Political Parties and Elections Bill

[back to previous text]

Mr. Turner: The Minister is moving in the right direction, but without saying that there is a target. I understand why a target is not right for all circumstances, but I hope that he can say that certain misbehaviour would be regarded as bad and dealt with in, say, one year, while other types of misbehaviour would be more complicated and take three or four years to deal with. Such limits must be written down; they cannot be made up and be in the Electoral Commission’s view. To be understood, they must be written down.
Mr. Wills: I am glad that the hon. Gentleman thinks that I am moving in the right direction. I hope that he will forgive me if I move no further in any direction on this matter. I have said as much as I can reasonably say at the moment. We are pretty resistant to setting time frames, and specifying particular periods for particular offences would complicate the matter and increase the likelihood of our missing something and fettering the Electoral Commission in a way that would not be desirable.
I have now remembered what I was endeavouring to say earlier about the difficulty of understanding the regulations. The actual requirements on people have not essentially changed since the 2000 Act, but the notices that impose a sanction will explain to the person in question what they are required to do.
The hon. Member for Huntingdon referred to the opaqueness of when double jeopardy would apply. It is clear that it will not apply, except when a non-monetary penalty is imposed, but there is failure to comply. In those circumstances, because non-monetary penalties are preventive, the Electoral Commission must be able to punish non-compliance.
These provisions are based on the Regulatory Enforcement and Sanctions Act 2008. That is why we have not imported the requirement for judicial consent, which I think the hon. Gentleman referred to under amendment No. 56. The Act provides that secondary legislation is the correct route. As with everything else, we are happy to consider this, but we have taken the fundamental view that we should apply the 2008 Act except where there is good reason not to. We do not see any reason to depart from that view in this case, but we are open to argument if good reason can be found. The same applies to the hon. Gentleman’s point about the drafting being too broad. Of course we need flexibility in each case, but the requirement must be precise, otherwise it could be appealed as being unreasonable.
Amendment No. 1 addresses an important issue, and I understand the concerns of my hon. Friend the Member for Carmarthen, West and South Pembrokeshire. He says, I think, that the intention of the amendment was that forcing a case to be pursued as criminal would offer greater procedural safeguards to the person on whom the penalty was to be imposed. We can all agree on the principle of safeguarding the rights of all those subject to the regulation of the commission. However, we believe that the amendment would undermine the fundamental objective of making the commission a more effective regulator, which is in part achieved by giving it access to this range of more flexible and proportionate sanctions, as the Committee on Standards in Public Life recommended. That addresses another of the points raised by the hon. Gentleman.
We believe that the amendment is unnecessary because the Bill already includes important safeguards for the person subject to the sanction. A key safeguard is that a fixed monetary penalty can be imposed only when the commission has evidence that satisfies it beyond reasonable doubt—subject to that criminal standard of proof—that an offence or a contravention has taken place. That sets a high bar for the imposition of the sanction and ensures that the commission’s investigations are thorough and rigorous. That is a serious test for the commission, and leaves no room for complacent application of the sanctions.
I do not believe that the commission will act in what anyone would consider a heavy-handed or unthinking fashion. A key element of the Bill is that the commission is required by law to publish guidance on how it will operate the new regime of sanctions, before the regime can commence. The commission will need to set out in detail how it will use the sanctions and in what circumstances. The amendment is technically flawed because it assumes that all cases that may be subject to monetary penalties are open to the criminal route in the first place. I understand that it is a probing amendment, but technically it is not correct. Monetary penalties are also available for breaches of prescribed restrictions and requirements, which may not be criminal offences. In such instances, the effect of the amendment would be that the recipient of the monetary penalty would be able to block the sanction and avoid censure, effectively rendering the application unenforceable.
I hope that my hon. Friend will not press the amendment because it would neuter the effectiveness of the sanction as part of the new regulatory regime, undermine the principle of flexibility and effective regulation, and not give effect to the Committee on Standards in Public Life recommendations, including a recommendation that was supported by Sir Hayden Phillips and which we believe has considerable support.
