| Previous Section | Index | Home Page |
What concerned the Minister in Committee was that, given the wording of the amendment that we proposed then, officers of more than five years’ standing could be excluded even if they were still serving. That was clearly not our intention. We have taken this opportunity to
hone the earlier amendment, proposing amendments 46 and 47 to address its deficiencies. They address the point made by the Minister by removing the ability to serve a notice on an ex-officer who has been retired from the post for five years or more, while not limiting the ability to serve a notice on any current officer. An additional benefit would be the encouragement of expedient and efficient issuing of notices by the Electoral Commission. If the commission does not find grounds for investigation within five years of an officer’s retiring from a post, it is normally the fault of the commission rather than the individual or group.
Let me repeat that we are dealing with unpaid volunteers in our associations who involve themselves in politics because they want to give their time freely for what they hope will be the better of our society. We must, as far as possible, encourage them in that, and not put them off by unnecessary and burdensome liabilities. To that end, I intend to press amendment 47 to a Division.
The background to Government amendments 11 to 22 is contentious. Great concern has been expressed throughout the passage of the Bill about the excessiveness of the new “powers of entry” regime. Prior to the amendments, the Bill would have extended the Electoral Commission’s existing powers of entry under section 146 of the Political Parties and Electoral Reform Act to include other bodies and individuals such as donors and MPs. Quite simply, hard-fought personal liberties—specifically privacy—were at stake. Moreover, we were greatly concerned about potential erosion of the willingness of law-abiding citizens to donate to political parties and engage with the political system. A single abuse of the entry powers—perhaps the entering of a suspected but innocent person’s home—could have had grave consequences for donations generally, thus damaging the general aims of the Bill.
The Government amendments remove from the Bill the commission’s excessive power to enter the premises of regulated donees, regulated participants, candidates at an election and election agents. However, they replace the removed passage with a new paragraph (1A) which retains the commission’s ability to enter the premises of a registered party, a recognised third party, a permitted participant, a members’ association, or an organisation or individual formerly falling within any of those groups. The Bill will still permit the commission to enter premises other than those excluded by Government amendment 11 for the purpose of carrying out its functions, and it may then inspect documents relating to income and expenditure. Government amendments 12, 18 and 21 are consequential, and ensure that the remaining provisions of the schedule are consistent with the change.
On 11 November last year, in Committee, the hon. Member for Cambridge (David Howarth) expressed concern lest the wholesale removal of entry powers in relation to all donees, as proposed by what was then our amendment 102, would go too far and actually reduce the powers of the commission. In particular, the removal of “donees” from the paragraph would remove members’ associations—along with MPs—from the ambit of the provision. Government amendment 11 addresses that concern by including members’ associations in new paragraph (1A)(l)(d). The commission itself has also confirmed that the power conferred in Committee was not essential for its purposes.
We are now close to a position that is acceptable to all in terms of entry powers. Accordingly, we welcome this significant Government climbdown and the reduction in the commission’s power, and we are pleased that the ability to invade the privacy of MPs and other individuals will be removed. Even with these amendments, the commission will still possess significant powers to ensure it is equipped to tackle offences and infringements of the 2000 Act. Indeed, the drafting essentially preserves the status quo under the Act while removing the contentious provisions. To that extent, these amendments represent a significant retreat from the menacing position proposed in the Bill presented in Committee and return a much-needed balance to the schedule.
As amended by Government amendment 11, schedule 1 would make reference to those people “authorised by the Commission”. Such people are very important, and almost all the powers granted to the commission are available to these individuals. Unfortunately, there is no reference in the Bill to what constitutes a person “authorised by the Commission”. Considering the great powers placed in their hands, we consider that it would be better if they were a defined group of persons.
Amendment 52 proposes a solution, and defines
“a person authorised by the Commission”,
and who may be authorised by the commission to exercise its powers under the schedule. Who such a person can be has been intentionally restricted to high-level employees of the commission. In Committee on 11 November, the Minister expressed concern that this would be too “restrictive and inflexible”. However, the Minister went on to address this concern by confirming:
“The commission has no intention of using this power lightly”. ——[ Official Report, Political Parties and Elections Public Bill Committee, 11 November 2008; c. 175.]
