Mr.
Wills: I agree with my hon. Friend that we cannot be too
careful, but such a scenario is extremely unlikely. As I have said, I
have an open mind on this and I am perfectly happy to consult the
commission. It would certainly not want to trivialise the power in the
way that he suggestswhy would it? There would of course be a
test of seniority and experience, and I know that my hon. Friend uses
the office junior as an extreme example to make his point, but the
general point is valid. We want to ensure that there is sufficient
seniority. I think that the hon. Member for Huntingdon was probing how
we define that and ensure that it is at an appropriate level. Those are
perfectly fair points. I would be very happy to explore them and we
will do so with the Electoral Commission. With that, I hope that the
Committee will be prepared to support our
amendment.
Mr.
Djanogly: The Minister has said that he will review the
need for judicial oversight and the form of the warrant process. I am
grateful for that. It is necessary given the current state of the
clause. He also said that he would discuss with the Electoral
Commission whether the US civil-type approach would be suitable. That
would be helpful too. I am also pleased that he will be taking up my
questions on his amendment with the Electoral Commission and I should
be grateful if he would circulate its reply to the Committee. That
would be important for our later deliberations. On that basis I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Amendment
made: No. 124, in schedule 1, page 15, line 38, at end
insert Authorisation of
application for warrant under paragraph
3 (1) An application for a
warrant under paragraph 3 may not be made without the written
authorisation of (a)
the chief executive of the Commission,
or (b) where the office of
chief executive is vacant or the chief executive is absent or unable to
act, a member of the staff of the Commission who has previously been
designated by the chief executive for the purposes of this paragraph
and whose designation is still in
force. (2) A person may be
designated under sub-paragraph (1)(b) only if the chief executive
considers the person to be suitable having regard to the
persons experience and level of seniority as a member of the
staff of the Commission..[Mr.
Wills.]
Mr.
Djanogly: I beg to move amendment No. 25, in
schedule 1, page 15, line 41, leave
out three months and insert
42 days from the date on which
they were
seized..
The
Chairman: With this it will be convenient to discuss the
following amendments:
No. 26, in
schedule 1, page 15, line 45, leave
out from within to proceedings and
insert 42 days from the date on which they
were
seized.. No.
27, in
schedule 1, page 16, line 2, at
end insert (2A) The
Commission may apply a magistrates court to extend this 42 day period
by a further 14 days where they can prove on reasonable grounds that
the continued retention of such documents is vital to the investigation
into offences under this Act which involve in excess of
£10,000..
Mr.
Djanogly: We now move on to paragraph 4 which deals with
the retention of documents. When read together, amendments Nos. 25 and
26 seek to insert a court-based safeguard into an otherwise possibly
arbitrary power for the commission to withhold documents. The current
entitlement as proposed in the Bill is three months or 90 calendar
days. My amendment would reduce that initial time frame by half, but
would add in the power to have that extended on application to a
magistrate by a further 14 days.
This inserts
an important judicial safeguard mechanism into the Bill to prevent the
commission from holding documents for an unnecessarily long period of
time and thereby potentially placing an individual or group in a very
difficult position. The retention of documents can cause significant
disruption to individuals, businesses and groups. We must ensure that
we strike a balance between the desire to have an effective regulator
in the commission and the ability of those under investigation to
continue their lives as unhindered as possible. After all, we are all
innocent until proven guilty but the way the current provision in the
Bill is drafted seems, to my mind at least, to flip that principle on
its
head.
Mr.
Wills: As the hon. Gentleman has explained, the amendments
seek to alter paragraph 4 and the length of time for which any
documents may be retained. I am curious about how he alighted on the
figure of 42 days .
[Laughter.]
James
Duddridge: Is that
wise?
Mr.
Wills: I am interested that he seems to believe that it is
a relatively short period of time.
As we have
said, the amendments would impact significantly on the
commissions ability to give proper consideration to documents,
which it requires for the purposes of investigating a suspected breach
or contravention of the Act. It is open to the commission to return
documents before the three-month period expires if there is no reason
to retain them any longer. Furthermore, the commission can retain
documents for more than three months only in specific circumstances
covered in paragraph 4. Forty-two days is not a sufficient time limit
within which to expect the commission to have considered documents or
taken steps it considers appropriate to pursue an investigation into a
suspected breach of the
Act. Indeed,
it could require the commission to reach a decision about whether to
take proceedings unnecessarily quickly. I am sure that the hon.
Gentleman would not have intended that to be a consequence of the
amendment. That could lead to proceedings being abandoned, unnecessary
stress and disruption, and everything else that goes with that, when a
longer period might have
shown that there was sufficient evidence to justify the proceedings or,
equally seriously, to err on the side of taking proceedings where the
evidence later turns out to be
insufficient. It
is hard to see how an amendment that risks having either effect could
be anything other than damaging to the regulatory regime that proposed
new schedule 19A seeks to support. I do not think that the proposed
extension period in amendment No. 27 properly addresses that point, not
least because the sorts of offence or contravention to which the power
to enter may relate will not always have a quantifiable monetary value.
It is in everyones interests to ensure that a proper balance is
struck between the needs of the commission to have time to consider
what evidence it has before it and the needs of the person whose
documents have been taken to know what is to be done with them and to
have them returned within a reasonable period, if proceedings are not
to be taken.
Our proposal
reflects the approach taken by Parliament towards other regulators and,
therefore, is based on a
workable precedent. I hope that the hon. Member for Huntingdon will
withdraw his amendment.
Mr.
Djanogly: The Minister said that he was concerned that the
impact of the amendments could be that the Electoral Commission would
have to take a faster decision than it otherwise would, which could
lead to a bad decision. I take his point, but I have tried to address
that issue by saying that the commission would have the right to go
back to the magistrate to request a further 14 days, and I
would not have a problem with that being a recurrent right, on the
basis that the commission would have to justify its wish to keep the
documents. For the moment, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Further
consideration adjourned.[Ian
Lucas] Adjourned
accordingly at three minutes to Eight oclock till Thursday 13
November at Nine
oclock.
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