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29 Apr 2009 : Column GC51

29 Apr 2009 : Column GC51

Grand Committee

Wednesday, 29 April 2009

Political Parties and Elections Bill

Bill Main Page
Copy of the Bill
Explanatory Notes
Supplementary Amendments
6th Report from DPC
4th Report from JCHR

Committee (1st Day)

3.45 pm

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): I remind the Committee that if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bell is heard and will resume after 10 minutes.

Clause 1 : Compliance with controls imposed by the 2000 Act etc

Amendment 1

Moved by Lord Bates

1: Clause 1, page 1, line 7, leave out from “and” to “securing” in line 8

Lord Bates: As this is the first day of Committee, I place again on record my interest as an officer and deputy chairman of the Conservative Party. I speak from the Front Bench in this regard. I want to make some general points of principle and approach. This is a very important piece of legislation. We are all agreed on that. On it hangs an attempt to reinvigorate some confidence and surety from the electorate in the electoral system, which is the cornerstone of our constitution in this country. As such, it behoves us to ensure that the legislation is thoroughly debated and understood at every level.

One of the things which concerned me and on which I suppose we got off on the wrong foot was that the clauses on individual voter registration that we had been waiting for for some time actually appeared only this morning. That is almost two months after they were promised. Some nine pages of amendments have now come through, to be debated after Clause 21, on a new clause on individual voter registration. They appeared on the morning that this vital Bill appears in Committee. I have to say that we are very disappointed at that. The reason given by the Minister’s team is that these are extraordinarily complicated issues which have required very careful drafting. We entirely agree with that, but they also require very careful scrutiny. It is important that all Members of the Committee are given adequate time to consider these vital clauses and that has not been done in this case. We on this side are very disappointed and concerned about that. It is not as if this is the first time.

When the Bill was first put forward, it was debated extensively and for some time in Committee in the other place. Only at Report stage did the Government bring forward a whole series of areas in which there would be a conciliatory approach and on which they would introduce amendments. Therefore, there was very little opportunity in the other place for Members to discuss the implications of those amendments. We had hoped that a lot more time would be given to us in this place to consider them; but we very much feel that

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it is unsatisfactory that a large and vital section on individual voter registration has been delayed until this point. I should say that it is out of character with the way that the Minister, who has been very courteous in dealing with this and has tried to inform us at every stage, has behaved. I want to place on the record that area of concern, which is strongly felt on this side of the Committee.

This amendment relates to the compliance with controls imposed by the 2000 Act and seeks to leave out at page 1, line 7,

That would remove what is effectively a blank cheque with which the Electoral Commission could proceed in its investigatory powers as it considered appropriate.

Again, the Committee will be familiar with the issues we have raised in regard to the powers of investigation. We do not need to be so vague in Clause 1(2) because Schedule 1 outlines the investigatory powers of the commission in extensive detail over some six pages of the Bill. We will debate amendments to these powers later in the Bill. The powers are extensive and clearly set out and the amendment seeks to probe the Minister as to what type of investigations and appropriate steps the Electoral Commission could consider which do not fall within the remit of the powers of investigation contained in the schedule. Does the Minister agree that

is an ambiguous enabling power? Does he consider that some definition and clarification of this power might be usefully inserted in the Bill? I would be grateful if the Minister could explain the circumstances in which this wider power might be considered appropriate.

We realise that this is very important work. We do not want to be seen in any way as thwarting or putting barriers in the way of the Electoral Commission in doing its vital work of upholding the integrity of our electoral system. However, we on this side believe that we should have further detail as to what is intended. Can the Minister say what steps he envisages the Electoral Commission focusing on? Will those avenues become well trod? In other words, will the clause be considered and used in practice?

Some helpful briefing has been provided by a number of organisations, including the Electoral Commission itself. Its comment on the amendment is that it would not wish to see it go through—one can well understand why—and, depending on the Minister’s reply, we will consider whether we wish to press it. However, it is important that we set the right tone at the beginning of the debate. What is the point of listing all the investigatory powers of the commission and the circumstances in which they might be used in great detail in Schedule 1, and then throwing the door wide open by stating that, in addition, it can take any other steps it considers appropriate to secure compliance? I beg to move.

Lord Tyler: I follow the noble Lord, Lord Bates, by indicating the approach that I and my noble friends intend to take during the Committee process. As we are all political animals, in a sense we all have to

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declare an interest, unusually, in this subject. We also have a considerable interest in ensuring that the Bill leaves your Lordships’ House in a better state than it arrived. That surely is the justification for this process and, indeed, for your Lordships’ House. As we are all self-confessed experts on this subject, I have every confidence that the Committee process will achieve that improvement.

