Political Parties and Elections Bill

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Mr. Wills: The hon. Members for Huntingdon and for Cambridge have made useful contributions; I am grateful to them. Many detailed issues were raised and I shall run through the amendments more or less in order—although I am afraid I will have to resist all of them.
Amendment No. 86 is unnecessary. It seeks to limit the extent of the commission’s investigatory powers under paragraph 1(2) of schedule 1 to the Bill. The effect of the amendment would be that the commission would only be able to issue a disclosure notice either to a treasurer or an officer of an organisation to which paragraph 1 applies, or to an individual to which paragraph 1 applies—in other words, regulated individuals. That is the effect of paragraph 1(2) anyway, so the amendment is unnecessary. The limitation in paragraph in 1(2) will have no effect on the use of paragraph 2, which is a separate power to which separate limitations set out in the Bill apply. The commission needs a cross-party consensus to become a more effective regulator. If it is going to do that, it needs more appropriate investigatory powers and the clause as drafted does that without straying too far. For that reason, the amendment is unnecessary and I hope that the hon. Gentleman will feel able to withdraw it.
I am afraid that I will also have to resist amendment No. 87 because it seeks to place a time limit on the commission’s powers to issue a disclosure notice under paragraph 1(2). The effect of amendment No. 87 would be that the commission would only be able to issue a disclosure notice to a person who has been a treasurer or another officer of an organisation to which paragraph 1 applies in the past five years. Currently, the commission can issue a disclosure notice to any person who is, or who has been the treasurer or another registered officer to which this paragraph applies, or an individual to which this paragraph applies. There is no time limit in relation to that.
Although it seems unlikely that in most cases, the commission will need to go back in time more than five years, we cannot entirely rule out that possibility. Given that the commission will have to exercise its powers reasonably, which is in line with the general principles of public law, before making a request under paragraph 1, we do not think that such a constraint needs to be put in the Bill. I therefore hope that the hon. Gentleman does not press the amendment.
I shall deal with amendment Nos. 88 and 91 together and at some length because they raise important questions that I know are of general concern to the Committee and hon. Members more widely. Both amendments seek to limit the extent of the commission’s investigatory powers. Although the amendments are clearly well intentioned—and we are grateful to the hon. Gentleman for the spirit in which he is proposing them—they, nevertheless, suggest a misunderstanding about the different purposes of the powers set out under paragraph 1 and those set out under paragraphs 2 and 3. If there is such a misunderstanding, I hope that it will be helpful to the Committee if I set out the different purposes of those powers and the interplay between them. The hon. Member for Cambridge may have been alluding to that in his remarks.
6.30 pm
Paragraph 1 of the new schedule restates, with some changes, powers that the commission has in relation to registered parties and others that are contained in section 146 of the 2000 Act. Under section 146(3) of that Act, the commission has powers to enter premises and take copies of information relating to income and expenditure from a registered political party, a recognised third party and a permitted participant in a referendum. That power under the Act can be exercised by the commission for the purposes of carrying out its function. At present, the power to enter premises does not apply to election agents or candidates in an election—except candidates at a local election in Scotland.
However, the commission currently has powers under section 146(1) to require the disclosure of documents relating to income and expenditure from election agents or candidates. The Bill repeats the existing power to enter in paragraph 1(5) of proposed schedule 19A, which is to be inserted into the 2000 Act by schedule 1 to the Bill. It also extends it to candidates—other than candidates in Scottish local government elections—election agents, regulated donees, including MPs, and regulated participants. The result of that is that the original power in the 2000 Act for the commission to enter premises for the purpose of carrying out its functions will now apply to election agents and candidates, alongside the other individuals and organisations listed in paragraph 1(1) of schedule 19A.
Paragraph 2 of the schedule seeks to provide new powers for the commission when it undertakes an investigation into a suspected breach of the 2000 Act. To that end, the Bill provides the commission with new powers to request information, to put questions and to apply for a warrant to enable it to enter premises when carrying out an investigation into a suspected offence or other contravention of the 2000 Act. Those powers can be applied to election agents and candidates who have such information in the same way that they may apply to anyone else.
