FINANCIAL EFFECTS

97.     The provisions that relate to European Parliament elections have no associated costs and are intended to make the administration of those elections simpler and easier to plan. The provisions that relate to the annual canvass are intended to assist with the registration of electors before an autumn poll. While they do create a new type of administrative burden in the event of an autumn poll being held, the Department does not envisage that this will give rise to increased costs if administrators follow Electoral Commission guidance in this respect; and a much larger burden may arise if no action is taken.

98.     The Electoral Commission is directly financed by Parliament (paragraph 14 of Schedule 1 to the 2000 Act). The Commission submits annual estimates to the Speaker’s Committee and the Committee examines the estimates, considers advice from HM Treasury and the Comptroller and Auditor General, and lays the estimates before Parliament (explaining any modifications which it has made if relevant). Additional costs from this Bill will be financed in the same way. The Commission has already re-staffed its party and election finance team with a view to the forthcoming legislative changes. The Commission’s provisional estimate is that the additional costs arising to it as a result of the changes to its powers and governance in the Bill will amount to approximately £650,000 per annum. The Commission will consider the extent to which this can be met from within its existing settlement.

99.     There would be no cost to the National Loans Fund.

PUBLIC SECTOR MANPOWER

100.     As indicated above, a small increase in the manpower of the Electoral Commission may be required in order for it to fulfil its expanded role. The Department does not envisage that there would be any other impact on public manpower as a result of the provisions of the Bill.

SUMMARY OF IMPACT ASSESSMENTS

101.     The completed impact assessments for the Bill analyse the costs and potential benefits of the proposals and assess their probable impact on race, gender and disability equality. These are available in the Vote Office.

102.     The impact of the Bill will depend upon how the Electoral Commission decides to implement internal changes as a result of its changed role. The level of extra costs which the Commission might incur is estimated above, though this figure does not account for reprioritisation within the Commission and there is likely to be some scope for meeting some of the costs from within the Commission’s existing settlement.

103.     Under the provision that relates to candidate spending, candidates will be required to report all spending incurred for electoral purposes, not just that which is used between dissolution of Parliament and the election. The level of spending to be reported will be the same, as the spending limit will not change, but the time period during which campaign activities are reportable is likely to be longer. Whilst this may increase the administrative burden for some candidates and their agents, the burden will be no greater than it was under the pre-2000 triggering regime and this change to reporting requirements is considered to be a necessary consequence of effective regulation.

104.     The provisions that relate to European Parliament elections have no associated costs and are intended to make the administration of those elections simpler and easier to plan. The provisions that relate to the annual canvass are intended to improve the registration of electors before any autumn poll. While they do create a new type of administrative burden in the event of an autumn poll being held, a much larger burden may arise if no action is taken.

105.     Under the arrangements for greater transparency of donations, donors will be required to make a declaration as to whether or not, to the best of their knowledge, a third party has given the donor more than £200 with a view to, or otherwise in connection with, the making of the donation. The main impact of this policy will be the extra administrative burden placed on donors in completing the declaration, and on recipients, who will have to process the declarations and take reasonable steps to verify them. The simplicity of completing and processing declarations should ensure that the administrative burden is not significant. The Department estimates that the total cost to all donors and political parties will be approximately £7,000-£10,500 per annum. This will be justified by the need to ensure that the real source of money donated to parties is disclosed.

COMPATIBILITY WITH THE EUROPEAN CONVENTION OF HUMAN RIGHTS

106.     Section 19 of the Human Rights Act 1998 (“HRA”) requires the Minister in charge of a Bill in either House of Parliament to make a statement before second reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act).

107.     Jack Straw, the Secretary of State for Justice, made the following statement of compatibility in accordance with section 19:

“In my view the provisions of the Political Parties and Elections Bill are compatible with the Convention rights.

108.     In making the statement the Justice Secretary has given consideration to the fact that the following provisions of the Bill may raise issues in relation to convention rights. For the purposes of what follows the Electoral Commission is considered to be a public authority as defined in section 6(3) of the HRA.

Clause 12

109.     Clause 12, which makes provision in relation to voter registration, may be said to engage Article 3 of Protocol 1 (the right to free elections by secret ballot). It is arguable whether this Article is even engaged. However, if it is engaged the provision made by this Bill is compatible as it seeks to ensure effective voter registration, rather than to restrict it.

