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Having noted the serious concern expressed in the other place, we are keen to ensure that the powers of entry in the Bill are justified and extend only to categories where there is a clear rationale for them. The amendment would prevent the commission from entering the premises of those formerly falling within the categories of organisations or individuals supervised by the commission. This would mean that the commission would not be able to enter the premises of former parties, former third parties, former permitted participants and former members’ associations. Preventing the commission from doing so is consistent with the commission’s current power of entry for these purposes, as contained in Section 146 of PPERA, which does not encompass such bodies or individuals.

The commission has confirmed that it is content that this amendment will not adversely affect its supervisory role. We believe that this is a sensible safeguard to ensure that the commission’s reach is reasonable when it comes to routine supervisory activity. The commission’s ability to require co-operation from anyone in connection with an investigation into a suspected breach of the Act remains unchanged. I beg to move.

Lord Henley: I will now offer my noble friend a break from responding to the Government, as the noble Lord, Lord Bach, has also decided to take a

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break. I will also take the opportunity to declare my own interest as a former chairman of the Penrith and the Border Conservative Party association, which I think the noble Lord, Lord Campbell-Savours, knows well as a fellow resident of the north-west.

I do not think that we need to spend long on this amendment, and I welcome the noble Lord’s explanation of its details. All we will say is that any limitation on the power of entry into premises should always be welcomed. It was regrettable that the Government originally thought it necessary to include in this group organisations or individuals formerly falling into the above categories. Therefore we are very grateful that they have been removed, and that there is a slightly smaller number of people into whose premises the commission will have powers of entry.

Lord Rennard: The arguments concerning this amendment are identical to those that we had concerning Amendments 2 and 3, which we quickly agreed in a short, non-controversial debate. I hope that we shall do so again.

Amendment 7 agreed.

Amendment 8 not moved.

Amendment 9

Moved by Lord Tunnicliffe

9: Schedule 1, page 26, line 22, leave out “A county court or (in Scotland) a sheriff” and insert “The High Court or (in Scotland) the Court of Session”

Lord Tunnicliffe: The government amendment is intended to address concerns raised in another place about paragraph 4 of new Schedule 19B to the Political Parties, Elections and Referendums Act 2000. The Government tabled amendments on Report in another place to replace the warrant power and provide an alternative means for the commission to enforce compliance with its requests for documents. These provisions, contained in paragraph 4 of new Schedule 19B, set out a power for the commission to apply to a county court for a disclosure order. The purpose of a disclosure order is to enforce an earlier notice issued by the commission under paragraph 3 of the new schedule, requiring specified documents to be produced.

Paragraph 4 of the new schedule provides that a county court judge or, in Scotland, a sheriff may make a disclosure order against a person following an application from the commission if he is satisfied the tests set out in that paragraph have been met. We initially proposed that these applications be to the county court, given the expectation that most investigations by the commission will be dealt with under civil rather than criminal law. However, we agreed to consider, after seeking the views of relevant parties, whether it would be appropriate to make a further amendment to the court-order provisions to require that consideration of applications in these cases be dealt with by the High Court.

In considering whether the High Court should deal with these applications, we have taken into account the likely impact on the workload of the High Court,

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ensuring that the commission's investigations are not delayed, and the complexity and possible political sensitivities in play in these applications. We are reassured that the likely number of cases that will come before the High Court will not add in a significant way to the pressure of business on that court.

Given the nature of these applications and the potential complexity and political sensitivities surrounding them, on reflection, we believe that the High Court would be the more appropriate level of scrutiny for these applications. I hope that noble Lords will be reassured to hear that we have sought the views of interested parties, including the Lord Chief Justice and his colleagues in Northern Ireland and Scotland, who all agree that the High Court should consider these applications.

In light of the above, government Amendment 9 seeks to vest consideration of the commission’s applications seeking a court order to enforce their disclosure notice with a High Court rather than with a county court.

I shall speak briefly to Amendment 10. I believe that its intention was the same as that of our amendment, which is slightly more complete. I hope that the noble Lord will not feel the need to move his amendment. I beg to move.

The Deputy Chairman of Committees (Lord Haskel): I have to inform the Committee that if Amendment 9 is agreed to, I cannot call Amendment 10, by reason of pre-emption.

