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Political Parties and Elections Bill

Political Parties and Elections Bill

The Committee consisted of the following Members:

Chairmen: Mr. Joe Benton, Frank Cook, †Sir Nicholas Winterton
Ainger, Nick (Carmarthen, West and South Pembrokeshire) (Lab)
Djanogly, Mr. Jonathan (Huntingdon) (Con)
Duddridge, James (Rochford and Southend, East) (Con)
Grogan, Mr. John (Selby) (Lab)
Hesford, Stephen (Wirral, West) (Lab)
Howarth, David (Cambridge) (LD)
Kidney, Mr. David (Stafford) (Lab)
Laing, Mrs. Eleanor (Epping Forest) (Con)
Linton, Martin (Battersea) (Lab)
Lloyd, Tony (Manchester, Central) (Lab)
Lucas, Ian (Wrexham) (Lab)
Reid, Mr. Alan (Argyll and Bute) (LD)
Sharma, Mr. Virendra (Ealing, Southall) (Lab)
Turner, Mr. Andrew (Isle of Wight) (Con)
Tyrie, Mr. Andrew (Chichester) (Con)
Whitehead, Dr. Alan (Southampton, Test) (Lab)
Wills, Mr. Michael (Minister of State, Ministry of Justice)
Wishart, Pete (Perth and North Perthshire) (SNP)
Chris Shaw, Chris Stanton, Committee Clerks
† attended the Committee


Peter Wardle, Chief Executive, Electoral Commission
Lisa Klein, Director of Party and Election Finance, Electoral Commission

Public Bill Committee

Thursday 6 November 2008


[Sir Nicholas Winterton in the Chair]

