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Lord Marland: I confess and declare that I did not go to the University of Hull—in fact I did not go to any university at all, which probably makes me totally inadequate in making any statement here. However, I did go to the university of being Treasurer of the Conservative Party in probably the darkest and most difficult time for political funding. One of the lessons I learnt in dealing with the Electoral Commission—and

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it was put so beautifully by the noble Lord—was that it did not have any clarity of purpose. It was confused and unable to understand what disciplines it should mete out and how to control the funding. The key words here are “clarity” and “purpose”. We must ensure that we have people who understand the process operating the commission.

Lord Campbell-Savours: Does the noble Lord not accept that the commission should at least have its views stated during the course of this debate? Maybe it objects to the views of the noble Lord, Lord Norton of Louth. I do not know but I think the Committee should know. Maybe it supports them passionately.

Lord Hodgson of Astley Abbotts: This important amendment about bringing focus is replicated elsewhere because the Government are keen on tacking on these educational requirements. The Minister referred earlier to the Financial Services and Markets Act and, although that set up a regulatory authority, one of its four statutory objectives is to promote public education and awareness. My noble friend has made an important point in ensuring that what will be an important body carrying out an important role should be really focused. Some of us who are regulated by the Financial Services Authority believe that it could be a little more focused, but perhaps not on public education.

Lord Tunnicliffe: I thank noble Lords who participated in the debate. The points they made reached an esoteric level that I will not seek to meet. The amendment would vary Section 13 of the PPERA, which makes provision about the commission's role in providing education about electoral and democratic systems. Section 13 enables the commission to promote public awareness of current electoral systems in the United Kingdom and connected matters and also current systems of local government, national Government in the United Kingdom and the institutions of the European Union.

6.30 pm

The effect of the amendment, which seeks to delete paragraphs (b) and (c) from Section 13(1), would be to restrict the commission’s role to promoting public awareness of current electoral systems in the United Kingdom. This would involve provision of public information on the mechanics of the electoral process, including electoral registration procedures, how to vote and explaining any changes to the electoral system. However, the commission would no longer have a role in providing education about current systems of local and national government in the United Kingdom or institutions of the European Union.

We would resist this as we believe that these roles go hand in hand. In advising people about how to vote and on registration procedures, the commission should also be able to educate people about how the various systems of local and national government in the United Kingdom, and institutions of the European Union that they might be voting for, operate. This will ensure that people fully understand the various systems in

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place so that they can make informed choices about how to vote. The Electoral Commission is well placed to provide this role given its independence and breadth of experience in the field.

Noble Lords may be aware that there is a general consensus, with which the commission concurs, that the commission should withdraw from a wider role of encouraging democratic engagement. The Government therefore accepted the recommendation of the Committee on Standards in Public Life that the commission should no longer have this role.

However, as the CSPL recommended, we believe that the commission should retain a clearly defined statutory duty for the provision of public information on the mechanics of the electoral process, including electoral registration procedures, how to vote and explaining any changes to the electoral system. Informing the public on the mechanics of the electoral system, including the registration process, is key to maintaining a strong democracy.

We believe that the commission’s duty to provide information about the current systems of local government or the institutions of the European Union is an intrinsic part of that role. Removing it, as the amendment seeks, would therefore be unhelpful and serve no useful purpose. The Electoral Commission makes it clear on page four of its briefing for today’s Committee that it shares this view and reiterates its concerns. As the commission highlights, while the vast majority of its public awareness activity focuses on electoral systems, it also provides some information on systems of government and democratic institutions, which is important in explaining the relevance of the democratic process.

The points made by noble Lords are a matter of balance. That the commission should have clarity of purpose was a particularly important point. The Bill gives that to the commission.

Officials behind me despair of sending me long notes, so they have sent me a short one. The Electoral Commission’s role is to explain not just how to vote but also what people are voting for. This means that paragraphs (b) and (c) are necessary. I ask the noble Lord to withdraw his amendment.

Lord Norton of Louth: I am very grateful to all those who have spoken. In the light of what has been said, I should begin by explaining what I am not going to cover in my response. I shall not rise to the challenge of talking about STV and its great many defects, nor shall I rise to the challenge of my noble friend Lord Brooke to offer the Committee my anecdotes on Philip Larkin during the time when he was librarian. In response to the noble Lord, Lord Henley, I say that there are four Members of the House of Lords who have links with the politics department at the University of Hull. However, I am grateful for his comments and those of my noble friend Lord Brooke.

