors to access CORE on-line for the purposes of checking and requesting updates to the information held about them.

Part 2: Registration of Electors

16.     Part 2 makes a number of provisions to improve the electoral registration process, including by:

• establishing a new duty on EROs to take steps to register eligible electors. This sets out the steps that should be taken to ensure registers are as complete and accurate as possible;

• improving registration for service personnel by providing for the extension of service voter declarations by up to 5 years and requiring the Ministry of Defence to maintain a record of registration options of service personnel;

• establishing a scheme of anonymous registration for people for whom the publication of their name and address on the electoral register would pose a threat to safety;

• moving the closing date for registration closer to the date of the poll;

• allowing for the correction of clerical errors and changes following court decisions to be made up to, and including, polling day; and

• extending the provision for public objections to registration, so that such objections may be made after a person has been registered as an elector, not just before registration. It also empowers a registration officer to remove ineligible entries from the register at any time.

Part 3: Anti-Fraud Measures

17.     This Part provides for the collection of personal identifiers from persons applying to vote by post or proxy. Personal identifiers are specified as signature and date of birth. Postal and proxy vote applicants will be required to provide their date of birth and signature on their application forms. This Part provides for the retention of identifiers by registration officers and sets out the purposes for which they may be used. The clause provides for registration officers to require existing postal and proxy voters to provide their signature and date of birth.

18.     Under related provisions in Part 6 of, and Schedule 1 to, the Act, postal voters at elections will be required to provide their signature and date of birth on the postal voting statement that postal voters must complete and return with their postal ballot paper. All postal voters, including proxy postal voters, will be subject to this requirement. Under the provisions, a postal ballot paper will not be deemed to be valid if the postal voting statement does not include both a signature and date of birth. Further, returning officers will be required to take steps to be set out in secondary regulations for verifying the signature and date of birth on the postal voting statement. This will involve checking that the identifiers provided on the postal voting statement correspond with those previously provided on the postal vote application form.

19.     This Part also creates an offence of providing false information for the purposes of registration or when applying for a postal or proxy vote.

Part 4: Review of Polling Places

20.     Part 4 establishes a framework for local authorities to review polling places regularly over a four-year cycle, to ensure that they provide proper access to people.

Part 5: Standing for Election

21.     Part 5 reduces the minimum age for candidacy for election to Parliament, and to other specified elected bodies, from 21 to 18.

22.     It specifies new requirements as to the immigration status, which Commonwealth citizens must have in order to qualify to stand for election.

23.     It makes changes to the nomination procedures, including:

• giving returning officers a specified period for determining the validity of nomination papers and publishing the statements of nominated candidates;

• introducing new means of paying the deposit required to stand as a candidate, enabling credit and debit cards to be used; and

• conferring a power on the returning officer to make correction to minor errors in nomination papers.

Part 6: Conduct of elections etc

24.     This Part makes provision on several topics relevant to the conduct of elections.

25.     In relation to electoral expenses it makes amendments:

• to remedy a defect which currently restricts the activities upon which third party expenditure unauthorised by an election agent can be spent;

• to allow the Electoral Commission greater flexibility in prescribing the information to be included on candidates' election expenses returns; and

• to set out in fuller detail what items qualify as candidates' election expenses.

26.     It introduces a system for the attendance of the Electoral Commission and other authorised observers at elections.

27.     It adds to the circumstances in which a voter is permitted to cast a tendered vote at a polling station.

28.     It creates a new offence of applying for a postal or proxy vote with the intention, in effect, of stealing another person's vote. This can be by a person personating another elector or by wrongfully redirecting another elector's postal vote.

29.     It introduces new provisions governing the custody, inspection and supply of the marked registers after an election which have been used at polling stations and provides for the production of marked lists of returned postal and postal proxy votes.

30.     It introduces a power for returning officers to correct errors made by themselves or others involved in the conduct of the election.

Part 7: Regulation of Parties

31.     Part 7 of the Act contains provisions on several topics relevant to the regulation of political parties. In particular it provides for the regulation of loans (and other related transactions) to political parties. Restrictions are imposed on the sources from which parties may obtain loans and there is established a new reporting regime for such transactions similar to that which currently applies to donations. The other topics are:

• registered names of political parties;

• political party descriptions to be used on nomination or ballot papers;

• confirmation of particulars of registered political parties;

• removal from the register of registered political parties; and

• time for registration of political parties fielding candidates.

