Political Parties and Elections Bill


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Martin Linton: I thank my right hon. Friend for the full consideration that he is giving the matter. My hon. Friend the Member for Southampton, Test makes an important point about timing. If there is an allegation of impropriety against an elected representative, the Electoral Commission will consider it, perhaps for months. During that period, they may have the press camped on their doorstep, the local and national papers may be full of speculation about the outcome of the investigation, and their surgery may be picketed by the press or the public just because there is a suspicion. None of us is arguing against due process. We all want the guilty to be punished and the innocent not to be prosecuted, but because of the nature of the offences a process that gets to the truth quicker might be better for all concerned.
An elected representative, treasurer or whatever who finds that they have omitted to declare something that should have been declared six months previously may think, “Oh my God, I shall have to take this to the Electoral Commission.” Their life will be on the line while the commission considers the matter, and if it decides, even without evidence of ill faith, to refer it to the Crown Prosecution Service, speculation will build up over many months. Surely, it is better for that person to be able to go to the court and seek relief before the process gets under way.
Mr. Wills: I will happily address that point, but before that I give way to the hon. Member for Cambridge.
David Howarth: My point goes back to what the Minister said about undermining the process if there were no possibility of prosecuting other than for intentional offences. The amendment would simply require an extra step by the commission. Instead of just saying what the requirement is, and leaving it at that, so that if the person who is subject to the requirement forgets to comply they will be in danger of committing an offence, the commission would have to write again to that person and say, “You must comply now; otherwise, you will intentionally be disobeying the commission and breaking your obligations.” All that is required is that extra, more specific step for the commission. In the interests of fairness, the commission should be required to do that before someone is prosecuted for a criminal offence.
Mr. Wills: There are two separate points here. First, on timeliness, I understand the Committee’s scepticism about some of the delays that might occur, given the Electoral Commission’s history to date. That is a fair point, and I am happy to ask the commission to include a comment about timeliness in the letter that it has said it will write to the Committee. I believe that it is due this week or possibly at the beginning of next week. I would ask the Committee to consider that letter and the way in which it addresses the particular concerns about the risk-taking approach, which ought to be a mitigation of the kind of risks that have been described, and also timeliness. All regulatory bodies, including the commission, ought to act in a timely fashion. If they do not, they have problems of their own.
I am not sure that I share the interpretation of the amendment given by the hon. Member for Cambridge. The amendment may introduce an extra step, but that will not actually deal with the problem. In the end, the commission will still have to make a decision. A concern that I have not yet addressed, because I do not want to diminish the real concerns that the Committee obviously has, is that by accepting the amendment, we might push the commission to make a judgment on the good faith of a person who protests that he made an honest mistake.
It is important that the commission act proportionately. That is the essence of a risk-taking approach. The kind of occasion that my hon. Friend the Member for Battersea described must fall within that requirement. It cannot be thought proportionate to go through the whole process for a return that is a few days late. That would not be proportionate or consistent with a risk-taking approach, in my judgment. That cannot be the case—it would not fall within the intent of the Bill. However, it is something that we will have to leave to the commission.
The Government have considered the matter. Given that we believe that the 2000 Act controls allow for an honest mistake to be taken into account, we must be extremely careful about creating a charter for widespread avoidance, whereby the controls could be avoided without a person having to demonstrate that there is a good reason why they were unable to comply. That might be the case if the amendment were to go through. We do not allow that in other contexts—for example, in respect of tax returns—and I am not convinced that we should take a different approach in this case. However, as I said, we must ensure that people are not penalised unnecessarily. That is in no one’s interest, and it would go against the spirit of the Bill.
There is no compulsion on the commission to sanction breaches. That has been said many times, and it is well aware of that. The element of a reasonable excuse definitely allows the commission or the court to be lenient if they judge that a genuine oversight rather than an intentional obstruction has taken place, and that applies from the start of the process. There is no requirement to take someone through a public process with the kind of deplorable consequences that my hon. Friend described.
We must be careful about this. Everything should be proportionate, and each case must be judged on its merits. It might be proportionate to take action in respect of late reporting of even a few days if a large sum of money were involved, but I do not think that it would be proportionate in the kind of cases to which my hon. Friend referred. It is a matter for the commission to decide.
