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. Sadly,
I shall have to resist amendment No. 90 as well. It would allow a
disclosure notice issued by the commission to require the production of
documents or information rather than any documents, as the Bill
currently provides. The amendment’s effect is already
achieved by paragraph 1(3)(b) of proposed
schedule 19A to the 2000 Act. It provides for a disclosure
notice to require the person to whom it is given to provide the
commission with information. The amendment is unnecessary as it would
not add to the effect of the Bill. I therefore hope again that the hon.
Gentleman will not press
it. 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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