Political Parties and Elections Bill

Committee (1st Day)

15:45:00

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

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

Amendment 1

Moved by

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

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

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

When the Bill was first put forward, it was debated extensively and for some time in Committee in the other place. Only at Report stage did the Government bring forward a whole series of areas in which there would be a conciliatory approach and on which they would introduce amendments. Therefore, there was very little opportunity in the other place for Members to discuss the implications of those amendments. We had hoped that a lot more time would be given to us in this place to consider them; but we very much feel that it is unsatisfactory that a large and vital section on individual voter registration has been delayed until this point. I should say that it is out of character with the way that the Minister, who has been very courteous in dealing with this and has tried to inform us at every stage, has behaved. I want to place on the record that area of concern, which is strongly felt on this side of the Committee.

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

“and taking such steps as they consider appropriate with a view to securing”.

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

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

“such steps as they consider appropriate”

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

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

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

Lord Tyler
I follow the noble Lord, Lord Bates, by indicating the approach that I and my noble friends intend to take during the Committee process. As we are all political animals, in a sense we all have to declare an interest, unusually, in this subject. We also have a considerable interest in ensuring that the Bill leaves your Lordships’ House in a better state than it arrived. That surely is the justification for this process and, indeed, for your Lordships’ House. As we are all self-confessed experts on this subject, I have every confidence that the Committee process will achieve that improvement.

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

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

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

Baroness Gould of Potternewton
I understand the points that the noble Lord, Lord Bates, has made but what I find difficult is the taking out of the whole of that phrase. If, as has just been said, only the word “securing” were taken out with a view to the commission monitoring “compliance with”, there might be much more logic to the amendment. However, as it stands, it seems that the noble Lord is seeking to take away a great bulk of the regulatory power that the Electoral Commission is designed to have. I think that removing the section relating to compliance means that the commission will not conform to the recommendations of the Committee on Standards in Public Life, which made it very clear what it thought the role of the Electoral Commission should be, and the commission has duly accepted that role. The Committee on Standards in Public Life said that the Electoral Commission’s role should be,

“as a proactive regulator of Party funding—with the courage of its convictions to, where necessary, test advisory opinions in the courts, and have the power to fine political parties who break the law”,

and,

“to provide strong control over electoral administration”.

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

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

16:00:00

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

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

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

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

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

“taking such steps as they consider appropriate with a view to”.

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

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

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

What I would say to the noble Lord and to all noble Lords present, on the Front Benches particularly, is that I called an open meeting today, although it was at an inconvenient time and I understand why. However, my officials are available to discuss the Government’s amendments with them and with other noble Lords during the course of the next few days and will be happy to do so given the circumstances of this matter. These are very complex provisions and represent a significant addition to the Bill, so they needed very careful drafting.

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

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

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

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

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

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

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

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

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

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

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

16:15:00

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

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

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

On the substance of the amendment, I should say that it was a probing amendment, because it is important that we put on record—I am disappointed that we have not had this yet from the Minister—a set of circumstances, or a “for instance”, when this power would be used. I will give way to the Minister if I have got him wrong, and apologise in advance if I have, but that is what I was looking for. If Schedule 1 to the Bill specified the appropriate steps that might be taken, that clarification would be helpful. Does the Minister want to come back on that?

Lord Bach
I am not sure that examples would be very helpful here. The Electoral Commission has responsibility for the whole gamut of election rules in this field. Where there are breaches, the job of the commission is not only to monitor them but to secure a proper result from them. That might involve using civil sanctions or it might involve a criminal case. In a much less serious case, it might well involve giving advice to the party or individual involved. Its job goes beyond monitoring—in effect, just observing—and acting as a regulator, telling those whom it regulates, “Look, you’ve got this wrong. This is what you should perhaps do in the future”. That is a very broad role but it is something that should happen practically every day.

Lord Bates
I am grateful to the Minister. It is indeed broad and that is my point: it is too broad in its present form. A number of colleagues have mentioned in debate on this matter that further clarification is merited. For example, my noble friend Lord Hodgson said that, if something is considered to be appropriate, what will be considered as inappropriate? I accept the comment of the noble Lord, Lord Borrie, that judgment is important but I think that we need further detail on this.

