Mr.
Djanogly: Amendment No. 94 is moved on a probing basis, to
delete paragraph 1(5) of schedule 1, which empowers the commission to
enter premises to carry out what is stated as its function under PPERA.
Given the vagueness of the provision, we are keen for the Minister to
justify fully the need for the powers. From Government amendment No.
122 and their consecutive amendment, it would seem as if they will make
some concessions in this area and we look forward to hearing the
Minister. However,
we have significant concerns about the proposals for powers of entry
for the Electoral Commission. The commission already has powers of
entry into political parties’ offices, under PPERA. Paragraph 3
of schedule 1 extends that to provide powers of entry into the premises
of anyone who has donated to a political party or regulated donee. That
has the potential to erode the willingness of law-abiding citizens to
donate to political parties. It would take only one heavy-handed use of
the powers in someone’s home or office for other legitimate
donors to take fright at the prospect of giving money to political
parties. Last October, in a speech at the university of Westminster,
the Prime Minister pledged to curtail powers of entry with a new
liberty test. I gave details of that in my earlier
remarks. As
part of Lord West’s review into powers of entry, the Home Office
estimated the powers of entry that are in force. I have voiced my
concerns on that issue in a previous debate. A study of state powers of
entry by the Centre for Policy Studies, last year,
warned: “In
many cases, discretion as to what is considered as reasonable behaviour
in exercising an entry power is left to the judgment of those wielding
the entry power...Many powers are drafted so broadly that the
citizen has little or no protection if officials behave officiously or
vindictively. Some carry draconian penalties for obstruction, including
heavy fines and prison sentences of up to two
years.” It
is with that in mind that I proposed my amendments in an attempt to
insert some statutory safeguards into the
schedule.
6.45
pm If
amendment No. 94 fails and paragraph 1(5) remains in the schedule, it
would need to be amended. Amendment No. 95 would insert into paragraph
1(5) a higher threshold test for the commission to satisfy before it
could enter premises. A high value is necessary to prevent a fear among
small party donors that a bequest in a will, or a cheque for a friend
who is running as a candidate in an election, might result in their
home or office being invaded by the commission. The amendment would
focus the commission’s mind on the abuses and offences that are
the most flagrant contraventions not only of the Bill, but of the
spirit of transparent party funding. This is a question of balance, but
at the moment there is no balance.
Amendment No.
95 would operate a secondary safeguard. Once the commission had
satisfied what I
will call the threshold value test of £10,000, it would have to
prove that it had reasonable grounds for believing that an offence had
occurred. It would then have to formulate its arguments and
investigations into a cohesive submission to the justice of the peace
when applying for a warrant. The idea of entry powers being given to
investigate donations of a few pounds is bizarre, if not
excessive. Amendment
No. 96 concerns the point of entry and goes together with the
safeguards envisaged in amendment No. 95. It provides that entry would
have to be authorised by a warrant, and that a police constable would
have to be present to ensure that the commission acted within the law.
The constable would also provide vital assistance to those acting on
behalf of the commission in entering premises. We have no wish to
create a cadre of have-a-go heroes under the auspices of the
commission. We see the use of powers of entry as the last option
available to the commission. Their use should be the nuclear option, to
be used when all attempts to elicit the required information, or to
co-operate with the individual or group suspected of an offence, have
failed. Does the Minister share that view, or does he think that they
will be used pre-emptively?
In such
circumstances, the owner of the premises might not co-operate.
Amendment No. 98 would make provision for the use of reasonable force.
In drafting those powers, I have attempted to safeguard the commission,
the property and its owner, so that only the accompanying police
constable would be able to use such force. There is no need for the
commission directly to have such powers. That is the police’s
role, and I hesitate to provide anyone else with such powers. Given the
unlikelihood of that last resort being used often, I see no practical
difficulty in requiring the commission to act in that fashion. Does the
Minister agree that such powers of entry would, and should, be used
only in a few exceptional cases?
I reiterate
that we have only just received Government amendments Nos. 122 and 123,
so I have not given them a huge amount of thought. I certainly have not
had the chance to consult on them. We think that they pick up on the
comments of Peter Wardle, the chief executive of the commission, in our
evidence session of Thursday 6 November. When discussing the
commission’s current monitoring and inspection powers, he noted
that they were typically used to run audits on the documents and
records of bodies that receive policy development grants. That came
about from a need to assure Parliament that such funds were being spent
in an appropriate manner and in accordance with the terms of the grant.