32.     There are also provisions to:

• allow additional time for political parties to deliver their unaudited accounts to the Electoral Commission;

• increase time limits for payment of campaign expenditure; and

• amend the reporting requirements on political parties who receive low levels of donations, or none at all, by removing the need for repeated reporting of nil returns for donations.

Part 8: Miscellaneous

33.     Part 8 makes provision on the following topics:

• the funding of election services;

• performance standards for election services;

• encouraging electoral participation;

• criminal proceedings;

• pre-consolidation amendments; and

• legal incapacity to vote.

34.     It establishes provision for the setting of performance standards by the Electoral Commission, for reports to be made on such standards and information to be provided about expenditure. It amends section 29 of the 1983 Act in relation to the funding of services and expenses of returning officers. It introduces a new power for returning officers and EROs to encourage the participation in the electoral process.

35.     It provides for the time limit for bringing prosecutions to be extended by a magistrates' court from 12 months to 24 months, following an application from a constable or Crown Prosecutor. In such a case the time limit for relevant documents to be kept can also be extended from 12 months to 24 months.

Part 9: General

36.     Part 9 sets out the general sections on:

• miscellaneous amendments and repeals;

• financial provision;

• interpretation;

• commencement;

• extent; and

• short title of the Act.

TERRITORIAL APPLICATION: GENERAL

37.     Amendments made by this Act to other enactments have the same territorial extent as the provisions to be amended. Otherwise, the Act extends to the whole of the UK, subject to the exceptions specified in paragraphs 39 to 42 below.

38.     On the whole, provisions made by the Act relating to parliamentary elections are applied for the purposes of other UK elections. That is except where:

• such matters would fall to be addressed by the Scottish Parliament if they choose to make corresponding provision; or

• the measures would be applied by secondary legislation under existing powers in the case of the election concerned (as mentioned above in the commentary of other relevant legislation); or

• where corresponding provision is not necessary or appropriate owing to other existing legislative differences.

TERRITORIAL APPLICATION: NORTHERN IRELAND

39.     The Act applies to Northern Ireland except sections 9, 10, 11, 67 and 70 and related paragraphs in Schedule 1.

40.     Where necessary, amendments are made to the Electoral Law Act (Northern Ireland) 1962 in order to achieve a similar result in Northern Ireland for local elections. In Northern Ireland the Representation of the People Acts 1983 and 1985 do not apply to local elections although the 1983 Act is modified and applied indirectly by virtue of the Elected Authorities (Northern Ireland) Act 1989. Similarly, parts of the 1983 Act and the 1985 Act are indirectly applied to Assembly elections by virtue of the Northern Ireland Assembly (Elections) Order 2001 as amended.

TERRITORIAL APPLICATION: SCOTLAND

41.     Most of the Act's provisions apply to Scotland except:

• section 70 - Time limit for prosecutions;

• provisions relating to devolved matters (for example, the conduct of local government elections); and

• provisions which apply to Northern Ireland only.

TERRITORIAL APPLICATION: WALES

42.     Most of the Act's provisions will apply in Wales.

COMMENTARY ON SECTIONS

Part 1: Co-ordinated On-line Record of Electors

Section 1 CORE schemes: establishment

43.     Subsection (1) confers a power on the Secretary of State to establish by order, one or more Co-ordinated On-line Record of Electors (CORE) schemes for the keeping, and use, of specified electoral registration information. It specifies certain matters that may be governed by a CORE scheme.

44.     A CORE scheme will be maintained by a 'CORE keeper', who will be designated by the scheme. The CORE keeper must be a public body (subsection (10)). More than one CORE scheme may be in place at the same time and a scheme would designate the geographical area that it was to cover. Subsection (7) specifies, however, that the geographical areas of CORE schemes could not overlap, so that no area could be in more than one scheme at a time. The EROs within a CORE scheme area will be under a duty to provide the keeper with the specified electoral registration information relating to that area (subsections (1) and (2)).

45.     Subsection (11) specifies the electoral registration information that can be kept and used in accordance with the CORE scheme. It could include the register of electors for any election, as well as associated records relating to such a register, which EROs are required or authorised by law to keep. It could also include other information that is required for electoral or jury service purposes relating to a person who appears on a register. The Secretary of State can, by order, add to the information to be held in a CORE scheme.

46.     A scheme will establish the details of how and when EROs must provide the specified electoral information to the keeper and specify how a CORE keeper must keep that information (subsections (3) - (6)).

