[1st Allocated day]
Consideration of Bill, as amended in the Public Bill Committee
New Clause 3
Removal of criminal sanctions from specified offences
‘(1) The 2000 Act is amended as follows.
(2) In section 47(1), for “is guilty of an offence” there is substituted “shall be liable to a fixed monetary penalty under Schedule 19B”.
(3) In section 65(3), for “commits an offence” there is substituted “shall be liable to a fixed monetary penalty under Schedule 19B”.
(4) In paragraph 12(1) of Schedule 7, for “is guilty of an offence” there is substituted “shall be liable to a fixed monetary penalty under Schedule 19B”.
(5) A fixed monetary penalty imposed in accordance with subsections (2), (3) and (4) may not exceed £1,000.
(6) In Schedule 20 (penalties) the following entries in the table, and the corresponding entries in column 2 are omitted—
(a) section 47(1)(b) (failure to deliver proper statement of accounts),
(b) section 65(3) (failure to deliver donation reports to Commission within time limits), and
(c) paragraph 12(1) of Schedule 7 (failure to deliver donation report to Commission within time limit).’.—(Mr. Fabian Hamilton.)
Brought up, and read the First time.
: With this it will be convenient to discuss the following: new clause 4—Independent panel to advise Electoral Commission—
‘(1) The Secretary of State shall appoint an independent panel to offer guidance and a code of practice to the Electoral Commission.
(2) The panel shall advise on the proportionate use of civil penalties, financial penalty levels for offences, referral for investigation in cases of possible breaches of the criminal law and generally on the mode of operation of the Electoral Commission on penalties.
(3) The panel shall consist of the Speaker, a judicial person and an independent person.
(4) The panel shall advise the Electoral Commission on an on going basis.’.
Amendment 59, in schedule 2, page 24, line 1, leave out paragraph (b).
Amendment 60, page 24, line 8, leave out paragraph (b).
Amendment 61, page 24, line 15, leave out paragraph (b).
Amendment 62, page 24, line 22, leave out paragraph (b).
Amendment 74, page 25, line 22, leave out ‘a county court’ and insert ‘the High Court’.
Amendment 78, page 25, line 44, leave out sub-sub-paragraph (d).
Amendment 63, page 27, line 3, leave out sub-sub-paragraph (a).
Amendment 64, page 27, leave out lines 19 and 20.
Amendment 65, page 27, line 23, leave out sub-paragraph (8).
Amendment 75, page 28, line 6, after ‘shall’, insert ‘promptly’.
Amendment 77, page 28, line 9, leave out from ‘requirement’ to end of line 18 and insert
‘at any point within 28 days of receipt of the notice under paragraph 6(5)’.
Amendment 66, page 28, line 34, leave out sub-sub-paragraph (b).
Amendment 67, page 29, line 8, leave out sub-sub-paragraph (b).
Amendment 82, page 29, line 28, leave out ‘a county court’ and insert ‘the High Court’.
Government amendment 23.
Amendment 7, page 36, line 39, leave out ‘from time to time’ and insert ‘annually’.
Government amendments 24 to 27.
Government amendment 28, page 37, leave out lines 3 to 6 and insert—
‘( ) This paragraph does not require the Commission to include in a report any information that, in their opinion, it would be inappropriate to include on the ground that to do so—
(a) would or might be unlawful, or
(b) might adversely affect any current investigation or proceedings.’.
Amendment (a) to Government amendment 28, after ‘their’, insert ‘reasonable’.
Amendment (b) to Government amendment 28, in sub-paragraph (b), leave out ‘might’ and insert ‘would’.
Amendment 83, page 37, line 6, at end insert—
‘(3) In a report the Commission will not specify the names of those persons who have been the subject of the cases specified in sub-paragraph 1(a), (b) and (c) save where the amount of any penalty exceeds £5,000.’.
New clauses 3 and 4 give me an opportunity to examine some of the broader issues with which the Bill has tried to deal. I am grateful to the Government for having—as has been pointed out by the hon. Member for Huntingdon (Mr. Djanogly) and others—amended it considerably since its initial draft in an effort to establish far greater cross-party consensus. Given, however, that in its present form it extends the power of the Electoral Commission, I think it timely to consider whether the commission has used its powers wisely in the past.
Unfortunately, its record is not all that impressive. On the one hand, it appears to have failed to ensure adequate compliance by regulated donees since 2001 when it was set up. Hundreds of late notifications—most of them honest mistakes—have been identified. Indeed, I understand that in the last six months of 2008 a total of some £750,000 was identified, accounting for more than 150 late donations. On the other hand, it appears to have been very heavy-handed and, I would argue, incompetent in dealing with certain cases, most notably that of my right hon. Friend the Member for Neath (Mr. Hain).
The Standards and Privileges Committee admitted in its conclusion that my right hon. Friend had made an “honest mistake”. It seems incredible, does it not, that the Electoral Commission did not even send warning letters to him, or to other Members of Parliament and other regulated donees who notified it late of donations received. Up until the beginning of last year, no warning letters had been sent. I think the commission should have a duty to give clear guidelines and positive advice to Members who are genuinely trying to comply, but it has been quite evasive about providing full information on its performance in response to parliamentary questions, many of which I tabled myself. It appears from its answer to one of my questions that it inexplicably and, I would say, recklessly destroyed numerous original donation forms that were in its care.
There have been a great many cases of non-compliance on the part of many Members, some of whom were high-profile figures on the Opposition Benches, but on a number of occasions the commission has simply issued a press statement to the effect that no further action will be taken, or that the law has not been broken. In the early part of 2008, however, it clearly wanted to make an example of someone as part of its campaign for new and more draconian legal powers.
That is where the case of my right hon. Friend the Member for Neath comes in. He himself informed the commission as soon as he discovered that his campaign had failed to meet the commission’s notification requirement, but he was asked no questions whatsoever by commission officials about the reasons for the lateness. Incredibly, when he visited the commission’s offices to discuss the late notifications, officials actually lobbied him for some of the new powers that are in the Bill.
I believe that, up to now, the commission has been wholly unaccountable to Parliament and, indeed, to the general public. The present rules, fiercely defended by the commission, ensure that most staff, and indeed commissioners themselves, have no knowledge whatever of the world of politics, which seems rather bizarre when we consider the whole purpose of establishing the commission in the first place.
As we know, when the commission referred my right hon. Friend the Member for Neath to the police it destroyed his position in the Government, but it also destroyed its own credibility here in Parliament when, months later, the Crown Prosecution Service decided that there was absolutely no case to answer. It exposed the fact that the initial commission referral to the police was incompetent and, indeed, reckless, and that it was not even fully conversant with electoral law.
Under the initial Bill, the commission could be judge, jury and executioner, breaking into MPs’ offices and compelling Members, their staff and anyone else to attend to them and answer questions. That was very worrying, because it exposed the fact that no one was regulating the regulator. That is why I tabled new clause 4.
In common with, I think, all Members, I believe that the transparency of Parliament is generally a good thing, but why hitherto has there not been transparency in the Electoral Commission’s operations? When asked in Parliament when it decides to refer a case to the police, a rather obscure answer was given, which was, “When the commission decided the facts of the case merited it.” I do not think we would tolerate such an answer from a Minister, so my question is this: is the Electoral Commission above Parliament? Of course it is not.
I am glad that the Electoral Commission now has a new chair. I hope, however, that she is good at building bridges, because she will need to build many.
She certainly is.
Members are generally happy to comply with reasonable requirements to register donations, even if the rules are not quite as clear as we might hope, and we had a very good debate on that earlier. The simpler the rules are, the better it is for all Members to ensure that they comply, and it is not unreasonable to expect positive support and guidance from the commission itself. If some Members refuse to comply with reasonable requests, commit serious crimes or seek to evade their responsibilities, no reasonable person would think that the commission should not have the power to act, with the appropriate checks and balances, of course.
Concern has been expressed that the Electoral Commission has in the past been biased against the party of Government. I hope that is not true, and I hope it never will be, but it will be for the new commission chair to demonstrate a number of principles that I believe will correct the imbalance and bring the commission more into public view. The principles are: the commission should devise new ways of being open and transparent to Parliament, and I hope that the new chair will ensure that is so. I also hope that it will swiftly unify procedures with the Register of Members’ Interests; we need to know precisely when that will happen, and I hope the Minister will be able to tell us in his reply. Non-compliance should be decriminalised as much as possible where it is clear that mistakes have been made and there was no intent to undermine the legislation or to take in funds fraudulently and try to disguise them, and that is where new clause 3 comes in. The use of penalties and sanctions—which the Electoral Commission has, and will be given more of—will need to be monitored externally; new clause 4 addresses that. Finally, there must be more dialogue with Members of Parliament to ensure that the commission has more genuine political support from all parts of the House; only then can it do its job, both politically and in the public’s view, to a standard we would expect and the public can trust.
All the amendments in the first group except the first two new clauses address clause 3 and schedule 2, which introduce a range of civil sanctions for the Electoral Commission. The sanctions relate to the commission of offences and the contravention of restrictions or requirements under the Political Parties, Elections and Referendums Act 2000, or PPERA. Together, clause 3 and schedule 2 empower the commission to impose these civil sanctions on a “person”, “registered party”, “recognised third party” or “permitted participant”, as defined in the 2000 Act.
The Conservatives agree that the making available of enhanced civil powers and sanctions will, in certain situations, be more appropriate than the sledgehammer of criminal sanctions under the 2000 Act. The commission will have a wider range of sanctions to enable it to be a more effective and robust regulator, and that was identified by the Committee on Standards in Public Life report in January 2007, which picked up on the problems facing the commission. However, we are keen to ensure that any use of sanctions is valid—the use of powers must be proportionate, risk based and fair, and a number of aspects require further review by us today.
New clause 3 would replace a number of criminal offences in the 2000 Act with a fixed penalty of £1,000. The suggestion is interesting, but we are concerned that it could reduce the effectiveness of the Electoral Commission and weaken the strength of sanctions—there could be a lack of a proper deterrent in many cases if the commission is limited to the use of a fixed monetary penalty for the offences implicated by the new clause. We are prepared to review this conceptually in later stages, and the points made by the hon. Member for Leeds, North-East (Mr. Hamilton), particularly on the lack of guidance, were well put.
New clause 4 would create an independent panel responsible for producing a code of practice relating to the Electoral Commission’s use of civil sanctions. The panel would also offer guidance to it. Although the new clause offers an interesting protection against the abuse by the commission of its powers, the 2000 Act contains an equivalent measure. Under that Act, the Parliamentary Parties Panel can make submissions to the commission on the use of sanctions, so this extra provision should be unnecessary. Again, I take the hon. Gentleman’s well made point about careful monitoring, and I hope that the panel is put to its full use in that regard.
Our amendments 59 to 62 relate, respectively, to paragraphs 1(b), 2(b), 3(b) and 4(b) to schedule 2. They would remove the commission’s ability to impose a fixed monetary penalty on a person, registered party, recognised third party or permitted participant for a non-offence contravention of the Act. It is important to note that the commission would still have the power to issue a fixed penalty for the commission of a prescribed offence.
The power to issue fines is one of the key new flexible powers that the commission is given by the Bill. We hope that they will enable it to deal with enforcement more flexibly and proportionately than it has been able to do in the past. Fixed penalty notices require the person, registered party, recognised third party or permitted participant to pay an amount specified in the notice to the commission. We tabled the amendments because we feel the need to err on the side of caution when dealing with non-offence infringements of the Act. Will the Minister explain the scope of what we could be dealing with here? Our concern is that, depending on the operation of future electoral commissions, things may be interpreted oppressively, resulting in large fines for relatively minor infringements. We must be sure that we clearly set out the parameters of these powers and the circumstances in which they may be used—not necessarily for the current commission, which has been privy to much of this debate, but for the commissions of the future, which may not be so rational in the use of these powers.
At the grass-roots level of political engagement in particular, this is an extremely complex and difficult area of law, and the possibility for wide interpretation and the potential for abuse are correspondingly high. This lack of clarity has potential to have a negative impact at the implementation level. We do not want individuals and smaller groups and associations to live in fear of reprisal for minor infringements. When a potentially hefty penalty is the punishment, the criteria of contravention of the prescribed restriction or requirement could be too opaque and broad.
Amendments 74 and 82 would, respectively, amend paragraphs 2(6) and 9(3) to schedule 2. The paragraphs state which court is to be used for the appeal process in relation to a fixed monetary penalty and a non-compliance penalty for failure to satisfy discretionary requirements under part 2. The amendments would change the relevant court from a county court to the High Court. We remain concerned that the expertise of the county court could be insufficient to deal with a potentially complex case under the legislation.
The length of discussion on these technical points in Committee, and the debate so far today, show how complicated the various relevant provisions can be. For that reason, we suggest that the high level of judicial scrutiny that the High Court offers is to be favoured. Furthermore, the reputation of the High Court and the scrutiny it applies will serve as a useful check on the commission. Any case that reaches the High Court would become a useful precedent, and any guidance that the High Court gives would be useful in helping to avoid future court appearances. Furthermore, the need to satisfy the demands of the High Court would also encourage the commission to be thorough, if a case were to proceed to judicial scrutiny.
I remind hon. Members that the use of such powers would be very limited. As such, relatively few cases would be expected to reach this stage and it is unlikely that this requirement would place too great a burden on the High Court. What is important is that cases are considered properly and the relevant level of scrutiny is applied. We consider amendment 74 an important enough issue to press to a Division at the appropriate moment.
Amendment 78 looks to remove the early payment discount provisions in schedule 2.3(3)(d). As the Bill stands, that and other similar sections provide that notice of a possible penalty must include information about any early payment discounts. That implies that the commission may provide discounts for the early payment of a proposed penalty, imposed under the 2000 Act. Our amendments delete reference to early payment and thereby prevent discounts from being issued.
While we understand that the intention behind the provisions is to encourage swift settlement of penalty liabilities, we disagree that the discount mechanism currently in place is the best means of achieving the goal. A penalty is an important indication of wrongdoing. Allowing a discount for early payment could suggest that the seriousness of the offence had in some way been mitigated. That could send out the wrong message, and could trivialise the penalty regime.
Amendments 63 to 67 would serve to remove monetary penalties from the discretionary requirement regime. Amendment 63 would specifically remove sub-sub-paragraph (a), relating to monetary penalties, from sub-paragraph (8), which defines what may constitute a “discretionary requirement”. It would leave two remaining powers with the commission, which would be extremely flexible and could require a subject to take such steps as the commission sees fit to remedy an offence or contravention. Amendments 64 to 67 are consequential.
The power to issue fines is one of the key new powers that the commission will be granted by the Bill. Fines can act as a crude penalty and disincentive when the 2000 Act has been breached. Conceptually, we support the penalty regime in certain circumstances, but we remain concerned at the potential for the Bill to encourage the over-zealous use of penalties when other avenues should be explored first. That is particularly so in the case of minor infringements of the legislation. The discretionary requirement regime, minus the penalty provision, is capable of remedying minor breaches, and we should not encourage a simple fine system that could fail to address the root of the problem. By removing the penalty, the commission would need to focus on imposing a discretionary requirement to take steps to stop or remedy a breach, under paragraph 5(b) and 5(c) respectively. We believe that that is a positive step, and would encourage understanding rather than retribution.
I expect that there may be concern that the commission will be seen as a light touch without the penalty regime. However, the amendments would leave in place the power to fine when an offence had been committed under the 2000 Act. Thus, in serious cases there would be no need to use the part 2 “discretionary requirements” provision unless it would be useful to do so. Furthermore—and this is a point that I would like to emphasise—if a non-penalty “discretionary requirement” is not satisfied, paragraph 9 would allows the commission to then impose a monetary penalty as a final resort. By leaving it as a final resort in non-offence and less serious cases, it would encourage the commission to help remedy the breach rather than issue a draconian penalty.
The purpose of amendment 77 is the introduction of a time limit into the Bill. It relates to the period in which an individual can respond to the relevant civil sanction imposed on them by the commission. We contend that the provisions in place could be too vague. Clarity is preferred, especially when potentially innocent subjects are seeking to respond to the commission. The simple addition of specific predefined time limits into the schedule could tackle that problem. Amendment 77 would apply a 28-day limit to the making of representations and objections against a discretionary requirement to the commission. I would point out that part 2 of the schedule provides that in relation to a discretionary requirement the period for representations or objections
“may not be less than 28 days”.
Does the Minister not agree that that inconsistency is revealing? Surely that shows that 28 days, as a minimum, should be a fair amount of time.
Amendment 75 would insert the word “promptly” into paragraph 6(5) in part 2 of schedule 2, which relates to the notice of a discretionary requirement. The Minister dismissed the use of the word “immediately” in Committee, which is why we are now back with a slightly less prescriptive term. The amendment would require the Electoral Commission to notify the subject of its final decision to impose a discretionary requirement or fixed monetary penalty promptly because, as things stand, there is no time limit for serving the notice.
Discretionary requirements, of course, are intended to provide the commission with a flexible means of ensuring compliance with the provisions of the 2000 Act. That flexibility is reflected in paragraph 5 in part 2, which states that a discretionary requirement can be
“a requirement to take such steps as the Commission may specify”.
That flexibility is welcome, but there should be a compensating certainty, particularly in the delivery of the notice informing the subject of the requirement.
If prompt compliance is expected of the person, the commission should be an example of good practice in its own expediency. There is no time limit in the Bill for the service of either notice. As such, it is possible that the commission might delay in delivering the notice and delay on the part of the commission is also likely to be reciprocated by the person. Good practice should be a statutory requirement and we believe that the simple insertion of the word “promptly” will help achieve that goal.
Government amendment 23 follows up on a number of amendments tabled in Committee by me and the hon. Member for Carmarthen, West and South Pembrokeshire (Nick Ainger) and relates to the requirement for the commission to publish guidance. In Committee on 13 November, concern was expressed about the frequency and timing of guidance published by the commission on the use of its powers. Questions were also posed regarding the content of any guidance. Our Committee amendments 61 and 62 and the Liberal Democrats’ Committee amendment 136 sought to address deficiencies in that respect.
The consensus stemming from the debate was that annual guidance should be published and that it should be required to contain certain prescribed information, particularly on the use of investigatory powers. I am pleased to see that the Minister has taken those suggestions on board and we welcome Government amendment 23. It obliges the commission to publish annual information on the use of commission powers. It achieves that by attaching that requirement to the pre-existing annual financial reporting requirement contained in paragraph 20 of schedule 1 to the 2000 Act. The annual financial report will now include information in line with the newly introduced schedule 2 requirements. That seems to us a suitable way of going about that. We are pleased that the Government have included that positive amendment and we hope that the annual reporting requirement will reassure people that the commission is using its powers reasonably.
Government amendment 28 relates to a report published by the commission in accordance with paragraph 27 of the schedule. It stipulates that any report may, pursuant to the paragraph, omit certain information if, in the opinion of the commission, the publication of the information would or might be unlawful or if it might adversely affect any proceedings or investigation. In essence, it qualifies the obligation introduced by the welcome Government amendment 23.
Although we agree that some flexibility is acceptable in terms of reporting requirements, the measure could go slightly too far, we believe. There is no requirement that the commission’s opinion of the lawfulness or any adverse affects of publishing certain information should be reasonable. We feel that an opinion to that end should be reasonable, and our amendment (a) to Government amendment 28 addresses the deficiency. It would ensure that the commission does not become overly defensive with regard to the information that it holds. As things stand, the commission could have a very subjective and defensive set of opinions, which could prevent full and frank disclosure in its report. That would dampen considerably the positive potential of the reporting requirement.
We also have a slight reservation about the wording of sub-paragraph (b) in Government amendment 28. The effect of sub-paragraph (b) would be that information could validly be omitted from a report if its publication
“might adversely affect any current investigation or proceedings.”
That goes further than the current wording of the Bill and, again, it could lead to over-cautiousness on the part of the commission. Our second amendment to Government amendment 28—amendment (b)—changes the wording from “might” to “would”. That would refocus the commission when it decided on whether the publication of information really would damage its investigation. In combination with the mere subjective opinion requirement that I have identified, schedule 2 would, if not amended, allow for a very cautious report that might not be fully informative, and that would not fully reflect the reality of the commission’s work. I would appreciate the Minister’s further thoughts on those points.
Finally, amendment 83 inserts a threshold test after paragraph 27(2) of schedule 2. The amendment aims to ensure that the commission excludes details of less serious offences in the reports that it is obliged to publish under paragraph 27(1). The measure would serve three purposes. First, it would excuse from further censure those who have fallen foul of the legislation to a minor extent. The threshold ensures that only the more serious offenders are named and shamed. Secondly, the removal of minor offences from the reports would mean a more intense focus on the major offenders. The threshold of £5,000—the amount is negotiable, as far as we are concerned—catches the most serious cases and ensures that they are rightly named and shamed. Thirdly, the measure would act as an additional deterrent to the commission of offences and infringements. Again, I would be interested to hear the Minister’s thoughts on those proposals.
The House will be in no doubt about the importance of what we are debating. Clearly, we can talk in more detail about the investigative powers when we come to the next group of amendments, but any measure that allows a senior commission official or the police to enter premises to check on the income and expenditure of an individual or organisation should be looked into carefully. The House should be fully satisfied that the new framework that we are putting in place will serve Parliament and the country well.