I was looking at the review of the Electoral Commission by the Committee on Standards in Public Life, which the noble Baroness, Lady Gould, mentioned, and I found several references to how the commission’s work should be carried out. There is a whole section—Chapter 4—on the Electoral Commission’s accountability, and in a sense the amendment seeks to touch on that. That chapter talks about the Electoral Commission’s accountability to the Executive through the legislature, which is entirely appropriate, and there are several sections with recommendations concerning accountability, guarantees and membership of the Speaker’s Committee. That seems to be a fraction at odds with the phrasing in the Bill and, in that sense, it sets the tone for our debate. I am taking a bit more time over this because the Bill refers to,

“taking such steps as they”—

that is, the Electoral Commission—

“consider appropriate”,

as opposed to recognising its role as—I give way to the noble Baroness.

Baroness Gould of Potternewton
To me, this is making heavy weather of the matter. The noble Lord referred to the question of accountability in the review by the Committee on Standards in Public Life, and there is a whole range of people to whom the commission has to be accountable. The point is that, if it did something inappropriate, that would be identified. The commission will be monitored annually—or even more frequently—and I find the attempt to put down a whole list of things very strange. Having been a past organiser for the Labour Party and having been an electoral agent umpteen times, I can only say that the list would be many pages long, covering all the possible things that the Electoral Commission might have to deal with. The way that it reacted to those different things would obviously differ. As the Minister pointed out, some of them might just involve giving advice and some might end up in a court case. Not understanding the breadth of the problems that could arise indicates slightly narrow thinking in relation to what can happen in terms of elections, and I think that that is well covered by the sections on accountability.

The Electoral Commission has failed in the work that it has been able to do, but I believe that this legislation gives it the opportunity to do exactly the kind of work it should be doing. If you narrow what it can do by listing its activities, what happens if there is something that you have not listed? It will make it more difficult for it to do the work. We seem to be making heavy weather of what to me seems a simple and easy clause of the Bill.

Lord Bates
I am grateful to the noble Baroness for her intervention. Yes, we are making heavy weather of this, but because we are at the opening of the Committee stage, it is appropriate to set the tone and to put down markers of concern to which we may return as we go through the Bill. As my noble friend Lord Marland pointed out, we could be charged with granting people blanket powers.

The noble Baroness referred to the fact that the powers—those not listed in Schedule 1—would run to several pages. We have lots of pages in the Bill—there is no shortage—and I was merely inviting the Minister to respond with some examples of the specific steps that might be taken. Will he give examples of those which are appropriate but not necessarily contained in Schedule 1?

Lord Bach
The Electoral Commission does not have blanket powers. It is accountable to Parliament via the Speaker’s Committee set up under the 2000 Act. It must also use the powers it has within the law. Clause 1 responds directly to the CSPL’s recommendations and is not at all at odds with those recommendations. It is in the Bill because the CSPL inquiry into the Electoral Commission decided that improvements could be made, and this is one of them.

Lord Bates
I hear that and I am grateful for this debate. It has aired some points and principles to which I am sure we will return. I do not wish to press the amendment and seek leave to withdraw it.

Amendment 1 withdrawn.

Clause 1 agreed.

Clause 2 agreed.

Schedule 1 : Investigatory powers of Commission

Amendment 2

Moved by

2: Schedule 1, page 24, line 24, leave out “or has been”

Lord Bach
Government Amendments 2 and 3 provide for a time limitation on the commission’s ability to issue a disclosure notice requesting information or documents for its supervisory purposes. The effect is that such a notice can only be issued to someone who has been a treasurer or other officer of a body supervised by the commission within the past five years. I will break away from my brief for a moment or two in order to point out that for many years I was treasurer of a constituency Labour Party. It is so many years ago that the five years catches it very easily indeed. The full list of the bodies to which this potentially relates is set out in paragraph 1(1) of proposed new Schedule 19B to the Political Parties, Elections and Referendums Act 2000, inserted by Schedule 1 to the Bill.

In another place, it was suggested that the possibility of the commission requesting information a long time after a person ceased to be supervised by the commission would place an unduly onerous burden on former treasurers or other officeholders, in effect requiring them to retain information relating to income and expenditure indefinitely. The Government accepted that given the often involuntary nature of staff occupying these posts, such a requirement was particularly onerous.