The noble Lord, Lord Campbell-Savours, asked what my motivation was. It is that I took part in the debates on the Bill in 2000 and raised the issue then, because I was not persuaded that this was a core function of the commission. I think the view at the time was, “Let’s test it and see if the commission

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encompasses it”. I am therefore pursuing the line and am not persuaded that there is a case for retaining it—if anything, I think that my argument is now stronger in the light of experience. I am grateful to my own party for the support that it gave me back in 2000 on this issue.

I am simply not persuaded by what the Minister said. He has not addressed the point I was making that the requirement in the Bill to raise awareness of the systems of government and the institutions of the EU is freestanding. The way the Bill is drafted, these do not go hand in hand; the commission has to promote awareness independent of electoral systems. However, if it is tied to electoral systems, that is different. The noble Lord is right in explaining why you should vote and that you must relate that to the system to which it relates. You can quite easily produce that as part of the awareness about the electoral process and the reasons why one should vote—the two are clearly linked—but I see no reason why we cannot rework paragraph (a), which I would argue is sufficient for our purposes, to enable us to do that.

Leaving the provision as it stands—this relates to the pertinent point that the noble Lord, Lord Tyler, expressed so well—muddies the water as to the purpose of the commission. There needs to be greater clarity but the present wording of the Act does not provide for that. If one takes the Minister’s point, it would mean some reworking of paragraph (a) but certainly not retaining paragraphs (b) and (c) as they stand. These paragraphs militate against providing clarity of purpose, muddy the waters and give the commission roles which, although I accept that it is independent, it does not have the breadth to cover. For example, what is its in-depth knowledge of the institutions of the European Union?

There is a case for pursuing this issue. I am not persuaded by what the Minister said and I shall come back to it on Report, perhaps with some reworking to make clear that talking about the institutions is very much related to the electoral process. For the moment, I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

Schedule 2 : Investigatory powers of Commission

Amendment 28

Moved by Lord Bates

28: Schedule 2, page 31, line 23, after “Commission” insert “in any case”

Lord Bates: This group of amendments relates to the civil sanctions that are now available to the Electoral Commission, which are widely supported. It is a positive move forward and reflects the recommendation of the Committee on Standards in Public Life which, in its report of January 2007, stated on page 35 that currently,

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In its fifth report the committee made clear that the Electoral Commission should not have any substantial judicial power. The Government accepted this recommendation and the committee continues to believe that this is the right approach.

However, we received evidence suggesting that the commission should be given additional powers to levy administrative financial penalties for non-compliance with regulatory requirements that might not justify the current sanctions. The report then goes on to quote the then chief executive of the Electoral Commission, Peter Wardle, who said that this particular facility would be welcome. In Schedule 2, clear mention is made of what the civil sanctions could be. Part 1 refers to the fixed monetary penalties; Part 2 to the discretionary requirements; Part 3 to stop notices; and Part 4 to enforcement undertaken. These are all very welcome.

Basically, these are probing amendments which seek more information from the Minister. In the notes which accompany the Bill produced by the House authorities it states that in this case “prescribed” means “prescribed in an order by the Secretary of State”. We would be grateful for some advice from the Minister as to the types of offences that may be the subject of those orders. We would like to explore that further. The mechanism for doing that is to remove “prescribed” and allow it to apply to any offence whatever. That fits in with a point that in many ways were being made against amendments that we proposed earlier—that the commission should be allowed to apply its judgment in particular circumstances. Given that it applies its judgment, why should it not decide when a civil sanction should be used and in what circumstances and under what offences it should be moved up to a criminal offence or referred to the Crown Prosecution Service to undertake that action?

I shall wait for the Minister’s response and any other contributions that may throw some light on things. I beg to move.

Lord Rennard: One overarching principle of this Bill, which we all very much welcome, is the increased flexibility in terms of any penalties or sanctions that can be imposed by the commission. One of the major flaws left in the 2000 Act was that the commission realised that it could impose either the most draconian and appropriate sanction or no sanction at all. Therefore the flexibility of different penalties is clearly appropriate. However, it would take some considerable persuasion to make me believe that we should leave it entirely to the commission’s discretion as to which of those sanctions, fines or penalties may be appropriate without Parliament looking in detail at what is the appropriate penalty for the appropriate offence. The commission may welcome total discretion for itself, but it would be right for Parliament to consider it. We therefore, by and large, oppose these amendments on the basis that we in Parliament should consider what is appropriate and what penalties should be applied in response to specific offences.