To pick up briefly on our earlier debate on the motion on the guide to the rules relating to the conduct of Members, I do not think that anyone in the House is resisting transparency. One of the contributors to that debate suggested that the discussion indicated that hon. Members did not want to declare, or want their local parties to have to declare, events that raised more than £1,000. Certainly, that was not my position. The position is that we want maximum transparency, but clearly we have to have a system that can be handled properly, and that does not put an unreasonable demand on the volunteers on whom we all depend for the operation of the political system, which, of course, is dependent on the political parties.
I pay tribute to the hon. Members who were on the Public Bill Committee. The Government had a real wish to arrive at a consensus, and that is to their credit. The Minister said, perfectly fairly, that some of the Government’s amendments reflect an aim on which there should be consensus. There is no doubt in my mind—I have given evidence on such matters to the Committee on Standards in Public Life—that when we try to enact legislation governing our electoral process and governing the very important issue of donations, we should do so in a way that achieves full and proper consensus.
We can, of course, go into detail on the investigatory powers later. I will not pass comment on the commission; again, that can come later. It is a new organisation. It is important that it establishes itself, in the eyes of parliamentarians and the country, as doing an excellent job.
I understand where the new clauses and amendments tabled by the hon. Member for Leeds, North-East (Mr. Hamilton) and by the Conservatives are coming from, but I have one central problem with them, which is an objection to their consistency with what we in the House impose on the rest of society. I hope that hon. Members will explain further in the course of debate. We should not, as politicians, give ourselves special treatment in the regulatory regime that we do not give to other people. We should not give ourselves arbitrary exemptions from the type of rules that we impose on others.
It is clear that, in some cases, politics is special. It is clear that, for example, we as democratic representatives need some rights to be able to do our job. That is entirely in order and entirely behind the scandal of the treatment of the hon. Member for Ashford (Damian Green). But that has to do with constitutional matters—with the balance of power between different branches of government. It is not just about whether we feel that we ought to be given special treatment.
Surely the hon. Gentleman appreciates that the provisions go much further than MPs. Great concern was expressed on both sides in Committee that honourable people who give up their time on a voluntary basis for our associations, for instance, would be unfairly caught by the provisions.
I fully support that point. I had intended to deal with the hon. Gentleman’s new clause 3 later, but I may as well speak about it now. In principle, I am fully in favour of what he says, for precisely the reason that he gives. Over the past 10 or 11 years the Government have become far too fond of creating criminal offences. They have invented more than 3,000 criminal offences, in many cases with no particular purpose in mind except to issue a press release.
However, we must be careful to apply the same principles to everybody else in society as we apply here. I would be grateful for the support of the hon. Member for Leeds, North-East in other examples when we on the Liberal Democrat Benches try to make sure that the criminal law is not used inappropriately. We do not have the opportunity to do that now, but it is important to bear in mind—and on the whole I support his new clause—that we should apply the same argument in other cases as they come up.
I am more concerned about some of the amendments tabled by the Conservatives. We should be wary of removing civil sanctions for contraventions that are short of criminal offences. Standard regulatory practice in the outside world applies that sort of idea to a range of other activities. Why, in this case, should political activity be treated differently? If we remove any sort of civil sanction for violations that fall short of criminal violations, we are left with no sanctions at all. It is pointless to pass statutory provisions that impose obligations on people and to have absolutely no sanctions to back up those obligations. The temptation for the Government will then be to make those obligations enforceable by the criminal law, so we will end up with yet more criminal offences.
That applies even more in the case of removing the variable monetary penalties. Anyone looking at the Regulatory Enforcement and Sanctions Act 2008, for example, will see that those penalties are entirely standard. That is how regulation happens in general, and I cannot see any reason to remove such regulatory devices for the activity that we are discussing. There was an opportunity to object to them when the 2008 Act was going through Parliament; perhaps some Members did object. But given the fact that such devices represent the standard way in which regulation happens, I see no reason why what we do should get special treatment.
That brings me to amendment 74, which relates to the appeal to the High Court and on which the hon. Member for Huntingdon (Mr. Djanogly) wants us to vote. Under the 2008 Act, the standard practice—for everybody else, in every other regulatory field—is that there is no appeal to any sort of court, only to the first level of the tribunal. In giving them an appeal to the county court, we are already giving people in the line of activity that we are discussing a degree of special treatment; they have access to the ordinary courts. To go further and give people involved in politics access to the High Court would go way beyond what we offer people in other fields of activity. The hon. Gentleman said that doing so would provide for precedent. I should say that, as a matter of technical law, one High Court cannot bind another, so the amendment would not even do that. I have yet to be convinced that amendment 74 is fair in its treatment of political activity in relation to other types of activity.
I am more sympathetic on the issue of discounts for the early payment of fines. It always seemed to me that those were a rather strange provision in the 2008 Act in the first place. Paying a fine early should not mean that people pay less; it is not a matter of civil debt, simply of when the obligation is fulfilled. However, the fact that that provision in the 2008 Act makes no sense is not a reason to give the activity that we are dealing with today special treatment with regard to it. We should be worrying about why we passed the provision in the first place.
In making all those points, the hon. Gentleman runs the risk of putting the monitoring of our electoral system in the same basket as dealing with parking tickets. There is a difference between the two, and that point applies to everything that he has just said—not least, to his last point.
The 2008 Act deals with a whole range of topics, some of them very serious. The hon. Gentleman has to show why the special characteristics of politics, party funding and all the matters with which we are dealing should lead to the specific special treatment that he wants. I am afraid that he has not done that.
It is in a different category, but the question is about why that different category should be treated in the specifically different ways that he is talking about. My fear is that it is simply because we in the House know more about the political process—we know far more about it than about economic and commercial processes—that we think that we ought to provide differently for it. I am afraid that I do not think that that is good enough.
Precisely right. But I want the hon. Gentleman to demonstrate that the provisions that he puts forward—in amendment 74, for example—specifically help to guard the democratic process. My central worry is that this is not to do with thinking about the function and the importance of politics but has more to do with our self-regard and our specific knowledge. That is insufficient reason to treat better an activity that we know more about than other sorts of activity that we regulate every day.
My hon. Friend the Member for Leeds, North-East (Mr. Hamilton) made his case powerfully, and I understand what the hon. Member for Cambridge (David Howarth) said about our not wanting to be seen to be putting ourselves in a different category from other citizens. However, my central point is that it is not a good thing for the police and the whole panoply of criminal law and prosecutors to invade politics—sometimes, although not in my case, for party political reasons—because they often do not want to do it. It is pretty clear, from my direct experience, that the police do not welcome this practice that has grown up. We are in danger of following the American course whereby we pollute politics with all this extraneous interference.
When fraud is being committed—when an hon. Member or a member of a political party is, say, deliberately concealing a donation or seeking to obstruct justice or in some way to hinder and block the operation of the legislation that this Government have put in place—then those people deserve to be pursued for a criminal sanction; of course they do. But where an innocent mistake has been made involving what are complex rules, as has happened to many hundreds of Members of this House—including some here this evening, not only me—it is not sensible for the police or the whole system of criminal law to come in; it is a matter for regulation either by this House or by the Electoral Commission. I think that this Bill improves the situation.
Let us look at some examples. The “loans for peerages” case was pursued as the result of a political request. It took 15 months, nothing happened at the end of it, and the police spent a great deal of money—hundreds of thousands of pounds. The question of whether there was an issue in that case needed to be addressed by the political process—the process of transparency and democratic accountability for which this Government deserve a lot of credit for introducing. We turned our back on the old system whereby a Hong Kong billionaire could give what he liked to a particular political party and nobody knew where it was coming from, who he was or what his motive was.
The other important point about the new clause tabled by my hon. Friend the Member for Leeds, North-East—whether all its specifics are satisfactory to the House is a separate matter—is that the Electoral Commission needs to be much more accountable and needs different leadership from what it has had in the first phase of its work. If I may say so—I will not go into detail—I found it to be incompetent, dysfunctional and politically unworldly. There have been some sensible changes, with commissioners with a political background coming in. I could not believe some of the things that I experienced. One of the things that I found out in the course of this story was that if one of us were taking part in an internal party election and a member of our campaign staff, perhaps a student volunteer, got us a return to Brighton that cost, let us say, £12 or £13 off-peak, and that individual had used a credit card with a credit rating of £2,000 to £3,000—in other words, more than the £1,000 that we have to declare in relation to any donations—the commission’s view was that we would have to declare that. A £12 ticket counted as a donation in kind because of the credit card that happened to pay for it a couple of days before the money was reclaimed. I could quote countless examples—but I will not burden the House—about my own unhappy experience, which proved to me that the commission had very little idea of the political world that it was regulating.
This is not in any way intended to excuse or somehow sidestep the obligation to report on time, or the necessity for the law to be obeyed by regulated donees, which all of us are. I am simply saying that we need from the new leadership a more effective and competent commission, and one that will carry out the duties that the new legislation will enshrine. The changes that the Government have made to the Bill, which were in part provoked by the original amendments tabled by my hon. Friend the Member for Leeds, North-East and spoken to by my hon. Friends the Members for Battersea (Martin Linton) and for Carmarthen, West and South Pembrokeshire (Nick Ainger) in Committee, have made it a much better Bill. I hope that the commission’s leadership will take heed of it and start to act in a proportionate and more politically worldly fashion.
In the end, we are dealing with politics, which is a voluntary activity. We all have our obligations, but we do not want, for example, to criminalise the local party treasurer because he is in his 80s and has not studied the small print of something—someone who could not be any further away from wanting to do something dishonest. We have to take the process forward in a sensible fashion, and that has not been the case before now.
I am a little puzzled by the insistence on a Division on the question of whether a final appeal under these procedures should go to the High Court rather than the county court. The question is not where the appeal ends up, but the time during which someone may be proto-criminalised while a procedure takes place. That may well result in an appeal being taken to a county court, or in the case of the final appeal, to the High Court. That was the thrust of an amendment suggested in Committee by my hon. Friend the Member for Battersea (Martin Linton), to which I contributed, on the making of a defence prior to a proceeding taking place by application to a court about the nature of an omission or act that could invoke proceedings.
The ability to obtain a certificate prior to those proceedings taking place relates to the argument about the defence of democracy, and the extent to which people undertaking acts that they consider to be part of their duties in representing the public in the political process can be criminalised by implication long before anything has been decided. As was suggested in Committee, people can end up camped outside people’s doors, and a series of articles and comments can be published in the press and the media about something that has yet to be determined.
Under the existing process for considering whether an offence has been committed, there is no provision for redress while the process is undertaken. The idea of being able to prevent that process from going any further through the application for a certificate seems to provide the way forward, given several of the discussions we have had this afternoon. My right hon. Friend the Minister suggested in Committee that further examination of those ideas might be undertaken before the Bill had run its course through this House and another place. It would be helpful to our considerations if he could indicate whether such considerations might be provided through further amendments, or other provisions, to introduce a more proportionate system before the Bill returns to this House from the other place and we make our final consideration of it.
I rise to address the new clauses tabled by my hon. Friend the Member for Leeds, North-East (Mr. Hamilton) and then, I am afraid, to resist the cornucopia of Opposition amendments. I shall also speak to the Government amendments.
I have a great deal of sympathy with my hon. Friend’s arguments and instinct, but I ask the House to resist new clauses 3 and 4. If we want a proportionate and flexible Electoral Commission, as I believe Members of all parties do, new clause 3 will not help. We have broad cross-party agreement that we need a strong regulatory regime, enforced by a rigorous and effective regulator. Much of the Bill is designed to make improvements in that direction. That is not to say that the commission must act harshly, and of course sometimes it should not act at all, as in the case of small-scale late reporting cases caused by an inadvertent mistake or an accident by a volunteer.
It is worth remembering that the commission has discretion and is not compelled to impose a penalty in all cases. The new clause would force the commission to issue a fixed monetary penalty in all cases of the three offences to which it relates. That runs counter to the idea of a flexible sanctions regime, which underpins much of the Bill. It might even have the unwanted side effect of suggesting that fixed monetary penalties must be imposed for all such breaches, rather than enabling the commission to take the proportionate, case-by-case approach that I believe we all want. That is important, because the Bill will allow the commission to use its expertise to exercise discretion on the use of sanctions and apply them appropriately.
The commission may view a one-off breach as a minor infringement, but it may decide, on the evidence available, that behaviour such as persistent infringements indicates more serious activity such as evasion. It might also wish to take into account the scale of the late report or the amount of time involved, in deciding what penalty is appropriate, if any. It is important that we do not limit that flexibility from the outset.
The commission has published its draft enforcement policy, and I hope that Members with an interest will contribute their views. The document sets out the commission’s view that sanctions may be used in a more graduated and proportionate way under the Bill than is currently possible. As the House will know, it has said that it does not support a provision such as new clause 3, as it would
“remove our ability to use the most appropriate civil sanction to secure compliance and deter future non-compliance in any given case. This might be a variable penalty, restoration notice, compliance notice or enforcement undertaking rather than a fixed penalty, depending on the circumstances of each case and how serious the late or non-reporting was.”
There may be mitigating or aggravating circumstances to take into account, and the logic of flexible sanctions is precisely that the commission does not have to use a hammer to crack a nut or, as the right hon. Member for North-West Hampshire (Sir George Young) put it in the earlier debate, a steamroller to flatten a molehill. Equally, the commission’s hands will not be tied by sanctions that do not sufficiently match the offence. As part of the new regime, we expect it to use sanctions proportionately.
Does my right hon. Friend accept that it should be a minimum requirement that before the Electoral Commission takes action on late payment, it has reason to suspect that that late payment is caused by a desire either to withhold information or to deceive? In cases in which there is no such suspicion and no reason to believe that, should it not decline to take action?
I am grateful for that intervention. My hon. Friend knows that we are planning to reconsider some of the issues that lie behind his remarks, and I shall revert to them in another context.
It is important to remember that the commission must apply its expertise in judging precisely how the system should operate. We are trying to ensure that it has a battery of tools that enables it to operate proportionately. I hope that that reassures my hon. Friend. We expect the commission to act proportionately and it says that it intends to do so. Although it is for the commission to determine the matter, I anticipate that offences such as late reporting may be treated less severely than what could be considered a more serious offence in most instances, but not all circumstances are the same. I have given some indications of how what may at first appear to be a minor offence might appear more serious on closer inspection and investigation. We must leave the commission the flexibility and the range of instruments that it needs to deal with each case on its merits.
The Minister almost assumes that the commission will act proportionately. That may be the case with the existing commission, but we are legislating for the long term, and many amendments that Opposition Members and the hon. Member for Leeds, North-East (Mr. Hamilton) tabled, and many comments from other hon. Members, reflect concerns that the commission may not always exercise proportionality. Will the Minister deal with our anxieties?
Of course, the hon. Gentleman is right; it goes without saying that we are not legislating for the current commission but for all commissions for the foreseeable future. As he knows, we have already tackled many of his concerns. I will address each amendment in turn, and I hope that when he considers how I have done so, he will realise that we are conscious of the need to legislate for the future—and we believe that we are doing exactly that. I hope that I have reassured my hon. Friend the Member for Leeds, North-East sufficiently for him to feel able to ask leave to withdraw the clause.
I understand the reason for my hon. Friend’s tabling new clause 4, and I share the sentiments that lie behind it. Of course, the commission must use its powers proportionately, after carefully considering the facts of each case. He asked whether I believed that the Electoral Commission was above Parliament. Of course it is not, but we must constantly remind ourselves—the hon. Member for Cambridge (David Howarth) keeps reverting to the point—that the Electoral Commission must be entirely independent of Parliament. It is not for Ministers to influence or try to influence how the Electoral Commission exercises its functions, still less the way in which it makes its decisions. That is why I said that the Electoral Commission would decide on the facts of the case whether to refer anything to the police.
I am not convinced that setting up an independent panel in statute to provide guidance and a code of practice to the commission is an appropriate way forward. The Electoral Commission was established to be statutorily independent. As with other regulators of its kind, there is an arrangement whereby the electoral commissioners lead the commission’s strategy and set its priorities, and the commission will consider what guidance is necessary to explain its role and the regulatory framework in which it operates. For precisely that reason—its operational independence—the commission reports directly to Parliament, including through the Speaker’s Committee.
If we provided another body on top of the commission, would that result in more or less clarity of responsibility? I believe that it would result in less clarity. Who would be responsible for individual decisions—the panel or the commission? If the commission disagreed with the panel’s advice, would it be bound to adhere to the advice or could it disregard it? New clause 4 would unnecessarily complicate the picture, make regulation more difficult and possibly produce perverse consequences that no hon. Member would welcome. It is not practical for the commission to be required to seek advice from the panel routinely before making decisions that relate to its investigatory powers or sanctions. That might lead to all sorts of complexities and unnecessary delays. Decisions should be for the electoral commissioners and the commission staff, who are recruited because they have experience and expertise in the field.
As hon. Members know, we have taken direct steps to assist the commission to become more aware of the political environment in which it operates. Everyone who has spoken during the various stages of the Bill’s passage through Parliament has drawn attention to the need for the Electoral Commission to become more sensitised, if I may put it that way, to the democratic political environment. That is why we are introducing provisions in the Bill enabling the appointment of a minority of commissioners who have recent experience from across the political spectrum. That will be in addition to the parliamentary parties panel, which already exists for consultation with party administrators and practitioners.
The Bill already includes the requirement for the commission to publish guidance on how it intends to use its powers and sanctions, and to consult such persons as it considers appropriate before publishing or reviewing such guidance. In its evidence to the Public Bill Committee, the commission indicated that it intended to consult political parties and interested people in Parliament regarding the guidance on the use of those powers. It is open to the commission to establish and seek advice from an informal advisory group of individuals whom it believes can provide experience and guidance on any aspect of its functions. The commissioners previously established a small reference group in that way and there is no reason why they should not do so again. However, the establishment by statute of a formal panel to issue guidance or advice to which the commission would be required to have regard is something very different.
Does my right hon. Friend not accept that the motivation behind new clause 4 was to ensure that the commission, which up to now has not been consistent in investigating various infringements, were consistent and monitored in respect of such consistency? Can he assure me and the House that what is proposed will ensure such consistency, which has been so sadly lacking?
That is precisely the intention. I have said already that I fully understand the sentiment behind my hon. Friend’s new clause 4. Indeed, I think that every Member of the House is in sympathy with that sentiment, but we have to ensure that the Bill works. With all respect to him, I do not think that new clause 4 would have the effect he wants. In fact, as I have already said, it may have perverse consequences.
The way in which the Electoral Commission has conducted itself and the evidence that it has given show that it shares that sentiment and wants to improve its performance. Everyone wants to see that happen, and that is the direction in which the Bill is designed to move us. However, whatever we do in trying to provide the commission with the tools to improve its performance, we must not do it in a way that seeks, or could be seen to seek, to interfere unduly with the discharge of its regulatory functions.
The hon. Member for Cambridge has said on many occasions—every time he has said it, I have agreed with him—that if we are to depart from the regulatory framework that we have already set up, possibly on the basis that, as the hon. Member for Huntingdon (Mr. Djanogly) said, regulating democratic politics is perhaps categorically different from regulating other areas of public life, we must do so only if there are truly compelling grounds. We will return to that point again and again in our discussions, but in the meantime, I hope that my hon. Friend will not press his new clause 4, as I will have to oppose it, sympathetic as I am to its intent.
Let me make it clear that I do not want to do anything that might appear to diminish the commission’s independence. New clause 4 might have that effect. I certainly believe that it would hamper the commission’s operational effectiveness and make it less efficient in the discharge of its duties. New clause 4 would muddy the waters by making the lines of responsibility for decisions less clear, which is profoundly unwelcome and also unnecessary, given the steps that we have already taken to equip the commission better to understand the field that it regulates and to explain its actions to those whom it regulates.
The Minister said that we were talking about differentiating the commission’s activities from other aspects of public life, but the legislation to which the hon. Member for Leeds, North-East (Mr. Hamilton) referred probably deals mainly with commercial life.
I was including commercial life in the phrase “public life”—or, if I can be precise, “matters that affect the general public”. I hope that that reassures the hon. Gentleman. Anyway, I hope that I have said enough to persuade my hon. Friend the Member for Leeds, North-East not to press his new clause 4.
My hon. Friend asked about dual reporting and when section 59 of the Electoral Administration Act 2006 would be commenced. Those Members who were present earlier will have seen that the Committee on Standards and Privileges report was approved after a somewhat lengthier discussion than some of us had envisaged. The Electoral Commission has indicated that it will move swiftly to notify the Justice Secretary that it is content that it will receive all the information that it needs. Once that notification is received—as has been discussed today, that is a prerequisite for commencement—the Justice Secretary will commence the provision at the earliest opportunity. The right hon. Member for North-West Hampshire suggested that administrative changes to House procedures should enable commencement by June at the latest.
Let me turn to Opposition amendments 59 to 62. I suppose that I should compliment the hon. Member for Huntingdon on his persistence, because pretty well identical amendments were tabled in Committee which he said were probing amendments. They were not put to a vote, but I am happy to try to persuade him not to press them once again. Practically, amendments 59 to 62 would have the effect of preventing the Electoral Commission from applying a fixed monetary penalty to any of the regulated entities concerned for the contravention of a prescribed restriction or requirement. Amendments 59 to 62 go against the flexibility of the system that we are seeking to introduce.
It is worth putting it on record again that the Committee on Standards in Public Life recommended that civil sanctions should be made available in instances that could be considered more minor and where it said that administrative penalties would be more appropriate. Accepting amendments 59 to 62 would mean that this lightest-touch penalty, which is generally available to the commission under the relevant schedule, would not be available in those sorts of cases where it may be particularly appropriate. That would be illogical if we are serious about adopting a proportionate approach.