He
said: “That
is inspection and audit; we do it already and we think that the current
powers are adequate for
that.” The
Government seem to have taken to heart what he went on to say, and that
is to be welcomed in light of the Bill’s other deficiencies and
the tight time frame in which it is being rushed through. Peter
Wardle’s succinct comments give some understanding of the
Government’s rationale behind the amendments. He
said: “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.”——[Official Report, Political
Parties and Elections Public Bill Committee, 6 November 2008; c.
43, Q104.]
That is what the
Government seem to be attempting with this amendment; they have limited
the right of entry under paragraph 1(5) to only the commission’s
role as an auditor/inspector of financial documents. We welcome this
moment of clarity from the Government and support their main principles
and rationale in this regard. Indeed, this amendment echoes the
sentiment of many of our own amendments relating to the
schedule. In
many ways, amendment No. 97 can be read in line with amendments Nos.
95, 96 and 98. The schedule makes much reference to those people
“authorised by the Commission”. In fact, almost all the
powers granted to the commission under the schedule are also available
to those individuals, yet we can find no reference in the Bill to a
definition of who they are. Perhaps the Minister can assist me with
this. My amendment No. 97 to paragraph 1(5) proposes solving that
problem by specifying who may be authorised by the commission to
exercise these powers. I have deliberately limited those powers to
high-level employees of the commission, at least, and left it marginal
in respect of who else should be included and why. Given that these
powers of entry are unlikely to be used in all but the most extreme
cases, it is justifiable to expect the commission to send an individual
from management. Doing so would ensure that both the commission and the
owner of the property take such a person, and their on-the-ground
assessment,
seriously. We
do not wish the commission to send people, such as its cleaning staff,
for instance, to raid premises. Furthermore, given the seriousness of
the exercise of this power, the ability simply to authorise anyone is
not only worrying but would call into question the commission’s
integrity.
David
Howarth: The debate on these amendments comes back to the
distinction, which I was trying to make in the previous debate, between
the commission’s powers of inspection and its powers in respect
of the investigation of criminal offences. The Government are now
offering, in amendment No. 123, greater clarity in distinguishing
between the two, making it clear that the powers laid out in schedule
1(1) may not be used as investigative powers when investigating a
criminal offence. That clearly separates the two. It therefore follows
that the amendments tabled by the hon. Member for Huntingdon, which
talk about the sum at issue—amendment No. 95, for
example—are no longer relevant, because the inspection power is
not to do with amounts of money at stake in respect of an offence, but
with ensuring that people are complying with more general requirements.
Nevertheless, his other points still
apply. If
the Government still want there to be a power of entry for the purpose
of inspection, they have to think through precisely how that is going
to work. What the hon. Gentleman said about ensuring that constables
are there, that the powers are clear and that officials of a civil
regulator are not resisted with force is still pertinent. The
Government need to think that
through. More
generally, the Government need to think through what the purpose is of
having a power of entry for an inspector. Precisely why do we need
inspectors to have powers of entry and under what circumstances, when
they are not investigating offences? This brings us back to the point
that the hon. Gentleman made about the Electoral Commission’s
not being entirely enthusiastic
about having these powers and not seeing a great deal of benefit in
them. If it is to have such powers, they need to be in more of a civil
than a criminal context. If there were a clear link in the system
between the failure to disclose a document following a reasonable
request by the commission, and a power of entry at some point after
that because of failure to comply, that could be justified. However, at
the moment I see no link between the process for requesting disclosure
and the power of entry, which seems to appear out of nowhere. I ask the
Government to reconsider sub-paragraph (5). As the hon. Gentleman said,
amendment No. 94 is a probing amendment; nevertheless, this aspect of
the Bill needs to be
reconsidered. Mr.
