Political Parties and Elections Bill
David Howarth: We have already debated the principle of stop notices, and I said at the time that I thought that they were necessary. They are the equivalent of an injunction. There are circumstances in which activities need to be stopped and not just sanctioned in other ways, and it must not be possible to buy ones way out of a requirement.
The concern that was raised by the hon. Member for Isle of Wight is mainly about stop notices when the banned behaviour has not yet happened. He is right to some extent to be worried about that. In civil law, there are special ways in which to deal with the situation when the forbidden behaviour has not yet happened. That is the idea of the quia timet injunction. I should be happy if the Minister could explain to the Committee how similar considerations might be brought to bear in the context of the Bill.
Mr. Turner: I wish to add the sentence that the commission may serve on the person a notice rather than an outside body, such as the court, but it seems that someone other than the commission is taking charge of what is being proposed.
Mr. Wills: I will deal with the matter at some length because it is important. We have already debated it in a slightly different context, but I understand the concerns that have been expressed. The sanctions are severe. The hon. Member for Huntingdon said that the proposal was a probing amendment and that it would remove stop notices from the Electoral Commissions battery of powers, but we should be clear that it would severely weaken the range of sanctions available to the commission and its ability to act as an effective regulator.
Stop notices were recommended by the Macrory review, to which the hon. Gentleman has referred. They were recently brought into law under the 2008 Act and are available to several operators. We believe that they should be available to the Electoral Commission for the reasons set out by the hon. Member for Cambridge and to which I have alluded, in that there are certain circumstances when the potential sanctions that might follow serious transgressions would not be adequate to deter someone who is determined to break the law.
We have to be careful to give the Electoral Commission powers to prevent anyone from having the ability, for example, to buy the outcome of an election. That is unacceptable, and stop notices are an important part of the powers that we want to be available to the commission. As I have pointed out, a very high threshold must be overcome before the commission can impose a stop notice. We realise the seriousness of the matter, and we have set a high threshold. As well as having a reasonable suspicion that a prescribed offence or contravention of PPERA has taken place, or is likely to take place, the commission must reasonably believe that the harm caused by such a breach would seriously damage public confidence in the controls on party income and expenditure under the 2000 Act. Stop notices will be available only in what are likely to be rare cases when the breach or likely breach is such that it is necessary to impose a sanction to preserve the integrity of the controls under the 2000 Act.
There must be absolute clarity about the circumstances in which stop notices are imposed. They can be used in circumstances when the activity is likely to breach electoral law. We discussed that with the Electoral Commission, and it was clear that, if it had information that someone could be planning to spend a large sum during an election campaign that might switch the course of the campaign or determine its outcome decisively, it felt that it was necessary for it to have the power to intervene and impose a stop notice.
However, the same safeguards and hurdles have to be overcome. They are, I repeat, very high hurdles. In all circumstances, the ordinary principles of public law will apply, so a decision to impose a stop notice, whether on continuing actual activity or anticipated activity, will necessarily involve the commission first considering the full range of powers at its disposal, particularly whether any other of its sanctions are a more appropriate means of achieving its aim. Only when it has undertaken such consideration can it contemplate the imposition of a stop notice. That is a high hurdle.
A person may also apply to the commission for a completion certificate, which will discharge the stop notice and release the person from the obligations imposed, in circumstances where the person believes that he or she has fully complied with the notice. A refusal by the commission to issue a completion certificate is subject to a separate right of appeal to the county court, on the same grounds as an appeal against the original stop notice.
As I said, of course we understand that there are reservations about how stop notices will work in practice. Members have valid concerns about that and how such notices may be used incorrectly by the commission. However, they will be used only in carefully circumscribed circumstances. There is a wide range of civil sanctions, which we have been discussing and which is available to the commission, where the proscribed offence is less serious; in such circumstances, alternative sanctions should be used. The commission is under an obligation to consider those sanctions first, before going for stop notices. Nevertheless, we believe that the notices are fundamental, therefore we hope that the Committee will reject the amendment.
Amendment No. 52 inserts additional wording into paragraph 13(2) in schedule 2, which sets out the grounds for appeal against imposition of a stop notice. I am not
Mr. Djanogly: I am pleased that the Minister was able to give such a full explanation of why he thinks stop notices are necessary. Conceptually, they will be a useful arm for the commission. We shall look further at what he said, but at this stage I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman: With this it will be convenient to discuss amendment No. 54, in page 28, line 4, after made), insert
, but such provision shall not be more punitive than any provided for under this Act..
Mr. Djanogly: The amendment deletes proposed new paragraph 16 in schedule 2, which covers the general powers of the Secretary of State to make supplementary provisions by order. We are not sure about empowering the Secretary of State to create more legislation that is
supplemental...consequential...or incidental to this Schedule.
It could lead to excessive powers being taken.
The schedule, as I have been highlighting, hands broad and potentially powerful sanctioning capabilities to the commission. We are also concerned about some of the drafting of the schedule, particularly on the limitation of the powers for the safeguarding against abuse. We do not want to see the creation of yet more legislation empowering the commission further down the line without proper parliamentary consideration.
Amendment No. 54 inserts into proposed new paragraph 16(3) a qualification that any order may not be more onerous than those provisions already in the Bill. That is the fallback positionif we cannot convince hon. Members of the need to remove the provision, we seek to limit it, so that the Secretary of State cannot provide for further or more punitive sanctions.
Mr. Wills: Amendment No. 53 would remove proposed new paragraph 16 from schedule 2. The effect would be that no supplementary order could be made. That is not desirable, because it would prevent us from specifying crucial details to allow the provisions to work properly. However, I doubt that that is the intention. It is more likely that the amendment would prevent important details about how the power would work in practice from being left to secondary legislation.