Finally, amendments 59 to 62 fail to take account of the existing provisions in the Political Parties, Elections and Referendums Act 2000. Acceptance of them would remove the commission’s limited ability to impose civil penalties in relation to certain breaches of the 2000 Act. The fixed monetary penalties in schedule 2 of the Bill replicate the present system in section 147 of the 2000 Act. For example, where a party fails to inform the commission of a change of treasurer, as required by section 31(4), the Electoral Commission can currently impose a civil penalty. Should amendments 59 to 62 be accepted, the commission would still be able to apply a fixed monetary penalty, but only when a prescribed offence had been committed. In addition, the other civil sanctions would continue to be available in respect of prescribed restrictions and requirements, which would add inconsistency.
By preventing the application of those new sanctions to prescribed restrictions and requirements, we would be in danger of binding the commission’s hands. We believe that it must be for the independent Electoral Commission to determine when a fixed monetary penalty or any other appropriate civil sanction should be used where a prescribed restriction or requirement has been contravened. The commission must be allowed to use its expertise to determine what mitigating or aggravating factors might be taken into account. That is proportionate and allows each case to be approached on its merits. On that basis, I hope that the hon. Member for Huntingdon will not press amendments 59 to 62.
I can only refer the hon. Gentleman again to what the Electoral Commission has said. It has made it absolutely clear that it will approach each case on its merits and proportionately. The dictionary definitions in respect of what he has just described are that it is not proportionate. We have to accept what the Electoral Commission says and be extremely careful about binding its hands. I refer him back to what I have just said: what he is suggesting in amendments 59 to 62 may have the perverse consequence of producing the opposite result to that which he is seeking.
Amendment 78 deals with early payment discounts and late payment penalties. It is similar to amendments tabled by the Opposition in the Public Bill Committee, and I am delighted to discuss these matters again, and to set out our thinking on them and explain why we must again resist the proposals. As the hon. Member for Cambridge has pointed out, the provisions for early payment discounts and late payment penalties replicate the equivalent provisions in the Regulatory Enforcement and Sanctions Act 2008, on which the civil sanctions regime is based.
I believe it is right to encourage prompt payment of sanctions, and to reflect the procedural savings to the regulator—in this case, the Electoral Commission. Of course, the commission’s role is not purely administrative, but there are those, including the hon. Member for Huntingdon, who have argued that the measures will turn the commission’s role into that of a traffic warden issuing fixed penalty notices. With respect to him, however, that is not the point. These sanctions provisions are only part of a range of potential sanctions, and the whole point is that there should be flexibility in how they are applied. We are seeking to provide such a flexible approach to sanctions in line with other regulators who have benefited from the provisions in the Regulatory Enforcement and Sanctions Act 2008, on which these provisions are modelled.
In providing for the possibility of early payment discounts and late payment penalties, the commission will have the option to offer the provisions if it deems that appropriate. I shall set that out in the final version of its guidance on enforcement. However, it may decide to offer the options in some instances and not in others. For example, it may decide that providing for an early payment discount is appropriate in some instances, and that a fixed monetary penalty might be appropriate for a relatively small breach and when speeding up the regulatory process is in the interests of the regulator and of the individual concerned. The commission may also decide that it is not appropriate to provide these discounts or penalties in some cases—for example, when the individual is a serial offender or when the offence is of a more serious nature. I hope that that addresses the concerns expressed by the hon. Member for Cambridge.
Will the Minister give the House one example of when an early payment discount would be likely to apply? These powers are not likely to be used frequently, and as he has said, in many people’s minds, such practices are more relevant to parking tickets than to electoral offences.
Just to correct the hon. Gentleman, let me say that that was not my analogy. I was quoting him, and I am not sure that I share his view. The point is that it will be for the commission to determine the circumstances, and we have to allow it flexibility as a regulator.
To return to the point made by the hon. Member for Cambridge, when we depart from the regulatory framework that the House agreed to in the Regulatory Enforcement and Sanctions Act 2008, we must have a compelling reason for doing so, and I do not see any such reason here. I am sorry to pray in aid the hon. Member for Cambridge again, but as he said, we must be careful about suggesting to the people whom we all serve that we are somehow immune from the kind of sanctions and regulatory frameworks that apply to other people in public life. I hope that I have now said enough to convince the hon. Member for Huntingdon to ask leave to withdraw his amendment.
Amendments 64, 65, 66 and 67 are all consequential on amendment 63, and they would remove variable monetary penalties from the range of discretionary requirements proposed for the commission by the Bill. Again, I am going to ask the House to resist those amendments if they are pressed to a vote, because to accept them would be to remove an important part of the Commission’s range of civil sanctions and take away some of the flexibility that we believe to be desirable.
The sanction of variable monetary penalties is closely modelled on those contained in the Regulatory Enforcement and Sanctions Act 2008. The provisions are intended to allow the regulator to ensure that the financial penalty is appropriate to the offence. I come back to the fundamental point that, unless there is a compelling reason to do so, we should not depart from the principle that politicians should not be treated differently from those in the other regulated fields.
As well as that matter of principle, there is also a positive reason for including variable monetary penalties in the suite of powers that the Bill gives to the commission. They will provide greater flexibility, and enable the commission to adapt the penalty specifically to the facts of each case. The draft enforcement guidance issued by the commission indicates that it intends to use variable monetary penalties for the graver breaches of the Act, and to use fixed monetary penalties in cases of more minor, technical, breaches, where a penalty is still appropriate but where the breach is less grave or more routine.
Having said that, variable monetary penalties, while flexible, must still be imposed proportionately and, in summary cases, they may not exceed the level of a fine available to a criminal court dealing with the same sort of breach. Currently, that is £5,000 where a case would otherwise be tried in a magistrates court. In other words, the word “variable” does not mean “unlimited”. Factors that could be taken into account—I am not saying that they would be, but they could be—include the history of compliance of the individual or organisation concerned and also the gravity of the failure. The commission’s draft enforcement policy—to which I am sure that the commission would welcome contributions from all hon. Members—draws this distinction, stating that fixed monetary penalties are likely to be used for
“low level non-compliance such as the late delivery of statutory information”,
and that variable monetary penalties will be used for
“more serious breaches than fixed penalties where a fine can be set at a level to reflect the gravity of the offence and remove any financial benefit resulting from non-compliance”.
In this sense, variable monetary penalties are an important part of a graduated suite of powers and of the proportionate approach to regulation that all hon. Members want to see.
As the commission states in its latest briefing on the Bill, removing these sanctions
“would significantly reduce our ability to apply the appropriate sanction in a proportionate way”.
If there are still concerns about safeguards, I would draw the House’s attention to the fact that discretionary requirements may only be imposed by the commission when it is satisfied “beyond reasonable doubt” that an offence or breach has occurred. That is a high threshold. It is the criminal standard of proof, and it ensures that the commission must act responsibly in the use of these powers. The Bill proposes to ensure that regulations are properly enforced by an effective regulator, not to lower the required standard of evidence. The Bill also proposes an appeal mechanism against the imposition of a variable monetary penalty. Moreover, it also proposes to allow a person to make representations before the imposition of a variable monetary penalty. There is, therefore, a suite of safeguards. Amendments 64, 65, 66 and 67 are consequential, and I hope that the arguments I have already outlined against amendment 63 will also stand against those consequential amendments. I hope that I have said enough, therefore, to persuade the hon. Member for Huntingdon to withdraw his amendments.
I am sorry that, even before the hon. Gentleman had heard my reasons why amendments 74 and 82 were a bad idea, he said that he would press them to a vote. However, I hope that I can still persuade him to change his mind, although he said that they were very important to him. They provide that appeals against the imposition of fixed monetary penalties and non-compliance penalties should be heard by the High Court, rather than a county court as the Bill currently provides.
The Government believe that county courts are a more appropriate forum for appeal. The precedent for appeals in electoral law is to a county court, which will therefore have the appropriate expertise. Raising appeal to the High Court would inevitably place an unnecessary strain on the resources of the High Court, when the county court already provides an appropriate opportunity for appeal. It would also risk slowing down the appeals process, which could have a seriously negative impact on the person or organisation whose appeal was under consideration.
I do not subscribe to the logic that the hon. Member for Huntingdon put forward, at least in Committee, that the Electoral Commission might act with more restraint, should an appeal against the imposition of a civil penalty be to the High Court, rather than the county court. Under all circumstances, the Electoral Commission is under a duty to act reasonably and it is required, as I have just said, to meet the criminal standard of proof for the imposition of most of its new civil sanctions. Cases must be—and they will be, I am sure—judged on the facts of the case, not on the processes.
First, the Minister will appreciate that House procedures meant that I had to suggest that we would vote on the matter rather than wait until a later date. More particularly, does he not appreciate that the average county court judge is not very used to dealing with the legality of electoral matters? That is why they should go to the High Court.
I stand corrected on the procedures for voting and I am happy to accept the hon. Gentleman’s point about that. As to the county court, appeals on electoral law cases are currently heard there, and we believe that that is appropriate. More expertise exists in the county court than currently in the High Court and the point remains about the burden that the amendment would place on High Court resources. The hon. Gentleman’s proposal is unnecessary because we do not believe that, because the appeal would go to the High Court rather than a county court, the Electoral Commission would adapt its approach. It should not do so, and I do not think that it will do so. If we are to provide for an appeal to go to the High Court, I am afraid that we require a more convincing case for such a change, which would break with existing precedent and indeed with the precedent of the Regulatory Enforcement and Sanctions Act 2008.
I support the Minister’s general case on this issue, but is there not another important point in that amendment 74 is about appeals for fixed penalty notices? Wasting the High Court’s time on fixed penalty notices seems rather bizarre. There might, however, be a serious point—there might be, so I merely ask the Minister to reflect on it—when it comes to appeals about stop notices, which might have an effect on an election that is under way. That might be a different case, but amendment 74 seems to provide no case at all.
As always, I am happy to consider the argument; we can return to it at some future point. As I have said, I understand the instincts behind amendment 74 and I understand the importance that the hon. Member for Huntingdon attaches to it. I am sympathetic to the argument, but I just think that in this particular case, it would not be effective: it would be a break from precedents and it would not necessarily help in the way the hon. Gentleman imagines—possibly because of the delays and the attendant impact on those subject to appeals.
With all respect to the hon. Gentleman, there is a precedent in respect of electoral law and there is certainly a break from the precedent established by the Regulatory Enforcement and Sanctions Act 2008. Of course what is proposed is not identical, because as the hon. Gentleman says, we are dealing with new law, but in so far as there are precedents, the amendment would constitute a break from them. I hope that I have convinced the hon. Gentleman not to press amendment 74 to the vote and to withdraw it.
I am afraid that I am also going to have to resist amendment 77, which introduces a time period for appeals against discretionary requirements. As I said when we debated similar amendments in Committee, such a provision would reduce the clarity of the Bill for those regulated by the commission. The amendment would introduce a time period for appeals, but it is already in provisions devoted to appeals and representations procedures; that is the proper place for such a time period, where it sits most obviously with other provisions relating to appeals. I think that the amendment is an unhelpful step, which would not aid comprehension of the provisions, so I oppose it on that ground alone.
In the course of his remarks, the hon. Member for Huntingdon asked whether there was an inconsistency between references to 28 days for appealing against fixed monetary penalties and those for variable monetary penalties. The precise point is that the maximum period for making representations for fixed monetary penalties is 28 days, which reflects the fact that the breach being punished is less likely to be serious. Representations against the decision to impose such a penalty will need less time. Variable monetary penalties are, as I have already said, likely to be higher and will be imposed in more complex cases, so it is right that longer time be given to object. That is why there is a minimum period of 28 days in that case. Both the time scales are based on the Regulatory Enforcement and Sanctions Act 2008, from which we should depart only if there is a compelling reason to do so. In this case, we do not think that there is.
The aim of amendment 75 is, I understand, to encourage the commission to demonstrate good practice to those it regulates by acting quickly. We do not believe that the amendment, particularly in the way it is structured, is desirable. As I explained to the hon. Member for Huntingdon when a very similar amendment was tabled in Committee, we do not want unnecessarily to limit the commission in its application of the new civil sanctions regime. We do not want to depart from the framework set up by the Regulatory Enforcement and Sanctions Act 2008. I have already said that many times already this afternoon and I suspect that I will need to say it many times again before we are through today.
Whatever the circumstances of the case, we expect the commission to act as promptly as it is able to do—a point that will be covered in the final guidance on enforcement. We believe that the commission is well aware of the need for working in a timely fashion. Indeed, in its draft guidance, the commission notes in words that I hope will reassure the hon. Member for Huntingdon:
“We recognise that it is important to conclude investigations as quickly as possible, in the public interest and in the interests of natural justice for those involved”,
which balances with
“our first priority… to conduct a fair and thorough investigation”.
If I may paraphrase, it is precisely those concerns with natural justice and the public interest that lie behind the amendment, so I hope that the hon. Gentleman will be reassured. This is an important point. I understand that the amendment seeks to protect those subject to investigations, but it is precisely the references to natural justice and the public interest that should reassure the hon. Gentleman. In those circumstances, it is best not to put the commission under a legal obligation to act promptly; instead, of course, performance should be monitored and recorded in the annual report to ensure that decisions are taken expeditiously and on all the right evidence. I thus hope that the hon. Gentleman will withdraw the amendment.
Amendment 83 would provide that the Electoral Commission, in its reports on sanctions, is able to publish the names only of those on whom it has imposed a monetary penalty in excess of £5,000. Following the Government amendment on annual reporting of sanctions, the reports referred to will be included in the commission’s annual report.
Amendment 83 goes against the core principle of transparency. I believe that it is right for the receipt of a civil penalty to be public, which is an important part of the deterrent effect of the civil sanctions regime. The amendment would exclude a significant range of the potential sanctions available—and most likely the majority—from being reported publicly. For instance, for offences that are triable only in a magistrates court, fines are capped at £5,000, so should this amendment be agreed, the commission’s civil sanctions would not be reported.
Failing to report the imposition of such sanctions is also inconsistent with the requirements of article 6 of the European convention on human rights, by which the commission, as a public authority, will be bound. Article 6, as the hon. Member for Huntingdon will know, requires decisions to impose civil or criminal penalties to be made public. I should also say that the commission will be bound by data protection legislation in all circumstances.
As I have already said, transparency is absolutely crucial and our approach mirrors the position with criminal prosecutions where a person has been convicted of an offence. That fact is normally known. I remind the hon. Gentleman that an imposition of a civil penalty in this case might, after all, be an alternative to criminal prosecution.
In all circumstances, the commission is required to be satisfied that the criminal standard of proof has been met before it can impose most of its new civil penalties. I understand the hon. Gentleman’s concerns, but it is also worth saying that the commission will not report on investigations that have not resulted in an imposition of a penalty or that are still continuing, although it has said that it will provide information in response to specific requests.
It is a fundamental common law principle, underpinning our legal system, that a person is presumed innocent until proven guilty. I do not think that anyone, including the commission, would want the publication of such a formal report to risk intruding upon that. Nothing in this proposal would require the commission to include such detail. I have no reason to think that it would be necessary to do so, although I should say that what the commission ultimately decides to include is a matter for the commission.
The hon. Gentleman has already answered his own question in his responses to the hon. Member for Cambridge (David Howarth). He said—I hope I am paraphrasing him correctly, but forgive me if I am not—that most people would agree that regulating the democratic process is different from regulating, for example, commercial life. If that is the case, it is an important principle of transparency—as I have said, it is anyway a fundamental principle that when penalties are imposed they should be made public—that the fact that people have gone through the process, which contains a lot of safeguards as I have just described, and been fined for an offence should be known and made available to the public, whom we serve.
May I suggest that it is the Minister who has turned the argument on its head? He was arguing that everyone should be treated equally. Now he is saying that they should be treated differently. The more I hear of this, the more I think it is something that we shall have to return to.
No. I am afraid that the hon. Gentleman is paraphrasing me incorrectly. If he had listened carefully to what I said, he would know that I said that we should follow the framework set down by the 2008 Act, unless there is a compelling reason not to do so. I have been extremely careful to say that on every occasion that I have made that statement. I hope that that clarifies his confusion.
I hope, too, that we can all agree that full transparency, as far as is possible, ought to be a goal for us in relation to everything we do, and certainly in relation to the subject matter of the Bill. I hope that that can be common ground between us. If someone has been found guilty of an offence or a breach and has gone through the process, with all the safeguards embedded in it, and that process has reached an end, in our view it is right that that should be a matter of public record and the public, whom we serve, should be aware of it. The hon. Gentleman might disagree, but I think that that is the right way to go about it.
In a final effort to convince the hon. Gentleman of my point of view, I shall make one last point: such publicity and going on the public record might serve—in my view, it will—as a deterrent to behaviour of the sort that none of us wants to see. I hope that he will see fit not to press his amendments.
I want now to speak to Government amendments 23, 24, 25, 26, 27 and 28. This is a substantial group of amendments and I shall try to move through them in a logical order. The Government amendments will essentially result in a requirement for the Electoral Commission to include in its annual report details of its use of sanctions. Government amendment 23 will require the commission to include in its annual report details of its use of new civil sanctions. The Bill already contains the requirement for the commission to report on its use of sanctions from “time to time”. The amendment confirms that the report must be annual, in response to the constructive debate on the issue that we had in Committee.
The details that must be included in the report are cases where fixed monetary penalties, discretionary requirements or stop notices have been imposed, unless they have been overturned on appeal; cases where fixed monetary penalties have been paid and, therefore, liability accepted; and cases where enforcement undertakings are accepted.
During consideration in the Public Bill Committee, I accepted that annual reporting was acceptable in principle. I have since consulted the commission to confirm that it is content with that approach. It has stated in its latest briefing note on the Bill that it supports the amendment, saying that it recognises that transparency is an important part of regulation.
That approach mirrors that which we have already taken in requiring the commission’s annual report to contain details on its use of investigatory powers. The commission is already required by the Political Parties, Elections and Referendums Act 2000 to lay an annual report before the House and in the other place. The amendment will result in information relating to the exercise of the new civil sanctions being included in that report. I hope that that additional scrutiny and openness will be welcomed.
Amendments 24, 25, 26 and 27 are all consequential and simply update the language of paragraph 27(1) of schedule 2 to bring it in line with that of paragraph 15(1), which also requires information on the use of investigatory powers to be included in the annual report.
Amendment 28 will ensure that the commission is not required to include in its report information on sanctions where it believes that it would be unlawful to include that information or where to do so would adversely affect any continuing investigation or proceedings. This is complex, so, if I may, I will explain in some detail its effects.
The first part of the provision is intended to cover circumstances where publication of the commission’s interest in a particular individual might breach that person’s rights under the Data Protection Act 1998 or the Human Rights Act 1998. For example, that could apply to an individual who had been under investigation but had not ultimately been given a civil sanction. The commission has already indicated in its draft enforcement guidance that it will not publish details in those circumstances, stating:
“We do not think it would be reasonable to identify regulated entities that are not sanctioned following an investigation in our reports of investigatory activity.”
However, we must be clear about the fact that where a sanction has been imposed, and the periods for representations and appeals have ended, it is consistent with article 6 of the European convention on human rights to make that public. Access to that information is also an important principle of transparent regulation.
That does not mean that the commission is required to publish full details of individuals. Indeed, it has indicated that it intends to publish only information that is essential for transparent regulation. That may be a name and the details of the sanction. The commission’s draft guidance invites views on the extent to which information should identify regulated bodies or individuals, and I am sure that it will take on board the views expressed by hon. Members in this debate and elsewhere.
The second part of the provision is designed to ensure that publication of the commission’s interest in a person does not jeopardise that person’s right to a fair determination of any proceedings that the commission might wish to bring against him or her. It should also help to prevent the commission from being obliged to publish details of an investigation in such a way that would risk undermining operational secrecy of the sort that is often necessary for an investigation to be effective.
Indeed, the commission’s draft guidance on enforcement helpfully indicates that it does not intend to identify individuals or organisations subject to continuing investigations, although it is the commission’s current policy to respond to questions directly in relation to investigations that are under way.
I hope that the House will welcome those amendments.
With the leave of the House, I am grateful to the Minister for his responses to my new clauses 3 and 4. The Government have gone a long way towards meeting some of the criticisms held by me and by many other Members of the House, which were expressed in Committee by various hon. Members.
I have two points to make. First, as I said in an intervention, police time could be better used to pursue criminals in the community, rather than people who have made an unintended breach of this legislation.
Secondly, will the Minister strengthen the safeguards against the use of sanctions on unintended errors in reporting in the context about which he has said so much this afternoon—the flexibility that the Electoral Commission must have, and the proportionality that it must exercise in dealing with such errors?
On the basis of what the Minister has said and with the permission of the House, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Investigatory powers of Commission: Schedule to be inserted into the 2000 Act
With this it will be convenient to discuss the following: amendment 47, page 16, line 25, at end insert—
‘(aa) has been the treasurer or another officer of an organisation to which this paragraph applies within the five years immediately prior to the date of the notice, or’.
Government amendment 11.
Amendment 52, page 17, line 13, at end insert—
‘(6) For the purposes of this Schedule a person authorised by the Commission is a person who has express written authority of the Commission to act on its behalf and is one of the following—
(a) an employee of managerial level of the Electoral Commission;
(b) a member of a police force in England and Wales;
(c) a constable of a police force in Scotland; or
(d) a member of the Police Service for Northern Ireland.’.
