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
2Civil
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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