The practical effect of amendments Nos. 31 to 34 would be to prevent the Electoral Commission from applying a fixed monetary penalty to any of the four entities concerned—a person, a registered party, a recognised third party or a permitted participant—for contravention of a prescribed restriction or requirement. The amendments also miss an important point: the ability to prescribe regulations or requirements in the 2000 Act is provided to enable us to replicate the present system under that Act where a small number of breaches of the Act are subject only to the graded system of financial civil penalties set out in section 147(3) of that Act. For example, where a party fails to inform the commission of a change of treasurer, as required by section 31(4), importing into the Bill the concept of prescribed requirements or restrictions is technically necessary to allow us to continue that approach, and that is sensible.
The amendment goes against the flexibility of the system we are trying to introduce. Indeed, the Committee on Standards in Public Life recommends that civil sanctions be available in instances that could be considered more minor and where it considers administrative penalties more appropriate. We believe that it must be for an independent electoral commission to determine when a fixed monetary penalty, or any other appropriate civil sanction, should be used where a prescribed restriction or requirement has been contravened and it must use its expertise to determine what mitigating or aggravating factors might be taken into account.
Amendment No. 71 would remove paragraph 4 from proposed new schedule 19B, as set out in schedule 2, which relates to fixed monetary penalties. Paragraph 4 stipulates that criminal proceedings cannot be instituted against persons subject to a fixed monetary penalty during the period available for discharging liability by payment of the penalty. It also provides that criminal conviction cannot take place for an offence when the commission has issued a non-monetary penalty for the offence and it has been complied with. I am not sure why it should be thought desirable to remove those safeguards. Paragraph 4 offers important protection against penalising someone twice for the same behaviour. It cannot be right that a person is potentially subject to a criminal penalty having already been given a fixed monetary penalty. Removing the paragraph would leave an individual or organisation open to being sanctioned twice, with a civil sanction and a criminal prosecution, so we hope the hon. Gentleman will not press the amendment.
Amendment No. 72 would add to paragraph 4 the provision:
“Nothing in this paragraph prevents any criminal proceedings being taken for any other offence under this Act or any other Act.”
However, paragraph 4(2) already makes it clear that that is the case; it states that a person on whom a fixed monetary penalty has been imposed may not be convicted of an offence
“in respect of the act or omission giving rise to the penalty.”
That double penalisation provision prevents criminal proceedings being taken only in relation to the same act or omission. It does not provide protection from criminal proceedings with respect to a different offence, or an omission or offence under another Act, so we believe that the amendment is unnecessary.
Mr. Djanogly: Could someone be prosecuted under a criminal provision in a different Act for the same offence for which someone gets a civil order as set out in the Bill?
Mr. Wills: No, it does not provide protection from criminal proceedings with respect to a different offence, or an omission or offence under another Act. There is one sanction, except in the case of non-compliance to which I have already referred. I hope that reassures the hon. Gentleman. I am reassured by the provision.
Amendment No. 46 would remove paragraph 8, which relates to discretionary requirements and stipulates that criminal conviction cannot take place for an offence for which the commission has issued a non-monetary penalty that has been complied with. For the same reasons I outlined in relation to amendment No. 72, I hope that the hon. Gentleman will not press the amendment.
Amendment No.47 would add a new sub-paragraph to paragraph 8 stating:
“Nothing in this paragraph prevents any criminal proceedings being taken for any other offence under this Act or any other Act.”
However, there is no principle in law that prevents criminal proceedings for another offence in the Act or another Act, so the specific provision is unnecessary. In any event, in the context of discretionary requirements generally, paragraph 8(1) already makes it clear that that is the case. It states that a person on whom such a discretionary requirement has been imposed, and with which they have complied, may not be convicted of an offence
“in respect of the act or omission giving rise to the requirement.”
