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Amendments 12, 16, 18 and 21 are consequential and simply seek to remove all references to paragraph 1(5) from new schedule 19(a) and replace them with a reference to the new paragraph 1(a).
I hope that the House will agree that these amendments address the concerns raised extensively on Second Reading and in Committee about the commission’s powers of entry and inspection. I believe that they do so without compromising the commission’s essential ability to carry out its work effectively, and I hope that they will be welcomed by the House.
Government amendments 13 to 15, 17, 19, 20 and 22 make changes to the provisions on the commission’s powers of entry by warrant. These amendments are also intended to address concerns that were widely expressed on Second Reading and in Committee, and I hope that they will also be welcomed by the House. The commission has indicated that it would be content to consider an alternative approach to the provision in the Bill that would enable them to apply for a warrant to enter premises provided that it met its objective of being empowered to investigate more effectively. We believe that the proposals contained in Government amendment 13 will meet that objective, but will also meet all the concerns that have been expressed about the existing provisions at various stages of the Bill’s progress.
The proposals have been discussed with the commission at all stages of their development. Government amendment 13 would remove the power set out in paragraph 3 of new schedule 19(a), which enables the commission to apply to a justice of the peace for a warrant to authorise entry and search of premises in connection with an investigation. It would replace that power with a power enabling the commission, in cases in which a person has already refused to provide documents, to apply to the court for an order to require disclosure of the previously requested documents in order to enforce the commission’s original notice. The court which issues an order may not, when making an order or dealing with any failure to comply with that order, use this power to authorise the commission to enter premises to obtain the documents. This is the key difference between the warrant power and this new proposal, and I want to be as clear as I can about that.
The court order is intended to add an extra and very important layer of compulsion to the commission’s power to request documents. It is vitally important that
the initial request from the commission is not the end of the story for someone who has documents that are relevant to an investigation. Equally, as Members on both sides of the House have made clear, it is important that we do not go too far in the opposite direction. We have listened very carefully to the concerns that have been expressed about the warrant power, and that is why, on reflection, we have decided to remove the court’s ability to issue a warrant to authorise entry of premises by the commission. It is important that the new power is subject to suitable and appropriate safeguards.
A court order would not be issued automatically on an application being made by the commission. The commission’s representative must first demonstrate on oath that there are reasonable grounds to suspect that there has been an offence or a contravention under the Act; that there are documents referred to in the disclosure notice that have not been produced; that these documents are reasonably required by the commission for the purposes of investigating the suspected offence or contravention; and that the documents are in the custody or under the control of the person against whom the order is issued. Those are extensive safeguards. When seeking an order, the commission will serve notice on the individual or organisation against whom the order is sought in order to ensure that they are represented at the hearing of the application for the order, and the court will consider the application under ordinary court rules governing applications for court orders, and it will be able to decide whether oral or written evidence is most appropriate in each case.
Failure to comply with a court order would constitute contempt of court. It may be a criminal offence under paragraph 13, but the same breach cannot be penalised by proceedings brought both for contempt and for the paragraph 13 offence. If someone refused to comply with the court order and the commission took the view that it was necessary to obtain the documents for an investigation to continue, it would have no power to seek entry on its own account in order to obtain documents. Instead, in practice, the commission would, if it felt it appropriate to do so, bring the matter to the attention of the police who would consider whether they were willing to use their power under the Police and Criminal Evidence Act 1984 to apply to obtain a warrant. That would be a matter for the police to consider in individual cases.
As now, the commission would not be able to rely on the police to obtain a warrant to search premises in connection with offences that are triable summarily only, as the power to apply for a warrant under PACE does not apply to such offences. Offences under the 2000 Act that are triable summarily only are set out in schedule 20 of that Act. Examples include section 146 offences of intentional obstruction of a person seeking to enter premises on behalf of the commission, and section 148 offences of failing, without reasonable excuse, to provide information reasonably required by the commission.
I have gone into these matters at some length because I know how important they are to the House. I hope that hon. Members will be reassured by the safeguards that I have set out. I am sure, however, that hon. Members will agree that the investigatory powers that are contained in amendment 13 are necessary to enable the commission to regulate effectively. Of course the
corollary of that is that the Electoral Commission must use the investigatory powers at its disposal responsibly. It is for that reason that we tabled several amendments in Committee to require the commission to issue guidance on its use of its investigatory powers and to provide information in its annual report on that usage. Those safeguards remain in place.
Amendments 14, 15, 17, 19 and 22 are consequential, arising from amendment 13. Amendments 14 and 15 replace references to documents taken possession of, as under a warrant, with a reference to documents delivered in compliance with a court order. Amendments 17, 19 and 22 replace references to a warrant with references to an order. Amendment 20 removes the requirement for the commission to provide information about its use of warrants in the guidance that it is required to issue on the use of its investigatory powers.
I will now turn to amendments (a) and (b) to Government amendment 13. Government amendment 13 would remove the powers of search and entry by warrant and replace it with a power for the commission to seek a court order requiring enforcement of its disclosure notice. The effect of amendment (a) would be that consideration of the commission’s application seeking a court order to enforce its disclosure notice would rest with the High Court rather than with a county court as Government amendment 13 provides.