Mr. Turner: The Minister appears to be saying that if the offence is minor, we will let it through. The issue is whether an offence was committed, not whether it was big or small. Either a criminal offence was committed or it was not.
Mr. Wills: I am happy to respond to that point.
Mr. Djanogly: The Minister keeps saying that it is important that the commission has the right to take decisions, but the words
“if, in the opinion of the Commission”
in the amendment mean that it does not take away the commission’s ability to take a view.
Mr. Wills: Let me deal first with the point that the hon. Member for Isle of Wight made. What he says is right, but the question is whether the commission should take action against the breach and apply a sanction, or accept that there was a reasonable excuse for committing it. That is the point of the measure.
On the hon. Member for Huntingdon’s point, that is precisely what I was saying. The amendment does not get away from the need for the commission to make judgments. It would introduce a different test, which, for the reasons I have given, we think less satisfactory. We accept that there are concerns about the measure and the commission is aware of those concerns. It will be even more aware of them after it reads the Hansard of these proceedings. It has said that it will write, and we hope that the commission’s letter will reassure the Committee regarding these points. I therefore hope that the amendments will not be pressed today, and I will be happy to return to this issue later if the Committee still has concerns.
Martin Linton: In view of the flaw in the amendment and the Minister’s assurances, I am happy to withdraw it, although we might return to this issue on Report. I beg to ask leave to withdraw the amendment.
Hon. Members: No.
Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 10.
Division No. 5]
AYES
Djanogly, Mr. Jonathan
Duddridge, James
Howarth, David
Laing, Mrs. Eleanor
Reid, Mr. Alan
Turner, Mr. Andrew
Wishart, Pete
NOES
Ainger, Nick
Grogan, Mr. John
Hesford, Stephen
Kidney, Mr. David
Linton, Martin
Lloyd, Tony
Lucas, Ian
Sharma, Mr. Virendra
Whitehead, Dr. Alan
Wills, rh Mr. Michael
Question accordingly negatived.
Mr. Wills: I beg to move amendment No. 125, in schedule 1, page 19, line 6, at end insert—
‘Guidance by Commission
(1) The Commission shall prepare and publish guidance as to—
(a) the circumstances in which the Commission are likely to give a notice under paragraph 1 or 2(2);
(b) the consequences (including criminal sanctions) that may result from a failure to comply with such a notice;
(c) the circumstances in which the Commission are likely to exercise their power under paragraph 1(5);
(d) the procedures to be followed in connection with questioning under paragraph 2(4);
(e) the circumstances in which the Commission are likely to apply for a warrant under paragraph 3;
(f) the principles and practices to be applied in connection with taking possession of, or taking other steps in relation to, documents that appear to be ones to which paragraph 3(2) applies;
(g) the principles and practices to be applied in connection with the exercise of powers under paragraphs 4 and 5;
(h) any other matters concerning the exercise of powers under this Schedule about which the Commission consider that guidance would be useful.
(2) Where appropriate, the Commission shall revise guidance published under this paragraph and publish the revised guidance.
(3) The Commission shall consult such persons as they consider appropriate before publishing guidance or revised guidance under this paragraph.
(4) The Commission shall have regard to the guidance or revised guidance published under this paragraph in exercising their functions.’.
The Chairman: With this we may discuss the following: Government amendment No. 126.
Amendment No. 14, in schedule 1, page 19, line 6, at end add—
‘13 The Commission shall lay before Parliament, on a quarterly basis, reports specifying how it has exercised its powers under this Schedule.’.
As the guidance will be published and the commission is required to have regard to it in exercising its functions, the amendment will ensure that regulated individuals and other persons who may be subject to the commission’s investigatory powers are aware of the manner in which those powers will be used. In addition, if the commission departs from that guidance by using its powers without objectively justifiable reasons, its actions could be judicially reviewed in the courts.