2.30 pm
Amendment No. 56 would remove paragraph 20 from the proposed new schedule. The paragraph currently allows a supplementary order to be made to extend the period available for opening criminal proceedings in certain circumstances. If the amendment were adopted, in theory a person could string out a discretionary requirement or enforcement undertaking until criminal proceedings could no longer take place. I know that the hon. Member for Isle of Wight would be horrified if such a lengthy time scale were to be implemented, but it could happen in theory. The procedure could be strung out until criminal proceedings could no longer be taken, thereby enabling people to escape the sanction and frustrating the commission in its wish to enforce the 2000 Act. The removal of the paragraph would create a loophole for avoidance. That is undesirable and I hope that the hon. Member for Huntingdon will agree and withdraw the amendment.
Mr. Djanogly: This has been a full debate on what we believe are important concepts. I thank the Minister for his detailed review of the double jeopardy provisions. We included the amendments to initiate such a debate. It has been helpful, and I will look at what has been said. I am pleased that the Minister said that he was open-minded on the point about judicial consent, and I hope that he will look at that.
We still have an issue about general clarity. The Minister said that he does not want to bind the hands of the commission and the guidance mentioned by the hon. Member for Cambridge will be important. However, we are concerned about the wording of the provisions and would like it to be reviewed.
Various Members spoke about timing and said how important it was to have an element of speed to the process. All members of the Committee will have had experience of dealing with the Electoral Commission and of the delays that investigations can sometimes involve. Both sides of the Committee expressed the general concern that processes should not go on for ever and that decisions must be made to allow people to move on. The example given by my hon. Friend the Member for Isle of Wight was about a different agency, but it was very pertinent. Such circumstances are relevant to the Bill. We shall probably return to the need for deadlines.
I was pleased that the Minister said that he understood the concerns raised, and that he would discuss them with the Electoral Commission. However, this is the sort of situation in which we should tell the Electoral Commission how Parliament expects it to behave, as much as listening to its views. I understand that it is right for the Minister to take the views of the commission into account, but ultimately we should tell it what sort of response we want to see.
Mr. Wills: The hon. Gentleman might like to reconsider the verb. These are people who regulate us. We need to guide them and set the legal framework, but we must be careful about how far we go in telling them how to regulate us. I refer again to the wise words of the hon. Member for Cambridge at the beginning of the proceedings.
Mr. Djanogly: I did not say that we should tell the commission how to regulate us, I said that we should tell it within what period of time it should make decisions. We will look at the issue in later stages of the Bill. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Djanogly: I beg to move amendment No. 35, in schedule 2, page 20, line 3, at end insert
‘within 28 days of receipt of the notice under paragraph 2(4).’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 36, in schedule 2, page 20, line 20, at end insert
‘within the period specified under paragraph 3(2)(a).’.
No. 37, in schedule 2, page 20, line 25, at end insert
‘at any point during the period specified in paragraph 3(2).’.
No. 67, in schedule 2, page 21, line 5, leave out ‘effect of’ and insert
‘ability to discharge a person’s liability by’.
No. 68, in schedule 2, page 21, line 6, at end insert
‘provided payment is received within the period specified in paragraph 3(2)(a).’.
No. 69, in schedule 2, page 21, line 11, after first ‘the’, insert
‘date of commencement of the’.
No. 70, in schedule 2, page 21, line 13, after ‘the’, insert
‘date of commencement of the’.
No. 45, in schedule 2, page 24, line 19, leave out sub-paragraph 7(3)(b)(iii).
No. 55, in schedule 2, page 28, line 24, leave out subsection (a).
Mr. Djanogly: Amendment No. 35 would amend paragraph 1(5) of proposed new schedule 19B, by inserting a 28-day time period in an attempt to specify the time frame within which the fixed penalty notice must be paid.
Amendment No. 36 would amend paragraph 2(2) to tie in the information given in the notice under paragraph 2(1), about the ability to discharge one’s liability by payment within the specified 28-day period, as set out in such a notice. In essence, it is a consequential amendment, designed to tie off any loose ends.
Amendment No. 37 would amend paragraph 2(3) by reference to a 28-day period in paragraph 3(2) specifying in what time frame an appeal must be made against a fixed penalty notice. The aim is to add clarity to the provisions. As the Bill stands, the only clear indication of the time limits for responding to notices is tucked away at the end of what is a bit of a legal maze. Even when we get to paragraph 3(2), we see:
“Neither period may be more than 28 days beginning with the day on which notice is received.”
