Political Parties and Elections Bill

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Mr. Djanogly: This has been a helpful debate, and we have moved the argument on this afternoon. I accept some of the critique of the hon. Member for Cambridge on the drafting of the amendment, but the point is one that we certainly intend to think on further—he does too. I am pleased that the Minister has said that he will consult with the Electoral Commission and think further on the issue. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Djanogly: I beg to move amendment No. 86, in schedule 1, page 13, line 23, after ‘may’, insert ‘only’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 87, in schedule 1, page 13, line 24, after ‘been’, insert
‘, within the 5 years immediately prior to the date of the notice,’.
No. 88, in schedule 1, page 13, line 26, at end insert
‘and whom the Commission have reasonable suspicion to believe has committed an offence under this Act.’.
No. 89, in schedule 1, page 13, line 26, at end insert—
‘(2A) A disclosure notice must be served on the individual specified in paragraph (2) by hand by a person specifically authorised by the Commission to effect the service of such notices.’.
No. 90, in schedule 1, page 13, line 30, leave out ‘any’ and insert ‘information or’.
No. 91, in schedule 1, page 13, line 34, leave out from ‘of’ to end and insert
‘investigating an offence under this Act.’.
No. 92, in schedule 1, page 14, line 2, at end insert—
‘(3A) A person served with a disclosure notice under paragraph (2) may appeal to the Commission in writing within 14 days of receipt of service under paragraph (2A).’.
No. 93, in schedule 1, page 14, line 4, leave out from ‘within’ to end and insert
‘28 days of receipt of that disclosure notice.’.
Mr. Djanogly: We shall now deal with a batch of several amendments. Given the accusation about the commission’s passiveness in exercising its regulatory role, the amendments would ensure that there was no ambiguity or discretionary element coming out of the schedule, or would at least reduce them.
Amendment No. 86, by removing any suggestion of discretion, would make it clear to the commission and to the individuals or organisations covered by the schedule what must be done to comply with it. The addition of “only” would ensure that there was no ambiguity around when a disclosure notice may be issued by the commission. That would help to clarify the position for the commission and those subject to the provision.
Given the complexity of the schedule, certainty must be our objective, thereby reducing the possibility of the provisions being breached by administrative oversight or simple ignorance of the effect of non-compliance.
Amendment No. 87 would include a specified time limit for the period in which an officer of a party may be considered within the remit of the Bill under clause 2. It is an important issue. We do not wish to see individuals subject to disclosure notices for some long-forgotten donation or action. It is unreasonable and impractical to extend the power to cover actions taken or documents received at any point in history when we are talking about people who mainly are volunteer workers.
On a practical level, the keeping of comprehensive records for more than five years will be difficult to enforce and is unlikely to be achieved, given the limited space that party officials often find themselves working in. I am sure that a straw poll of hon. Members would find few with full and comprehensive records for matters that occurred before 2002 that were also easily accessible.
We must be mindful of the financial and administrative burdens that we place on those individuals and organisations, not to mention the likelihood that many of the individuals concerned may have left such offices, or even the country. The time limit of five years attempts to achieve more than just nodding acquaintance with the normal term of Government. I certainly hope, too, that where the commission is planning on issuing such disclosure notices, it does so expediently and well within the five-year limit proposed. If it does not, that will be the fault of the commission, rather than the individual.
6.15 pm
In amendment No. 88, the need for “reasonable suspicion” by the commission is a theme that will be seen in a number of my amendments during the course of our debates on the Bill. Here I suggest its insertion into paragraph 1(2) of schedule 1. We are dealing, as always when we legislate, with the need to balance competing interests. On the one hand, the commission must be given effective and workable powers of investigation that it can utilise in its role as regulator and, on the other, party officials and individuals must be allowed to go about their usual business without fear of being arbitrarily subject to possible investigative whims of the commission.
We have a legal system in the UK that operates on the principle of innocent until proven guilty. The amendment would maintain that principle and ensure that the commission operates within the rule of the law. The concept of “reasonable suspicion” is seen throughout the criminal and civil sanction regimes laid down by this House over the years. It is a vital tool in ensuring that the agents of the state do not have arbitrary powers to encroach on the lives and activities of honest groups or individuals. It is a reminder to agencies that they are not above the law, while providing an avenue for redress for an individual who feels that they are subject to unjustified and arbitrary state persecution.
The courts of this country are familiar with the concept, so too are the various regulatory bodies that operate to ensure compliance with the law in the UK. I have not proposed the need for belief beyond “reasonable doubt” as I believe that that may unduly hinder the effectiveness of the commission. The test of reasonableness, however, would not only safeguard the individual, but would focus the mind of the commission when investigating alleged offences under the Bill. Will the Minister tell hon. Members why such a safeguard was not originally included in the Bill?
Amendment No. 89 relates to sub-paragraph 1(2), which as it stands, is silent on the method of service for disclosure notices. That could have difficult practical implications for the effective workings of this new system. Are we to accept that by simply posting a notice the commission can be considered to have properly served such a notice? What of the situation where the individual or group has moved address? I believe that the service of such notices by hand is both the fairest and most proper way of handling this current deficiency. I have neither seen nor heard from the Minister any figures that would suggest that this would place a disproportionately arduous burden on the commission, nor do I believe it is unreasonable for the commission to serve disclosure notices in such a way. How many does the Minister consider will be handed out per year? Presumably, very few indeed.
