Nick
Ainger: Amendment No. 1 might seem to be a complete
contradiction of the argument that I was advocating earlier when we
were trying to prevent a move towards criminal sanctions rather than
civil sanctions. However, it seems that the process under schedule 2
means that an individual who believes himself to be innocent of a
charge brought by the Electoral Commission has to go through a long and
drawn-out process, and that no alternative to that process is set out
in the
schedule. My
amendment suggests that an individual can make a representation to the
Electoral Commission and
may “by
notice require the Commission to withdraw the notice and pursue the
matter as a criminal offence under the relevant
provisions.” Having
an alternative provision to the procedures under the schedule could
deal with one of the issues raised by the hon. Member for Huntingdon.
Many people are concerned about the fact that someone might be accused
of an offence and, that a long time will be taken to resolve such
matters during which time the individual is under an extremely dark
cloud. In such circumstances, a penalty might have been imposed on an
individual who may not be guilty of an
offence. Let
us suppose that an individual could say to the commission, “I
believe that I am innocent and I want my chance to prove it as quickly
as possible. If you believe that I am guilty of such offences, let us
argue them out in court where the provision of proof is beyond
reasonable doubt rather than proceedings taking place on the balance of
probabilities that the commission will use.” That option would
be fairer on the individual and possibly address the speed with which
an accusation is properly addressed and ultimately
resolved.
Mr.
David Kidney (Stafford) (Lab): On a point of accuracy,
although the commission would not be a court of law, it would have to
be satisfied beyond reasonable doubt about the civil breach, just as
much as if it thought that an offence had
occurred.
Nick
Ainger: I accept my hon. Friend’s
point. The
purpose of the amendment is to deal with delay. We know of examples of
hon. Members still awaiting resolution of serious issues, and whose
careers have been blighted as a result of a significant delay. This is
not the place to discuss that, but it is clear that, because of a long,
drawn-out process, justice might not have been done in certain cases. I
am suggesting a way in which to address that problem, but I should be
interested in what the Minister has to say about the length of time
that the processes take. In all circumstances, it is far better to have
such matters aired as quickly as possible, and resolutions found as
quickly as
possible. 2
pm
David
Howarth: I shall deal first with amendment No. 1. The hon.
Member for Carmarthen, West and South Pembrokeshire is right that a
delay in the proceedings is a problem. It certainly is for people who
are innocent and find it difficult to establish that. However, although
the particular mechanism proposed is interesting, it has a number of
difficulties. The main problem is that it allows someone to raise the
stakes and go through procedure that the Electoral Commission would
find more expensive. One can imagine that very well-off people who are
accused of breaching the legislation in particular ways would use that
method to, in effect, intimidate the commission and say,
“You’ve not got enough resources to pursue me in the
criminal courts.” That would therefore be a way for them to get
the accusations against them dropped. There has to be a way to speed up
the process because the legislation should not give an unfair advantage
to well-off people who are accused over people who are not well off.
However, I fully accept the hon. Gentleman’s point that speed in
the proceedings is
important.
Mr.
Kidney: Can the hon. Gentleman suggest a mechanism that
would do just
that?
David
Howarth: No, I cannot. That is why the hon. Member for
Carmarthen, West and South Pembrokeshire is right to raise the issue
and ask the Government to think through these
matters. I
am glad that the hon. Member for Huntingdon said that his amendments
were tabled on a probing basis. That means I need not spend the time
that I was going to spend dismantling them. However, I shall put a
couple of points on the record. The schedule allows for civil sanctions
not only to be used where the commission thinks a criminal offence has
been committed, but where there has been some contravention of other
requirements. The hon. Gentleman is perfectly entitled to say, as he
did, that there is a question about the clarity of that and where it
would apply. However, there is no doubt that there are some instances
in which that would apply and where it would be useful for the
commission to have such a power.
The example
the commission gives in its latest briefing is worth putting on the
record. It talks about the regulations on accounts and reports of
donations. There is a requirement on parties to give full and accurate
quarterly reports of donations and loans. It is a criminal offence to
make those reports late, but it is not a criminal offence to make them
inaccurately. The question is what to do about that situation. One
possibility is to make that a criminal offence as well, which I think
the hon. Gentleman might have been suggesting. However, that would
simply increase the number of criminal offences created by the statute.
