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Referendums (Scotland) Act 2020

Type Act of the Scottish Parliament

Publication 2020-01-29

Last updated 2026-05-08

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

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(b) the purpose (or one of the purposes) of the transfer is (or must, having regard to all the circumstances, reasonably be assumed to be)—

(i) to help the permitted participant with meeting, or to meet, to any extent any defined expenses incurred or to be incurred by or on behalf of the permitted participant, or

(ii) to secure that to any extent any such expenses are not so incurred.

(2) In sub-paragraph (1), “defined expenses” means expenses in connection with—

(a) any conference, meeting or other event organised by or on behalf of the permitted participant,

(b) the preparation, production or dissemination of any publication by or on behalf of the permitted participant, or

(3) The following do not, however, constitute sponsorship by virtue of sub-paragraph (1)—

(a) the making of any payment in respect of—

(i) any charge for admission to any conference, meeting or other event, or

(ii) the purchase price of, or any other charge for access to, any publication,

(b) the making of any payment in respect of the inclusion of an advertisement in any publication where the payment is made at the commercial rate payable for the inclusion of such an advertisement in any such publication.

(4) In this paragraph “publication” means a publication made available in whatever form and by whatever means (whether or not to the public at large or any section of the public).

Payments etc. not to be regarded as donations

33

(1) None of the following is to be regarded as a donation—

(a) any grant provided out of public funds,

(b) the provision of any rights conferred on a designated organisation (or persons authorised by a designated organisation) by virtue of—

(i) paragraph 9 or 10 (right to use rooms for public meetings), or

(ii) any enactment conferring a right to send free of charge postal communications containing matter relating to the referendum,

(d) the provision by an individual of the individual's own services which the individual provides voluntarily in the individual's own time and free of charge, or

(e) any interest accruing to a permitted participant in respect of any donation which is dealt with by the permitted participant in accordance with paragraph 36(3)(a) or (b).

(2) Any donation the value of which (as determined in accordance with paragraph 34) does not exceed £500 is to be disregarded.

Value of donations

34

(1) The value of any donation falling within paragraph 31(1)(a) (other than money) is to be taken to be the market value of the property in question.

(2) Where, however, paragraph 31(1)(a) applies by virtue of paragraph 31(2), the value of the donation is to be taken to be the difference between—

(a) the value of the money or (as the case may be) the market value of the property, in question, and

(b) the total value in monetary terms of the consideration provided by or on behalf of the permitted participant.

(3) The value of any donation falling within paragraph 31(1)(b) is to be taken to be the value of the money or (as the case may be) the market value of the property, transferred as mentioned in paragraph 32(1) and accordingly any value in monetary terms of any benefit conferred on the person providing the sponsorship in question is to be disregarded.

(4) The value of any donation falling within paragraph 31(1)(d) is to be taken to be the amount representing the difference between—

(a) the total value in monetary terms of the consideration that would have had to be provided by or on behalf of the permitted participant in respect of the provision of the property, services or facilities if the property, services or facilities had been provided on commercial terms, and

(b) the total value in monetary terms of the consideration (if any) actually so provided by or on behalf of the permitted participant.

(5) Where a donation such as is mentioned in sub-paragraph (4) confers an enduring benefit on the donee over a particular period, the value of the donation—

(a) is to be determined at the time when it is made, but

(b) is to be so determined by reference to the total benefit accruing to the donee over that period.

Prohibition on accepting donations from impermissible donors

35

(1) A relevant donation received by a permitted participant must not be accepted by the permitted participant if—

(a) the person by whom the donation would be made is not, at the time of its receipt by the permitted participant, a permissible donor, or

(b) the permitted participant is (whether because the donation is given anonymously or by reason of any deception or concealment or otherwise) unable to ascertain the identity of the person offering the donation.

(2) For the purposes of this schedule, any relevant donation received by a permitted participant which is an exempt trust donation is to be regarded as a relevant donation received by the permitted participant from a permissible donor.

(3) But, for the purposes of this schedule, any relevant donation received by a permitted participant from a trustee of any property (in the trustee's capacity as such) is to be regarded as a relevant donation received by the permitted participant from a person who is not a permissible donor unless it is—

(a) an exempt trust donation, or

(b) a relevant donation transmitted by the trustee to the permitted participant on behalf of beneficiaries under the trust who are—

(i) persons who at the time of its receipt by the permitted participant are permissible donors, or

(ii) the members of an unincorporated association which at that time is a permissible donor.

(4) Where any person (“the principal donor”) causes an amount (“the principal donation”) to be received by a permitted participant by way of a relevant donation—

(a) on behalf of the principal donor and one or more other persons, or

(b) on behalf of two or more other persons,

then for the purposes of this schedule each individual contribution by a person falling within paragraph (a) or (b) which exceeds £500 is to be treated as if it were a separate donation received from that person.

(5) In relation to each such separate donation, the principal donor must ensure that, at the time when the principal donation is received by the permitted participant, the responsible person is given—

(a) (except in the case of a donation which the principal donor is treated as making) all such details in respect of the person treated as making the donation as are required by virtue of paragraph 41(1)(c) to be given in respect of the donor of a donation to which that paragraph applies, and

(b) (in any case) all such details in respect of the donation as are required by virtue of paragraph 41(1)(a).

(6) Where—

(a) any person (“the agent”) causes an amount to be received by a permitted participant by way of a donation on behalf of another person (“the donor”), and

(b) the amount of the donation exceeds £500,

the agent must ensure that, at the time when the donation is received by the permitted participant, the responsible person is given all such details in respect of the donor as are required by virtue of paragraph 41(1)(c) to be given in respect of the donor of a donation to which that paragraph applies.

(7) A person commits an offence if, without reasonable excuse, the person fails to comply with sub-paragraph (5) or (6).

(8) A person who commits an offence under sub-paragraph (7) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 12 months or to a fine (or both).

Acceptance or return of donations

36

(1) Sub-paragraph (2) applies where—

(a) a donation is received by a permitted participant, and

(b) it is not immediately decided that the permitted participant should (for whatever reason) refuse the donation.

(2) All reasonable steps must be taken without delay by or on behalf of the permitted participant to verify (or, so far as any of the following is not apparent, ascertain)—

(a) the identity of the donor,

(b) whether the donor is a permissible donor, and

(c) if it appears that the donor is a permissible donor, all such details in respect of the donor as are required by virtue of paragraph 41(1)(c) to be included in a statement under paragraph 40 in respect of a relevant donation.

(3) If a permitted participant receives a donation which the permitted participant is prohibited from accepting by virtue of paragraph 35(1), or which it is decided the permitted participant should refuse, then—

(a) unless the donation falls within paragraph 35(1)(b), the donation, or a payment of an equivalent amount, must be sent back to the person who made the donation or any person appearing to be acting on that person's behalf,

(b) if the donation falls within that paragraph, the required steps (see paragraph 37(1)) must be taken in relation to the donation,

within the period of 30 days beginning with the date when the donation is received by the permitted participant.

(4) The permitted participant and the responsible person each commit an offence if—

(a) sub-paragraph (3)(a) applies in relation to a donation, and

(b) the donation is not dealt with in accordance with that sub-paragraph.

(5) It is a defence for a permitted participant or responsible person charged with an offence under sub-paragraph (4) to show that—

(a) all reasonable steps were taken by or on behalf of the permitted participant to verify (or ascertain) whether the donor was a permissible donor, and

(b) as a result, the responsible person believed the donor to be a permissible donor.

(6) The responsible person in relation to a permitted participant commits an offence if—

(a) sub-paragraph (3)(b) applies in relation to a donation, and

(b) the donation is not dealt with in accordance with that sub-paragraph.

(7) A person who commits an offence under sub-paragraph (4) or (6) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 12 months or to a fine (or both).

(8) For the purposes of this schedule, a donation received by a permitted participant is to be taken to have been accepted by the permitted participant unless—

(a) it is dealt with in accordance with sub-paragraph (3), and

(b) a record can be produced of the receipt of the donation and of its having been dealt with in accordance with that sub-paragraph.

