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Baroness Gould of Potternewton: My Lords, on the face of it, Amendment No. 20 seemed very sensible. One should be able to learn from the advice given by the commission to one political party; for instance, on one occasion we had read out to us letters that had come from the Home Office in respect of the electoral register--letters from both the Labour and Conservative Parties--and that seemed OK. One could also say that any information given by the electoral commission should be impartial and therefore there is no problem. That seemed fine to me and I thought it was an amendment I could support.

Then I looked at the amendment again and realised that the wording, rather than the principle, is somewhat flawed. It says,

When we look at that subsection it refers to advice given to,

    "registration officers [and] returning officers at relevant elections".

It may well be that a returning or registration officer is asking advice about a specific area. The request may not be confidential, but neither is it relevant to everybody else. Yet the wording says "shall be made public", implying that all such information shall be made public. That seems to me to be nonsense.

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The wording,

    "Advice given ... other than in confidence",

means that anybody who does not want the information disclosed has to remember to say, "This matter is in confidence". So the whole process, as the amendment is worded, is completely unworkable.

Lord Hodgson of Astley Abbotts: My Lords, I rise to speak to Amendment No. 21, which raises an important point.

We discussed in Committee the fact that this Bill will reach further down into the political structure than ever before and that local political parties will find themselves in the front line in a way that hitherto has been unheard of. We have referred to, discussed and agreed that the difficulty of persuading individuals to take on these posts at local level is considerable. If the posts carry with them other anxieties about prosecution and so forth, that difficulty will be greatly increased.

Amendment No. 21 at least offers individuals locally and political parties some shelter. It is important that we have a clear understanding from the Government tonight as to what the position of advice given by the commission will be. That will affect individual local associations considerably. The passage of information will often take place at high speed. People will want to know what their position is and whether they can use the commission's advice as an air raid shelter inside which they can crouch. For the sake of those who run local associations, it is important that the Minister makes it clear that the commission's advice will provide them with considerable protection under the law.

7.30 p.m.

Lord Bassam of Brighton: My Lords, Clause 9 is concerned with the provision of advice and assistance by the electoral commission to other bodies and authorities. Subsection (3) would enable the commission to act as a central point for the provision of advice and guidance on best practice to electoral administrators and to provide guidance to political parties, third parties and referendum campaign organisations on the arrangements they should make in order to comply with the controls on funding and expenditure set out in the Bill. Amendment No. 20 would require that such advice, except where provided in confidence, be made public and available to any body to which that section refers.

I am not at all persuaded of the desirability of such a provision. It goes without saying that any written advice or guidance in the form, for example, of circulars to registered parties should be generally available. There is no argument about that. But the amendment seems to have far more than that in its sights. It appears to propose that if party X or Y seeks advice from the commission on a particular matter, that advice should be made public and available to other political parties and campaigning groups.

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I have no doubt that, like any regulatory body, the electoral commission will receive numerous requests for advice in relation to compliance with the Bill. Parties will seek advice on the framing of financial schemes; on how they should report changes as to their registered officers; and on whether particular donations or items of expenditure need to be accounted for. Some inquiries may simply be a matter of a telephone call. Others may involve an exchange of complex correspondence. The commission might also arrange meetings with party representatives or seminars for their benefit. I do not see that all of this should, or even could, be made public. What does the noble Lord have in mind? Are all these exchanges to be published in a report or posted on a website?

Furthermore, it seems to me that parties and campaign groups may be more reluctant to seek advice if they know that the advice given in relation to a matter of particular and perhaps sensitive concern to them will be made generally available. I note that the amendment provides for an exclusion where advice is sought in confidence. I suspect that it would simply become the norm for advice to be sought in confidence as parties and campaign groups tried to hide behind that, which would probably undermine the point of the amendment.

Amendment No. 21 would make it a defence for a person charged with an offence under the Bill or in connection with a relevant election to prove that he acted in accordance with the advice given by the commission. I should say, first, that I have every sympathy with the proposition that it would be rough justice if a person acted in accordance with advice given by a public authority and subsequently found himself prosecuted. In practice, I have little doubt that a prosecution would not be proceeded with where it was clear that such advice unwittingly encouraged the commission of an offence. Clearly, the onus will be upon the electoral commission to provide advice that is consistent with the provisions of this Bill.

I am not persuaded that it would be right to place this general defence on the face of the Bill. First, it begs questions about what constitutes "advice". Clearly, such a defence would have substance if the advice in question took the form of written guidance such as a circular letter to registered parties. But such a defence might be based on an unrecorded telephone conversation with a member of the commission's staff. There might be no way of establishing whether the commission was in full possession of the relevant facts before the advice was given. And there would be issues about whether advice given in such a situation could ever be assumed to be authoritative. Judicial proceedings would no doubt take account of such considerations but it seems difficult ground on which to frame a statutory defence.

There is, however, a more fundamental reason of principle why such a defence should not be at large. I say "at large" because there may be particular instances where it is appropriate to provide for such a defence. The Bill provides a case in point. Clauses 77(3) and 115(3) already make it a defence for a person

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charged with exceeding limits on campaign expenditure to show that they complied with a code of practice issued by the commission under Schedules 8 and 13. The relevance of such a defence in the context of those schedules is clear. In providing for the issue of such a code of practice, Parliament will be indicating that the provisions of Part I of those schedules, which by their nature cannot be wholly exhaustive, are likely to require interpretation and clarification in terms of detail. Since any such guidance will be in the nature of a gloss on the provisions of the Bill, it is quite proper to provide that it should be a defence to show that one acted in accordance with the guidance.

However, it would be quite another matter to provide that every offence in the Bill should attract such a defence. In creating a statutory offence, Parliament is asserting its intention that a particular course of action should result in liability to prosecution. It would be odd then to provide that Parliament's intention should be contingent upon whether the regulatory body interprets the Bill correctly. Ultimately, the question of whether an offence has or has not been committed must be for the courts.

I apologise for the length of my reply. I have tried to be thorough and cover all the issues raised. I hope that having heard my reply noble Lords will feel able to withdraw their amendment.

Viscount Astor: My Lords, I am sorry that the noble Baroness thought that my amendment was unworkable. When I tabled it I thought that it was eminently workable. However, what is important is the Minister's comment about how the commission will disseminate information. That is helpful to the process. I accept that it is always difficult to know where the cut-off point is, but we know that the commission will look to see what was said as the Bill went through Parliament. It can look to see what the Minister said and that will be taken into account by the commission when deciding how to act. Therefore, the Minister's reply went a long way to satisfy my concerns.

Amendment No. 21 raises an important issue and I am grateful for the Minister's lengthy but helpful and clear advice. He said that written guidance must be taken into account by the court. It would be a defence and it is important that everyone knows that. As he said, any informal advice would be a different matter.

The Minister has given helpful answers to both points and I am grateful to him. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

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