The other possibility is simply to say that this is a regulatory
requirement and there needs to be some sanction for missing it. What
should the sanction be? The sanction that the schedule allows is not
just monetary; it relates to more appropriate things, such as requiring
the party concerned to submit accurate accounts. That should be the
first port of a
call. I
was going to spend a lot of time arguing against the second set of
amendments, but I now think that they can be disposed of quicker. Those
amendments would basically remove the safe harbour created by being
subject to the civil sanction regime. The way in which the schedule
works means that if a person or organisation is subject to the
sanctions in the schedule, criminal proceedings cannot be taken against
them. That seems to be a wholly useful provision that adds to legal
certainty—it is generally a good idea to avoid uncertainty. The
measure also fulfils a principle that is important to me and my
party—although perhaps less to others who voted for other
legislation some years ago—that there be no double
jeopardy.
I do not
really understand why the hon. Gentleman has proposed what seems to be
a backwards step, but if his point is merely to ask the Government to
be clearer about the circumstances in which the measure will apply,
that is fair. That goes back to the point we tried to make earlier in
the week about the need for clear guidance. I am still entirely
unconvinced by the Government’s position, which seems to be that
the commission should be given the power to give guidance, but that it
should not be required to give guidance.
The hon.
Gentleman rightly pointed out that these are complex provisions and
difficult for lay people to follow. It therefore seems right to require
the commission to give guidance. That guidance should be not only about
what is necessary for compliance, but also about what is sufficient.
That would help to enforce the law and allow a greater degree of public
confidence in the way that the law works.
Mr.
Andrew Turner (Isle of Wight) (Con): I would like to say a
word in response to the proposal by the hon. Member for Carmarthen,
West and South Pembrokeshire on amendment No. 1. The issue goes to the
root of the behaviour of organisations such as the Electoral Commission
and the Standards Board for England. The example I will give comes from
the Standards Board, but it applies equally to any other organisation
that requires a response and which, with a long effort, gets people to
change their needs. In other words, the action can last not just for a
year, but beyond. The example comes from my constituency, and if hon.
Members wish to read about it in more detail, they can do so in the
debate from Westminster Hall last Tuesday.
Six of my
constituents were referred to the Standards Board. They told it that
they understood that their case needed to be examined, and that that
would take some time. The Standards Board says that in general, 90 per
cent. of cases will be looked at within six months, but after 13
months, it was still working on this one. That is the problem. Cases go
on far too long, the board discusses things for too long and, in this
instance, that made it impossible for my constituents to continue. One
of my constituents has spent £14,000, which was hard to come by.
The Standards Board is still working on the case. Four of my
constituents need to find sums of up to £8,000. One of them is
dead.
I now find
these provisions being proposed for organisations such as the
commission—I am aware that the Standards Board is not the same
as the Electoral Commission, but the performance is exactly the same.
The rights and remedies of the Standards Board are the same as those of
the Electoral Commission.
I suggest
that after x months, or even x years, the right to raise an issue would
collapse and should be withdrawn. If the problem has not been sorted
out after a year, the case should stop. That is the only way in which
we can force organisations such as this either to act or to withdraw
the
case.
Mr.
Wills: These are important matters, and I am glad to see
that the Opposition have taken the issues seriously enough to have
tabled so many amendments. I am grateful for the opportunity that that
gives me to address them. I shall respond at some length, partly in the
hope that we can avoid a lengthy stand part debate covering much of the
same territory.
Several
points have been raised and I shall address those before I come to the
detail of the amendments. They are general points of principle. The
problem of delay has been mentioned several times and we all recognise
that that can be an issue. The hon. Member for Isle of Wight has given
some graphic examples, of another regulator, but he is right that the
principles can apply to all regulators. Everyone shares an interest in
a speedy—not hasty—resolution of the
issues. We
must seek the Electoral Commission’s reassurance on the matter,
and are doing so. We hope that the commission will recognise that in
its guidance and in how it approaches the case. The hon. Member for
Huntingdon mentioned guidance, but I should stress that the commission
is already producing guidance—in fact, the commission is
required to produce guidance on the operation of civil sanction powers.
That is a requirement. What we are not doing is to introduce a blanket
requirement to produce guidance on every single aspect of the 2000 Act,
as that would make the guidance extremely
unwieldy.