(9) Where a donation is received by a permitted participant in the form of an amount paid into an account held by the permitted participant with a financial institution, it is to be taken for the purposes of this schedule to have been received by the permitted participant at the time when the permitted participant is notified in the usual way of the payment into the account.

Return of donation where donor unidentifiable

37

(1) For the purposes of paragraph 36(3)(b), the required steps are—

(a) if the donation was transmitted by a person other than the donor and the identity of that person is apparent, to return the donation to that person,

(b) if paragraph (a) does not apply but it is apparent that the donor has, in connection with the donation, used any facility provided by an identifiable financial institution, to return the donation to that institution, or

(2) In sub-paragraph (1) any reference to returning or sending a donation to any person or body includes a reference to sending a payment of an equivalent amount to that person or body.

(3) Any amount sent to the Electoral Commission in pursuance of sub-paragraph (1)(c) is to be paid by the Commission into the Scottish Consolidated Fund.

Forfeiture of donations made by impermissible or unidentifiable donors

38

(1) This paragraph applies to any donation received by a permitted participant—

(a) which, by virtue of paragraph 35(1), the permitted participant is prohibited from accepting, but

(b) which has been accepted by the permitted participant.

(2) A sheriff may, on the application of the Electoral Commission, order the forfeiture by the permitted participant of an amount equal to the value of the donation.

(3) An order may be made under this paragraph whether or not proceedings are brought against any person for an offence connected with the donation.

(4) Proceedings on an application for an order under this paragraph are civil proceedings and, accordingly, the standard of proof that applies is that applicable in civil proceedings.

(5) The permitted participant may appeal to the Court of Session against an order made under this paragraph.

(6) Rules of court may make provision—

(a) with respect to applications and appeals under this paragraph,

(b) for the giving of notice of such applications or appeals to persons affected by them,

(d) generally with respect to procedure in such applications or appeals.

(7) An amount forfeited by virtue of an order under this paragraph is to be paid into the Scottish Consolidated Fund.

(8) Sub-paragraph (7) does not apply—

(a) where an appeal is made under sub-paragraph (5), before the appeal is determined or otherwise disposed of, or

(b) in any other case, before the end of any period within which, in accordance with rules of court, an appeal under sub-paragraph (5) is to be made.

Evasion of restrictions on donations

39

(1) A person commits an offence if the person—

(a) knowingly enters into, or

(b) knowingly does any act in furtherance of,

any arrangement which facilitates or is likely to facilitate, whether by means of any concealment or disguise or otherwise, the making of relevant donations to a permitted participant by any person or body other than a permissible donor.

(2) A person commits an offence if the person—

(a) knowingly gives the responsible person in relation to a permitted participant any information relating to—

(i) the amount of any relevant donation made to the permitted participant, or

(ii) the person or body making such a donation,

which is false in a material particular, or

(b) with intent to deceive, withholds from the responsible person in relation to a permitted participant any material information relating to a matter within paragraph (a)(i) or (ii).

(3) A person who commits an offence under this paragraph is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 12 months or to a fine (or both).

Statement of relevant donations

40

The responsible person in relation to a permitted participant must include in any return required to be prepared under paragraph 22 a statement of relevant donations which complies with paragraphs 41 and 42.

Donations from permissible donors

41

(1) The statement must record, in relation to each relevant donation falling within sub-paragraph (3) which is accepted by the permitted participant—

(a) the amount of the donation (if a donation of money, in cash or otherwise) or (in any other case) the nature of the donation and its value as determined in accordance with paragraph 34,

(b) the date when the donation was accepted by the permitted participant, and

(c) the information about the donor which is, in connection with recordable donations to registered parties, required to be recorded in donation reports by virtue of paragraph 2 of schedule 6 of the 2000 Act or, where the donor is within any of paragraphs (i) to (l) of paragraph 1(2), the information mentioned in sub-paragraph (2).

(2) The information to be recorded in the case of a donor within any of paragraphs (i) to (l) of paragraph 1(2) is—

(a) in the case of a body within paragraph 1(2)(i) (body incorporated by Royal Charter)—

(i) the name of the body, and

(ii) the address of its main office in the United Kingdom,

(b) in the case of a body within paragraph 1(2)(j) or (k) (charitable incorporated organisation)—

(i) the name of the body, and

(ii) the address of its principal office,

(i) the name of the body, and

(ii) the address of its main office in the United Kingdom.

(3) Sub-paragraph (1) applies to a relevant donation where—

(a) the value of the donation exceeds £7,500, or

(b) the value of it and any other relevant benefit or benefits exceeds that amount.

(4) In sub-paragraph (3)(b) “relevant benefit” means any relevant donation or regulated transaction (within the meaning of paragraph 46(4)) made by or entered into with the person who made the donation.

(5) The statement must also record the total value of any relevant donations, other than those falling within sub-paragraph (3), which are accepted by the permitted participant.

(6) In the case of a donation made by an individual who has an anonymous entry in an electoral register, if the statement states that the permitted participant has seen evidence that the individual has such an anonymous entry, the statement must be accompanied by a copy of the evidence.

Donations from impermissible or unidentifiable donors

42

(1) This paragraph applies to relevant donations falling within paragraph 35(1)(a) or (b).

(2) Where paragraph 35(1)(a) applies, the statement must record—

(a) the name and address of the donor,

(b) the amount of the donation (if a donation of money, in cash or otherwise) or (in any other case) the nature of the donation and its value as determined in accordance with paragraph 34, and

(c) the date when the donation was received, and the date when, and the manner in which, it was dealt with in accordance with paragraph 36(3)(a).

(3) Where paragraph 35(1)(b) applies, the statement must record—

(a) details of the manner in which the donation was made,

(b) the amount of the donation (if a donation of money, in cash or otherwise) or (in any other case) the nature of the donation and its value as determined in accordance with paragraph 34, and

(c) the date when the donation was received, and the date when, and the manner in which, it was dealt with in accordance with paragraph 36(3)(b).

Donation reports during referendum period

43

(1) The responsible person in relation to a permitted participant must prepare a report under this paragraph in respect of each of the following periods—

(a) the period starting with the relevant day and ending with the 14th day of the referendum period,

(b) the succeeding period of 4 weeks during the referendum period, and

(c) the period from the end of the succeeding 4 week period referred to in paragraph (b) until the end of the day before the date of the referendum.

(2) In sub-paragraph (1)(a), the “relevant day” is the day on which the Act of the Scottish Parliament referred to in section 1(2) is passed or regulations made under that Act are laid before the Scottish Parliament.

(3) The report for a period must record, in relation to each relevant donation of more than £7,500 which is received by the permitted participant during the period—

(a) the amount of the donation (if a donation of money, in cash or otherwise) or (in any other case) the nature of the donation and its value as determined in accordance with paragraph 34,

(b) the date when the donation was received by the permitted participant, and

(c) the information about the donor which is, in connection with recordable donations to registered parties, required to be recorded in weekly donation reports by virtue of paragraph 3 of schedule 6 of the 2000 Act.

(4) If during any period no relevant donations of more than £7,500 were received by the permitted participant, the report for the period must contain a statement of that fact.

(5) Where an individual or body becomes a permitted participant during a period mentioned in sub-paragraph (1)(b) or (c) (“the period in question”)—

(a) a separate report under this paragraph need not be prepared in respect of any preceding period, but

(b) for the purposes of sub-paragraphs (3) and (4), the report for the period in question must also cover the time from the relevant day (as defined in sub-paragraph (2)) to the start of the period, and references in those sub-paragraphs to the period are to be read accordingly.

(6) Sub-paragraphs (3) and (4) apply to a relevant donation received by a permitted participant before the start of the referendum period only if the donation was for the purpose of meeting referendum expenses to be incurred by the permitted participant during the referendum period.

