Political Parties and Elections Bill

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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.
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.
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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.
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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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Prepared 14 November 2008