Schedule 2 (inserting Schedule 19C in the 2000 Act)

210.     The provision of civil sanctioning powers in Schedule 19C to the 2000 Act, as inserted by Schedule 2 to the Bill, raises a number of issues around Convention rights. The most significant issues relate to Article 6 (right to a fair trial) and the Bill contains appropriate safeguards to ensure compatibility with that and other Convention Rights.

211.     The first safeguard as regards Article 6 relates to the standard of proof. Before a fixed monetary penalty or a discretionary requirement (monetary or otherwise) may be imposed the Commission must be satisfied to the criminal standard of proof (i.e. beyond reasonable doubt) that a prescribed offence has been committed or a prescribed restriction or requirement has been breached. In contrast a stop notice is essentially preventative in nature. Because of this, a different standard of proof (reasonable belief) applies.

212.     Whether the criminal or civil limb of Article 6 is engaged, the Article requires access to an independent and impartial tribunal in certain circumstances. In recognition of this, a final decision of the Commission to impose a fixed monetary penalty, discretionary requirement (whether monetary or otherwise) or stop notice is subject to an appeal to a county court. Other related enforcement decisions (including a decision to impose a non-compliance penalty for failure to comply with a discretionary requirement and a refusal to issue a completion certificate in respect of a stop notice) allow the same right of appeal. These appeal rights are sufficient to ensure that the provisions are compatible with Article 6 by providing a direct right of appeal to the county court, which stands free of any additional right to seek judicial review.

213.     There is no right of appeal as regards enforcement undertakings. Given the voluntary nature of these arrangements, the absence of any dispute between the parties and the fact that failure to comply does not have direct consequences in terms of civil or criminal liability, neither limb of Article 6 is engaged.

214.     A third safeguard, contained in paragraphs 4(1) and 8(1) of the inserted Schedule, is that no criminal conviction may be pursued where a decision has been taken to impose a civil penalty that is potentially capable of classification under the criminal limb of Article 6. There are exceptions to this where the sanctions in question do not feature a punitive element. For discretionary requirements an exception to this rule applies where a person fails to comply with a non-monetary discretionary requirement and a variable monetary requirement has not also been imposed. A similar exception is made in respect of enforcement undertakings that are not complied with. Because these sanctions are not punitive in nature the possibility of further criminal or civil proceedings should be preserved in case the entirely preventative requirement is not complied with.

215.     In order for this measure to be fully effective, time limits for criminal prosecution in the event of such failure may be extended by order (see paragraph 21 of the inserted Schedule). In making any order of this type the Secretary of State would be bound by section 6 of the HRA to ensure that these time limits are not given retrospective effect so as to contravene Article 7 of the ECHR (no punishment without law).

216.     A requirement in a stop notice to cease carrying on an activity could impose a constraint on the ability of an individual or organisation involved in the political process to act in certain ways. A requirement of this sort could be said to engage Article 10 of the ECHR (freedom of expression). Article 10 is unlikely to be engaged as it does not provide a right to participate in the political process in breach of domestic law regulating such participation. Even if Article 10 is engaged, there should be no interference as a stop notice seeks to prevent unlawful acts rather than lawful participation in the political process. In any event, the high threshold to be satisfied before a stop notice can be issued should ensure that any decision to do so is justified and proportionate in pursuit of a legitimate aim.

217.     In addition, Article 1 of Protocol 1 (protection of property) might be said to be engaged, depending on the factual circumstances. However, if engaged, then, for the same reasons given in respect of Article 10, any interference would be justified and proportionate in the pursuit of a legitimate aim.

218.     Paragraph 27 imposes an obligation on the Commission to include in their annual report a summary of the cases in which civil sanctions have been imposed. There is a wide discretion about what a report may contain and the power should be capable of being exercised fully compatibly with Article 8 (right to respect for private and family life) should it be engaged. As an extra safeguard, paragraph 27(2) enables the Commission to omit anything that it thinks (a) would or might be unlawful, or (b) might adversely affect any current investigation or proceedings.

219.     Paragraph 28(1) enables specified bodies to provide information which they hold, or which is held on their behalf, to the Commission for the purposes of enabling the Commission to exercise any powers provided by Schedule 19C. It will be for the named bodies to ensure that the power is exercised compatibly with Convention rights, notably Article 8. In all cases, the exercise of the power should be in pursuit of a legitimate aim (i.e. that of enabling the Commission to perform its regulatory role properly and effectively). Whether the purported exercise is proportionate to that aim will be a matter for the disclosing body to consider in each case.