We recognise that the detail of how the powers will be applied is crucially important. The way in which a monetary penalty will be calculated, for example, is very important. For that reason, a carefully produced order, subject to full consultation with the commission and other appropriate persons, is the right approach. That will ensure that all the necessary detail is subject to the appropriate level of scrutiny. The order will be subject to the affirmative resolution procedure if it deals with what offences, requirements or restrictions are to be prescribed or if it seeks to amend another Act of Parliament. If it deals solely with other matters, the negative procedure will apply. Both routes provide Parliament with the opportunity to undertake detailed scrutiny where that is thought appropriate.
It would be unhelpfully inflexible if details, such as the example of the calculation of monetary penalties, which might change over time, were set out in primary legislation. If we are serious about having a flexible sanctions regimeI return again and again to the concept and principle of flexibilityalbeit one that is certain and set out in legislation, we need this power.
Amendment No. 54 would amend paragraph 16(3), which allows for a supplementary order to be made by the Secretary of State to
make provision amending, repealing or revoking an enactment (whenever passed or made).
The amendment appears to seek to ensure that such provisions may not be more punitive than any provided under the Bill. However, the power in paragraph 16(3) is only intended to be used where consequential changes are needed to other bits of legislation because of the way the Bill works. For example, any provisions made about the powers of courts to deal with appeals may require changes to other legislation that also deals with that topic. Any such order remains subject to the affirmative procedure, therefore the amendment is not necessary. I hope that the hon. Gentleman will ask leave to withdraw his amendment.
Mr. Djanogly: The Ministers response does not surprise me. I have heard such a response on many occasions when discussing the need, or otherwise, for secondary rather than primary legislation. The position that I set out previously is fair. We are still concerned about paragraph 16(3), but at this stage I will not press the amendment to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 57 is a probing amendment that would delete paragraph 24 of schedule 2, which requires that fines are to be paid out of the funds of unincorporated associations. Would the Minister expand on what the purpose of this paragraph is and what mischief it seeks to prevent? What is the rationale behind the need to prevent that?
David Howarth: I have a further question to add to those asked by the hon. Member for Huntingdon. What happens if an unincorporated body does not have the
Mr. Djanogly: The hon. Gentleman raises an interesting point. If the money is not there, does the schedule imply that it should not be paid?
David Howarth: That seems to be one possible interpretation of what the Bill says at the moment. The other interpretation is that the general law applies and, in such circumstances, the members of the committee or of the association would pay. I will be grateful if the Minister explains what he thinks the schedule means in this regard.
Mr. Wills: I am glad that the hon. Member for Huntingdon made it clear that this is a probing amendment. It would remove the requirement for any fixed monetary penalty imposed on an unincorporated association to be met from its own funds, and it is unclear how the costs would then be met. As I have said many times, I understand the concern, but we must seek not to over-regulate the many volunteers who contribute to our political system. We are not minded to accept the amendment. We expect appropriate monetary penalties to be imposed by the commission. Any penalty must be reasonable, and if it is not, it can be appealed against. Where it is proven that an offence has been committed, an appropriate penalty should be imposed, and we see no reason why the body that has committed that offence should not be required to meet the cost.
The hon. Member for Cambridge raised an important practical point about what will happen if the body does not have the funds. We will look into that. We think thatas with civil debtorsit would involve the members of the association, but we will look into that and come back to the Committee with a definitive answer. Having set out the reasons behind the clause, I hope that the hon. Member for Huntingdon will withdraw the amendment.
Mr. Djanogly: That raises an interesting question, because political parties can potentially become insolvent and go bust. One way of reading the provision could be that in a situation where an unincorporated association is insolvent, the people behind itthose mentioned by the hon. Member for Cambridgewould not be liable. It is an important point, and I thank the Minister for agreeing to take it up and come back to the Committee, perhaps by letter. He nods his assent and I thank him for that. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
but such guidance will not be considered as mandatory if in the reasonable opinion of the Commission it would be in the public interest for them to exercise their functions otherwise than with regard to the guidance..
The Chairman: With this it will be convenient to discuss amendment No. 58, in page 32, line 8, at end insert
(9) The Commission shall publish the guidance specified under this paragraph no later than 28 days after the date of commencement of this Schedule..
Mr. Djanogly: The amendment inserts a provision that would give the commission leeway to deviate from its published guidance in exceptional circumstances. While accepting the need for guidance on the way in which the commission will look to enforce the provisions in the Bill, we do not wish to hamstring it by tying it to a course of action that flies in the face of the public interest and common sense. Therefore, we propose to insert a waiverif we can call it thatwhich would permit the commission to deviate from the guidance where it is appropriate for it to do so in order to fulfil its role as regulator and enforcer of the PPERA provisions in the public interest. This is a probing amendment.
Amendment No. 58 would insert new sub-paragraph (9) that sets out provisions on the guidance to be published by the commission in relation to the various sanctions available to it in the schedule. It would enable the proper implementation of the Bill, and would require the commission to produce guidance on enforcement within 28 days of enactment.
In their desire to push through the Bill, the Government are in danger of being in breach of their own code of practice on guidance. That states that guidance should be issued at least three months before any regulations come into effect. I quote:
To give organisations time to prepare for regulations, guidance will be issued at least 12 weeks before a regulation comes into effect, with some necessary exceptions... Sometimes more than 12 weeks will be needed, for example, if a regulation is complex or costly to implement
Guidance will be crucial for effective implementation and compliance by local party groups and organisations that will be on the front line in dealing with the legal requirements. Without guidance, they will be operating in the dark.
We have voiced our unhappiness about the rushed nature of the Bill on numerous occasions, and we believe that the amendment is important to ensure that once the Bill is enacted, guidance will follow shortly afterwards.
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