The Electoral Commissioners
via e-mail, 25 January 2001

Dear Sirs,

I have already written to you expressing initial concerns about the new Act that you have been appointed to police. Since an article appeared in the Times on 6 January, there has been much concerned discussion on how it will affect free debate and participation in public life.

I recognise you must be very busy, not least as Explanatory Notes have been unavailable. I do not expect a personal reply before 16 February, but I would be very grateful if you could take some important points on board in planning the administration of the Act. I would also be very pleased if clear answers were to appear in the first Explanatory Notes or otherwise on your website..

Unless there are clear guidelines from the start, this will magnify the workload of your staff in assisting groups and individuals who are trying to cope with the serious shortcomings of the Act.

Turnout in some by-elections and the 1999 European Parliament elections have been very low. Public disillusionment in politics is widespread, with Minister Estelle Morris MP admitting that many young people have disengaged from the political process.

There are growing concerns that the Act will result in a curtailment of freedom of expression, and some even feel that the Government planned it that way. Given the tight discipline maintained over Labour members of Parliament by the whips, and the Labour Party's manoeuvres to ensure that its London members did not get the official Mayoral candidate they wanted, such suspicions may regrettably be founded.

Nor does it help members of the public believe that the Act will be in their interest rather than the Government's when they recall how the Government used guillotine powers to rush through legislation, curbing essential debate. Independent MP Martin Bell even commented: (Hansard, 29 Nov 2000).

"This is not a technical or non controversial Bill. ...in many respects it is profoundly undemocratic and militates against the independent and independent minded"

The spirit of the Act appears to conflict with long established traditions under the 1950 European Convention on Human Rights and other Declarations in providing privilege rather than equality of opportunity, curbing freedom of expression, and denying privacy to generous donors.

In allowing overseas donations to parties in Northern Ireland, it also discriminates against those who operate on the mainland.

Your brief includes promoting awareness of UK electoral systems, but I feel that unless the Act's provisions are readily comprehensible, it will make criminals out of previously law-abiding people. And unless it is administered liberally and rapidly evolved in the hindsight of difficulties, it will further serve to deter participation in public life.

Given that politically-interested sections of the public will see the Electoral Commission as responsible, you may also stand to become scapegoats for the Government's ill-conceived legislation, particularly if there are prosecutions that should have been avoided.

1. COMPREHENSIBILITY. The Act is over 250 pages long, and not always easy to read. Explanatory Notes for public guidance that are normally available 2-3 days after the publication of Acts were unavailable as at 15 Jan 2001. Although courteous and endeavouring to be helpful, the Commission's own staff seem to have preferred to hold on giving advice until their release. It is a demerit on the Government that general guidance notes have been unavailable one month before the 16 February go live date.

2. BUREAUCRACY. Whereas I believe that a register of parties is justifiable in protecting a party name, I feel that it would be wrong if those who are not a member of a registered party are unable to stand with except with a sole Description "Independent". Local/interest groups may well wish to stand a candidate at an unexpected by-election, and they should at least have the facility to describe themselves - at least in a particular catchment area - as "Independent - Ratepayers Against Hospital X Closure" (for example - this still excludes the name of a party).

3. GRANTS State funding for 'policy development' grants is to be available at up to £2m per year. Given the limited expenditure on priority areas such as the NHS and flood relief, there is public dissatisfaction with the idea of one's taxes being used to fund political parties that one would never vote for. I call upon the Commission to show their sensitivity and impartiality by not making any grants.

4. DONATIONS. The provision that individual donors should be on the electoral register discriminates against young people who will only appear in the year of their 18th birthday.

Whereas it should be reasonable for parties to be able to log large donations, and make returns to the Commission, I think it is totally wrong that what is essentially a private act (i.e. other than for public limited companies etc) be put in a publicly-accessible register, unless it is with their consent. This goes against the "rights to privacy" that the Government claims to have endorsed in the Fundamental Charter of Rights in October.

