Disabled Election Candidates

February 1st, 2013 by James Goudie KC

Schedule 4 to the Representation of the People Act 1983, as amended, provides for the definition of the term “election expenses”.  It sets out matters that are to be considered “election expenses”.  It sets out a list of matters excluded from being “election expenses”.  The classification of an expense as an “election expense” has a number of regulatory consequences.  These include that, under Section 76 of the Act, candidates are subject to a limit on the amount that can be spent on “election expenses”.

Pursuant to a power in the Act, there is being made the Representation of the People (Election Expenses Exclusion) Order 2013.  This will amend the Act to exclude grant awards made by the Access to Elected Office Fund (“the Fund”) from the definition of “election expenses”. The Fund has been established by the Government Equalities Office to award financial support to disabled persons who will (or wish to) stand for elected office. In order to give full effect to the Fund policy, the Order amends existing provisions on “electoral expenses” which would otherwise cause difficulties for the proper operation of the Fund. This is because disabled and non-disabled candidates would otherwise not be treated equally as regards the incurring of expenses, in that disabled candidates who received monies from the Fund to remove or mitigate disability barriers would, amongst other things, have to count such expenditure against their election expenses limit. This would have the effect of reducing the amount they could spend on other electoral expenses. Whereas in contrast the non-disabled candidates would incur no such disability related expenses and so would benefit from the advantage of having the entirety of their election expenses limit to spend on other election expenses.

The Order exempts certain expenditure by or on behalf of disabled candidates from being considered “election expenses”. However in order to benefit from the exemption from being an “election expense” the expenditure must be designed to remove or reduce the barriers to seeking elected office faced by disabled candidates; an expense that arises as a consequence of the candidate’s particular disability; defrayed or reimbursed by a grant awarded from the Fund (however, if the expense is greater than amount of the grant provided by the Fund then the exemption only applies in relation to the amount of the expense that is covered by the Fund); in accordance with the terms and conditions of the grant made from the Fund.

The Order therefore provides that only matters of expenditure that a disabled candidate would face, but a non-disabled candidate would not face, are to be exempted from the definition of “election” expenses. Matters of expenditure that would be common to both disabled and non-disabled candidates, such as the normal printing of campaign leaflets for distribution to the public, would not fall within the scope of this exemption or within the scope of the Fund. However where a disabled candidate requires specially adapted transportation in order to participate in door-to-door campaigning on a level basis with a non-disabled candidate, then such an additional expense is likely to fall within the scope of the Fund and providing it satisfies the conditions set out above is likely to fall within the scope of this exemption.

The Order applies to all of the UK. However the Fund only applies to UK Parliamentary elections, local elections in England (except parish council elections), Greater London Authority elections, Mayoral elections in England and Police and Crime Commissioner elections in England and Wales.

The Fund, will distribute £2.3 million in grants from July 2012 to June 2014. The Fund is designed to meet the additional costs that a disabled person may face, such as extra transport costs or sign language interpreters, when seeking to stand for selection by a political party or election.

The Order refers to removing or mitigating “barriers” to elected office associated with a candidate’s disability.  The Electoral Commission has taken issue with this.  They believe that “barriers” is uncertain and will be difficult to interpret.  They are concerned that there is scope for the Fund administrator to make grant allocations for a far wider range of matters than was intended.  However, the Government’s view is that “barriers” means things that merely impede progress or success, as well as things that prohibit progress or success altogether. The term “barriers” is therefore the most appropriate for the Order. The fundamental difference appears to be that the  Commission would prefer the exemption to be defined by an exhaustive list for reasons of certainty. However, the Fund has been set up on the basis that it must be able to fund any potential expense that arises from the mitigation of a barrier to elected office that occurs because of the candidate’s disability. Consequently it is impossible to define the exemption in the terms of an exhaustive list. A non-exhaustive list of expenses it will pay for would equally be unsatisfactory, because it will necessarily not mention everything covered. Therefore in order to provide certainty the Government have sought to define the exemption through descriptive principles that, as required, exactly match the scope of the Fund.

Further, the Order as drafted has the effect of imposing the test that expenses are only exempted provided they are aimed at removing or reducing the impediments disabled candidates face when seeking elected office. There is a further requirement that the impediments must directly result from a candidate’s disability.

Even if the “barriers” test is met, the Order also requires that for any spending to be exempt, it must be in line with the Fund’s terms and conditions. The Commission is not convinced that the terms and conditions are fit for purpose as currently drafted, believing they cannot be relied on to accurately define what is and is not exempt from spending limits. However, the Government does not agree that it is the terms and  conditions that define the exemption, as this is done by the text of the Order. The reference to terms and conditions in the exemption is so as to ensure an individual who fraudulently obtains funding does not benefit from the exemption. In practice the terms and conditions are likely to help provide practical guidance, but it remains the case that the definition of the exemption is the wording set out in the Order.

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