David
Howarth: The irony in what the Minister has just said is
that, if there is to be comprehensive guidance on the use of civil
sanctions, it must include guidance on the rest of the 2000 Act,
because the schedule applies to any requirement in the Act and,
therefore, to understand those requirements, one must have had guidance
on them.
Mr.
Wills: The hon. Gentleman may well be right but, with all
respect, he was not quite listening. I was talking about the
requirement. Of course, it is for the
Electoral Commission to interpret for itself the scope of the guidance;
it may well go into some, if not all, of the area he just talked about.
He may well talk about that, but the question is about what duty we
place on the commission. We must allow it some flexibility. In earlier
discussions, we all agreed that flexibility and proportionality were
good things, and it is those two principles that we seek to apply to
the production of guidance. However, on this issue, the commission is
required to produce
guidance. One
other point, which has come up a couple of times, concerns complexity.
We have all experienced the complexity of the Bill—inevitably
so, as it is a complex and sensitive area. However, it is worth
pointing out that most people will not need to understand the
intricacies of the sanctions regime. The requirements on regulated
people have remained largely the same since the 2000 Act. As far as we
are aware, they are generally well understood. Notices imposing a
sanction will, of course, set out—I am sorry, I have lost my
place.
Mr.
Wills: I shall give way, because I have become completely
distracted.
Mr.
Kidney: If it helps, my right hon. Friend was in the
middle of something about
complexity. While
the Minister is gathering his thoughts on that point, I shall go back
to his first point, which was the general issue of delay. I was
concerned on Tuesday, when the Minister resisted an Opposition proposal
that the Electoral Commission should not go back further than five
years in finding faults with people’s behaviour in the past. We
are now being asked to pass a law that says the Electoral Commission
can go as far back in time as it wishes to raise something, and can
take as long as it likes into the future to investigate. The period
that could be encompassed by an Electoral Commission investigation,
which involves a person being accused of something, could be many
years. In
this country’s court system, there are limitation periods in
both criminal and civil cases, occasionally there are time limits
within which courts must deal with a case and, generally, there is a
power to get a case kicked out if it does not seem to have been
prosecuted with sufficient vigour. As the Bill passes through
Parliament, will my right hon. Friend consider whether there should be
some kind of limitations in the statute on how far the commission can
go back and on how long it can take to finish an
investigation?
Mr.
Wills: We have to retain some flexibility. I understand
the concerns—real concerns—and, after this Committee, we
shall talk to the Electoral Commission and see what its view is and
what reassurance it can give. However, we have to be careful in trying
too rigorously to prescribe time limits, backwards and forwards. I am
aware of the limits in the law and so on, but it cuts both ways. If we
give the Electoral Commission flexibility, we could be allowing it too
much time, and the statutory limitations may be too long and not
encourage a speedy resolution of the issues. We have to be careful.
Equally, if we set too short a time limit of weeks or months rather
than years—the period that most hon. Members who have
spoken so far would like—we might in some serious cases be
prescribing the ability of the Electoral Commission to act as an
effective regulator. There is a balance to be struck, and we must be
careful how we do
it. 2.15
pm
Mr.
Turner: The Minister says that we may be setting a limit
that is too long, so it is better to have no limit at all. That does
not add
up.
Mr.
Wills: With respect, that was not what I was saying. I was
saying that we need reassurance from the Electoral Commission that it
will act in a timely and speedy—not hasty—fashion. That
is not a precise limit set in terms of months and years, but most
people would accept that it is a limit. For example, 12 years would
not, by any stretch of the term, be regarded as
speedy. The
problem is that, if we go to the sort of limitations that exist in
other areas of the law, most members of the Committee would be
horrified to think that investigations could continue for, say, six
years. If we start specifying a limit, we would almost certainly get
the balance wrong in some cases. Although, as always, we are willing to
consider the matter again, we believe that it is better to allow some
discretion—but discretion that is constrained by reasonable
expectation of what timely would mean. General prescriptions of such
matters probably go back to the Human Rights Act 1998, but we need to
consider what reassurance the Electoral Commission can give the
Committee, after which we might be prepared to revisit the matter.
However, my firm instinct at present is to avoid setting fixed time
scales. We would get ourselves into more trouble than we would
want.
| 
