Political Parties and Elections Bill

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Mr. Djanogly: I beg to move amendment No. 99, in schedule 1, page 14, line 22, leave out sub-paragraph (2).
The Chairman: With this it will be convenient to discuss amendment No. 100, in schedule 1, page 14, line 32, leave out sub-paragraph (3).
Mr. Djanogly: We move on to the part of schedule 1 that deals with powers in respect of suspected offences or contraventions. The amendments are consequential upon each other. Paragraph (1)(3) of proposed new schedule 19A, as set out in schedule 1, says what the recipient of a disclosure notice may be expected to do to comply with it. Again, I am conscious of trying to ensure clarity and avoiding repetition.
In amendment No. 88, I sought to require the commission to have “reasonable suspicion” that the person served with the disclosure order had committed an offence. When speaking to that amendment, I sought to strike a balance between the regulatory and enforcement role played by the commission and the right of the individual to go unhindered by arbitrary state intervention. With that in mind, and largely consequent upon that amendment—which, of course, failed—I believe that by inserting “information or” or “any” we can do away with the need for paragraphs 2(2), 2(3) and 2(5). My rationale is as follows.
Paragraph 2 of proposed new schedule 19A is entitled:
“Powers in relation to suspected offences or contraventions”.
As I noted in speaking to amendment No. 88, disclosure notices should be issued in such circumstances only by the commission, and disclosure as expressed by amendment No. 99 would be of any information or documents that the commission may require for its investigation. To leave paragraphs 2(2) and 2(3) in place would therefore result in duplication, as we could give the commission the same powers with only two words rather than two sub-paragraphs. That, in turn, would increase clarity and understanding at no cost to the commission’s powers of investigation.
In any event, will the Minister please address my suspicion that there could be a degree of duplication between the parts of the schedule? In that vein, will he also explain sub-paragraph (5)? If the power of entry is invoked, will it be necessary to go to a magistrate, as stated in paragraph 3, and if not, why not?
Mr. Wills: The amendments would mean that the commission could not require information or documents from any person who was reasonably required to provide them for the purpose of investigating a suspected offence or a contravention.
The power to require documents becomes available when the commission has reasonable grounds for suspecting that an offence has been committed under the 2000 Act or that another contravention of the Act has occurred. Under paragraph 12 of the schedule, it is an offence to refuse to comply with such a request without reasonable excuse. We believe that the amendment would seriously hamper the commission’s ability to conduct effective investigations into suspected breaches and contraventions of the Act, in conjunction with prosecuting authorities. Not only that, but the technical effect of the provision would be to make unavailable the power to seek a warrant authorising entry. That is because a warrant can be issued under paragraph 3 of the schedule only if a prior request for documents under paragraph 2(2) has been made. However, the amendment would remove that latter paragraph.
Mr. Djanogly: Is the Minister confirming that it is necessary to go to a magistrate under paragraph 3?
Mr. Wills: Yes, it is. That is exactly right. The technical effect of the amendment—again, I am sure the hon. Gentleman is happy to concede the fact—would be an unintended consequence, which I hope he would not relish.
There is cross-party consensus on the need for the commission to become a more robust regulator, but we believe that the amendments would damage its ability to do so. Removing the powers would leave the commission out of step with other comparable regulators, such as inspectors appointed under the Companies Act 1985. If the commission is granted these powers, the Government will expect it to exercise them sensibly and responsibly. When it seeks to use them, it will of course be subject to the usual requirement imposed by public law to act reasonably; its actions must also be compatible with the European convention on human rights, under the Human Rights Act 1998.
I hope that the hon. Gentleman has been sufficiently reassured that his amendment may have unintended effect. I therefore ask him to withdraw it
Mr. Djanogly: On the basis of the Minister’s helpful comments, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.30 pm
Amendment made: No. 123, in page 14, line 45, at end insert—
‘(6) 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.’.—[Mr. Wills.]