I and my noble friends have two overriding objectives in this Grand Committee. First, we believe that we should seek to build as far as possible on the Hayden Phillips agreement across the three major parties so that we can try to achieve some of the objectives that that important process set for itself. I was delighted that at Second Reading we had support from other parts of the House, notably from some Conservative Members of your Lordships’ House, to seek that objective. As the noble Lord, Lord Bates, has already said, we have a responsibility to try to reinvigorate confidence, and there are ways in which the Bill can do that. Of course, we cannot do it just via this Bill. For example, it is folly to imagine that by a legislative stroke of a pen we can give new strength to the role and responsibilities of the Electoral Commission and that the commission, on its own, can suddenly achieve improvements. Some of the improvements required are much nearer to home—among politicians.

Our second objective is to try to ensure that, when the Bill leaves this House, the Electoral Commission is empowered and given responsibility—that is why this amendment is very relevant—in a way that is both proportional and practical. I think that we are all very conscious that the political class, if I may put it like that, and not just the Government, has imposed on the commission great expectations and great responsibilities but that it has not necessarily given the commission the weapons with which to fulfil those expectations and responsibilities. Therefore, our second overriding objective is to try to ensure that, when it leaves your Lordships’ House, the Bill gives the Electoral Commission the responsibilities and resources that it requires to fulfil this role.

Coming to Clause 1 and Amendment 1, I understand fully that the noble Lord, Lord Bates, was probing. I am not sure that he used that word but it certainly sounded like probing. Our anxiety is to ensure that at the very outset of the new legislation it is absolutely clear that the commission has a responsibility to ensure compliance with all the necessary controls rather than to take steps with a view to securing compliance. Frankly, that sounds a bit wishy-washy. I am with the noble Lord, Lord Bates, in thinking that, given the full range of responsibilities set out in Schedule 1, it will be a pity if at the very outset of this Bill there is seen to be any quibble, doubt or hesitation. I shall listen with great interest to what the Minister says but I have some sympathy for the point of view put forward by the noble Lord, Lord Bates.

Baroness Gould of Potternewton: I understand the points that the noble Lord, Lord Bates, has made but what I find difficult is the taking out of the whole of that phrase. If, as has just been said, only the word “securing” were taken out with a view to the commission

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monitoring “compliance with”, there might be much more logic to the amendment. However, as it stands, it seems that the noble Lord is seeking to take away a great bulk of the regulatory power that the Electoral Commission is designed to have. I think that removing the section relating to compliance means that the commission will not conform to the recommendations of the Committee on Standards in Public Life, which made it very clear what it thought the role of the Electoral Commission should be, and the commission has duly accepted that role. The Committee on Standards in Public Life said that the Electoral Commission’s role should be,


I believe that taking out that phrase takes away that role. I know that at this stage the amendment is probing but I think that it would be very wrong to do that. I believe that the Bill provides adequate powers of sanction to perform that regulatory role, and that those powers are balanced, proportionate and subject to proper safeguards.

There is a lot of debate to be had about exactly what that regulatory role means. My first reading of the amendment is that it would take away the whole of the regulatory role in respect of compliance with the Committee on Standards in Public Life. I am sure that that is not what the noble Lord meant, but that is unfortunately how it may be read as it stands.

4 pm

Lord Hodgson of Astley Abbotts: I hope that the noble Baroness will forgive me for saying that I do not entirely follow her line of argument. My noble friend has drawn attention to the extremely wide powers that are being given. It is worth while noting that this is an amendment to Section 145 of the original 2000 Act, of which the opening phrase is:

“The Commission shall have the general function of monitoring compliance with”.

So an extremely broad function is defined in that Act, and we now have words such as, “they consider appropriate” as to how it should be enforced. My noble friend is therefore quite right to ask the Government for some clarification as to how the powers will be used. One has an awful feeling that the Electoral Commission here is judge and jury and that the powers could be used in a way that was disproportionate to the remedies that they seek to achieve.

Perhaps I may ask the Minister a specific question because I may not understand the Bill sufficiently well. If I am a treasurer of the Much Minding in the Marsh Association and I believe that what the Electoral Commission is doing is inappropriate, what is my remedy? Who do I go to and where do I find the answer if I believe that I am being inappropriately treated for the questions and the offence that I am presumed to have committed? My noble friend is absolutely right to want it clarified on the record how widely the Government envisage the dual power being used.

