Political Parties and Elections Bill

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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 3

Civil 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.
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