However—this is crucial to addressing the concerns of many hon. Members in Committee and in the House more generally—we have also introduced a number of important safeguards for the use of such new powers. In relation to the entry of premises under this new power, the commission will need to apply for a warrant under paragraph 3 of proposed schedule 19A. There is no automatic right of entry. For a warrant to be issued, the commission must demonstrate on oath to a justice of the peace that it has reasonable grounds for believing that an offence has been committed—or that another contravention of the 2000 Act has occurred. It must also establish that documents are on the premises that were withheld following an earlier request or that are otherwise relevant to the investigation. When entering the premises, commissioners must be accompanied at all times by a constable.
The amendments seek to limit the extent of the commission’s investigatory powers under paragraph 1(2) and (3) of the schedule. The effect of amendment No. 88 would be that the commission would be able to issue a disclosure notice only to a treasurer or officer of an organisation to which paragraph 1 applies, or an individual to which paragraph 1 applies, such as regulated individuals.
That would impact on the powers of the commission in paragraph 2 of the schedule to require any person, including a regulated individual listed in paragraph 1, to produce documents or information that it reasonably requires to investigate suspected offences or contraventions. That would seriously hamper the commission’s ability to investigate suspected breaches or contraventions in conjunction with relevant prosecuting authorities.
The effect of amendment No. 91 would be to restrict circumstances in which the commission can issue a disclosure notice so that it could do so only when it has formed a reasonable suspicion that an offence has been committed under the Act. Currently, the commission can issue a disclosure notice seeking information or documents relating to the income or expenditure of the organisation or individual in question that it reasonably requires for the purposes of carrying out its functions.
The powers set out in paragraph 1 are supervisory powers and we believe that the commission should be able to use those powers to determine whether regulated individuals are complying with regulatory requirements. To restrict that power to circumstances in which the commission has formed a suspicion that an offence has been committed—as is required under paragraph 2—would unnecessarily restrict the commission’s ability to carry out its supervisory and monitoring functions. I, therefore, hope that the hon. Members will not press the amendment.
Unfortunately, I shall have to resist amendment No. 89, too. It would require a disclosure notice served under paragraph 1(2) of proposed schedule 19A to the 2000 Act to be served by hand by a person specifically authorised by the commission to do so. I understand the points made by the hon. Gentleman, but we cannot give him any information about how often the power will be used because we do not know that. However, it is likely that the relatively small number of occasions it was used between 2000 and 2008 will increase because, at that point, the commission did not have investigatory powers. How burdensome it would be to the commission is therefore impossible to say, but the case for resisting the amendment does not rest only on the fact that it would be burdensome.
Serving notices by hand is unnecessary. There are other ways in which to serve notices, which would remove the risk of such action being a burden on the commission. Moreover, it is important that the hon. Gentleman considers that serving the documents by hand might also create an opportunity to allow those to whom the commission intends to give a disclosure notice to obstruct the receipt of that notice in a way, for example, that delivery by recorded delivery or registered post does not. Such methods of delivery do not give the same opportunities. In light of my explanation, I hope that the hon. Gentleman will not press the amendment.
I resist amendment No. 92. It would allow a person served with a disclosure notice to appeal to the commission in writing within 14 days of receipt of service under paragraph (2A), which the amendment would insert. A disclosure notice is essentially a request for information requiring the person to whom it is given to produce for inspection by the commission any documents that relate to income and expenditure of regulated individuals and organisations, and that are reasonably required by the commission for the purposes of carrying out its functions. The commission is best placed to decide whether it is necessary to issue such a request, and it would slow down the progress of investigation considerably if each notice were accompanied by a right of appeal.
