Political Parties and Elections Bill

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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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