If we are to grant the commission the power to enter premises and remove documents, thus interrupting the lives of individuals, it is a matter of due process, not to mention courtesy, that those individuals are first, made aware of the investigation and secondly, have proper notice of such an investigation and a disclosure notice, so that they may be given the fullest amount of time to comply and avoid further penalty.
I noted that I did not believe that service by hand would place an undue burden on the commission. To support this I would like to draw hon. Members’ attention to comments made by the Secretary of State for Justice in the first evidence session before this Committee. In response to questions I put to him he said:
“The answer is that, as at 16 June 2008, 29 people had been prosecuted under the 2002 Act, resulting in 23 convictions.”——[Official Report, Political Parties and Elections Public Bill Committee, 4 November 2008; c. 18, Q38.]
By my calculations, that is less than four prosecutions on average for each of the years that the commission has been operating. Unless the Minister has evidence to suggest that many more disclosure notices will be issued by the commission in the years following the enactment of this Bill, I believe that service by hand, when balanced against the severity of the penalties for none compliance, is fair. Amendment No. 90 is consequential.
Amendment No. 91, dealing with paragraph 1(3), would ring fence the powers of the commission and concentrate them only on investigations of offences under the Bill. The amendment would remove the ability for the commission to use this power in relation to “any of its functions”, which is an unnecessary and unjustified extension. The commission’s functions under PPERA have been the focus of many reviews by a multitude of different organisations. Indeed, we are here today because the commission’s previous functions were deemed too wide and therefore were hampering its ability to effectively undertake its role as a regulator. Part I of PPERA contains 21 sections and two schedules that expressly set out the functions of the commission.
Are we to believe that the Government intend these powers to extend to the commission’s multiple roles? Or rather are they to be used only in relation to their investigation of offences under the Bill? I hope very much, for the sake of all of those who act in some capacity that brings them into contact with political penalties or donations, that it is the former. Otherwise, the balance will have been tipped unnecessarily in favour of the commission. We would hand it powers that it not only does not need, but would not use.
I hope that the Government see that the breadth of the sub-paragraph as it currently stands is very wide. As an aside, would the Minister please confirm that the existing powers of investigation in PPERA will be terminated by the Bill so that there is no duplication of powers, which could—inadvertently, I am sure—be used to give the commission a second bite of the cherry?
Amendment No. 92 deals with paragraph 1(3). I would like to reiterate points made by Sir Hayden Phillips. In the first evidence session before this Committee, he said that he hoped we would be able to find amendments that would make everyone comfortable that the powers are not excessive. I fear that without a right of appeal, which I propose in the amendment, we are handing the commission a mandate to serve disclosure notices on individuals and groups associated to political parties in the manner of a fishing exercise. Without a right to appeal, there is nothing to prevent the commission from simply trawling the records of such people in the hope of finding an inconsistency on which it could build an investigation.
I am not suggesting that that would take place with the current commission, which has been co-operative throughout the development of the Bill, including with the official Opposition, but we are legislating for future generations that will not have been privy to the many discussions and debates that have surrounded it. As such, we must ensure that we minimise opportunity or flexibility that would leave the powers open to abuse in years to come. By having a right of appeal as set out in the amendment, we would, in effect, have a self-policing safeguard that would require no additional cost to be borne by the commission. Furthermore, given the 14-day time frame, it would not produce unnecessary delay to investigations.
Amendment No. 93 deals with paragraph 1(4). It returns to my concern that many aspects of the Bill are so broad that they could be rendered almost unworkable in practice. Compliance in a “reasonable time” is too subjective a concept. One man’s reasonable may be another’s unnecessarily harsh or overly lenient. Elements of subjectivity in time-keeping should not have a place in a Bill such as this. Clarity and certainty are needed. The amendment would work to the ultimate benefit of all parties involved.
The 28 days recommended in our amendment should be sufficient for those served with a disclosure notice to locate the documents and information specified in it. Given the penalties that may be faced for non-compliance, every effort should be made to ensure that individuals do not fall foul of them because of unforeseen delays. Illness, temporary IT problems, personnel on holiday or any number of other eventualities may prevent documents or information from being submitted to the commission.
I would caution against over-zealous application of the limit by the commission. Co-operation is the easiest and simplest way to resolve most causes of a breach of the provisions of the Act, and the commission should not be too quick to take punitive action. I hope that the Government will see the value in what I have said, and I welcome the Minister’s comments.
David Howarth: I have a great deal of sympathy with what the hon. Member for Huntingdon said towards the end of his remarks, especially about amendment No. 93, which would add to the clarity of the schedule. I hope that the Minister has some explanation as to why the system at present operates on the basis simply of “reasonable time”.
I also have some sympathy with amendment No. 92, which would insert an appeal mechanism. That is necessary if we are not to go down the route that the commission suggested of having it go to the court in the first place to ask for enforcement of a disclosure notice.
However, I would like to spend a minute or two on amendments Nos. 88 to 91, with which I am less comfortable. They tend to conflate two different functions of the commission. It may well be the hon. Gentleman’s argument that the commission should have only one function, and that he is trying to get rid of the other one.
The two functions are inspection, and the investigation of offences. Of course, a body that has an inspection power will, ultimately, need some criminal law sanction, or some sanction, to enforce it. Nevertheless, the main point is that it is not the criminal law, or taking people to court to prosecute them for non-compliance, but the inspection itself that gets the compliance. The idea is that transparency, openness, information and audit all add together to produce compliance with the law—whereas investigatory powers of the second sort are more like what the police or prosecution authorities do.
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