Because a disclosure notice is not a sanction, we do not believe than an appeals process is necessary. It would be open to individuals who feel that they have a reasonable excuse not to comply with a disclosure notice because, for example, they do not hold any of the requested documents, to provide the commission with an explanation of why that is the case. In subsequent proceedings in respect of an offence for refusing to comply, any such explanation would have to be taken into account by the commission or, indeed, by a court. I hope that, in light of that reassurance, the hon. Gentleman will not press that amendment, too.
I come now to amendment No. 92, which the Committee may be relieved to hear is the final amendment in this group. It requires those served with a disclosure notice by the commission to comply within 28 days. Under the Bill, they would currently be required to comply within such reasonable time as is specified under the notice. I agree that those who receive a disclosure notice need to be given time to comply with it, and that they need to know the length of the period. That is why the Bill provides for a disclosure notice to specify a “reasonable” time within which the person served with the notice must comply. To that extent, there is certainty.
There has been some discussion about whether “reasonable” is sufficiently certain. We would argue that the flexibility that the term gives is appropriate, because the commission should have discretion to vary the period for compliance depending on the nature of the requests, which may be various. We believe this more flexible formulation is appropriate as, in some instances, the commission will need to allow a longer period—for example, for the production or provision of documents in some circumstances, such as if there is a large number of them. Equally, a request might be time-critical, particularly if there was concern that the success of an investigation might be under threat if not obtained speedily.
The term “reasonable” is in common usage and, for example, the courts have not had much difficulty in interpreting it. In the light of that explanation, I hope that the hon. Gentleman will not press that amendment as well.
Mr. Djanogly: As Members will have noticed, this batch of amendments has taken quite a long time to run through. The amendments are technical by nature, but we are covering new ground here and making new laws. This is the first sitting of several in this House and several in the other place, and it is very helpful that the Minister has given full answers and fully considered the amendments, because that will make both stages on the Bill more productive as a result. To the extent that there was a lot of information, I shall be going away and having a careful look at what he said today.
Mr. Wills: Because the hon. Gentleman will so generously consider what I said, I want to add one answer. He raised an important question about giving the commission a second bite at the cherry, which I regret that I inadvertently failed to address. The Bill would not allow that, and nor would it allow more than one sanction to be applied for the same offence. I hope that gives him some reassurance.
Mr. Djanogly: That is a very helpful clarification. In relation to his latter point, I shall be covering that again through one of my other amendments, so I must revisit that.
I took the point of the hon. Member for Cambridge that some of the amendments could have the implication of making the clause more criminal in nature, therefore making it less adaptable and user-friendly as a proportionate and varied approach from the commission. I shall look at our amendments again in that light, because that is an important point. Of course, the first line for the commission would be to approach people without any criminal or civil penalties whatsoever—just approaching people for information, which is probably the best way to get it.
On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Djanogly: I beg to move amendment No. 94, in page 14, line 5, leave out sub-paragraph (5).
The Chairman: With this it will be convenient to discuss the following: Amendment No. 95, in page 14, line 6, leave out ‘their functions’ and insert
‘an investigation where they have reasonable suspicion that an offence under this Act involving in excess of £10,000 has been committed.’.
Amendment No. 96, in page 14, line 7, after ‘enter’, insert
‘, only with authorisation by a warrant issued under paragraph 3 of this Schedule and when accompanied by a police constable,’.
Government amendment No. 122.
Amendment No. 97, in page 14, line 12, at end insert—
‘(6) For the purposes of this Schedule a person authorised by the Commission is a person who has express written authority of the Commission to act on its behalf and is one of the following—
(a) an employee of managerial level of the Electoral Commission;
(b) a member of a police force in England and Wales;
(c) a constable of a police force in Scotland; or
(d) a member of the Police Service for Northern Ireland.’.
Amendment No. 98, in page 14, line 12, at end insert—
‘(6) A person authorised by the Commission (who is not a police constable) may not use any force to enter premises, but a police constable may use such reasonable force only as is necessary to gain entrance to the premises.’.
Government amendment No. 123.
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