Mr.
Wills: I shall deal first with amendments Nos. 35, 36 and
37, which would impose a time limit for various stages in the process
of imposing fixed monetary penalties—payment of the penalty,
representations to the commission about the penalty and appeals against
the imposition of the penalty. The amendments are unnecessary. The Bill
already provides that the commission must specify the exact period for
payment of the fixed monetary penalty when it imposes it, and that the
period cannot exceed 28 days. Amendment No. 35 would ensure that the
commission cannot require payment in a period that is less than 28
days. That additional constraint is unnecessary, given the requirement
that the commission acts in a reasonable manner in its exercise of its
civil sanctions
power. If
a demand from the commission allows an unreasonable period, it may
provide grounds for an appeal. It may be asked, quite reasonably, why
the commission might need to have a shorter period than 28 days, which,
after all, is not that long. There could be situations when sanctions
had been imposed repeatedly so it might be necessary to have a shorter
period to put the point to the person in question more forcefully. I am
sure that the Electoral Commission will note our debate and reflect in
its guidance some of the points that have been
made.
Mr.
Turner: Will the Minister remind me where amendments Nos.
35, 36 and 27 are set
out?
Mr.
Wills: Amendment No. 36 refers to page 20, line
20 of the Bill and would
insert “within
the period specified under paragraph
3(2)(a)” at
the end of proposed new paragraph
2.
Mr.
Turner: What I meant is: where do we find such a provision
in the Bill now? I am not referring to what my hon. Friend the Member
for Huntingdon put in our amendment. I am asking where it is
now.
2.45
pm
Mr.
Wills: As I was saying, the Bill already
specifies—
Mr.
Wills: I shall come on to that in just a moment. I shall
make the argument and then direct the hon. Gentleman to where precisely
we find it. I was just making the point that there may be occasions
when the Electoral Commission will want to impose a shorter time period
for the payment of these penalties, such as when someone
repeatedly ignores the sanctions. Amendments Nos. 36 and 37 add in time
limits of 28 days for the payment of the penalty,
representations or appeals against it.
We believe
that is unduly prescriptive. This sort of detailed provision is better
suited to secondary legislation. Moreover, I do not believe that it is
necessary or desirable for us to set statutory time limits of this
nature. There is a requirement for all civil penalties to be reasonable
and I believe that that is adequate protection. I direct the hon.
Gentleman to paragraph 3(2)(a). I hope that I have said enough to
persuade hon. Members not to press those
amendments. I
turn now to amendments Nos. 67, 68, 69 and 70. Amendments Nos. 67 and
68 relate to the information that must be given by the commission when
giving notice of an intention to impose a fixed monetary penalty on a
person. I agree that the notices should include this information.
However that is already required. Again I draw attention to paragraph
3(2)(a) of the schedule. I do not believe that this amendment is
needed. I should like to talk about amendments Nos. 69 and 70 together
as they both relate to information on the period for discharging
liability that must be included in the notice that the commission
intends to impose a fixed monetary penalty. I should stress that this
is the notice of the intention to impose the penalty, rather than the
final penalty itself.
This
provision closely follows sanctions laid out in the Regulatory
Enforcement and Sanctions Act 2008. Again, we see no reason for
changing the operational design of the sanctions regime or why it
should be different for the areas regulated by the Electoral Commission
compared with the areas regulated by other regulators. We also believe
that this amendment may compromise the rights of the recipient of the
penalty, for example if there were any delay in receipt, which is why
the model in the Bill in which the relevant periods begin upon receipt
is
preferable. Amendments
Nos. 45 and 55 both relate to early payment discounts or late payment
penalties for monetary penalties. Of course I understand the point made
by the hon. Member for Huntingdon, but we do not believe that it
diminishes the importance of the sanction. There are some cases in
relation to stop notices where the size of the sanction is important.
In many cases we have to strike a practical balance. What is important
is that the sanction is imposed. We do not want to put the Electoral
Commission to unnecessary effort to pursue the discharge of those
sanctions if there can be put in place a relatively simple and
straightforward encouragement for it not to do so. Parliament had a
chance to debate all this during the passage of the Regulatory
Enforcement and Sanctions
Act through both Houses. This is the approach that was taken there and
we have imported it here. We think that it is
proportionate. Mr.
Djanogly: I am trying to think of circumstances in which
fixed penalty notices would be appropriate. I can see how they might be
appropriate under the previous legislation, in which businesses can be
fined set amounts for set things. Will the Minister give an example of
a fixed penalty notice being appropriate in the context of this Bill,
given the limited number of people whom it would presumably apply
to?
