Once appointed, the law makes the election agent responsible for the legality of everything that happens as part of the candidate’s campaign. If the law is broken, the buck stops with the agent – even if the offence was committed without the knowledge or approval of the agent.
In law the agent has specific responsibilities:
- to pay all election expenses;
- to make a return and declaration of expenses within the required time limit.
The agent is also held responsible if other laws are broken in pursuit of the campaign – libel and copyright being amongst the most likely. If other people take part in doing something, they may also end up with share of responsibility – but the primary responsibility always rests with the agent and cannot be shirked.
Being responsible should be taken seriously, but no one expects the agent to know every detail of the law. Provided care is taken and some basic rules are followed, there should be no problems. Ending up in court is, in fact, a rare occurrence considering the thousands of elections that take place each year!
Why have an agent?
Having an election agent for the duration of the campaign and until the election paperwork is finalised is a legal requirement in all except parish council and community council elections.
In this respect an election agent is quite distinct from a constituency agent or campaign manager, who may be in place on a permanent basis and may be appointed by the local party. Often the campaign manager and candidate’s election agent will be the same person, but the role of candidate’s election agent is quite specific and legally separate from any other.
If a candidate fails to appoint an agent, he will be deemed to be his own agent. A candidate should try to avoid this, especially in larger scale elections, because:
- The candidate needs to be free of the details of financial and literature management so that he can concentrate on his campaigning duties.
- The role of the agent is to take legal responsibility and, though having an agent does not free the candidate of all liability if the law is broken, it does share and mitigate the situation to varying degrees.
An agent takes on key responsibilities, making it clear who is ultimately in charge of the campaign:
- Incurring debts and paying bills. No expenditure should be incurred without the agent’s knowledge and prior approval and no bills should be paid by anyone other than the agent without the agent’s express permission.
- Preparing and submitting an account of expenses incurred during the election.
- Approving all literature for legality of content before printing and accepting responsibility as the publisher of the literature.
Appointing an agent
Only the candidate can nominate the election agent (except in the case of party list elections, where the party appoints the agent).
Although the agent takes the overwhelming share of legal responsibility during a campaign (see above), the candidate can in particular run into trouble if something goes wrong and it turns out they were reckless in appointing an agent. Therefore the candidate should have in the back of their mind the question, “Is it reasonable for me to think that this person will ensure the campaign is run within the law?” Making sure the agent has (and reads) publications like this one and has gone to party-accredited training sessions are both advisable.
The appointment must be made by the date specified on the election timetable supplied by the Returning Officer, but it is best if the agent is appointed when the candidate’s nomination papers go in, so that he has legal authority from the start of the campaign. If no agent is nominated, the candidate is deemed to be their own agent.
A candidate can revoke the appointment, but must nominate someone else immediately (by the end of the following day) otherwise they will be deemed to be acting as their own agent. The same applies if the agent dies during the election.
The agent, in consenting to nomination, must declare an address to which correspondence is to be sent. This does not need to be within the ward, division or constituency, but must either be in it, or an ‘adjacent electoral area’. This address is almost always the one that appears on the agent’s imprint, but another is acceptable provided the agent is contactable there (see Imprints).
The agent must not be disqualified due to having been convicted of a corrupt or illegal practice. If the candidate is deemed to have known the agent to be disqualified, he himself can be disqualified from election.
Although knowledge of the law is useful, having a solicitor as election agent is not advised because he will find defence in court of his position, and the campaign, is more difficult as he is presumed to have greater knowledge of the law than a layman does.