Schedule 4 (inserting Schedule 19A into the 2000 Act)

220.     The requirement in paragraph 2 of new Schedule 19A for an unincorporated association to provide details about gifts made to it before it is public knowledge that that the new reporting requirements apply to it may raise an issue relating to Article 8 ECHR in individual cases. That is because the potential twin effect of the requirements that the unincorporated association to report details about such gifts to the Commission and that the Commission to include those details on a register available for inspection by the public would be to require disclosure of details that an individual did not know would be publicly available at the time that the gift was made.

221.     It is conceivable in some cases of this type that an individual or organisation that has made a gift may subsequently become associated with an unincorporated association and the party or individual or entity to which it has donated in a way that was not anticipated. It may also lead that person to be associated with a party or entity to which donations were made by the unincorporated association and whose aims the person does not support. If the result is to identify that person publicly with the aims of that party, particularly if that association has an adverse consequence for the individual, then an Article 8 issue may arise.

222.     Paragraph 8(2) of the new Schedule will mean that the Electoral Commission will be able to consider the concerns about inclusion in the register of the details of any gift made to an unincorporated association in these particular circumstances. Paragraph 8(2) makes specific provisions in relation to a gift made on a date before the register is altered to show that the unincorporated association is subject to the Schedule 19A reporting requirements. In such a case the Commission will be required to make reasonable efforts to serve a notice inviting representations within 45 days about the proposed inclusion of the relevant detail in the register. If representations are received in response to that notice the Commission must take account of them before deciding whether to include the information in the register. This will allow the Commission to fully take into account any issue relating to Article 8 that an individual may wish to raise when deciding whether or not to include the detail in the register.

223.     It is not considered that the same Article 8 issue arises in respect of gifts made after the registration point. In those circumstances the fact that the details of the gift will be made public is capable of being ascertained and taken into account by the individual making the gift before it is made.

Clauses 22 and 23: Schemes for the provision of data to registration officers

224.     These amendments enable the Secretary of State to make provision in an order made by statutory instrument to require a specified public authority or local authority to provide a specified registration officer with information for the purposes of assisting the registration officer to secure, so far as is reasonably practicable, that his register and other records relating to electors are accurate.

225.     In general, under current legislation, organisations which hold personal data may share that data where they are not barred by statute (or by the effect of Article 8 of the ECHR, the common law, or the law of confidence) from doing so and where it is not prohibited by the various provisions of the Data Protection Act 1998. Where one of the controllers is a body governed by administrative law, there are likely to be restrictions upon what actions it has the power to carry out within the governing framework of public law. Statutory bodies in particular are only able to act as is provided for by statute.

226.     Where an order is made under the new power, it will have the effect of removing all barriers to data sharing between the public or local authority and the registration officer that might otherwise have obstructed the scheme. Therefore, the amendments may engage Article 8 because they provide a means by which the further processing of an individual’s personal data can be expressly authorised, even though it might otherwise have been prevented. However, where Article 8 is engaged by the terms of a particular scheme, any interference may be justified as being in accordance with the law, necessary in a democratic society and in pursuit of a legitimate aim in accordance with Article 8(2). Specifically, each order will be made by statutory instrument and will be subject to the affirmative resolution procedure. The new provisions state that an order can only require data to be transferred from a public authority to a registration officer for the purpose of assisting them to ensure that their register, or other records relating to electors, are accurate and complete. Ensuring that the electoral register is, so far as practicable, accurate and complete is a legitimate aim. As the power is tied to achieving that aim, and as Ministers are subject to section 6 of the Human Rights Act 1998 when exercising the power to create a scheme, it will be for the Minister to ensure that in each instance the order is proportionate to that aim.

COMMENCEMENT DATES

227.     By virtue of Clause 29, the following Clauses will come into force on Royal Assent:

• Clause 1(1) and (3) (compliance with controls imposed by the 2000 Act etc);

• Clause 4 (selection of prospective Electoral Commissioners and Commission chairman);

• Clause 5 (four Electoral Commissioners to be persons put forward by parties);

• Clause 7 (political restrictions on Electoral Commissioners and staff);

• Clause 12 (Reports of gifts received by unincorporated associations making donations);

• Clause 15 (election expenses: guidance by Commission);

• Clause 19 (filling vacant European Parliament seats in Northern Ireland);

• Clause 24 (interpretation);

• Clause 25 (amendments and repeals) and various provisions in Schedules 5 (minor and consequential amendments) and 6 (repeals) so far as relating to the above Clauses;

• Clauses 26 to 30 (various general and supplemental provisions).

228.     All other Clauses will come into force on a date to be appointed by the Secretary of State, by an order made by statutory instrument.