Schedules 1 and 2

110.     While compatible with Convention rights, Schedules 1 and 2 to the Bill provide powers which, when used, may give rise to issues relating to Convention rights. In each case it will be the duty of the Commission (and any other public authority able to exercise a power) to ensure that a power is exercised compatibly with Convention rights in accordance with section 6 of the HRA. The relevant powers have built into them some important safeguards to ensure that each power is capable of being exercised fully compatibly with Convention rights.

Schedule 1 (inserting Schedule 19A in the 2000 Act)

111.     Paragraphs 1 to 3 of the Schedule contain various powers to require the disclosure of documents and to make copies of, or inspect, those documents or related information. These powers raise a number of issues around Convention rights.

112.     Where disclosure is sought under paragraphs 1 to 3 it is a criminal offence under paragraph 12 to refuse to comply with any requirement imposed by the Commission. Use of evidence provided under such a “compulsory” power in proceedings that may incriminate the person providing it could infringe the privilege against self-incrimination, a key component of the procedural fairness guarantees provided by Article 6 (right to a fair trial). Paragraph 11 is designed to ensure that the privilege is protected by prohibiting the use of self-incriminating evidence against the person who provided it in criminal or civil proceedings, except where the proceedings relate to the making of false statements. This is supplemented by paragraph 24 of Schedule 19B, which ensures that this type of evidence may not be relied on by the Commission when deciding whether to impose a fixed monetary penalty or a discretionary requirement. An additional safeguard is the power in paragraph 10, which prevents disclosure of information that is subject to legal professional privilege.

113.     Obtaining information under the various methods in paragraphs 1 to 3 may result in the production or inspection of personal information, with the result that Article 8 (right to respect for private and family life) may be engaged. In each case the powers feature appropriate safeguards relating to the nature of the documentation that may be required and the purpose for which it can be examined. In the case of paragraph 3, there is the additional safeguard of needing to obtain a warrant from a justice of the peace before the power can be exercised. In each case, these requirements should help to ensure that any use of the power to obtain disclosure is justified and proportionate in the pursuit of a legitimate aim of helping the Commission perform its monitoring functions. However, an individual judgement will need to be made in each case, and the Commission will have to consider justification and proportionality carefully each time it proposes to exercise the power.

114.     The powers of entry under paragraph 1 and 3, possibly using reasonable force under the latter, may raise a specific issue under Article 1 of Protocol 1 (protection of property). Both paragraphs feature safeguards designed to ensure that the powers will be exercised compatibly with Convention rights. The fact that under paragraph 3(1), a warrant may not be issued unless the Commission can demonstrate to a justice of the peace that they hold the same reasonable suspicion as to wrongdoing as under paragraph 2 ensure that the legitimate aim of investigating a breach of the law is pursued by the granting of any warrant and subsequent entry authorised by it. Further, a warrant may only authorise the use of such force as is reasonable to enter the premises and to take documents named in the warrant that are relevant to the investigation. For these reasons the power should be capable of being used in a way that is fully compatible with Convention rights. Again, this will be matter for careful consideration by the Commission in each case.

Schedule 2 (inserting Schedule 19B in the 2000 Act)

115.     The provision of civil sanctioning powers in Schedule 19B to the 2000 Act, as inserted by Schedule 2 to the Bill, raises a number of issues around Convention rights. The most significant issues relate to Article 6 (right to a fair trial) and the Bill contains appropriate safeguards to ensure compatibility with that and other Convention Rights.

116.     The first safeguard as regards Article 6 relates to the standard of proof. Before a fixed monetary penalty or a discretionary requirement (monetary or otherwise) may be imposed the Commission must be satisfied to the criminal standard of proof (i.e. beyond reasonable doubt) that a prescribed offence has been committed or a prescribed restriction or requirement has been breached. In contrast a stop notice is essentially preventative in nature. Because of this, a different standard of proof (reasonable belief) applies.

117.     Whether the criminal or civil limb of Article 6 is engaged, the Article requires access to an independent and impartial tribunal in certain circumstances. In recognition of this, a final decision of the Commission to impose a fixed monetary penalty, discretionary requirement (whether monetary or otherwise) or stop notice is subject to an appeal to a county court. Other related enforcement decisions (including a decision to impose a non-compliance penalty for failure to comply with a discretionary requirement and a refusal to issue a completion certificate in respect of a stop notice) allow the same right of appeal. These appeal rights are sufficient to ensure that the provisions are compatible with Article 6 by providing a direct right of appeal to the county court, which stands free of any additional right to seek judicial review.