I appreciate the reasoning behind this amendment, which is to ensure that applications for court orders are subject to thorough scrutiny at the appropriate level of jurisdiction. As we have discussed, it is standard practice for orders to enforce disclosure notices in civil cases to be issued by a county court, which is why the clauses have been drafted in this way. Although now overtaken by Government amendment 13, I appreciate that in Committee the Government committed to amending the Bill so that the power to issue a warrant to authorise entry and search of premises would rest with the High Court rather than with a justice of the peace. However, orders for disclosure of documents by their nature are more likely to be sought than warrants for entry of premises, and so any changes to standard practice may have an unnecessary impact on the work load of the High Court unnecessarily. If the result of that were to be to prolong the time period between the date on which an application is made and that on which it is considered, I can see two obvious disadvantages. One, it might slow down commission investigations, which could impact on the effectiveness of those investigations. Secondly, there might also be adverse consequences for those under investigation. The longer it takes for an order to be issued, the longer the investigation is likely to be and the greater the uncertainty for the individuals or organisations concerned.
There could be other unforeseen consequences in providing for orders in these cases to be issued by the High Court. I will want to look into that. But, as I say, I understand the reasoning behind this amendment and I am prepared to consider further whether it would be helpful and practicable to accept it. We would need to consult interested parties, including the Lord Chief Justice, before we can make an informed decision whether it would be appropriate for consideration of these applications to rest with the High Court. I agree therefore to consider the amendments, but I cannot at this stage make any firm commitment one way or the other about whether we will be able to take them forward.
I want to resist amendment (b) to Government amendment 13, which would require those served with a disclosure notice made by a county court under the power set out in paragraph 3 of new schedule 19A to comply with the terms of that order within 28 days. I notice that the intent is very similar to that of amendment 50. Of course, I agree that those who are subject to a disclosure order need to be given time to comply with it and that they need to know how long that period is, but that is why Government amendment 13 provides for a disclosure order to specify a reasonable period of time within which the person to whom the notice is given must comply.
I believe that when making a disclosure order, it is appropriate to give the court the flexibility to vary the period of compliance depending on the individual facts of each particular case and the nature of the application made by the commission. For example, the court might need to allow a longer period for the production of documents or the provision of information in some instances than in others. However, when a request is time-critical—particularly when there is concern that the success of an investigation might be prejudiced if it is not obtained speedily—a period of less than 28 days might be appropriate. A longer period might be appropriate when a large amount of documentation is sought. Given the range of documents and information that could be covered by a disclosure notice, I do not think that a one-size-fits-all approach is suitable and therefore I do not think that we should tie the court’s hands in the way that the amendment proposes.
I do not think that there should be any concern that failing to accept the amendment will cause uncertainty about the time periods within which a person served with an order must comply. The Government amendment requires that the order itself must stipulate the time for compliance. That will be a specific date and it will be clear to the person served with the order. I hope, for those reasons, that the hon. Member for Huntingdon will withdraw amendment (b).
I now turn to Opposition amendment 57, which is now redundant as we have removed from the Bill the provision that would have allowed the commission to apply to a court for a warrant to search premises in connection with an investigation. Amendment 52 would require a person entering premises under the power of entry set out in paragraph 1 of schedule 1 to be either an employee at managerial level at the Electoral Commission or a police officer. As I said in Committee, authorisation of the use of the power by a manager at the commission would in practice be embedded in the commission’s operation of the power.
I would expect entry under the power of entry that the commission is granted in the Bill—it is largely the same as its existing power of entry, which, incidentally, it has never used—to take place very rarely. For that reason alone, I expect that senior management would be fully involved in any decision to use the power. However, to set out in statute that an entry could be carried out only by a senior manager would be unnecessarily restrictive and inflexible. In order to fulfil its duties effectively, the commission must have the ability to delegate entry and inspection duties to staff below managerial level, where appropriate.
The commission, we are assured, has absolutely no intention of using the power lightly. We know that it is aware that entering premises is a significant step and it
will operate the power responsibly, as it has done with the existing power to date. We can be confident, I think, of that. In addition, we must keep in mind that the commission will have to exercise its powers in a way that is compatible with rights under the European convention on human rights—including article 8, which is the right to respect for private life—and that is compatible with general principles of public law.
Mr. Peter Bone (Wellingborough) (Con): I have been listening to the Minister’s argument very carefully. He says that the power will be used only in exceptional circumstances, that it will be a senior management decision and that he expects it not to be delegated down. Surely it will be much simpler just to put a provision in the Bill that it will not be delegated down.
Mr. Wills: It might be simpler, but it still might not be the right thing to do. That is the point. The point that I am trying to develop is that we need, as far as we possibly can, to give the commission the flexibility to exercise its powers proportionately. We do not want to fix in statute something that would tie its hands unnecessarily in all circumstances for the foreseeable future. The hon. Gentleman’s colleague, the hon. Member for Huntingdon made it quite clear—I agree with him—that we are not legislating just for the commission. We are legislating for the future and we think that it is wrong to proceed on the principle of trying to tie the commission’s hands at every point, for the reasons that I already set out at great length when the hon. Member for Wellingborough (Mr. Bone) was not in his place. I am happy to discuss them with him outside the Chamber.
