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withdrawn.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.
In amendment
Nos. 88 to 91, the hon. Gentleman is trying to remove the difference
between those two. He is treating the Electoral Commission purely as a
prosecution authority—as if it were the Serious Fraud Office or
the DPP. I do not think that that is appropriate. A regulatory body
needs tools other than prosecution to get compliance.
The tool available to it—inspection backed by sanctions—is
an appropriate and better tool for what it has to do. I fear that the
hon. Gentleman’s approach will have the opposite effect to the
one he wants: it will make the commission more like a hard criminal
prosecutor and less like a regulator. His approach will encourage the
kind of attitude that those who read news stories about the
commission’s activities have: that those involved in politics
are the kind of people who commit criminal offences, as opposed to
merely being the kind of people who need to be
audited. | 
