Political Parties and Elections Bill

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The Committee consisted of the following Members:

Chairmen: †Mr. Peter Atkinson, Mr. Joe Benton, Frank Cook, Sir Nicholas Winterton

† Ainger, Nick (Carmarthen, West and South Pembrokeshire) (Lab)

† Djanogly, Mr. Jonathan (Huntingdon) (Con)

† Duddridge, James (Rochford and Southend, East) (Con)

† Grogan, Mr. John (Selby) (Lab)

† Hesford, Stephen (Wirral, West) (Lab)

† Howarth, David (Cambridge) (LD)

† Kidney, Mr. David (Stafford) (Lab)

† Laing, Mrs. Eleanor (Epping Forest) (Con)

† Linton, Martin (Battersea) (Lab)

† Lloyd, Tony (Manchester, Central) (Lab)

† Lucas, Ian (Wrexham) (Lab)

† Reid, Mr. Alan (Argyll and Bute) (LD)

† Sharma, Mr. Virendra (Ealing, Southall) (Lab)

† Turner, Mr. Andrew (Isle of Wight) (Con)

Tyrie, Mr. Andrew (Chichester) (Con)

† Whitehead, Dr. Alan (Southampton, Test) (Lab)

† Wills, Mr. Michael (Minister of State, Ministry of Justice)

† Wishart, Pete (Perth and North Perthshire) (SNP)

Chris Shaw, Chris Stanton, Committee Clerks

† attended the Committee

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Public Bill Committee

Thursday 13 November 2008

(Morning)

[Mr. Peter Atkinson in the Chair]

Political Parties and Elections Bill

9.6 am

James Duddridge (Rochford and Southend, East) (Con): On a point of order, Mr. Atkinson. During the evidence session on 4 November, the Secretary of State for Justice and Lord Chancellor said that it would be possible to provide information on companies and unions having to vote when a donation is received. The Committee has still not received that information. As it is important to our deliberations, I ask the Minister to seek clarification of when it will arrive.

The Minister of State, Ministry of Justice (Mr. Michael Wills): Further to that point of order, Mr. Atkinson. I am happy find out where the information is and hurry it up, but for the life of me I am baffled about why it should be relevant to the Committee’s considerations. However, I shall do my best to ensure that the Opposition receive it.

Schedule 1

Investigatory powrs of Commission: Schedule to be insrted into the 2000 Act

Mr. Jonathan Djanogly (Huntingdon) (Con): I beg to move amendment No. 28, in schedule 1, page 17, line 13, at end insert—

‘(2) Where originals have been removed from premises, the Commission must take all reasonable steps to provide the individual or organisation with copies of those documents within 24 hours.’.

The Chairman: With this it will be convenient to discuss the following amendments: No. 29, in schedule 1, page 17, line 23, at end insert

‘and leave a copy of such authorisation of warrant with that person.’.

No. 30, in schedule 1, page 17, line 34, after ‘any’, insert ‘reasonable’.

Mr. Djanogly: Welcome to the Committee, Mr. Atkinson. In an attempt to redress the balance on the retention of documents, amendment No. 28 would require the commission to furnish people from whom documents have been seized with copies of the documents. My hon. Friend the Member for Isle of Wight raised that issue in earlier deliberations, and I am pleased to be addressing it formally as he wished.

The amendment would enable people to minimise any disruption or financial loss during the period in which their documents were retained. Furthermore, the possibility of an individual or an organisation wishing

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to seek legal advice when they find themselves in such a position is high, so by providing them with copies we would allow them to seek that advice straight away and ensure that their rights were observed in any redress processes available to them. In retrospect, I would redraft the amendment so that a person had to request documents before they needed to be given, but the principle is the same and, I believe, still valid.

Amendment No. 29 would provide for a copy of the warrant authorisation to be left with the person on whom it was served. It follows a similar vein to the amendment that I proposed to paragraph 4 of schedule 1, but it deals instead with paragraph 5. It is important that individuals or groups subject to the power of the commission have the ability to access avenues of appeal and redress, which provide vital safeguards to prevent abuse of the powers by the commission.

Having copies of relevant documentation at an early stage is vital if such avenues are to be utilised effectively and employed in a manner that protects the individual or group, as well as calls the commission to account for its actions. Furthermore, leaving a copy would allow for a cool and considered review of the warrant away from the heat of the moment, and would prevent a simple flash of paper with the recipient possibly in shock from the entry process. Perhaps another measure covers that point, but I would be grateful if the Minister explained the position.

Amendment No. 30 concerns the word “any”. It is far too broad a word when describing what a person must do in the context of an entry situation. Do we expect a wheelchair-bound donor to climb a flight of stairs or an arthritic party officer to press keys on a computer keyboard? It is easy to assume that those caught by the provision will be able-bodied or computer literate, or have any other skill set that we consider commonplace. Hon. Members will know from experience, however, that that is not the case in many local party offices or organisations, let alone in respect of individual donors. The amendment, therefore, by inserting the word “reasonable”, would force the commission to take account of the circumstances of each case and act accordingly. Again, we feel that this is a question of balance and proportionality.

