Mr.
Turner: I welcome the Minister’s response. The
problem is that somebody can be done for having 7s 6d in their pocket
at home. I am trying to understand what would require the commissioners
to investigate and make a distinction between those with 7s 6d in their
pocket and those with £15,000. If there is no difference, the
commissioner must get on with it. He has the law. The law, it seems to
me, is an open and shut case. The Minister is saying that every
opportunity will be given to the commissioners to make the decisions.
That is what is wrong.
Mr.
Wills: I am not altogether following the hon. Gentleman.
Perhaps he could refer to the amendment that he is talking about. I am
sorry if I am missing his point; perhaps he could be a little more
specific.
Mr.
Turner: I am talking about amendment No. 95. When someone
says, “You have 7s 6d in your pocket”, the same powers
are being used as in the case of a man who has £10,000 in his
pocket. What is making that person exercise the powers if it is not the
scale of the things in the pocket?
Mr.
Wills: I am still not altogether clear about it, but in so
far as the hon. Gentleman mentions 7s 6d and all the rest, that will be
a question of judgment for the commission. It is a matter of
proportionality. I am not sure that I entirely follow his concerns, but
if he would like to convey them to me afterwards, I would be happy to
engage with him and try to reassure him.
Throughout, we
have tried to strike a balance. As I said at the beginning of my
remarks on this, we have to strike a balance between not putting
disproportionate burdens on people who are often volunteers and taking
a proportionate response to the offences being committed. At the same
time, we must be cognisant of the point raised by the hon. Member for
Cambridge at the start of his opening remarks that, as politicians, we
cannot exclude ourselves from the kind of regulatory constraints to
which people in other public bodies are rightly subject. It is a
question of proportion and balance. We think that we are trying to
strike the right balance in the application of these
powers. As
I was saying, amendment No. 97 requires a person who enters premises
under the paragraph 1 power to either be a manager at the Electoral
Commission or a police officer. Authorisation of the use of this power
by a manger at the commission would, in practice, be embedded in the
commission’s operation of the power. It is set out in statute
that an entry could only be carried out by a senior member of staff in
that context and could be restrictive and inflexible. In carrying out
its duties, the commission must effectively have the ability to
delegate entry and inspection duties to staff below such a senior
level. There
is not currently a definition of “manager” in the
statute. It might be difficult to interpret what grade of employee
would be capable of using the power. Structures within the Electoral
Commission might change over time and we think that that is an
unnecessary inflexibility. The commission has no intention of using
this power lightly. It is well aware that entering a premises is a
significant step. We believe that it will operate the power
responsibly, as it has done with the existing power to date. It is
worth reminding the Committee again that the commission has had these
powers.
Mr.
Djanogly: It might be helpful if the Minister could
describe what he thinks an entry situation would involve—what
would actually happen?
Mr.
Wills: With respect, I will not pre-empt the judgment of
the Electoral Commission on that. However, I shall say one other thing.
I know that the Conservative party wants to abolish the Human Rights
Act 1998, but if Conservative Members were to listen to my words, they
may have cause to revisit it. Article 8 of that Act gives valuable
protections in precisely these circumstances. That is why it is a good
bit of legislation and why we hope, in time, the Conservative party
will come to realise its value.
James
Duddridge (Rochford and Southend, East) (Con): I thought
the Minister was saying that politicians ought to be treated equally in
these amendments and the clause more widely. Is it not the case that
the Electoral Commission would not be able to enter the House of
Commons and raid an MP’s office and that they would not be able
to go into the House of Lords, unless the Member was perhaps based in 4
Millbank, which is not formally part of the parliamentary estate? If
that were the case, their office could be raided. Is that not an
inconsistency?
Mr.
Wills: My point related to that made by the hon. Member
for Cambridge: we should not seek to remove ourselves from the general
constraints to which other people in public life have rightly been
subject. That was the general point. In relation to the particular
application of the powers, he has rightly identified some issues. As I
said earlier, the subject of the susceptibility of MPs to the
legislation is an area we are considering at the moment and that we
will continue to explore.
I think that
we are making some progress. Amendment No. 98 provides that no force
can be used by the commission in its use of power of entry in paragraph
1. That is already the case. If the commission were to be authorised to
use force to gain entry to premises, that fact would need to be set out
in statute. In the absence of such a statement, it follows that the
commission cannot use such force. That is evident in the statement
given in paragraph 3(3) that a police constable may use
“such force as is
reasonably
necessary”. Without
that wording in the paragraph 1 power, no force can be used to gain
entry to premises.