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Lord Borrie: As I understand the amendment, it is to remove from Clause 1(2),

The effect of that seems to be to remove what must surely be essential in these matters, which is the judgment of the Electoral Commission. It is not really conceivable or desirable that it should be put in an objective way. There must need to be some judgment on the part of the Electoral Commission in determining such matters as party accounting, political donations, campaign expenditure et cetera. If the deletion requested by the amendment were put into effect, there might even be a risk that anything that the Electoral Commission determined in the way of securing compliance could be so objectively determined that judicial review was available against its decision. As it is, it is left to its judgment, but surely that is most appropriate. As the noble Lord, Lord Bates, fairly explained, its judgment and powers are gone into in much more detail in Schedule 1 and other provisions, but the basic element of judgment which is dealt with in Clause 1 seems appropriate.

Lord Marland: One of the reasons that we are here is that the Electoral Commission has failed to use its judgment and its policing in the past few years. As the noble Lord, Lord Hodgson, said, we have to be clear what powers the Government are going to support the Electoral Commission with, and what process of appeal is available when the Electoral Commission does not fulfil the roles that it is meant to fulfil and has not exacted judgment fairly—as has been the case in the past; I declare an interest as a party treasurer for the Conservative Party for three and a half years. We must be very careful as we go through the Bill about giving blanket powers to the Electoral Commission which are not policed properly and are not exact. I therefore support my learned colleague.

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): I thank noble Lords who have spoken in this debate. I apologise that the important government amendments on the identify issue have not been introduced until very recently, but it is not as though the official Opposition did not know that there were going to be considerable delays in getting the amendments before noble Lords. This was a policy announcement made on Report in another place on 2 March. It was made absolutely clear that the draftsmen, along with the officials from the department, would have to spend a lot of time making sure that the amendments for this important policy change—one that the noble Lord’s party supports in principle—should be accurate and well done. I said at the open meeting last week, at Second Reading and in private discussions in general—and the noble Lord was kind enough to be gracious about that—that this would take some time. We have put them down so they are in time for next week. I appreciate that they are complicated and that this is an important matter.

What I would say to the noble Lord and to all noble Lords present, on the Front Benches particularly, is that I called an open meeting today, although it was at an inconvenient time and I understand why. However,

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my officials are available to discuss the Government’s amendments with them and with other noble Lords during the course of the next few days and will be happy to do so given the circumstances of this matter. These are very complex provisions and represent a significant addition to the Bill, so they needed very careful drafting.

The noble Lord, Lord Tyler, talked about us all being self-confessed experts. I found that a rather worrying phrase, particularly bearing in mind that the Committee stage has to end some time during this calendar year—and a little bit previous to that, I hope, in any event. However, I do not dispute what he said about us all thinking we are experts. I should also declare, as I forgot to do, that I am chairman of a constituency Labour Party.

This amendment would alter Clause 1, which sets out the commission’s role in securing compliance with the controls imposed by the Political Parties, Elections and Referendums Act 2000. I hope that we will find a shorthand way in which to refer to that Act. The clause emphasises that the commission has a role in monitoring compliance with these controls, but also goes further, and clearly emphasises the commission’s role in securing compliance with the controls. In doing so, it makes clear that part of the role is the consideration of what steps, if any, need to be taken in order to secure compliance. The clause is intended, in response to recommendations to this effect from the Committee on Standards in Public Life, to clarify the commission's role as a proactive regulator. Regulators do not just monitor but have a duty to secure compliance, too. It does so by making it clear that a key feature of the commission’s role is to actively encourage and work to deliver compliance with the requirements and restrictions of the Act. This includes use of the commission’s investigatory and civil sanctioning powers, as provided by this Bill, and which we will come to in due course.

Clause 1 is intended to address the recommendations of the Committee on Standards in Public Life that PPERA should be amended—and it does need amendment, if you look at Section 145—to make it clear that the commission has a duty to investigate proactively allegations or suspicions of failures to comply with the regulatory framework. Evidence received by the committee suggested that the commission’s interpretation of its regulatory mandate in PPERA has led it to taking a passive approach, which had in turn made it a less effective regulator.

