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Session 2007 - 08 Publications on the internet General Committee Debates Political Parties and Elections Bill |
Political Parties and Elections Bill |
The Committee consisted of the following Members:Chris Shaw, Chris Stanton,
Committee Clerks attended
the
Committee WitnessesPeter
Wardle, Chief Executive, Electoral
Commission Lisa Klein,
Director of Party and Election Finance, Electoral
Commission Public Bill CommitteeThursday 6 November 2008(Morning)[Sir Nicholas Winterton in the Chair]Political Parties and Elections BillWritten evidence to be reported to the HousePPE
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
colleagueunless 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 commissions 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 commissions 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 commissions 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? Peter
Wardle: May I clarify that? There are two areas where
there have been concerns. The first relates to our current monitoring
and inspection powers. For example, a time when we use, or could use,
those current powers
is when we go into the political parties that receive policy development
grants, on roughly an annual basis, to audit their documents and
records, because we have a duty to assure Parliament that that money
has been spent in accordance with the terms of the grant. That is
inspection and audit; we do it already and we think that the current
powers are adequate for that.
The first
major concern that we have heard is about the extension of the power to
enter to inspect documentsin that context, two regulated
doneesand 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 sanctionsI am
talking about the civil sanctions aspect of the Billthere 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 Speakers 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
Speakers 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
Speakers Committee. I think the Speakers 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 commissions reputation,
as well as for Parliaments, that there is seen to be proper and
close parliamentary scrutiny of the commissions work.
I would have
no difficulty explaining our approach to the use of investigation
powersindeed, our whole enforcement policyto any
Committee of the House of Commons, including, certainly, the Justice
Committee or the Speakers Committee. I should say that, in
general, the Justice Committee has taken the lead on the policy issues
relating to the commissions work and the Speakers
Committee has done so in relation to the commissions broad
priorities and resourcing; it would be more likely to be the Justice
Committee.
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