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Mr. Wills:
The hon. Gentleman has already answered his own question in his responses to the hon. Member for Cambridge (David Howarth). He said—I hope I am paraphrasing him correctly, but forgive me if I am not—that most people would agree that regulating the democratic process is different from regulating, for example, commercial life. If that is the case, it is an important
principle of transparency—as I have said, it is anyway a fundamental principle that when penalties are imposed they should be made public—that the fact that people have gone through the process, which contains a lot of safeguards as I have just described, and been fined for an offence should be known and made available to the public, whom we serve.
Mr. Djanogly: May I suggest that it is the Minister who has turned the argument on its head? He was arguing that everyone should be treated equally. Now he is saying that they should be treated differently. The more I hear of this, the more I think it is something that we shall have to return to.
Mr. Wills: No. I am afraid that the hon. Gentleman is paraphrasing me incorrectly. If he had listened carefully to what I said, he would know that I said that we should follow the framework set down by the 2008 Act, unless there is a compelling reason not to do so. I have been extremely careful to say that on every occasion that I have made that statement. I hope that that clarifies his confusion.
I hope, too, that we can all agree that full transparency, as far as is possible, ought to be a goal for us in relation to everything we do, and certainly in relation to the subject matter of the Bill. I hope that that can be common ground between us. If someone has been found guilty of an offence or a breach and has gone through the process, with all the safeguards embedded in it, and that process has reached an end, in our view it is right that that should be a matter of public record and the public, whom we serve, should be aware of it. The hon. Gentleman might disagree, but I think that that is the right way to go about it.
In a final effort to convince the hon. Gentleman of my point of view, I shall make one last point: such publicity and going on the public record might serve—in my view, it will—as a deterrent to behaviour of the sort that none of us wants to see. I hope that he will see fit not to press his amendments.
I want now to speak to Government amendments 23, 24, 25, 26, 27 and 28. This is a substantial group of amendments and I shall try to move through them in a logical order. The Government amendments will essentially result in a requirement for the Electoral Commission to include in its annual report details of its use of sanctions. Government amendment 23 will require the commission to include in its annual report details of its use of new civil sanctions. The Bill already contains the requirement for the commission to report on its use of sanctions from “time to time”. The amendment confirms that the report must be annual, in response to the constructive debate on the issue that we had in Committee.
The details that must be included in the report are cases where fixed monetary penalties, discretionary requirements or stop notices have been imposed, unless they have been overturned on appeal; cases where fixed monetary penalties have been paid and, therefore, liability accepted; and cases where enforcement undertakings are accepted.
During consideration in the Public Bill Committee, I accepted that annual reporting was acceptable in principle. I have since consulted the commission to confirm that it is content with that approach. It has stated in its latest
briefing note on the Bill that it supports the amendment, saying that it recognises that transparency is an important part of regulation.
That approach mirrors that which we have already taken in requiring the commission’s annual report to contain details on its use of investigatory powers. The commission is already required by the Political Parties, Elections and Referendums Act 2000 to lay an annual report before the House and in the other place. The amendment will result in information relating to the exercise of the new civil sanctions being included in that report. I hope that that additional scrutiny and openness will be welcomed.
Amendments 24, 25, 26 and 27 are all consequential and simply update the language of paragraph 27(1) of schedule 2 to bring it in line with that of paragraph 15(1), which also requires information on the use of investigatory powers to be included in the annual report.
Amendment 28 will ensure that the commission is not required to include in its report information on sanctions where it believes that it would be unlawful to include that information or where to do so would adversely affect any continuing investigation or proceedings. This is complex, so, if I may, I will explain in some detail its effects.
The first part of the provision is intended to cover circumstances where publication of the commission’s interest in a particular individual might breach that person’s rights under the Data Protection Act 1998 or the Human Rights Act 1998. For example, that could apply to an individual who had been under investigation but had not ultimately been given a civil sanction. The commission has already indicated in its draft enforcement guidance that it will not publish details in those circumstances, stating:
“We do not think it would be reasonable to identify regulated entities that are not sanctioned following an investigation in our reports of investigatory activity.”