Mr.
Djanogly: Is the Minister therefore saying that a
constable would have to be present for the power of entry to be
exercised? I think that was the implication of what he just
said.
Mr.
Wills: If force were to be used. The commission
cannot use force under the Bill to effect entry. I hope that the hon.
Gentleman will not press the amendment on the basis that it is not
necessary.
David
Howarth: I am not sure whether the Minister is saying
that, as it stands, the schedule implies that the commission can call
on a constable to help it enter premises using force. In fact, some
case law suggests that that might be possible. Alternatively, is the
right hon. Gentleman saying that the schedule does not authorise
anyone to use force to enter premises?
[Interruption.] Mention has been made from a
sedentary position of paragraph 3(3). The trouble is that that is about
investigatory powers and Government amendment No. 123 would separate
what is stated under that paragraph from what is stated under paragraph
1. We need more clarity about how the proposals would work
together.
Mr.
Wills: If the commission were authorised to use force, it
would have to say so under the Bill. It does not, so it follows
therefore that it cannot. However, a police constable may use force. I
hope that I have made the position more clear, and that the hon.
Gentleman accepts that the amendment is not
necessary.
Mr.
Djanogly: Is the Minister saying that, if a constable is
not taken along, and the commission is not allowed in if it turns up at
the premises, it has to go away again? Does that mean that it will have
to go to the premises with a
constable?
Mr.
Wills: It would depend on the circumstances. If force is
necessary, there would have to be a warrant and a constable may use
such reasonable force as is necessary. That is the point. The
commission is not authorised to use force. It would not necessarily
have to go to the premises. Some things could be
consensual.
Mr.
Djanogly: Is the Minister saying that the power would
normally be used pre-emptively? Will he say how it is likely to be
used?
Mr.
Wills: With respect to the hon. Gentleman, I will resist
the temptation to speculate on how the Electoral Commission might, in
individual circumstances, seek to use the power. As I have explained,
we want to give it the power as a backstop, should it be necessary for
it to use it. We also hope that it will be a deterrent and encourage
people to comply with regulations, and not give the commission any
cause to even think about using such a power. I cannot speculate about
every occasion on which the commission might or might not seek to use
it.
David
Howarth: I want to come back to the meaning of Government
amendment No. 123 and its relationship with paragraph 3 of schedule 1,
the issue that was raised from a sedentary position. It is important to
get the matter straight. The amendment states that
the “power
conferred by paragraph 1(5) may not be used to enter premises and
inspect documents for the purposes of an investigation by the
Commission of the suspected offence or
contravention.” Paragraph
3 refers to powers when a person is causing an offence or when a person
has
contravened “any
restriction or other requirement imposed by or by virtue of this
Act”. My
original reading of Government amendment No. 123 was that,
by virtue of what it states about “suspected offence or
contravention”, it was separating paragraph 1
entirely from paragraph 3, and that nothing under paragraph 3 will
apply to the right of entry under paragraph 1. That raises my original
question about what does apply. We need to be clear about that because,
if that is not the case, the amendment would not achieve the full
separation between the inspection power and the investigatory
power.
7.15
pm
Mr.
Wills: We have moved on to consider the Government
amendments. After issuing the hon. Member for Huntingdon with a final
invitation not to press his amendments, I can ask him and the rest of
the Committee to consider accepting ours. I will, if I may, come to
Government amendment No. 123 after speaking to Government amendment No.
122.
We have tabled
our amendments in response to concerns that have been raised. As I have
said, those concerns are considerable and it is important to get the
measure right. Although the commission’s proposed new powers
have existed in some form since 2000, and they are the same as other
regulators’ powers, we none the less realise the sensitivity of
the measure. We realise that to some extent—notwithstanding what
I said about the need for politicians not to exempt themselves from
scrutiny and regulation—politics is a particular
activity.
The hon.
