Legislative Scrutiny: Political Parties and Elections Bill - Human Rights Joint Committee Contents

1  Political Parties and Elections Bill

Date introduced to first House

Date introduced to second House

Current Bill Number

Previous Reports

17 July 2008

4 December 2008

Bill 4


1.1 This is a Government Bill first introduced in the House of Commons in July 2008. The Bill has been carried over from the last parliamentary session and is scheduled to being its Report stage in the House of Commons on 2 February. The Secretary of State for Justice, Jack Straw MP, has made a statement of compatibility under s. 19(1)(a) of the Human Rights Act 1998. The Explanatory Notes accompanying the Bill set out the Government's view of the Bill's compatibility with the Convention rights at paragraphs 132 - 150.[1]

1.2 We wrote to the Secretary of State on 28 October 2008 to ask for further information about one of the provisions in the Bill relating to the investigatory powers of the Electoral Commission. We publish this correspondence, and the Secretary of State's response with this Report.[2] We comment on this and one other significant human rights issue, below.

The Commission's investigatory powers

1.3 The Bill would enable a person authorised by the Electoral Commission to enter premises occupied by an organisation or individual, at any reasonable time, and inspect any documents relating to the income and expenditure of the organisation or individual, for the purposes of the carrying out of the Commission's functions.[3] This investigatory power can be used in relation to a wide range of individuals or entities, including a candidate and their election agent.[4] It would enable an official of the Electoral Commission to enter the home of a candidate or their agent, without a warrant or any requirement of reasonable cause, and to inspect all of their personal financial documentation such as receipts and bank statements. It is a criminal offence to obstruct a person authorised to exercise this power of entry and inspection.[5]

1.4 Such a power to enter premises and inspect financial documents engages the right to respect for private life and home in Article 8 ECHR and the right to peaceful enjoyment of possessions in Article 1 Protocol 1 ECHR. The Explanatory Notes to the Bill correctly acknowledge (at para. 140) that the power of entry engages Article 1 Protocol 1 and (at para. 139) that the power of inspection engages Article 8 because it involves the inspection of personal information. The Explanatory Notes do not, however, acknowledge that the power of entry itself engages the right to respect for private life and home in Article 8 because the premises which can be entered may be the individual's home.

1.5 The Explanatory Notes to the Bill state that the power of entry and inspection features safeguards designed to ensure that the power will be exercised compatibly with Convention rights. Certain safeguards against the wrongful use of the power are set out on the face of the Bill. For example, entry must be at a reasonable time.[6] The power to inspect is confined to financial documents.[7] The power may not be used to enter premises and inspect documents for the purposes of an investigation by the Commission of a suspected offence or contravention of the Political Parties, Elections and Referendums Act 2000:[8] there is a separate power of entry and search, requiring a warrant, where an offence or contravention is suspected.[9] Authorisation of a person exercising the power must be in writing,[10] and evidence of the authorisation must be produced by the person exercising the power if required to do so by the occupier of the premises.[11] There is protection for material which is subject to legal professional privilege.[12] The Commission is required to prepare and publish guidance as to the circumstances in which it is likely to exercise the power of entry and inspection,[13] and to specify in its annual report the cases in which premises were entered under the power.[14]

1.6 Notwithstanding these safeguards, we were concerned about the breadth of the power and in particular the fact that the only precondition to its exercise is that it must be for the purpose of carrying out the Electoral Commission's functions. We therefore wrote to the Secretary of State pointing out that there is no requirement that the Commission have reasonable grounds to suspect anything before exercising the very broadly drafted power of entry and inspection. We asked what safeguards he could point to which would ensure that power will not be exercised incompatibly with the right to respect for private life and home in Article 8 ECHR and the right to peaceful enjoyment of possessions in Article 1 Protocol 1.

1.7 The Secretary of State in his response said that the power is "intentionally widely drawn in order to ensure that the Commission has available to it sufficient powers in order to perform its compliance monitoring function". He said that the Commission has indicated that such powers are "necessary for it to carry out proactive risk-based assessments of regulated entities … for example, when its compliance staff visit party premises for the purposes of auditing policy development grants." In the vast majority of cases, the Commission says, this will be done on a voluntary basis, but "it is possible to envisage a situation where such an audit has begun, potential procedural irregularities are apparent, but a party or other individual or organisation to whom the power applies withdraws their co-operation." Though broad, the Secretary of State argues that the power is not unlimited because it must be exercised rationally and in accordance with the general principles of public law, and s. 6 of the Human Rights Act requires it to be exercised compatibly with Article 8 and Article 1 Protocol 1. In addition, the Secretary of State points to the fact that the Commission will be required to issue guidance on how it will use its power of entry and inspection, including the likely circumstances in which it will use the power, and it will be required to take that guidance into account in its exercise of the power.