How easy is it to prove donor identity against a name on the electoral register, particularly if the donor is based in a different area to the register?

5. EUROPE It is considered strange that the Commission should be tasked with generating awareness of 'EU institutions' generally as only one, the European Parliament, has direct public elections. Given that the European Parliament is largely irrelevant to public decision making, evidenced also by the 76% abstinence rate in 1999, I hope that the information provided by the Electoral Commission will be truly balanced and impartial and avoid the glossy bias characteristic of Foreign & Commonwealth Office 'information'. If it is necessary to subcontract this information dissemination function to third parties, I hope that you will maintain due balance between pro- and anti-federalist groups.

This is the least clear and most worrying part of the legislation.

6.1 Taking the Act and your website together, it is difficult to determine precisely when registration (notification) needs to occur - is it, like VAT registration, when a particular sum has been exceeded, or just when it seems likely. Some clear worked examples would help, like the Inland Revenue provides in illustrating tax calculations

Also - are the terms "register" and "notify" totally interchangeable for third parties?

6.2 It is also unclear whether a third party would need to notify/register if (controlled) expenditure is beneath a certain threshold - the Act text would indicate it does, your website might give the impression it does not.

6.3 Individuals and groups may need, not just to "notify" but to renew this annually, with only three months' grace. The small print however requires renewal at 11 months not 15 months where controlled expenses are involved.

Other text advises that this stricture on promoting public debate will continue even past a [parliamentary] general election or other significant election. The notes for guidance should make it clear under what conditions a continuous or "rolling" registration would be required.

This might assist groups like poverty action campaigns who promote their views continuously.

6.4 I am amazed at the prospect of spend on local elections "not having" its own expenditure limit, but needing to be rolled up into that allowed for a higher election (e.g. a general election.).

6.5 If, as a third party, you "notify" you may be required to declare an un-itemised total for your expenditure before registration in the relevant return date, which presumably will be governed by the return period for the relevant election.

The "relevance" aspect will be pretty subjective unless the third party explicitly intended to influence a particular, planned election. It is also possible that if the "relevant period" is retroactively concerned with up to one year before 8 December 2001 (the anniversary of the Act being published) a campaigning group might inadvertently have gone over the permitted limit, especially for expenditure before 30 November 2000!.

6.6 The legislation raises the prospect of Free Speech not being free i.e. individuals and groups needing to pay to "notify" in order to fully express themselves. This would seem totally abhorrent if it is to be the case, either now or at any time in the future..

I understand that the Commission have indicated that there will be no such charges for "third parties" to one enquirer, but this should be better publicised to offset growing concern elsewhere.

6.7 The Act is vague on whether promoting one's views is intentional interference in an election, or merely coincidental, because policies are discussed (perhaps without referring to any party, candidate or election). To put the issue beyond doubt, I hope that public interest groups will not be expected to put some disclaimer on their material that it is in no way intended to affect anyone's voting intentions?

National and Local Government bodies (e.g. councils) are free to trumpet their achievements through "community newsletters", which is covert advertising. The BBC, SPC, and newspapers will be free to influence elections in any way they want. Whereas the editorial position of most main newspapers is well known, the BBC is well known not to be free of bias, and the inadequacy of its complaint-handling simply reinforces this.

These institutions are free to air their views, and the views of others, in any way they see fit, without constraint by the Act (with the possible exceptions of minor rules on advertising). I think that members of the public ("third parties") should be given the same freedom.

6.8 The provision that promotion of views might "reasonably be regarded" as influencing an election is very woolly and liable without test cases to be very subjectively interpreted. This is particularly so if a third party does not refer to a party or candidate - or even that an election is taking place.

I think that it would be anti-democratic to interpret within scope anything but explicit attempts by a political party to influence a specific election result. Even then, there would have to be an over-riding factor, such as if the material had been published by a candidate, it would have brought his expenditure over the limit allowed by the Representation of the People Act.

6.9 It is possible to detect a link between promoting political parties' candidates and "third parties" (even those with no overtly political intent).

