Political Parties and Elections Bill


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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. 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.
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.
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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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