We do not think that imposing a formal duty to investigate is quite the right approach. In relation to the commission generally, PPERA is drafted in terms of its functions and that is also the approach that we have adopted. We concluded that it might be counter- productive to impose a strict legal duty on the commission to investigate every allegation it receives, regardless of merit. That could have raised questions about what was needed to discharge the duty in each case and might have exposed the commission to the risk of unwarranted legal challenges on the point, which might have diverted its resources in a way that would have been frankly unhelpful. At basic level, we agreed with the thrust of the CSPL recommendation, and that is the reason for the changes that occur in Clause 1(2).

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The reference to taking steps to secure compliance implicitly refers to the possibility of the commission using the investigatory powers and civil sanctions provided for by the Bill.

Various noble Lords are concerned about when this compliance will be needed. It will be an integral part of the commission's approach as a modern regulator. As I said, it has been criticised in the past for being a little passive in its regulation role, receiving information by the bucketful rather than taking proactive steps to encourage compliance. It is fair to say that the commission has taken some steps recently to take a more active role, but this clarification and the sanctions and powers in the Bill will enable it to do more, such as issue disclosure notices to seek information if a breach is suspected.

What steps will the commission focus on? The reasoning behind the wording is to focus the commission's mind on the steps available, such as using supervisory powers where there are concerns over the adequacy of record keeping by a certain body, for example, or, in more serious cases, concerns about a suspected breach of the 2000 Act and consideration of the use of civil sanctions.

The noble Lord, Lord Tyler, described our attitude in the Bill as wishy-washy. I dispute that. The wording in the Bill is “taking steps”, which is not at all wishy-washy. It implies action and that is intended to be the commission's role. In short, it will regulate rather than just purely monitor.

How will the powers be used? Each power in the Bill has appropriate safeguards, including appeals against the imposition of civil sanctions. The commission has already published a draft enforcement policy focusing on a new risk-based approach and setting out how it intends to use the new powers. The guidance is subject to consultation and the commission, I am told, welcomes views on it. The commission knows and is clear—as is the Bill—that powers must be used proportionately and reasonably.

I am not certain whether the amendment is a real probing amendment or whether there is more behind it. It appears to seek to limit the commission's role to monitoring compliance with the controls imposed by the Act. As my noble friend Lord Borrie said, the effect of the amendment would be to remove the clarity intended by Clause 1 and would maintain the status quo, which the CSPL has rightly said is unhelpful. For that reason, we resist the amendment. I have explained the reasons behind the drafting of the Bill, which we believe is appropriate.

To sum up, for the commission to be taken seriously as an effective regulator, it must be clear to it and to those it regulates that taking steps to secure compliance and implicitly to deter behaviour is an intrinsic part of its regulatory role. Identification of a suspected breach or contravention of the Act cannot be the end of the matter as far as the commission is concerned. The commission cannot tick the box saying that we have monitored this but we are not doing anything about it. It must have the power to do something about it, too. What deterrent would there be to persistent and wilful breaches of the law if there were no consequences?

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I hope that the Committee will agree that a regulator that can only monitor compliance with controls within its competence, but not take steps to secure compliance, will be restricted as a regulator. To remove the reference to taking steps to secure compliance would send the wrong message and risk cementing certain perceptions of the commission as not being sufficiently robust. That would do nothing to build public trust and confidence, which all parties clearly think that we need in our political and democratic system. I hope that, on the basis of what has been said, the noble Lord will withdraw his amendment.

4.15 pm

Lord Maclennan of Rogart: Before the Minister sits down, will he consider whether his purpose in resisting the amendment might be helped by a redefinition that made it clear that the end of securing compliance does not justify any means?

Lord Bach: I hope that that is implied in the Bill by the various sanctions that are available to the commission. Of course the commission is bound, as is any organisation, to behave in a reasonable fashion. There is always the possibility of judicial review of a decision by the commission if it is felt to be “Wednesbury unreasonable”—the noble Lord will know better than I what that phrase means. We believe that there are protections here, as there are covering all organisations of this kind. We believe that the Bill has got it right.

Lord Bates: I am grateful to the Minister for his reply, and also to other noble Lords who have spoken. On my first point, I accept the complex nature of the matter. The point is that, as a Committee and a House seeking to review and scrutinise these important pieces of legislation, we received nine pages of changes—not recently, as the Minister carefully said, but today, when the Committee is starting. This is of course “recent”, but the matter is serious. The point has been made that something of a serious nature was introduced on Report in the other place on 2 March; it would have been sensible and advisable, as a number of my colleagues observed at Second Reading, for these new clauses to be part of the Bill that was brought at Second Reading. There would then have been enough time for us to consider carefully the complex matter that has been put before us. I would like to put that on the record.

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