Mr. Wills: I start by apologising to the Committee and to you, Mr. Atkinson, for my slightly late arrival. I am afraid that the Mayor of London has not yet succeeded in getting a grip on London’s transport. [Interruption.] Well, in this case, the blame lies where it lies. My apologies to the Committee.

I understand entirely why the hon. Member for Huntingdon has tabled these amendments. We are sympathetic to the concerns that lie behind them, but I hope that when he hears what I have to say, he will feel that he need not press them. He has set out clearly the reasons behind the amendments. In relation to amendment No. 28, I can see exactly why he has proposed it, but a blanket 24-hour requirement would be too inflexible.

I am willing to consider whether we might insert in the Bill a requirement that, if requested by those whom the documents were taken from, the commission would have to copy and return the documents within a reasonable time frame. That would ensure that only where the individual needed the copies to be returned to them the

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commission would be required to do so. Otherwise, it would be an onerous burden on the commission to do that in all circumstances.

I would also expect the commission’s guidance on the use of its powers to include a policy in relation to seized documents, not least because of the concerns raised in the Committee. I am sure that hon. Members’ concerns will have been noted by the commission. I hope that, on that basis, hon. Members feel satisfied and will not press the amendment.

Amendment No. 29 would oblige the commission to leave with the person to whom it applied a copy of any warrant obtained to enter and search premises, but paragraph 7 of proposed new schedule 19A to the 2000 Act, as set out in schedule 1 of the Bill, requires a person to produce a warrant when searching premises. I believe that that is adequate protection to ensure that the person understands the grounds on which a search is taking place. I cannot understand why someone would need to retain a copy after the search has ended and I am not aware of any precedent for that.

Mr. Djanogly: Why would not someone whose house has been entered want to receive a piece of paper showing the warrant? When entry is made, they may be in a state of shock and things may be flashed in front of them. Is it not the correct procedure to leave them with a copy of the warrant that can be reviewed at a later stage?

Mr. Wills: As I said in relation to the previous amendment, I am perfectly happy to look at the issue and talk to the commission about whether the guidance could include such a provision, but I am reluctant to load the commission down with the onerous burden of doing that in all circumstances. I understand what the hon. Gentleman is saying in relation to those particular circumstances, and if necessary we will return to it on Report, but I hope that he is satisfied that the commission will produce guidance on that particular issue. There is no cause for the commission to be unreasonable on that point.

Mr. Andrew Turner (Isle of Wight) (Con): I am interested in how the Minister is following matters. He seems to be saying that the measure would burden the commission. In fact, the trial lies with members of the public, who take higher priority than the members of the commission. He has it rather topsy-turvy.

9.15 am

Mr. Wills: I understand the hon. Gentleman’s point, but the point I am making is that we should not unduly burden the commission. In the end, the commission is funded by the taxpayer and if we put undue burden on it the taxpayer will bear the cost, which we all agree should be avoided as far as possible. Of course, if it is reasonable for the commission to protect the interests of those subject to the search, it should do so. This is not about not putting any burden on the commission—we are not reluctant to do that. It is a question of placing an undue burden and precisely where the balance is struck. However, we shall look at the issue—I am perfectly happy to do so. We shall talk to the commission

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and see how it would regard such a thing, or possibly get some assurance that it will provide for that in guidance.

The intervention of the hon. Member for Huntingdon was perfectly reasonable and we should see how we can take account of it in the best possible way—without putting undue burden on the commission.

I completely understand the aim behind amendment No. 30. We do not want the schedule to be overly onerous, and we want the powers to be used reasonably and sensibly. There is consensus in the Committee on that. However, amendment No. 30 is not necessary, because it would duplicate what is already in the schedule.

The schedule stipulates that, where an inspector is inspecting documents in electronic form, the person on the premises in question will be required to give any assistance that the inspector reasonably requires to inspect documents or to check the operation of any computer or associated apparatus. Therefore, the Bill already provides that, before it can be requested, what may be required must be reasonable. That test already includes an assessment of whether the substance of the requirement is reasonable, and also whether it is reasonable to require it to be done.

We must not forget that the powers must be exercised in a way that is consistent with public law principles of reasonableness. We are fortunate in having the protections of the European convention on human rights in this matter, including the right of respect for private life under article 8 and the right of enjoyment of property under article 1 of protocol 1. I am sure that the whole Committee is glad that we enjoy the protections of the European convention on human rights, embodied in UK domestic law under the Human Rights Act 1998. Therefore, I hope the Committee agrees that we have already provided that an inspector will not be allowed to make unreasonable demands. With those undertakings, I hope that the amendment will be withdrawn.

Mr. Djanogly: We are certainly pleased that the Minister has seen the sense of our amendment No. 28. We agree that things should be done by way of request, rather than the other way around—conceptually, we are in agreement on that and I look forward to seeing the ensuing Government amendment.

