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Viscount Astor moved Amendment No. 47:


(" . The Commission shall not themselves institute criminal proceedings against any person in any court in the United Kingdom.").

The noble Viscount said: My Lords, in moving Amendment No. 47, I shall speak also to Amendment No. 48. I shall be reasonably brief. They are probing amendments which seek to clarify the position in regard to investigations and prosecutions. I do not think that the position is at all clear at the moment.

These issues were raised in Committee. In responding to the points made, the noble Lord, Lord Bach, said:

    "So far as concerns the electoral commission, where a party member complains about possible fraud, either in his or in another party, I imagine that the electoral commission will investigate. It may, as may anyone, bring in the police if it feels that it needs to do so. If it does, then in the normal way the question of whether or not a prosecution takes place will, in the last resort, depend on the Director of Public Prosecutions".

The noble Lord then went on to say that,

    "powers exist under the Bill to prosecute and the electoral commission will be in a position to do so. The position often changes when the police are brought into matters of this kind".--[Official Report, 12/10/00; col. 528.].

Those are interesting words. We need clarification on two issues. The noble Lord used words such as "I imagine" and "may", which was perfectly reasonable in Committee. However, I hope that he will be able to go further today. The noble Lord, Lord Bach, said that the police would be involved if the commission felt the need to involve them. Does that mean that the commission could itself investigate criminal offences created by the Bill, such as those of evading restrictions on donations or giving false expenditure reports? Who would prepare a file for the Director of Public Prosecutions? Would it be the commission or would the matter be handed over to the police and it then become the responsibility of the police? Where would the line be drawn?

Of particular importance, would there be circumstances in which the commission itself would be in a position to prosecute? The Minister's words in Committee gave me that impression and I should like to know whether or not that is the case. What would be the position in regard to prosecutions in Scotland and Northern Ireland? It would be very helpful if the Minister could explain that.

I assume--I may be wrong--that the commission would not conduct any criminal investigations or prosecutions. It would seem unwise for that to be part

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of its duties. In the light of what the Minister said, I should be grateful if he can confirm the exact situation. I beg to move.

Lord Bach: My Lords, I am generally grateful to the noble Lord and the noble Viscount for tabling these probing amendments. The position was certainly not clear from my remarks last time. I intervened later to reverse what I had said but the noble Viscount has now given me the opportunity to make the Government's position clear and I shall attempt to do so.

This group of amendments is concerned with the commission's powers in relation to criminal proceedings and investigations. The general powers of the commission in relation to enforcement of the provisions of the Bill are set out in Part X. Nowhere is it suggested that the commission should have the power to institute criminal proceedings in the same way as, for example, Customs and Excise. The Neill committee made clear its view that prosecutions in respect of breaches of the law relating to controls on donations and election expenses should be placed in the hands of the Director of Public Prosecutions and should not be the concern of the commission. The noble Lord's amendment accords perfectly with that policy. But we believe that the amendment is unnecessary. If it were the intention that the commission should be able to institute criminal proceedings, it would have been necessary to make explicit provision to that effect. There is no such provision; therefore the commission does not have that power.

While the Neill committee did not intend that the commission should be a quasi-judicial body, it clearly did intend that it should have powers of investigation. The committee recommended that those powers should extend to investigating suspected breaches of electoral law. Against that background, Amendment No. 48 seems to propose a rather narrow role for the commission.

The noble Lord's proposition in this probing amendment would appear to be that, if a piece of evidence or an allegation comes to the notice of the commission which gives rise to the merest suspicion that an offence may have been committed, it should immediately be referred to the police. It is quite possible that the commission may attract a good number of allegations which may give rise to mere suspicion. We do not think it sensible to require that the commission should immediately place such suspicions at the door of the police.