16:30:00

The Electoral Commission has reassured us that as the power to issue a disclosure notice under this power applies only to the commission’s supervisory role and cannot be used in connection with investigations into suspected breaches, it is unlikely that it would need to use this power more than five years after an individual had ceased to fall within the commission’s jurisdiction. Therefore, we seek to amend paragraph 1(2) of the schedule so that the commission would be able to issue a disclosure notice only to a person who has been a treasurer or to another officer of an organisation, to which paragraph 1(2) applies, in the past five years. We believe that the five-year limit strikes the right balance and helps to ensure that accurate audit trails are kept of information relating to income and expenditure without placing an unduly onerous burden on former treasurers.

We are not seeking to place any time bar on the commission’s power to request information under paragraph 3 in relation to a suspected offence or contravention. This power remains without time limitation, as we believe it should given the importance of effected investigation and enforcement of breaches of the rule. I beg to move.

Lord Bates
I support the amendment. It is similar to one that we have proposed and relates to a discussion in the other place. Indeed, it was promised. We tabled a similar amendment in Committee in the other place and the Minister agreed to consider it further. However, it was rejected because of poor drafting. It proposed that a long-standing officer of more than five years could be excluded even though they were still serving. Our point is similar.

Sometimes people can get the wrong impression about those who constitute a local political party. There may be other political parties which are well run and have great officers, compliance officers, accountants and lawyers just sitting there in constituency association offices on the seventh floor of some tower block. The Tory Party is not like that; in many places, those officers are volunteers. The office, if there is an office, comprises a Curver box handed on from one officer to another. We must remember that those people are doing tremendous work, as I said at Second Reading, in ensuring that the channels of democracy function within our country. Acting on a voluntary basis, they ensure that people hear about different, alternative political options which are available. Such people are the heroes of our democratic system and ought to be upheld as such and not have undue responsibilities placed upon them. For that reason, we believe that a five-year limit may be appropriate.

Furthermore, it is worth mentioning, without giving specific examples, that people who undertake the administrative work within a political association often tend to be slightly more advanced in years—I choose my words very carefully—than some of the people who are out pushing leaflets through letter boxes. There are some grand exceptions of people still out there campaigning to the last, but this is one of the ways in which volunteers can help if they cannot go out delivering leaflets. That voluntary contribution is welcomed by the parties. The whole purpose of the Bill is to encourage people coming into political activity in a lawful, above-board, clear way. Therefore, this amendment achieves that objective and we want to support it.

Lord Rennard
I should declare an interest in this matter—perhaps a more direct interest than some noble Lords present. I am directly employed by the Liberal Democrats as the party's chief executive. My duties in that capacity include acting as the nominating officer and campaigns officer for my party. That makes me rather more familiar with aspects of legislation relating to political parties than I would sometimes choose.

Clearly, the Electoral Commission supports the amendments and it seems that we all agree on them, so I will simply say on a personal note that as one of those people who may one day be subject to any investigation by the Electoral Commission, I will sleep slightly more safely in my bed knowing that after at least five years of having parted with such responsibilities it can no longer pursue me for information in relation to such things. I am sure that this will be welcome across all the parties and we support these amendments.

Lord Bach
Before I begin my very short reply, did the noble Lord say information or investigation?

Lord Rennard
I think that I said investigation.

Lord Bach
In which case, I am sorry to have to disillusion the noble Lord because this government amendment deals with information that the Electoral Commission can claim after five years has run. As far as investigations are concerned—and I tried to say this at the end of my opening remarks—this is only on the supervisory role of the Electoral Commission. Investigatory powers apply without limit.

It is good to have the chief executive of the Liberal Democrats here to help us in dealing with these difficult matters. I was almost weeping when I heard the noble Lord, Lord Bates, describe the difficulties of the Conservative Party. It almost made me feel sorry for the Conservatives, but I will resist that temptation. What he had to say was absolutely right. All parties—the three big ones as well as other legitimate parties—rely on volunteers. It is very important that we do not impose overmuch on those who give their time freely in this field. We want to have a live democracy—a point the noble Lord made both at Second Reading and today. I am grateful for the support for these government amendments and I beg to move.

Amendment 2 agreed.

Amendment 3

Moved by

3: Schedule 1, page 24, line 25, at end insert “has been at any time in the period of five years ending with the day on which the notice is given; or”

Amendment 3 agreed.

Amendment 4

Moved by

4: Schedule 1, page 24, line 26, at end insert—
 “(2A) A disclosure notice must be served on the individual specified in sub-paragraph (2) by hand by a person specifically authorised by the Commission to affect the service of such notices.”

