Political Parties and Elections Bill

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Mr. Djanogly: No. I made it quite clear at the start of my remarks that we support a proportionate civil response procedure. That does not mean that we should not look at how the Government came up with that procedure, whether it fits the Bill exactly or whether lifting it is adequate.
David Howarth: I do not think that is an explanation of the hon. Gentleman’s implied attack on what the commission is doing, which was wrong. The commission is correct to say that it has lacked proper flexibility in what it can do in the light of breaches of the legislation. It needs greater flexibility, and it is right that the kind of regime that is applied in other areas of regulation is at least the starting point for dealing with such breaches.
The hon. Gentleman is perfectly entitled to ask questions about specific examples and particular sanctions. It is clear that the reason for the proposal is the applicability to this area of what is now the normal way of dealing with regulatory sanctions. That seems perfectly proper and I support the clause.
Mr. Wills: When we published the White Paper on party funding on 16 June 2008, we announced our intention to legislate to make the Electoral Commission a more effective regulator. An important part of achieving that aim is to provide the wide range of more flexible civil sanctions set out in the clause. Empowering the Electoral Commission better to fulfil its mandate of regulating the political field has been the subject of numerous independent reviews. It was recommended in the 2007 Committee on Standards in Public Life report, and it was supported by the Sir Hayden Phillips report on party finance and expenditure.
There was a strong and emerging consensus that, under the new approach, the commission should be a proactive regulator and that there must be civil sanctions that can be applied directly so that the commission can enforce the framework laid down in the 2000 Act more effectively.
We looked at international comparisons and jurisdictions, and we decided that UK domestic experience was more important, so we largely transposed the 2008 Act, although we have tailored it where we thought that appropriate. The stop notices that we have been discussing, for example, show how we have tailored its provisions.
The hon. Member for Huntingdon talked about the perceived need for the proposal, and wondered about the unwillingness of the Electoral Commission to prosecute, but the Electoral Commission does not prosecute—the CPS does. We cannot blame the Electoral Commission for not proceeding in an area in which it does not have competence to do so. I refer to schedule 2 in this stand part debate because its detail supports and is linked to clause 3. Clause 3 substitutes section 147 of PPERA and gives effect to a proposed new schedule—19B—which is set out in schedule 2 of the Bill.
The clause and schedule give the Electoral Commission access to a flexible range of civil sanctions that may be imposed in relation to certain offences and contraventions under the 2000 Act. Proposed new schedule 19B sets out the range of new civil penalties available to the commission when it is able to apply those sanctions. It also sets out to whom they may apply and what appeal processes are available to an individual or organisation subject to a sanction. The civil sanctions made available mirror those set out in the 2008 Act: fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings.
The hon. Gentleman asked, as he often does, why the Bill is not tackling electoral fraud. He knows that we take this matter—it is a problem—as seriously as anybody else does.
Mr. Djanogly: The Minister does not take it as seriously as us, otherwise he would have put provisions in the Bill.
Mr. Wills: With all respect, the hon. Gentleman needs to recognise the fact that not every Bill has to tackle every single issue. As he well knows, we have already taken significant measures to deal with electoral fraud. I hope that he will now tell me what measures we have reasonably taken, because he persists in intervening and making statements that suggest that he is completely unaware of them. Can he tell us?
Mr. Djanogly: I repeat that witness after witness came to the Committee a couple of weeks ago saying that the Bill should deal primarily with electoral fraud.
Mr. Wills: With respect to the hon. Gentleman, he may be referring to the evidence of Sir Christopher Kelly. If he bears with me, I will read out exactly what was said. [Interruption.] All right, the hon. Gentleman does not want to hear it, but I will address the point directly. As he cannot tell us what measures we have taken, let me mention some of them.
We have introduced a system of personal identifiers for postal voters to ensure that postal votes counted in an election are valid. The evaluation reports produced by the Electoral Commission on elections in 2007 and 2008 show a reduction on previous years in the number and scale of allegations of electoral offences. The reports concluded that the action taken had a positive impact on the safety and security of the electoral system.
All I can say to the hon. Gentleman is that of course we take these matters seriously. We cannot be complacent about any instance of electoral fraud. We have taken action, are taking action and will do so in future should it be necessary. The Electoral Commission reports seem to suggest that the actions we are taking are proving effective. That is not to say that we will not return to the matter in future legislation. However, we are dealing with important measures in this Bill, and as the entire Committee will be aware, they are causing considerable concern and are taking considerable time. It is important that we deal with them properly.