(7) References in this paragraph and in paragraph 44 to a relevant donation received by a permitted participant include any donation received at a time before the individual or body concerned became a permitted participant, if the donation would have been a relevant donation had the individual or body been a permitted participant at that time.

(8) A report under this paragraph must be delivered by the responsible person to the Electoral Commission within the period of 7 days beginning with the end of the period to which the report relates.

(9) For the purpose of sub-paragraph (8), the following days are to be disregarded—

(a) a Saturday or Sunday,

(b) Christmas Eve, Christmas Day or Easter Monday,

(d) a day appointed for public thanksgiving or mourning.

(10) If, in relation to a donation made by an individual who has an anonymous entry in an electoral register, a report under this paragraph contains a statement that the permitted participant has seen evidence that the individual has such an anonymous entry, the report must be accompanied by a copy of the evidence.

(11) The responsible person commits an offence if, without reasonable excuse, the person—

(a) fails to comply with the requirements of sub-paragraph (8) in relation to a report under this paragraph,

(b) delivers a report to the Electoral Commission that does not comply with the requirements of sub-paragraphs (3), (4) or (10).

(12) A person who commits an offence under sub-paragraph (11) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 12 months or to a fine (or both).

Declaration of responsible person as to donation reports under paragraph 43

44

(1) Each report prepared under paragraph 43 in respect of relevant donations received by a permitted participant must be accompanied by a declaration which complies with sub-paragraph (2) and is signed by the responsible person.

(2) The declaration must state—

(a) that the responsible person has examined the report, and

(b) that to the best of the responsible person's knowledge and belief, it is a complete and correct report as required by law.

(3) A person commits an offence if—

(a) the person knowingly or recklessly makes a false declaration under this paragraph, or

(b) sub-paragraph (1) is contravened at a time when the person is the responsible person in the case of the permitted participant to which the report relates.

(4) A person who commits an offence under sub-paragraph (3) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 12 months or to a fine (or both).

Public inspection of donation reports under paragraph 43

45

(1) Where the Electoral Commission receive a report under paragraph 43 they must—

(a) as soon as practicable after receiving the report, make a copy of the report and of any document accompanying it available for public inspection, and

(b) keep any such copy available for public inspection for the period for which the report or other document is held by them.

(2) The Commission must secure that the copy of the report made available for public inspection does not include, in the case of any donation by an individual, the donor's address.

(3) At the end of the period of 2 years beginning with the date when any report under paragraph 43 or other document accompanying it is received by the Commission—

(a) they may cause the report or other document to be destroyed, or

(b) if requested to do so by the responsible person in the case of the permitted participant concerned, they must arrange for the report or other document to be returned to that person.

PART 6 — Control of loans and credit

Operation of Part

46

(1) This Part has effect for controlling regulated transactions entered into by permitted participants that either are not registered parties or are minor parties.

(2) The following provisions have effect for the purposes of this Part.

(3) In accordance with sub-paragraph (1), “permitted participant” does not include a permitted participant which is a registered party other than a minor party.

(4) “Regulated transaction” has the meaning given by paragraph 47.

Regulated transactions

47

(1) An agreement between a permitted participant and another person by which the other person makes a loan of money to the permitted participant is a regulated transaction if the use condition is satisfied.

(2) An agreement between a permitted participant and another person by which the other person provides a credit facility to the permitted participant is a regulated transaction if the use condition is satisfied.

(3) Where—

(a) a permitted participant and another person (“A”) enter into a regulated transaction of a description mentioned in sub-paragraph (1) or (2), or a transaction under which any property, services or facilities are provided for the use or benefit of the permitted participant (including the services of any person),

(b) A also enters into an arrangement whereby another person (“B”) gives any form of security (whether real or personal) for a sum owed to A by the permitted participant under the transaction mentioned in paragraph (a), and

the arrangement is a regulated transaction.

(4) An agreement or arrangement is also a regulated transaction if—

(a) the terms of the agreement or arrangement as first entered into do not constitute a regulated transaction by virtue of sub-paragraph (1), (2) or (3), but

(b) the terms are subsequently varied in such a way that the agreement or arrangement becomes a regulated transaction.

(5) The use condition is that the permitted participant intends at the time of entering into a transaction mentioned in sub-paragraph (1), (2) or (3)(a) to use any money or benefit obtained in consequence of the transaction for meeting referendum expenses incurred by or on behalf of the permitted participant.

(6) For the purposes of sub-paragraph (5), it is immaterial that only part of the money or benefit is intended to be used for meeting referendum expenses incurred by or on behalf of the permitted participant.

(7) References in sub-paragraphs (1) and (2) to a permitted participant include references to an officer, member, trustee or agent of the permitted participant if that person makes the agreement as such.

(8) References in sub-paragraph (3) to a permitted participant include references to an officer, member, trustee or agent of the permitted participant if the property, services or facilities are provided to that person as such, or the sum is owed by that person as such.

(9) A reference to a connected transaction is a reference to the transaction mentioned in sub-paragraph (3)(b).

(10) In this paragraph a reference to anything being done by or in relation to a permitted participant or a person includes a reference to its being done directly or indirectly through a third person.

(11) A credit facility is an agreement whereby a permitted participant is enabled to receive from time to time from another party to the agreement a loan of money not exceeding such amount (taking account of any repayments made by the permitted participant) as is specified in or determined in accordance with the agreement.

(12) An agreement or arrangement is not a regulated transaction—

(a) to the extent that a payment made in pursuance of the agreement or arrangement falls, by virtue of paragraph 40, to be included in a return under paragraph 22 (or would do so but for paragraph 22(10) and (11)), or

(b) if its value does not exceed £500.

Valuation of regulated transaction

48

(1) The value of a regulated transaction which is a loan is the value of the total amount to be lent under the loan agreement.

(2) The value of a regulated transaction which is a credit facility is the maximum amount which may be borrowed under the agreement for the facility.

(3) The value of a regulated transaction which is an arrangement by which any form of security is given is the contingent liability under the security provided.

(4) For the purposes of sub-paragraphs (1) and (2), no account is to be taken of the effect of any provision contained in a loan agreement or an agreement for a credit facility at the time it is entered into which enables outstanding interest to be added to any sum for the time being owed in respect of the loan or credit facility, whether or not any such interest has been so added.

Authorised participants

49

(1) A permitted participant must not—

(a) be a party to a regulated transaction to which any of the other parties is not an authorised participant,

(b) derive a benefit in consequence of a connected transaction if any of the parties to that transaction is not an authorised participant.

(2) In this Part, an authorised participant is a person who is a permissible donor.

(3) In relation to transactions entered into by a permitted participant other than a designated organisation, references in this Part to an authorised participant do not include a registered party.

Regulated transaction involving unauthorised participant

50

(1) This paragraph applies if a permitted participant is a party to a regulated transaction to which another party is not an authorised participant.

(2) The transaction is void.

(3) Despite sub-paragraph (2)—

(a) any money received by the permitted participant by virtue of the transaction must be repaid by the responsible person to the person from whom it was received, along with interest at the rate referred to in section 71I(3)(a) of the 2000 Act,

(b) the person from whom it was received is entitled to recover the money, along with such interest.

(4) If—

(a) the money is not (for whatever reason) repaid as mentioned in sub-paragraph (3)(a), or

(b) the person entitled to recover the money refuses or fails to do so,

the Commission may apply to a sheriff to make such order as the sheriff thinks fit to restore (so far as is possible) the parties to the transaction to the position they would have been in if the transaction had not been entered into.

(5) An order under sub-paragraph (4) may in particular—

(a) where the transaction is a loan or credit facility, require that any amount owed by the permitted participant be repaid (and that no further sums be advanced under it),

(b) where any form of security is given for a sum owed under the transaction, require that security to be discharged.

(6) In the case of a regulated transaction where a party other than a permitted participant—

(a) at the time the permitted participant enters into the transaction, is an authorised participant, but

(b) subsequently, for whatever reason, ceases to be an authorised participant,

the transaction is void and sub-paragraphs (3) to (5) apply with effect from the time when the other party ceased to be an authorised participant.

