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In the end, we are dealing with politics, which is a voluntary activity. We all have our obligations, but we do not want, for example, to criminalise the local party treasurer because he is in his 80s and has not studied the small print of something—someone who could not be any further away from wanting to do something dishonest. We have to take the process forward in a sensible fashion, and that has not been the case before now.
Dr. Alan Whitehead (Southampton, Test) (Lab): I am a little puzzled by the insistence on a Division on the question of whether a final appeal under these procedures should go to the High Court rather than the county court. The question is not where the appeal ends up, but the time during which someone may be proto-criminalised while a procedure takes place. That may well result in an appeal being taken to a county court, or in the case of the final appeal, to the High Court. That was the thrust of an amendment suggested in Committee by my hon. Friend the Member for Battersea (Martin Linton), to which I contributed, on the making of a defence prior to a proceeding taking place by application to a court about the nature of an omission or act that could invoke proceedings.
The ability to obtain a certificate prior to those proceedings taking place relates to the argument about the defence of democracy, and the extent to which people undertaking acts that they consider to be part of their duties in representing the public in the political process can be criminalised by implication long before anything has been decided. As was suggested in Committee, people can end up camped outside people’s doors, and a series of articles and comments can be published in the press and the media about something that has yet to be determined.
Under the existing process for considering whether an offence has been committed, there is no provision for redress while the process is undertaken. The idea of being able to prevent that process from going any further through the application for a certificate seems to provide the way forward, given several of the discussions we have had this afternoon. My right hon. Friend the Minister suggested in Committee that further examination of those ideas might be undertaken before the Bill had run its course through this House and another place. It would be helpful to our considerations if he could indicate whether such considerations might be provided through further amendments, or other provisions, to introduce a more proportionate system before the Bill returns to this House from the other place and we make our final consideration of it.
The Minister of State, Ministry of Justice (Mr. Michael Wills): I rise to address the new clauses tabled by my hon. Friend the Member for Leeds, North-East (Mr. Hamilton) and then, I am afraid, to resist the cornucopia of Opposition amendments. I shall also speak to the Government amendments.
I have a great deal of sympathy with my hon. Friend’s arguments and instinct, but I ask the House to resist new clauses 3 and 4. If we want a proportionate and flexible Electoral Commission, as I believe Members of all parties do, new clause 3 will not help. We have broad cross-party agreement that we need a strong regulatory regime, enforced by a rigorous and effective regulator. Much of the Bill is designed to make improvements in
that direction. That is not to say that the commission must act harshly, and of course sometimes it should not act at all, as in the case of small-scale late reporting cases caused by an inadvertent mistake or an accident by a volunteer.
It is worth remembering that the commission has discretion and is not compelled to impose a penalty in all cases. The new clause would force the commission to issue a fixed monetary penalty in all cases of the three offences to which it relates. That runs counter to the idea of a flexible sanctions regime, which underpins much of the Bill. It might even have the unwanted side effect of suggesting that fixed monetary penalties must be imposed for all such breaches, rather than enabling the commission to take the proportionate, case-by-case approach that I believe we all want. That is important, because the Bill will allow the commission to use its expertise to exercise discretion on the use of sanctions and apply them appropriately.
The commission may view a one-off breach as a minor infringement, but it may decide, on the evidence available, that behaviour such as persistent infringements indicates more serious activity such as evasion. It might also wish to take into account the scale of the late report or the amount of time involved, in deciding what penalty is appropriate, if any. It is important that we do not limit that flexibility from the outset.
The commission has published its draft enforcement policy, and I hope that Members with an interest will contribute their views. The document sets out the commission’s view that sanctions may be used in a more graduated and proportionate way under the Bill than is currently possible. As the House will know, it has said that it does not support a provision such as new clause 3, as it would
“remove our ability to use the most appropriate civil sanction to secure compliance and deter future non-compliance in any given case. This might be a variable penalty, restoration notice, compliance notice or enforcement undertaking rather than a fixed penalty, depending on the circumstances of each case and how serious the late or non-reporting was.”
There may be mitigating or aggravating circumstances to take into account, and the logic of flexible sanctions is precisely that the commission does not have to use a hammer to crack a nut or, as the right hon. Member for North-West Hampshire (Sir George Young) put it in the earlier debate, a steamroller to flatten a molehill. Equally, the commission’s hands will not be tied by sanctions that do not sufficiently match the offence. As part of the new regime, we expect it to use sanctions proportionately.
Martin Linton (Battersea) (Lab): Does my right hon. Friend accept that it should be a minimum requirement that before the Electoral Commission takes action on late payment, it has reason to suspect that that late payment is caused by a desire either to withhold information or to deceive? In cases in which there is no such suspicion and no reason to believe that, should it not decline to take action?
Mr. Wills: I am grateful for that intervention. My hon. Friend knows that we are planning to reconsider some of the issues that lie behind his remarks, and I shall revert to them in another context.
