Political Parties and Elections Bill

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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.
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Prepared 14 November 2008