That is simply not clear enough for compliance when the cost of getting it wrong can be so high. We must remember that the people who will have to react to the new provisions are likely to be volunteers with little or no legal training. We need to make things as clear as possible. Vague concepts of reasonable time limits may be acceptable in certain circumstances, but not here, especially when non-compliance can lead to individuals and groups quickly climbing up the penalty tariffs. We must be careful not to penalise innocent mistakes or administrative oversights. A number of other amendments were tabled with a similar aim in mind. We shall address them as the selection and grouping allow.
Amendments Nos. 67 and 68 refer to paragraph 3, which sets out the requirements for the information that must be included in a notice issued by the commission of the intention to impose a fixed monetary penalty. That includes the grounds for the issuing of the notice, the right to make representations, the period in which the liability may be discharged, the right of appeal against the penalty and the consequences of non-payment. During the period when the person can discharge their liability for the penalty by making a payment, the commission cannot bring criminal proceedings against them. Moreover, a person on whom the commission has imposed a fixed monetary penalty for an offence under PPERA may not be convicted for the same offence again—the basic rule of double jeopardy is seen with the powers. The second part of the new schedule gives the commission power to impose discretionary requirements on the person and so forth.
Amendments Nos. 67 and 68 would amend paragraph 3(1)(b) to prevent the commission reducing the amount of penalty notices for early payment. Our aim is to clarify exactly what is required to be notified to an individual or group. The paragraph allows for the person or group subject to a fixed penalty notice to discharge their liability under it by paying the specified amount within the time limit. The sum required to be paid to discharge that liability may be less than the full amount of the penalty, so it is important that the potential payee understands both that and the incentive that such a mechanism provides. The information should form part of the notice with which they are presented. Our amendments would do just that, by amending the relevant sub-paragraph to set out, at the start, what payment of that sum will do and when it needs to be paid for that to apply. As legislators we need to signpost clearly the way in which people can and should comply with the Bill’s provisions. In doing so, we not only make it easier for people to comply, but we encourage early compliance because people understand the incentives in the Bill.
Amendment No. 69 deals with sub-paragraphs (2)(a) and (b) of paragraph 3. Amendment No. 44 applies to paragraph 7(2). Both look to insert
“date of commencement of the”
into the wording of the provisions, which relate to the information contained in notices issued in relation to fixed penalty notices or discretionary requirements. The amendments follow the themes of the vast majority of our amendments in this group, which is to satisfy the need for clarity. Furthermore, our supporting arguments echo almost completely those that I have just made for amendments Nos. 67 and 68.
As the Bill stands, the two sub-paragraphs set out information on the period of compliance that must be included in the notices issued with the imposition of a fixed penalty. There are too many questions about what they mean for them to provide a useful guide for either the commission or the subject of the notice—“the period within which” is simply too vague a phrase. For instance, is it inclusive of the first or last days of the period? If the period is 28 June to 28 August, can one make payment to discharge a liability right up to midnight on 28 August, or does the period end at midnight on 27 August? Such matters may seem trivial in the context of some of our debates on the Bill, but they could form the basis for serious legal disputes, and contract law books are littered with cases on just such points. Our amendments would do away with all that by the inclusion of one simple phrase,
“the date of commencement of the”
inserted at the start of the provision, which would ensure that there is no confusion. To continue with the example to which I referred earlier, we think that it would be clearer to say, “The period of 28 days will commence on 28 June”. It would be a simple change, but it is an easy way to prevent future confusion that could end in legal action.
We do not want to turn the commission into some sort of traffic warden, or its financial penalties into parking tickets, but the Government could be providing for just that with the provision. It undermines the position of the commission as a regulator. Instead, it would be a reactive enforcer such that while it might incentivise early resolution of an offence, it could diminish its authority. We believe that the commission has a more significant role than an enforcer of financial penalties. It is a regulator and provider of guidance first and foremost. The amendment would do away with the provision that could detract from that role.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2008
Prepared 14 November 2008