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The amendment would halve the time allowed in the Bill for retention, although it is true, as the noble Lord, Lord Tyler, said, that the commission can go to a magistrates’ court for an extension. That is all very well but you can imagine the seriousness of the situation. The Electoral Commission has, ex hypothesi, embarked upon a serious investigation and, before it has thoroughly carried out that investigation, it is required to go to a magistrates’ court for a time extension, which will further delay the outcome of what must be a very serious inquiry. Furthermore, before the documents are handed over, they can be copied—there is nothing to stop that. The inconvenience of not having the original documents has rightly been referred to, but if copies can be made, surely the inconvenience is thereby minimised. I do not feel therefore that the opposition parties have so far made a case for the Bill’s requiring or allowing three months’ retention being a serious infringement of liberty.

6 pm

Lord Bach: I am grateful to the noble Lord, Lord Henley, for raising this issue. It needs to be discussed and I am happy to do so. His amendments would reduce the period for which the Electoral Commission may retain documents obtained under the court order powers—of which we have just been reminded by my noble friend Lord Borrie—given by paragraphs 4 and 4A of new Schedule 19B for the purposes of conducting investigations into suspected breaches or contraventions of the PPERA 2000.

The Bill would allow the commission to retain documents for up to three months, or longer in any of the circumstances set out in paragraph 5 of Schedule 1. So, for example, if during this period any relevant criminal proceedings are commenced or civil sanctions imposed, the commission will be able to retain the documents until they are no longer required in relation to the proceedings or civil sanctions. The amendments would reduce the period to 42 days.



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In another place, concern was expressed in Committee—the noble Lord, Lord Tyler, is right—that three months was an unnecessarily long period for documents to be retained by the commission. However, I emphasise that the Bill allows documents to be retained for up to three months; they may be held for a shorter period if an investigation is concluded or the documents are not considered relevant. However, it is important that we allow the commission an appropriate period of time to investigate possible offences or breaches, particularly as many cases that have reached that stage may be complex.

As my right honourable friend the Minister of State highlighted in another place, we think that three months is an appropriate period of time to ensure that the commission is in a position to give careful consideration to documents in relation to an investigation. It is important that the commission is not pressured into making hasty decisions due to too short a timescale, which could rebound against an individual. Indeed, the commission in its briefing note on the Bill, which noble Lords may have seen and was published yesterday, commented that the amendments propose a time limit which is,

The commission also usefully confirmed that longer retention of these documents will not inconvenience their owner, since that person will be able to take copies of them before providing them to the commission. That was a point made by my noble friend Lord Borrie. This might be a different argument if it was not possible these days to take copies of documents, but anyone will almost certainly take copies of documents before they pass them on to the commission.

Lord Tyler: What is sauce for the goose is sauce for the gander. The commission also is quite capable of taking copies. Returning the originals is surely a very simple matter. It may be much simpler for the commission to take what appropriate copies it needs rather than the original person concerned.

Lord Bach: The noble Lord knows that in an investigation it is very important that the investigator should have the original documents rather than copies of them. That, I think, is the position generally across the investigatory world. Originals are not the same as copies, but I should argue that copies are sufficient for the person being investigated in this case, until the originals are passed back to him. The copying point is crucial in terms of whether this is a reasonable provision. It is clearly what the commission wants.

I point out that the three-month period was not just picked out of the air. It is designed to mirror the equivalent limitation imposed on the Financial Services Authority by Section 176(8) of the Financial Services and Markets Act 2000 in circumstances where the FSA obtains documents by warrant. Our consistent position in relation to these powers is that, subject to suitable safeguards, the Electoral Commission is given the same powers and is subject to the same restrictions as comparable regulators. That is what our proposals achieve.



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While I note that Amendment 18 would allow the commission to apply to a magistrates’ court to extend the retention period, this would place an unnecessary additional burden not just on the commission but the court. The amendment would only allow such an extension for offences involving in excess of £10,000. I make the rather obvious point that it is wrong in principle to assume that the gravity of an offence is based solely on its financial value. Moreover, in practical terms, the size of the sums involved may not be known until a thorough investigation has been conducted. This would be a difficult requirement in certain circumstances.