1.8 We have considered carefully the Government's justification for the power and the adequacy of the safeguards relied on. However, we have considerable difficulty understanding the necessity for this power at all, bearing in mind the availability of a power to enter and search with a warrant in cases where there are reasonable grounds for believing that an offence or a contravention has been committed.[15] In the example the Government relies on to demonstrate the necessity of the wide power to enter and inspect, where co-operation has been withdrawn but "potential procedural irregularities are apparent", it seems to us that the power to enter and search with a warrant would be available. We also note that the Government itself points out in its letter to us that the current equivalent power[16] "has not been used since 16 February 2001, the date on which it became available." That existing power is narrower than the power proposed in the current Bill, which extends its application to others such as candidates and their agents. We also note that the Government has still not indicated the likely circumstances in which the Commission would seek to use such a power. Such an important restriction on the scope of a very broad power should be on the face of the Bill, not left to future guidance to be drawn up by the body on which the power is conferred.

1.9 We remind the Government that the onus is on it to demonstrate a pressing social need for powers of entry and inspection that interfere with the right to respect for private life and home. We do not consider that the Government has shown a pressing social need to extend an already broad power of entry and inspection, which has never been used, and the Commission will already have available a power to enter and search, with a warrant, where there are reasonable grounds to suspect an offence under, or contravention of, election law. We therefore recommend that paragraph 1(5) of proposed new Schedule 19A to the Political Parties, Elections and Referendums Act 2000 be deleted from the Bill because the Government has failed to show any pressing social need for such a wide power to interfere with the private life and homes of candidates and their agents. We suggest the following amendment to give effect to this recommendation:

Schedule 1, page 17, line 5, leave out sub-paragraph (5).

Prisoners' voting rights

1.10 In our last two reports monitoring adverse human rights judgments, we have criticised the Government's delay in responding to the judgment of the Grand Chamber of the European Court of Human Rights in Hirst v UK.[17] In that case, the Grand Chamber decided that the current ban on prisoners' voting in the UK[18] is disproportionate and incompatible with the Convention right to participate in free and fair elections (guaranteed by Article 3 of Protocol 1 ECHR). That the relevant statutory provisions have never been subject to a full parliamentary debate played a part in the decision of the court.[19] The statutory ban has also been declared incompatible with Convention rights under Section 4 of the Human Rights Act 1998 by the Court of Session in Scotland.[20]

1.11 The decision of the Grand Chamber was handed down in October 2005, after an earlier adverse decision in 2004. The Government launched a consultation on prisoners' voting rights in December 2006.[21] This consultation ended in March 2007 and a second stage consultation was planned. The Government originally aimed to bring forward legislation to address this issue in or around May 2008. Contributions to the first stage of the Government consultation have not been published and the second stage consultation has not been launched.

1.12 More recently, in response to a written question by Lord Lester of Herne Hill, the Government confirmed that it intends to proceed with its second stage consultation on this issue, but provided no timetable for publication.[22]

1.13 Our previous criticisms of the Government's approach to this issue have included:

  • Drawing the attention of both Houses to the continuing failure of the Government to provide answers to our request for information on the timetable proposed for reform and for full information on the Government's approach to the case (including any new information provided to the Council of Europe monitoring body, the Committee of Ministers);
  • Expressing concern that the delay in this case indicated that it was destined to join a list of long-standing breaches of the Convention by the United Kingdom which were legally straightforward but politically difficult to remedy;
  • Noting that, since the judgment was handed down, other countries including Ireland and Cyprus, have amended their elections law to allow prisoners to vote;[23]
  • Recommending that the Government publish the responses to its earlier consultation and its own proposals for reform without delay, together with a timetable for progress;
  • Recommending that a legislative solution should be proposed during this parliamentary session. Without such a solution, there is a significant risk that the next general election will take place in a way which unlawfully disenfranchises at least part of the prison population in the United Kingdom.[24]

1.14 Contrary to some press reports, we have never suggested that the ECHR requires that all prisoners should be entitled to vote.[25] The current blanket ban on all prisoners voting has been found by the European Court of Human Rights to breach the European Convention and the Government is under an obligation to implement that judgment by repealing the blanket ban[26] and bringing forward an alternative proposal.

1.15 We recently asked Jack Straw MP, the Secretary of State for Justice, and Michael Wills MP, the Human Rights Minister, in oral evidence for an explanation of the ongoing delay with this case. The Secretary of State said that lack of parliamentary and political support for reform had contributed to the Government's approach:[27]

The difficulty we have got - and there is no secret about this - is this is an issue … on which both the main parties have had a very clear position, which has not been the subject of any significant controversy whatsoever within their parties, that when people are convicted and sentenced to prison they lose their civic right to vote ... If Members of Parliament decide that they are not going to accept what the European Court says then they will not accept it. What we have been seeking to do is to identify the best possible way of meeting the obligations under that decision and to do so in a way that shows respect and achieves consent for that decision, and I happen to think that that is sensible and it recognises the unusual reality of this particular decision.