10 am
We believe that the amendment is necessary to address the concerns expressed on Second Reading about the lack of certainty on how the commission will exercise its new powers. We hope that the Committee is reassured by the amendment, and we will work with the commission with a view to ensuring that its guidance is produced before its investigatory powers are commenced. We understand that the commission is already starting work on the guidance required by the Bill and will publish it as soon as possible.
Amendment No. 126 will require the Electoral Commission to report, in the annual report that it lays before Parliament, on its use of the investigatory powers in proposed new schedule 19A to the 2000 Act, which is in schedule 1 of the Bill. That will make the commission directly accountable to Parliament for each case in which it uses its investigatory powers. However, it will not require the commission to report any information that, in its opinion, is inappropriate for inclusion because that would be unlawful or would prejudice a continuing investigation. That is important, because it would be undesirable to oblige the commission to reveal details of continuing investigations. To do so would undermine the prospect of a successful outcome.
I hope that the Committee will welcome the amendment, because it is intended to address the understandable concerns that were raised on Second Reading. I hope that it will also help to allay Members’ concerns about the possible misuse of the powers, some of which have been expressed today. The Bill already includes a similar provision requiring the commission to report from time to time on the use of its sanctions.
Mr. Djanogly: Government amendment No. 125 will insert a new sub-paragraph into the schedule, placing a duty on the commission to publish guidance on its proposed use of the powers in the schedule. Hon. Members will note the overlap between that and our amendment No. 14, although I hasten to add that the Government amendment is significantly more comprehensive. I will therefore stick to the Government amendment for the purposes of the debate.
We welcome the amendment, as it will add much-needed clarity and certainty to the process. The Bill is extremely complicated and places significant burdens on those in the party structure, who are often volunteers and would disproportionately bear the penalty for any breach. Guidance is therefore essential to determine where, when and how the commission will interpret the law and what it expects from individuals or groups in complying with its provisions.
I note that the Electoral Commission welcomed the amendment in its latest paper, noting that it parallels the need for guidance on its civil powers set out in paragraph 25 of schedule 2. In the Committee’s second evidence session last week, Peter Wardle, the chief executive of the commission, highlighted its own emphasis on the need for guidance:
“There are lots of questions about the Bill at the moment. We are already beginning to try to work out what our guidance would look like and we would hope to have that guidance in the public domain by January. I do not think that it is possible to get anything useful and in detail in the public domain before then.”[Official Report, Political Parties and Elections Public Bill Committee, 6 November 2008; c. 47, Q113.]
Does the Minister agree with the Electoral Commission’s position on the timing of the guidance? Perhaps he will give us an update on the timing issue.
Government amendment No. 126 will place a reporting requirement on the commission to act as a check and balance on the use of its investigatory powers—a self-auditing requirement. We certainly support that principle, and the amendment somewhat copies our own amendments Nos. 61 and 62 on civil sanctions under schedule 2. The requirement to report in a publicly accessible fashion is an important tool in ensuring the fair and proportionate application by the commission of its powers. The opportunity for media and public scrutiny cannot be downplayed and should act as an impartial way for performance to be monitored and any possible over-zealous activities of the commission checked on.
We are concerned about the extent to which the process might be used to name and shame. It is not that that would necessarily be wrong in all situations, but it should not be used in respect of minor situations. Will naming and shaming be for only bad cases or is it the intention to mention names in respect of every investigation, even perhaps where investigations do not lead to charges, let alone convictions? It would be helpful if the Minister elaborated on the proposals in that regard.
The Electoral Commission, in a note provided yesterday or a couple of days ago, came at this matter from a slightly different viewpoint:
“In principle the Commission supports Government amendment 126, requiring us to publish information on the use of our supervisory and investigative powers in our annual report. Sub-paragraph 3 of the amendment enables the Commission to omit from such reports information that it could be unlawful to include, and information that might adversely affect any current investigations or proceedings. We believe it is also important that we should not be required to include information that would enable the identification of subjects of specific supervisory or investigation activity, since this may be prejudicial to individuals and organisations who are asked for information on a routine basis, or where an allegation is investigated by the Commission and found to be groundless.”
That is the same point that I have made in relation to whether people should be named or not, but it is made for a different purpose. It would be helpful if the Minister addressed that issue.
 
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Prepared 14 November 2008