Lord Henley: I am very grateful to the Minister for explaining the reasoning behind government Amendment 9, and to the Deputy Chairman for explaining that there will be pre-emption if we agree to it, and that, therefore, we would be unable to move our Amendment 10. This matter was explored by our colleagues in another place and at that stage the Government resisted this issue, but admitted at least that they would have another look at it. I am grateful that they have accepted the argument that we put forward at that stage that the High Court would be a more suitable place for considering these matters and that, following the consultation that the Minister mentioned, that would not impose an undue burden on the High Court, given that the use of these orders would be somewhat infrequent.

We tabled our amendment and, as the Minister has explained, it is not quite as good as the Government’s, in that I forgot to look at the extent clause in the Bill. This is often done by people who live as close to the border as I do, and I forgot that Clause 28, which deals with the extent of the Bill, explains very properly that it covers the entire United Kingdom, including Scotland, which has a different legal system from ours. Therefore, I am grateful that the Government have drafted their amendment in a slightly more comprehensive manner and have included the courts in Scotland.

We are grateful to the Government that they have come forward with their amendment. We will not oppose its passage at this stage and, therefore, we will not move our Amendment 10.



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5.30 pm

Lord Tyler: I intend to follow the example of my noble friend and be exceedingly brief. In parenthesis, I should say that my only known ancestor in your Lordships' House was the great Bishop Trelawney of whom it was said by James II that he was the most saucy of all the seven bishops. I rather hope to have that same accolade, but I hope that they will also say “at least he was brief”.

We think that this is a perfectly sensible change. We are grateful that the discussions in the other place have led to the Government thinking again about this. As the Minister said, both in terms of complexity and political sensitivity, it is much more appropriately dealt with at this level. We support the amendment.

Amendment 9 agreed.

Amendment 11

Moved by Lord Tunnicliffe

11: Schedule 1, page 26, line 22, leave out “disclosure” and insert “document-disclosure”

Lord Tunnicliffe: In moving Amendment 11, I shall also speak to government Amendments 12 to14, 24 and 25. Paragraph 4 of new Schedule 19B enables the commission, in cases where a person has already refused to provide documents, to apply to a court for an order to enforce the commission's earlier notice issued under paragraph 3 of that schedule requiring documents to be produced. Government Amendment 14 would provide an equivalent power to seek a court order so that it may be used to compel information or an explanation in circumstances where an earlier request has not been complied with.

Government Amendment 14 inserts a new paragraph 4A to Schedule 19B to the Political Parties, Elections and Referendums Act 2000. Paragraph 4A provides the commission with the power, in cases where a person has already refused to provide information or explanation in response to a notice issued by the commission under paragraph 3(2) of the same schedule, to apply to a High Court—or in Scotland to the Court of Session—for an order to enforce the commission’s earlier notice requiring disclosure of information or explanation. In that event, failure to comply with the court order would be contempt of court or a criminal offence, but could not be both.

The amendment is intended to address the concerns raised by the commission that the court order power is too narrow in that it can be used only to compel documents. In particular, we appreciated the commission's concern that there might be instances when it seeks information or explanation on specific issues or in response to written questions, a person refuses to comply, and the commission then has no recourse other than perhaps to ask the police to intervene.

In the light of that, we believe that the amendment is necessary to ensure that the court order powers are wide enough to effectively enhance the commission's investigatory capacity, in circumstances where it reasonably believes that there has been an offence under, or breach or contravention of, the Act.



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The court order provision is intended to add an extra and very important layer of compulsion to the commission’s power to issue a notice to request documents, information or explanation. It is vital that the initial request from the commission is not the end of the story from someone who may have documents or information relevant to an investigation.

In providing for a court order power that may be used to compel information or explanations, we have been mindful to retain the safeguards already in place to ensure that the power is used appropriately. A court order would not be issued automatically on an application being made by the commission. The commission must first demonstrate to the satisfaction of the court that there are reasonable grounds to suspect that there has been an offence or contravention under the Act; that there is information or explanation referred to in the notice under paragraph 3 which has not been provided; that this information is reasonably required by the commission for the purposes of investigating the suspected offence or contravention; and that the person against whom the order is issued is able to provide the information.

Government Amendments 11 to 13 are consequential amendments that replace all references to disclosure orders in paragraph 4 with references to document disclosure orders, to differentiate between document disclosure orders and information disclosure orders.

