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.
Question
put, That the amendment be
made:— The
Committee divided: Ayes 7, Noes
10.
Division
No.
5] 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.’.
Mr.
Wills: I shall deal with the Government amendments first.
Government amendment No. 125 will impose a duty on the Electoral
Commission to publish guidance
on its use of investigatory powers. It specifies the information that
must be set out in guidance. We will also impose on the commission a
requirement to consult such persons as it considers appropriate before
publishing guidance or revised guidance. Those provisions will help to
ensure that guidance is comprehensive and covers all relevant aspects
of the commission’s investigatory powers.
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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