Schedule 16.2 regards anything provided for the 'benefit' of a candidate except on commercial terms as being a donation - so it is possible to interpret that unsolicited and even disapproved third party spending could technically breach set limits and result in an offence if not declared by a candidate.

I think that expenditure that occurs totally independently of a candidate but co-incidentally provides "benefit" to a candidate should not have to be accounted for by that candidate. However the odd case where there is proven to be deliberate collusion should be treated as the exception.

6.10 A strangely-worded section covers "Election material" - any material in any form that may influence the electorate in 'future relevant elections' - whether imminent or not. (S. 85) This must be a 'controlled expense' in the same sense as political parties' expenses.

"Election material" could be interpretable as including anything "made available to the public at large or any section of the public". If you take this fully as stated, even material provided to teenagers too young to vote or foreign citizens who are not electors, but whom presumably may be naturalised one day and take part in some future unspecified election. (Additional rules on content are in Part X, Section 143). If this is not the intent of the Act, the guidelines should advise clearly what "sections of the public" would typically be covered.

Newspaper adverts, public meetings, leaflets, posters; even websites & telephone use might appear to be "controlled items" as they are not explicitly exempt. I feel that websites should be exempt, as they have to be actively sought out. Their access would analogous to what is elsewhere in the Act over a party providing information in response to an enquirer.

I feel that the Administration of the Act should not penalise groups like Oxfam and other perennial campaigning groups for expressing their views when this coincides with elections.

6.11 It appears that BBC/SPC broadcasts are exempt, but it is not instantly clear whether appearing in other channels' broadcasts will count.

6.12 It is also mystifying how 'future relevant elections' are to be identified, unless they are explicitly referred to in the Election Material.

6.13 To avoid some of the strictures of the Act - and even penalties for breaching its rules - a defendant campaigner might need to prove that he took all steps possible to avoid his material being promoted. This sounds like guilty until proven innocent. (See Section 110). Rather, the onus of proof should be in the direction of the prosecution.

6.14 Expense accounting is made complicated for bodies that campaign across at least two of England, Wales, Scotland, N Ireland - it needs to be apportioned across the number of Parliamentary seats in each area. Currently third party spending limits are £10,000 (England), £5,000 (Scotland, Wales, NI) unless the third party is registered - this gives the initial impression that a UK ceiling of £25,000 may apply.

However, if the average spend per constituency is brought down to the incredibly (and discriminatorily) low level for England, the UK limit is under £12,500. Will you be highlighting this clearly to avoid inadvertent (and illegal) over-expenditure or advising UK-wide third parties that they should re-invent themselves regionally. Ideally the law should be changed to provide full equality.

6.15 Controlled expenditure can only be made by an identified ("responsible") person or someone authorised in writing by them. It appears that "controlled expenditure" type spend to be accounted for during a "regulated period" should include spend made before the registration of a recognised "third party" (Section 94(10)). Is this just spend before the law comes into force on 16 February 2001 - clear examples are a must if not? Also does written authority need to be retrospectively provided?

7.1 There are no controls on what the Government may spend out of taxpayers' money. I think that any material that is not totally balanced and impartial should count towards Party limits.

7.2 As you can seemingly spend money that will influence a possible referendum outcome before one is called, such spending on a likely referendum topic might also be considered as possibly falling under "third party" "election-material" spend too. Please clarify that interest groups will not have to account twice..

7.3 Please confirm if a third party wishing to spend less than the £10,000 limit can spend such money on "controlled expenditure" items.

7.4 Designated participants would appear to have a monopoly on providing broadcasters with "broadcasts" promoting a particular referendum result. Does this mean that third parties not part of "designated participants' cannot take part in interviews etc that a broadcaster may wish to use?

In the worst case, this would potentially also make radio & televised phone-ins illegal !!!

I would be grateful for clarification on all the above points in due course.

With best wishes,

Brian Mooney
New Alliance,
PO Box 13199,
London SW6 6ZU
newalliance@excite.com

25 January 2001