Mr. Djanogly: I beg to move amendment No. 103, in page 15, line 1, leave out ‘justice of the peace’ and insert ‘judge in the High Court’.
The Chairman: With this it will be convenient to discuss the following: Amendment No. 12, in page 15, line 2, after ‘may’, insert ‘, subject to sub-paragraph (1A),’.
Amendment No. 101, in page 15, line 6, after ‘Act’, insert ‘involving in excess of £10,000.’.
Government amendment No. 124.
Mr. Djanogly: We move on to paragraph 3, dealing with powers of entry and search, where again it would seem that the Government have had some further thoughts since the earlier sittings of the Committee. However, we still have various concerns in relation to the provisions. Amendment No. 103 would change paragraph 3 of the schedule to require the commission to obtain a warrant from a High Court judge, rather than a justice of the peace, before it was entitled to enter premises in the course of its investigations into alleged offences under PPERA. I think this was the point made by the hon. Member for Carmarthen, West and South Pembrokeshire in his earlier intervention on the Minister. That higher judicial threshold would place a greater obligation on the commission to ensure that the reasoning behind any use of its powers of entry was legally sound.
The increased experience and expertise of a judge in the High Court would subject the commission’s arguments that it had reasonable grounds to a higher level of judicial and legal scrutiny than could be expected from a justice of the peace. That would act as an important check and balance on the use of any of the powers, thereby ensuring that any cases of entry into premises were proportionate and justified.
I would be interested to hear from the Minister how frequently he thought that the powers of entry in this schedule might be used by the commission, although to judge from previous remarks he might be reluctant to give that information. I suspect that it will be infrequently, so the higher threshold would not place any significant or undue burden on the commission or prevent it from utilising its powers effectively.
There has been an almost unprecedented increase in state powers of entry under this Government, as I have explained in earlier remarks. I believe the amendment offers an important safeguard to members of the public and those involved in assisting parties. I would like to press the Minister for some clarification on the proposed mechanism for regulating the commission’s use of its powers of entry. The mechanism as it stands allows the commission to seek, through a justice of the peace, a warrant for entry, where the commission has issued a notice and it has not been voluntarily complied with. Lisa Klein, director of the commission’s party and election finance team, noted in the evidence session last Thursday that there were a number of different routes to force compliance.
The approach taken in the Bill, which apparently was the choice of the Ministry of Justice rather than the commission, requires the commission to apply to the magistrates for permission to go with a constable and see if it can find the answers itself. The other approach, as used in the United States, would be for the commission to ask the courts to order someone to answer the questions put to them by the commission. If they did not do so, they would be held in contempt of court and it would then become a criminal matter.
The Government proposed the former criminal route and I would like to hear from the Minister why that was the case. Furthermore, did they consider the alternative civil-type route, and if so, why was it dismissed? It is important that the main check on the commission’s investigation power is through the judicial system. The commission is acting as a regulator separated from the Government and if the separation is not maintained, its legitimacy will break down.
Further, while potentially cumbersome, an affected individual or group has the right to judicial review of the commission’s actions. As such, it is imperative that we ensure that the Government have chosen the correct route for regulation of the commission’s powers in the Bill.
On a final point, I would like to ask the Minister how the Government consulted on the proposals to give the commission these powers and the safeguards that are attached to them. Again, are the powers proportionate given their powerful scope? We are not yet convinced.
Amendment No. 101 is a consequential amendment following amendment No. 124, which we debated previously. It aims to bring in a threshold of £10,000, which would mean that the powers of entrance and search could be used only in respect of the larger issues, which seems a more proportionate approach.
Finally, Government amendment No. 124 introduces a new sub-paragraph into paragraph 3 of schedule 1, adding a further safeguard that gives the commission wide-ranging powers of entry. Our starting point was one of concern about the lack of safeguards in the paragraph and about the need to redress the balance between powers and safeguards. We therefore welcome this Government amendment as a first step along the road to a clearer and more proportionate allocation of the powers of entry. However, I have a few small concerns about the amendment that I hope the Minister will address.
