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
one’s 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 Commission’s 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
altogether clear what the additional wording seeks to achieve, but it
does not obviously add anything to the existing appeal right, which
enables any person served with a stop notice who has been refused a
completion certificate to appeal on certain specified grounds. Such an
appeal will inevitably require an application to be made. I do not see
how giving a role to the commission in deciding whether an appeal
should be allowed would improve the process. Indeed, such a role could
be thought in some circumstances to restrict the process, which is not
desirable given the serious nature of stop notices. I hope that hon.
Members will not press the
amendment. 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.
Mr.
Djanogly: I beg to move amendment No. 53, in
page 27, line 40, leave out paragraph
16.
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 position—if
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. 3.30
pm
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 regime—I return again and again to the
concept and principle of flexibility—albeit 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 Minister’s 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.
Mr.
Djanogly: I beg to move amendment No. 57, in
page 31, line 2, leave out paragraph
24. 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
funds to pay the amount that is required of it? The general law is that,
in those circumstances, the directing committee of the unincorporated
organisation is liable and in certain circumstances, although it is
rarer than people think, the individual members are liable. The Bill
says that the amount “shall” be paid out of the funds of
the unincorporated association, but there seems to be a puzzle, or gap,
as to what would happen in those
circumstances.
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 that—as with civil debtors—it 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
it—those mentioned by the hon. Member for Cambridge—would
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.
Mr.
Djanogly: I beg to move amendment No. 59, in
page 32, line 8, at end
insert ‘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 waiver—if we can call it
that—which 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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