Government amendment 12.
Government amendment 13, page 18, line 5, leave out from beginning to end of line 9 on page 19 and insert—
‘Court order for delivery of documents
3 (1) This paragraph applies where the Commission have given a notice under paragraph 2 requiring documents to be produced.
(2) A county court or (in Scotland) a sheriff may make a 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 are documents referred to in the notice under paragraph 2 which—
(i) have not been produced as required by the notice (either within the time specified in the notice for compliance or subsequently),
(ii) are reasonably required by the Commission for the purposes of investigating the offence or contravention referred to in paragraph (a), and
(iii) are in the custody or under the control of the respondent.
(3) A disclosure order is an order requiring the respondent to deliver to the Commission, within such time as is specified in the order, such documents falling within sub-paragraph (2)(b) as are identified in the order (either specifically or by reference to any category or description of document).
(4) For the purposes of sub-paragraph (2)(b)(iii) a document is under a person’s control if it is in the person’s possession or if the person has a right to possession of it.
(5) A person who fails to comply with a 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).’.
Amendment (a) to Government amendment 13, in sub-paragraph (2), leave out ‘A county court’ and insert ‘The High Court’.
Amendment (b) to Government amendment 13, in sub-paragraph (3), leave out from ‘within’ to second ‘such’ and insert
‘28 days of receipt of the order’.
Amendment 9, page 18, line 6, leave out from beginning to first ‘on’ in line 7 and insert
‘The Electoral Commission may on notice apply to the High Court for an order, subject to sub-paragraph (1A),’.
Amendment 3, page 18, line 6, after ‘may’, insert ‘, subject to sub-paragraph (1A),’.
Amendment 2, page 18, line 15, at end insert—
‘(1A) An order may be issued under this paragraph in respect of any premises used by a holder of a relevant elective office.’.
Government amendments 14 to 17.
Amendment 57, page 20, line 42, at end insert
‘and leave a copy of such authorisation with that person.’.
Government amendments 18 to 22.
The amendments deal with the investigatory powers of the Electoral Commission. Let me provide some of the background. The commission was created by the Political Parties, Elections and Referendums Act 2000, which gave it supervisory powers. Its functions are set out in section 145, which stipulates that its role is as a regulator, with attendant responsibility to monitor parts 3 and 4 of the Act. Those parts relate to
“accounting requirements for registered parties and their members”
“control of donations to registered parties and their members”
In carrying out its role, the commission is empowered by section l46 of the Act to request information from any of a group of subjects, including political parties and candidates at an election. Additionally, a person authorised by the commission may enter the premises of a registered party, a recognised third party or a permitted participant to inspect financial records. We should therefore appreciate that potent powers are already available to the Commission, as the Minister confirmed in Committee.
We support the existence of effective powers and will not revisit the PPERA powers here, but it is important for political activity not to be discouraged for fear of a heavy-handed, over-zealous and excessively empowered Electoral Commission. Furthermore, as the Minister acknowledged in Committee, the extensive powers that already exist have been used very rarely. Indeed, on Second Reading the Secretary of State for Justice confirmed that
“the existing powers have been used only once since the Electoral Commission was established nearly eight years ago.”—[Official Report, 20 October 2008; Vol. 481, c.50.]
Above all, let us not forget that the Bill and the Electoral Commission’s powers have a common aim: restoration of confidence in the political system through the eradication of unfair and underhand practices. It is against that backdrop that we cautiously welcome the Government amendments, which, in our view, represent a significant improvement on the Bill presented in Committee. In particular, the provisions that empowered the Commission to enter the premises of donees—including MPs—for the purpose of monitoring has been withdrawn, while the ability to apply for a search warrant for the purpose of investigating a suspected offence or legislative breach has been entirely removed. Nevertheless, a number of reservations remain, and there is more work to be done before we can be fully satisfied.
Schedule 1 contains the provisions of a new schedule 19A to the 2000 Act, which is inserted in the Act by clause 2(2). In respect of schedule 1, I reiterate our conceptual support for an enhanced role for the commission as a regulator, but that support is not unqualified, and attention is now required as we address the detail.
Amendments 46 and 47 are intended to inject clarity. In the light of the commission’s wide-ranging powers, it is sensible to define the limits of the relevant provisions carefully. The amendments are linked, and introduce a specified time limit for the period in which a retired officer is subject to the disclosure notice provisions. We are keen to avoid a scenario in which long-retired ex-officers of political associations are subject to disclosure notices in relation to some long-forgotten donation or action: it is both unreasonable and impractical to extend this power to very historical actions.
From a more practical perspective, the likelihood of comprehensive records or documents being kept by an officer for more than five years after his tenure is small and the power would be difficult to enforce, especially in view of the limited physical space in which party officials often find themselves working. We must also be aware of the financial and administrative burdens that we place on such individuals and organisations, as well as the fact that many of the individuals concerned will have left such offices altogether and may even have left the country.
What concerned the Minister in Committee was that, given the wording of the amendment that we proposed then, officers of more than five years’ standing could be excluded even if they were still serving. That was clearly not our intention. We have taken this opportunity to hone the earlier amendment, proposing amendments 46 and 47 to address its deficiencies. They address the point made by the Minister by removing the ability to serve a notice on an ex-officer who has been retired from the post for five years or more, while not limiting the ability to serve a notice on any current officer. An additional benefit would be the encouragement of expedient and efficient issuing of notices by the Electoral Commission. If the commission does not find grounds for investigation within five years of an officer’s retiring from a post, it is normally the fault of the commission rather than the individual or group.
Let me repeat that we are dealing with unpaid volunteers in our associations who involve themselves in politics because they want to give their time freely for what they hope will be the better of our society. We must, as far as possible, encourage them in that, and not put them off by unnecessary and burdensome liabilities. To that end, I intend to press amendment 47 to a Division.
The background to Government amendments 11 to 22 is contentious. Great concern has been expressed throughout the passage of the Bill about the excessiveness of the new “powers of entry” regime. Prior to the amendments, the Bill would have extended the Electoral Commission’s existing powers of entry under section 146 of the Political Parties and Electoral Reform Act to include other bodies and individuals such as donors and MPs. Quite simply, hard-fought personal liberties—specifically privacy—were at stake. Moreover, we were greatly concerned about potential erosion of the willingness of law-abiding citizens to donate to political parties and engage with the political system. A single abuse of the entry powers—perhaps the entering of a suspected but innocent person’s home—could have had grave consequences for donations generally, thus damaging the general aims of the Bill.
The Government amendments remove from the Bill the commission’s excessive power to enter the premises of regulated donees, regulated participants, candidates at an election and election agents. However, they replace the removed passage with a new paragraph (1A) which retains the commission’s ability to enter the premises of a registered party, a recognised third party, a permitted participant, a members’ association, or an organisation or individual formerly falling within any of those groups. The Bill will still permit the commission to enter premises other than those excluded by Government amendment 11 for the purpose of carrying out its functions, and it may then inspect documents relating to income and expenditure. Government amendments 12, 18 and 21 are consequential, and ensure that the remaining provisions of the schedule are consistent with the change.
On 11 November last year, in Committee, the hon. Member for Cambridge (David Howarth) expressed concern lest the wholesale removal of entry powers in relation to all donees, as proposed by what was then our amendment 102, would go too far and actually reduce the powers of the commission. In particular, the removal of “donees” from the paragraph would remove members’ associations—along with MPs—from the ambit of the provision. Government amendment 11 addresses that concern by including members’ associations in new paragraph (1A)(l)(d). The commission itself has also confirmed that the power conferred in Committee was not essential for its purposes.
We are now close to a position that is acceptable to all in terms of entry powers. Accordingly, we welcome this significant Government climbdown and the reduction in the commission’s power, and we are pleased that the ability to invade the privacy of MPs and other individuals will be removed. Even with these amendments, the commission will still possess significant powers to ensure it is equipped to tackle offences and infringements of the 2000 Act. Indeed, the drafting essentially preserves the status quo under the Act while removing the contentious provisions. To that extent, these amendments represent a significant retreat from the menacing position proposed in the Bill presented in Committee and return a much-needed balance to the schedule.
As amended by Government amendment 11, schedule 1 would make reference to those people “authorised by the Commission”. Such people are very important, and almost all the powers granted to the commission are available to these individuals. Unfortunately, there is no reference in the Bill to what constitutes a person “authorised by the Commission”. Considering the great powers placed in their hands, we consider that it would be better if they were a defined group of persons.
Amendment 52 proposes a solution, and defines
“a person authorised by the Commission”,
and who may be authorised by the commission to exercise its powers under the schedule. Who such a person can be has been intentionally restricted to high-level employees of the commission. In Committee on 11 November, the Minister expressed concern that this would be too “restrictive and inflexible”. However, the Minister went on to address this concern by confirming:
“The commission has no intention of using this power lightly”.––[Official Report, Political Parties and Elections Public Bill Committee, 11 November 2008; c. 175.]
Reconciling these two statements, I ask this question: is it not sensible that a power that will be rarely used, and employed only to tackle serious cases, is exercised only by the more senior members of the commission? It seems entirely reasonable to expect the commission to send a senior individual, ensuring that both the commission and the subject of the search take the process seriously. As things stand, the commission could theoretically send the cleaner along. Any lack of flexibility caused by this amendment reflects the need to exercise caution when exercising commission powers.
Government amendment 13 represents another progressive development in an area that was hotly disputed in Committee. First and foremost, it removes the power of entry by warrant introduced by paragraph 3 of schedule 1. This is significant, and shows the progress we have made in departing from the draconian provisions of the original Bill. Without this amendment, the Bill would permit entry, by force, on to the premises of MPs and other individuals. Given recent events, I hardly need to remind hon. Members how contentious that power was; it was excessive and had the potential to be used disproportionately. In addition, the amendment replaces the entry by warrant provision with a more acceptable measure: the ability for the commission to apply for a court order that documents be released. The commission may apply for a court order when it has exhausted the request by notice procedure in paragraph 2(2). We support this measure, and believe that it is a helpful last resort when the commission is confronted with a reluctant subject of a proper investigation. The hurdles in place before an order can be made also seem adequate, and the commission must show that there are “reasonable grounds” to suspect that a person has committed an offence under the 2000 Act.
Government amendments 14, 15, 17, 19, 20 and 22 are consequential amendments ensuring that the Bill is internally consistent in the wake of the changes. Despite our general support for the removal of the warrant system and the introduction of court orders, we have two concerns and have tabled amendments to Government amendment 13 accordingly.
The first of our amendments has been introduced because we believe that the High Court is a more suitable venue for hearing an application than the county court. A higher judicial threshold places a greater obligation on the commission to ensure that the reasoning behind its application is legally sound. A judge in the High Court would subject any arguments to more thorough scrutiny than could be expected from the county court. It is important that a strong check is placed on the issuing of disclosure orders, ensuring that any such order is proportionate and justified. We remain hopeful that the use of orders will be infrequent, and that this higher threshold will therefore not place any excessive burden on the commission or the High Court. Nevertheless, when such an order is required, the superior scrutiny of the High Court will be beneficial.
Our second amendment to Government amendment 13 addresses our concern that no specific time limit is given for compliance with an order once it is served. The Government amendment simply states that an order will require delivery of the documents
“within such time as is specified in the order”.
As we have argued in relation to other provisions in the Bill, we recommend that a minimum 28-day limit should be placed on all compliance requirements in schedule 1. There should be a sufficient and clear period during which those served with a disclosure notice can locate the documents and information specified under the notice, and provide it to the commission. Effort should be made to ensure that individuals do not fall victim to the Bill’s penalty regime because of unforeseen delays and an uncertain deadline. With a 28-day limit in place, subjects will know how long they have to comply, and can work to the deadline without fearing that the commission might place them under an unrealistic deadline.
Amendments 2, 3 and 9, tabled by the hon. Member for Leeds, North-East (Mr. Hamilton), deal with the commission’s power under the Bill to enter and search premises by warrant. The amendments are an alternative to amendments tabled by the Government, which remove the powers of entry and search by warrant, and I believe they have effectively been superseded.
Amendment 57 would provide that subjects for search are provided with a copy of the authorisation for the search. It is important that individuals or groups who are subject to this power of the commission have the full details of the search. A copy of the authorisation is important for them to decide whether they wish to access avenues of appeal and redress. The amendment fortifies vital safeguards, and helps to prevent the abuse of powers by the commission. Providing copies of the authorisation documentation ensures that the propriety of the search is asserted, and that the subject can confirm the details of the search. Further, leaving a copy allows for cool and considered review of the warrant away from the heat of the moment, and it prevents a simple flash of paper when the recipient is in shock from the entry process. In the heat of the moment, it is possible that the shock of the entrance could counteract any explanation of the search, however thorough and clear the commission believes it to be. Further still, there is no guarantee that a relevant person will be at the premises when it is searched. For example, the cleaner or an office junior might be the only person present, and as such not be qualified to fully comprehend the explanation, let alone communicate it to someone more senior. In Committee on 13 November, the Minister considered this issue and promised to return to it on Report if necessary, so I would be pleased if he were now to give us his views on it.
The whole House supports the principle of proper entry and inspection, and, as the hon. Member for Huntingdon (Mr. Djanogly) said, there is a desire for that to be proportionate. The discussion among all the parties currently represented in the Chamber reflects that aim, and it is interesting that the commission itself in its briefing supports the line being taken.
It is right to go down the court order procedure route. I have been a Member of this House for a long time, and I well remember the days before we had the Electoral Commission. Whatever view one takes of the record of the commission—I do not feel qualified to make a judgment on that—the fact is that there is a consensus that we need a commission. It must be an independent body, but it also works within a framework laid down by the House of Commons.
What has been said in this debate, about Government amendments 11, 12 and 13 in particular, reflects the intention to put a measure in place that can be properly enforced by inspecting premises and, if necessary, bringing the individual or individuals concerned to justice.
I, too, welcome the Government amendments in this group. As the hon. Member for Huntingdon (Mr. Djanogly) said, there was widespread concern in the House not only about the extent of the powers being granted to the commission, but about the way in which those powers were to be exercised by a warrant process that did not contain much accountability. From the start of the debate on this matter, the commission has conceded the point; in evidence to us, it said that it would prefer a different sort of procedure. The way in which the Government have introduced the procedure in the amendments reflects well on what the commission asked them to do: to move to a different process whereby an application is made to a court for an order, the court checks that the order has been properly applied for and the circumstances are such that an order should be made, and the sanction is basically the one for contempt of court—rightly, anyone who defies a court order to act in the way that the commission wants is asking for trouble. That is a far more proportionate, accountable and open way of proceeding.
On Government amendment 11, the hon. Gentleman mentioned my concern in Committee that proposals to exclude vast swathes of the people who were affected by the commission’s powers would go too far and we would end up with less regulatory coverage than there is now. I am entirely satisfied with the Government’s response on that matter, for precisely the reason that he mentioned—the new drafting covers the cases I had in mind.
I can offer the hon. Gentleman some comfort in that, compared with the previous debate, I agree with the Conservatives’ amendments 46 and 47. He rightly says that there is a need for some sort of statutory limitations on this sort of regulation; we cannot have people who are long retired still facing the prospect of having action taken against them under these powers. For the sake of certainty and clarity, it is right to have a cut-off point, so I am with him in his principle, which is right, and I will support him in the Lobby if he manages to secure a vote on this particular point. However, I would prefer a time limit of six years, rather than five, simply because—this goes back to the previous debate—that would be more in line with the normal limitation times used in law.
On amendment 52, the hon. Gentleman is also right to say that there ought to be a specific list of people of a specific degree of seniority who can act on behalf of the commission. Simply making provision in respect of anyone to whom the commission might delegate gives too broad a discretion. This ought to be controlled by not only the commission’s views as to what is right, but by statute, and I am perfectly happy to support what he said on that, too.
As for what the hon. Gentleman said about the High Court, I do not wish to repeat what was said in a previous debate. His proposal might be putting too much of a burden on High Court judges, but this is a different case from the one in the previous debate; there might be a case for saying that instances of sensitivity would be involved where someone defies a court order and the appeal might, thus, be more appropriately heard at a higher level than a simple fixed penalty notice matter would be.
I am very happy with the way in which this debate has panned out. The starting point was not right, had many difficulties and was inadvertently threatening. Nevertheless, some of the remedies suggested from various parts of the House turned out to be worse than the disease. I am glad that we have ended up at a point where we can all agree that the regulation being proposed is proportionate and right.
I commend the hon. Member for Huntingdon (Mr. Djanogly) on his mastery of the thesaurus. So far, he has managed to characterise what I regard as our continuous search for a consensus on, and improvement in, this legislation first as poorly structured and now as a “climbdown”. I hope that when he next has recourse to the thesaurus, he will find it in his heart to say that this is a commendable effort to improve the integrity, scrutiny and accountability of our electoral process—that is just a suggestion.
That has cheered me up immensely, and I am grateful to the hon. Gentleman. I shall give him some further comfort, but he will have to wait a bit for it, because I wish to deal first with the two sets of Government amendments. As hon. Members have said, they significantly overhaul the commission’s powers of entry in schedule 1, and I believe they will be universally welcomed by the House.
Government amendment 11 replaces paragraph 1(5) to new schedule 19A to the Political Parties, Elections and Referendums Act 2000—that new schedule is contained in schedule 1 to this Bill—with new paragraph 1A. The new paragraph differs from paragraph 1(5) by specifying a more restricted list of organisations and individuals to whom the commission’s powers of entry and inspection for the purposes of carrying out its functions will apply—the list includes registered political parties, recognised third parties, permitted participants in a referendum, members associations and any former member of any of those categories. The power can be exercised by the commission for the purposes of carrying out its functions, but it does not authorise the use of force to enter premises.
As hon. Members have said, the effect of the amendment is that the commission will not have the power to enter the premises of the following: candidates at an election; election agents; permitted participants; and regulated donees, including MPs—with the exception of members associations. The financial affairs of members’ associations are likely to be more complex than those of regulated individuals, so retaining the extension to the existing power in section 146(3) of PPERA in relation to this group will help the commission to ensure transparency in supervising its activity. The provision has been amended to remove Members of Parliament from the scope of the power, but I must make it clear that this does not create any specific exclusion for House of Commons offices, and that reflects the approach towards this power taken by the 2000 Act and the approach taken towards powers of entry more widely in legislation. Should the commission require entry to a parliamentary office—for example, where a party has chosen to keep its records in a Member’s office or a member’s association has been run from a Member’s parliamentary office—it advises that it would seek access only through the appropriate channels, and in the House of Commons, that would be through the Speaker.
We believe that it is important to retain this limited power of entry for the commission to enter premises and inspect documents for the purposes of carrying out its functions. Although the commission has generally relied on voluntary disclosure and consensual meetings to discuss and review financial information, having this supervisory power, in itself, may have been an effective backstop in helping to ensure that supervised individuals comply with regulatory requirements. For the avoidance of doubt, may I emphasise that the commission’s power in schedule 1 to the Bill to require the disclosure of documents relating to income and expenditure from all supervised individuals, including regulated donees, will remain?
The amendment will largely restore this power to the equivalent provision in the 2000 Act, although there are two sensible and limited changes to the existing powers. First, the power will be available in relation to members’ associations, as I have explained. Secondly, it will be available in relation to organisations or individuals who formerly used to fall within any of the categories that I have mentioned—those listed in new paragraphs 1A(a) to (d). This latter change brings the power into line with the existing power under the 2000 Act to request documents that applies to former members of the appropriate categories. We see no sensible reason for the existing anomaly between the two powers to seek information.
Our approach will also help to prevent a situation in which the commission has to cease to examine an organisation’s affairs midway through a compliance check simply because the organisation has taken steps to remove itself from one of the categories subject to the power. Hon. Members will recall that we took steps in Committee to help to ensure that this power would be exercised reasonably by tabling a Government amendment to prevent the commission from using its routine monitoring powers of entry in connection with an investigation, and that safeguard remains in place. The commission have provided assurances that they expect to use the power very rarely.
Amendments 12, 16, 18 and 21 are consequential and simply seek to remove all references to paragraph 1(5) from new schedule 19(a) and replace them with a reference to the new paragraph 1(a).
I hope that the House will agree that these amendments address the concerns raised extensively on Second Reading and in Committee about the commission’s powers of entry and inspection. I believe that they do so without compromising the commission’s essential ability to carry out its work effectively, and I hope that they will be welcomed by the House.
Government amendments 13 to 15, 17, 19, 20 and 22 make changes to the provisions on the commission’s powers of entry by warrant. These amendments are also intended to address concerns that were widely expressed on Second Reading and in Committee, and I hope that they will also be welcomed by the House. The commission has indicated that it would be content to consider an alternative approach to the provision in the Bill that would enable them to apply for a warrant to enter premises provided that it met its objective of being empowered to investigate more effectively. We believe that the proposals contained in Government amendment 13 will meet that objective, but will also meet all the concerns that have been expressed about the existing provisions at various stages of the Bill’s progress.
The proposals have been discussed with the commission at all stages of their development. Government amendment 13 would remove the power set out in paragraph 3 of new schedule 19(a), which enables the commission to apply to a justice of the peace for a warrant to authorise entry and search of premises in connection with an investigation. It would replace that power with a power enabling the commission, in cases in which a person has already refused to provide documents, to apply to the court for an order to require disclosure of the previously requested documents in order to enforce the commission’s original notice. The court which issues an order may not, when making an order or dealing with any failure to comply with that order, use this power to authorise the commission to enter premises to obtain the documents. This is the key difference between the warrant power and this new proposal, and I want to be as clear as I can about that.
