David
Howarth: Rather than make a speech of my own, may I ask
the hon. Gentleman about amendments Nos. 65, 107 and 43? They do not
just impose clearer time limits, which is fair enough; they remove all
grounds for appeal. What does he imagine would be the grounds for
appeal if there were no grounds for appeal specified in the
Act?
Mr.
Djanogly: The hon. Gentleman makes a good point. The
drafting would need to be changed accordingly. However, the 28-day time
frame across the board, as a principle, still stands and on that I
would be grateful for the Minister’s
comments.
Mr.
Wills: Given the size and range of this group, I will, if
I may, address each amendment in turn. We believe that amendment No. 65
is unnecessary because paragraph 16 of the schedule allows the
Secretary of State to make provision supplementing the primary
legislation. We believe that this sort of detailed provision is better
suited to secondary legislation.
We will be
talking to the courts and the Electoral Commission about appropriate
periods for appeal. They will be appropriate. I make no commitment but
it is unlikely that they will be significantly less than 28 days;
they could well be more. It is not necessary or desirable to set
statutory time limits of this nature. The requirement for all civil
penalties to be reasonable is adequate
protection. Regarding
amendment No. 66—the provision for appeals to be heard in the
High Court rather than the county court—I heard what the hon.
Gentleman said about burdens on the High Court. We believe it may
impose a burden on the High Court. There is precedent, in that
electoral law appeals are heard in a county court. It might be
possible, subject to circumstances, for appeals from the county court
to be heard in the Court of Appeal. So there is a higher level of
judicial scrutiny at the end of the
process.
Mr.
Turner: Will the Minister advise me what is the condition
for financial assistance when someone is challenged by the Electoral
Commission in a county court or a High
Court?
Mr.
Wills: I think that the hon. Gentleman is referring to the
conditions in which legal aid might be available. If I may, I will
write to him on that point. It is a complex area and I would rather get
it right, in writing, rather than mislead the Committee
inadvertently.
Amendment
No. 107 relates to the appeals process for a person who has been issued
with a non-compliance penalty for failure to comply with a
discretionary requirement. It would amend the process by removing part
of proposed new paragraph 9(3) of the schedule. The schedule currently
allows a person to appeal against a non-compliance penalty on certain
grounds. The amendment would remove those grounds of appeal, and
instead provide that a person served with a non-compliance penalty
would have a period of 28 days from receipt of that notice to appeal,
but the grounds of such an appeal would no longer be clearly set out.
We believe that the grounds of appeal against a non-compliance penalty
should be clearly set out and the amendment would muddy the water by
removing them.
We followed
the drafting of the 2008 Act and the civil sanctions it imposed, and we
cannot see any good reason to depart from that operational design in
relation to the sanctions of the Electoral Commission, in comparison to
other regulators. As always in such matters, when we are talking about
transposing the requirements of the 2008 Act, if members of the
Committee can make a reasonable case for making separate provision in
relation to the Bill, we would be happy to consider it.
Amendment
No. 50 is similar to amendment No. 66, but in this case it would
provide for appeals against stop notices to be heard by the High Court,
rather than a county court as the Bill currently provides. As I said
earlier, the Government believe that county courts are a more
appropriate forum for appeal; they are where electoral law appeals are
heard. Using the High Court might place a strain on its resources, when
the county court provides a perfectly adequate opportunity for
appeal. Amendments
Nos. 78 and 44 both relate to information that must be included in the
notices issued by the commission when it proposes to impose a
discretionary requirement. I am not altogether sure why amendment No.