I have made the point about copies. I also remind the Committee that there is no longer any risk of documents being seized, now that we have removed the warrant powers of entry from the Bill. It is, of course, a matter of opinion, but we believe that a restriction of 42 days is much too limited. It is an arbitrary figure and could have a significant impact on the commission’s ability to fulfil its statutory role.

Lord Henley: I am grateful to the Minister and to the noble Lord, Lord Borrie, for his intervention. Obviously, I accept that the documents could be copied, as long as the Electoral Commission allowed time for them to be copied before it came to seize them. We need some assurance—

Lord Bach: The point that I was trying to make, which I probably did not do clearly enough, was that the commission would not be able to seize the documents. That may well have been the case when the Bill was originally published, but the Government have made a justified concession, if that is the right expression, on that point. It is not a matter of seizure.

Lord Henley: In that case, the parties would have time to make copies. The point that I was going to make in response to the intervention of the noble Lord, Lord Borrie, was that I accept that the documents can be copied and I accept the Minister’s explanation that the Electoral Commission needs to have original copies. It is the others who would want to keep copies. The amendment was intended purely to probe the Government on an appropriate length of time.

The Government’s explanation was that they took this period of three months from Section 176(8) of the Financial Services Act. If that is the case, it might be more appropriate than our 42 days, which the commission might consider to be too short. However, at this stage I should like to consider our position and look very carefully at what the Minister has said and at what the noble Lord, Lord Tyler, has said from the Liberal Democrat Benches. There are very good reasons from time to time for copying a provision from one Act to another. If three months is the period stated in the Financial Services Act, it might be appropriate for this Bill, but it might also be considered to be too long. In withdrawing this amendment and not moving the others in this group, I should make it clear that it is likely that we will come back to this matter on Report, perhaps not with 42 days but with another period. I shall read with extreme care what the Minister said. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.



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Amendments 16 to 23 not moved.

Amendments 24 and 25

Moved by Lord Bach

24: Schedule 1, page 30, line 26, after “4” insert “or 4A”

25: Schedule 1, page 31, line 7, after “4” insert “or 4A”

Amendments 24 and 25 agreed.

Schedule 1, as amended, agreed.

Clause 3 : Civil sanctions

Amendment 26

Moved by Lord Bach

26: Clause 3, page 3, line 8, leave out “or (4)” and insert “, (4) or (5)”

Lord Bach: As the Committee will be aware, the Delegated Powers and Regulatory Reform Committee of this House recommended an amendment to the Bill. We are very grateful to the committee for its careful consideration. As ever, the recommendation was well considered and we believe that Amendment 26, which we tabled in response to it, is an improvement to the Bill.

The amendment will ensure that any order to prescribe the amount that may be imposed by way of a fixed monetary penalty should be subject to the approval of both Houses. It is the Government’s intention that the first supplemental order under Schedule 19C should be subject to the affirmative resolution. That order will, among other things, set the level of fixed monetary penalties. The amendment will ensure that any subsequent orders to amend the amount that may be prescribed should similarly be subject to affirmative resolution. We see merit in this argument, since theoretically it would be open to a Government to propose a significant change in the level of such penalties; and were this to be proposed, it would be right for Parliament to have the opportunity to consider the change. The amendment delivers that certainty, and we are grateful to the committee for recommending such a reasonable and sensible amendment. I beg to move.

Lord Henley: Having been, along with my noble friend Lord Bates, a member of the Government who set up the forebear of the Delegated Powers Committee, I am grateful that the Government are doing all they can to abide by the recommendations of that valued and valuable committee. We fully support Amendment 26 and hope to see it in the Bill as soon as possible.

Lord Brooke of Sutton Mandeville: I had noticed the recommendation by the Delegated Powers Committee. Although I served on it for four years, I am not as adept as I should be in recognising when the Government have accommodated one of its recommendations. I verified that there had been no government response published by the Delegated Powers Committee and am extremely grateful to the Minister for having delivered

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it, so that we do not have to return to it in any other way. I notice in passing that the Joint Committee on Human Rights, which produced a report in February, was much more explicit in its advice to both Houses, and delivered a long amendment to be put in the Bill. The Delegated Powers Committee obviously operates at a higher intellectual level because it does not actually instruct both Houses, merely draws matters to their attention.