Guarantees and securities: unauthorised participant

51

(1) This paragraph applies if—

(a) a permitted participant and another person (“A”) enter into a transaction of a description mentioned in paragraph 47(3)(a),

(b) A is party to a regulated transaction of a description mentioned in paragraph 47(3)(b) (“the connected transaction”) with another person (“B”), and

(2) Paragraph 50(2) to (5) applies to the transaction mentioned in sub-paragraph (1)(a).

(3) The connected transaction is void.

(4) Sub-paragraph (5) applies if (but only if) A is unable to recover from the permitted participant the whole of the money mentioned in paragraph 50(3)(a) (as applied by sub-paragraph (2) above), along with such interest as is there mentioned.

(5) Despite sub-paragraph (3), A is entitled to recover from B any part of that money (and such interest) that is not recovered from the permitted participant.

(6) Sub-paragraph (5) does not entitle A to recover more than the contingent liability under the security provided by virtue of the connected transaction.

(7) In the case of a connected transaction where B—

(a) at the time A enters into the transaction, is an authorised participant, but

(b) subsequently, for whatever reason, ceases to be an authorised participant,

sub-paragraphs (2) to (6) apply with effect from the time when B ceased to be an authorised participant.

(8) If the transaction mentioned in paragraph 47(3)(a) is not a regulated transaction of a description mentioned in paragraph 47(1) or (2), references in this paragraph and paragraph 50(2) to (5) (as applied by sub-paragraph (2) above) to the repayment or recovery of money are to be construed as references to (as the case may be)—

(a) the return or recovery of any property provided under the transaction,

(b) to the extent that such property is incapable of being returned or recovered or its market value has diminished since the time the transaction was entered into, the repayment or recovery of the market value at that time, or

Transfer to unauthorised participant invalid

52

If an authorised participant purports to transfer the participant's interest in a regulated transaction to a person who is not an authorised participant the purported transfer is of no effect.

Offences

53

(1) An individual who is a permitted participant commits an offence if—

(a) the individual enters into a regulated transaction of a description mentioned in paragraph 47(1) or (2) to which another party is not an authorised participant, and

(b) the individual knew or ought reasonably to have known of the matters mentioned in paragraph (a).

(2) A permitted participant that is not an individual commits an offence if—

(a) it enters into a regulated transaction of a description mentioned in paragraph 47(1) or (2) to which another party is not an authorised participant, and

(b) an officer of the permitted participant knew or ought reasonably to have known of the matters mentioned in paragraph (a).

(3) A person who is the responsible person in relation to a permitted participant that is not an individual commits an offence if—

(a) the permitted participant enters into a regulated transaction of a description mentioned in paragraph 47(1) or (2) to which another party is not an authorised participant, and

(b) the person knew or ought reasonably to have known of the matters mentioned in paragraph (a).

(4) An individual who is a permitted participant commits an offence if—

(a) the individual enters into a regulated transaction of a description mentioned in paragraph 47(1) or (2) to which another party is not an authorised participant,

(b) the individual neither knew nor ought reasonably to have known that the other party is not an authorised participant, and

(c) as soon as practicable after knowledge of the matters mentioned in paragraph (a) comes to the individual, the individual fails to take all reasonable steps to repay any money which the individual has received by virtue of the transaction.

(5) A permitted participant that is not an individual commits an offence if—

(a) it enters into a regulated transaction of a description mentioned in paragraph 47(1) or (2) to which another party is not an authorised participant,

(b) no officer of the permitted participant knew or ought reasonably to have known that the other party is not an authorised participant, and

(c) as soon as practicable after knowledge of the matters mentioned in paragraph (a) comes to the responsible person, the responsible person fails to take all reasonable steps to repay any money which the permitted participant has received by virtue of the transaction.

(6) A person who is the responsible person in relation to a permitted participant that is not an individual commits an offence if—

(a) the permitted participant enters into a regulated transaction of a description mentioned in paragraph 47(1) or (2) to which another party is not an authorised participant,

(b) sub-paragraph (3)(b) does not apply to the person, and

(c) as soon as practicable after knowledge of the matters mentioned in paragraph (a) comes to the person, the person fails to take all reasonable steps to repay any money which the permitted participant has received by virtue of the transaction.

(7) An individual who is a permitted participant commits an offence if—

(a) the individual benefits from or falls to benefit in consequence of a connected transaction to which any of the parties is not an authorised participant, and

(b) the individual knew or ought reasonably to have known of the matters mentioned in paragraph (a).

(8) A permitted participant that is not an individual commits an offence if—

(a) it benefits from or falls to benefit in consequence of a connected transaction to which any of the parties is not an authorised participant, and

(b) an officer of the permitted participant knew or ought reasonably to have known of the matters mentioned in paragraph (a).

(9) A person who is the responsible person in relation to a permitted participant that is not an individual commits an offence if—

(a) the permitted participant benefits from or falls to benefit in consequence of a connected transaction to which any of the parties is not an authorised participant, and

(b) the person knew or ought reasonably to have known of the matters mentioned in paragraph (a).

(10) An individual who is a permitted participant commits an offence if—

(a) the individual is a party to a transaction of a description mentioned in paragraph 47(3)(a),

(b) the individual benefits from or falls to benefit in consequence of a connected transaction to which any of the parties is not an authorised participant,

(c) the individual neither knew nor ought reasonably to have known of the matters mentioned in paragraphs (a) and (b), and

(d) as soon as practicable after knowledge of the matters mentioned in paragraphs (a) and (b) comes to the individual, the individual fails to take all reasonable steps to pay to any person who has provided the individual with any benefit in consequence of the connected transaction the value of the benefit.

(11) A permitted participant that is not an individual commits an offence if—

(a) it is a party to a transaction of a description mentioned in paragraph 47(3)(a),

(b) it benefits from or falls to benefit in consequence of a connected transaction to which any of the parties is not an authorised participant,

(c) no officer of the permitted participant knew or ought reasonably to have known of the matters mentioned in paragraphs (a) and (b), and

(d) as soon as practicable after knowledge of the matters mentioned in paragraphs (a) and (b) comes to the responsible person, the responsible person fails to take all reasonable steps to pay to any person who has provided the permitted participant with any benefit in consequence of the connected transaction the value of the benefit.

(12) A person who is the responsible person in relation to a permitted participant that is not an individual commits an offence if—

(a) the permitted participant is a party to a transaction of a description mentioned in paragraph 47(3)(a),

(b) the permitted participant benefits from or falls to benefit in consequence of a connected transaction to which any of the parties is not an authorised participant,

(d) as soon as practicable after knowledge of the matters mentioned in paragraphs (a) and (b) comes to the person, the person fails to take all reasonable steps to pay to any person who has provided the permitted participant with any benefit in consequence of the connected transaction the value of the benefit.

(13) A person commits an offence if the person—

(a) knowingly enters into, or

(b) knowingly does any act in furtherance of,

any arrangement which facilitates or is likely to facilitate, whether by means of concealment or disguise or otherwise, the participation by a permitted participant in a regulated transaction with a person other than an authorised participant.

(14) It is a defence for a person charged with an offence under sub-paragraph (3) to prove that the person took all reasonable steps to prevent the permitted participant entering into the transaction.

(15) It is a defence for a person charged with an offence under sub-paragraph (9) to prove that the person took all reasonable steps to prevent the permitted participant benefiting in consequence of the connected transaction.

(16) A reference to a permitted participant entering into a regulated transaction includes a reference to any circumstances in which the terms of a regulated transaction are varied so as to increase the amount of money to which the permitted participant is entitled in consequence of the transaction.

(17) A reference in sub-paragraphs (1) to (6) to entering into a regulated transaction of a description mentioned in paragraph 47(1) or (2) to which another party is not an authorised participant includes a reference to receiving an amount of money under a regulated transaction of a description mentioned in paragraph 47(1) or (2) at a time when a person who is also a party to the transaction (and who was an authorised participant when the transaction was entered into) has ceased to be an authorised participant.