The court order is intended to add an extra and very important layer of compulsion to the commission’s power to request documents. It is vitally important that the initial request from the commission is not the end of the story for someone who has documents that are relevant to an investigation. Equally, as Members on both sides of the House have made clear, it is important that we do not go too far in the opposite direction. We have listened very carefully to the concerns that have been expressed about the warrant power, and that is why, on reflection, we have decided to remove the court’s ability to issue a warrant to authorise entry of premises by the commission. It is important that the new power is subject to suitable and appropriate safeguards.
A court order would not be issued automatically on an application being made by the commission. The commission’s representative must first demonstrate on oath that there are reasonable grounds to suspect that there has been an offence or a contravention under the Act; that there are documents referred to in the disclosure notice that have not been produced; that these documents are reasonably required by the commission for the purposes of investigating the suspected offence or contravention; and that the documents are in the custody or under the control of the person against whom the order is issued. Those are extensive safeguards. When seeking an order, the commission will serve notice on the individual or organisation against whom the order is sought in order to ensure that they are represented at the hearing of the application for the order, and the court will consider the application under ordinary court rules governing applications for court orders, and it will be able to decide whether oral or written evidence is most appropriate in each case.
Failure to comply with a court order would constitute contempt of court. It may be a criminal offence under paragraph 13, but the same breach cannot be penalised by proceedings brought both for contempt and for the paragraph 13 offence. If someone refused to comply with the court order and the commission took the view that it was necessary to obtain the documents for an investigation to continue, it would have no power to seek entry on its own account in order to obtain documents. Instead, in practice, the commission would, if it felt it appropriate to do so, bring the matter to the attention of the police who would consider whether they were willing to use their power under the Police and Criminal Evidence Act 1984 to apply to obtain a warrant. That would be a matter for the police to consider in individual cases.
As now, the commission would not be able to rely on the police to obtain a warrant to search premises in connection with offences that are triable summarily only, as the power to apply for a warrant under PACE does not apply to such offences. Offences under the 2000 Act that are triable summarily only are set out in schedule 20 of that Act. Examples include section 146 offences of intentional obstruction of a person seeking to enter premises on behalf of the commission, and section 148 offences of failing, without reasonable excuse, to provide information reasonably required by the commission.
I have gone into these matters at some length because I know how important they are to the House. I hope that hon. Members will be reassured by the safeguards that I have set out. I am sure, however, that hon. Members will agree that the investigatory powers that are contained in amendment 13 are necessary to enable the commission to regulate effectively. Of course the corollary of that is that the Electoral Commission must use the investigatory powers at its disposal responsibly. It is for that reason that we tabled several amendments in Committee to require the commission to issue guidance on its use of its investigatory powers and to provide information in its annual report on that usage. Those safeguards remain in place.
Amendments 14, 15, 17, 19 and 22 are consequential, arising from amendment 13. Amendments 14 and 15 replace references to documents taken possession of, as under a warrant, with a reference to documents delivered in compliance with a court order. Amendments 17, 19 and 22 replace references to a warrant with references to an order. Amendment 20 removes the requirement for the commission to provide information about its use of warrants in the guidance that it is required to issue on the use of its investigatory powers.
I will now turn to amendments (a) and (b) to Government amendment 13. Government amendment 13 would remove the powers of search and entry by warrant and replace it with a power for the commission to seek a court order requiring enforcement of its disclosure notice. The effect of amendment (a) would be that consideration of the commission’s application seeking a court order to enforce its disclosure notice would rest with the High Court rather than with a county court as Government amendment 13 provides.
I appreciate the reasoning behind this amendment, which is to ensure that applications for court orders are subject to thorough scrutiny at the appropriate level of jurisdiction. As we have discussed, it is standard practice for orders to enforce disclosure notices in civil cases to be issued by a county court, which is why the clauses have been drafted in this way. Although now overtaken by Government amendment 13, I appreciate that in Committee the Government committed to amending the Bill so that the power to issue a warrant to authorise entry and search of premises would rest with the High Court rather than with a justice of the peace. However, orders for disclosure of documents by their nature are more likely to be sought than warrants for entry of premises, and so any changes to standard practice may have an unnecessary impact on the work load of the High Court unnecessarily. If the result of that were to be to prolong the time period between the date on which an application is made and that on which it is considered, I can see two obvious disadvantages. One, it might slow down commission investigations, which could impact on the effectiveness of those investigations. Secondly, there might also be adverse consequences for those under investigation. The longer it takes for an order to be issued, the longer the investigation is likely to be and the greater the uncertainty for the individuals or organisations concerned.
There could be other unforeseen consequences in providing for orders in these cases to be issued by the High Court. I will want to look into that. But, as I say, I understand the reasoning behind this amendment and I am prepared to consider further whether it would be helpful and practicable to accept it. We would need to consult interested parties, including the Lord Chief Justice, before we can make an informed decision whether it would be appropriate for consideration of these applications to rest with the High Court. I agree therefore to consider the amendments, but I cannot at this stage make any firm commitment one way or the other about whether we will be able to take them forward.
I want to resist amendment (b) to Government amendment 13, which would require those served with a disclosure notice made by a county court under the power set out in paragraph 3 of new schedule 19A to comply with the terms of that order within 28 days. I notice that the intent is very similar to that of amendment 50. Of course, I agree that those who are subject to a disclosure order need to be given time to comply with it and that they need to know how long that period is, but that is why Government amendment 13 provides for a disclosure order to specify a reasonable period of time within which the person to whom the notice is given must comply.
I believe that when making a disclosure order, it is appropriate to give the court the flexibility to vary the period of compliance depending on the individual facts of each particular case and the nature of the application made by the commission. For example, the court might need to allow a longer period for the production of documents or the provision of information in some instances than in others. However, when a request is time-critical—particularly when there is concern that the success of an investigation might be prejudiced if it is not obtained speedily—a period of less than 28 days might be appropriate. A longer period might be appropriate when a large amount of documentation is sought. Given the range of documents and information that could be covered by a disclosure notice, I do not think that a one-size-fits-all approach is suitable and therefore I do not think that we should tie the court’s hands in the way that the amendment proposes.
I do not think that there should be any concern that failing to accept the amendment will cause uncertainty about the time periods within which a person served with an order must comply. The Government amendment requires that the order itself must stipulate the time for compliance. That will be a specific date and it will be clear to the person served with the order. I hope, for those reasons, that the hon. Member for Huntingdon will withdraw amendment (b).
I now turn to Opposition amendment 57, which is now redundant as we have removed from the Bill the provision that would have allowed the commission to apply to a court for a warrant to search premises in connection with an investigation. Amendment 52 would require a person entering premises under the power of entry set out in paragraph 1 of schedule 1 to be either an employee at managerial level at the Electoral Commission or a police officer. As I said in Committee, authorisation of the use of the power by a manager at the commission would in practice be embedded in the commission’s operation of the power.
I would expect entry under the power of entry that the commission is granted in the Bill—it is largely the same as its existing power of entry, which, incidentally, it has never used—to take place very rarely. For that reason alone, I expect that senior management would be fully involved in any decision to use the power. However, to set out in statute that an entry could be carried out only by a senior manager would be unnecessarily restrictive and inflexible. In order to fulfil its duties effectively, the commission must have the ability to delegate entry and inspection duties to staff below managerial level, where appropriate.
The commission, we are assured, has absolutely no intention of using the power lightly. We know that it is aware that entering premises is a significant step and it will operate the power responsibly, as it has done with the existing power to date. We can be confident, I think, of that. In addition, we must keep in mind that the commission will have to exercise its powers in a way that is compatible with rights under the European convention on human rights—including article 8, which is the right to respect for private life—and that is compatible with general principles of public law.
I have been listening to the Minister’s argument very carefully. He says that the power will be used only in exceptional circumstances, that it will be a senior management decision and that he expects it not to be delegated down. Surely it will be much simpler just to put a provision in the Bill that it will not be delegated down.
It might be simpler, but it still might not be the right thing to do. That is the point. The point that I am trying to develop is that we need, as far as we possibly can, to give the commission the flexibility to exercise its powers proportionately. We do not want to fix in statute something that would tie its hands unnecessarily in all circumstances for the foreseeable future. The hon. Gentleman’s colleague, the hon. Member for Huntingdon made it quite clear—I agree with him—that we are not legislating just for the commission. We are legislating for the future and we think that it is wrong to proceed on the principle of trying to tie the commission’s hands at every point, for the reasons that I already set out at great length when the hon. Member for Wellingborough (Mr. Bone) was not in his place. I am happy to discuss them with him outside the Chamber.
The commission is aware that inappropriate use of the power would leave it open to possible judicial review. It has taken steps to employ suitably skilled staff in the fields of enforcement and compliance to ensure that they are all equipped adequately to carry out their functions within the confines of the law. I have confidence, and I hope that the House will have confidence, that the commission will only authorise staff with the appropriate skills and expertise if it feels, on those rare occasions, that there is a justification to use this power of entry. I hope that hon. Members will feel sufficiently reassured.
I now turn, finally, to amendments 46 and 47, which seek to amend paragraph 1(2) of proposed new schedule 19A, which sets out the commission’s power to issue disclosure notices. I shall deal with them together. They are largely identical to amendments tabled in Committee. Together, they seek to place a time limit on the commission’s powers to issue a disclosure notice. The hon. Member for Huntingdon set out his concerns very cogently and in Committee I agreed to consider the issue further. We have now done so in close and careful consultation with the Electoral Commission, which has confirmed that a time restriction on the power to issue a disclosure notice under paragraph 1 of proposed new schedule 19A is not likely to be a problem in practice.
The paragraph 1(2) power to issue a disclosure notice relates to the commission’s supervisory role so it is very unlikely that it would need to issue a disclosure notice to a person who more than five years previously had been a person to whom paragraph 1(2) applied. I resisted the amendment in Committee on the basis that it was unlikely that the commission would need to go back further than five years, but we could not rule out the possibility and we were reliant on the commission’s exercising its powers reasonably and having regard to the general principles of public law before issuing disclosure notices. I still believe that there is not a real problem to be solved and that as a matter of principle we should not place unnecessary constraints on the commission’s powers. However, I listened carefully to what the hon. Gentleman said and I take his point that keeping audit trails for more than five years might be unduly onerous on people who are often volunteers and who might have moved on from the period of their life in which they took part in such voluntary activity.
We have received a reassurance from the commission that placing a restriction on the paragraph 1(2) powers such as that suggested by the hon. Gentleman is unlikely to be a problem in practice, and so I am happy to consider with parliamentary counsel what amendments could and should be made to the Bill properly to reflect the intention of the amendment. The hon. Gentleman will understand that because of the significant number of Government amendments, we have not been a position to do that job of work just yet. However, we will do so at the next available opportunity. I hope that he will understand that we felt it necessary to seek and secure the commission’s views before proceeding.
For the avoidance of doubt, I am only agreeing to consider an amendment to the power under paragraph 1(2) that enables the commission to issue a disclosure notice in relation to its supervisory role. I think that that is what the amendments seek. The commission has emphasised—I want to make this clear—that any such time bar on requests for information under paragraph 2 in relation to a suspected offence or contravention could cause difficulty, so we are not considering any changes to that power. I hope that on that basis and with those assurances, the hon. Gentleman will withdraw amendments 46 and 47.
We welcome the Government’s significant shift on many of the provisions to a position that we basically support. I appreciate the Minister’s agreement this evening to review the role of the High Court.
However, there remain issues that we will want to look at in detail when the Bill goes to the other place. The Minister has just addressed the main one; we are pleased that he now sees that there is a case for offering protections to non-serving association officers, who normally will have served on a voluntary basis. We had great concerns that ongoing liability would be unfair to such people. Having heard the Minister’s explanation, and his promise to table an amendment in the other place, I will not press amendment 47 to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 11, page 17, leave out lines 5 to 13 and insert—
‘Powers of entry and inspection
1A (4) This paragraph applies to the following organisations and individuals—
(a) a registered party or, in the case of a registered party with accounting units—
(i) the central organisation of the party;
(ii) an accounting unit of the party;
(b) a recognised third party (within the meaning of Part 6);
(c) a permitted participant (within the meaning of Part 7);
(d) a members association (within the meaning of Schedule 7);
(e) an organisation or individual formerly falling within any of paragraphs (a) to (d).
(5) A person authorised by the Commission may, for the purposes of the carrying out by the Commission of their functions—
(a) at any reasonable time enter premises occupied by an organisation to which, or an individual to whom, this paragraph applies, and
(b) having entered the premises, inspect any documents relating to the income and expenditure of the organisation or individual.
(6) This paragraph is subject to paragraph 2(6).’.
Amendment 12, page 18, line 1, leave out ‘paragraph 1(5)’ and insert ‘paragraph 1A’.
Amendment 13, page 18, line 5, leave out from beginning to end of line 9 on page 19 and insert—
‘Court order for delivery of documents
3 (1) This paragraph applies where the Commission have given a notice under paragraph 2 requiring documents to be produced.
(2) A county court or (in Scotland) a sheriff may make a 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 are documents referred to in the notice under paragraph 2 which—
(i) have not been produced as required by the notice (either within the time specified in the notice for compliance or subsequently),
(ii) are reasonably required by the Commission for the purposes of investigating the offence or contravention referred to in paragraph (a), and
(iii) are in the custody or under the control of the respondent.
(3) A disclosure order is an order requiring the respondent to deliver to the Commission, within such time as is specified in the order, such documents falling within sub-paragraph (2)(b) as are identified in the order (either specifically or by reference to any category or description of document).
(4) For the purposes of sub-paragraph (2)(b)(iii) a document is under a person’s control if it is in the person’s possession or if the person has a right to possession of it.
(5) A person who fails to comply with a 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).’.
Amendment 14, page 19, line 11, leave out from beginning to first ‘for’ in line 12 and insert
‘The Commission may retain any documents delivered to them in compliance with an order under paragraph 3’.
Amendment 15, page 20, line 29, leave out from ‘documents’ to end of line 30 and insert
‘delivered to them in compliance with an order under paragraph 3;’.
Amendment 16, page 20, line 37, leave out from ‘exercising’ to end of line 39 and insert
‘a power under paragraph 1A in relation to any premises’.
Amendment 17, page 20, line 40, leave out ‘or warrant’.
Amendment 18, page 22, line 28, leave out ‘paragraph 1(5)’ and insert ‘paragraph 1A’.
Amendment 19, page 22, line 32, leave out ‘a warrant’ and insert ‘an order’.
Amendment 20, page 22, leave out lines 33 to 36.
Amendment 21, page 23, line 11, leave out ‘paragraph 1(5)’ and insert ‘paragraph 1A’.
Amendment 22, page 23, line 15, leave out from ‘which’ to end of line 23 and insert ‘an order under paragraph 3—
(i) was applied for;
(ii) was made.’.—(Mr. Wills.)
Civil sanctions: Schedule to be inserted into the 2000 Act
Amendment proposed: 74, page 25, line 22, leave out ‘a county court’ and insert ‘the High Court.’—(Mr. Djanogly.)
Question put, That the amendment be made.
Amendments made: 23, page 36, leave out lines 39 and 40 and insert—
‘( ) Each report by the Commission under paragraph 20 of Schedule 1 shall contain information about the use made by the Commission of their powers under this Schedule during the year in question.
( ) The report shall, in particular, specify—’.
Amendment 24, page 36, line 42, leave out ‘has been’ and insert ‘was’.
Amendment 25, page 36, line 44, leave out ‘has been’ and insert ‘was’.
Amendment 26, page 36, line 45, leave out ‘has been’ and insert ‘was’.
Amendment 27, page 37, line 1, leave out ‘has been’ and insert ‘was’.
Amendment 28, page 37, leave out lines 3 to 6 and insert—
‘( ) This paragraph does not require the Commission to include in a report any information that, in their opinion, it would be inappropriate to include on the ground that to do so—
(a) would or might be unlawful, or
(b) might adversely affect any current investigation or proceedings.’.—(Mr. Wills.)
New Clause 13
Control of donations to holders of elective office: compliance officers
‘(1) In Schedule 7 to the 2000 Act (control of donations to individuals etc), at the end there is inserted—
Functions and liabilities of compliance officers
17 (1) A regulated donee who is the holder of a relevant elective office (the “office-holder”) may, by giving a notice to the Commission which complies with paragraph 18(1), appoint an individual as compliance officer for the office-holder.
(2) Where a notice under this paragraph is for the time being in force—
(a) any duty imposed on the office-holder by virtue of paragraph 8, or under paragraph 10, 11 or 13, may be discharged either by the office-holder or by the compliance officer;
(b) section 56(3), (3B) and (4) as applied by paragraph 8, and paragraph 12(1) and (2), apply to the compliance officer as well as the office-holder (so that either or both of them may be charged with any offence under those provisions);
(c) if the compliance officer makes a declaration under paragraph 13, paragraph 13(4) applies to the compliance officer instead of the office-holder.
(3) The compliance officer for an office-holder cannot be guilty of an offence under paragraph 12(1) or (2) in respect of any controlled donation received by the office-holder at a time when the notice under this paragraph was not in force.
(4) A person commits an offence if, at a time when a notice under this paragraph is in force in relation to an office-holder, the person knowingly gives the compliance officer any information relating to—
(a) the amount of any controlled donation made to the office-holder, or
(b) the person or body making such a donation,
which is false in a material particular.
Notices of appointment, renewal, alteration and termination
18 (1) A notice under paragraph 17—
(a) must be signed by the office-holder, and
(b) must contain a statement signed by the individual to be appointed as compliance officer confirming that the individual is willing to be appointed.
(2) A notice under paragraph 17 must state—
(a) the full name of the office-holder,
(b) the relevant elected office that the person holds,
(c) the office-holder’s home address in the United Kingdom, or (if there is no such home address) the office-holder’s home address elsewhere, and
(d) if the office-holder is a member of a registered party, the party’s registered name and the address of its registered headquarters.
(3) A notice under paragraph 17 must also state—
(a) the full name of the individual to be appointed as compliance officer,
(b) if the individual holds a relevant elected office, what that office is,
(c) the individual’s home address in the United Kingdom, or (if there is no such home address) the individual’s home address elsewhere, and
(d) if the individual is a member of a registered party, the party’s registered name and the address of its registered headquarters.
(4) Subject to the following provisions of this paragraph, a notice under paragraph 17 (“the original notice”)—
(a) shall be in force as from the date on which it is received by the Commission, but
(b) shall, subject to sub-paragraph (5), lapse at the end of the period of 12 months beginning with that date unless the office-holder or the compliance officer gives a notice to the Commission that they both wish the original notice to remain in force.
(5) A notice under sub-paragraph (4)(b) (a “renewal notice”) must either—
(a) confirm that all the statements contained in the original notice, as it has effect for the time being, are accurate; or
(b) indicate that any statement contained in that notice, as it so has effect, is replaced by some other statement conforming with the relevant provision of sub-paragraph (2) or (3).
A renewal notice must be signed by the office-holder and the compliance officer.
(6) A renewal notice must be received by the Commission during the period of one month ending with the year referred to in sub-paragraph (4)(b).
(7) The office-holder or the compliance officer may, at any time after giving the original notice, give the Commission a notice (a “notice of alteration”) indicating that any statement contained in the original notice, as it has effect for the time being, is replaced by some other statement—
(a) contained in the notice of alteration, and
(b) conforming with the relevant provision of sub-paragraph (2) or (3).
A notice of alteration must be signed by the office-holder and the compliance officer.
(8) A notice under paragraph 17 ceases to have effect on receipt by the Commission of a notice terminating it (a “notice of termination”) given by the office-holder or the compliance officer.
A notice of termination must be signed by the person giving it (but may be signed both by the office-holder and the compliance officer).
(9) Where a notice of termination is signed by the office-holder alone or by the compliance officer alone, the Commission must inform the other person as soon as is reasonably practicable.
Register of compliance officers
19 (1) The Commission shall maintain a register of all notices given to them under paragraph 17 which are for the time being in force.
(2) The register shall be maintained by the Commission in such form as they may determine and shall contain, in the case of each such notice, all the information contained in the notice as it has effect for the time being in accordance with paragraph 18.
(3) Where any notice is given to the Commission under paragraph 17 or sub-paragraph (5) or (7) of paragraph 18, they shall cause all the information contained in the notice, or (as the case may be) any new information contained in it, to be entered in the register as soon as is reasonably practicable.
(4) The information to be entered in the register in respect of any individual shall, however, not include the individual’s home address.”
(2) In Schedule 20 to the 2000 Act the following entry is inserted at the appropriate place—
“Paragraph 17(4) of Schedule 7 (knowingly giving compliance officer false information about donations) On summary conviction in England and Wales or Scotland: statutory maximum or 12 months. On summary conviction in Northern Ireland: statutory maximum or 6 months. On indictment: fine or 1 year.”’.—(Mr. Wills.)
“Paragraph 17(4) of Schedule 7 (knowingly giving compliance officer false information about donations)
On summary conviction in England and Wales or Scotland: statutory maximum or 12 months.
On summary conviction in Northern Ireland: statutory maximum or 6 months.
On indictment: fine or 1 year.”’.—(Mr. Wills.)
Brought up, and read the First time.