The commission is aware that inappropriate use of the power would leave it open to possible judicial review. It has taken steps to employ suitably skilled staff in the fields of enforcement and compliance to ensure that they are all equipped adequately to carry out their functions within the confines of the law. I have confidence, and I hope that the House will have confidence, that the commission will only authorise staff with the appropriate skills and expertise if it feels, on those rare occasions, that there is a justification to use this power of entry. I hope that hon. Members will feel sufficiently reassured.
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I now turn, finally, to amendments 46 and 47, which seek to amend paragraph 1(2) of proposed new schedule 19A, which sets out the commission’s power to issue disclosure notices. I shall deal with them together. They are largely identical to amendments tabled in Committee. Together, they seek to place a time limit on the commission’s powers to issue a disclosure notice. The hon. Member for Huntingdon set out his concerns very cogently and in Committee I agreed to consider the issue further. We have now done so in close and careful consultation with the Electoral Commission, which has confirmed that a time restriction on the power to issue a disclosure notice under paragraph 1 of proposed new schedule 19A is not likely to be a problem in practice.
The paragraph 1(2) power to issue a disclosure notice relates to the commission’s supervisory role so it is very unlikely that it would need to issue a disclosure notice to a person who more than five years previously had been a person to whom paragraph 1(2) applied. I resisted the amendment in Committee on the basis that it was
unlikely that the commission would need to go back further than five years, but we could not rule out the possibility and we were reliant on the commission’s exercising its powers reasonably and having regard to the general principles of public law before issuing disclosure notices. I still believe that there is not a real problem to be solved and that as a matter of principle we should not place unnecessary constraints on the commission’s powers. However, I listened carefully to what the hon. Gentleman said and I take his point that keeping audit trails for more than five years might be unduly onerous on people who are often volunteers and who might have moved on from the period of their life in which they took part in such voluntary activity.
We have received a reassurance from the commission that placing a restriction on the paragraph 1(2) powers such as that suggested by the hon. Gentleman is unlikely to be a problem in practice, and so I am happy to consider with parliamentary counsel what amendments could and should be made to the Bill properly to reflect the intention of the amendment. The hon. Gentleman will understand that because of the significant number of Government amendments, we have not been a position to do that job of work just yet. However, we will do so at the next available opportunity. I hope that he will understand that we felt it necessary to seek and secure the commission’s views before proceeding.
For the avoidance of doubt, I am only agreeing to consider an amendment to the power under paragraph 1(2) that enables the commission to issue a disclosure notice in relation to its supervisory role. I think that that is what the amendments seek. The commission has emphasised—I want to make this clear—that any such time bar on requests for information under paragraph 2 in relation to a suspected offence or contravention could cause difficulty, so we are not considering any changes to that power. I hope that on that basis and with those assurances, the hon. Gentleman will withdraw amendments 46 and 47.
Mr. Djanogly: We welcome the Government’s significant shift on many of the provisions to a position that we basically support. I appreciate the Minister’s agreement this evening to review the role of the High Court.
However, there remain issues that we will want to look at in detail when the Bill goes to the other place. The Minister has just addressed the main one; we are pleased that he now sees that there is a case for offering protections to non-serving association officers, who normally will have served on a voluntary basis. We had great concerns that ongoing liability would be unfair to such people. Having heard the Minister’s explanation, and his promise to table an amendment in the other place, I will not press amendment 47 to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 11, page 17, leave out lines 5 to 13 and insert—
‘Powers of entry and inspection1A (4) This paragraph applies to the following organisations and individuals—
(a) a registered party or, in the case of a registered party with accounting units—
(i) the central organisation of the party;
(ii) an accounting unit of the party;
(b) a recognised third party (within the meaning of Part 6);
(c) a permitted participant (within the meaning of Part 7);
(d) a members association (within the meaning of Schedule 7);
(e) an organisation or individual formerly falling within any of paragraphs (a) to (d).
(5) A person authorised by the Commission may, for the purposes of the carrying out by the Commission of their functions—
(a) at any reasonable time enter premises occupied by an organisation to which, or an individual to whom, this paragraph applies, and
(b) having entered the premises, inspect any documents relating to the income and expenditure of the organisation or individual.
(6) This paragraph is subject to paragraph 2(6).’.
Amendment 12, page 18, line 1, leave out ‘paragraph 1(5)’ and insert ‘paragraph 1A’.
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 14, page 19, line 11, leave out from beginning to first ‘for’ in line 12 and insert
‘The Commission may retain any documents delivered to them in compliance with an order under paragraph 3’.Amendment 15, page 20, line 29, leave out from ‘documents’ to end of line 30 and insert
‘delivered to them in compliance with an order under paragraph 3;’.Amendment 16, page 20, line 37, leave out from ‘exercising’ to end of line 39 and insert
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