Mr.
Wills: I am grateful to the hon. Member for Huntingdon for
raising those concerns; he makes perfectly valid points. Nevertheless,
we think that a statutory commitment to tie publication of guidance to
the date of commencement would be excessive. However, I am happy to
announce that we are making a commitment to commence the provisions
making civil sanctions available to the Electoral Commission only once
it has published its guidance on how it will operate them. That is
certainly not inconsistent with our guidelines, to which the hon.
Gentleman referred. Both the Government and the commission are keen to
demonstrate that these powers will be used fairly and sensibly. I know
that guidance will help reassure hon. Members of that. The commission
is writing the guidance and will publish it as soon as possible, but I
hope that the comments I have made in response to amendment No. 58 will
reassure the Committee. The regime will operate fairly and effectively
only if guidance is published before commencement, rather than in the 28
days following commencement, as the amendment provides
for.
Amendment
No. 59 would explicitly put in the Bill that when considering the
imposition of civil sanctions, the commission would not have to act in
accordance with the guidance. That would mean that the commission could
act otherwise than with regard to the guidance, if it were in the
public interest for it to do so. I understand that these are probing
amendments. If the intention behind the measure is to ensure that the
commission’s hands are not tied by its own guidance when it
would be in the public interest to depart from it, I agree with that in
principle. The commission should be able to operate the civil sanctions
regime in a flexible and appropriate manner—those are the words
to which we keep returning: “flexible” and
“appropriate”—to ensure that it is effective.
However, it is not necessary to put that in the Bill. The Electoral
Commission would be bound only in operating the civil sanctions regime
by the law itself
anyway. By
contrast, the guidance is precisely that: it is a strong indication of
what will happen in practice, but there is no absolute guarantee of
that. After all, we must recognise that different cases will call for
different approaches and, inevitably, guidance will not be able to
anticipate every possibility. It is right for published guidance not to
bind the commission’s hand in law. However, guidance must inform
what the commission does and the commission’s approach, and it
must be considered carefully and seriously by the commission in
carrying out its
functions. Quite
legitimately, guidance will create expectations among the general
public about how the commission will act. A consistent approach towards
that, which, of course, the guidance is intended to facilitate, will be
key to ensuring that the public and those whom the commission regulates
have confidence in it. That is why we have expressly provided that it
will be necessary for the commission to have regard to the guidance
when considering the imposition of civil sanctions, even if it later
chooses to depart from the approach set out in the guidance. It the
commission does depart from the approach set out in the guidance, it
will need to explain why it thought it was appropriate and reasonable
to do so. If it is unable adequately to defend its departure from
guidance on objectively justifiable grounds, it may find its actions
vulnerable to challenge by way of judicial
review. Having
given that explanation, I hope that the hon. Gentleman will not press
that
amendment.
Mr.
Djanogly: I thank the Minister for his comments. I agree
with him in relation to amendment No. 59, but I am pleased he has been
given the opportunity to set out the nature of how the guidance process
works. On amendment No. 58, we are pleased to hear that the Government
have agreed that the provisions will not come into effect until the
guidance has been published. That is very good news indeed. On that
basis, I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Djanogly: I beg to move amendment No. 60, in
schedule 2, page 32, line 10, leave
out paragraph 26.
The
amendment is probing. Will the Minister share with hon. Members how the
consolidated fund works, and how it is administered and controlled?
What parties
have access to it and what funds are held in it? In addition, on what
basis can funds be removed from it? It is worth while putting an
explanation of that on the
record. 3.45
pm
Mr.
Wills: I accept the probing nature of the amendment and am
flattered that the hon. Gentleman thinks that I carry the body of
academic knowledge to answer all those far-reaching and comprehensive
questions, which—with all due respect, Mr.
Atkinson—might be slightly outside the scope of the
Bill. Nevertheless,
I am happy to write to the hon. Gentleman with a full account in answer
to all those questions, and I hope he finds time to read it and return
to me with any further questions. In the meantime, I will give an
account of why we intend to resist the amendment, because it raises
important questions of principle that I am not sure he necessarily
wished to
raise. The
fines and monetary penalties will be paid into the consolidated fund,
as in other examples, because doing so is an important safeguard
against regulators seeking to impose monetary penalties for their own
financial benefit. The hon. Gentleman said that the amendment is
probing, and I take it in that spirit. Otherwise, I cannot imagine why
he would want to remove that important safeguard. If those penalties
were retained by the commission instead of the consolidated fund, whose
workings will shortly be revealed to the Committee in exhaustive detail
by letter, the commission would clearly have a financial incentive to
impose monetary penalties. That would be unwelcome and undermine its
credibility, so on that basis I very much hope that he will withdraw
the
amendment.
Mr.
Djanogly: I am pleased that the Minister has put that on
the record, which is simply what I wanted. On that basis, I beg to ask
leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Djanogly: I beg to move amendment No. 61, in
schedule 2, page 32, line 20, leave
out from ‘shall’ to ‘specifying’ in line 21
and insert ‘publish an annual
report’.
The
Chairman: With this it will be convenient to discuss the
following amendments: No. 136, in schedule 2,
page 32, line 20, leave out ‘from
time to time’ and insert
‘annually’. No.