(18) It is a defence for a person charged with an offence under any of sub-paragraphs (1) to (3) by virtue of sub-paragraph (17) to prove that the person took all reasonable steps, as soon as practicable, to repay money received as mentioned in sub-paragraph (17).

(19) Where a person is charged with an offence under sub-paragraph (3) by virtue of sub-paragraph (17), sub-paragraph (14) does not apply.

(20) In relation to a case where sub-paragraph (4)(a) and (b), (5)(a) and (b) or (6)(a) and (b) applies by virtue of sub-paragraph (17), the reference in sub-paragraph (4)(c), (5)(c) or, as the case may be, (6)(c) to any money received by virtue of the transaction is to be read as a reference to any money so received after the party in question ceased to be an authorised participant.

Penalties

54

(1) A person who commits an offence under sub-paragraph (1), (2), (4), (7), (8) or (10) of paragraph 53 is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum,

(b) on conviction on indictment, to a fine.

(2) A person who commits an offence under sub-paragraph (3), (5), (6), (9), (11), (12) or (13) of paragraph 53 is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 12 months or to a fine (or both).

Statement of regulated transactions

55

(1) The responsible person in relation to a permitted participant must include in any return required to be prepared under paragraph 22 a statement of regulated transactions entered into by the permitted participant.

(2) The statement must comply with paragraphs 56 to 60.

(3) For the purposes of those paragraphs a regulated transaction is a recordable transaction—

(a) if the value of the transaction exceeds £7,500, or

(b) if the aggregate value of it and any other relevant benefit or benefits exceeds that amount.

(4) In sub-paragraph (3)(b) “relevant benefit” means any relevant donation (within the meaning of paragraph 30(4)) or regulated transaction made by, or entered into with, the person with whom the regulated transaction was entered into.

Information about authorised participants

56

(1) The statement must record, in relation to each recordable transaction to which an authorised participant was a party—

(a) the information about the authorised participant which is, in connection with transactions entered into by registered parties, required to be recorded in transaction reports by virtue of paragraph 2 of schedule 6A of the 2000 Act, or

(b) where the authorised participant is within any of paragraphs (i) to (l) of paragraph 1(2), the information mentioned in sub-paragraph (2).

(2) The information referred to in sub-paragraph (1)(b) is—

(a) where the authorised participant is a body within paragraph 1(2)(i) (body incorporated by Royal Charter)—

(i) the name of the body, and

(ii) the address of its main office in the United Kingdom,

(b) where the authorised participant is a body within paragraph 1(2)(j) or (k) (charitable incorporated organisation)—

(i) the name of the body, and

(ii) the address of its principal office,

(i) the name of the body, and

(ii) the address of its main office in the United Kingdom.

Identity of unauthorised participants

57

The statement must record, in relation to each recordable transaction to which a person other than an authorised participant was a party—

(a) the name and address of the person,

(b) the date when, and the manner in which, the transaction was dealt with in accordance with sub-paragraphs (3) to (5) of paragraph 50 or those sub-paragraphs as applied by paragraph 50(6) or 51(2).

Details of transactions

58

(1) The statement must record, in relation to each recordable transaction, the information about the transaction which is, in connection with transactions entered into by registered parties, required to be recorded in transaction reports by virtue of paragraph 5(2), (3) and (4) of schedule 6A of the 2000 Act (read with the modifications mentioned in sub-paragraph (2) and any other necessary modifications).

(2) In relation to the statement—

(a) paragraph 5(3) of schedule 6A of the 2000 Act has effect as if the reference to section 71G were a reference to paragraph 48 of this schedule,

(b) paragraph 5(4) of that schedule has effect as if the references to the relevant date for the transaction determined in accordance with paragraph 8 of that schedule were a reference to the relevant date for the transaction determined in accordance with paragraph 8(1) of that schedule, and

(i) the reference to a quarterly report were a reference to the statement,

(ii) the reference to section 71M(4)(a) or (7)(a) were a reference to paragraph 55(3)(a) of this schedule, and

(iii) the reference to section 71M(4)(b) or (7)(b) were a reference to paragraph 55(3)(b) of this schedule.

(3) The statement must record, in relation to each recordable transaction of a description mentioned in paragraph 47(1) or (2), the information about the transaction which is, in connection with transactions entered into by registered parties, required to be recorded in transaction reports by virtue of paragraph 6 of schedule 6A of the 2000 Act.

(4) The statement must record, in relation to each recordable transaction of a description mentioned in paragraph 47(3), the information about the transaction which is, in connection with transactions entered into by registered parties, required to be recorded in transaction reports by virtue of paragraph 7(2)(b), (3) and (4) of schedule 6A of the 2000 Act.

Changes

59

(1) Where another authorised participant has become a party to a regulated transaction (whether in place of or in addition to any existing participant), or there has been any other change in any of the information that is required by paragraphs 56 to 58 to be included in the statement, the statement must record—

(a) the information as it was both before and after the change,

(b) the date of the change.

(2) Where a recordable transaction has come to an end, the statement must—

(a) record that fact,

(b) record the date when it happened,

(3) For the purposes of sub-paragraph (2), a loan comes to an end if—

(a) the whole debt (or all the remaining debt) is repaid,

(b) the creditor releases the whole debt.

Total value of non-recordable transactions

60

The statement must record the total value of any regulated transactions that are not recordable transactions.

Transaction reports during referendum period

61

(1) The responsible person in relation to a permitted participant must prepare a report under this paragraph in respect of each of the following periods—

(a) the period starting with the relevant day and ending with the 14th day of the referendum period,

(b) the succeeding period of 4 weeks during the referendum period, and

(c) the period from the end of the succeeding 4 week period referred to in paragraph (b) until the end of the day before the date of the referendum.

(2) In sub-paragraph (1)(a), the “relevant day” is the day on which the Act of the Scottish Parliament referred to in section 1(2) is passed or regulations made under that Act are laid before the Scottish Parliament.

(3) The report for any period must record, in relation to each regulated transaction having a value exceeding £7,500 which is entered into by the permitted participant during the period—

(a) the same information about the transaction as would be required, by virtue of paragraph 58, to be recorded in the statement referred to in paragraph 55(1),

(b) in relation to a transaction to which an authorised participant is a party, the information about each authorised participant which is, in connection with recordable transactions entered into by registered parties, required to be recorded in weekly transaction reports by virtue of paragraph 3 of schedule 6A of the 2000 Act, and

(c) in relation to a transaction to which a person who is not an authorised participant is a party, the information referred to in paragraph 57.

(4) If during any period no regulated transactions having a value exceeding £7,500 were entered into by the permitted participant, the report for the period must contain a statement of that fact.

(5) Where an individual or body becomes a permitted participant during a period mentioned in sub-paragraph (1)(b) or (c) (“the period in question”)—

(a) a separate report under this paragraph need not be prepared for any preceding period, but

(b) for the purposes of sub-paragraphs (3) and (4), the report for the period in question must also cover the time from the relevant day (as defined in sub-paragraph (2)) to the start of the period, and references in those sub-paragraphs to the period are to be read accordingly.

(6) Sub-paragraphs (3) and (4) apply to a regulated transaction entered into by a permitted participant before the start of the referendum period only if any money or benefit obtained in consequence of the transaction is to be used for meeting referendum expenses to be incurred by the permitted participant during the referendum period.

(7) References in this paragraph and in paragraph 62 to a regulated transaction entered into by a permitted participant include any transaction entered into at a time before the individual or body concerned became a permitted participant, if the transaction would have been a regulated transaction had the individual or body been a permitted participant at that time.

(8) A report under this paragraph must be delivered by the responsible person to the Electoral Commission within the period of 7 days beginning with the end of the period to which the report relates.

(9) For the purpose of sub-paragraph (8), the following days are to be disregarded—

(a) a Saturday or Sunday,

(b) Christmas Eve, Christmas Day or Easter Monday,

(d) a day appointed for public thanksgiving or mourning.

