Martin
Linton: I was a member of the Committee that considered
the 2000 Act, and I do not recall any Minister or member of the
Committee suggesting that there should be a prosecution in a case in
which there was no intention to deceive. I certainly do not think that
that was the intention. Page 18 of the Bill
states: “A
person who fails, without reasonable excuse, to comply...commits
an
offence.” The
Minister might argue that that gives the Electoral Commission
sufficient leeway to decide whether to prosecute, but there are two
problems with it. First, “reasonable excuse” does not
cover the same ground as an unintended error. If somebody were late for
the Committee, even if they did not intend to be, one could argue about
whether their reason for being late was a reasonable excuse. That is
not the same thing as an unintended
error. One
could easily get into a situation where somebody makes a very late
declaration of a donation, and their only excuse is that they forgot.
One might well say that
that was not a reasonable excuse, but that given that it was an
unintended error, an honest mistake not motivated by any desire to
withhold information or to deceive, it would be a waste of time to
prosecute. I do not think that the intention behind the 2000 Act was to
catch honest mistakes, but that may be the outcome. The 1983 Act
creates a far better of range of cases in which it can reasonably be
argued that a mistake was unintended and should not be subject to
prosecution. I hope that we can put that
right. Much
as we need tough legislation, it should not be so tough that it tangles
itself up in unnecessary prosecutions. Many people have said that we
must have laws that apply to politicians in exactly the same way as to
any other section of the population, and that the regulator must have
the same powers over politicians as over anybody else. I fully
subscribe to that, but we must surely bear in mind the fact that the
consequences of prosecution for an unintended error are great for
politicians. In fact, the further up the political tree, the greater
the consequences. Many of us would admit that we have seen
politicians’ ministerial careers ended prematurely not because
of any intended error but because of an unintended failure. We lose
enough people from politics who are prosecuted for good
reasons—that is how it should be—but to lose people who
have not acted in bad faith is a great waste. Without asking for any
special treatment, I simply suggest that the provision in the 1983 Act
that relates to avoiding errors over unintended prosecutions should
effectively be imported into the 2000 Act so that we have the same
regime for both
Acts. 9.30
am David
Howarth (Cambridge) (LD): It is a great pleasure,
Mr. Atkinson, to serve under your chairmanship; I think it
is the first time that I have done so. I fully support the intention
behind the amendments. However, there is a technical problem with them,
as the hon. Member for Battersea mentioned; namely, that it is a bit
odd to make the legality of a prosecution subject to the opinion of the
commission itself. I presume the Government will point that out.
However, that technical defect does not take away from the important
principle that crimes of negligence are difficult to justify. The
question is under what circumstances should a negligent act—an
unreasonable failure that was not intentional—be criminal? That
should be the case only in exceptional circumstances. I have spent much
time in other circumstances trying to argue against the imposition of
the criminal law for negligence.
That brings
us back to the question of what is the intention behind schedule 1? It
should be made clear that the amendment applies only to the schedule 1
requirements; it is not meant to cover the whole of PPERA. In other
parts of PPERA, there are serious offences—for example, section
61 relates to the evasion of restrictions on donations. Those offences
are made explicitly dependent on someone knowingly, or intentionally,
doing something. The amendment applies only to failing to comply with
requirements under schedule 1, which, apart from the aspects of
investigating criminal offences, is about inspection and audit. That
was the point of our debate last week. Schedule 1 is not really about
the heavy criminalisation of political parties or those involved with
them; it is about regulation, inspection, audit and getting
compliance. Ultimately, at some point we
need—I think I said this last week—to have some sort of
criminal back-up for those kind of powers. However, that should not be
heavy-handed. How the amendment has been drafted might not be quite
correct, but I am confident that if the intention of the hon.
Gentleman’s amendment were to be inserted into the Bill, it
would improve it and make it clear that schedule 1 is more about
regulation and audit than
criminalisation. Mr.
Djanogly: In principle, we support amendments Nos. 118 and
119 tabled by the hon. Member for Battersea. He talked about them fully
and eloquently. The hon. Member for Cambridge considered the clause
from the point of view of putting negligence into a criminal context
and whether that is right in the context of the Bill. That is an
important argument to have had; he made a good point. However, I shall
consider the measure in its criminal context.