Reconciling these two statements, I ask this question: is it not sensible that a power that will be rarely used, and employed only to tackle serious cases, is exercised only by the more senior members of the commission? It seems entirely reasonable to expect the commission to send a senior individual, ensuring that both the commission and the subject of the search take the process seriously. As things stand, the commission could theoretically send the cleaner along. Any lack of flexibility caused by this amendment reflects the need to exercise caution when exercising commission powers.
Government amendment 13 represents another progressive development in an area that was hotly disputed in Committee. First and foremost, it removes the power of entry by warrant introduced by paragraph 3 of schedule 1. This is significant, and shows the progress we have made in departing from the draconian provisions of the original Bill. Without this amendment, the Bill would permit entry, by force, on to the premises of MPs and other individuals. Given recent events, I hardly need to remind hon. Members how contentious that power was; it was excessive and had the potential to be used disproportionately. In addition, the amendment replaces the entry by warrant provision with a more acceptable measure: the ability for the commission to apply for a court order that documents be released. The commission may apply for a court order when it has exhausted the request by notice procedure in paragraph 2(2). We support this measure, and believe that it is a helpful last resort when the commission is confronted with a reluctant subject of a proper investigation. The hurdles
in place before an order can be made also seem adequate, and the commission must show that there are “reasonable grounds” to suspect that a person has committed an offence under the 2000 Act.
6.45 pm
Government amendments 14, 15, 17, 19, 20 and 22 are consequential amendments ensuring that the Bill is internally consistent in the wake of the changes. Despite our general support for the removal of the warrant system and the introduction of court orders, we have two concerns and have tabled amendments to Government amendment 13 accordingly.
The first of our amendments has been introduced because we believe that the High Court is a more suitable venue for hearing an application than the county court. A higher judicial threshold places a greater obligation on the commission to ensure that the reasoning behind its application is legally sound. A judge in the High Court would subject any arguments to more thorough scrutiny than could be expected from the county court. It is important that a strong check is placed on the issuing of disclosure orders, ensuring that any such order is proportionate and justified. We remain hopeful that the use of orders will be infrequent, and that this higher threshold will therefore not place any excessive burden on the commission or the High Court. Nevertheless, when such an order is required, the superior scrutiny of the High Court will be beneficial.
Our second amendment to Government amendment 13 addresses our concern that no specific time limit is given for compliance with an order once it is served. The Government amendment simply states that an order will require delivery of the documents
“within such time as is specified in the order”.
As we have argued in relation to other provisions in the Bill, we recommend that a minimum 28-day limit should be placed on all compliance requirements in schedule 1. There should be a sufficient and clear period during which those served with a disclosure notice can locate the documents and information specified under the notice, and provide it to the commission. Effort should be made to ensure that individuals do not fall victim to the Bill’s penalty regime because of unforeseen delays and an uncertain deadline. With a 28-day limit in place, subjects will know how long they have to comply, and can work to the deadline without fearing that the commission might place them under an unrealistic deadline.
Amendments 2, 3 and 9, tabled by the hon. Member for Leeds, North-East (Mr. Hamilton), deal with the commission’s power under the Bill to enter and search premises by warrant. The amendments are an alternative to amendments tabled by the Government, which remove the powers of entry and search by warrant, and I believe they have effectively been superseded.