(10) If, in relation to a regulated transaction entered into with an individual who has an anonymous entry in an electoral register, a report under this paragraph contains a statement that the permitted participant has seen evidence that the individual has such an anonymous entry, the report must be accompanied by a copy of the evidence.

(11) The responsible person commits an offence if, without reasonable excuse, the person—

(a) fails to comply with the requirements of sub-paragraph (8) in relation to a report under this paragraph,

(b) delivers a report to the Electoral Commission that does not comply with the requirements of sub-paragraphs (3), (4) or (10).

(12) A person who commits an offence under sub-paragraph (11) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 12 months or to a fine (or both).

Declaration of responsible person as to transaction reports under paragraph 61

62

(1) Each report prepared under paragraph 61 in respect of regulated transactions entered into by a permitted participant must be accompanied by a declaration which complies with sub-paragraph (2) and is signed by the responsible person.

(2) The declaration must state—

(a) that the responsible person has examined the report, and

(b) that to the best of the responsible person's knowledge and belief, it is a complete and correct report as required by law.

(3) A person commits an offence if—

(a) the person knowingly or recklessly makes a false declaration under this paragraph, or

(b) sub-paragraph (1) is contravened at a time when the person is the responsible person in the case of the permitted participant to which the report relates.

(4) A person who commits an offence under sub-paragraph (3) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 12 months or to a fine (or both).

Public inspection of transaction reports under paragraph 61

63

(1) Where the Electoral Commission receive a report under paragraph 61 they must—

(a) as soon as practicable after receiving the report, make a copy of the report and of any document accompanying it available for public inspection, and

(b) keep any such copy available for public inspection for the period for which the report or other document is held by them.

(2) The Commission must secure that the copy of the report made available for public inspection does not include, in the case of any transaction entered into by the permitted participant with an individual, the individual's address.

(3) At the end of the period of 2 years beginning with the date when any report under paragraph 61 or other document accompanying it is received by the Commission—

(a) they may cause the report or other document to be destroyed, or

(b) if requested to do so by the responsible person in the case of the permitted participant concerned, they must arrange for the report or other document to be returned to that person.

Non-disclosure with intent to conceal

64

(1) This paragraph applies where, on an application made by the Commission, a sheriff is satisfied that any failure to comply with a requirement of paragraphs 55 to 62 in relation to—

(a) any transaction entered into by the permitted participant, or

(b) any change made to a transaction to which the permitted participant is a party,

was attributable to an intention on the part of any person to conceal the existence or true value of the transaction.

(2) The sheriff may make such order as the sheriff thinks fit to restore (so far as is possible) the parties to the transaction to the position they would have been in if the transaction had not been entered into.

(3) An order under this paragraph may in particular—

(a) where the transaction is a loan or credit facility, require that any amount owed by the permitted participant be repaid (and that no further sums be advanced under it),

(b) where any form of security is given for a sum owed under the transaction, or the transaction is an arrangement by which any form of security is given, require that the security be discharged.

Proceedings under paragraphs 50 and 64

65

(1) This paragraph has effect in relation to proceedings on an application under paragraph 50(4) or 64.

(2) The proceedings are civil proceedings and, accordingly, the standard of proof that applies is that applicable to civil proceedings.

(3) An order may be made whether or not proceedings are brought against any person for an offence under paragraph 25 or 53.

(4) An appeal against an order made by the sheriff may be made to the Court of Session.

(5) Rules of court may make provision—

(a) with respect to applications or appeals from proceedings on such applications,

(b) for the giving of notice of such applications or appeals to persons affected,

(d) generally with respect to procedure in such applications or appeals.

(6) Sub-paragraph (5) does not affect any existing power to make rules.

Interpretation

66

(1) In this Part—

“authorised participant” is to be construed in accordance with paragraph 49,

“connected transaction” has the meaning given by paragraph 47(9),

“credit facility” has the meaning given by paragraph 47(11),

“permitted participant” is to be construed in accordance with paragraph 46,

“regulated transaction” is to be construed in accordance with paragraph 47.

(2) For the purposes of any provision relating to the reporting of transactions, anything required to be done by a permitted participant in consequence of its being a party to a regulated transaction must also be done by it, if it is a party to a transaction of a description mentioned in paragraph 47(3)(a), as if it were a party to the connected transaction.

SCHEDULE 4

Power to require disclosure of documents etc.

1

(1) The Electoral Commission may give a disclosure notice to a person who—

(a) is, or has been at any time in the period of 5 years ending with the day on which the notice is given, the treasurer or another officer of an organisation that is a permitted participant, or

(b) is an individual who is a permitted participant,

(c) is a person who has made a declaration as a qualifying individual under paragraph 2 of schedule 3 and the Commission have reasonable grounds for believing that the individual is not a qualifying individual,

(d) is a person who has made a declaration as a qualifying body under paragraph 2 of schedule 3 and the Commission have reasonable grounds for believing that the body is not a qualifying body,

(e) is an individual or body that is not a permitted participant and the Commission have reasonable grounds for believing that the individual or body is incurring referendum expenses,

(f) is an individual or body that the Commission have reasonable grounds for believing has received a relevant donation,

(g) is an individual or body that the Commission have reasonable grounds for believing has entered into a regulated transaction,

(h) is an individual or body that the Commission have reasonable grounds for believing is providing goods, services or facilities to a permitted participant or a person mentioned in paragraph (e),

(i) is a body that is not a permitted participant and the Commission have reasonable grounds for believing that the body has published material to which paragraph 28(1) of schedule 3 applies.

(2) In sub-paragraph (1)(f), “relevant donation” includes, in the case of a permitted participant, any donation received at a time before the individual or body became a permitted participant, if the donation would have been a relevant donation had the individual or body been a permitted participant at that time.

(3) In sub-paragraph (1)(g), “regulated transaction” includes, in the case of a permitted participant, any transaction entered into at a time before the individual or body became a permitted participant, if the transaction would have been a regulated transaction had the individual or body been a permitted participant at that time.

(4) A disclosure notice is a notice requiring the person to whom it is given—

(a) to produce for inspection by the Commission, or a person authorised by the Commission, any documents which—

(i) relate to income and expenditure of the organisation or individual in question, and

(ii) are reasonably required by the Commission for the purposes of carrying out their functions under section 14 and schedule 3, or

(b) to provide the Commission, or a person authorised by the Commission, with any information or explanation which relates to that income and expenditure and is reasonably required by the Commission for those purposes.

(5) In the case of a person mentioned in sub-paragraph (1)(c) or (as the case may be) (d), a disclosure notice may also require the person to whom it is given to provide the Commission, or a person authorised by the Commission, with any information or explanation reasonably required by the Commission for the purposes of determining whether the person is a qualifying individual (within the meaning of paragraph 2(3) of schedule 3) or (as the case may be) a qualifying body (within the meaning of paragraph 2(4) of that schedule).

(6) In the case of a person mentioned in sub-paragraph (1)(f) or (as the case may be) (g), a disclosure notice may also require the person to whom it is given to provide the Commission, or a person authorised by the Commission, with any information or explanation reasonably required by the Commission for the purposes of carrying out their functions under Part 5 or (as the case may be) 6 of schedule 3.

(7) In the case of a person mentioned in sub-paragraph (1)(i), a disclosure notice may also require the person to whom it is given to provide the Commission, or a person authorised by the Commission, with any information or explanation reasonably required by the Commission for the purposes of carrying out their functions under paragraph 28 of schedule 3.

(8) A person to whom a disclosure notice is given must comply with the notice within such reasonable time as is specified in the notice.

Inspection warrants

2

(1) This paragraph applies in relation to an organisation or individual that is a permitted participant.

(2) A sheriff or a justice of the peace may, on the application of the Electoral Commission, issue an inspection warrant in relation to any premises occupied by an organisation or individual to whom this paragraph applies if satisfied that—

(a) there are reasonable grounds for believing that on those premises there are documents relating to the income and expenditure of the organisation or individual,

(b) the Commission need to inspect the documents for the purposes of carrying out their functions under section 14 and schedule 3 (other than their investigatory functions), and

(c) permission to inspect the documents on the premises has been requested by the Commission and has been unreasonably refused.

