Explanatory Memorandum to the draft non-party campaigner Code of Practice
Published 13 September 2023
© Crown copyright 2023
This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected].
Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.
This publication is available at https://www.gov.uk/government/publications/non-party-campaigning-draft-code-of-practice/explanatory-memorandum-to-the-draft-non-party-campaigner-code-of-practice
Explanatory Memorandum to the draft non-party campaigner Code of Practice
2023, No. [XXXX]
1. Introduction
1.1 This explanatory memorandum has been prepared by the Department for Levelling Up, Housing and Communities and is laid before Parliament by Command of His Majesty.
2. Purpose of the instrument
2.1 This instrument provides guidance on the operation of Part VI of the Political Parties, Elections and Referendums Act 2000 (PPERA) for third-party campaigners and has been prepared by the Electoral Commission.
3. Matters of special interest to Parliament
Matters of special interest to the Joint Committee on Statutory Instruments
3.1 None.
4. Extent and Territorial Application
4.1 The extent of this instrument (that is, the jurisdiction(s) which the instrument forms part of the law of) is England and Wales, Scotland, and Northern Ireland.
4.2 The territorial application of this instrument (that is, where the instrument produces a practical effect) is, is England and Wales, Scotland, and Northern Ireland.
5. European Convention on Human Rights
5.1 As the instrument is subject to negative resolution procedure and does not amend primary legislation, no statement is required.
6. Legislative Context
6.1 Section 29 of the Elections Act 2022 inserted new sections 100A and 100B into Part VI of the Political Parties, Elections and Referendums Act 2000 (PPERA) placing a duty on the Electoral Commission to produce a statutory code of practice on the operation of controls relating to third-party national election campaigns contained within that Act. Section 29 specified particular matters which must be included in the code; creates a defence for third parties charged with offences under Part VI of PPERA; and sets out a consultation process and various procedural requirements relevant to the production of the code of practice.
6.2 Pursuant to section 100B(3) the Secretary of State may approve a draft code presented by the Electoral Commission either without modifications, or with such modifications as they determine appropriate. Pursuant to sections 100B(4)(b) and (5) the Secretary of State has approved the code of practice, with modifications and laid the instrument before Parliament on the 13th September 2023, alongside a written ministerial statement outlining reasons for the modifications. Pursuant to section 100B(6) the instrument is laid before both Houses for a forty-day period during which either House can resolve not to approve the draft guidance.
7. Policy background
What is being done and why?
7.1 In March 2016, following the statutory review of the operation of Part VI of PPERA, Lord Hodgson of Astley Abbotts published the independent report ‘Third-Party Campaigning: Getting the Balance Right’. The report recommended that the Electoral Commission consider issuing codes of practice in relation to third-party campaigning. The Elections Act 2022 inserted a duty on the Electoral Commission to produce a statutory code of practice.
7.2 This instrument provides comprehensive guidance to support third party campaigners to follow the rules contained within Part VI of PPERA. The guidance refers to third-party campaigners as “non-party campaigners”; these are individuals and organisations that are not registered political parties or candidates, but campaign for or against either political parties, or candidates, or issues, in the regulated period (the period when the spending laws apply) before a relevant election. It is a defence for a third-party to show that they have complied with this Code of Practice, in determining whether their expenditure is regulated under Part VI of PPERA.
7.3 The Code of practice applies to third-party campaigners operating at UK Parliamentary general elections and Northern Ireland Assembly elections. It does not apply to elections of the Senedd or Scottish Parliament unless the regulated period for those elections is combined with the regulated period for a UK Parliamentary general election.
8. European Union Withdrawal and Future Relationship
8.1 This instrument does not relate to withdrawal from the European Union
9. Consolidation
9.1 No consolidation is required as a result of this instrument.
10. Consultation outcome
10.1 The code of practice was prepared by the Electoral Commission following consultation with interested persons and bodies. Between 24th November 2022 and 20 January 2023 the Commission conducted a consultation on the draft Code of Practice. The consultation received 17 responses from a range of interested bodies, including academics, trade unions, a range of charities, and third-party campaigners. The Electoral Commission also consulted both the Speaker’s Committee on the Electoral Commission and the Levelling Up, Housing and Communities Committee as required under section 100B(1) of PPERA.
10.2 A full report on the consultation process can be found on the Commission’s website here. The Commission made a number of changes to the draft code, in response to this consultation such as: updating the structure of the code of practice; making their enforcement approach as to what constitutes campaign spending clearer and adding more detail on the factors determining whether activity is regulated; clarifying how activity can be regulated retrospectively; redrafting the section setting out the meaning of the public; and including more information to help campaigners understand the rules on joint campaigning.
11. Guidance
11.1 No guidance is needed.
12. Impact
12.1 There is no, or no significant, impact on business, charities or voluntary bodies.
12.2 There is no, or no significant, impact on the public sector.
12.3 A full Impact Assessment has not been prepared for this instrument because there no, or no significant impact on business, charities, voluntary bodies or the public sector is foreseen.
13. Regulating small business
13.1 The legislation does not apply to activities that are undertaken by small businesses.
14. Monitoring & review
14.1 No monitoring or review of this instrument is planned.
15. Contact
15.1 Imogen Harris at the Department for Levelling Up, Housing and Communities, Telephone: 07749713595 or email: [email protected] can be contacted with any queries regarding the instrument.
15.2 Becca Crosier, Deputy Director for Elections, at the Department for Levelling Up, Housing and Communities, can confirm that this Explanatory Memorandum meets the required standard.
15.3 Baroness Scott of Bybrook OBE, Parliamentary Under Secretary of State (Faith and Communities Minister) at the Department for Levelling Up, Housing and Communities, can confirm that this Explanatory Memorandum meets the required standard.