How is our electoral law enforced?

The Political Parties, Elections and Referendums Act (PPERA 2000) established the Electoral Commission as an elections watchdog. The Commission monitors and ensures compliance with the law, which involves: 

• proactive advice and guidance to give those it regulates a clear understanding of their obligations
• supervisory work, including audits and checks on financial filings, to ensure that regulated organisations and individuals meet legal requirements
• enforcement action using investigatory powers and sanctions where it is necessary and proportionate to do so, including issuing restoration and compliance notices, seeking forfeiture of impermissible funds, and imposing civil fines

Beyond the Electoral Commission there are a range of people who have an legal obligation to comply with the law, including political party treasurers, party compliance officers, and election agents for candidates. 

When they fail to do so, the Electoral Commission is not the only one responsible for enforcing the rules. It is the role of the police and prosecutors across the UK to carry out criminal investigations and take cases to court.

In theory, the system deters law breaking through the threat of graduated sanctions that increase in severity depending on the seriousness of non-compliance. Penalties range from public censure to the voluntary forfeiture of funds to jail sentences. 

Who investigates and imposes sanctions varies depending on the conduct involved and whether it was intentional. 

Civil sanctions 

For lesser breaches of PPERA, the Electoral Commission can issue civil sanctions where it is satisfied beyond reasonable doubt that the rules have been broken. Parliament introduced these in 2009 after a review by the Committee on Standards in Public Life (CSPL), who identified an enforcement gap between the Commission’s power to name and shame and referring matters for criminal prosecution, which rightly requires a high standard of proof. 

While criminal offences can still be pursued through the courts, in theory the option of civil sanctions creates a more balanced and proportionate system of deterrence against rule-breaking. 

Civil sanctions include: 

• fixed monetary penalties of £200 and variable monetary penalties ranging from £250 to £20,000
• compliance and restoration notices where a regulated organisation or individual are required to take rectifying action to prevent a future breach
• enforcement undertakings where a regulated organisation or individual may offer to rectify a breach and/or take remedial action as if the offence had not occurred  

Forfeiture 

Where a donation is impermissible or the donor is unidentifiable, the Electoral Commission can seek forfeiture of these funds. They first request voluntary return of the money, but can escalate this and apply to the court under civil law to recover them, if necessary. A party could face both the forfeiture of an impermissible donation and also a civil fine for the violation. 

Criminal sanctions 

Criminal sanctions for election finance offences are the responsibility of the courts. Each individual police force has responsibility for investigating election related crime in their area. Often this falls to the Metropolitan Police, who have a Special Enquiry Team to deal with these allegations, because those involved (e.g. MPs) are based in London. In Scotland, it is the Crown Service and Procurator Fiscal Service (CSPFS) who take a lead. 

When cases cover several policing areas, coordination becomes complex and requires involvement from the National Police Chiefs’ Council. For example, the 2015 ‘Battlebus case’ involved 17 separate police forces. In at least one instance, the Electoral Commission has made a referral to the National Crime Agency. 

Prosecutors may bring a case to court if they determine that there is both a realistic prospect of conviction and that it is in the public interest to do so. 

There is a growing consensus that existing  sanctions are insufficient to discourage breaking the law. Multiple reviews – by the CSPL, the Lords Committee on Digital Technology, the Public Administration and Constitutional Affairs Committee and independent inquiry chaired by the Rt.Hon. Dominic Grieve KC – have all found the current system wanting. Key issues identified include: 

Government interference with the Electoral Commission 

Crucial to the effective working of an electoral management body (EMB) like the Electoral Commission is its independence. International standards expect EMBs to be operationally, strategically and functionally separate from the executive. When the Electoral Commission was created, it was clearly separated from the governments across the UK as a non-departmental public body, and instead accountable to Parliament and the Speaker’s Committee of the Commons. 

Changes made by the Elections Act 2022 undermine this independence, with the UK Government now able to set the Commission’s strategic and policy priorities. Ministers can now issue a ‘Strategy and Policy Statement’, which not only duplicates the strategic function of the Commission’s board, but also amounts to undue interference in its operations by the executive. This is inconsistent with international good practice – analysis demonstrates its in contradiction with at least five global standards. So long as the status quo remains, it risks undermining the Commission’s ability to enforce the law without fear or favour. 

Weak civil sanctions 

While the Commission frequently uses civil fines their effectiveness remains patchy, with maximum penalties (£20,000) so small that they can be factored into the ‘cost of doing business’ for those receiving them. For example, in the 2015 general election the Liberal Democrats underreported spend by about 5 per cent, which only incurred a fine of £20,000. Several serious breaches by the Conservatives at that election only resulted in a £70,000 sanction. It is hard to see how these penalties would provide any deterrent against billionaires or political parties with wealthy backers. 

Low levels of criminal prosecution 

Despite electoral law containing numerous criminal offences, prosecutions are extremely rare. In the last 25 years, there has been only one criminal case before the courts for a breach of PPERA, in which the main two suspects were acquitted. Between 2011 and 2021, the Electoral Commission referred eight cases to the Metropolitan Police, but none resulted in prosecutions.  

Several factors explain this enforcement gap. 

While local police forces may be responsible for investigating election crimes in their area, these specialist matters often go far beyond their usual expertise. Local forces typically lack resources, familiarity with electoral law, and experience handling the associated political pressures these cases can bring with them. Similar issues apply to prosecutors across the UK. 

The justifiably high standard of proof for criminal proceedings means preparing cases and proving intent is often challenging. PPERA offences that are solely a matter for criminal law require prosecutors to prove the suspect’s state of mind and/or the existence of a conspiracy that may be no more than a conversation – all beyond reasonable doubt.  

The problem is worsened by the Electoral Commission, who arguably has the most knowledge and experience of election law, not being able to bring cases to court – a restriction explicitly imposed by changes to the law in 2022. This conflicts with other areas where regulators, such as the Financial Conduct Authority and Environment Agency, can take a lead in criminal proceedings. Perversely, any other individual or organisation can bring a criminal case before the courts under the Prosecution of Offences Act (1985) as long as they follow legal processes. This can happen frequently in other areas of law; for example, the RSPCA brings private prosecutions in animal cruelty cases. 

Several organisations – including Transparency International UK, the CSPL, parliamentary committees and Spotlight on Corruption have recommended key reforms to improve electoral law enforcement, including: 

Restoring the Electoral Commission’s independence by repealing powers in the Elections Act 2022 that allow ministers to influence its strategic focus and operations. 

Creating meaningful financial deterrents against non-compliance with the law by increasing the maximum fine the Electoral Commission can levy to at least £500,000 or 4 per cent of the spending limit (whichever is the greater). 

Implementing existing laws passed by Parliament in 2009, which should help tackle attempts to evade electoral law. 

Allowing the Electoral Commission to bring criminal cases to court by legislating to remove the statutory bar that prevents them from doing so.