10/03/09 - Report to the Minister for the Environment on Third Parties and the Referendum on the Treaty of Lisbon

Chapter 7 - Third party legislation in other jurisdictions

In preparing this report the Standards Commission considered the legislation governing third parties in two other jurisdictions - the United Kingdom and Canada - where, in each case, the law appears to apply mainly in relation to activity at elections and referendums and not to general advocacy or political campaigning.

United Kingdom

Under the United Kingdom's Political Parties, Elections and Referendums Act 2000 (PPERA), any third party wishing to spend more than a specified amount campaigning at a relevant election is required to register with The Electoral Commission as a recognised third party. A third party is an individual or organisation not standing or fielding candidates at an election, but which campaigns for or against a political party or parties or a category of candidates at the election. An individual/organisation is not required to register if it is campaigning on a political matter outside of an election.

Any third party that intends to spend more than £10,000 in England, or £5,000 in Scotland, Wales or Northern Ireland, for the purposes of campaigning at an election is required to register as a recognised third party. This requirement applies to UK and European Parliament elections and to Scottish, Welsh and Northern Ireland Parliament/Assembly elections. Third parties which are not registered with the Electoral Commission as recognised third parties can spend a maximum of £10,000 in England or £5,000 in Scotland, Wales or Northern Ireland on ‘controlled expenditure’ during the regulated period for the relevant election. It is an offence for an unregistered third party to incur controlled expenditure in excess of these limits.

Controlled expenditure is defined as "expenses incurred by or on behalf of a third party in connection with the production or publication of election material which is made available to the public, or any section of the public (in whatever form and by whatever means)" . Election material is that which can ‘reasonably’ be regarded as intended to promote or procure electoral success at a relevant election for one or more registered parties or a group of candidates. Election material also includes material which can reasonably be regarded to enhance the standing with the electorate (in connection with any future election) of any such party(ies) or candidates. Promoting or procuring electoral success for parties or candidates includes doing so by prejudicing the prospects of other parties or candidates.

Controlled expenditure only applies to a regulated period of 365 days prior to polling day at a UK parliamentary election or four months prior to polling day in all other cases. Once registered, recognised third parties are entitled to higher spending limits and can spend significantly more than non-registered third parties. However, recognised third parties are subject by law to a regulatory framework controlling donations and expenditure.

Following a relevant election, recognised third parties are required to submit a return of controlled expenditure and donations to the Electoral Commission. The return must be submitted within three months of the date of the election (if the recognised third party incurred expenditure of £250,000 or less), or within six months if the recognised third party incurred expenditure of more than £250,000. Returns of more than £250,000 must be accompanied by an independent audit report.

A recognised third party is subject to controls on the donations that it can accept for the purpose of meeting controlled expenditure. These controls are similar to the controls applying to political parties under the PPERA. Recognised third parties must submit a donation report to the Electoral Commission with their controlled expenditure returns. Details of the following donations accepted in connection with the third party's controlled expenditure must be included in that report:

• all donations of more than £5,000 that are from a permissible donor.
• the total value of all other donations between £200 and £5,000 accepted from permissible donors. (Donations of less than £200 are not regulated by the PPERA.)
• any donations of more than £200 received from impermissible donors.
• donations of more than £200 that are received from unidentifiable donors. (Donations from unidentifiable donors cannot be accepted).

The notification period for a third party lasts for 15 months from the date on which it is recognised by the Electoral Commission as a third party. Unless a recognised third party renews its notification, its status as a recognised third party will lapse 15 months after the date on which its notification as a third party came into effect.

There are also rules which apply to third parties under the Representation of the People Act 1983. These rules apply to campaigning for or against individual candidates. The Representation of the People Act imposes limits on third party spending at Parliament, European Parliament, Regional Parliament/Assembly and local elections. There is no requirement for a third party to register as a recognised third party if it intends to campaign for or against a single candidate. However, if a third party intends to campaign for or against a number of candidates and the cost of doing so exceeds the PPERA limits, the third party would be required to register as a recognised third party.

Similar rules apply to "permitted participants" at referendums (i.e. individuals or organisations that campaign for a particular outcome in a referendum).

Canada

Under the Canada Elections Act a person or group is considered to be a third party if they engage in election advertising. Election advertising expenses is a message that is transmitted by any means during an election to any person or persons with whom the originator of the message does not have some common cause or connection and is intended to influence how an elector might vote, by promoting or opposing a registered party or the election of a candidate. It also includes a message that takes a position on an issue with which a registered party or candidate is associated.

If a third party spends $500 or more on its election advertising, it must immediately register with the Chief Electoral Officer. A third party which spends less than $500 on its election advertising is not required to register.

When registering, the third party must provide certain information including contact details for its "financial agent". The financial agent is the only person who may accept contributions for election advertising purposes during the election period, and who may authorise spending on election advertising on behalf of the third party. The financial agent may not be a candidate, an official agent of a candidate or a registered agent of a political party. The financial agent must be a Canadian citizen or a permanent resident of Canada.

The Canada Elections Act limits how much a third party may spend on election advertising. If the election advertising promotes or opposes the election of one or more candidates in a given electoral district, then a limit of $3,000 applies. If the election advertising promotes or opposes a registered political party, including advertising that takes a position on an issue that is associated with a registered political party, and the election advertising is aimed at a national, regional or provincial audience, then a limit of $150,000 applies.

A third party may not use for election advertising purposes donations that come from persons who are not Canadian citizens or permanent residents; from corporations or associations that do not carry on business in Canada; from trade unions that do not hold bargaining rights for employees in Canada; from foreign political parties, or from foreign governments or agents of a foreign government.

A registered third party must report its election advertising expenses. For a general election, the report must include the times and places of the broadcasts or publication of the advertisements. The report is divided into two lists. One must show which election advertising expenses related to the promotion or opposition of one or more candidates in a given electoral district (and were subject to the $3,000 limit). The other list must show all other election advertising expenses.

The third party must report the names and addresses of anyone who contributed a total of more than $200 for election advertising purposes in the period starting six months before the election was called and ending on election day, as well as the amount and date of their contributions. If the third party is unable to identify which contributions were received for election advertising purposes during that six months period, the third party must report the names and addresses of every contributor who donated a total of more than $200 to it during that period. The third party must also report which of its own funds were used for election advertising purposes.

If a third party spends $5,000 or more for election advertising it must appoint an auditor and provide him/her with access to its accounting records. The auditor cannot be the third party's financial agent. The auditor must examine the third party's election advertising report and give an opinion as to whether the report presents fairly the information contained in the accounting records on which it is based.

The election advertising report must be filed with the Chief Electoral Officer no later than four months after election day. The Chief Electoral Officer publishes the report. 

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