Amendment 57 would provide that subjects for search are provided with a copy of the authorisation for the search. It is important that individuals or groups who are subject to this power of the commission have the full details of the search. A copy of the authorisation is important for them to decide whether they wish to access avenues of appeal and redress. The amendment fortifies vital safeguards, and helps to prevent the abuse of powers by the commission. Providing copies of the authorisation documentation ensures that the propriety
of the search is asserted, and that the subject can confirm the details of the search. Further, leaving a copy allows for cool and considered review of the warrant away from the heat of the moment, and it prevents a simple flash of paper when the recipient is in shock from the entry process. In the heat of the moment, it is possible that the shock of the entrance could counteract any explanation of the search, however thorough and clear the commission believes it to be. Further still, there is no guarantee that a relevant person will be at the premises when it is searched. For example, the cleaner or an office junior might be the only person present, and as such not be qualified to fully comprehend the explanation, let alone communicate it to someone more senior. In Committee on 13 November, the Minister considered this issue and promised to return to it on Report if necessary, so I would be pleased if he were now to give us his views on it.
Dr. Strang: The whole House supports the principle of proper entry and inspection, and, as the hon. Member for Huntingdon (Mr. Djanogly) said, there is a desire for that to be proportionate. The discussion among all the parties currently represented in the Chamber reflects that aim, and it is interesting that the commission itself in its briefing supports the line being taken.
It is right to go down the court order procedure route. I have been a Member of this House for a long time, and I well remember the days before we had the Electoral Commission. Whatever view one takes of the record of the commission—I do not feel qualified to make a judgment on that—the fact is that there is a consensus that we need a commission. It must be an independent body, but it also works within a framework laid down by the House of Commons.
What has been said in this debate, about Government amendments 11, 12 and 13 in particular, reflects the intention to put a measure in place that can be properly enforced by inspecting premises and, if necessary, bringing the individual or individuals concerned to justice.
David Howarth: I, too, welcome the Government amendments in this group. As the hon. Member for Huntingdon (Mr. Djanogly) said, there was widespread concern in the House not only about the extent of the powers being granted to the commission, but about the way in which those powers were to be exercised by a warrant process that did not contain much accountability. From the start of the debate on this matter, the commission has conceded the point; in evidence to us, it said that it would prefer a different sort of procedure. The way in which the Government have introduced the procedure in the amendments reflects well on what the commission asked them to do: to move to a different process whereby an application is made to a court for an order, the court checks that the order has been properly applied for and the circumstances are such that an order should be made, and the sanction is basically the one for contempt of court—rightly, anyone who defies a court order to act in the way that the commission wants is asking for trouble. That is a far more proportionate, accountable and open way of proceeding.
On Government amendment 11, the hon. Gentleman mentioned my concern in Committee that proposals to exclude vast swathes of the people who were affected by the commission’s powers would go too far and we
would end up with less regulatory coverage than there is now. I am entirely satisfied with the Government’s response on that matter, for precisely the reason that he mentioned—the new drafting covers the cases I had in mind.
I can offer the hon. Gentleman some comfort in that, compared with the previous debate, I agree with the Conservatives’ amendments 46 and 47. He rightly says that there is a need for some sort of statutory limitations on this sort of regulation; we cannot have people who are long retired still facing the prospect of having action taken against them under these powers. For the sake of certainty and clarity, it is right to have a cut-off point, so I am with him in his principle, which is right, and I will support him in the Lobby if he manages to secure a vote on this particular point. However, I would prefer a time limit of six years, rather than five, simply because—this goes back to the previous debate—that would be more in line with the normal limitation times used in law.
On amendment 52, the hon. Gentleman is also right to say that there ought to be a specific list of people of a specific degree of seniority who can act on behalf of the commission. Simply making provision in respect of anyone to whom the commission might delegate gives too broad a discretion. This ought to be controlled by not only the commission’s views as to what is right, but by statute, and I am perfectly happy to support what he said on that, too.
As for what the hon. Gentleman said about the High Court, I do not wish to repeat what was said in a previous debate. His proposal might be putting too much of a burden on High Court judges, but this is a different case from the one in the previous debate; there might be a case for saying that instances of sensitivity would be involved where someone defies a court order and the appeal might, thus, be more appropriately heard at a higher level than a simple fixed penalty notice matter would be.
I am very happy with the way in which this debate has panned out. The starting point was not right, had many difficulties and was inadvertently threatening. Nevertheless, some of the remedies suggested from various parts of the House turned out to be worse than the disease. I am glad that we have ended up at a point where we can all agree that the regulation being proposed is proportionate and right.
