Political Parties and Elections Bill

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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,’.
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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