Lord Bates
I am delighted to move Amendment 4. I had not expected to move the Minister to tears so early in proceedings, but I hope I will have the opportunity to do so again as consideration of the Bill continues. In many ways, this next amendment is in a similar vein. I hope that the Minister will have some positive responses to this because it relates to the nature of the issue of a disclosure notice. The amendment stands in my name and that of my noble friend Lord Henley.

The provision does not mention what method the commission would use to serve a disclosure notice, so in that sense the amendment is probing what is intended. The disclosure notice is an important tool of the investigatory work of the Electoral Commission, but how is it to be served? The amendment would insert a provision that the disclosure notice must be served by hand by a person who has specifically been given the power to effect these notices by the commission.

We agree with the Government that these notices are hugely important. While we think that flexibility is important in many areas, in this, we feel that the disclosure notice should be served in person. There will be those who make the point that it is unwieldy, will delay the process and cause problems for the commission. However, in devising the amendment, we were mindful of the experience that some other bodies had had; for example, where a request for information had been sent out to the wrong address and the information therefore not received, or compliance noted.

Lord Campbell-Savours
Perhaps I may ask the noble Lord a very simple question. What happens if the person on whom the notice has to be served is in  the Caribbean? Does the Electoral Commission have to send someone to the Caribbean and then have them chase round an island to find them?

Baroness Gould of Potternewton
Perhaps I may ask another question. The noble Lord, Lord Bates, mentioned the information going to the wrong address. If it is the wrong address by post, it will be wrong by delivery, too. How will that be resolved?

Lord Bates
I am grateful to the noble Baroness, Lady Gould, for giving me a millisecond to think of an answer to the question about the Caribbean. I am sure that many officials at the Ministry of Justice would volunteer for such a fine trip out to that wonderful part of the world. The noble Lord makes a good point, but this is a probing amendment. Twenty-nine people have been prosecuted under the 2002 Act, resulting in 23 convictions. The amendment would not impose too onerous an obligation. Given that the Bill recognises that the Electoral Commission should apply its judgment, one would hope that it would apply some judgment as to where it found the individual residing at the time.

If the person were to be based in the Caribbean, as in the noble Lord’s example, how would the Electoral Commission know that the letter had been received? Would it have an accurate mailing address by which to contact the person? Her Majesty's Government’s reach extends to far and away places through ambassadors’ posts and chargés d’affaires. Other people could therefore be called on to serve a notice on behalf of an agency of Her Majesty's Government if that were required.

I am merely saying by way of this amendment that if the Minister could give some statement as to how the commission intends to ensure that these important notices reach safely and in a timely manner the hands of those for whom they are designed, I would be very grateful, and would reserve any other comments for my response if necessary. I beg to move.

Lord Rennard
This is not an amendment that we would support. The requirement of delivery of service by hand to the individual is not appropriate in the modern age. Fortunately, there are very few occasions where there are significant legal battles between the parties. It happens that today I am engaged in such a battle between political rivals. I have arranged for solicitors’ letters to be delivered by e-mail, fax and to an office address. I am satisfied that that is a satisfactory way of dealing with proceedings without having to find any named individual in person and deliver anything to them by hand. It is no longer practical in the modern age to assume that you could find an individual and serve a notice by hand. There are other electronic methods, including fax, by which it is possible to serve such notices.

16:45:00

Lord Bach
It is a good job that this amendment is not in force, because if it were we would not have the advantage of the company of the noble Lord, Lord Rennard, because he would be busy, perhaps in the Caribbean or somewhere else, handing out a writ.

I see why the noble Lord, Lord Bates, has moved the amendment, but my noble friend Lord Campbell-Savours pointed out in his usual incisive way why this amendment would not work. I suspect that before the end of the Committee I may be a victim of that incisiveness, rather than the noble Lord, Lord Bates. I appreciate that the amendment is semi-probing, in any event. However, I presume that it is also intended to cover disclosure notices issued under paragraph 3 in relation to suspected offences or contraventions. As drafted, it relates to paragraph 1(2), which refers to the commission’s supervisory role only. I shall deal with the amendment as if it applied to both the commission’s supervisory and investigative roles.