Member for Huntingdon has frequently referred to the importance of
volunteers, so we have to be careful not to discourage volunteer
activity. It is important that we do not criminalise inadvertent
mistakes or discourage decent people, acting out of public spirit, from
participating in political life. In that spirit, we have tabled our
amendments. The
power in paragraph 1(5), which restates the existing powers of entry,
can be exercised by the commission for the purposes of carrying out its
functions and does not require a warrant. That is because the power
does not allow force to be used to obtain entry. It can also be
exercised only at a reasonable
time. In
addition to the power in paragraph 1(5), the Bill also gives the
commission a new range of powers to access information reasonably
required for its investigations into suspected offences or
contraventions of the 2000 Act from any person who might
hold it. Paragraph 3 of proposed new schedule 19A creates a power for
the commission to apply for a warrant to enter premises occupied by any
person, to search those premises and to seize documents. A warrant may
authorise the use of reasonable force for those
purposes. Consequently,
the Bill introduces a high threshold for a warrant to be obtained under
paragraph 3. The commission will need a warrant to search premises. To
get it, it must satisfy a justice of the peace, on information on oath,
that it has “reasonable grounds for believing” that an
offence or contravention has been committed and that documents that
have been withheld following request, or that are otherwise relevant to
the investigation, are on the
premises. When
exercising the warrant, the commission must be accompanied at all times
by a constable. Anyone who is to accompany a constable on to the
premises can do so only if named in the
warrant. We
believe that those wider powers are necessary to help to ensure that
the commission is equipped to conduct effective investigations into
suspected breaches of the Act, in conjunction with prosecuting
authorities. Nevertheless, we have noted all the concerns raised in the
House about possible confusion over the powers of search and entry in
paragraphs 1(5) and
3. The
Government amendment to the schedule makes it clear that if the
commission suspects that an offence or contravention has occurred and
it wishes to enter
premises to continue its investigation, it must use its new powers of
search and entry by warrant, which has all the safeguards
attached. Nick
Ainger: Will my right hon. Friend give
way?
Mr.
Wills: I will in a moment. I have given way a lot, and I
am trying to clear up the confusion about what we are
doing. The
commission cannot use the power under paragraph 1(5) to
conduct a fishing expedition if it thinks that wrongdoing has occurred.
We believe that the safeguards on the power to enter premises ensure
that use of the power will be proportionate and justified, and for its
proper
purpose.
Nick
Ainger: My right hon. Friend refers to the thresholds that
are required and to a warrant that might be granted by a justice of the
peace. Is he satisfied that the threshold is high enough? Should we be
considering a judge in a court issuing an order, rather than a JP in a
magistrates court issuing a
warrant?
Mr.
Wills: My hon. Friend raises an important point, which we
will actively
consider. Tony
Lloyd (Manchester, Central) (Lab): In support of my right
hon. Friend the Minister considering the point made by my hon. Friend
the Member for Carmarthen, West and South Pembrokeshire, this is not a
trivial point. Those of us who have experience as constituency MPs of
the use and, sometimes, the failure of the warrant system know that
JPs, whom I am sure in all cases are estimable people, do not always
ask the searching questions necessary to determine what ought to take
place. There
is merit in having a higher threshold and a higher level of
interrogation to force demonstration of reasonable grounds for entry to
a premises. Frankly, that is not always the case in criminal law, and
we should not replicate that in the Bill. I hope that my right hon.
Friend the Minister will think about this
matter.
Mr.
Wills: I am extremely grateful to my hon. Friend for his
comments. He and my hon. Friend the Member for Carmarthen, West and
South Pembrokeshire have made some important points and a major
contribution to the debate. As I said, the Government are anxious to
listen to what colleagues on the Committee have to say. We understand
the concerns that have been expressed and will continue to explore what
we can do to address them. In the meantime, I am extremely grateful to
my hon. Friends for their contributions, which brought real
enlightenment to the onward movement of the
debate. I
have come to the end of my remarks. I hope that what I have said will
be enough to persuade the Committee to accept the Government
amendment.
Mr.
Djanogly: The Minister said that the commission is not
equipped to fulfil its role. Various issues come out of that. First, we
are still short on evidence as to why that is the case. Secondly, if we
accept that it is the case,
it does not necessarily follow that the commission needs powers of entry
in connection with a donation of only a few pounds, for example. Many
of the comments made by hon. Members reflect
that. My
hon. Friend the Member for Isle of Wight made an important point when
he said that this is not a black-and-white issue. We must consider the
range of responses and gradations. The more I have heard from the
Minister on this batch of amendments, the more I think that he has not
totally thought through the impact and mechanics of the powers of
entry. Having
said that, I am grateful to the Minister for discussing the amendments
fully and putting the Government’s position on the record, and
for his attitude in saying—to his hon. Friends, at
least—that he will address the various concerns that have been
raised. On that basis, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Amendment
made: No. 122, in schedule 1, page 14, line 12, at end
insert— ‘This is subject to
paragraph 2(6).’.—[Mr.
Wills.]
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