With this it will be convenient to discuss the following: amendment 5, in schedule 3, page 38, line 21, at beginning insert—
‘(A1) In paragraph 1 of Schedule 7 to the 2000 Act (prohibition on accepting donations from impermissible donors), at the end of sub-sub-paragraph (7)(c) there is inserted “, or a compliance officer appointed by the holder of a relevant elective office to act on his behalf.”’.
Government amendments 29 and 30.
The House will recall that we discussed the purpose of the new clause at some length in Committee—[Interruption.]
The new clause will be of interest to Members because it is designed to make their lives a little easier. After the discussions about whether a compliance officer should be able to be appointed, we do not think the new clause will allow a holder of elective office to appoint a person to act as a compliance officer for the purpose of ensuring compliance with controls in the 2000 Act. There is nothing in that Act to prevent the appointment of an individual to help with compliance, but the clause ensures that such appointments can be made on a statutory basis.
We do not consider it appropriate to compel holders of elective office to appoint a compliance officer. That would be an unnecessary burden on Members, where there may have been no need in the first place. However, as I said in Committee, we recognise that some will wish to make such an appointment. The clause as drafted is permissive and allows a holder of elective office to notify the Electoral Commission that they have appointed a compliance officer.
We have set out the details of what is required in proposed paragraph 18. It is self-explanatory, so I will not deal with it in detail—[Interruption.] The hon. Member for Huntingdon (Mr. Djanogly) will be even more relieved when I tell him that the clause adopts a common-sense approach. It does not absolve office-holders from responsibility for compliance with their obligations under schedule 7 of PPERA. The question of who will be liable for a breach of the requirements for reporting on and handling donations will depend, as so often, on the facts of the case, but both the office-holder and the compliance officer may be subject to criminal sanction where there has been a failure to comply with their reporting requirements. The only exception—
Three hours having elapsed since the commencement of proceedings on the programme motion, the proceedings were interrupted (Programme Order, this day).
The Deputy Speaker put forthwith the Question necessary for the disposal of business to be concluded at that time (Standing Order No. 83E). Question put, that the Clause be added to the Bill.
New clause 13 added to the Bill.
Four Electoral Commissioners to be persons put forward by parties
With this it will be convenient to discuss the following: amendment 87, page 4, line 3, leave out from beginning to ‘be’ and insert ‘A “nominated Commissioner” shall’.
Amendment 88, page 4, line 5, leave out ‘(a “nominated Commissioner”)’.
Amendment 89, page 4, line 7, leave out from ‘with’ to ‘at’ in line 8 and insert ‘15 or more parliamentarians’.
Amendment 90, page 4, line 9, leave out from ‘appointment’ to ‘whose’ in line 13.
Government amendments 31 and 32.
Amendment 91, page 4, line 19, at end insert—
‘( ) In subsection (2) a “parliamentarian” means a Member of the European Parliament, a Member of the House of Commons, a Member of the Scottish Parliament, a Member of the Welsh Assembly or a Member of the Northern Ireland Assembly.’.
Government amendment 33.
Amendment 92, page 4, line 26, leave out subsection (7).
Amendment 93, in clause 6, page 4, line 46, leave out ‘nine or ten’ and insert
‘one or two more than the number of nominated Commissioners multiplied by two.’.
The amendment, which unites all the minority parties in this House, stands in my name and that of my hon. Friend the Member for Moray (Angus Robertson) and other colleagues across the House, and it should also include signatures from the Democratic Unionist party. We, the minority parties of this House, are in effect and in fact the Governments of the different legislatures across the United Kingdom. The amendment is self-explanatory. We want the Electoral Commission, in regulating across the United Kingdom, to recognise the new reality of the UK in 2009: the multi-party, multi-legislature UK that we currently experience. It is no good for it simply to reflect this House—the old tired Westminster solution of the two main parties, with the Liberals acting as a sop for all the other minority parties. The amendments try to define that new system.
Let us take a cursory look around the United Kingdom. In this House, we have a majority Labour Government; in Scotland, we have a minority SNP Government and in Wales and Northern Ireland, we have coalitions of different parties. Different parties are in power throughout the United Kingdom. In fact, the only two parties involved in this debate who are not in power anywhere in the UK are the Conservative and Liberal parties, yet they will have a political commissioner nominee for the new commission. That is totally unacceptable to us.
If the Bill were just about this House, I would accept that what it proposed was the right way to proceed, given that we in the SNP are seven Members out of 646 Members of this House and all the minority parties combined amount to little more than 28 Members. If it were just about this House, having one political commissioner between the four parties would seem to be fair and reasonable, but the Electoral Commission has a remit beyond these green Benches. It serves all the legislatures, Parliaments and Assemblies throughout the United Kingdom, and the appointment of those political commissioners should adequately reflect and represent that.
Let us look at the situation in Scotland a little more carefully. We are described as a minority party in this House, and I accept that with seven Members out of 646, that is the case. However, it is not the case in Scotland. We are the largest party in Scotland by seats and by votes. We are the Government of Scotland. If we look at the last two by-elections in Scotland, we find that the Labour party won one—I see that the hon. Member for Glenrothes (Lindsay Roy) is in his place—and the SNP won one. The Conservatives narrowly held on to their deposit in one seat but lost it in the other. The Liberals lost both their deposits. Those parties are quickly becoming minority parties in Scotland, yet they will have a nominated political commissioner, who will be involved in regulating electoral law for the Scottish Parliament, while the party of Government in Scotland will not have such an appointee.
That is clearly absurd, unfair and bizarre, and it is totally unacceptable to us. It is as if we were to say to the Labour party, “Let’s have politically nominated commissioners, but you can’t have one.” That would be totally unacceptable to the Minister and his colleagues. I would wager that it would be unacceptable to the Conservatives were they to be told, “We’re going to have politically nominated commissioners. The Labour party can have one, but sorry, Conservative party, you can’t have one.” I am sure that had the Labour and the Conservative parties been allowed to have politically nominated commissioners and the Liberal party had not, that would be totally unacceptable to the Liberals. They would be standing with me, full of indignation about what had been suggested. This debate is about fairness and what is right.
I want to dispel the notion—we debated this in Committee at some length; I remember discussing it with the hon. Member for Epping Forest (Mrs. Laing), who I am sure is paying attention to everything that I am saying—that these politically nominated commissioners have nothing to do with the parties that are nominating them. What a lot of nonsense to suggest that they are somehow above politics and will be nominated by political parties only to give us the benefit of their experience and of their years in this House—“Aye, right”, as we say in Scotland. They are there as political nominees from those political parties, and they will have a role to play for those parties.
I am indeed paying close attention to every word that the hon. Gentleman is saying, many of which he said when we considered the matter in Committee. He is right to reiterate his argument now, but that does not make it any more correct than it was then. The fact is that if people of seniority, experience and wisdom are appointed to a body such as the Electoral Commission, they are not there to serve narrow party political interests, and to suggest that they are is to suggest that the entire political class is incapable of rising above party politics and acting for the common good and for the sake of democracy, which is what we really want.
I am grateful to the hon. Lady for that intervention. We have been round the houses on this issue. I challenged her on that point in Committee, and I challenge her again, because this is the key choice for all the political parties in the House. If it does not matter whether or not it is a Conservative Member who is nominating these political commissioners, I am sure that she will bypass her opportunity to nominate. I am sure that Labour Members will say, “If it’s just a bit of experience they want, we’ll not bother nominating anybody”, and the Liberals will do the same. I offered them that opportunity in Committee, and—surprise, surprise—they were not prepared to take up my generous offer, because they know, as I do, that we are talking about party political representatives on the Electoral Commission. They will all have one; we will not. That is the key to this issue. It is about fairness and ensuring that all the political parties get their right to nominate a political commissioner.
What is being proposed—I note the amendment also tabled by the hon. Member for Gosport (Sir Peter Viggers)—is that all the major political parties, Labour, Conservative and Liberal, will be allowed to nominate two candidates for political commissioners, who will all have, as is right, a place on the new commission. There is a fourth place reserved for all of the minority parties. How on earth the Social Democratic and Labour party and the SNP—Plaid Cymru and the Democratic Unionists cannot be with us tonight—can decide about how we should nominate one commissioner for the Electoral Commission is beyond me.
I am grateful to my hon. Friend for reminding me of that fact. I will come to that point, which is a good and powerful one.
I would not know how to organise and delegate for one commissioner from all those four very diverse political parties from different legislatures throughout the United Kingdom. Thankfully, however, it will not be left to me but to the hon. Member for Gosport, and I have no idea how on earth he intends to do it. According to the Bill, each of these four political parties—any party with more than two Members is constituted as a political party within the House—will be allowed to nominate two potential commissioners and then pass those nominations to the hon. Gentleman’s Committee—the Speaker’s Committee—to decide who that one commissioner will be. I have no idea what the criteria will be, or how that commissioner will be determined. I am interested to see how that matter will be resolved.
We have absolutely no problem whatsoever about working with the other minority parties in this House. In fact, we work together very effectively on a number of issues, but when it comes to the regulation of elections in Scotland, Northern Ireland and Wales, how on earth can a political commissioner from Northern Ireland have the knowledge, background and experience to look after elections in Scotland? It is just not possible.
Is it not the case that the electoral systems may be different? I am not sure whether the electoral law is identical, but the level of knowledge that would be required to cover at least three, possibly four, different legislatures would be extraordinary.
My hon. Friend is right. Northern Ireland has a very different political system of proportional representation from Scotland, and any political commissioner representing all the minority parties would have trouble ensuring that the different systems were represented effectively.
I come back to the issue of how the fourth commissioner will be decided upon. I do not envy the hon. Member for Gosport in that task, and I look forward to him giving even a scintilla of a hint of how the matter will be determined. If a former Member from Northern Ireland, for example, was to be a political commissioner, what on earth would they know about the Scottish parliamentary system and Scottish politics? I would have very little knowledge of what happens in Northern Ireland if that task were ever to fall on me, so I look forward to learning how the matter will be determined. It is almost an impossible task, so we have a serious problem.
Does the hon. Gentleman not agree that the key issue is how the matter will be perceived by the public? We know that the public hold Parliament and parliamentarians in contempt at the moment—[Hon. Members: “Some of them.”] In general, as a collective body—not as individuals, of course. Each of our constituents love us as MPs and trust us, but they hold the body of Parliament in contempt. They have never before held us in such low regard in my lifetime. We have to look at how this matter is perceived by people out there, because that is the issue, but, yet again, we are failing to do so.
The independents are not even recognised as a political party in this House, and that also applies to the hon. Member for Bethnal Green and Bow (Mr. Galloway), whose Respect party would not qualify for the arrangement for appointing a political commissioner.
The process is nonsense and is unworkable, given that there is no clear method of determining who will be the fourth commissioner. We must address that issue as a priority, which is why I have introduced what I consider to be an elegant solution to this problem and conundrum. It takes us beyond the green Benches and the shadow of Big Ben to all the other legislatures in the United Kingdom, because that is the basis on which we should start. It takes account of the fact that there are not just parliamentarians in Westminster, but in the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. The Electoral Commission must recognise that reality.
I have put forward what I consider to be measured and sensible amendments, even if I do say so myself, which set a threshold of 15 parliamentarians across the United Kingdom, which means that if a party has 15 parliamentarians, it should be entitled to nominate a party political commissioner to the Electoral Commission. The number of 15 parliamentarians is not excessive, and it is fair.
I support the principle behind the hon. Gentleman’s amendment, but I do not think that the solution is as elegant as he makes out. His threshold of 15 is too low because in practice it would mean four electoral commissioners for Northern Ireland, and five for the whole of Great Britain. If he wants our support on amendment 89, he would have to increase the threshold.
I am grateful to the hon. Gentleman for that intervention. I can see that 15 may seem a bit of a low threshold, but I am a reasonable guy and I would be prepared to reconsider it. We have to establish the principle that all Parliaments and all legislatures are important, and that they should be counted when it comes to determining such important tasks and roles. It is not good enough for the Electoral Commission to be the plaything of this House, because it belongs to all the legislatures of the United Kingdom. The amendment that I intend to press to a vote would put in place a system that involved parliamentarians from all the political parties. I would be grateful for the hon. Gentleman’s support for that.
I am grateful to my hon. Friend who, as usual, makes an important and powerful point. The legitimacy of the Electoral Commission is at stake, not just as a thing of Westminster, but as a proper organisation that reflects all the legislatures in the United Kingdom. That legitimacy will be put to the test by my amendments. The commission has to be seen to be serving every single Parliament and Assembly in the United Kingdom, and it is not good enough for it just to serve this House. That is why we have to vote this evening; we have to acknowledge that all the other legislatures and Parliaments are important and that they should be taken into account when the political commissioners are appointed.
An example of that complexity is that the legislative competence of the Welsh Assembly is determined by this place, by devolving individual powers through the wonderfully named legislative competence order arrangements. If the Minister gives me a concise, 100-word explanation of the legislative competence order provision and the 27 steps thereof, I will happily support the Government if the amendment is pressed to a vote; otherwise, I shall support my hon. Friend the Member for Perth and North Perthshire (Pete Wishart).
I am grateful to my hon. Friend. I can see the Minister itching to get to his feet to explain that, and waving to his civil servants to assist him in that task.
We are in a difficult situation and I do not envy the position of the hon. Member for Gosport. I would, perhaps, give him one little bit of advice, if he does not mind. The largest minority party in this House is the Democratic Unionist party, with nine Members of the House of Commons. Next, comes the Scottish National party with seven, then we have the SDLP and Plaid Cymru with three each. If I were the hon. Gentleman, my first port of call when deciding who the fourth commissioner should be would be the largest party. I know, as an SNP Member that if I were in the largest minority party and it was passed over for that role, I would be very disappointed. We would expect it to be a job for the largest party.
What is likely to happen? If the hon. Member for Gosport is approaching this matter as I know he will—diligently and with due care and attention—that position should be given to the Democratic Unionist party. There is no other way to deal with the matter than to award the role to the largest party. But what a shoddy way to do it—to award it to that party just because it is the largest. We would expect a member of the Democratic Unionist party, from another Parliament, to be our representative on the Electoral Commission. That is not good enough. It is nonsense, and an alternative must be addressed as a priority by the Minister.
At stake is the credibility of the Electoral Commission to do a job that reflects not just this House, but the reality of a multi-party, multi-legislature United Kingdom. That is the task and the test of these amendments. We will press the matter to a vote, and we encourage hon. Members who believe in fairness and who think that the whole UK should be recognised to support us. I am sure that if hon. Members consider the matter properly and carefully, we will get that support.
As the hon. Member for Perth and North Perthshire (Pete Wishart) knows, the commission has resisted the idea of any political party making nominations to the commission. However, like the Government and others in this House, I think that the commission got that wrong. It is right in principle that we include people with experience of political parties. They do not have to have been Members of Parliament, but such people should be members of the commission. I do not accept the hon. Gentleman’s point that because someone on the commission is a Labour or Liberal appointee, they will act as a Labour or Liberal party person. That is not how the system will operate in practice.
Quite frankly, if there were only two or three, it would not be earth-shattering. Having said that, I think that the hon. Member for Perth and North Perthshire made a good case about the difficulty in appointing the fourth commissioner. There is no question about that. I must confess—perhaps this is a dangerous thing to say—that I had assumed that the fourth commissioner might well be a nationalist, either Scottish or Welsh. However, it is obviously not intended that it always would be, and the hon. Member for Perth and North Perthshire made that case very well. Obviously Northern Ireland is a very important part of the UK, and inevitably it must be represented. He has encouraged us to consider the matter, and I hope that the Government will listen. There could be a commissioner from Northern Ireland, which is very different from the mainland in some respects.
There is a case for considering the fourth commissioner, because with due respect to the hon. Member for Gosport (Sir Peter Viggers), who will state his position shortly, if Labour, the Conservatives and the Liberals are going to have representatives, it seems difficult to imagine how one person can represent the minority parties. An interesting case has been made about that.
As my right hon. Friend knows, I was my predecessor’s election agent from 1983. I was astonished by the lack of knowledge of electoral law at the Electoral Commission. Not one of its representatives had stood as a candidate, been an agent or understood the basics of local funding of political parties. Not one of them understood how returns were filled in or the need to complete them within 28 days. I saw a shambles in Bathgate on the night of the electoral count, when we had to abandon the count at 5.30 am and recommence it at 12 o’clock. That was totally under the control of the Electoral Commission. Surely it is time that we got some real political knowledge and insight on the commission.
My hon. Friend makes a powerful point. We could go over the history of the matter, and as I said earlier, if we go back far enough it was all under the auspices of the Home Office. As has been said, we now have a hotchpotch of electoral systems in Scotland and elsewhere, with different ways of voting in different elections. There is considerable merit in being prepared to consider the matter constructively. As we know, power devolved is power retained, and this is not just about the House of Commons. As my hon. Friend says, it is about practicalities and how we conduct our democratic affairs. We do that, of course, through the parties.
The point made by the hon. Member for Livingston (Mr. Devine) about the lack of real life experience in the Electoral Commission is all the more important because the election he mentioned was won by Angela Constance of the SNP. Likewise, the Scottish Parliament counterpart of the hon. Member for Glenrothes (Lindsay Roy) is Tricia Marwick of the SNP, and that of the right hon. Member for Edinburgh, East (Dr. Strang) is Kenny McAskill of the SNP. That is all the more reason to back up the suggestion of the hon. Member for Livingston that there should be a proper, fair distribution of experience as well as of party. The example that he gives from the May election is absolutely right and justifies what my hon. Friend the Member for Perth and North Perthshire (Pete Wishart) said.
We had an unfortunate experience in Edinburgh, East, too. We had the highest number of spoiled papers, and various difficulties arose. I hope that we can consider the matter constructively, because it is not just about the Westminster Parliament. It is about Parliaments throughout the UK.
As I said in Committee, I have a great deal of sympathy with the position taken by the hon. Member for Perth and North Perthshire (Pete Wishart). The fundamental difficulty results from the lack of devolution of powers on electoral matters. There is a Boundary Commission for Scotland—that matter is devolved—but no Scottish Electoral Commission that covers the electoral law that applies to the Scottish Parliament. The situation is similar in Wales and Northern Ireland. The long-term solution is further devolution of those matters. In the meantime, we have to agree about what to do about the various anomalies that the hon. Gentleman mentioned.
I am listening to the hon. Gentleman’s long-term hopes, goals and ambitions. As we know, in the House of Commons “long term” really can mean long term. In the meantime, for the practical purposes of the debate, does he not agree with my hon. Friend the Member for Perth and North Perthshire (Pete Wishart)? We need fairness, that is all. We do not want a system that is cooked up in Westminster; we want fairness.
I do agree that that is necessary, and that the Electoral Commission’s credibility in carrying out its task, which covers elections to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, depends on its having a spread of people with intimate knowledge of what is going on in those elections. Not only fairness but effectiveness is needed.
The point about electoral systems has been well made. The systems used in Northern Ireland, Wales and Scotland are entirely different from those used for this House—more’s the pity, in the case of the Northern Ireland system. That shows the variety of problems that the commission faces. More than that, we are dealing with different political cultures. It is not just how people are elected that is different in this House from the Scottish Parliament, Wales or Northern Ireland. The multi-party nature of those assemblies makes politics different. We cannot understand a place’s electoral politics unless we understand the culture of its politics. That point is fundamental.
We must therefore consider how to deal with the current situation, which I hope is temporary. The principle suggested by the hon. Member for Perth and North Perthshire is right: the law must recognise the existence of the other parliamentary assemblies. We in this House are not the only relevant people. I am absolutely with him on that, and I am glad that he wishes to press to a Division the amendment that makes precisely that point, but I am afraid that I am with my hon. Friend the Member for Argyll and Bute (Mr. Reid) on the exact mechanism and numbers that the hon. Gentleman has chosen. If we were to require an unweighted number of 15 parliamentarians for a party to be represented, we would end up with nine political commissioners, four of whom would represent Northern Irish parties. One of those would be Sinn Fein, and it would be interesting to see whether it took up its position.
Not at all. On the basic principle proposed by the hon. Gentleman’s party, we will be with him in the Lobby. However, we must consider the practicalities of the numbers involved and the balance between the various parts of the UK. We need to find a practical way forward that recognises the principle of producing an Electoral Commission that is not excessively weighted in one direction or another.
As the hon. Member for Perth and North Perthshire said, we must recognise the multi-party, multi-parliamentary nature of our country. The Government’s proposal harks back to the days before the radical policy of devolution, of which the Labour party ought to be proud. They now need to understand the consequences of that policy right across the board, including in the Bill.
I wish to speak about amendments 31, 32 and 33, which I tabled as the hon. Member who speaks on behalf of the Speaker’s Committee on the Electoral Commission. The Justice Secretary then signed them, which technically makes them Government amendments, and the Minister needs to move them formally at the end of the debate.
The purpose of the amendments is to reduce from two to one the minimum number of candidates that the leader of one of the three major UK-wide parties is required to put forward in order to nominate a commissioner with a political experience. They have been tabled on behalf of the Speaker’s Committee, which, under clause 4, will be responsible for the procedure for appointing all electoral commissioners, including the four commissioners whom the leaders of political parties nominate.
The Speaker’s Committee is of the view that it should not be required to choose between names put forward by the three main parties, for two reasons. First, a party’s leader is the person best placed to choose who should represent that party. Secondly, the choice between two candidates might prove to be a false choice, with the dice deliberately loaded in favour of one candidate. If a party leader wishes to nominate more than one person, nothing in the amendments would prevent that, but the Speaker’s Committee sees no reason for requiring multiple nominations. The Speaker’s Committee takes the view that its role should be to assess a nominee’s suitability to be an electoral commissioner and, on that basis, to approve or reject him or her.