Lord Bach: I am grateful to the noble Lord—it is very good to see him taking part in the proceedings. I will take his word for it that the committee does not instruct, but sometimes it seems very close to that.

Amendment 26 agreed.

Clause 3, as amended, agreed.

6.15 pm

Amendment 27

Moved by Lord Norton of Louth

27: After Clause 3, insert the following new Clause—

“Education about electoral systems

(1) In section 13(1) of the 2000 Act (education about electoral and democratic systems), paragraphs (b) and (c) are omitted.

(2) For section 13(3) there is substituted—

“(3) Subsection (1) does not apply in relation to local government elections in Scotland.”.”

Lord Norton of Louth: The amendment deals with the functions of the Electoral Commission but from a very different perspective than that which occupied the Committee earlier this afternoon.

The Electoral Commission was established under the 2000 Act to review and report on elections and referendums as well as to have a regulatory role in relation to political parties, primarily donations to the parties. The name of the Act is instructive—the Political Parties, Elections and Referendums Act—as is the name of the commission. The expertise of the commission lies in respect of the process of voting, be it in referendums or the election of office holders, and in party registration and financing.

The principal functions of the commission, as the noble Lord, Lord Bach, indicated earlier, are regulatory and advisory. However, Section 13 of the 2000 Act confers an educational role. Under the terms of the section, the commission is required to promote public awareness of,

If the commission is to have an educational role, then it is appropriate that it raises awareness of electoral systems. That is its area of expertise. It is well placed to disseminate material about electoral systems and, indeed, it produces some very good material on elections and the electoral processes. I am a great consumer of its work and its output has been extremely good.



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However, Section 13(1) is not confined to electoral systems. Paragraph (b) confers the requirement to promote public awareness of,

and paragraph (c) requires the commission to promote awareness of,

It is not clear why the Electoral Commission should be required to promote awareness of systems of government and the institutions of the European Union. It may be that, in raising awareness of electoral systems, it needs to put them in the context of the particular political systems within which they operate, but that is covered by paragraph (a) in referring to “matters connected” to electoral systems. As it stands, the requirement to promote public awareness of current systems of government in the UK, and the institutions of the EU, is independent of the function of raising awareness of electoral systems.

There are two objections to retaining subsections (1)(b) and (1)(c). The first is that they do not fall within the expertise of the commission. The commission has no particular role or expertise in relation, say, to the European Commission or the Council of Ministers. Why should the Electoral Commission receive public funding to raise awareness of those bodies when the institutions of the EU have their own budgets? The European Parliament is active in seeking to raise public awareness of its role. It is not clear why the Electoral Commission should take on such a role. There are other bodies engaged in that task which have the resources, including the expertise, so to do.

The second reason is that it detracts from the commission fulfilling its core functions. As we know, it has been subject to some criticism for extending its activities, especially its advisory role, in such a way as to detract from its regulatory role. The purpose of the Bill is, in part, to inject some greater expertise in relation to political activity. The intention is that some commissioners will be drawn from political parties. There is no intention that commissioners will be appointed who have experience in the European Parliament or the European Commission. It is always possible that a commissioner may be drawn from such a background, but it is not required by the terms of the Bill and the likelihood is that their experience will be in national politics.

I therefore see no reason for retaining subsections (1)(b) and (1)(c) in Section 13 of the Act. It may be that the Electoral Commission has not devoted much time or resources to raising awareness of systems of government in the UK or the institutions of the EU, in which case it is not fulfilling its statutory obligations. We should therefore bring the statutory provision into line with the reality. If it has sought to raise that awareness, then we can help free some of its resources to focus on its core functions, those which it is eminently qualified to fulfil. I beg to move.

Lord Tyler: I would like to comment briefly on the new clause proposed by the noble Lord, Lord Norton of Louth. We have anxieties which mirror his about ensuring that the commission has a clarity of purpose

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which it has lacked in recent years. I do not blame the commission for that. Quite frankly, it is a creature of the political system and political parties and Governments have raised expectations about the breadth of work it can undertake. However, I think that this is a good moment to ensure that there is some reorientation to provide more emphasis on the regulatory monitoring and reporting of the democratic process and to try to avoid spreading the net widely in the way that the noble Lord mentioned.