Political Parties and Elections Bill

Written evidence to be reported to the House

PPE 01 The Electoral Commission
9 am
The Committee deliberated in private.
9.5 am
On resuming
The Chairman: We will now hear oral evidence from witnesses from the Electoral Commission, both of whom I most warmly welcome to the sitting. For the record, Peter Wardle and Lisa Klein, will you identify yourselves and your position to members of the Committee?
Peter Wardle: Thank you. I am the chief executive of the Electoral Commission. With me is Lisa Klein, the director of our party and election finance team.
The Chairman: I think that you have introduced your colleague—unless she would like to say anything else.
Lisa Klein: No.
The Chairman: Excellent. Before calling the first hon. Member to ask a question of our witnesses, I remind all members of the Committee that questions should be limited to matters within the scope of the Bill. In view of time constraints, I request that both questions and perhaps the answers of our witnesses should be succinct.
Q 102102Mr. Jonathan Djanogly (Huntingdon) (Con): Good morning. I want to talk about schedule 1 to the Bill, but before doing so I wish to ask whether there are any particular points that the Electoral Commission would like to discuss this morning, because we can address them as well.
Peter Wardle: Thank you. I am sure that members of the Committee will want to ask us about a number of items. There are two particular areas on which I hope to give the commission’s views, the first of which is our concern about the proposals on the composition of the Electoral Commission, in that the Bill has departed significantly from the recommendations of the Committee on Standards in Public Life. Secondly, I am sure that we shall be asked about it, but we certainly want to talk about the concerns that have been raised about the proposal in respect of the commission’s investigatory powers.
Q 103Mr. Djanogly: Right. That is a fitting point on which to start. In terms of size, schedule 1 takes up well over half of the Bill, so it is an important part. There is some confusion about who actually prepared or wanted what has now become schedule 1. Some of it clearly comes from the Political Parties, Elections and Referendums Act 2000, some seems to have been proposed by the Electoral Commission and some seems to have been proposed by the Ministry of Justice. It might be helpful if you could go briefly through the schedule and identify the new powers, and say who proposed them.
Peter Wardle: If I may, I shall ask my colleague, Lisa Klein, to explain the current position, the changes and our views on the changes.
Lisa Klein: Schedule 1 and clause 1, with one exception, replicate the current investigative or monitoring powers. Those powers enable us to request documents and obtain explanations from regulated entities, such as political parties, third parties and regulated donees. The current powers under PPERA also provide for us, in our monitoring role, to enter premises on notice to inspect documents relating to financial information. That is limited at present to political parties, third parties and permitted participants in the context of a referendum. That is replicated in the Bill, with the one exception that the ability to enter premises upon reasonable notice is extended to all other regulated entities. The provision reflects the current commission role in terms of monitoring and inspecting the party finance regime. It provides the type of powers that one would anticipate having in any inspectorate-type monitoring authority.
Given that the Bill also clarifies and extends the commission’s role as a regulator, paragraph 2 of the schedule refers to the powers that we would have in the event that we were wearing our investigative hat. It is subject to the caveat that there is reasonable suspicion that a breach has occurred. We are then into the realm not of monitoring, not of inspecting, but of investigating. In that context, the law is broader in that it enables us to obtain information and documents, and to have representatives of entities or anyone who may have information relevant to the allegations attend for interview.
The Bill also provides for the commission to obtain a warrant to enter premises to seize documents. In discussions with MOJ officials, what I wanted, given my prior experience as a regulator of party and election finance, was a mechanism so that if we issued a notice and it was not voluntarily complied with, there would be some way for us to enforce it. There are different ways in which that can occur. The one selected in the Bill is the ability to seek, through a justice of the peace, a warrant for entry. In my home jurisdiction it was handled through a notice that would be issued if there was a lack of compliance, and that would be through the judicial process. We would put the arguments to the court as to why there should be an order compelling compliance with that notice, and if that court order was not adhered to, the individual or entity would be held in contempt of court. There are two different avenues and one has been chosen. If there is a preferred alternative, I am sure that we would be able to work with that.
Q 104Mr. Djanogly: Can you explain to what extent you differed in approach from the MOJ? You have mentioned having a court process rather than a magistrates process. Are there any other areas that you had a difference of opinion on?
The first major concern that we have heard is about the extension of the power to enter to inspect documents—in that context, two regulated donees—and we are open to arguments about that. We feel that the current powers are adequate to do the job we need to do regarding inspection. One can see why, for completeness, the powers have been extended, but we are not convinced that we need those powers. If Parliament were to have concerns about that particular aspect, we would be relaxed provided that the current powers are preserved so that we can continue our inspection and monitoring role.
The second area of major concern is the one that Lisa has just explained, which is the mechanism for securing compliance with a reasonable request from us when we are undertaking an investigation. The mechanism in the Bill is essentially that if somebody refuses to answer our questions, we apply to a magistrate to go with a constable and see if we can find the answers for ourselves. That is one approach, but there are others. Lisa mentioned the approach in the United States, which would be to ask the courts to order someone to answer the question, provided that the courts were satisfied that the request was reasonable. Either of those would be fine from our point of view.
Q 105Mr. Djanogly: A number of people are asking whether the proposed powers will be justified. Do you think that they are justified in terms of the number of people on whom they are likely to be used? Also, how will the commission be held to account for the decisions that it takes with the new powers?
Lisa Klein: With respect to the first question, I do think that they are warranted. If you are to create a credible regulatory regime, you need to have the power to require information in instances when the need arises. I should step back for a moment and say that our philosophy, and my approach, is that in the first instance we want to provide really good advice and guidance so that we do not get into the situation of having to investigate potential breaches. Shy of that, if we do have something that we have to investigate, we should do so in a voluntary way to the extent that that is possible. Shy of that, we should have resort to notices of more formal nature, and there should be a mechanism in the regime for seeking enforcement of them. The UK system is very good generally, and we want the system to be able to apply in all instances. That was the first question. And the second—
Peter Wardle: The second was about how we would be held to account for our use of the powers.
Lisa Klein: There are a couple of mechanisms. Within the legalistic framework, we would always be subject to judicial review if, in the exercise of that power, it was felt that we had stepped beyond the mark.
Q 106Mr. Djanogly: Right, and through parliamentary scrutiny? Could you explain to the Committee how that works?
Peter Wardle: The Bill provides in general terms, although principally in relation to the provisions on civil sanctions elsewhere, that we should consult on and publish guidance on our entire enforcement policy for those whom we regulate. That is the first point. We would certainly intend to make that guidance as full and as clear as possible, because this is a change of the regime.
We would certainly consult the political parties and interested people in Parliament. For example, I would be very surprised if the Select Committee on Justice were not to take an interest in that approach. Before we can begin to use any of the civil sanctions—I am talking about the civil sanctions aspect of the Bill—there has to be an order in Parliament in relation to each category of those sanctions. So at each stage, before we can start to use any of the new sanctions, there has to be parliamentary scrutiny. I am sure that Parliament would want to examine the extent to which our consultation on the guidance on our approach had been welcomed or opposed by the people whom we had consulted.
The main check on our use of our investigation powers is through the judicial system rather than the parliamentary system, because we are acting as a regulator. I think that that is the appropriate approach. The judge has to be satisfied if we apply for enforcement of our investigations, and people can always appeal through the judicial review process if they think that we are behaving wrongly.
The Chairman: Mr. Djanogly will have one further question, then I will call any other member of the Committee who wishes to ask a question on investigation powers, so that we can deal with this tidily. Then I shall move on to David Howarth, who wants to ask questions on triggering.
Q 107Mr. Djanogly: Thank you, Sir Nicholas. If I can stick to parliamentary scrutiny for my final question, are you saying that you think you should be more responsible to the MOJ on this matter rather than the Speaker’s Committee? There will be concern among Members of Parliament that these new powers, which are extensive, will be adequately reviewed by Parliament on an ongoing basis. When you have made a decision that hon. Members want to question, how do you see that going through the system?
Peter Wardle: I am absolutely not saying that the commission should be responsible to the Ministry of Justice. There is a good case for the Justice Committee being interested in the work of the commission, as it is already. We have appeared before and given evidence to the Justice Committee on a number of occasions in the past.
The commission is, as you say, accountable in Parliament to the Speaker’s Committee. That important principle needs to be adhered to carefully in anything to do with the commission. Parliament deliberately set up the commission not to be responsible to the Government, but to Parliament, through the innovation of the Speaker’s Committee. I think the Speaker’s Committee, over the four years in which I have had dealings with it, has increasingly seen its role as exercising scrutiny of the commission. I welcome that. It is important for the commission’s reputation, as well as for Parliament’s, that there is seen to be proper and close parliamentary scrutiny of the commission’s work.
I would have no difficulty explaining our approach to the use of investigation powers—indeed, our whole enforcement policy—to any Committee of the House of Commons, including, certainly, the Justice Committee or the Speaker’s Committee. I should say that, in general, the Justice Committee has taken the lead on the policy issues relating to the commission’s work and the Speaker’s Committee has done so in relation to the commission’s broad priorities and resourcing; it would be more likely to be the Justice Committee.
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Prepared 7 November 2008