Mr.
Wills: I am sure that the hon. Gentleman refers to fixed
monetary penalties. We are talking about encouragement for early
payment, and that principle applies whether there is a small or a large
number of people to whom the measure applies. In all circumstances, if
we can find a simple and effective way of encouraging people to pay up
quickly we should do so, otherwise the commission will have a lot of
problems pursuing the debt. Where we can simply and easily avoid that
difficulty, and provide some encouragement to pay up quickly, we have
done so. We see no reason here not to bring across the requirements of
the 2008 Act. If the hon. Gentleman can make a compelling case for why
Members of Parliament and other people who would be subject to the
sanctions should be excluded from that general provision, we will, as
always, consider
it.
Mr.
Djanogly: I find it strange that any fine under the
legislation could be subject to a discount for early payment. That
seems
bizarre.
Mr.
Wills: The hon. Gentleman finds it bizarre. I have just
invited him to give me a reason for that. We have given the reasons why
the principle is appropriate. It has already been established in
legislation. The 2008 Act was so consensual that it went, I think,
through the House of Commons without a vote. If the hon. Gentleman
thinks that there is a good reason to except this form of regulation
from the other forms that the House has already agreed should include
this sort of provision, I am happy to hear it. Simply to say that he
finds this bizarre, is not as compelling an argument as I would
require. I am always happy to hear further representations on that
point.
Mr.
Djanogly: I note the Minister’s desire for
flexibility with the timing of notices, and I will consider the
amendments in that regard. The Minister also replied comprehensively on
the timing of the period of service of the notices; I thank him for his
response and I will go away and look at it. I still maintain that the
concept of discounts for quick payment of fines
is—
Mr.
Djanogly: Yes. It is bizarre, in the context of the Bill.
The Minister mentioned the previous legislation, on which the Bill is
based. That relates to the regulation of companies, and presumably
where there are mass problems and lots of notices being handed out,
discounts can be offered. That is not relevant to the Bill, and we will
look again at the parts of the schedule that refer to discounts. I beg
to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Djanogly: I beg to move amendment No. 64, in
schedule 2, page 20, line 31, leave
out sub-paragraph
(5).
The
Chairman: With this it will be convenient to discuss
amendment No. 40, in schedule 2, page 23,
line 24, leave out sub-paragraph
(4).
Mr.
Djanogly: These are both probing amendments. They inquire
of the Minister what the rationale was behind a second decision-making
process. Amendment No. 64 seeks to leave out proposed new paragraph
2(5) and amendment No. 40 deletes proposed new paragraph
6(4). Both those sub-paragraphs permit the commission to
review its actions in issuing notices for a second time. We query the
need for the commission to have a separate review of its decision to
issue the notice. That is an additional administrative step; the basis
for issuing the notice should be under ongoing review. Furthermore, we
are not convinced that the inevitable delay in the enforcement
procedure is justified. Our only thought as to the rationale behind it,
is that the Government anticipate that, under proposed new paragraph
2(1), the commission could be issuing fixed penalty intention notices
without much forethought. To avoid embarrassing judicial scrutiny on
appeal or the inevitable negative press coverage, they have placed a
formal “second glance” mechanism in the Bill to protect
the commission from embarrassing gaffes. The commission should ensure
that when issuing such notices it is happy with the reasons that it is
doing so—it should not be done as a matter of course. As such,
we are reluctant to give it a get out of jail free card in the form of
proposed new paragraphs 2(5) and 6(4). We fear the potential for
abuse.
Mr.
Wills: I am slightly surprised by the grounds on which the
hon. Member for Huntingdon moved the amendment. I thought he was going
to suggest something else, such as the view that a court rather than
the commission should consider the representations. The hon. Gentleman
seems to have constructed rather a complicated rationale, which I am
frankly baffled by. Deleting proposed new paragraph 2 would simply mean
that the commission would not be able to take into account any
representations against the imposition of the sanction, effectively
rendering the representations process meaningless. I had hoped that all
members of the Committee would have welcomed the opportunity to make
such representations to the
commission. As
the hon. Gentleman is aware, there is already an appeals process built
into this sanction; should the commission reject representations, the
recipient may appeal to a county court or, in Scotland, to the sheriff.
That process is there not to protect the commission from having made a
mistake, but because it is simply a matter of natural justice that
people should be able to make representations against an imposition.
That is set out in proposed new paragraph 6(7). I remind the hon.