So far, the hon. Gentleman has not suggested for one second that any single measure in the Bill is unimportant and should not be dealt with.
1.45 pm
Mr. Djanogly: I hope that the Minister thinks that we are dealing with the measures in the Bill. I have been taking the Committee seriously. I want to return to the single measure that the Minister claims to have brought in to deal with electoral fraud—the introduction of personal identifiers. Yes, that measure ended up with the introduction of signatures, but that can hardly be called significant in the context of what should be done, which is to use national insurance numbers.
The Chairman: Order. In my normal charitable way, I have allowed a debate on a subject that is not relevant to clause 3. I ask both speakers to bring this point to a close. There will be an opportunity to return to the subject later.
Mr. Wills: I am sure that the hon. Member for Huntingdon will seek to repeat his refrain frequently. When we return to the subject, I hope that Opposition Members remember what I have had to say and the conclusions of the Electoral Commission, and that they read the evidence with more care than they appear to have used so far.
I was endeavouring to respond to comments, but I will now address clause 3. As members of the Committee will be aware, the Bill does not set out which offences under the 2000 Act could attract civil sanction in lieu of criminal prosecution. That will be done through secondary legislation. I believe that the new powers will allow the Electoral Commission to become a more robust and effective regulator, enabling it to intervene more rigorously when the rules of the 2000 Act are not observed.
Question put and agreed to.
Clause 3 ordered to stand part of the Bill.

Schedule 2

Civil sanctions: Schedule to be inserted into the 2000 Act
Mr. Djanogly: I beg to move amendment No. 31, in schedule 2, page 19, line 17, leave out subsection (b).
The Chairman: With this it will be convenient to discuss the following amendments: No. 32, in schedule 2, page 19, line 24, leave out subsection (b).
No. 33, in schedule 2, page 19, line 31, leave out subsection (b).
No. 34, in schedule 2, page 19, line 38, leave out subsection (b).
No. 1, in schedule 2, page 20, line 25, at end insert
‘and may by notice require the Commission to withdraw the notice and pursue the matter as a criminal offence under the relevant provisions.’.
No. 71, in schedule 2, page 21, line 25, leave out paragraph 4.
No. 72, in schedule 2, page 21, line 37, at end insert—
‘(3) Nothing in this paragraph prevents any criminal proceedings being taken for any other offence under this Act or any other Act.’.
No. 46, in schedule 2, page 24, line 24, leave out paragraph 8.
No. 47, in schedule 2, page 24, line 33, at end insert—
‘(3) Nothing in this paragraph prevents any criminal proceedings being taken for any other offence under this Act or any other Act.’.
No. 56, in schedule 2, page 29, line 29, leave out paragraph 20.
Mr. Djanogly: This schedule specifies the various civil sanctions proposed in the Bill. The amendments relate to paragraphs 1 and 5 of proposed new schedule 19B to the 2000 Act, which schedule 2 of the Bill introduces. Part 1 is entitled “Fixed monetary penalties”. The commission is empowered to impose a fixed monetary penalty on the person, registered party, recognised third party or permitted participant if it is satisfied beyond reasonable doubt that an offence under PPERA has been committed or, more loosely, that there has been a contravention of a requirement imposed by that Act. Paragraph 1(6) of the proposed new schedule states that where an individual is issued with a fixed monetary penalty for an offence, that could be
“punishable on summary conviction by a fine”.
Any penalty must not exceed the maximum of that fine.
A person who has been served with a fixed penalty notice may appeal in writing to the commission within 28 days. The recipient also has the opportunity to discharge their liability by payment of a sum less than or equal to the full penalty. After that 28-day period, the commission must decide whether to impose a penalty—in which case a further notice will served—or not to proceed if it is no longer satisfied that an offence has been committed. If the person is served with a fixed penalty, they may appeal to a county court against the decision.
Amendments Nos. 31 to 34 and Nos. 73 to 76 are probing and seek they clarification on the Government’s use of the words “prescribed restriction or requirement” and
“by virtue of this Act”
in paragraphs 1 and 5 respectively. The latter amendments are essentially consequential on the former, as the same wording is applied to discretionary requirements as to fixed penalty notices.