Wills: We welcome these probing amendments. We will have
to resist them all, but the fact that we have tabled Government
amendments on this issue shows that we are conscious of the need to get
it right and to be flexible in doing so. We are not prepared to render
the Electoral Commission ineffective, however, particularly as we are
expanding and intensifying its role as a regulator. We must ensure that
in doing that, we give it effective
powers. We
are prepared to respond to concerns. The hon. Member for Huntingdon
asked me directly whether we can expect the powers to be used rarely,
and the answer is yes. I want to put it on the record that the
commission should use them with great care. However, is it important
that they exist, not least as a backstop and a deterrent to behaviour
that none of us wants to take
place. I
shall go through the amendments in order. Amendment No. 94 would delete
paragraph 1(5) of schedule 1, which essentially restates the
commission’s existing powers in relation to supervised
individuals. Those powers allow it to enter premises occupied by
specified individuals to inspect documents relating to their income and
expenditure, at any reasonable time, for the purpose of carrying out
its
functions. Amendments
Nos. 95 and 96 would amend the same powers of entry to make them
applicable only in connection with an investigation involving more than
£10,000, and exercisable only with a warrant and accompanied by
a constable. The material difference between that power and the version
in the 2000 Act is the range of individuals to whom it may apply. Most
notably, the Bill extends the commission’s powers to cover
regulated donees—Members of the House and of political parties,
as well as candidates, their agents and permitted participants at
referendums.
That extension
is being made to ensure that the commission can routinely access all
the information that it needs to exercise its functions. The key thrust
of the Committee on Standards in Public Life’s 2007 report,
which was instrumental in the genesis of the Bill, was that the
commission is currently not equipped to fulfil its role. More recent
events have also brought that to the fore. It has a general function of
monitoring compliance with the rules governing elections and politics
in this country, and we must not lose sight of the importance of that
role. Public confidence in the probity of our political system rests in
large part on the faith that scrutiny can command. It is vital that the
commission be able to access all the information that it needs to
monitor compliance with the rules.
Having said
that, real concerns have been expressed in Committee today and on
Second Reading about the extent of that power and the intention behind
it. We have already indicated our intention to move on the issue, and I
am willing to listen further. However, we need to remember that if the
commission did not have such a power of entry, it would be entirely
lawful to refuse to admit the commission if it sought to inspect party
records on party premises. There would be no negative consequence of
that for the party concerned, and such a backward step would be
seriously detrimental to the transparency and scrutiny of our political
system. To remove the power at the very point when we are refocusing
the commission on its monitoring role would send out the wrong message
and deprive it of a potentially important tool in performing that
role. The
amendments would constrain the commission’s existing powers of
entry and make them almost identical to the powers in paragraph 3 of
the schedule that apply in relation to suspected offences. We believe
that that would be a similarly backward step. As I explained earlier,
it is vital that the commission be able to access the information that
it needs to supervise those whom it regulates. Any credible regulator
must have those powers, and it does. It is similarly vital that, where
the commission has reason to believe that an offence or other breach of
the rules has been committed, it can look into it thoroughly and
effectively. Without that power of entry, it would be wholly reliant on
law enforcement agencies for investigations, and that would make it
impotent in the face of apparent wrongdoing. Merging the two powers and
constraining both by the need for a reasonable belief of an offence,
together with the need for a warrant and the accompaniment of a
constable, would not work in practice. The two powers are for different
purposes and, rightly, they are differently
constituted. Amendment
No. 97 would require a person entering premises under the power in
paragraph 1 to be either a manager at the Electoral Commission or a
police
officer.
7
pm
Mr.
Turner: The Minister appears to distinguish in this
matter between everything and nothing. This is not a debate about
everything and nothing. In amendment No. 97, it is about
£10,000. However, it need not be that amount—it could be
£5,000 or £500. I am trying to obtain some kind of
explanation that takes account of different scales rather than just yes
and no.
Mr.
Wills: I am sorry if I have not made this clear. I hoped
that I was saying that we realise people’s concerns. We have
indicated that we are prepared to listen to them, and I am happy to go
on meeting concerns as best we can. However, I am not prepared to
remove the powers. It is not everything or nothing. We are prepared to
be flexible about how those powers are exercised. We have already
proposed certain safeguards, we are proposing more and we are happy to
listen to other suggestions. Nevertheless, we must ensure that the
commission remains an effective regulator. That is all I am saying. If
the hon. Gentleman thinks that we should be flexible about how we make
the regulation effective, I am happy to enter into a dialogue about
that. We have already done so, and I will continue doing so. I hope
that that reassures the hon. Gentleman.
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