On amendment No. 29, again, I am pleased that the Minister has said that he will review the issue of leaving a copy of the warrant. We shall see how that progresses. On amendment No. 30, I thank him for his clarification, which seems to be in order. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Martin Linton (Battersea) (Lab): I beg to move amendment No. 118, in schedule 1, page 18, line 41, at beginning insert ‘Subject to subsection (1A),’.

The Chairman: With this it will be convenient to discuss amendment No. 119, in schedule 1, page 18, line 43, at end insert—

‘(1A) A person does not commit an offence if, in the opinion of the Commission, the person had no intention of withholding or failing to provide information for the purposes of fulfilling any duty or obligation under this Act.’.

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Martin Linton: It is a pleasure to serve under the chairmanship of a former fellow councillor, Mr. Atkinson—I hasten to add, before anyone worries, that it was in a split ward.

Both amendments concern the issue of unintended errors and honest mistakes. The current law states that a

“person who fails, without reasonable excuse, to comply”

commits an offence. One could argue that any unintended error is, automatically, a reasonable excuse, but this has led to a lot of problems with the legislation.

In evidence, we heard descriptions of unintended errors. The treasurer of the Conservative party, Ian McIsaac, was asked what happens if the party worker whose job it is to list the donations accidentally drops a page behind the cabinet and discovers it six months later—that is a late declaration. It seems ridiculous that the Electoral Commission could regard that as an offence, whether there was intent or not.

Many Members have probably had similar experiences, and I had a late declaration myself—of a trivial nature, I thought. The reason for the lateness was to do with whether a hotel bill would be more than £1,000. At first, it seemed that it would not, but in the end it was, so the declaration was late. I apologised to the Electoral Commission and received a stiff letter in reply. According to the letter of the law, I did not have a reasonable excuse and it could have been regarded as an offence.

We all know of other more serious cases where declarations of donations have been made many months too late and the Electoral Commission, rather than disregarding the incident, has referred it to the Crown Prosecution Service. The whole machinery of the law can be set in motion over an error that was not only unintended, but which nobody believes was intended or deceitful, or born of any lack of good faith.

I support action against failure to declare where it involves deceit or intention. I can point to my record on this matter, having been on the sleaze-busting team at The Guardian, and having written a pamphlet about money and votes in the 1990s. I fully support—indeed, I played a part in—bringing about this legislation on disclosure. I would be the first to say that people who try to conceal donations should be prosecuted, but, equally, I do not want the police, the CPS or the courts to be clogged up with unintended errors and honest mistakes.

There is some evidence that the Electoral Commission has prosecuted, even when it believes that there is no deceit or lack of good faith. That is not my target. I was trying to introduce into the Political Parties, Elections and Referendums Act 2000 a measure like the one that is already in the Representation of the People Act 1983. I shall briefly quote from section 167 of the 1983 Act, if I may. One may, in respect of any electoral offence that one commits, which is an offence under the Act, go to a court—a High Court or an election court, sometimes even a county court—and argue

“that the act or omission arose from inadvertence or from accidental miscalculation or from some other reasonable cause of a like nature, and in any case did not arise from any want of good faith”.

If one persuades the court that that is true,

“the court may make an order allowing the act or omission to be an exception from the provisions of this Act”.

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In other words, the court can wish the Act into nothingness—it disappears completely—under a process known as seeking relief. That provision was not imported into the 2000 Act. So if one commits an offence under that Act, in respect of the late declaration of donations, one cannot go to the court and seek relief.

The 1983 Act also has lots of provisions allowing candidates to be relieved of the consequences of the Act where an agent or a sub-agent is unable to do something because of death, illness, misconduct, or whatever reason. That is what the law should do; it should prosecute the guilty, not those who have no intention to break the law. I confess to the Minister that I really intended this amendment to apply not where the commission believes there was no intention, but where the court believes that. There should be a provision allowing someone, as soon as they discover that they have made a late declaration, to go to a court, seek relief and have the offence disregarded by the court before the Electoral Commission is in a position where it has to consider whether to prosecute.

This is a problem that most people acknowledge and there is more than one way of resolving it. I should like some assurance from the Minister that he is aware of the problem and that he will seek some way of getting round it. I should not agree with him if he were to say that there is no problem at all, because the record so far shows very clearly that the Electoral Commission sometimes proceeds on unintended errors. A lot of police, CPS and even court time is wasted on offences that would have been serious if there were intention to deceive, but are not really serious in the absence of that intention. We need a system in which the court can intervene at an early stage to avoid that.

Dr. Alan Whitehead (Southampton, Test) (Lab): I have great sympathy with what my hon. Friend has said about his amendments, particularly the idea that the Bill must be consistent with the Representation of the People Act. In his opinion, was the 2000 Act unintentionally or intentionally lax in that matter? A clause ensuring consistency between the Representation of the People Act and future legislation was omitted from the Act, so including it in the Bill would simply put matters right rather than create new precedent.

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Prepared 14 November 2008