62, in
schedule 2, page 32, line 33, at
end insert— ‘(3) In a report
the Commission will not specify the names of those persons who have
been the subject of the cases specified in sub-paragraphs 1(a), (b) and
(c), save where the amount of any penalty exceeds
£1,000.’.
Mr.
Djanogly: The amendment relates to paragraph
27(1) of the proposed new schedule, which deals with the
commission’s obligation to produce reports on the use of its
civil sanction powers. It proposes that the commission should be
required to produce a report annually, rather than from time to time,
as the Bill requires. That is also the substance of amendment
No. 136, tabled by the hon. Member for Carmarthen, West and
South Pembrokeshire.
Given that
those are entirely new powers and that the commission has shown
reluctance in various areas, it is important that there is a review
mechanism by which the Government, the commission and the public can
assess how it is using those powers. Furthermore, the lack of
statistical data on the actions of the commission has meant that
reports to date and the background to the Bill have often been hampered
by a lack of concrete evidence on which to base decisions. Instead, we
have had to rely on the empirical evidence that the commission supports
the need for greater powers, and something sits uncomfortably with us
when we view it in that way. The annual reporting requirement should
not prove unnecessarily burdensome, given that the commission already
produces an overall report of its work throughout the year.
Amendment
No.62 would insert a threshold test into paragraph 27(2), which deals
with the details of offences committed by individuals that may be
excluded from the commission’s reports published under
paragraph 27(1). We feel it appropriate to set a high
threshold of £10,000 so that only the most serious cases of
abuse would be
captured. We
have no intention to penalise twice—with financial penalties and
public censure—those at the lower end of the spectrum. Having
said that, once the threshold has been passed, there could be
advantages in the details being freely accessible in the public domain
so that the worst offenders were subject to public scrutiny, which
would act as a further
deterrent.
Nick
Ainger: Amendment No. 136 is also probing. Earlier, the
Minister moved Government amendment No. 126, which proposed that
information on the investigatory powers of the commission be included
in the annual report. Paragraph 27 of the proposed new schedule implies
that from time to time reports will be produced on the use of the civil
sanctions that the commission has imposed. Does that mean that whenever
a sanction is imposed there will be public report on the case? Is that
why the Bill says “from time to time” or does it mean
that perhaps every 18 months a report will be produced that lists the
series of different issues and cases where civil sanctions have been
used? If
the commission is producing an annual report, either it could put
together all the different reports on civil sanctions that had been
taken in that year and publish them, or it could publish a report once
a civil sanction case had been concluded. Perhaps that is why the
measure is drafted in this way. Should a report be produced each time a
civil sanction issue has been settled or should they all be brought
together in an annual report, in the same way that the investigatory
powers issues are brought together in an annual report? I would be
interested to know the purpose behind the wording of the
measure.
David
Howarth: The hon. Gentleman has essentially asked the
question that I intended to ask, but let me put it in a slightly
different way. What publicity, in the normal course of events, will a
fixed penalty notice case have? Will the information about the identity
of the person required to make a payment be discoverable under freedom
of information legislation? Will it be published in the normal course
of events or be treated as essentially a private matter between the
parties?
Mr.
Wills: My hon. Friend the Member for Carmarthen, West and
South Pembrokeshire made compelling arguments. The Government are
persuaded by the arguments that they have heard and would like to
consider accepting the amendments. However, for the avoidance of
problems down the line, I would like to ensure that the drafting does
not cause any technical difficulties. We should also, as a matter of
courtesy and principle, consult the Electoral Commission on
this. Certainly,
we are disposed to accept the principles behind the amendments. If I
may, I will come back to the Committee with a proposal to accept the
amendments or something very similar in due course. With that, I hope
that the amendment will be
withdrawn.
Mr.
Djanogly: We are approaching the end of what has been a
pretty full day and that is a welcome thing to hear from the Minister.
I thank him for agreeing to come back to the Committee on these
proposals. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Djanogly: I beg to move amendment No. 63, in
schedule 2, page 32, line 36, at
end insert— ‘(aa) the
Serious Fraud
Office,’. We
come to the final amendment to the schedule. Amendment No. 63 would
amend paragraph 28(1), which sets out the bodies whose files and
information
the commission will have a right to access when exercising its powers,
by including the Serious Fraud Office in the list of bodies with which
the commission can share information. It is important that there is
communication between the various agencies. Efficient use of
information can not only save valuable financial and administrative
resources, but will help the enforcement environment as a
whole. Mr.
Wills: It may well be that the commission would benefit
from a statutory power to access information such as that held by the
Serious Fraud Office, but we would need to consider the wider
implications of such a change and any implications as regards the
framework for other regulators as established by the 2008 Act. I would
be interested to hear more from hon. Members about their reasons for
tabling the amendment, but we will give the point further consideration
if, for the time being, the hon. Gentleman is happy to withdraw the
amendment.
Mr.
Djanogly: I am indeed. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Schedule
2 agreed
to. Further
consideration adjourned.—[Ian
Lucas.] Adjourned
accordingly at five minutes to Four o’clock till Tuesday 18
November at half-past Ten
o’clock.
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