The amendments do not affect the position on nominations made on behalf of parties other than the three main parties. In any case, it differs from the position on the main parties. It is greatly hoped that the other parties’ leaders can reach agreement between them on a single nominee. If they cannot, each one will have the right to put forward one or more names and, in circumstances in which more than one leader of a minor party chooses to exercise that right, the Speaker’s Committee will have to choose between the nominees.
The Speaker’s Committee agrees. That is why it has concurred with the Government’s proposals to have electoral commissioners with political experience. It believes that the best way of appointing such people is for party leaders to nominate a person who would be approved or not by the Electoral Commission. The hon. Gentleman makes a fair point and the Speaker’s Committee has shared the view for some time that the Electoral Commission would benefit from direct party political input.
How does the Chairman personally envisage the Committee going about making the choice? Let us assume that all the numerically minor political parties nominate sensible, qualified people. It beggars belief that there is some fair way of choosing. Frankly, a lottery would be fairer and it would have some logic. How does the hon. Gentleman envisage approaching the matter? I am genuinely bewildered and fascinated to know how, under his stewardship, he would choose between the Democratic Unionist party, the Social Democratic and Labour party, the Scottish National party, Plaid Cymru and so on. How would he do it?
First, the Chairman of the Speaker’s Committee is technically the Speaker. He is not always present, but he is technically the Chairman of the Committee. The Electoral Commission was created with the intention of its being independent, but it has to be responsible for pay and rations to somebody. The House decided that the “somebody” would be the Speaker’s Committee on the Electoral Commission, and that it would seek to carry out its duties fairly and responsibly. To date, I have heard no criticism that the Speaker’s Committee is partial or unfair. Yes, a heavy duty is placed on the Speaker’s Committee, and it will fulfil it as fairly and properly as possible.
We have every confidence in the desire of our friends and colleagues to be impartial—no one has suggested otherwise—but how do they demonstrate that? The hon. Gentleman has avoided that question. He has not said how, under his stewardship or direction, or through working with the Speaker, the Committee would embark, in the little garret room in which they meet late at night, on resolving the matter. Would members discuss the person’s qualities? Would they have a secret ballot? Would they say, “Well, it’s the DUP’s turn, and the DUP represents quite a different electoral tradition from that in Scotland, England and Wales”? That is true, incidentally—they have some strange practices over there, which are accepted by custom and practice—
Order. I think that the hon. Gentleman has made his point and asked his question.
There are two main theories to which human beings subscribe. I think that the hon. Gentleman subscribes to the conspiracy theory. I personally subscribe to a constructive theory of life. The Speaker’s Committee has not yet had the duty placed upon it. As and when that happens, I am confident that it will try to carry it out as fairly and impartially as possible. I am not trying to avoid answering the hon. Gentleman’s question, but it is hypothetical at this point.
On the substantive points in the amendments, I understand that the key attribute of people that the parties nominate should be expertise, but surely there is a case—I am open minded about it—for other parties having some say over a choice. We know that there are people in all parties who, although they have expertise, may be tribalist or partisan, and that others would find it easier to work with members of other parties. Perhaps members of the Speaker’s Committee could reach a judgment about that, which would elude a party leader.
Much of the legislation that deals with the Electoral Commission is not clear. Several matters have been left incomplete in specifying how exactly it and the Speaker’s Committee will operate. It has been necessary over the years for the Speaker’s Committee to be a little creative in its operation. I am sure that the Committee will listen carefully to everything that has been said in the House and will take account of it.
With those few words, I ask hon. Members to support the amendments.
I am concerned by the way in which we appear collectively to portray what the political commissioners will do on the Electoral Commission. I hope that no one envisages that the politically nominated electoral commissioners—not politicians on the Electoral Commission, because they cannot be that—will fervently bat for their side all the time they serve on the commission. If that were so, it would appear not only to undermine what the Electoral Commission is about, but further to undermine—if anybody wanted to do this—how members of the public perceive those who hold political office generally. As far as I understand it, the whole idea behind putting political nominees on to the Electoral Commission is to do with the nature of the democratic process and all that goes with it, which includes how the Electoral Commission responds, and the idea that that body should have serving on it a number of people with political experience in general who can relate that experience to how it works.
I am listening to the hon. Gentleman and I am with him so far, but he mentioned the electoral process. Is not the whole point that there are in fact electoral processes? That is the fundamental point that is at stake, not the partisan nature of appointments—I agree entirely with the hon. Gentleman: I do not want to see that either. However, the point is that we have a multiplicity of processes, not a single electoral process.
If the hon. Gentleman had waited for one minute, he might have heard me address that issue. When I talk about the electoral process, I of course embrace within that term the electoral process in Westminster elections and the process in parliamentary and Assembly elections throughout the UK. They are all part of the process. The Electoral Commission should be concerned to ensure that those processes, as well as everything that happens between those elections, are undertaken in a fair, non-partisan, clean and transparent way. Having political nominees on the Electoral Commission adds to that process and, as far as I am concerned, it should add to it.
I actually agree with the hon. Gentleman. I have the same hope and aspiration that the political nominees will serve the commission in that way. However, does he not understand the point about people’s perception? To take the example of Scotland, the Scottish election will be determined by the Electoral Commission, on which the Labour, Liberal and Conservative parties will be represented, but there will be no Scottish National party representation. That will bring the legitimacy of the Electoral Commission into question and introduce a flavour of doubt that something is not quite right.
I understand the hon. Gentleman’s concern. However, all of us, both in this House and in the Parliaments and Assemblies in the UK, are in the difficult position between, being perceived on the one hand, as perhaps acting unfairly in respect of how those people are placed on the Electoral Commission in the first place and, on the other hand, as simply pursuing party, partisan advantage, by placing people on the Electoral Commission in order to fight the corner of our parties. That is completely against what we should be trying to do, as far as political appointments to the Electoral Commission are concerned.
I would be with the hon. Gentleman more, on the basis of the logic that perhaps all the Parliaments and Assemblies of the UK should nominate a number of people to the Electoral Commission to serve as political representatives. Under those circumstances, if it so happened that the outcome was that there were no Labour representatives from among those who had been nominated, I for one would not be unhappy, because they would have been nominated by the Parliaments and Assemblies of the UK. As matters stand, it appears that we are nowhere near what I would consider to be an ideal outcome, which relates to what the job to be done should be and how it ought to be perceived as being done. I do not believe that the hon. Gentleman’s formulation would overcome the problem of what it might look like to have politically partisan representatives on the Electoral Commission, rather than those who will be there for the advancement of the commission.
Surely the case for representation from Northern Ireland, by way of an example, is demonstrated by the Bill itself, because as you will have noticed, Mr. Deputy Speaker, it amends the system of elections to the European Parliament in Northern Ireland, which is contrary to the Electoral Commission’s proposals. Rightly or wrongly, the Government have been persuaded by Northern Ireland politicians to discard the commission’s advice. In a sense, that is a compelling case for Northern Ireland politicians to be represented on the commission, because their view prevailed. Their view was: “We deal with elections, so let’s give the advice, rather than these nitwits on the Electoral Commission who’ve never fought an election in their lives.”
By referring to the word “representation”, my hon. Friend has, if anything, underlined the problem that we face of how to make the appointments. The hon. Member for Gosport (Sir Peter Viggers), who represents the Speaker’s Committee on the Electoral Commission, drew attention to the fact that the Committee does not have a Labour party majority and the fact that not every party is represented on it. The Standards and Privileges Committee does not have majority Labour representation—it has more than Labour, Conservative and Liberal Democrat Members; it has a Welsh nationalist Member, too. But do we consider the purpose of all those people on the Standards and Privileges Committee to be to fight the corner for their party? Clearly not, as far as what they do for this House is concerned.
The hon. Gentleman is talking the talk of fairness, but I am afraid that he is not walking the walk. He is looking at this from a Westminster perspective. The Standards and Privileges Committee is a Westminster body, but the Electoral Commission is UK-wide: it hits Belfast, Cardiff and Edinburgh. We are looking for fairness. He is grasping at fairness, and I can see him struggling to find it. Will he please walk the walk as well as talking the talk?
I hope that the hon. Gentleman has been following closely what I was saying. As far as this House and the other Assemblies and Parliaments of the UK are concerned, we need to make it clear that the way in which we nominate people is not seen simply as people wishing to fight their party political corner in the Electoral Commission. In order to make that clear, we need to confront the question of how we can have adequate representation and fairness in the nomination process.
The hon. Member for Perth and North Perthshire (Pete Wishart) has made a suggestion that could, as other hon. Members have pointed out, lead to what would broadly be perceived as an unfair outcome. That seems to be the way we are going. My suggestion is that we either seek nominations from all the Parliaments and Assemblies or go with the proposal from the Speaker’s Committee to find a system whereby the fairness of the nomination can be underpinned by the way in which the nominations are made.
The hon. Gentleman’s hopes are laudable, and we can all follow his arguments. He is right to look for fairness, but that ain’t what we have got on the amendment paper tonight. Instead, we have a Scottish amendment that is not perfect—it is not what I would want—but that is fairer than the alternative that would pertain if we do not accept it. We should therefore support it and vote for it, and force the Government to look again at this matter. This electoral system—our democracy—does not belong to us; it belongs to the public. The important thing is how the public perceive these things. The people in Scotland, just like the people in Castle Point, are not going to see this as fair. They are going to see it as another Westminster carve-up between the three main parties.
The hon. Gentleman makes my point precisely. How the public perceive what we do is very important, and there must be no implication that who puts whom on a Committee has anything to do with party political advantage, or that the people sitting on that Committee are simply there to fight their own party’s corner.
I am listening very carefully to the hon. Gentleman, who is making some very good points. He is presenting his own personal utopia, and I do not disagree with him. However, I want to echo the hon. Member for Castle Point (Bob Spink) and say that we have a choice tonight between the Government’s proposal and that of the Scottish National party. Which of those options is closer to the hon. Gentleman’s personal utopia? I would wager that it was the SNP’s proposal, and I ask him again to walk the walk in regard to fairness.
The hon. Gentleman puts forward two options. One would result in about four out of nine commissioners being from parties involved in the Northern Ireland Assembly. The alternative does not appear to go down that route, and would not necessarily involve the membership of the Electoral Commission reflecting an exact replica of the party membership of the Assemblies and Parliaments across the UK. I accept that this is a conundrum and a continuing problem. I also accept that it is not easy to resolve. My personal view is that something like what we have had before, as now, is probably the best way to proceed. My desired outcome would allow the Assemblies and Parliaments of the United Kingdom collectively to choose who the nominees would be, but that proposal is not on the table tonight. We need to choose between a proposal that looks fair and representative but whose outcome would not be, and one that does not look so fair or representative but whose outcome might be workable for the next stage of the Electoral Commission.
Commissioners with direct political experience will enhance the work of the Electoral Commission, so Conservative Members support the Government’s intentions on this part of the Bill. As the right hon. Member for Edinburgh, East (Dr. Strang) and the hon. Member for Livingston (Mr. Devine) both said, the commission will work better if people who have been through elections, who have been candidates, who have gone into every detail of electoral law in fighting an election and who have experienced the processes and problems that occur and the solutions that are found are actually in there either advising or as part of the Electoral Commission. They will have the experience, knowledge and wisdom that comes from fighting elections, which people who have not fought them simply will not have.
The hon. Member for Thurrock (Andrew Mackinlay) said that he would consider nominating himself to become a commissioner, and I would support such a nomination 100 per cent. [Interruption.] The Minister might not, but I would. The hon. Member for Thurrock is, of course, independent-minded, fair and very experienced, having been in this place for many years—[Interruption.] I will give way to the hon. Member for Na h-Eileanan an Iar (Mr. MacNeil) later, but he really must stop shouting. I repeat that the hon. Member for Thurrock has experience and knowledge that people who have never fought elections do not have. I honestly believe—I mean this as a sincere compliment to the hon. Member for Thurrock—that he and others like him would be able to rise above the party political process. If he were an electoral commissioner, he would be able to act in an honest, straightforward and trustworthy fashion—regardless of the political party that he had represented for much of his life. He is not alone in that, as many others would, through their experience and their wisdom, be able to serve the Electoral Commission and thus the democratic process very well indeed.
I am grateful to the hon. Lady, and I am wondering whether the hon. Member for Thurrock (Andrew Mackinlay) is going to be the Conservative nominee to the Electoral Commission. What we are witnessing here yet again is the Westminster old boys’ carve-up; the pals come together and in a few years’ time after further headlines, we will be back yet again to the same position—with more legislation necessary to hide their blushes.
Well, I am not an old boy, and I never will be. The fact is that the hon. Member for Thurrock, in view of what he proposed this evening, could indeed be the Conservative nomination—of course he could, because we are talking about cross-party co-operation for the good of democracy.
I am disappointed that the hon. Lady has not nominated me. It is, however, a sad indictment of parties in this place that they think that the people of Britain are sitting around tonight watching this debate to find out who will be the nomination to this body of electoral administration. People are not going to be saying that we are unfair: we are giving a say to parties that represent 20-odd out of 650, which I think is fair. Does the hon. Lady agree?
Yes, I do, and I see no reason why the hon. Gentleman, despite being a member of the Labour party, could not also be a fair-minded, trustworthy and experienced member of the Electoral Commission. Being a member of the Labour party does not necessarily make someone a partisan person who is unable to take decisions in a cross-party or reasonable way. I am beginning to think, however, from evidence over the last half an hour, that being a member of the Scottish National party does make one partisan and narrow-minded—[Interruption.] In fact, I have held that view for some time. However, that is not the point. Unfortunately, the amendments tabled by the hon. Member for Perth and North Perthshire (Pete Wishart) are a bit of a red herring compared with what the Bill is actually about, while the amendments tabled by my hon. Friend the Member for Gosport (Sir Peter Viggers) are absolutely correct. They will bring clarity to the Bill and to the process, and we totally support them.
That makes my point to Scottish National party Members: the amendments to which I have just given wholehearted support were tabled by none other than the Lord Chancellor himself, and they have my 100 per cent. support because they are right and right for democracy. I will not stand here and say that, because they were tabled by a member of the Government, I must oppose them. That would be absurd. That is the whole point of our parliamentary process, which SNP Members are misinterpreting and rather warping in their remarks tonight.
What the hon. Member for Perth and North Perthshire has said is not relevant because the people who will be appointed to the Electoral Commission under this system will not be acting in party political interest. It is not a question of their knowing in detail the particular precise workings relating to any particular part of the UK, any particular area of the democratic process or any particular electoral system. The point is that the whole spectrum of experience is what matters.
The hon. Lady is right about the whole spectrum of experience, but does she not accept that fighting elections under proportional representation is a different experience from fighting elections under first past the post? Amendment 91, which I support, defines a parliamentarian as somebody from any of the devolved Assemblies, as well as from here. Surely, to get that wide spectrum of experience, she should be supporting that amendment.
There is a better way to ensure fairness, which is to get rid of elections under any system other than first past the post. That is the fair and straightforward way.
Let me make three quick points, because this argument has dragged on for rather too long. The point is that the political appointees to the Electoral Commission will always be a minority. If I may, I shall quote Sir Hayden Phillips, who gave evidence to the Public Bill Committee on 4 November 2008:
“I think that this will help the Electoral Commission, and will help political parties to feel more comfortable with the Electoral Commission. Those four people will be in a minority, and will never be a majority.”––[Official Report, Political Parties and Elections Public Bill Committee, 4 November 2008; c. 34, Q83.]
They will never have power on the Committee; they will have only influence. That is the whole point.
The hon. Lady is making a constructive speech and clearly we support her on the role that these commissioners are to play. However, while I am not suggesting that one support the SNP amendment, is there not a problem in that three of those commissioners will essentially have been put forward by the leader of a political party whereas the fourth commissioner will be something rather different?
That is the whole point of the spectrum of experience. It is likely that one of these four people will have more experience of government than of opposition and another will have more experience of opposition than of government and that one will be from one part of the country and one from another part. It is very possible that—[Interruption.] The Scottish National party, Mr. Deputy Speaker—
Order. Hon Members have had more than enough opportunities to put their points and make interventions; the very least that they should do now is hear others make their points.
Order. People’s opinions of what is rubbish vary.
Thank you, Mr. Deputy Speaker. I am very pleased that I entirely disagree with the hon. Gentleman about what is rubbish, and I am very pleased that he disagrees with me.
The point about the amendment tabled by the hon. Member for Perth and North Perthshire is that it is elegant, it is arithmetically clever, and it would make the commission far too big. It would make it unwieldy and unworkable. Furthermore, as I have said, it is wrong to consider this whole matter along party political lines. [Interruption.] The hon. Member for Na h-Eileanan an Iar has nothing whatever to say. He is just laughing. That makes me realise that my earlier remarks about the Scottish National party are sadly becoming all the more true.
The point is that no member of the Electoral Commission would be acting in the interests of any political party. That would be entirely wrong.
No, I cannot give way again. We really must make progress.
The basis of the argument advanced by the hon. Member for Perth and North Perthshire is completely unfounded and irrelevant. No one will be acting for any political party. No one will be representing a political party. We will have a broad spectrum of people who can enhance the democratic process.
There is one final point which the Scottish National party, of course, ignores. This Parliament is the Parliament of the United Kingdom. We are talking about the Electoral Commission, which deals with the whole of the United Kingdom. Although the Scottish National party would have it otherwise, it is still the case that this Parliament makes rules for the United Kingdom, and it is from the authority of this Parliament that all devolved legislatures take their own power and authority. The Scottish Parliament would have no authority had it not been given it by this Parliament. It is absolutely right that this law should be made tonight in this Parliament—not for any particular sector and not for any particular party, but for the whole of the United Kingdom.
I am extremely grateful to the hon. Member for Gosport (Sir Peter Viggers) and the Speaker’s Committee for all the work that they do. We will, of course, accept the amendments tabled by the hon. Gentleman.
We have had a long discussion and I do not want to detain the House for longer than necessary, but I want to make one point. As the hon. Gentleman said, the question of how the so-called minority parties would have their commissioner selected is a matter for consideration by the Speaker’s Committee if and when the House decides that the amendments should be incorporated in the Bill, but we should all be clear about the fact that we ought to have the utmost confidence in the Committee. It is constituted as part of the House, and it is answerable to the House. If my hon. Friend the Member for Thurrock (Andrew Mackinlay) has concerns about that, he will have plenty of opportunities to scrutinise the Committee and the way in which it makes its selection. I have every confidence that it will do so in accordance with due process, and that the selection will be conducted fairly, effectively and in a way that is completely compatible with the great traditions of this House.
As for the other amendments, let me say first how grateful I am to the Members who sought to educate the Government on the consequences of their own legislation. That is much appreciated. We are proud of the legislation, we passed it for specific purposes and we think it is working extremely well, but there are limits to it.
Let us not beat about the bush any longer. What underlies amendments 86 to 93 is a fundamental and profound dissatisfaction with the current constitutional arrangements of the United Kingdom. I think we can agree on that, and on that basis we will resist all the amendments. Not only are they wrongly founded in principle, but as the hon. Member for Epping Forest (Mrs. Laing) explained so cogently, this is the United Kingdom and it remains the United Kingdom. We do not have a federal structure of governance; we have a devolved structure, whereby authority and power flow from this House. All hon. Members are adornments, but the House of Commons is the fount of power in this country—this United Kingdom.
Of course hon. Members are fully entitled to disagree with that and campaign democratically to change the arrangements, and I am sure they will continue to do so. In the meantime, however, this must be the starting point for measures that we take. It is appropriate for this Parliament, the Westminster Parliament, to be the basis on which nominations are put forward for commissioners with political experience.
I want to make a few more points. After that I shall be happy to give way to the hon. Gentleman, although I suspect that I have already heard what he wishes to say.
In trying to right what they see as this fundamental wrong in our constitutional arrangements, Scottish National party Members are opening the door to unwelcome consequences. Unfortunately, their amendments are predicated on premises that feed public cynicism about politicians. It is profoundly wrong to base our legislation on the premise that political parties are incapable of nominating people with political experience who will not then act in the public interest.
I give way to the hon. Member for Na h-Eileanan an Iar (Mr. MacNeil), who wanted to intervene on me earlier.
Unfortunately, the right hon. Gentleman’s words will be construed as high-handed in many other places. That is disappointing. When we are developing rules, we should aim ultimately to uphold the principle of fairness, rather than allow the seeking of party political advantage or carve-ups, with the necessity of returning to this matter in a few years’ time. I ask him to remove the party labels and have in mind the principle of fairness. In fact, might it not be better to remove the three main parties so that we have the breadth of knowledge of the minority parties represented on the Electoral Commission, as that might prevent any more carve-ups?
I have heard the hon. Gentleman’s views on fairness many times in this short debate, and I point out to him that it is very interesting how the definition of fairness varies according to who is speaking about it. There are different perspectives on it; it is not an absolute value, and there are differences of perception. It is not to his advantage to pray it in aid; there are powerful arguments in other directions using precisely the same abstract nouns. When we strip away the abstract nouns and get down to the practicalities, however, we find that they are unwieldy, as has been pointed out.
The hon. Member for Perth and North Perthshire (Pete Wishart) described his own solution as elegant, and it may well be, but it is also unwieldy and impractical. These commissioners are appointed on the basis that they will bring their expertise and experience to the conduct of the Electoral Commission, not on the basis that they will bring their party loyalties or tribal partisanship. That would be quite wrong, and I have every confidence that they will not be selected on that basis.