Gentleman that the additional representations stage was incorporated
into the 2008 Act in the Lords, as it was felt that it would add an
extra safeguard, not for the regulator but against wrongful imposition
of the sanction. It does not replace the appeals process to the courts;
it is meant to be an extra safeguard, which, I thought, the Committee
were ardently seeking in every area. I hope we can all agree that the
amendment should not proceed.
Mr.
Djanogly: The amendment is probing to allow the Government
to defend this “second bite at the cherry” procedure. As
the Minister has done that, I am happy to beg to ask leave to withdraw
the amendment.
Amendment,
by leave, withdrawn.
Mr.
Djanogly: I beg to move amendment No. 65, in
schedule 2, page 20, line 38, leave
out from ‘penalty’ to end of line 43 and insert
‘at any point 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. 66, in
schedule 2, page 20, line 44, leave
out ‘a county court’ and insert ‘the High
Court’. No.
107, in
schedule 2, page 24, line 43, leave
out from ‘notice’ to end of line 5 on page 25 and
insert ‘at any point
during a period of 28 days from receipt of that
notice.’. No.
50, in
schedule 2, page 25, line 6, leave
out ‘a county court’ and insert ‘the High
Court’. No.
78, in
schedule 2, page 23, line 16, at
end insert ‘at any point
during the period specified in paragraph
7(2).’. No.
43, in
schedule 2, page 23, line 34, leave
out from ‘requirement’ to end of line 43 and
insert ‘at any point
within 28 days of receipt of the notice under paragraph
6(5)’. No.
44, in
schedule 2, page 24, line 8, after
‘the’, insert ‘date of commencement of
the’.
Mr.
Djanogly: The amendment looks to insert a 28-day limit
into paragraph 2(6) of proposed new schedule 19B to specify in what
time frame an appeal must be made against a fixed penalty notice.
Amendment No. 107 looks to insert the same time frame for
appeal into paragraph 9(3) under the provisions that relate to an
appeal against the imposition of non-compliance penalties. Amendment
No. 43 inserts the same 28-day appeal limit into paragraph 6(6) in
relation to appeals against penalties in the form of
“discretionary requirements” that have been imposed
pursuant to paragraph
(5). I
do not wish to rehash the arguments that I made about amendments Nos.
35 to 37, but they would echo the arguments for these amendments.
Suffice it to say that the aim is to add to the provisions a level of
clarity that we do not believe currently exists. As they stand, the
only clear indication of the time limits for responding to notices is
tucked away at the end of a complicated set of provisions. Co-operation
will be key to much of the enforcement action that the commission takes
on, and we agree that the threat of sanctions will provide a useful
incentive to co-operate. However, co-operation can only be founded on a
strong base of understanding, and for that we need clarity in the
legislation.
3
pm Amendments
Nos. 66 and 50 would amend proposed new paragraphs 2(6) and 9(3). The
amendments seek to change the court to which individuals must go to
appeal against sanctions under proposed new paragraph (1), fixed
penalty notices, and proposed new paragraph (9), discretionary
requirements. We question whether the level of expertise in the county
court is sufficient to deal
with what could possibly be a highly complicated case because of this
Bill and the political background. For this reason, we suggest that the
higher level of judicial scrutiny that would be afforded to the case in
the High Court may be
preferable. Furthermore,
an action in the High Court could serve as a check on the commission
and make it think twice before opening itself up to public censure at
the hands of the High Court because the basis for its action was too
shaky. If that were the case, the amendment will have done its
job. Given
the expectation that this power will be used in only a limited number
of cases, I do not think that the requirement to appeal to the High
Court places too great a burden on the individual or group involved,
the commission or HM Courts Service. We would seek the
Minister’s views on
that. Amendments
Nos. 78 and 44 are consequential on each other in a way similar to many
of the other amendments tabled. It shows the complexity of this Bill
that so many detailed amendments have been made to its nuts and
bolts. Amendment
No. 78 amends paragraph 6(2) by reference to a 28-day time period in
paragraph 7(2), to specify in what time frame an appeal must be made
against a discretionary requirement. Amendment No. 44 amends paragraph
7(2) so that it clearly specifies when the 28-day time period begins
and how it is to be highlighted in the notice imposing the
discretionary
requirement. I
have already said much on the need for clarity in reference to
amendments Nos. 65, 66, 107, 50 and 43. By adding specific time limits
to the provisions of the schedule, we make compliance with the
requirements easier. Our amendments, therefore, propose to put in place
a 28-day time frame across the board. This would add a level of
certainty to the provisions which we feel will be beneficial for all
sides—certainty of time period for the individual and a clearly
signposted procedure for the
commission.
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