Government Amendments 24 and 25 are also consequential. Amendment 24 amends paragraph 14 of Schedule 19B to require the commission to prepare and publish guidance as to circumstances in which the commission is likely to apply for an information disclosure order under new paragraph 4A. Amendment 25 amends paragraph 15 of Schedule 19B to require the commission to include information about information disclosure orders in the report on the use of its investigatory powers. With that explanation, I hope that noble Lords will agree that the court order powers will assist the commission to regulate effectively.

Having said that, the commission must use the investigatory powers at its disposal responsibly. It is for this reason that the Government tabled several amendments in another place to require the commission to issue guidance on its investigatory powers and to provide information in its annual report on its use of them. These safeguards are still in place. I beg to move.

Lord Henley: I am grateful to the noble Lord, Lord Tunnicliffe, for what he said about government Amendments 11 to 14, 24 and 25. I have a sneaking feeling that we are quite close to agreeing where we ought to be on these matters. However, what I want from the Minister, to put it in legalese, is further and better particulars of the circumstances in which he sees these orders being useful. We are very keen that the Electoral Commission should have effective powers to allow it to achieve its main aim—to eliminate unfair and illicit practices within the electoral system and to restore confidence in a better and more transparent structure—and, with that in mind, we are not entirely opposed to these government amendments. If the power is both useful and necessary, we certainly welcome it.



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Can the Minister say a little more about when he thinks these new powers for the Electoral Commission will be useful and how he sees the commission making use of them? Is he able to give the reassurance we need—and I suspect this might also be true of the Liberal Democrats—before we, as it were, sign up to the orders?

Lord Campbell-Savours: I have a simple question for my noble friend, although the answer might be in the Bill. On document disclosure, what about tapes, videos, CDs, DVDs, computer discs and all kinds of other sources of information that might equally be required? That is all I ask.

Lord Rennard: “Information” is clearly the key word here. It is important that we support these amendments. It must be right that the commission is allowed to issue disclosure orders seeking information in any form as opposed to only written documentation. I know from my experience of dealing with the Electoral Commission the importance of oral testimony and being able to discuss issues, as opposed to simply providing written documentation. In the event of someone not providing such information, or such information in any form not being forthcoming, a court order would be the more appropriate route for obtaining it, rather than simply going straight to a prosecution for failing to provide it. On that basis, we support the amendments.

Lord Tunnicliffe: On the simple question about other media, I am assured that other media are included under the concept of document. That is made clear in Clause 10(1).

I am not good at very complicated things, so I could read out this explanation. However, perhaps I may do something a little simpler. The process of investigation is about seeking documents, which I think we would all agree is a sensible way to start an investigation. It will involve interrogation—we do not use that word, so let us say seeking people to come to a place and answer questions. When one looks at it in those terms, it is clear that the space between documents and interrogation is filled by the seeking of information; that is, as a result of the initial study of documents and before the process of calling people in to be interviewed, more information is wanted. The powers to seek information are parallel to those to seek documentation and they have, as I understand it, exactly the same protection. I therefore have no problem envisaging that natural progress down an investigatory path. I hope that that is a sufficient explanation for the noble Lord, Lord Henley.

Amendment 11 agreed.

Amendments 12 to 14

Moved by Lord Bach

12: Schedule 1, page 26, line 40, leave out “disclosure” and insert “document-disclosure”

13: Schedule 1, page 27, line 1, leave out “disclosure” and insert “document-disclosure”



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14: Schedule 1, page 27, line 3, at end insert—

“4A (1) This paragraph applies where the Commission have given a notice under paragraph 3 requiring any information or explanation to be provided.

(2) The High Court or (in Scotland) the Court of Session may make an information-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 is any information or explanation referred to in the notice under paragraph 3 which—

(i) has not been provided as required by the notice (either within the time specified in the notice for compliance or subsequently),

(ii) is reasonably required by the Commission for the purposes of investigating the offence or contravention referred to in paragraph (a), and

(iii) the respondent is able to provide.

(3) An information-disclosure order is an order requiring the respondent to provide to the Commission, within such time as is specified in the order, such information or explanation falling within sub-paragraph (2)(b) as is identified in the order.

(4) A person who fails to comply with an information-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).”