This issue was the subject of debate in another place. As the Minister said in another place, we appreciate the importance of ensuring that disclosure notices are received and that those to whom they are given are aware of them. However, we believe that there are better ways of doing that, particularly in modern times.

Obviously, serving notices by hand would place an unnecessary and potentially significant additional burden on the commission that would exceed those placed on other comparable regulators. It may also create an opportunity for those on whom the commission intends to serve a disclosure notice to obstruct the receipt of that notice, either by refusing to accept it or by putting themselves in a place where service becomes difficult, if not impossible. That would hamper the commission's supervisory and investigatory role. That is not what the Committee wants. A number of different methods may be used, including registered post, to send notices and ensure that they have been received. Registered post is used to send other important documentation and we can see no reason why it should not work well in these circumstances, too.

It is in the commission’s interests to ensure that a notice is received. If not, it is not possible for the person on whom the notice is served to comply. We have had our debate on this issue and I hope that the noble Lord will withdraw the amendment.

Lord Bates
I am grateful to the Minister for pointing out that our amendment was probing and was intended to refer not only to the supervisory issue, but to the investigatory powers. I take it that the Minister is saying that the responses are to be sent by registered post, and that that is the chosen means of communication, which sounds reasonable.

I challenge him on one point, regarding the burden that this would place on the commission. The other matter relates to an attempt to avoid having a notice served. It may be awkward to avoid a notice being served by an individual acting on behalf of the commission; it would be much easier simply to say that the letter was not received or to prevaricate and avoid the commission’s legitimate inquiries. That would seem to be a sensible point, and later we will come to the matter of ensuring that investigations are dealt with in a timely way. We are trying to come forward with ideas that would help in pursuit of that. In chapter two of the report on party finance and expenditure in the United Kingdom, the point was made that breaches of the PPERA, which attract criminal sanctions listed in Section 20, have amounted to 23 prosecutions since inception. That is around about four per year. We are not suggesting that people have to be dispatched, be it to the suburbs of London or the north of England or the Caribbean to serve these notices on a regular basis. These are very serious offences but there are four a year. On this side, we are simply saying that that care needs to be taken to ensure that these reach the people for whom they are designed in a timely way.

Lord Bach
To clarify one matter before the noble Lord finishes, I was trying to make it clear that registered post is one method that might be used. It would be quite wrong for me to say that it will be the only method used; it is for the commission to determine the best means, taking account of the circumstances. I used it by way of example, rather than saying that it was definite policy.

Lord Bates
Is the Minister saying that serving the notice by hand is not an option that could be considered?

Lord Bach
It may be an option in a given situation, but I do not think that they should be confined to doing it by hand alone.

Lord Bates
Given those assurances, I am grateful for the consideration that the Minister has given to our proposals and to other noble Lords who have spoken. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5

Moved by

5: Schedule 1, page 25, line 2, at end insert—
 “(3A) A person served with a disclosure notice under paragraph 2 may appeal to the Commission in writing within 14 days of receipt of service under sub-paragraph (2A).”

Lord Bates
The amendment inserts a right of appeal in respect of the disclosure notice issued pursuant to paragraph 1(2). In the other place, there was concern that without a right of appeal, which is proposed in this amendment, we may facilitate an overly zealous approach by the commission. As it stands, the commission has to disclose notices freely on individuals and groups associated with political parties. Essentially, there is a danger that the notice regime becomes a fishing exercise. Without a right to appeal, there is nothing preventing the commission trawling through records and other information in the slim hope of finding some minor detail to investigate. Clearly that is not what this legislation is designed for and not what the Electoral Commission has in mind. Therefore, we felt that allowing this appeal might create a useful way for someone to react to having such an important notice served on them—for example, if they feel that they have been wrongly identified as the responsible individual, or other circumstances that need to be brought to mind.

Lord Campbell-Savours
Surely in those circumstances the person who has received this notice would simply write back and say, “I’m sorry, I don’t have the information”. Why does there have to be an appeal procedure when all that person has to say is, “I don’t know”?

Lord Bates
That, in a sense, is an appeal. The appeal is to say that they are not the person concerned and that they have been wrongly served with this notice. The notice is a very serious legal document. To be served with such a document is absolutely appropriate, if it is right and it is to the right person in the right terms about the right case. If you are not that person and you are challenged on your identity, there ought to be provision for an appeal. Our amendment provides for that appeal. Again, it is not something that will be open-ended or will thwart the work of the commission. We have said that it should happen within 14 days of receipt of the disclosure notice. It also puts down a marker on the commission’s work that says that disclosure notices cannot be sent out to secure information; there must be clear grounds for the disclosure notice to be forwarded to the named individual. Therefore, if that person feels that the notice has been inappropriately served on them, they should have the right of appeal. That is what the amendment seeks to do.