My first concern is about the form and duration of the chief executive’s authorisation. We would like the measure to specify that any authorisation must be specific to each case and warrant, in order to avoid blanket authorisation being given. Will that be the case? Further, we would like a reasonable time limit to be placed on such authorisations, so that they have an expiry date and cannot be used further down the line as a basis for further search warrants during the same investigation.
We would like the appointment system regarding alternatives to the chief executive to be tightened up through the addition of a need for the agreement, or at least consent, of the Speaker’s Committee to the proposed replacement. We would also like a time limit to be placed on the authorisation of that person as a replacement. Finally, we would like any such appointment to be made public within five days by way of notice in the London Gazette.
David Howarth: My starting point with this amendment is that it seems a little over the top to require a High Court judge, who does not normally deal with warrants in criminal cases, to grant a search warrant in relation to a fairly minor offence. The point that the hon. Member for Huntingdon made about High Court judges’ experience is quite wrong; they have virtually no experience in giving search warrants, because most search warrants are given by justices of the peace. That is, presumably, why the Bill specifies that it should be a justice of the peace.
At first then, the amendment seems quite extraordinary, but there is a point to be made. The Bill brings together the situation in paragraph 3(1)(a), in which someone is suspected of having committed a criminal offence, for which it would be entirely normal to get a search warrant from a magistrate, and the situation in paragraph 3(1)(b), in which someone has
“contravened (otherwise than by committing an offence) any restriction or other requirement imposed by or by virtue of this Act”.
It is the words in parentheses that cause the problem. We are considering the grant of a search warrant in a situation in which no one is suspected of having committed a criminal offence.
In civil law, there are equivalents to search warrants. They used to be called Anton Piller orders in the old days, but then they were renamed with a not very fancy name. In civil law, if one wants to do something similar to what is done in criminal law, one has to go further up the judicial chain. That is the problem with this provision. I have no problem with a justice of the peace issuing a search warrant in a criminal case, but I do have a bit of a problem with that if no criminal offence is suspected.
Mr. Djanogly: The hon. Gentleman said earlier that the nature of many of these powers would or should be through the civil rather than the criminal route. Is not he proving that I did have a point to make?
David Howarth: I accept that point, because the Bill conflates criminal and non-criminal aspects, and it is not right to have the same procedure in each case. That adds a layer of complication, and it is entirely over the top to require a search warrant from a High Court judge in an ordinary criminal case.
Mr. Turner: I would like the Minister to help me with the question of what happens when things are taken away. Paragraph 8 of the schedule says that “documents” include “any books or records”. If there is a room full of computers, people can walk in, collect the computers and walk out again. If this happened in the middle of an election, one can imagine the damage caused to election organisers. Is there any provision to take copies of what you have got and keep them? Obviously, some computers have to be removed, perhaps all of them, but should there not be a power to keep copies?
Mr. Wills: I have already made it clear that we are prepared to look at the question of judicial oversight. I hope that in the light of that the hon. Member for Huntingdon will withdraw his amendment, but I do want to assure him that we are exploring this. We have to consult the judiciary, among others, as to feasibility. We have to take into account—and I am sure the judiciary will take into account—the sort of points raised by the hon. Member for Cambridge.
The points made by my hon. Friends, the Members for Carmarthen, West and South Pembrokeshire and for Manchester, Central are well taken. We recognise the need to reassure the House on this. These are important powers that we do not expect to be used often. Perhaps the tightening of judicial oversight will be a way of providing extra reassurance. I am sorry I cannot be more specific and enlighten the Committee at this stage as to exactly what we are proposing but I will come back to the Committee or the House at some point.
The hon. Member for Huntingdon asked whom we consulted. As I have said already, the White Paper was published in June, the Bill was published in July, and we consulted widely on both, including with the Opposition parties. I hope that will give him some comfort that we have taken our obligations to consult very seriously.