Amendments 12 to 14 agreed.

Lord Tunnicliffe: Perhaps this is a convenient point to take a 10-minute break.

5.41 pm

Sitting suspended.

5.51 pm

Amendment 15

Moved by Lord Henley

15: Schedule 1, page 27, line 6, leave out “three months” and insert “42 days from the day on which they were seized”

Lord Henley: Amendment 15 is in my name and that of my noble friend Lord Bates. I shall speak also to Amendments 16 to 23. I am very glad to see that the two Ministers are back after their defeat in the House of Commons. We wondered whether they were in the process of resigning. Perhaps the noble Lord has not heard that there has been a government defeat in the House of Commons. No doubt the Liberal Democrats will be able to tell us more in due course.

I will get back to the matter in hand, which is Amendment 15 and its associated amendments. The Minister briefly tried to pre-empt the amendment when we discussed Amendment 6 and the question of time limits, and whether one should use the word “reasonable”. Again, I stress that these are probing amendments; we are seeking to discover why the Government are doing what they are doing, and ask them to explain their reasons. The amendments ensure

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that documents cannot be held by the commission for the full three months set out in the Bill, but instead for only six weeks—that is, 42 days. Amendment 18 also gives the power to magistrates’ courts to extend that period by a further 14 days on application by the commission to the courts.

These amendments are designed to bring a judicial safeguard mechanism into the Bill and prevent the commission holding documents for an excessive period of time, which has the potential to place an individual or group in a very difficult position. In the case of important financial documents, 90 days can be an extremely long time to be without key information; indeed, it could lead to a further infringement of the rules, and another brush with the commission. For that reason, we believe that 42 days might be more appropriate. In fact, “a reasonable amount of time” might be more appropriate, but we would then have the problem of a lack of certainty facing individuals. I am sure that the noble Lord will explain what he thinks would be appropriate. With that brief explanation, I beg to move.

Lord Tyler: I do not have the information to which the noble Lord, Lord Henley, refers. I need further and better particulars, as they say. All I do know is that the last time the Government were defeated on a Motion moved by a Liberal Democrat was when, at 10 to one in the morning when dealing with terrorism legislation, I moved that the House go into private session. Because no one had any idea how that should proceed, it was passed. The Whips were all trying to get Labour Members out of appropriate parts of the building at the time and so Treasury Ministers on the Front Bench had no advice from Whips as to what the heck they should be doing. That is a little bit of history.

We, too, think that this is an important issue to probe and think through. I understand that amendments along these lines were discussed briefly in Committee in the other place but were not then debated on Report. Therefore, I think that it is important for the Minister to explain precisely why he feels that this period is necessary. As I understand it, if we were to reduce the time from three months to 42 days, it would still be open to the commission to apply to a magistrates’ court to extend that if, in particular circumstances, it was vital to a major investigation. Therefore, we are not closing the door on retention for the longer period. However, surely we should be asking what would normally be the case and what would be reasonable, as the noble Lord, Lord Henley, said.

The enhanced powers to seize documents, to which these concerns are related, were, I think, dropped from the Bill by Ministers during its passage through the other place. Therefore, in a sense, it is rather unclear why this issue has not already been resolved. In Committee, the Government argued that amendments along these lines would impact significantly on the commission’s ability to give proper consideration to documents which it required for the purposes of investigating a suspected breach or contravention of the 2000 Act. The Minister also pointed out that the commission could return documents before the three months if there was no

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reason to retain them for longer. However, in a sense, that flexibility should work the other way round, given that there is also the longstop provision that, in the case of a major investigation, the commission can apply to a magistrates’ court to extend the period.

On the whole, our response to this choice is that it is better to err on the side of flexibility, even if it means that occasionally the Electoral Commission is put on the spot to justify special circumstances. On that basis, we look forward with interest to hearing what the Minister has to say.

Lord Borrie: I have no doubt that the noble Lords, Lord Henley and Lord Bates, are right to raise this matter. Indeed, I understand the Liberal Democrats wanting to pursue and debate the matter and to have the Minister’s response. However, on the face of it, I do not see the strength of the argument that has been put. We start with the proposition that there has been a court order for an investigation and disclosure, and, if the Act ultimately says what the Bill says, the court will know that that means a three-month period in which the documents will be retained.


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