1.16 In addition, the Human Rights Minister added his concern about the practical implications of reform:[28]

If prisoners are allowed to vote, there is then the issue of putting them on an equal footing with other voters. Other voters have not a right but an expectation of access to parliamentary candidates so that they can judge them first hand. What implications does that have for prison and prison access at a time when the prison service is already very stretched?

1.17 It is surprising that, in the three years during which we have been engaged with the Government on this issue, this is the first time that any Minister has clearly articulated the Government's concerns. While we accept difficult political issues may be involved in meeting the judgment of the Grand Chamber, it remains for the Government to take the initiative and to propose a solution for parliamentarians to scrutinise. In the meantime, UK electoral law remains in breach of the ECHR.

1.18 The practical issues which may be associated with reform should not be overemphasised. Prisoners who are on remand, or who have been convicted, but not sentenced, are already entitled to vote and prison rules and guidance exist for this purpose.[29]

1.19 It is unacceptable that the Government continues to delay on this issue. The judgment of the Grand Chamber was clear that the blanket ban on prisoners voting in our current electoral law is incompatible with the right to participate in free elections. We call on the Government to explore the possibility of bringing forward amendments to this Bill, to give effect to the European Court's judgment.

1   Bill 4 - EN. Back

2   BILLS (07-08) 124 and BILLS (07-08) 125. Back

3   Paragraph 1(5) of proposed new Schedule 19A to the Political Parties, Elections and Referendums Act 2000, inserted by clause 2 and Schedule 1 of the Bill. Back

4   Paragraph 1(1)(f) and (g) of proposed new Schedule 19A. Back

5   Paragraph 13(2). Back

6   Paragraph 1(5)(a). Back

7   Paragraph 1(5)(b). Back

8   Paragraph 2(6). Back

9   Paragraph 3. Back

10   Paragraph 7. Back

11   Paragraph 8. Back

12   Paragraph 11. Back

13   Paragraph 14(1)( c). Back

14   Paragraph 15(2)(b). Back

15   Paragraph 3. Back

16   In s. 146(3) of the Political Parties, Elections and Referendums Act 2000. Back

17   Hirst v UK (No2), App. No. 74025/01, Judgment dated 6 October 2005 (Grand Chamber). Sixteenth Report of Session 2006-07, Monitoring the Government's Response to Court Judgments Finding Breaches of Human Rights, HL Paper 128/HC 728, paragraphs 67 - 79; Thirty-first Report of Session 2007-08, Monitoring the Government's Response to Human Rights Judgments: Annual Report 2008, HL Paper 173/HC 1078, paragraphs 47 - 63). Back

18   Section 3, Representation of the People Act 1983. Back

19   Hirst v UK, paragraph 79. Back

20   Smith v Scott [2007] SC 345. Back

21   Voting rights of prisoners detained within the United Kingdom, Department of Constitutional Affairs, December 2006. http://www.dca.gov.uk/consult/voting-rights/condoc.htm. Back

22   HL Deb 12 Jan 2009, Col WA122 (Lord Bach). Back

23   Further recent developments on this issue have taken place across a number of other common law jurisdictions. For example, since the publication of our last report, the High Court in Hong Kong has determined that electoral law which prevents prisoners from voting in Hong Kong is incompatible with the basic law and the Hong Kong Bill of Rights, in so far as it contravenes the constitutionally guaranteed right to vote. The Court ordered the Hong Kong Government to make arrangements to enable all prisoners to vote on election day. See Chan Kin Sum v Secretary of State for Justice and the Electoral Affairs Commission, Judgment dated 8 December 2008, HCAL 82/2008. Similar developments have taken place in India and Ghana, where a court judgment and a decision of the local electoral commission have enabled significant numbers of prisoners to vote in recent elections. Statutory limitations on prisoners' voting have also been declared incompatible with the constitutional right to vote by courts in both Australia and South Africa (See Roach v Electoral Commissioner [2007] HCA 43, High Court of Australia, dated 30 August 2007 and Minister of Home Affairs v NICRO 2005 (3) SA 280 (CC), South African Constitutional Court, dated 3 March 2004).  Back

24   Thirty-first Report of Session 2007-08, Monitoring the Government's Response to Human Rights Judgments: Annual Report 2008, HL Paper 173/HC 1078, paragraphs 47 - 63. Back

25   See for example, Daily Express, "Prisoners must get the vote", MPs urge, 10 November 2008. Back

26   Repeal of the blanket ban could be simply achieved by amending the Bill to omit s. 3 of the Representation of the People Act 1983. Back

27   Q66, Minutes of Evidence, 20 January 2009, HC 174. Back

28   Q67, Minutes of Evidence, 20 January 2009, HC 174. Back

29   See Prison Service Order 2650, Prisoners' Voting Rights. These prisoners will generally be registered at their usual home address, but may also register there by way of a local connection or in the constituency where the prison is located. This final option is only available where the prisoner is unable to register at a usual home address or by establishing a local connection with another constituency. The rules make provision for prisoners to vote by post or proxy and allow prisoners to right receive electoral literature and permit prisoners to write to relevant candidates' agents requesting any relevant literature. Back

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