Section 2 Use of CORE information

47.     This section defines the uses to which information supplied to CORE may be put.

48.     Where a CORE scheme provides for the keeper to hold copies of the full, or edited, or marked registers, he will be bound by regulations governing the supply and access to the registers in a similar way as would apply to an ERO (subsections (2) to (4)). These regulations govern the duty of EROs to supply copies, restrict who copies are supplied to and what use recipients may make of them, and allow EROs to charge for providing copies. A number of bodies are entitled, subject to these regulations, to receive copies for the performance of their functions and duties. These include: returning officers (to conduct an election); political parties and the Electoral Commission (to check financial donations); and credit reference agencies (for checking credit applications). In many cases such bodies will require information from every ERO in the UK.

49.     Subsection (1) provides that a CORE keeper may be authorised, or required, to do certain things with the information he holds under the scheme. For example, where he has the duty of keeping the registers, he may be required to act as the single point of contact for giving access as regards every register in the area covered by the CORE scheme. Subsection (3) provides that a CORE scheme could modify the regulations governing access to information kept in a CORE scheme. Any such additional or varied provision applying to a CORE keeper would still have to be within the scope of the specified regulation-making powers.

50.     CORE will keep information from multiple local electoral registers. A duty is imposed on CORE keepers to inform relevant EROs of duplicate information held in CORE in specified circumstances (subsections (5) and (6)). The CORE keeper may also provide such other information held in CORE as appears to relate to the performance of the EROs functions (subsection (7)).

51.     A CORE scheme may allow individuals to access their details on-line to check that the information held is accurate. If a scheme provided for this, it would entitle the individual to request changes to that information (subsection (8)). This would not allow an individual on-line access to the whole register (subsection (10)). If an individual did request a change to their information, the keeper would be under a duty to pass that request on to the relevant ERO (subsection (9)), whether or not that ERO is at that time within the area covered by that CORE scheme (subsection (12)).

52.     A CORE scheme may not widen the categories of electoral registration data that EROs have access to. Subsection (11) specifies that a CORE scheme must not allow one ERO to view on CORE the information provided by another, other than through the notification of duplicates outlined elsewhere in the section.

Section 3 CORE scheme grants

53.     This section provides the powers for the Secretary of State to make the necessary finances for the running of a CORE scheme available to the keeper under that scheme.

Section 4 Electoral Commission

54.     Subsection (1) of this section amends the 2000 Act by adding a new section 20A. This allows the Electoral Commission to be appointed as the keeper of a CORE scheme by the Secretary of State under section 1.

Section 5 CORE schemes: supplemental

55.     This section makes supplemental provisions in relation to CORE schemes.

56.     Subsections (1) and (3) authorise a CORE scheme to specify circumstances in which payments may be required between a CORE keeper and an ERO for an area covered by a CORE scheme, and the circumstances in which a CORE keeper may charge any person for his services and the level of any such charges.

57.     Subsection (2) authorises a CORE scheme to make provision enabling a CORE keeper and an ERO to perform some of the other's functions. Subsection (10) allows a CORE scheme to specify functions that must be carried out personally by a CORE keeper. A CORE keeper may make arrangements with third parties, if he thought it appropriate, with respect to the carrying out of any other functions.

58.     A CORE scheme could make special provision for how that scheme and keeper are to operate in respect of a parliamentary constituency that falls partly within, and partly outside, the area covered by that CORE scheme. Paragraph 1(1) of Schedule 2 to the 1983 Act provides for regulations to be made dealing with such a situation and a scheme may apply, with modifications, any regulations made under that provision (subsections (4) and (5)).

59.     As information kept and used in a CORE scheme will mainly be held electronically, a power is taken (subsection (6)) to modify any obligation to provide a person's signature, where that is a requirement for the purposes of an ERO's responsibilities, in relation to electoral registration or absent voting.

Section 6 CORE schemes: procedure

60.     Before making an order to establish or vary a scheme, the Secretary of State will have to consult the Electoral Commission, the Information Commissioner and EROs who would be affected by the Order (subsection (4)). An order establishing a CORE scheme would attract the affirmative resolution procedure, thus requiring approval by both Houses of Parliament (subsection (2)). The Secretary of State may terminate a scheme, in whole or in part, without the need to consult (other than with an ERO whose area is proposed to be removed from the scheme), but would still only be able to do so by order subject to the affirmative resolution process (subsection (5)).

Section 7 Amendment of the 1983 Act

61.     This section amends section 63 of the 1983 Act. As regards duties imposed by the law relating to parliamentary or local government elections, or the registration of parliamentary or local government electors, a CORE keeper will be liable in criminal law for a breach of his official duties. The penalty for breach of official duty, under section 63, is a fine not exceeding £5000.