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It is important to remember that the commission must apply its expertise in judging precisely how the system should operate. We are trying to ensure that it has a battery of tools that enables it to operate proportionately. I hope that that reassures my hon. Friend. We expect the commission to act proportionately and it says that it intends to do so. Although it is for the commission to determine the matter, I anticipate that offences such as late reporting may be treated less severely than what could be considered a more serious offence in most instances, but not all circumstances are the same. I have given some indications of how what may at first appear to be a minor offence might appear more serious on closer inspection and investigation. We must leave the commission the flexibility and the range of instruments that it needs to deal with each case on its merits.
Mr. Djanogly: The Minister almost assumes that the commission will act proportionately. That may be the case with the existing commission, but we are legislating for the long term, and many amendments that Opposition Members and the hon. Member for Leeds, North-East (Mr. Hamilton) tabled, and many comments from other hon. Members, reflect concerns that the commission may not always exercise proportionality. Will the Minister deal with our anxieties?
Mr. Wills: Of course, the hon. Gentleman is right; it goes without saying that we are not legislating for the current commission but for all commissions for the foreseeable future. As he knows, we have already tackled many of his concerns. I will address each amendment in turn, and I hope that when he considers how I have done so, he will realise that we are conscious of the need to legislate for the future—and we believe that we are doing exactly that. I hope that I have reassured my hon. Friend the Member for Leeds, North-East sufficiently for him to feel able to ask leave to withdraw the clause.
I understand the reason for my hon. Friend’s tabling new clause 4, and I share the sentiments that lie behind it. Of course, the commission must use its powers proportionately, after carefully considering the facts of each case. He asked whether I believed that the Electoral Commission was above Parliament. Of course it is not, but we must constantly remind ourselves—the hon. Member for Cambridge (David Howarth) keeps reverting to the point—that the Electoral Commission must be entirely independent of Parliament. It is not for Ministers to influence or try to influence how the Electoral Commission exercises its functions, still less the way in which it makes its decisions. That is why I said that the Electoral Commission would decide on the facts of the case whether to refer anything to the police.
I am not convinced that setting up an independent panel in statute to provide guidance and a code of practice to the commission is an appropriate way forward. The Electoral Commission was established to be statutorily independent. As with other regulators of its kind, there is an arrangement whereby the electoral commissioners lead the commission’s strategy and set its priorities, and the commission will consider what guidance is necessary to explain its role and the regulatory framework in which it operates. For precisely that reason—its operational independence—the commission reports directly to Parliament, including through the Speaker’s Committee.
If we provided another body on top of the commission, would that result in more or less clarity of responsibility? I believe that it would result in less clarity. Who would be responsible for individual decisions—the panel or the commission? If the commission disagreed with the panel’s advice, would it be bound to adhere to the advice or could it disregard it? New clause 4 would unnecessarily complicate the picture, make regulation more difficult and possibly produce perverse consequences that no hon. Member would welcome. It is not practical for the commission to be required to seek advice from the panel routinely before making decisions that relate to its investigatory powers or sanctions. That might lead to all sorts of complexities and unnecessary delays. Decisions should be for the electoral commissioners and the commission staff, who are recruited because they have experience and expertise in the field.
As hon. Members know, we have taken direct steps to assist the commission to become more aware of the political environment in which it operates. Everyone who has spoken during the various stages of the Bill’s passage through Parliament has drawn attention to the need for the Electoral Commission to become more sensitised, if I may put it that way, to the democratic political environment. That is why we are introducing provisions in the Bill enabling the appointment of a minority of commissioners who have recent experience from across the political spectrum. That will be in addition to the parliamentary parties panel, which already exists for consultation with party administrators and practitioners.
The Bill already includes the requirement for the commission to publish guidance on how it intends to use its powers and sanctions, and to consult such persons as it considers appropriate before publishing or reviewing such guidance. In its evidence to the Public Bill Committee, the commission indicated that it intended to consult political parties and interested people in Parliament regarding the guidance on the use of those powers. It is open to the commission to establish and seek advice from an informal advisory group of individuals whom it believes can provide experience and guidance on any aspect of its functions. The commissioners previously established a small reference group in that way and there is no reason why they should not do so again. However, the establishment by statute of a formal panel to issue guidance or advice to which the commission would be required to have regard is something very different.
Mr. Fabian Hamilton: Does my right hon. Friend not accept that the motivation behind new clause 4 was to ensure that the commission, which up to now has not been consistent in investigating various infringements, were consistent and monitored in respect of such consistency? Can he assure me and the House that what is proposed will ensure such consistency, which has been so sadly lacking?
Mr. Wills: That is precisely the intention. I have said already that I fully understand the sentiment behind my hon. Friend’s new clause 4. Indeed, I think that every Member of the House is in sympathy with that sentiment, but we have to ensure that the Bill works. With all respect to him, I do not think that new clause 4 would have the effect he wants. In fact, as I have already said, it may have perverse consequences.
The way in which the Electoral Commission has conducted itself and the evidence that it has given show that it shares that sentiment and wants to improve its performance. Everyone wants to see that happen, and that is the direction in which the Bill is designed to move us. However, whatever we do in trying to provide the commission with the tools to improve its performance, we must not do it in a way that seeks, or could be seen to seek, to interfere unduly with the discharge of its regulatory functions.
