Mr.
Wills: I am grateful for the hon. Gentleman’s
comments. On the timing, our understanding is still that the commission
will produce its guidance for January 2009. We will seek an update from
it and if that changes significantly we will let Committee members
know.
Naming and
shaming is not intended in respect of investigations, but if sanctions
are imposed, those will, as with any criminal proceedings, be made
public.
Mr.
Djanogly: Will sanctions be made public in all cases or in
what are deemed to be significant
cases?
Mr.
Wills: We would expect sanctions to be imposed only in
significant cases and then, as with any criminal proceedings, they
would be made
known. Amendment
agreed
to. Amendment
made: No. 126, in
schedule 1, page 19, line 6, at
end
insert— ‘Information
about use of investigatory powers in Commission’s annual
report (1) Each report by the
Commission under paragraph 20 of Schedule 1 shall contain information
about the use made by the Commission of their powers under this
Schedule during the year in
question. (2) The report shall,
in particular,
specify— (a) the cases
in which a notice was given under paragraph 1 or
2(2); (b) the cases in which
premises were entered under paragraph
1(5); (c) the cases in which a
requirement was imposed under paragraph
2(4); (d) the cases in which a
warrant under paragraph
3— (i) was applied
for; (ii) was
issued; (iii) was
executed; (e) in relation to
each warrant under paragraph 3 that was
executed— (i) what force
(if any) was used to enter the
premises; (ii) whether
documents were seized; (iii)
any other noteworthy
details. (3) This paragraph
does not require the Commission to include in a report any information
that, in their opinion, it would be inappropriate to include on the
ground that to do
so— (a) would or might
be unlawful, or (b) might
adversely affect any current investigation or
proceedings.’.—[Mr.
Wills.] Question
proposed, That this schedule, as amended, be the First schedule to
the
Bill.
Mr.
Djanogly: I do not intend to speak for long, because we
have had significant debate on the schedule. However, given the number
of issues that have arisen, it is worthwhile summing
up. My
hon. Friend the Member for Chichester hit the nail on the head on
Second Reading, saying
that “the
proposals look extremely heavy handed...We cannot possibly
implement the proposals in the Bill as drafted, so we must look at them
again.”—[Official Report, 20 October 2008; Vol.
481, c. 105.]
It is entirely
understandable that the Electoral Commission’s investigatory
powers should be enhanced, but the way that the Government propose to
implement this idea is flawed. The commission’s powers to demand
the production of relevant information on pain of a fine and its
ability to search premises and seize documents must both be subject to
proper judicial control, as is the case under statutes conferring
similar powers.
We have also
uncovered, through the debates, various deficiencies in administrative
aspects of the schedule, which will need to be urgently addressed. The
Minister has said that he will discuss these issues with the Electoral
Commission. I hope that will be done urgently. Given the Bill’s
tight timetable, it would be helpful if he set out how he proposes to
do
that. The
commission will have the power to order anyone to produce any document
or give any information that it believes is relevant to a suspected
contravention of the legislation. The commission will also have the
power to fine people who fail to do so. These powers can all be
exercised without a judge being involved. The power to make orders for
the production of documents and information could be exercised without
prior notice being given to the person concerned. The only judicial
control proposed is that the person charged, prosecuted, convicted and
fined by the commission under these powers will have a right of appeal
to the court after the
event. The
commission will have extensive powers to obtain search warrants to
allow it to enter and search premises to seize documents that are
considered relevant to an investigation. Those intrusive powers, which
can cause immense damage to businesses and reputations, might be
exercised without prior notice being given to the people whose premises
are to be entered and whose documents might be
seized. There
is no requirement for the commission first to try to use its powers to
require documents to be produced before seeking a warrant. If no
attempt has been made to use those powers, there is no requirement for
the commission to explain why and satisfy the court that issuing a
search warrant is necessary. The Bill provides for these warrants to be
issued by magistrates and we are relieved that the Government have now
accepted that that aspect of the Bill needs to be reviewed. We look
forward to receiving their proposals on that. We also note the
Minister’s agreement to review aspects of the guidance process
and powers of entry. We look forward to receiving their proposals on
that,
too. Since
the last sitting, I have been approached by a Queen’s counsel
who works in the criminal law and who has been following our
proceedings. He asked why the statutory formulation for the
commission’s power of entry was not modelled on the same powers
of entry for the police under the Police and Criminal Evidence Act
1984, which have been tried and tested through the courts. Apparently,
under PACE, the warrant is issued to a constable or individual.