However, we must be clear about the fact that where a sanction has been imposed, and the periods for representations and appeals have ended, it is consistent with article 6 of the European convention on human rights to make that public. Access to that information is also an important principle of transparent regulation.
That does not mean that the commission is required to publish full details of individuals. Indeed, it has indicated that it intends to publish only information that is essential for transparent regulation. That may be a name and the details of the sanction. The commission’s draft guidance invites views on the extent to which information should identify regulated bodies or individuals, and I am sure that it will take on board the views expressed by hon. Members in this debate and elsewhere.
The second part of the provision is designed to ensure that publication of the commission’s interest in a person does not jeopardise that person’s right to a fair determination of any proceedings that the commission might wish to bring against him or her. It should also help to prevent the commission from being obliged to publish details of an investigation in such a way that would risk undermining operational secrecy of the sort that is often necessary for an investigation to be effective.
Indeed, the commission’s draft guidance on enforcement helpfully indicates that it does not intend to identify individuals or organisations subject to continuing investigations, although it is the commission’s current policy to respond to questions directly in relation to investigations that are under way.
I hope that the House will welcome those amendments.
Mr. Fabian Hamilton: With the leave of the House, I am grateful to the Minister for his responses to my new clauses 3 and 4. The Government have gone a long way towards meeting some of the criticisms held by me and by many other Members of the House, which were expressed in Committee by various hon. Members.
I have two points to make. First, as I said in an intervention, police time could be better used to pursue criminals in the community, rather than people who have made an unintended breach of this legislation.
Secondly, will the Minister strengthen the safeguards against the use of sanctions on unintended errors in reporting in the context about which he has said so much this afternoon—the flexibility that the Electoral Commission must have, and the proportionality that it must exercise in dealing with such errors?
On the basis of what the Minister has said and with the permission of the House, I beg to ask leave to withdraw the motion.
6.30 pm
Mr. Djanogly: I beg to move amendment 46, page 16, line 24, leave out ‘or has been’.
Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following: amendment 47, page 16, line 25, at end insert—
‘(aa) has been the treasurer or another officer of an organisation to which this paragraph applies within the five years immediately prior to the date of the notice, or’.
Amendment 52, page 17, line 13, at end insert—
‘(6) For the purposes of this Schedule a person authorised by the Commission is a person who has express written authority of the Commission to act on its behalf and is one of the following—
(a) an employee of managerial level of the Electoral Commission;
(b) a member of a police force in England and Wales;
(c) a constable of a police force in Scotland; or
(d) a member of the Police Service for Northern Ireland.’.
Government amendment 13, page 18, line 5, leave out from beginning to end of line 9 on page 19 and insert—
‘Court order for delivery of documents3 (1) This paragraph applies where the Commission have given a notice under paragraph 2 requiring documents to be produced.
(2) A county court or (in Scotland) a sheriff may make a disclosure order against a person (“the respondent”) if satisfied on an application by the Commission that—
(a) there are reasonable grounds to suspect that a person (whether or not the respondent) has committed an offence under this Act or has contravened (otherwise than by committing an offence) any restriction or other requirement imposed by or by virtue of this Act, and
(b) there are documents referred to in the notice under paragraph 2 which—
(i) have not been produced as required by the notice (either within the time specified in the notice for compliance or subsequently),
(ii) are reasonably required by the Commission for the purposes of investigating the offence or contravention referred to in paragraph (a), and
(iii) are in the custody or under the control of the respondent.
(3) A disclosure order is an order requiring the respondent to deliver to the Commission, within such time as is specified in the order, such documents falling within sub-paragraph (2)(b) as are identified in the order (either specifically or by reference to any category or description of document).
(4) For the purposes of sub-paragraph (2)(b)(iii) a document is under a person’s control if it is in the person’s possession or if the person has a right to possession of it.