The commission will be expert on the law in this area and it would therefore be entirely appropriate for its staff to undertake a preliminary investigation where it has cause for concern. Once it has established prima facie evidence of a criminal offence, it may--I choose that word carefully--then hand over its findings to the police or the Crown Prosecution Service for further investigation. An alternative course would be for the commission to initiate civil proceedings under Clause 144, in which case a reference to the police or the CPS might be inappropriate.

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In short, the commission will be an enforcement authority but not a prosecuting authority. We should allow it space to undertake its proper enforcement role. I hope that my answer has cleared up some of the misunderstandings that may have developed as a result of our debate in Committee.

Baroness Park of Monmouth: My Lords, perhaps I may ask the noble Lord a question; I hope I shall be forgiven if I am asking it at the wrong moment. Suppose that some strange circumstance arose and an offence was committed that the commission did not want to pass to the police or anyone else. Would it then be open, for example, to Parliament or to the police to pursue the matter? I am not quite clear whether the commission is the be-all and end-all of the decision on whether to take action.

Lord Bach: My Lords, I do not think that the powers of any other authority or individual are curtailed by the existence of the commission. In other words, other people's rights to investigate and bring charges (to approach the police, at least) remain.

Viscount Astor: My Lords, I am grateful to the noble Lord for his helpful explanation. It would be wrong for the commission itself to be involved in prosecutions. That would be the wrong role. I am grateful to the noble Lord for clarifying the position. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Clause 21 [Parties to be registered in order to field candidates at elections]:

Lord Bach moved Amendment No. 49:

    Page 14, line 17, at beginning insert ("Subject to subsection (4A),").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to government Amendments Nos. 50, 52 and 81, as well as Amendments Nos. 51 and 80 tabled in the name of the noble Lord, Lord Mackay. Amendments Nos. 49, 50 and 52 respond to an amendment tabled by the noble Lord, Lord Goodhart, in Committee. At that stage, the noble Lord suggested that what is now Clause 21 of the Bill went over the top in applying the restrictions on candidates' descriptions to elections for parish or community councillors.

I should remind the House that the purpose of these restrictions is to bring organisations that put forward candidates at an election within the controls on parties' income and expenditure. That said, we fully accept that there is no need for such controls to apply to a minor party--that is, one that operates solely at the level of a parish or community council. It follows, therefore, that the restrictions on candidates' descriptions need not apply at that level. Therefore, the amendments modify Clause 21 accordingly. It would remain open to a minor party to register, on a voluntary basis, under Part II of the Bill in order to ensure "copyright" of the party's name.

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Although we can relax the restrictions on candidates' descriptions at parish and community council elections, the Government cannot support a more general relaxation along the lines proposed by Amendment No. 51. As I have already said, these restrictions underpin the controls on donations and campaign expenditure. It has been no easy task to define a political party for the purposes of this Bill. The approach that we have adopted is to identify a political party by reference to what happens at the polls. The key defining feature of a party is that it puts forward candidates for election under a common banner. We know, for example, that a Conservative candidate in Edinburgh is a member of the same organisation as a Conservative candidate in London, or Cardiff. It is through a candidate's description that we can finger, so to speak, the supporting organisation and thereby apply the financial controls that are an important feature of the Bill.

We believe that Amendment No. 51 would undermine this whole approach. Under the amendment, it would be open to an organisation to put up candidates across the country but without the need to register as a political party. The noble Lord has tabled a number of other amendments for this Report stage with a view to closing loopholes. Whatever the prospect of the loophole in question being exploited, we feel that the noble Lord is putting forward an amendment that has the potential to create quite a large hole in the scheme of controls, never mind a mere loophole.

If this amendment were made, we could have "Independent against the Euro" or "Independent for one nation conservatism" candidates standing throughout the country in election after election. The organisations that backed those candidates would, at best, be caught by the provisions in Part VI of the Bill, but outside an election period they would not be subject to the accounting requirements in Part III, nor the controls on donations in Part IV. We do not believe that that is a consequence which is acceptable either to the Government or to the noble Lord. Therefore, I ask the noble Lord not to move his amendment.