Lord Borrie
I find this a rather odd amendment, partly for the reasons that my noble friend Lord Campbell-Savours has mentioned, and partly because of the use of the word “appeal”, when the appeal is to the same body that made the determination in the first place. It is really a request to the commission to think again, but that hardly needs a provision in the Bill. If anybody receives a notice that is inappropriate, there is nothing to stop a lawyer or other adviser—it does not have to be a lawyer—from saying, “Tell them thus and thus”. It is not really an appeal. I am not suggesting that a separate body should be set up that could be appealed to; but the use of language here is inappropriate, and I am not sure what the effect would be.

Lord Rennard
We await the Minister’s reply with interest. Normally, there would be no reason to object to a rapid appeals procedure. However, this is not so much an appeal against a decision as a request for information. It seems that, when a request for information is made, if you feel that you have grounds for what might be described as an appeal—you might say, “I am not the person responsible for this” or “I could not possibly know”—that does not necessarily require a formal appeals mechanism. Indeed, as the noble Lord, Lord Borrie, asked, who would the appeal be made to, other than the commission that had issued the request for disclosure of information? I await the Minister’s reply with interest.

Lord Bach
I will address this amendment, even though it deals with supervisory functions, because it also deals with the commission’s investigative role. My first point is the one made by the noble Lord, Lord Rennard. A disclosure notice is essentially a request for information, requiring the person to whom it is given to produce for inspection by the commission any documents that relate to the income and expenditure of regulated individuals and organisations, and are reasonably required by the commission for the purpose of carrying out its function. It is appropriate and necessary for a regulator to be able to require disclosure from those it regulates, or those whom it has reason to believe hold information in relation to a suspected offence. The commission is best placed to decide whether it is necessary to issue such a request, and it would slow down the investigation considerably if each notice was accompanied by a right of appeal.

I emphasise that a disclosure notice is not a sanction, so an appeals process is not necessary. As has been made clear by my noble friends Lord Campbell-Savours and Lord Borrie, individuals who feel that they have a reasonable excuse not to comply with such a notice—for example, for the good reason that they do not hold any of the requested documents—can provide the commission with an explanation of why this is the case. We would expect the commission to consider any such explanation carefully before deciding whether to insist that the notice should be complied with. In any subsequent proceedings for an offence of refusing to comply, any such explanation would have to be taken into account by the commission or by a court. We must also be careful here not to create an opportunity that might be exploited by those who, for reasons of their own self-interest, do not want to co-operate with the commission in performing its supervisory role or want to delay its investigations.

I am afraid that we cannot accept the amendment. We are not aware that regulators with comparable powers, such as the Financial Services Authority, are subject to this sort of right of appeal when seeking information. We do not believe that there is a case for making a special argument for the commission in this instance. I therefore ask the noble Lord to withdraw the amendment.

17:00:00

Lord Bates
I accept on one level that the arguments seem a little thin in terms of making this request for a review, but it seems appropriate. I can think of a few circumstances in which it could be useful. Is it requesting too much to have something contained within the letter to the effect that the disclosure notice would clearly have to set out some statements of fact about why the disclosure notice had been sent to that individual—that there were certain assumptions—and that the person can write back? We can argue the semantics about whether writing back constitutes an appeal.

There may also be circumstances in which someone receives a disclosure notice and the facts are absolutely correct: they are the person and this is the information. But there may be areas of which we are not aware why they feel that it is unfair for them to be served with a disclosure notice and therefore they should have some basis of appeal. That was the thought behind the amendment.

I accept all the points that have been made and the weaknesses of the argument that have been presented and I recognise many of them, but I none the less think that it is important to put these things on the record to test the Government’s view on these matters and what are the boundaries. The theme that comes through all these amendments is the boundaries. What procedures are there to protect the rights of individuals who are brought into inquiries under the auspices of the Electoral Commission? I am grateful for the Minister's response as well as the noble Lord’s corrections and I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6

Moved by

6: Schedule 1, page 25, line 4, leave out from “within” to end and insert “28 days of that disclosure notice”

Lord Bates
Amendment 8 is in the same group as this amendment and would have a similar effect. The proposal is a simple one: that there should be some time limit rather than no time limit for compliance with a disclosure notice. When someone is exactly the right person and they have received a notice, they should respond within an appropriate time. Not to do that would in itself be a delaying mechanism.