Those two civil sanctions form the core of the new flexible powers that the commission will be granted under the Bill to enable it to deal with enforcement in a more flexible and proportionate manner. Fixed penalty notices require a person, a registered party, a recognised third party or a permitted person to pay an amount, specified in the notice, to the commission as a penalty for an offence under PPERA. Likewise, a discretionary notice places such persons under a duty to comply with a requirement placed on them by the commission to avoid further penalties.
We are slightly concerned at such broad terms and at the loose manner in which they may be interpreted by the commission. This is a complex and difficult area of law to understand and legislate on—that has been self-evident in our proceedings—and we believe that the drafting of these paragraphs is too broad. The possibility for wider interpretation makes the possibility of abuse high.
We should ensure that we clearly set out the parameters of the powers and the circumstances in which they may be used—not necessarily for the current commission, which has been privy to much of the debate, but for the commissioners of the future, who might not be so rational in their use of the powers.
We are having this discussion because of the broad remit given to the commission in previous legislation. In the past, there has been a tendency to interpret the commission’s broad powers as an invitation to limit its role as a regulator. We must ensure that we give the commission a precise and coherent pointer as to its role. Unfortunately, that is not the case with the drafting of these measures.
The lack of clarity also impacts on implementation. How can the individuals, groups and associations covered by the powers be expected to know what they should or should not do? They could be penalised if they get it wrong. The phrase
“a...requirement...by virtue of this Act”
is simply too opaque for practical purposes.
We also fear that the drafting may produce several unwanted outcomes. A less scrupulous commission could see it as giving free rein to use the powers, if it can squeeze its actions in under the broad headings. Press coverage of one heavy-handed or botched case could lead to a fall in the number of volunteers, who might fear being heavily punished for small mistakes. Then, in another six years’ time, we could be forced to review the commission’s powers again in another attempt to refocus its role.
Amendment No. 71 would delete paragraph 4, which deals with criminal proceedings and convictions in relation to fixed penalties. It is a probing amendment to try to discover the rationale behind the provisions. We are not entirely convinced that it is necessarily a good course of action to prevent the use of criminal proceedings as the ultimate weapon against non-compliance with earlier civil sanctions. We are concerned that the measure is too blunt in how it addresses the issue and would like to hear the Minister’s comments.
Amendment No. 72 would insert in paragraph 4 a new sub-paragraph, which would expressly exclude paragraph 4 from preventing any criminal proceedings being taken for any other offence under PPERA, or any other Act. The amendment is a consequence of our probing of this provision with amendment No. 71 and it would ensure that there was no confusion or possible grounds for a person to wriggle out of the offence.
There are a number of different offences relating to elections and political funding, not least in the Representation of the People Act 2000. Our amendment would make it clear that there was no overlap that would prevent a person from being prosecuted under such Acts where relevant. We should be careful not to encroach accidentally on other Acts, thereby reducing their punitive effectiveness or the offences under them.
Amendment No. 46 would strike out paragraph 8, although it is probing. Paragraph 8 deals with the imposition of criminal convictions for offences that have also involved the award of a discretionary requirement penalty. The Government’s attempts to prevent double jeopardy and the possibility of double penalties could be seen as too opaque and confusing. There is no reference to any time limit for the application of the provision, nor does it cover the possibility of what happens when there is non-compliance with earlier sanctions. In addition, the carve-outs under sub-paragraph (2) seem to leave little for the provision to bite on. We would welcome the Minister’s clarification on that aspect.
Amendment No. 47 comes as a consequence of our probing amendment No. 46, and it would ensure that there was no confusion or possible grounds for a person to get out of the offence. There are a number of offences relating to elections and political funding, not least under the RPA. We have to be careful not to tie the hands of the commission when that is not necessary.
Amendment No. 56, which is also probing, would strike out paragraph 20, which deals with the extension of the time limits laid down in the schedule for the commission taking criminal proceedings. Will the Minister please shed some light on why the commission will need to extend the time for taking criminal proceedings: under what circumstances is that likely to happen? Given that the commission must be able to show beyond reasonable doubt that any sanction is required, is it not unlikely to be necessary—indeed, it might be unreasonable—to grant it additional time if it has not made full use of the investigatory powers granted to it by schedule 1? We must end investigations at some point, otherwise we will be in danger of their running on for years, which could be unfair and unjustifiable.
Finally, if the Minister can convince us of the need for the power, should it not be subject to judicial consent so as to safeguard against abuse by the commission?
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