Finally, government Amendment No. 81 to Clause 32 addresses a minor drafting point that arises from changes made to the Bill in Committee. We are grateful to the noble Lord, Lord Mackay, for having spotted this point, but I hope that he will accept the Government's amendment in preference to his own. Schedule 23 will, in fact, apply to a minor party. Indeed, it is by making the appropriate declaration required by paragraph 2 of Schedule 23 that an existing registered party will be registered under Part II of the Bill as a "minor party". I hope, therefore, that the noble Lord will not move Amendment No. 80 but that he will support government Amendment No. 81 when we reach that stage. I beg to move.

10.30 p.m.

Lord Mackay of Ardbrecknish: My Lords, the point behind this series of amendments is an important one. I shall begin by saying that I am grateful to the Minister and to the Government for bringing forward

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their own amendments relating to candidates for parish and community elections. If we had left the position as it stood in Committee, it would have meant that people who were standing at these lower elections--if I may so describe them--would not have been able to add anything to the word "independent". If they were the independents against filling in the duckpond, or the independents against not filling in the duckpond, they would not be able to say so. That may appear to be a trivial local issue, but I have little doubt that it could be a matter of some heat and contention in various villages. It is important that at local elections people ought to be able to add to the word "independent" up to five other words to describe what they are standing for.

I am grateful to the Minister for his response. I do not want to sound churlish when I say that I rather regret that the Government did not go a little further. My Amendment No. 51 goes that bit further. It states that a candidate who is an independent and who is standing for an election of any kind and at any level ought to be able to add up to five words to describe what he is standing for. We had a long debate on this matter in Committee and I do not intend to go over that. However, it is fair to point out, as did my noble friend Lord Norton of Louth, that the further description would enable voters to identify what an independent stood for.

I have no problem with candidates standing as independents, even when they occasionally stand in a way that is designed to try to take votes away from my party. It seems to me that one of the fundamental things about democracy is not just that one can vote freely and in secret but that one can also stand and tell the electorate what one is standing for. I do not want to speak at length at this time of night, but I worry about the kind of restrictions that the Bill occasionally imposes, often for well meaning reasons. However, they are there and they could be sorely abused in the future.

As I said, I have no problem with independents. I have no problem with an independent adding words to describe what he is standing for. As I understand the position, a Labour candidate could add some words to the description on the nomination paper. At a certain period in history it was popular in Scotland for political parties to coin the phrase, "Labour against the poll tax", for example. I am not sure what that added to the Labour Party's candidature, but they thought that it add something. If that is still allowed under the Bill--I think that it is--I cannot see why someone should not be able to coin the phrase, "independent against the council tax", or independent against whatever the person wants to be an independent against.

I hear what the noble Lord said about people standing in each constituency as independents against one particular thing and not falling foul--if I may put it that way--of the political parties route. But surely the electoral commission and the courts have some role in that. Members of the Conservative Party could all decide to stand as independent Conservatives and not have to obey any of the spending or the donation rules.

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That cannot be a serious proposition. It would not be allowed--not that we should think of doing it for a minute. I am taking the measure to ridiculous extremes. Why, therefore, are the Government so frightened that a crowd of people will get together and say that they are independents for the euro or independents against the euro and thus manage to evade the rules? I find it hard to understand that argument.

I accept that the Government have tidied up in their Amendment No. 81 what I attempted to tidy up in my Amendment No. 80. That is fine. However, I should like the Government to go a little further and try to address the matter of why an independent standing in an individual constituency with no connection to anyone else but wanting to make a point should not be able to describe what he is standing for? If the only argument put forward is that it is in case those who are anti or pro the euro decide to use that as a loophole, I believe that there are other ways round that rather than depriving an individual of his democratic right to stand and to describe what he stands for as he sees fit, provided that that does not confuse the electorate.

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