I am slightly puzzled by these amendments. Amendments 47, 49, 53 and 57 seem to be based on the premise that a penalty requirement could be applied

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even if there has been no offence or any contravention. Guidelines from the commission may deal with that, rather than introducing requirements or penalties where there has been no offence or no contravention. Similar arguments apply to Amendments 39 and 48 and I am not sure why they have been degrouped. I should be grateful for further information on this.

Lord Campbell-Savours: When my noble friend replies to the debate, perhaps he will answer this question. What happens if the person who has made the mistake that is subject to a penalty is a poor, impoverished person who is unemployed in some part of the United Kingdom, has no resources and whose defence is simply to say that he does not have any money and cannot pay? What is the position? How will the provision affect those who have very little?

6.45 pm

Lord Bach: The noble Lord, Lord Bates, in moving these important amendments, has rightly elided the amendments in this group and others in the next group, and the noble Lord, Lord Rennard, made the same point. The amendments were originally in the same group but were divided up. I hope that the noble Lord will forgive me if I deal with both these issues in what I say now, which may shorten the debate on the next group.

This is an important and large group of amendments, which all seek the same drafting change through the different parts of new Schedule 19C to the 2000 Act, as inserted by Schedule 2 to the Bill. I shall speak on them all together, if I may. For each of the different available sanctions, the various amendments seek to add the additional phrase “in any case” to the relevant provisions that allow the commission to impose the sanction. I am grateful for the support shown for the increased flexibility that the Bill proposes and for the civil sanctions regime that will become law if the Bill passes. They will no doubt become widely used for breaches in this area.

By way of example, Amendment 28 amends the provision for imposing a fixed monetary penalty on a person. New Schedule 19C, paragraph 1(1), states that:

“The Commission may by notice impose a fixed monetary penalty on a person”.

Under this amendment, the phrase would change to:

“The Commission may in any case by notice impose a fixed monetary penalty on a person”.

We do not believe that the amendment is necessary, although I take the point that it is a probing amendment. The fact that the commission may impose a sanction “in any case” in which the sanction powers are available to it is implicit in the wording of the schedule. For example, paragraph 1(1) states:

“The Commission may by notice impose a fixed monetary penalty on a person”.

The fact that the commission “may” impose the sanction also means that it may do so in any case. If this was not the intention, the Bill would have needed to set out the cases in which sanctions could not be imposed.

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The only significant limitation on imposing a sanction that we apply to the commission is that it must satisfy the relevant evidential proof which, in the instance of fixed monetary penalties and discretionary requirements, is set at the criminal standard of beyond reasonable doubt. There are also important limitations that ensure that the amount of fixed monetary penalties for summary offences or offences that are triable either way may not exceed an amount that could be imposed in criminal proceedings.

The effect of these amendments, if carried, might be to provide that civil sanctions are available for all breaches of the 2000 Act rather than for those breaches prescribed in secondary legislation. The noble Lord, Lord Rennard, suggested that it should be for Parliament to decide the status of each of these offences. That is what we intend to do in due course through secondary legislation. That would be consistent with the intention underlying related amendments dealing with the word “prescribed”, which I will come to in a moment. If that is the intention of these amendments, we would resist them because we agree with the noble Lord, Lord Rennard, that it would pre-empt Parliament considering the appropriate breaches that should attract civil sanctions. We should not at this point limit the flexibility to determine which offences should be subject to the new civil sanctions.

It is worth noting that the recommendation of the Committee on Standards in Public Life’s review of the Electoral Commission, published in January 2007, which was quoted by the noble Lord, Lord Bates, when he moved his amendment, was that the most serious breaches of the law should remain in the criminal sphere. Accepting these amendments would prevent our having a proper debate on the merits of this and other proposals as it would automatically ensure that all offences under the 2000 Act would be subject to civil sanctions. We believe that secondary legislation is more appropriate. It is our intention that the order prescribing the offences will contain other important procedural matters and will, in its entirety, be subject to the approval of this House and another place.