(3) An inspection warrant is a warrant authorising a member of the Commission's staff—

(a) at any reasonable time to enter the premises specified in the warrant, and

(b) having entered the premises, to inspect any documents within sub-paragraph (2)(a).

(4) An inspection warrant also authorises the person who executes the warrant to be accompanied by any other persons who the Commission consider are needed to assist in executing it.

(5) The person executing an inspection warrant must, if required to do so, produce—

(a) the warrant, and

(b) documentary evidence that the person is a member of the Commission's staff,

for inspection by the occupier of the premises that are specified in the warrant or by anyone acting on the occupier's behalf.

(6) An inspection warrant continues in force until the end of the period of one month beginning with the day on which it is issued.

(7) An inspection warrant may not be used for the purposes of carrying out investigatory functions.

(8) In this paragraph, “investigatory functions” means functions of investigating—

(a) suspected campaign offences, or

(b) suspected contraventions of restrictions or requirements imposed by schedule 3.

Powers in relation to suspected offences or contraventions

3

(1) This paragraph applies where the Electoral Commission have reasonable grounds to suspect that—

(a) a person has committed a campaign offence, or

(b) a person has contravened (otherwise than by committing an offence) any restriction or other requirement imposed by schedule 3.

(2) In this paragraph, “the suspected offence or contravention” means the offence or contravention referred to in sub-paragraph (1).

(3) The Commission may by notice require any person (including an organisation or individual to whom paragraph 1 applies)—

(a) to produce for inspection by the Commission, or a person authorised by the Commission, any documents that they reasonably require for the purposes of investigating the suspected offence or contravention,

(b) to provide the Commission, or a person authorised by the Commission, with any information or explanation that they reasonably require for those purposes.

(4) A person to whom a notice is given under sub-paragraph (3) must comply with the notice within such reasonable time as is specified in the notice.

(5) A person authorised by the Commission (“the investigator”) may require—

(a) the person mentioned in sub-paragraph (1) (if that person is an individual), or

(b) an individual who the investigator reasonably believes has relevant information,

to attend before the investigator at a specified time and place and answer any questions that the investigator reasonably considers to be relevant.

(6) The time specified must be a reasonable time.

(7) In sub-paragraph (5), “relevant” means relevant to an investigation by the Commission of the suspected offence or contravention.

Document disclosure orders

4

(1) This paragraph applies where the Electoral Commission have given a notice under paragraph 3 requiring documents to be produced.

(2) The Court of Session may, on the application of the Commission, make a document disclosure order against a person (“the respondent”) if satisfied that—

(a) there are reasonable grounds to suspect that a person (whether or not the respondent) has committed a campaign offence or has otherwise contravened any restriction or other requirement imposed by schedule 3, and

(b) there are documents referred to in the notice under paragraph 3 which—

(i) have not been produced as required by the notice (either within the time specified in the notice for compliance or subsequently),

(ii) are reasonably required by the Commission for the purposes of investigating the offence or contravention referred to in paragraph (a), and

(iii) are in the custody or under the control of the respondent.

(3) A document disclosure order is an order requiring the respondent to deliver to the Commission, within such time as is specified in the order, such documents falling within sub-paragraph (2)(b) as are identified in the order (either specifically or by reference to any category or description of document).

(4) For the purposes of sub-paragraph (2)(b)(iii) a document is under a person's control if it is in the person's possession or if the person has a right to possession of it.

(5) A person who fails to comply with a document disclosure order may not, in respect of that failure, be both punished for contempt of court and convicted of an offence under paragraph 12(1).

Information disclosure orders

5

(1) This paragraph applies where the Electoral Commission have given a notice under paragraph 3 requiring any information or explanation to be provided.

(2) The Court of Session may, on the application of the Commission, make an information disclosure order against a person (“the respondent”) if satisfied that—

(a) there are reasonable grounds to suspect that a person (whether or not the respondent) has committed a campaign offence or has contravened (otherwise than by committing an offence) any restriction or other requirement imposed by schedule 3, and

(b) there is any information or explanation referred to in the notice under paragraph 3 which—

(i) has not been provided as required by the notice (either within the time specified in the notice for compliance or subsequently),

(ii) is reasonably required by the Commission for the purposes of investigating the offence or contravention referred to in paragraph (a), and

(iii) the respondent is able to provide.

(3) An information disclosure order is an order requiring the respondent to provide to the Commission, within such time as is specified in the order, such information or explanation falling within sub-paragraph (2)(b) as is identified in the order.

(4) A person who fails to comply with an information disclosure order may not, in respect of that failure, be both punished for contempt of court and convicted of an offence under paragraph 12(1).

Retention of documents delivered under paragraph 4

6

(1) The Electoral Commission may retain any documents delivered to them in compliance with an order under paragraph 4 for a period of 3 months (or for longer if any of sub-paragraphs (3) to (8) applies).

(2) In this paragraph, “the documents” and “the 3 month period” mean the documents and the period mentioned in sub-paragraph (1).

(3) If, within the 3 month period, proceedings to which the documents are relevant are commenced against any person for any offence, the documents may be retained until the conclusion of the proceedings.

(4) If, within the 3 month period, the Commission serve a notice under paragraph 2(1) of schedule 5 of a proposal to impose a fixed monetary penalty on any person and the documents are relevant to the decision to serve the notice, the documents may be retained—

(a) until liability for the penalty is discharged as mentioned in paragraph 2(2) of that schedule (if it is),

(b) until the Commission decide not to impose a fixed monetary penalty (if that is what they decide),

(5) If, within the 3 month period, the Commission serve a notice under paragraph 7(1) of schedule 5 of a proposal to impose a discretionary requirement on any person and the documents are relevant to the decision to serve the notice, the documents may be retained—

(a) until the Commission decide not to impose a discretionary requirement (if that is what they decide),

(b) until the end of the period given by sub-paragraph (6) (if they do impose a discretionary requirement).

(6) If, within the 3 month period—

(a) a notice is served imposing a fixed monetary penalty on any person under paragraph 2(4) of schedule 5 and the documents are relevant to the decision to impose the penalty, or

(b) a notice is served imposing a discretionary requirement on any person under paragraph 7(5) of that schedule and the documents are relevant to the decision to impose the requirement,

the documents may be retained until the end of the period allowed for bringing an appeal against that decision or (if an appeal is brought) until the conclusion of proceedings on the appeal.

(7) If, within the 3 month period—

(a) a stop notice is served on any person under paragraph 13 of schedule 5, and

(b) the documents are relevant to the decision to serve the notice,

the documents may be retained until the end of the period allowed for bringing an appeal against that decision or (if an appeal is brought) until the conclusion of proceedings on the appeal.

(8) If, within the 3 month period or the period given by sub-paragraph (7) (or, if applicable, by sub-paragraph (5) or (6)(b))—

(a) the Commission, having served a stop notice on any person under paragraph 13 of schedule 5, decide not to issue a completion certificate under paragraph 15 of that schedule in relation to the stop notice, and

(b) the documents are relevant to the decision not to issue the certificate,

the documents may be retained until the end of the period allowed for bringing an appeal against that decision or (if an appeal is brought) until the conclusion of proceedings on the appeal.

Power to make copies and records

7

The Electoral Commission or a person authorised by the Commission—

(a) may make copies or records of any information contained in—

(i) any documents produced or inspected under this schedule,

(ii) any documents delivered to them in compliance with an order under paragraph 4,

(b) may make copies or records of any information or explanation provided under this schedule.

Authorisation to be in writing

8

An authorisation of a person by the Electoral Commission under this schedule must be in writing.