118.     There is no right of appeal as regards enforcement undertakings. Given the voluntary nature of these arrangements, the absence of any dispute between the parties and the fact that failure to comply does not have direct consequences in terms of civil or criminal liability, neither limb of Article 6 is engaged.

119.     A third safeguard, contained in paragraphs 4(1) and 8(1) of the inserted Schedule, is that no criminal conviction may be pursued where a decision has been taken to impose a civil penalty that is potentially capable of classification under the criminal limb of Article 6. There are exceptions to this where the sanctions in question do not feature a punitive element. For discretionary requirements an exception to this rule applies where a person fails to comply with a non-monetary discretionary requirement and a variable monetary requirement has not also been imposed. A similar exception is made in respect of enforcement undertakings that are not complied with. Because these sanctions are not punitive in nature the possibility of further criminal or civil proceedings should be preserved in case the entirely preventative requirement is not complied with.

120.     In order for this measure to be fully effective, time limits for criminal prosecution in the event of such failure may be extended by order (see paragraph 21 of the inserted Schedule). In making any order of this type the Secretary of State would be bound by section 6 of the HRA to ensure that these time limits are not given retrospective effect so as to contravene Article 7 of the ECHR (no punishment without law).

121.     A requirement in a stop notice to cease carrying on an activity could impose a constraint on the ability of an individual or organisation involved in the political process to act in certain ways. A requirement of this sort could be said to engage Article 10 of the ECHR (freedom of expression). Article 10 is unlikely to be engaged as it does not provide a right to participate in the political process in breach of domestic law regulating such participation. Even if Article 10 is engaged, there should be no interference as a stop notice seeks to prevent unlawful acts rather than lawful participation in the political process. In any event, the high threshold to be satisfied before a stop notice can be issued should ensure that any decision to do so is justified and proportionate in pursuit of a legitimate aim.

122.     In addition, Article 1 of Protocol 1 (protection of property) might be said to be engaged, depending on the factual circumstances. However, if engaged, then, for the same reasons given in respect of Article 10, any interference would be justified and proportionate in the pursuit of a legitimate aim.

123.     Paragraph 27 imposes an obligation on the Commission to publish reports summarising the cases in which civil sanctions have been imposed. There is a wide discretion about what a report may contain and the power should be capable of being exercised fully compatibly with Article 8 (right to respect for private and family life) should it be engaged. As an extra safeguard, paragraph 27(2) enables the Commission to omit anything that it thinks would be unlawful to publish (e.g. because publication would be incompatible with Article 8).

124.     Paragraph 28(1) enables specified bodies to provide information which they hold, or which is held on their behalf, to the Commission for the purposes of enabling the Commission to exercise any powers provided by Schedule 19B. It will be for the named bodies to ensure that the power is exercised compatibly with Convention rights, notably Article 8. In all cases, the exercise of the power should be in pursuit of a legitimate aim (i.e. that of enabling the Commission to perform its regulatory role properly and effectively). Whether the purported exercise is proportionate to that aim will be a matter for the disclosing body to consider in each case.

COMMENCEMENT DATES

125.     By virtue of clause 19, the following clauses will enter into force on Royal Assent:

• Clause 1(1) and (3) (compliance with controls imposed by the 2000 Act etc);

• Clause 4 (selection of prospective Electoral Commissioners and Commission chairman);

• Clause 5 (four Electoral Commissioners to be persons put forward by parties);

• Clause 7 (political restrictions on Electoral Commissioners and staff);

• Clause 10 (election expenses incurred for person not yet a candidate);

• Clause 11 (election expenses: guidance by Commission);

• Clause 14 (interpretation);

• Various provisions in Schedules 4 (minor and consequential amendments) and 5 (repeals) relating to the above clauses, and clause 15 (amendments and repeals) as it relates to those provisions;

• Clauses 16 to 20 (various general and supplemental provisions).

126.     All other clauses will come into force on a date to be appointed by the Secretary of State, by an order made by statutory instrument.

127.     Subsection (3) of clause 19 provides the Secretary of State with a power to amend regulations created under powers contained in the European Parliamentary Elections Act 2002, in a way that is incidental to or consequential to an order bringing clause 13 into force (local returning officers for elections to the European Parliament).