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. Amendments
Nos. 45 and 55 would delete “early payment discounts”
from paragraphs 7(3)(b)(iii) and 18(1)(a) in relation to the payment of
monetary penalties.
We appreciate that the aim of the proposed new schedule 19B
is to provide an incentive for a speedy conclusion of the enforcements,
but it misses the point that the amount in itself is the penalty.
Having to make sacrifices is a necessary consequence. The amount is
decreased for late payment because the person is not subjected to the
full impact of the penalty. To reduce it for early payment is not the
same thing. Instead, it would suggest that the seriousness of the
offence had in some way been
reduced. 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.
| 