I do not think that I missed anything but I am slightly intrigued that the noble Lord did not refer to the proposed new subsection (3) in the amendment, which, as I understand it, suggests that the commission should not involve itself in local government elections in Scotland. There is a logic to that because the single transferable vote is the simplest system of elections that we could possibly ever devise, and the Westminster Government deserve some credit for taking a Liberal Democrat proposal and introducing it in Scotland. No doubt in due course, as it has proved to be so successful, Ministers will wish to extend it to the rest of the United Kingdom. However, I am not sure of the logic of making a specific reference to it.

Lord Norton of Louth: Perhaps I may explain. My proposed subsection (3) merely repeats what is in the 2000 Act. The amendment is intended to remove the bit thereafter, which links to the provisions relating to the institutions of the EU and systems of government. Therefore, the amendment would take out the consequential element and leave in what is in the Act.

Lord Tyler: I am now better educated, although disappointed. The noble Lord made a very valid point about the STV system being the clearest and most effective way for the elector to make his or her choice. However, I think that the noble Lord’s general point is absolutely right. In the light of experience since the introduction of the PPERA, it is now a good moment to ensure that the commission concentrates on its core responsibilities. I look forward with interest to hearing what the Minister says but I hope that he feels that the purpose of the amendment is worthy and that it should be supported.

Lord Campbell-Savours: I have a brief question for the noble Lord, Lord Norton of Louth. I followed his argument quite closely: he seeks to establish a role for the commission which concentrates on its core functions. Is his amendment born out of a conversation with the commission? Has the commission made representations to him and asked for this amendment to be brought forward? I wonder what has happened that he should suddenly decide to table the amendment. It must stem from some conversations or some concerns being expressed somewhere.

Lord Henley: I shall give my noble friend a little time to think of his reply to the noble Lord, Lord Campbell-Savours. I was somewhat surprised to hear the noble Lord, Lord Tyler, describe STV as the simplest system ever devised. Certainly that is not my view and I do not think that it is the view of many of

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us around here. Having said that, I was pleased to hear him express some support for my noble friend’s amendment. It strikes me as being a truly wonderful Conservative amendment in that it says that we must get the Electoral Commission back to its core regulatory and supervisory functions and strip away the extra bits which are not necessary, which it is not necessarily very good at and which are possibly a waste of money, or, if they are not a waste of money, that money can be put to better use.

It is nine years since I was involved in the passage of the 2000 Act through this House and I cannot remember what line our party took at the time on what the various functions of the Electoral Commission should be. This may have been one of the small matters added on as a result of amendments put forward by one or other side or by Back-Benchers. Whatever it was, my noble friend certainly has a point here, and nine years later I think we can say that this could be stripped from the commission with good effect and that we could allow it to stick to its core functions. For that reason, I imagine that my noble friend will be grateful not only for my support but for the qualified support from the Liberal Democrat Front Bench.

Lord Brooke of Sutton Mandeville: My reaction to the amendment moved by my noble friend was exactly 180 degrees opposite the reaction of the noble Lord, Lord Campbell-Savours. My reaction was that it was a credit to the University of Hull and the quality of its academic staff that this immense vigilance and attention to detail had been expressed. I was the more reinforced by that from a recollection of the Festschrift delivered to Philip Larkin, when he was the librarian of that library, at the age of 60. The chapter contributed by his publisher recorded the frequent correspondence that he had by postcard with Philip Larkin, including an occasion when Philip Larkin was on holiday in Windermere and reported to his publisher that it was pouring with rain outside. The only literature that the hotel contained was the Times crossword and the poems of WH Auden. It was, he said, a rare case of F6 across—that being one of Auden's greatest poems. With that quality of intellectual acuity, I was not the least surprised that my noble friend sat up all night going through the 2000 Act.

Lord Henley: To spare the blushes of my noble friend Lord Norton, I remind my noble friend of the eminence of the politics department of the University of Hull. It is possibly the best-represented individual department of any university in this country in this House, with some two or three Members who serve in it. My noble friend Lord Norton will no doubt assist us in that matter in due course.


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