Documents in electronic form

9

(1) In the case of documents kept in electronic form—

(a) a power of the Electoral Commission under this schedule to require documents to be produced for inspection includes power to require a copy of the documents to be made available for inspection in legible form,

(b) a power of a person (“the inspector”) under this schedule to inspect documents includes power to require any person on the premises in question to give any assistance that the inspector reasonably requires to enable the inspector—

(i) to inspect and make copies of the documents in legible form or to make records of information contained in them, or

(ii) to inspect and check the operation of any computer, and any associated apparatus or material, that is or has been in use in connection with the keeping of the documents.

(2) Paragraph 7(a) applies in relation to any copy made available as mentioned in sub-paragraph (1)(a) above.

Legal professional privilege

10

Nothing in this schedule requires a person to produce or provide, or authorises a person to inspect or take possession of, anything in respect of which a claim to confidentiality of communications could be maintained in legal proceedings.

Admissibility of statements

11

(1) A statement made by a person (“P”) in compliance with a requirement imposed under this schedule is admissible in evidence in any proceedings (as long as it also complies with any requirements governing the admissibility of evidence in the circumstances in question).

(2) But in criminal proceedings in which P is charged with an offence (other than one to which sub-paragraph (3) applies) or in proceedings within sub-paragraph (4) to which both the Electoral Commission and P are parties—

(a) no evidence relating to the statement is admissible against P, and

(b) no question relating to the statement may be asked on behalf of the prosecution or (as the case may be) the Commission in cross-examination of P,

unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of P.

(3) This sub-paragraph applies to—

(a) an offence under paragraph 12(3),

(b) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath).

(4) Proceedings are within this sub-paragraph if they arise out of the exercise by the Commission of any of their powers under schedule 5 other than powers in relation to an offence under paragraph 12(3) below.

Offences

12

(1) A person who fails, without reasonable excuse, to comply with any requirement imposed under or by virtue of this schedule commits an offence.

(2) A person who intentionally obstructs a person authorised by or by virtue of this schedule in the carrying out of that person's functions under the authorisation commits an offence.

(3) A person who knowingly or recklessly provides false information in purported compliance with a requirement imposed under or by virtue of this schedule commits an offence.

(4) A person who commits an offence under sub-paragraph (2) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) A person who commits an offence under sub-paragraph (1) or (3) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both),

(b) on conviction on indictment, to imprisonment for a term not exceeding 12 months or to a fine (or both).

Guidance by Commission

13

(1) The Electoral Commission must prepare and publish guidance as to—

(a) the circumstances in which the Commission are likely to give a notice under paragraph 4 or 3,

(b) the consequences (including criminal sanctions) that may result from a failure to comply with such a notice,

(d) the procedures to be followed in connection with questioning under paragraph 3(5),

(e) the circumstances in which the Commission are likely to apply for an order under paragraph 4 or 5,

(f) the principles and practices to be applied in connection with the exercise of powers under paragraphs 6 and 7,

(g) any other matters concerning the exercise of powers under this schedule about which the Commission consider that guidance would be useful.

(2) Where appropriate, the Commission must revise guidance published under sub-paragraph (1) and publish the revised guidance.

(3) The Commission must have regard to the guidance or revised guidance published under this paragraph in exercising their functions under this Act.

Information about use of investigatory powers in Commission's report

14

(1) The Electoral Commission must, in accordance with this paragraph, make a report about the use made by the Commission of their powers under this schedule.

(2) The report must, in particular, specify—

(a) the cases in which a notice was given under paragraph 1 or 3(3),

(b) the cases in which premises were entered under a warrant issued under paragraph 2,

(d) the cases in which an order under paragraph 4 or 5—

(i) was applied for,

(ii) was made.

(3) This paragraph does not require the Commission to include in the report any information that, in their opinion, it would be inappropriate to include on the ground that to do so—

(a) would or might be unlawful, or

(b) might adversely affect any current investigation or proceedings.

(4) The report may be made—

(a) in the report by the Commission under section 29,

(b) in a separate report made as soon as practicable after the report under section 29 is published, or

(5) The Commission must—

(a) lay any report under sub-paragraph (4)(b) before the Scottish Parliament, and

(b) after laying, publish the report in such manner as they may determine.

Interpretation

15

In this schedule—

“contravention” includes a failure to comply, and related expressions are to be construed accordingly,

“documents” includes any books or records,

“restriction” includes prohibition.

SCHEDULE 5

PART 1 — Fixed monetary penalties

Imposition of fixed monetary penalties

1

(1) The Electoral Commission may by notice impose a fixed monetary penalty on a person if satisfied beyond reasonable doubt that the person has committed a campaign offence listed in Part 7.

(2) The Commission may by notice impose a fixed monetary penalty on a permitted participant if satisfied beyond reasonable doubt that the responsible person in relation to the permitted participant—

(a) has committed a campaign offence listed in Part 7, or

(b) has failed to comply with a requirement imposed by paragraph 24(2), (3) or (4) of schedule 3.

(3) For the purposes of this schedule a “fixed monetary penalty” is a requirement to pay to the Commission a penalty of £200.

Representations and appeals etc.

2

(1) Where the Electoral Commission propose to impose a fixed monetary penalty on a person, they must serve on the person a notice of what is proposed.

(2) A notice under sub-paragraph (1) must offer the person the opportunity to discharge the person's liability for the fixed monetary penalty by payment of £200.

The following provisions of this paragraph apply if the person does not do so.

(3) The person may make written representations and objections to the Commission in relation to the proposed imposition of the fixed monetary penalty.

(4) After the end of the period for making such representations and objections (see paragraph 3(2)) the Commission must decide whether to impose the fixed monetary penalty.

If they decide to do so they must serve on the person a notice imposing the penalty.

(5) The Commission may not impose a fixed monetary penalty on a person if, taking into account (in particular) any matter raised by the person, the Commission are no longer satisfied as mentioned in paragraph 1(1) or (2) (as applicable).

(6) A person on whom a fixed monetary penalty is imposed may appeal against the decision to impose the penalty on the ground that the decision was—

(a) based on an error of fact,

(b) wrong in law, or

(7) An appeal under sub-paragraph (6) is to a sheriff and must be made within the period of 28 days beginning with the day on which the notice under sub-paragraph (4) is received.

(8) Where an appeal under sub-paragraph (6) is made, the fixed monetary penalty is suspended from the day on which the appeal is made until the day on which the appeal is determined or withdrawn.

Information to be included in notices under paragraph 2

3

(1) A notice under paragraph 2(1) must include information as to—

(a) the grounds for the proposal to impose the fixed monetary penalty,

(b) the effect of payment of the sum referred to in paragraph 2(2),

(d) the circumstances in which the Commission may not impose the fixed monetary penalty.

(2) Such a notice must also specify—

(a) the period within which liability for the fixed monetary penalty may be discharged, and

(b) the period within which representations and objections may be made.

Neither period may be more than 28 days beginning with the day on which the notice is received.

(3) A notice under paragraph 2(4) must include information as to—

(a) the grounds for imposing the fixed monetary penalty,

(b) how payment may be made,

(d) any early payment discounts or late payment penalties,

(e) rights of appeal,

(f) the consequences of non-payment.

Late payment

4

(1) A fixed monetary penalty must be paid within the period of 28 days beginning with the day on which the notice under paragraph 2(4) is received.

(2) If the penalty is not paid within that period the amount payable is increased by 25%.

(3) If the penalty (as increased by sub-paragraph (2)) is not paid within the period of 56 days beginning with the day on which the notice under paragraph 2(4) is received, the amount payable is the amount of the fixed monetary penalty originally imposed increased by 50%.

(4) In the case of an appeal, any penalty which falls to be paid, whether because the sheriff upheld the penalty or because the appeal was withdrawn, is payable within the period of 28 days beginning with the day of determination or withdrawal of the appeal, and if not paid within that period the amount payable is increased by 25%.

(5) If the penalty (as increased by sub-paragraph (4)) is not paid within the period of 56 days beginning with the day of determination or withdrawal of the appeal, the amount payable is the amount of the fixed monetary penalty originally imposed increased by 50%.

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