The first amendment makes it obligatory that when a disclosure notice is issued to an organisation or individual it must be complied with within 28 days and generally probes the time that the Government consider to be appropriate. If it is not 28 days and the Government feel that the time limit should be longer or shorter, we would be open to that. We are concerned with the worrying potential of a vague time limit to be applied in an unpredictable and unfair manner.

Lord Campbell-Savours
The noble Lord has just used the word “unpredictable”. What happens if our treasurer is on his Caribbean island when he receives the notice and he knows that the document is in London? If he is not coming back to London for a couple of months and there is no way in which he can get access to the documents, or if, for some reason, it is not possible for him to locate the documents in London or interview some of his colleagues there who might have evidence that he feels should be given to the Electoral Commission, does that mean that he will be in default of the notice? Surely there has to be some flexibility to provide for circumstances under which it would be impossible to comply within a certain date. There must be some arrangement whereby he can go back to the commission and say, “Look, I need more time”.

Lord Bates
He could say that. If someone is served with a disclosure notice and they are the person involved, whether they are in the Caribbean or Outer Mongolia I hope they would respond to the request as a matter of grave importance and hot foot it back to London, or wherever it is that the documents are, in order to comply with an important investigation by the Electoral Commission. I am sure that most people would want to do that. Whether it is 20 days or 56 days, my point is simply that there ought to be some limit.

The technique often used in these kinds of debates is familiar and I understand it: it is to reduce the issue to absurdity and to say, “In these extreme circumstances, would it not be silly if so and so happened?”. In these circumstances, would it not be silly if someone was not required to comply with the disclosure notice for a year, two years or three years? The paragraph states that it should be within a period of time.

Baroness Gould of Potternewton
But the Electoral Commission will determine a specific time. So it will not be one year or two years; it will be what the Electoral Commission suggests would be an appropriate time.

Lord Bates
The noble Baroness is suggesting that the Electoral Commission has an answer to this in the sense of what would be an appropriate amount of time. Therefore, if it is open ended, why should it differ from one individual case to another? Why cannot there be a simple, set time in the Bill to which people would have to advert? That seems a more sensible step than the open-ended approach which is being proposed at the moment. I will be interested to hear the Minister’s reply to that.

Lord Rennard
It seems to me that the Electoral Commission is simply saying that any fixed period, whether it is 28 days, 35 days or 42 days, is not appropriate in this case. Those familiar with election law will understand why perhaps matters such as declarations of election expenses should be made within a fixed period after polling day, but on something like this, it is not possible to say that there should be a precise timetable by which you should do it. However, there is still a case for saying that it should be dealt with as expeditiously as possible. Perhaps the Minister might consider some kind of guideline to suggest that it should be dealt with as reasonably soon as possible, or something to that effect. But a precise timetable of X number of days does not seem to me to be appropriate.

Lord Hodgson of Astley Abbotts
I see the difficulties of setting a precise date or a number of days, but it seems to me that the noble Lord, Lord Campbell-Savours, lives on a different part of Planet Politics if the treasurer of his association spends two months in the Caribbean each year. He is a lucky chap to have a treasurer who is so well off as to be able to do that.

My noble friend is attempting, as he is entitled to at this stage of the Bill, to get some idea from the Government of what they expect of the Electoral Commission. We had a lengthy debate on the first amendment on the meaning of “appropriate”; now we are debating what is a “reasonable” time for disclosure. We are putting an awful lot of weight on the judgment of the Electoral Commission, which is permanent, empowered and embodied by professionals. On the other side of the scale there is the treasurer of the noble Lord, Lord Campbell-Savours. We need to consider the issue of equality of arms. On one side you have our fellow citizens undertaking this role for one political party or another as a sense of civic duty; on the other side you have a large organisation which will be more empowered by the Bill if it is passed. As I say, we need to make sure that we have equality of arms. I think that my noble friend is trying to get from the Minister a sense of how these great powers will be used. I understand the need for flexibility and I understand how hard cases make bad law, but we need to know clearly in the Committee today how the Government see the powers being used. It is part of finding out the intention behind these quite loose phrases, although perhaps they have to be loose.