78 has been tabled, as new paragraph 7(2) already stipulates the
available period for making representations, which must be no less than
28 days beginning with the
day on which the notice is received. It also clearly states that the
notice must specify this period. Therefore, the amendment does not
change the required contents of the notices and is
unnecessary. Amendment
No. 44 would alter the wording of new paragraph 7(2). The amendment
stipulates that, in a notice of intention to impose a discretionary
requirement, the commission must include a specific date for the
commencement of the period for making representations against it. As
currently drafted, new paragraph 7(2) requires such a notice to include
information about the period for making objections. It also states that
that period may not be less than 28 days, beginning with the day on
which the notice is received. That provision closely follows the
sanctions laid out in the 2008 Act. We do not see a reason for changing
the operational design of those sanctions, nor why they should be made
different for the Electoral Commission in comparison to other
regulators. We
also believe that the amendment might compromise the rights of the
recipient of the penalty, for instance if there were a delay in
receipt. That is why we prefer the model set out in the 2008 Act, in
which the relevant periods begin on receipt, as that offers a fair
opportunity for all in terms of making objections.
Amendment
No. 43 would remove the list of grounds for which appeal against
imposition of a discretionary requirement is allowable. It would also
impose a 28-day limit on the right of appeal. That would be unhelpful
and unnecessary. The grounds for legitimate appeal will help those on
whom a discretionary requirement is imposed to understand when it is
worth them pursuing an appeal. The grounds for appeal are not exclusive
and there is also provision for prescribing other grounds in secondary
legislation, but in reality, a court would be likely to entertain an
appeal only on grounds similar to those set out in new paragraph 6(6).
We believe that stating that explicitly in the Bill will help
people to understand their position in determining whether to
launch an appeal against a commission decision to impose a
discretionary
requirement. On
the timing of appeals, we will need to decide with the commission and
the courts, after further consultation, the appropriate timetable for
appealing against a decision of the commission. That will be a matter
for the rules of court rather than for legislation, as was decided in
the 2008 Act. If it is a matter of pressing concern to members of the
Committee, we will see what we can do to advance it, so that we can
return to it in a meaningful way on
Report. I
assure the Committee that the Electoral Commission is aware that its
operation of the new civil sanctioning powers needs to be responsible
and clear. We keep coming back to that point, but it is aware of that.
As we have discussed, it is required to produce guidance on how it will
use the powers and set out explicitly what the sanctions that it is
imposing require, and within what time
frame. I
assure the Committee that the sanctions will be overlaid with a
statutory instrument setting out important procedural matters relating
to the civil sanctions regime. Where it deals with the most pressing
matter in the schedule, it will be subject to the affirmative
resolution procedure, but both routes will offer the House ample
opportunity to scrutinise the detail of the sanctions and their
operation if it so wishes.
In light of
those reassurances and explanations, I hope that the hon. Member for
Huntingdon will withdraw the
amendment.
Mr.
Djanogly: Let me thank the Minister for putting on record
again the fact that he understands the need for clarity. That is
exactly what we are trying to get at through most of our amendments. I
thank him also for going through the amendments on appeals
comprehensively, and we shall review the position further. On amendment
No. 78, I thank him for clarifying what is already in the Bill. I note
what he says about appeals to the High Court, and we will examine that
matter
further. On
the equalisation of time periods, I should add that before this Bill, I
served on the Public Bill Committee that considered the Employment
Bill, and we examined the employment tribunal process. Everyone agreed
that the time limits for bringing various claims to an employment
tribunal should be made the same. The problem was that no one could
actually agree on what that period should be. I see the potential for
different periods in this Bill, and we do not want to be in the same
situation. We should sort it out before the Bill comes into effect,
rather than have a series of different periods for different people,
which is confusing, and then return to the matter in several
years’ time. It would be much better to get that right at an
early stage, which is why I have been suggesting equalisation. I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Djanogly: I beg to move amendment No. 41, in
schedule 2, page 23, line 31, after
‘person’, insert
‘immediately’.
The
Chairman: With this it will be convenient to discuss
amendment No. 42, in schedule 2, page 23,
line 32, after ‘is’, insert
‘, how it is to be complied with,
and the exact time period in which compliance must
occur.’.
Mr.