A basic tenet of UK criminal
law is that to be guilty of an offence, the person must have both the
mens rea and the actus reus, as prescribed in law. In short, that
relates to the mental decision to commit the crime and the physical act
of committing the crime. If we consider the offence that the amendment
would deal with, we can break it down into the mens rea and the actus
reus. The offence is the failure to comply with investigation
requirements. The mens rea is the decision not to comply and the actual
non-compliance is the actus reus. The amendment would carve out a
defence that acts on the mens rea element of the crime. It seeks to
clarify that a positive decision not to comply is necessary for the
individual or group to be found guilty of the offence. It is not
sufficient for the document to have slipped down a crack in the desk;
rather, it must have been placed there with the intention of
concealing it.
It must be
said that the Electoral Commission does not support these amendments,
as it believes that the provision in paragraph 12(1) is relevant. That
provision is that there is an offence only if it is done
“without reasonable excuse”. That point has been debated,
not least by the hon. Member for Battersea. The other difference is
that his amendment applies to the Act whereas paragraph 12(1) applies
only to schedule 1 of the Act, so his principle is much wider, but just
as important for that.
It would be
helpful if the Minister could explain what might constitute a
reasonable excuse in the context of these amendments and the difference
between them. However, the Government need to take heed of these
amendments. Not only are they sensible but they show the breadth of
concern that exists about the Bill and many of its new powers, and also
the ease with which volunteers and junior party officials could fall
foul of its provisions in what would be a very costly way. To that
extent, we would be minded to support amendment No. 118 in a
Division.
Mr.
Wills: Of course I understand all the concerns that have
been raised here. I hope to reassure the Committee that it will not be
necessary to press amendment No. 118 to a Division, but if my remarks
do not reassure the Committee I am perfectly happy to look at this
issue again. However, we have already looked at it quite
carefully.
Nobody wants
to pass into law something that would make politicians liable to be
needlessly subjected to sanctions for what are genuine oversights. My
hon. Friend the Member for Battersea gave some good examples of how
such oversights might happen and to make politicians liable for them is
certainly not the intention of this
measure.
Mr.
Djanogly: The Minister will appreciate that this measure
goes much further than
politicians.
Mr.
Wills: Of course I do. No one should be needlessly
subjected to sanctions for what are genuine oversights; that would go
against the spirit of the Bill. We have made it clear all along that we
do not want to put onerous burdens on volunteers who are performing a
public service in the spirit of public duty.
So, we have
to be careful about this measure and we have looked at it carefully. I
start by reminding my hon. Friend that it derives from the 2000 Act and
not from the 1983 Act, which is based on a different model. With all
respect, we should not go back to the 1983 Act. We moved on with the
2000 Act, so we must look at starting from 2000 rather than
1983.
Most of the
offences in the 2000 Act are worded to provide that a person commits an
offence if he or she does something, or fails to do something,
“intentionally or recklessly” or “without
reasonable excuse”. In cases where a person inadvertently
breaches the law, in the way that my hon. Friend has mentioned, it will
rarely be the case that an offence of the type outlined in the 2000 Act
will have been committed. Accordingly, whether this amendment is
necessary hinges to a large extent on the extent to which the
“reasonable excuse” defence allows for honest mistakes to
be judged a “reasonable excuse”.
I hope that I
can reassure my hon. Friend that this amendment is not necessary. There
are two principal types of offence in the 2000 Act. One is where
someone does something “recklessly or intentionally” and
the other is where an offence is committed if something is done
“without reasonable excuse”. The former case is where
someone intentionally does something wrong or should have known that
what they were doing was wrong but went ahead and did it anyway. That
sort of behaviour is not what this amendment would appear to be
concerned
with. The
second category offence is where a person commits an offence if he or
she did something “without reasonable excuse.” That is
what the amendment is concerned with. There is nothing in the 2000 Act,
or in the Bill to require law enforcement agencies or the commission to
investigate or sanction apparent breaches of the rules. In all cases,
the provisions are permissive. Where the commission is satisfied that a
breach was genuinely inadvertent, it may not always be in its interests
to use its powers and resources to conduct a full investigation or to
sanction that person. That will be a matter of discretion. That is
why—if the hon. Member for Huntingdon will forgive me—I
will not take up his offer to specify the circumstances in which action
will be taken. That is a matter for the commission, and we must trust
it to use its judgment appropriately. To some extent, it would still
have to do that under the amendments.