However, under the Bill, the warrant will be issued to the commission.
The QC to whom I spoke thought that might be wrong—in other
words, how can the commission have reasonable belief? Surely, only a
person in the commission could have such
belief. Another
matter brought to our attention during proceedings on the Bill relates
to the media. One feature of the Bill is that it gives the Electoral
Commission a power to demand information and documents from the media
and fine them for not providing it. Worse, the commission will have the
power to obtain a search warrant from a magistrate to allow it to enter
and search a media organisation’s premises and seize documents
found there.
The point was
made that there is a need to respect journalistic confidentiality and
that that is something recognised throughout Europe as a precondition
to a civilised society. Apparently, information of that kind is
expressly protected by detailed safeguards under PACE, but there are no
restrictions at all on that in the
Bill. Again,
to return to the schedule, I reiterate our agreement and support for
the improved role of the commission as a regulator. However, the devil
is in the detail in these matters and the number of amendments tabled
to the schedule shows our concern. In the Committee’s first
evidence session, Sir Hayden Phillips
said: “It
is very much up to the Committee to try to find the sorts of amendment
that will make everyone feel comfortable that the powers are not
excessive.”——[Official Report, Political
Parties and Elections Public Bill Committee, 4 November 2008; c.
32, Q79.] We
do not yet think that that position has been reached in the Bill, and
that has not been helped by the lack of preparation time—I say
that again because is it a
fact. As
things stand, we consider today and the previous sittings to have been
a good opportunity to get the issues out on the
table—particularly in relation to schedule 1. We have
had some movement from the Government in terms of amendments and what
they intend to do. The Minister’s approach in that regard is
welcome. These issues will almost certainly be returned to in later
stages of consideration and in the other place. We therefore hope to be
told at the earliest opportunity what the Government’s position
is so as to give all hon. Members and Members in the other place time
to think the matter
through. 10.15
am
Mr.
Wills: This has been a useful debate. I hope that the
Committee agrees that our proposals in respect of the schedule and the
contributions made by all hon. Members have helped to improve the Bill.
We certainly feel that they
have. This
area is difficult. There is no question but that, if the Electoral
Commission is to be the effective regulator that we all want it to be,
it must have credible powers of enforcement. We believe that the powers
broadly outlined in the schedule are designed to that effect, and we
fully accept that we have to be extremely sensitive in how we move
forward with
them. As
originally drafted, the Bill had a significant number of safeguards. In
our view, they were much more balanced and proportionate than the
powers available to the commission under the 2000 Act, but we have made
further progress. For example, we have signalled our willingness to
have a higher degree of judicial oversight, as we have that the chief
executive should approve the application of some of the
powers. I
make it clear that we regard the power to enter premises very much as a
last resort. In most of the cases that we have discussed, we have
talked about extreme circumstances. We see the powers as much as a
deterrent as a backstop enforcement
measure. The
hon. Member for Huntingdon asked why the powers are not based on PACE.
It is precisely because they are based on the Regulatory Enforcement
and Sanctions Act 2008, which governs similar regulators such as the
Health and Safety Executive and the Financial Services Authority. We
thought that that was an appropriate
model. As amended, the powers are not exactly the same as those under
the 2008 Act, but they are based broadly on it. I hope he is reassured
by my
explanation. The
Electoral Commission has to request the documents before it can apply
for a warrant. It cannot use the powers under paragraph 3 without
having taken that first step. I do not want to take up much more of the
Committee’s time. We have a lot to get
through.
Mr.