(5) A person who fails to comply with a disclosure order may not, in respect of that failure, be both punished for contempt of court and convicted of an offence under paragraph 13(1).’.
Amendment (a) to Government amendment 13, in sub-paragraph (2), leave out ‘A county court’ and insert ‘The High Court’.
Amendment (b) to Government amendment 13, in sub-paragraph (3), leave out from ‘within’ to second ‘such’ and insert
‘28 days of receipt of the order’.Amendment 9, page 18, line 6, leave out from beginning to first ‘on’ in line 7 and insert
‘The Electoral Commission may on notice apply to the High Court for an order, subject to sub-paragraph (1A),’.Amendment 3, page 18, line 6, after ‘may’, insert ‘, subject to sub-paragraph (1A),’.
Amendment 2, page 18, line 15, at end insert—
‘(1A) An order may be issued under this paragraph in respect of any premises used by a holder of a relevant elective office.’.
Government amendments 14 to 17.
Amendment 57, page 20, line 42, at end insert
‘and leave a copy of such authorisation with that person.’.Government amendments 18 to 22.
Mr. Djanogly: The amendments deal with the investigatory powers of the Electoral Commission. Let me provide some of the background. The commission was created by the Political Parties, Elections and Referendums Act 2000, which gave it supervisory powers. Its functions are set out in section 145, which stipulates that its role is as a regulator, with attendant responsibility to monitor parts 3 and 4 of the Act. Those parts relate to
“accounting requirements for registered parties and their members”
“control of donations to registered parties and their members”
In carrying out its role, the commission is empowered by section l46 of the Act to request information from any of a group of subjects, including political parties and candidates at an election. Additionally, a person
authorised by the commission may enter the premises of a registered party, a recognised third party or a permitted participant to inspect financial records. We should therefore appreciate that potent powers are already available to the Commission, as the Minister confirmed in Committee.
We support the existence of effective powers and will not revisit the PPERA powers here, but it is important for political activity not to be discouraged for fear of a heavy-handed, over-zealous and excessively empowered Electoral Commission. Furthermore, as the Minister acknowledged in Committee, the extensive powers that already exist have been used very rarely. Indeed, on Second Reading the Secretary of State for Justice confirmed that
“the existing powers have been used only once since the Electoral Commission was established nearly eight years ago.”—[ Official Report, 20 October 2008; Vol. 481, c.50.]
Above all, let us not forget that the Bill and the Electoral Commission’s powers have a common aim: restoration of confidence in the political system through the eradication of unfair and underhand practices. It is against that backdrop that we cautiously welcome the Government amendments, which, in our view, represent a significant improvement on the Bill presented in Committee. In particular, the provisions that empowered the Commission to enter the premises of donees—including MPs—for the purpose of monitoring has been withdrawn, while the ability to apply for a search warrant for the purpose of investigating a suspected offence or legislative breach has been entirely removed. Nevertheless, a number of reservations remain, and there is more work to be done before we can be fully satisfied.
Schedule 1 contains the provisions of a new schedule 19A to the 2000 Act, which is inserted in the Act by clause 2(2). In respect of schedule 1, I reiterate our conceptual support for an enhanced role for the commission as a regulator, but that support is not unqualified, and attention is now required as we address the detail.
Amendments 46 and 47 are intended to inject clarity. In the light of the commission’s wide-ranging powers, it is sensible to define the limits of the relevant provisions carefully. The amendments are linked, and introduce a specified time limit for the period in which a retired officer is subject to the disclosure notice provisions. We are keen to avoid a scenario in which long-retired ex-officers of political associations are subject to disclosure notices in relation to some long-forgotten donation or action: it is both unreasonable and impractical to extend this power to very historical actions.
From a more practical perspective, the likelihood of comprehensive records or documents being kept by an officer for more than five years after his tenure is small and the power would be difficult to enforce, especially in view of the limited physical space in which party officials often find themselves working. We must also be aware of the financial and administrative burdens that we place on such individuals and organisations, as well as the fact that many of the individuals concerned will have left such offices altogether and may even have left the country.
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