Mr. Wills: I commend the hon. Member for Huntingdon (Mr. Djanogly) on his mastery of the thesaurus. So far, he has managed to characterise what I regard as our continuous search for a consensus on, and improvement in, this legislation first as poorly structured and now as a “climbdown”. I hope that when he next has recourse to the thesaurus, he will find it in his heart to say that this is a commendable effort to improve the integrity, scrutiny and accountability of our electoral process—that is just a suggestion.
Mr. Djanogly: If it makes the Minister happy, I shall say that as well.
Mr. Wills:
That has cheered me up immensely, and I am grateful to the hon. Gentleman. I shall give him some further comfort, but he will have to wait a bit for
it, because I wish to deal first with the two sets of Government amendments. As hon. Members have said, they significantly overhaul the commission’s powers of entry in schedule 1, and I believe they will be universally welcomed by the House.
Government amendment 11 replaces paragraph 1(5) to new schedule 19A to the Political Parties, Elections and Referendums Act 2000—that new schedule is contained in schedule 1 to this Bill—with new paragraph 1A. The new paragraph differs from paragraph 1(5) by specifying a more restricted list of organisations and individuals to whom the commission’s powers of entry and inspection for the purposes of carrying out its functions will apply—the list includes registered political parties, recognised third parties, permitted participants in a referendum, members associations and any former member of any of those categories. The power can be exercised by the commission for the purposes of carrying out its functions, but it does not authorise the use of force to enter premises.
As hon. Members have said, the effect of the amendment is that the commission will not have the power to enter the premises of the following: candidates at an election; election agents; permitted participants; and regulated donees, including MPs—with the exception of members associations. The financial affairs of members’ associations are likely to be more complex than those of regulated individuals, so retaining the extension to the existing power in section 146(3) of PPERA in relation to this group will help the commission to ensure transparency in supervising its activity. The provision has been amended to remove Members of Parliament from the scope of the power, but I must make it clear that this does not create any specific exclusion for House of Commons offices, and that reflects the approach towards this power taken by the 2000 Act and the approach taken towards powers of entry more widely in legislation. Should the commission require entry to a parliamentary office—for example, where a party has chosen to keep its records in a Member’s office or a member’s association has been run from a Member’s parliamentary office—it advises that it would seek access only through the appropriate channels, and in the House of Commons, that would be through the Speaker.
We believe that it is important to retain this limited power of entry for the commission to enter premises and inspect documents for the purposes of carrying out its functions. Although the commission has generally relied on voluntary disclosure and consensual meetings to discuss and review financial information, having this supervisory power, in itself, may have been an effective backstop in helping to ensure that supervised individuals comply with regulatory requirements. For the avoidance of doubt, may I emphasise that the commission’s power in schedule 1 to the Bill to require the disclosure of documents relating to income and expenditure from all supervised individuals, including regulated donees, will remain?
The amendment will largely restore this power to the equivalent provision in the 2000 Act, although there are two sensible and limited changes to the existing powers. First, the power will be available in relation to members’ associations, as I have explained. Secondly, it will be available in relation to organisations or individuals who formerly used to fall within any of the categories that I have mentioned—those listed in new paragraphs 1A(a) to (d). This latter change brings the power into line with
the existing power under the 2000 Act to request documents that applies to former members of the appropriate categories. We see no sensible reason for the existing anomaly between the two powers to seek information.
Our approach will also help to prevent a situation in which the commission has to cease to examine an organisation’s affairs midway through a compliance check simply because the organisation has taken steps to remove itself from one of the categories subject to the power. Hon. Members will recall that we took steps in Committee to help to ensure that this power would be exercised reasonably by tabling a Government amendment to prevent the commission from using its routine monitoring powers of entry in connection with an investigation, and that safeguard remains in place. The commission have provided assurances that they expect to use the power very rarely.
| Next Section | Index | Home Page |