If a person
has claimed on several occasions to have forgotten to comply with a
significant request from the commission, we might expect it to be more
sceptical about the claim of an “honest mistake”, than it
would be in the case of someone who had failed to comply for the first
time about a less significant request that was easier to forget
about.
Martin
Linton: My right hon. Friend says that the commission is
under no obligation to proceed against somebody in cases of an
unintended error or an honest mistake. However, under the current law,
there is nothing to stop it from doing so. As he says, it is a matter
of discretion. I have heard of cases where the commission has proceeded
against somebody, even though there has been no suggestion of an
intention to deceive or an act of bad faith. I am concerned about
that.
Mr.
Wills: I understand my hon. Friend’s point. The
commission has said that it will write to the Committee, setting out
its intention to take a risk-based approach to regulation. That ought
to militate against the kind of risk that he has outlined, where cases
will be pursued that are not in the public interest or, in particular,
that are disproportionate. Following that letter from the commission,
if the Committee and my hon. Friend are still concerned, we will be
happy to look at the matter again. I hope that that will reassure him.
We want to reassure everybody involved in politics that the kind of
disproportionate action that he is concerned about, does not take
place.
Dr.
Whitehead: My right hon. Friend has made a kind offer for
the Committee to receive communication from the Electoral Commission
about its intentions in this matter. Has he considered that redress for
an act by the commission in respect of a fine imposed under the
schedule, appears to be an appeal to a county court subsequent to
action taken by the Electoral Commission, if that act is felt to be
unreasonable? The amendment suggests that relief may be obtained before
the Electoral Commission’s action. Therefore, the long process
that might be started even if the eventual outcome is clear, could be
averted. Would a communication from the Electoral Commission reflect on
that, or would it reflect only on the extent to which its actions are
reasonable or otherwise, even if they could still subsequently be
tested in the courts?
Mr.
Wills: I understand my hon. Friend’s concerns, but
there is another side to that matter, to which I will return. In the
opening sitting, the hon. Member for Cambridge said that we should
steer between two poles. I agree with that and I will address that
particular point.
There is no
way that we can avoid having the Electoral Commission make those
judgments. Sometimes people who engage in political activity will have
to go through that process, and we cannot avoid it. I understand my
hon. Friend’s concern and the concerns of other hon. Members
about trying to strike a slightly different balance, and that is what
we seek to do.
If, following
the Electoral Commission’s communication to the Committee about
its planned risk-based approach, the Committee still has deep concerns,
I will return to the matter, but I want to explain the other side,
because
it is important to remember that as we deliberate we have a duty to look
to the public and their confidence in the way in which we do our
business. 9.45
am We
must strike a balance between the two. Of course, we do not want to run
the risk that my hon. Friend the Member for Battersea so graphically
outlined. That would be in no one’s interest, it would not
generate public confidence, and it would discourage people from taking
part. However, we must remember that if we allow someone to escape
liability on the basis of an honest mistake, that could—not
would, but could—give carte blanche, and encourage people to be
ignorant of the law and to feel that they can take risks with their
observance of the duties to which they should be properly subject. That
would not help to inspire public confidence in our political system,
and is not that sort of defence.
In contrast,
the defence of reasonable excuse that we have put in allows someone to
say that they forgot to comply, and why. There is a defence for the
sort of behaviour that my hon. Friend described. If they have a good
reason, they will not be liable, and the sort of cases suggested by my
hon. Friend would fall into that category.
David
Howarth: Will the Minister give
way?
Mr.
Wills: Let me finish my point, and then I will give way
because I know that my hon. Friend the Member for Battersea also wants
to intervene. I shall give way to him first, and then to the hon.
Gentleman. If
mere forgetfulness is allowed to pass every time with no sanction, of
course the controls will fall into disrepair over time, and that is in
no one’s interest, not least because it is difficult to prove
whether someone who says that they genuinely made a mistake and forgot
actually did
so.
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