Djanogly: I would appreciate it if the Minister addressed
my point about the media, which concerned there not being an exclusion
in respect of investigatory powers and the media, as there is under
PACE.
Mr.
Wills: As I have said, there is no desire for those
engaged in political activity to go through the public exposure to
which my hon. Friend the Member for Battersea referred. It is not
necessary to change the provisions in that
respect. Mr.
Turner: My concern is different. Let us suppose
that there is a knock on the door and someone is standing in the
passage waiting to enter the house, and that the person inside the
house does not know the law. Will the person inside the house know that
they have the right to say no or will they be inclined to let the other
person into the house, so the commission will then have the right to
find things that otherwise it would not have been able to
find? Will
the person who wants to enter the premises explain to the person inside
his rights, or will the representative of the commission simply assume
that the other person knows the law and go into the house not needing a
warrant? That is the
difference.
Mr.
Wills: I gave way to the hon. Gentleman because I assumed
that he would make a similar point to that made by the hon. Member for
Huntingdon. If I may, I shall finish responding to the previous point
before I come on to the issue raised by the hon. Member for Isle of
Wight. I
was hoping to reassure the hon. Member for Huntingdon on the media
question. The circumstances are not analogous, for all the reasons that
I have given. However, as I said, if there are still genuine concerns,
I am happy to consider them. If the hon. Gentleman has a particular
view on how the matter should be handled, I would be happy to talk to
him and, if necessary, table amendments on Report. We do not think that
will be necessary, but I will consider suggestions from him or anyone
else. I
understand the concerns raised by the hon. Member for Isle of Wight. Of
course the circumstances should be explained to the
person. This
has been an important debate. We have had to strike a balance between
giving the commission sufficient powers to act as a credible
investigator—I believe the Committee agrees that that is
important—and putting appropriate safeguards in place. We
believe that the Bill now contains those safeguards, but, as I said
before, I am happy to address any remaining
concerns. Question
put and agreed to.
Schedule
1, as amended, agreed to.
Clause
3Civil
sanctions
Mr.
Djanogly: I beg to move amendment No. 85, in clause 3,
page 2, line 26, at end
insert— ‘(1A) The Secretary
of State, after consulting the Electoral Commission, shall make an
order that specifies what discretionary requirements may be imposed by
the Electoral Commission under Part 2 of Schedule
19B.’.
The
Chairman: With this it will be convenient to discuss
amendment No. 77, in schedule 2, page 22, line 26, leave out
from ‘requirement’ to end of line 39 and
insert ‘such requirements
as specified by virtue of section
147(1A).’.
Mr.
Djanogly: Clause 3 deals with the new civil sanctions
regime, and so we move to a new aspect of the Bill. Amendment No. 77
and its consequential amendment, amendment No. 85, are probing. They
would delete paragraph 5(5) of schedule 3, which defines what is
considered a discretionary requirement for the
commission. The
aim of the amendments is to strike out the definition of what can be
considered a discretionary requirement that may be imposed by the
commission under part 2 of schedule 2 so that a further review can be
undertaken of what discretionary requirements it is appropriate for the
commission to
impose. I
shall raise our concerns about the wholesale adoption of the Macrory
review proposals in the Bill during our discussion on clause 3 stand
part, but I have to say at this early stage that we are not convinced
that the Government have got this right, in the same way that we remain
to be convinced in respect of schedule 1. We believe that there is a
need to review what is meant by “discretionary
requirement”. The
definition in paragraph 5(5) is very broad. Phrases such as
“such amount”, “such steps”
and “within
such period as they may
specify” are
vague and offer no guidance to the commission or safeguards to those
who are subject to such
requirements. It
is inadvisable to have a penalty regime without parameters or guidance:
not only could it be less workable
in practice, but it offers the potential for abuse of power by the
commission. There would be a real problem if we ended up with a public
perception that the party finance and electoral system regulator was
worse than the system it was there to regulate. We support in principle
the idea of flexible sanctions, but not at the cost of proportionality
or
reason. | 