The hon. Member for Cambridge has said on many occasions—every time he has said it, I have agreed with him—that if we are to depart from the regulatory framework that we have already set up, possibly on the basis that, as the hon. Member for Huntingdon (Mr. Djanogly) said, regulating democratic politics is perhaps categorically different from regulating other areas of public life, we must do so only if there are truly compelling grounds. We will return to that point again and again in our discussions, but in the meantime, I hope that my hon. Friend will not press his new clause 4, as I will have to oppose it, sympathetic as I am to its intent.
Let me make it clear that I do not want to do anything that might appear to diminish the commission’s independence. New clause 4 might have that effect. I certainly believe that it would hamper the commission’s operational effectiveness and make it less efficient in the discharge of its duties. New clause 4 would muddy the waters by making the lines of responsibility for decisions less clear, which is profoundly unwelcome and also unnecessary, given the steps that we have already taken to equip the commission better to understand the field that it regulates and to explain its actions to those whom it regulates.
Mr. Djanogly: The Minister said that we were talking about differentiating the commission’s activities from other aspects of public life, but the legislation to which the hon. Member for Leeds, North-East (Mr. Hamilton) referred probably deals mainly with commercial life.
Mr. Wills: I was including commercial life in the phrase “public life”—or, if I can be precise, “matters that affect the general public”. I hope that that reassures the hon. Gentleman. Anyway, I hope that I have said enough to persuade my hon. Friend the Member for Leeds, North-East not to press his new clause 4.
My hon. Friend asked about dual reporting and when section 59 of the Electoral Administration Act 2006 would be commenced. Those Members who were present earlier will have seen that the Committee on Standards and Privileges report was approved after a somewhat lengthier discussion than some of us had envisaged. The Electoral Commission has indicated that it will move swiftly to notify the Justice Secretary that it is content that it will receive all the information that it needs. Once that notification is received—as has been discussed today, that is a prerequisite for commencement—the Justice Secretary will commence the provision at the earliest opportunity. The right hon. Member for North-West Hampshire suggested that administrative changes to House procedures should enable commencement by June at the latest.
Let me turn to Opposition amendments 59 to 62. I suppose that I should compliment the hon. Member for Huntingdon on his persistence, because pretty well identical
amendments were tabled in Committee which he said were probing amendments. They were not put to a vote, but I am happy to try to persuade him not to press them once again. Practically, amendments 59 to 62 would have the effect of preventing the Electoral Commission from applying a fixed monetary penalty to any of the regulated entities concerned for the contravention of a prescribed restriction or requirement. Amendments 59 to 62 go against the flexibility of the system that we are seeking to introduce.
It is worth putting it on record again that the Committee on Standards in Public Life recommended that civil sanctions should be made available in instances that could be considered more minor and where it said that administrative penalties would be more appropriate. Accepting amendments 59 to 62 would mean that this lightest-touch penalty, which is generally available to the commission under the relevant schedule, would not be available in those sorts of cases where it may be particularly appropriate. That would be illogical if we are serious about adopting a proportionate approach.
Finally, amendments 59 to 62 fail to take account of the existing provisions in the Political Parties, Elections and Referendums Act 2000. Acceptance of them would remove the commission’s limited ability to impose civil penalties in relation to certain breaches of the 2000 Act. The fixed monetary penalties in schedule 2 of the Bill replicate the present system in section 147 of the 2000 Act. For example, where a party fails to inform the commission of a change of treasurer, as required by section 31(4), the Electoral Commission can currently impose a civil penalty. Should amendments 59 to 62 be accepted, the commission would still be able to apply a fixed monetary penalty, but only when a prescribed offence had been committed. In addition, the other civil sanctions would continue to be available in respect of prescribed restrictions and requirements, which would add inconsistency.
By preventing the application of those new sanctions to prescribed restrictions and requirements, we would be in danger of binding the commission’s hands. We believe that it must be for the independent Electoral Commission to determine when a fixed monetary penalty or any other appropriate civil sanction should be used where a prescribed restriction or requirement has been contravened. The commission must be allowed to use its expertise to determine what mitigating or aggravating factors might be taken into account. That is proportionate and allows each case to be approached on its merits. On that basis, I hope that the hon. Member for Huntingdon will not press amendments 59 to 62.
Mr. Djanogly: I would appreciate it if the Minister addressed the concerns that many people have expressed about the possibility of imposing a large penalty for a minor civil offence.
Mr. Wills:
I can only refer the hon. Gentleman again to what the Electoral Commission has said. It has made it absolutely clear that it will approach each case on its merits and proportionately. The dictionary definitions in respect of what he has just described are that it is not proportionate. We have to accept what the Electoral Commission says and be extremely careful about binding
its hands. I refer him back to what I have just said: what he is suggesting in amendments 59 to 62 may have the perverse consequence of producing the opposite result to that which he is seeking.
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