We have spent a long time discussing these issues. I fear there will be no meeting—
I am sorry; of course I will give way to the hon. Gentleman.
I thank the right hon. Gentleman for giving way. He has not addressed the important point that there are different electoral systems. In the last few minutes, both the Justice Secretary from a sedentary position and the hon. Member for Epping Forest (Mrs. Laing) have decried proportional representation, but that system is in operation in Scotland, Wales and Northern Ireland—and even, I believe, in London—so it is an important part of the electoral system in the UK. However, that is being dismissed in the carve-up, at least between the two main parties. It is important that, as things stand, no one on the commission will be representing these important systems.
I am grateful to the hon. Gentleman for making that point, because it was this Government who brought in that pluralism in our electoral arrangements. If he has not already read it, I commend to the hon. Gentleman the review of voting systems published by this Department under the able stewardship of my right hon. Friend the Justice Secretary, which sets out a detailed examination of how these different electoral systems operate. We think that pluralism is desirable; that is why we introduced it. The fact is that the three largest parties in the Westminster Parliament have the largest collective pool of experience to draw upon in bringing knowledge of all these different electoral systems to bear on the work of the Electoral Commission. That is precisely the point. Far from dismissing this pluralism, we brought it in and we intend to draw on it to the best effect in the Electoral Commission.
But does the right hon. Gentleman not accept that proportional representation has delivered different forms of government? The SNP is in government in Edinburgh; Plaid Cymru is in coalition in Wales; and the Democratic Unionist party is in government in Northern Ireland. Should not those Governments of three of the nations of the United Kingdom have an input into the Electoral Commission, because of the differences in the nations of the United Kingdom?
With all due respect to the hon. Gentleman, I must inform him that it is not those Governments who will be represented, any more than this Government will be, in the work of the Electoral Commission.
Can the Minister answer this simple question: is there anything to prevent the leader of any of the political parties from nominating a Member of the Scottish Parliament, the London assembly or the Northern Ireland Assembly? There is nothing to stop that, is there?
Of course not; the hon. Lady is right. What lies behind her comments is a point that has been made over and again, and which the hon. Members who tabled the amendments seem incapable of understanding: politicians serving on public bodies are capable of operating in the public interest, rather than merely in their own narrow, tribal, party political interests. I am sorry that the tablers of the amendments seem incapable of believing that, but all practical experience tells us that it is so. Unfortunately, we are unlikely to agree on this issue, and we will resist the amendments.
This has been a good and interesting debate, containing some valuable contributions—until we reached those from the Government and Opposition Front Benchers, when it started to get disappointing. We have a situation in which the largest party in Scotland, by votes and seats awarded, will have no input on electoral regulations for elections in Scotland, and that is totally unacceptable to our party.
Does the hon. Gentleman understand that that is not necessarily the case? That is not the way in which the amendments proposed by the hon. Member for Gosport (Sir Peter Viggers) operate.
To be fair to the Minister, I should say that that is not how it seems from our Benches. This arrangement is all right for him, because he has his political commissioner and he will be able to nominate somebody to serve on the Electoral Commission, and it is all right for the hon. Member for Epping Forest (Mrs. Laing) and for the Liberals, because they will be able to nominate somebody to serve on it. The provisions are not all right and acceptable for us, because we will not be able to nominate someone to serve on the Electoral Commission to run and regulate elections in our nation. That is the heart of the matter; this is about fairness, democracy and ensuring that people are properly represented in this House.
I listened carefully to the hon. Member for Gosport (Sir Peter Viggers), who is in an impossible situation. To be fair to him, there is no way that he could begin to come close to defining the criteria on which this fourth commissioner will be determined, because he does not know what they will be—he has no clue as to how this will be determined. I, too, have no idea, and neither does the Minister or the hon. Member for Epping Forest. What will be the arrangements for the fourth commissioner? How will the decision be made? The Minister does not seem to know. If he does know, will he please get up and tell me?
I genuinely suggest that the hon. Gentleman examines the proposals before he starts getting emotional and wrought up when there is no need to be.
The Minister will know that that was not an answer and that he does not know how the fourth commissioner will be determined—nobody knows. This is a total mess, but I propose a solution. I get the sense from the rest of the House that a threshold of 15 parliamentarians will not be acceptable, so I shall ask leave to withdraw the amendment containing that proposal. However, I hope that other hon. Members will support the principle that the other legislatures in the United Kingdom are important and must be taken into account. That is a challenge to hon. Members here this evening. I know about the support of the Liberals, who believe that the other Parliaments are important, that we live in a multi-party democracy and that we are now in a different type of United Kingdom. The challenge is for other hon. Members: do they recognise that or do they not? Are we to have the stable, closed-door Westminster wheelings and dealings? Is it all about the green Benches here or is it all about the new reality of the United Kingdom?
My hon. Friend is entirely right in what he says, because he describes the challenge; the Electoral Commission will be questioned in the nations of the United Kingdom if we do not get our proposal through. It is in place to serve all the legislatures, but unless our proposal is passed this evening it will fail in that task and its very legitimacy will be brought into question. That is what is at stake.
I know that there is a desire to get on to the next set of amendments, but this is an important principle. I wish to press amendment No. 91 to a Division, and I urge hon. Members to support me. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 31, page 4, line 15, leave out ‘two’ and insert ‘one’.
Amendment 32, page 4, line 17, leave out ‘persons one of whom’ and insert ‘a person who’.—(Steve McCabe.)
Amendment proposed: 91, page 4, line 19, at end insert—
‘( ) In subsection (2) a “parliamentarian” means a Member of the European Parliament, a Member of the House of Commons, a Member of the Scottish Parliament, a Member of the Welsh Assembly or a Member of the Northern Ireland Assembly.’.—(Pete Wishart.)
Question put, That the amendment be made.
Amendment made: 33, in page 4, line 23, at end insert—
‘( ) In the case of an appointment of a nominated Commissioner, the reference in section 3(2)(c) to being selected is to be read, where appropriate, as a reference to being recommended.’.—(Mr. Wills.)
New Clause 17
Limitation of pre-candidacy election expenses for certain general elections
‘(1) In the Representation of the People Act 1983 (c. 2) (“the 1983 Act”), after section 76 there is inserted—
“76ZA Limitation of pre-candidacy election expenses for certain general elections
(1) This section applies where —
(a) a Parliament is not dissolved until after the period of 55 months beginning with the day on which that Parliament first met (“the 55-month period”),
(b) election expenses are incurred by or on behalf of a candidate at the parliamentary general election which follows the dissolution, and
(c) the expenses are incurred in respect of a matter which is used during the period beginning immediately after the 55-month period and ending with the day on which the person becomes a candidate at that election.
For the purposes of this section, section 90ZA(1) has effect with the omission of the words “after the date when he becomes a candidate at the election”.
(2) Election expenses incurred as mentioned in subsection (1) must not in the aggregate exceed the permitted amount, which is the relevant percentage of the following sum—
(a) for a candidate at an election in a county constituency, £25,000 plus 7p for every entry in the register of electors;
(b) for a candidate at an election in a borough constituency, £25,000 plus 5p for every entry in the register of electors.
(3) The relevant percentage is—
(a) 100% where the dissolution was during the 60th month of the Parliament;
(b) 90% where the dissolution was during its 59th month;
(c) 80% where the dissolution was during its 58th month;
(d) 70% where the dissolution was during its 57th month;
(e) 60% where the dissolution was during its 56th month.
For the purposes of this subsection, the “56th month” of a Parliament is the month beginning immediately after the 55-month period; and so on.
(4) In subsection (2) above “the register of electors” means the register of parliamentary electors for the constituency in question as it has effect on the last day for publication of notice of the election.
(5) Where election expenses are incurred as mentioned in subsection (1) in excess of the permitted amount, any candidate or election agent who—
(a) incurred, or authorised the incurring of, the election expenses, and
(b) knew or ought reasonably to have known that the expenses would be incurred in excess of that amount,
shall be guilty of an illegal practice.
(6) The candidate’s personal expenses do not count towards the permitted amount.”
(2) The amendments made by this section do not apply in relation to any expenses—
(a) incurred before the commencement of this section, or
(b) incurred in respect of any matters used before 1 January 2010.’.—(Mr. Wills.)
Brought up, and read the First time.
With this it will be convenient to discuss the following: amendment (a) to Government new clause 17, in proposed new subsection (1)(a), leave out first ‘55’ and insert ‘50’.
Amendment (b) to Government new clause 17, in proposed new subsection (1)(a), leave out second ‘55’ and insert ‘50’.
Amendment (c) to Government new clause 17, in proposed new subsection (1)(c), leave out ‘55’ and insert ‘50’.
Amendment (d) to Government new clause 17, at end of proposed new subsection (3)(e), insert—
‘(f) 50% where the dissolution was during its 55th month;
(g) 40% where the dissolution was during the 54th month;
(h) 30% where the dissolution was during its 53rd month;
(i) 20% where the dissolution was during its 52nd month;
(j) 10% where the dissolution was during its 51st month.’.
Government amendment 38.
Amendment 10, in clause 11, page 9, line 36, at end insert—
‘(6) No act or statement made before the commencement of this section shall be taken into account in deciding whether a person has become a candidate.’.
Government amendments 39 to 43.
This group of amendments will overhaul and refine the provisions in the Bill relating to candidate expenditure. I think that it is true to say that the provisions have attracted a great deal of comment, not to mention controversy and criticism. We have listened to those criticisms, as we always do. The group of amendments are intended to address the various concerns raised by hon. Members. I shall begin by setting out the points on which I think that we are on common ground. I believe that we can all agree that changes to the legislation on party funding should, as far as possible, be made on the basis of a broad consensus of support between the political parties. We cannot allow party funding to become—or, just as importantly, to be perceived to have become—a partisan issue. That would be hugely destabilising to our democracy. All of us on both sides of the House have a duty to ensure that legislation on party funding supports a strong, fair and open democracy that commands the trust and respect of the electorate.
Inevitably, election campaigning requires money to be spent, but it is a long-established and, I believe, well-supported principle that first and foremost, elections are a contest of ideas and policies. Excessive election spending devalues the integrity of our democratic system. I hope we can all agree on that. It is for this reason that the law on party funding has, since the late 19th century, set strict limits on the amount of money that can be spent in pursuing election.
In the first instance, the law limited only the amount that a candidate could spend on election campaigning. However, in recognition of the increasingly important role of national campaigning conducted by political parties, the law has, since the passage of the Political Parties, Elections and Referendums Act 2000, also limited the amount that can be spent nationally.
Both the candidate and the national campaign spending limits must operate in recognition of the fact that we do not have fixed-term Parliaments. I do not wish to enter into that debate today—indeed, Mr. Deputy Speaker probably would not let me do so. I mention it merely because a consequence of that is the uncertainty over whether and when an election will be held. That is a difficulty when we try to specify the length of any regulated period for election expenses.
In the case of the national spending limit, the starting point for the regulated period is counted back 365 days from the date of the election. This means that parties can face some uncertainty in accurately planning their campaigning expenditure. In practice, however, most parties will closely monitor their campaigning expenditure at all times, and employ staff to ensure compliance with legislative requirements.
The same cannot be said of campaigning expenditure that specifically seeks to advance the electoral prospects of a candidate. Campaigning at the local level is often sustained by volunteers. We can all agree that those dedicated people are the lifeblood of our political system, and whatever we do to make sure the system is open and transparent and commands the trust of the electorate, we must also take great care to ensure that legislation does not impose undue burdens on those volunteers.
For many years, the law on candidate spending deliberately did not impose a fixed point from which the limit on election expenditure would apply. Rather, the limit applied from the point when an individual began behaving and campaigning as a candidate—a system that is often referred to as “triggering”. This led some to seek to avoid the limits by referring to themselves as only prospective candidates. The 2000 Act sought to reduce uncertainty for candidates and agents by setting a clearly defined point in legislation from when an individual could be regarded as a candidate. In the majority of cases, this is the date of the Dissolution of Parliament.
Candidates have thus had certainty about the point from which to begin counting their election expenses. However, the wholly undesired, and to some extent unforeseen, effect of this has been the potential for significant levels of unregulated candidate expenditure to take place prior to Dissolution.
We have sought to address the issue before. The Electoral Administration Bill of 2005 contained proposals recommended by the Electoral Commission for a regulated period for candidate expenditure counted back four months from the date of the election. The measure was criticised on all sides of the House, however, in view of the uncertainty that it would create for candidates and the volunteers who work to help them. The proposal was consequently removed from that Bill. But the potential for high levels of unregulated spending before Dissolution remains.
We said in the White Paper that we would consider a return to the principle of candidate spending regulation that existed before 2000, whereby the purpose for which expenditure is used would determine whether it is counted against the spending limit.
In general, I support the new clause. However, if a national political party were to deluge a constituency with target mail urging people to vote for that party in that constituency without mentioning the candidate, surely that should count as expenditure against the candidate of that registered party. That is surely a loophole in the clause.
I will come to that point later. This is an extremely complex area. It is highly contentious, as we discovered yet again during the passage of the Bill. If the hon. Gentleman will forgive me, it is important that I go through the sequence of arguments about how we ended up where we have now ended up.
Before I go any further, I should say that no one would regard the measure as the end of the story. We always search for perfection, but sometimes we have to recognise that is somewhat further out of reach in some cases, such as this, than in others.
As I said, we said in the White Paper that we would consider returning to the principle of candidate spending regulation that existed before 2000—that is, the purpose for which expenditure is used determines whether it is counted against the spending limit. Colloquially, that is called “triggering”. It is worth noting that that principle was specifically and clearly endorsed by the Committee on Standards in Public Life in its far-reaching report of 1998. In this Bill we have therefore proposed a spending limit that would regulate all spending for the purposes of a candidate’s election, including that used before he or she is formally defined as a candidate.
Unfortunately, debate on that point was curtailed in Committee; however, I am clear that the measure does not enjoy the support of Opposition parties. I am disappointed that we have not been able to secure agreement to the proposal. Nevertheless, in our characteristic spirit of openness and co-operation, we have listened to the views put forward by hon. Members and tabled this group of amendments, which will retain the existing consideration of the purpose for which expenditure is used and, additionally, introduce a fixed point in time from which that expenditure is regulated for certain elections. I believe that that will achieve more effective regulation of spending and minimise uncertainty for candidates.
Although there is usually uncertainty about whether a general election will be called at any particular point, the one point of absolute certainty is the last possible point by which a Parliament must be dissolved; when a Parliament enters its final months, we can be certain that a general election is imminent. In those circumstances, those intending to stand as candidates will have formed their intention and many prospective or already declared candidates will be likely to begin campaigning well in advance of Dissolution. We believe that in those circumstances it is possible and desirable to provide for a longer regulated period for candidate expenses.
I congratulate the parliamentary draftsmen on how they have tackled this complex area, and I am delighted that this is not necessarily the final word on the issue. The Minister will agree that elections in this country have often been held six months before the final date at which an election must be called; that is the aim of any Prime Minister and generally the sensible thing to do. Why can the restricted period not be longer than the five months? If it were a 10-month period, it would take account of the real period during which candidates would be expected to start to push, particularly in marginal seats?
The hon. Gentleman has tabled an amendment to that effect, and no doubt we will get on to it in due course.
We have come to our position because we think that the current situation, in which in effect spending is regulated only for the month or so after Dissolution, is not desirable. It is an unintended consequence of previous legislation and we need to improve on it; we believe that the amendments would do that. Under current legislation, an individual generally becomes formally regarded as a candidate only on the date of the Dissolution of Parliament, the result being that campaigning expenditure is limited only from that period onwards. The amendments introduce a second regulated limit for candidate expenses. It would only regulate candidate expenditure between the point at which 55 months of a Parliament had elapsed and the date at which an individual formally became a candidate. As that is generally the date of Dissolution, in most cases we refer to it as the “pre-Dissolution limit”. At that point, the existing candidate spending limit will come into force.
The new proposal contains a key aspect of the previous triggering proposal, in that it is capable of applying to what people do before they are formally regarded as candidates. The proposed new limit would apply only if a Parliament ran for more than 55 months. When that happens, there is no doubt that an election will take place shortly, so any uncertainty about whether an expense is really an election expense is greatly reduced. The proposed new limit would not apply for shorter Parliaments. In those cases, the uncertainty about when an election will take place makes specifying a longer regulated period more difficult. In those circumstances, only the current post-Dissolution limit would apply.
It is our intention that the new limit will regulate the same types of expenditure as the current limit. As with the current limit, it will regulate all spending on specified matters which are used
“for the purposes of the candidate’s election.”
As with the current limit, the new limit will regulate all expenditure that is used during the regulated period, even where that expenditure is incurred beforehand. That means that it will not be possible for an individual to seek to avoid the limit by stockpiling campaign material shortly before the regulated period begins for use afterwards. However, the new limit will not have retrospective effect; that is to say, it will not apply to any expenses that are incurred before commencement of the clause and then used at a time when the new limit applies. As with the current limit, the level of the spending limit will vary from constituency to constituency according to the number of electors and the nature of the constituency.
I am truly trying to follow this, but I am a little bewildered. In a situation such as that in 1964 or February 1974, what is the regime as regards expenses in the period where it is unlikely that a Parliament is going to run for the duration? If there were a hung Parliament, surely all the big battalions would have been trying to pour money into what was an uncertain period of a few months.
I understand my hon. Friend’s concern, and as a matter of common sense I can see the force of what he says. However, this measure is predicated on the one thing that we can be absolutely certain about. Of course he is right that as in 1964, with a very small majority, or 1974, with, essentially, a hung Parliament, the likelihood is that there would be an imminent general election. However, we do not know—that is the difference. We know, because of statute, when a Parliament must end, but in those circumstances, although it is likely that there would be an imminent general election, we do not know that. We do not know what deals will be cobbled together; ingenuity and hunger for power are extraordinary things. The whole basis of this proposal is that it is predicated on what we know for a fact, taking into account all the concerns that people have raised about uncertainty. I hope that that clarifies the position for my hon. Friend.
In general, although the level of the spending limit will vary from constituency to constituency, it will amount to around £30,000. The specified sum may in future be increased by order because of inflation or following a recommendation from the Electoral Commission. It may be that a Parliament runs for over 55 months but does not run to its full term. In that event, the amendments provide for a pro-rating of the limit. We are open to views on the appropriate fraction of the limit that should apply in those circumstances. We have made our best guess of what would be a sensible and reasonable approach, and we are open to representations on that. However, we have provided that the pro-rating should be staggered to take account of certain fixed costs incurred as part of campaigning.
I have come across this point about fixed costs before, but I ask the Minister to list what he thinks they are. In most campaigns, the fixed costs will have been incurred long ago and all that one has in the run-up to the election, five months before, are variable costs.
As I say, we are open to representations on this. We want to take a view that as far as possible commands consensus. If the hon. Gentleman wants to come forward with an alternative proposal, I can absolutely assure him that we will consider it with an open mind, as we have done with all the representations that we have received.
We propose that the new clause and associated amendments will be commenced by order following Royal Assent. The exact date of commencement is to be determined and will in part hinge on the timetabling of a debate to consider the appropriate use of parliamentary allowances during the longer regulated period. Regardless of the date of commencement of the new clause, for the sake of clarity and simplicity we have provided that should the new limit be needed for the current Parliament, it would only begin to regulate expenses used after 1 January 2010. That is slightly later than the 55- month point, but we do not consider that this significantly undermines the purpose of the provisions.
Will the Minister be a little more specific about the proposal that the Government plan to bring before the House on the use of Members’ allowances during this equivalent period? He will know from previous discussions that we are concerned about symmetry in this case. Members of Parliament have large allowances available that can be used for pro-active communication with their electors. When candidates are affected by this measure, which we support, to control spending during the last few months of the Parliament, the House must put in place rock-solid arrangements regarding the use of allowances, whether for communications or for incidental expenses, to do stuff that promotes Members of Parliament in a way that is equivalent to a candidate’s campaigning. I am grateful to him for the indication that new clause 17 will not commence until such matters have been decided, but it is crucial that the House understands exactly what is proposed, and that there is no intention to commence the provision until that happens.
The right hon. Gentleman knows that we understand his concerns about symmetry, which is why we have said what we have said on this matter. We heard such concerns expressed forcefully on Second Reading and we are taking them into account. Some of the issues are complicated, but we accept the point about symmetry. I can give the right hon. Gentleman the assurance that he wants on commencement. The House will know exactly what we will propose in due course.
In view of the complete absence of Conservative Back Benchers during this debate—I cannot think why—would my right hon. Friend care to comment on the common-sense view that many Conservative candidates, without any constraints on their spending, are more likely to start their campaigns in September and run them for six months until the expected date of the election, rather than in January? It would be more valuable to have these commendable controls in place, not from the 55th month, but from the 50th, in order to give a good six-month run, thus preventing the distortion to the result of the election that could be caused by the fact that very rich candidates are able to put huge amounts of their own money into their election campaigns.
I understand my hon. Friend’s concerns. I suspect that the hon. Member for Argyll and Bute (Mr. Reid) may be able to make a similar point, so I shall give way to him.
If the Government are considering the communications allowance used by Members of this House, can they also look at similar allowances used by those in devolved Parliaments or Assemblies? For example, at the last general election, my opponent was a Conservative list MSP, and it would be unfair if a candidate in such a position were allowed to use the Scottish Parliament equivalent of the communications allowance. All the Parliaments’ communications allowances need to be looked