The noble Lord referred to the use of the word “prescribed”. We believe that by removing the word “prescribed” from new Schedule 19C, we would be ensuring that the Electoral Commission would be able to apply a civil sanction to any of the offences or contraventions of restrictions or requirements in PPERA. This is because the offences would be punishable by a civil sanction and would not need to be prescribed in secondary legislation. The amendments that the noble Lord may move in due course may seek the same end as the group that we are discussing now; namely, the removal of the need for a statutory instrument to prescribe the offences for breaches of which civil sanctions will be applicable. As I said, it is our intention to set out in a statutory instrument, subject to affirmative resolution by both Houses of Parliament, which offences will be punishable by the new civil sanctions. We think that that is the proper means of achieving our objective.

Indeed, in its latest briefing on the Bill, the commission notes that it expects that Parliament,

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We believe that it may be useful to retain the option to reserve some of the most severe offences purely in the criminal sphere; that is, not by civil sanctions but by criminal law, as recommended by the Committee on Standards in Public Life. We certainly believe that the majority of offences or requirements should be subject to civil sanctions, and also that we should retain the option to reserve the most serious breaches for the criminal sphere only. If the amendments were to be carried, they would prevent us doing that.

My noble friend Lord Campbell-Savours asked a very pertinent question about an impoverished offender, if I may use that phrase.

Lord Campbell-Savours: A party worker.

Lord Bach: A party worker; a volunteer worker of the kind that the noble Lord, Lord Bates, talked about earlier. Schedule 19C allows civil penalties to be pursued as civil debts. Therefore, in theory, remedies such as contempt of court may be possible as an alternative to purely monetary penalties if someone is unable to pay. However, we need to bear in mind the kind of people who are likely to be sanctioned. The parties or donors are unlikely to be those in the impoverished category that the noble Lord identified.

I realise that my response does not entirely answer my noble friend’s point. I should be grateful if he would give me some time to consider the proposition that he raised and perhaps allow me to write to him and to other Members of the Committee with a fuller answer.

Lord Brooke of Sutton Mandeville: This is a very innocent and ignorant question. I could not help noting stylistically that in Section 147 of the 2000 Act, which of course is removed by Clause 3 of the Bill, there is a significant number of identified penalties but there is not the same transparency and clarity in terms of financial penalties in the context of Schedule 20. I am interested to know whether there is any way in which, for the untutored, the process can be made simpler.

Lord Bach: The noble Lord makes a fair point. When the statutory instruments are published, we hope that they will retain the same clarity as is found in PPERA, which has not always been noted for its clarity in a number of fields. But, in this instance, I am persuaded by the noble Lord. We hope that they will set out the various options clearly, depending on the offence that may or may not have been committed.

Lord Bates: I am grateful for the Minister’s response to these amendments, which, as I said, are probing in nature. I appreciate the point about the groupings made by the noble Lord, Lord Rennard, who referred to Amendments 47 and 49. I shall come on to some of the points relating to those amendments when that group is reached. However, the intention behind these amendments is to get further information from the Minister placed on the record regarding the types of offences that will be brought forward in the statutory instruments.

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This matter was the subject of a helpful report from the Delegated Powers and Regulatory Reform Committee, which considered paragraph 16 of new Schedule 19C and addressed the issue of the powers being conferred on the Secretary of State. They are considerable powers. If I have heard him correctly, the Minister appears to be saying that the power for prescribed offences will be only for the most serious crimes. Perhaps I am wishing for a little too much, but I will continue my fishing exercise to see whether the Minister is prepared to come forward with some definitions of the type of offences that he considers the most serious. He may want to refer to them when we consider the next group of amendments.

Lord Bach: I am writing a letter because of what my noble friend said in relation to those who are impoverished and facing the civil sanction of a fixed monetary penalty. In the same letter, I will give some examples to the noble Lord and the Committee of the sort of offences that really ought to be dealt with by the criminal courts as opposed to being subject to civil sanctions. Would that help? It will give us an opportunity to come up with a number of examples across the field.

Lord Bates: That was exactly the type of thing that the amendment was trying to draw out. I should be extremely grateful if the Minister would do that and I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

Amendment 29

Moved by Lord Bates

29: Schedule 2, page 31, line 25, leave out “a prescribed” and insert “an”

Lord Bates: We now come to a series of considerations on these amendments. This particular proposal is largely consequential on the previous group and teases out the powers conferred on the Secretary of State to bring forward orders. As the Bill stands, it provides for offences, restrictions or requirements to be prescribed for making decisions on which can be the subject of civil sanctions. That is done by means of an order which will be formulated by the Secretary of State and then the draft order will be laid before Parliament and subject to approval by affirmative resolution.

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