The hon. Gentleman also raised the question of why we rejected the approach—apparently suggested by the Electoral Commission in its evidence—that we should go down the US route of applying for a court order and then a sanction being contempt. This was an interesting contribution from the Electoral Commission. The warrant approach is in the tradition of this country. We were not aware that the Electoral Commission favoured a different approach to it. If that is indeed its position—that it would prefer to go down that route—we are happy to explore that with it and come back to this Committee. There are arguments against this route but, as it is the Electoral Commission that will have to apply the powers, we think its views important. We have not had the opportunity to discuss this with it but we will. I hope that gives some comfort.
The hon. Member for Isle of Wight raised an interesting point. I know he is much concerned about what will happen during an election campaign. He raised similar concerns on Second Reading about the effect of the exercise of these powers. He has made some very good points about that. The answer is that it will depend on the individual circumstances. The warrant will authorise what happens. He is right that the provision does include computers. That does come within the ambit of this but it will be for the warrant to take stock. He makes a valuable point. We will take it away and see if there is anything that can be done.
7.45 pm
We are also reflecting on some of other hon. Gentleman’s other points about the operation of the powers during an election campaign, as I think he is aware. They are important points, as we do not want any disruption to the normal process of an election campaign. We do not necessarily think that the commission’s capability as an effective regulator will be interfered with. I hope that on the basis of what I have said, the hon. Member for Huntingdon will feel able to withdraw the amendment.
I hope also that the extra safeguard that we are introducing in Government amendment No. 124 will be acceptable to the Committee. It produces an extra safeguard before a warrant can be issued under paragraph 3 of proposed new schedule 19A. We have tabled it in response to the concerns expressed on Second Reading that the powers may be mishandled or treated too casually by the commission. Under the Bill as drafted, to obtain a warrant to enter premises to investigate a suspected offence or contravention, 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 and that documents that have been withheld following a request, or that are otherwise relevant to the investigation, are on the premises. In addition, as we have said, the commissions must be accompanied by a constable at all times when exercising a warrant.
It is worth emphasising again that a warrant can only ever be applied for when there is a history of a lack of co-operation by the subject of an investigation or by someone who holds useful information. Whether a warrant is issued is not in the commission’s gift. It must convince a justice of the peace, or possibly a higher judicial authority, that it really needs to enter the premises to get hold of relevant documents that it believes are there.
Of course we recognise the concerns that have been expressed, and as I have said, I want to meet them while still ensuring that the commission retains effective powers where necessary. The effect of the amendment will be to ensure that no application can be made for a warrant to enter and search premises without the written authorisation of the chief executive of the commission. If that office is vacant or the chief executive is absent or unable to act, the authorisation will come from a member of staff of sufficient seniority, who has previously been designated by the chief executive for the purpose and whose designation is still in force.
The hon. Gentleman launched a number of probing questions about the time limit and whether the Speaker’s Committee should have oversight. I am certainly happy to raise those points with the Electoral Commission. As the regulatory authority, it is obviously important that we ascertain its views, and it will be influential in deciding how we proceed. However, although I am not closing my mind, I say to him as a first response to his questions that there could be some difficulty. It would be one thing if the post of chief executive were vacant for a considerable time, but the Government amendment covers his being
“absent or unable to act”.
That might mean a temporary illness or something like that. We need to be careful about introducing procedures that are too cumbersome and would interfere with the commission’s ability to discharge its duties effectively.
Tony Lloyd (Manchester, Central) (Lab): It is quite clear that there is a real attempt to raise the threshold, but I share the hon. Member for Huntingdon’s desire to probe the matter. The wording could, ironically, allow the office junior to be routinely designated. I know that that is not the Minister’s intention—that is clear from what he has just told us. Would it be worth considering a form of words that would guarantee that the power will not be routinely delegated to an inappropriate level? It is not likely that the chief executive would want that, and I know that it is not the Minister’s intention, but as often in life, we need to ensure that our intentions of today are honoured in 15 years.
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