Djanogly: Amendment No. 41 would insert the word
“immediately” into new paragraph 6(5) of the schedule and
so introduce a requirement for the commission to notify the person in
question of its decision to impose a discretionary requirement under
part 2 of the schedule immediately. The commission should be a beacon
of good practice. If we are to expect prompt compliance on the part of
those subjected to sanctions under the Bill, it is only right and
reasonable to expect the enforcing body to be even quicker in
responding to or notifying them. It is a simple case of leading by
example. If it does not do that, its legitimacy will begin to look
shaky. If the Minister wishes to argue that that would create immense
and intolerable administrative burdens on the commission, I ask him to
give evidence of
that. Amendment
No. 42 would insert into the same sub-paragraph provisions as to what
notices of discretionary requirements should set out. It echoes
amendments Nos. 44, 69 and 70, and I have tabled it for the same
reasons. There are too many questions about what the notices will mean
for them to provide a useful guide to either the commission or the
subject of a notice. We should dispel that ambiguity and confusion, or
we
could face a rash of cases in which people are penalised for mistakes.
Such notices need to be as prescriptive as possible. Furthermore, a
more prescriptive approach could be mutually beneficial: the commission
would increase its level of enforcement and results, and people would
be able more easily to comply with sanctions and avoid possible
penalties. 3.15
pm
Mr.
Wills: We come back to the tension between clarity and
prescription, in the hon. Gentleman’s words, and flexibility. We
need to strike a balance between them. We do not believe that amendment
No. 41 is desirable because we are not seeking to limit the commission
in its application of the new civil sanctions regime by requiring it to
act immediately. Varying circumstances in different cases will
inevitably require different
approaches. We
believe that amendment No. 42 is unnecessary, as new paragraph 5(5) of
the schedule already stipulates that a discretionary requirement
is “a
requirement to take such steps as the Commission may specify, within
such period as they may
specify”. When
imposing discretionary requirements, the commission needs to be clear
what the requirement on a person is and when it should be completed. If
the requirement is not clear, it will be open to appeal on the grounds
that it is uncertain, and therefore that it is, by its nature,
unreasonable, which is grounds for appeal under new paragraph 6(6)(d),
where non-monetary discretionary requirements are concerned. That is
common sense and there is already provision in the legislation, so I
hope that the hon. Gentleman will withdraw the
amendment.
Mr.
Djanogly: I thank the Minister for that clarification on
amendment No. 42. I am pleased that the point is covered in the Bill.
As for amendment No. 41, the concept was well debated earlier, so I beg
to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Djanogly: I beg to move amendment No. 51, in page 25, line
8, leave out part
3.
The
Chairman: With this it will be convenient to discuss
amendment No. 52, in page 26, line 31, after ‘may’,
insert ‘, on an
application by that person or by decision of the
Commission.’.
Mr.
Djanogly: Amendment No. 51 is a probing amendment. It is
based on a speech that my hon. Friend the Member for Isle of Wight gave
on Second Reading on stop notices, which are one of the number of new
civil sanctions given to the commission by the Bill. Stop notices allow
the commission to demand that an individual or group cease doing an
activity that they are carrying on, on the basis that it is liable to
result in a contravention of or offence under
PPERA. In
discussing the amendment, to the extent that it has basically come from
my hon. Friend, I cannot do better than read what he said on Second
Reading. He stated:
“Paragraph
10 of proposed new schedule 19B...allows the commission to impose
so-called stop notices. These are to be imposed on individuals to
prohibit them from carrying on an activity which the commission
believes is “likely to involve” their committing an
offence under the 2000 Act. The wording implies not “has
done”, but merely “may do”. Likewise, a stop
notice can be imposed if the commission believes the person’s
activities are likely to lead them to commit an offence or
contravention of the
Act. Does
the Lord Chancellor recognise that those measures could interfere with
an individual’s wholly legal actions? An individual could be
treated as if they had already committed an infringement, even if their
actions never led to such an infringement. Is not the Electoral
Commission’s purpose to ensure that elections are run legally
and to punish individuals appropriately once an infringement has
occurred, and not before? Does the Lord Chancellor not also agree that
absolute clarity is needed when qualifying situations that are deemed
‘likely’ to lead to an
offence?”—[Official Report, 20 October 2008; Vol.
481, c.
88.] It
would be helpful if the Minister could respond to those concerns and
put the matter on the
record.
| 