Lord Maclennan of Rogart
First, I believe that this is an adequate provision and that the safeguard in the Bill to prevent the abuse of this open-ended power is the use of the word “reasonable” in paragraph 4. Secondly, if the matter is not backed up quickly and responded to, there is a possibility that the court may be involved. If the court is not satisfied about the reasonableness of the requirement of the commission under paragraph 4(2), the order will no doubt be withdrawn.

Lord Bach
I am grateful to the noble Lords who have spoken in this short debate. These amendments would require those served with a disclosure notice by the commission under paragraphs 1 and 3 of Schedule 19B to comply within 28 days. Currently under the Bill, they would be required to comply within such reasonable time as specified in the notice.

As my right honourable friend the Minister of State emphasised in another place in response to an identical amendment, the Government fully accept that those who receive a disclosure notice need to be given time to comply with it and that they need to know how long that period is. That is why the Bill currently provides for a disclosure notice to specify a reasonable period of time within which the person served with the notice must comply.

The issue here is that what constituted a reasonable amount of time in one case would not be reasonable in another. Therefore, while a time limit of 28 days would be sufficient in some cases, it might cause real difficulties for the receiver of the disclosure notice in others.

We think that, on balance, the best way forward is to allow the commission the discretion to vary the period for compliance depending on the nature of the request. This more flexible formulation is appropriate, as in some instances the commission will need to allow a longer period for the production of documents or the provision of information than in others. For example, a request may be time-critical, particularly if there is a concern that the success of an investigation may be under threat if it is not obtained very speedily. It will be open to individuals to contact the commission to seek an extension of the period if they feel they have genuine reasons for doing so. Alternatively, a longer period may be more appropriate where a large amount of documentation is sought.

Again, in this instance we think that we have the balance right and that it would be too inflexible to set a particular number of days, as it would not cover every circumstance. Therefore, I ask the noble Lord to consider withdrawing the amendment.

Lord Bates
First, I am grateful to those who have spoken, and I particularly thank my noble friend Lord Hodgson. Here, we are seeking a definition of “reasonableness”. The Minister made a very interesting point which seems to have been defended by others in the Committee. We are saying that it would be entirely unreasonable to set a time limit in the Bill. Yet paragraph 5(1) says:

“The Commission may retain any documents delivered to them in compliance with an order under paragraph 4 for a period of three months … In this paragraph “the documents” and “the three-month period” mean the documents and the period mentioned above”.
 

In that particular case, which is in the same schedule, there is a time limit. What is proposed here is that the definition of what is reasonable cannot be stipulated. Even if the Minister came back to us with an argument that a time limit should be set—and of course we will be told in the letter—but that it should not exceed a period, for example, consistent with the three-month period mentioned elsewhere in the Bill, that would seem quite appropriate. Otherwise, what protection is there for the individual—to use the well worn example of the individual in the Caribbean—against any malicious aspect in an approach or request simply inserting that he must respond within two or three days?

17:15:00

Lord Bach
Reasonable is a word that appears in almost every statute that I have had anything to do with or ever read. That is a protection that the courts will use to ensure that no injustice is done to a party in a case of this kind. It is an odd doctrine that says that the word reasonable is not a protection in a case like this. We do not think that it would be terribly helpful to a person who has to answer a disclosure notice if they were necessarily restricted to 28 days when in that case it may, for good reason, take them much longer to get together all the necessary documents. When flexibility is possible, there should be flexibility. We think that that is much fairer not only to the commission—we can put the commission on one side—but to the person on whom the disclosure notice is served than the alternative suggested in this amendment.

Lord Bates
The Minister makes a very sensible point and I do not dispute it. It is entirely appropriate to put these amendments down to probe and get these points of information on the record. If it is a “die in the ditch” principle to apply “reasonable” there in the Bill, then “reasonable” ought to be used elsewhere in the Bill. Why mention any time limit whatever when we can simply say “reasonable time limits”?

Lord Bach
Subject to later amendments is the time limit in Clause 5(1). The three months retention there protects the individual, as does allowing appropriate time for compliance with an order. Protecting the individual is the key for these provisions and the reason for inclusion of a non-specific time period for the subject matter of this amendment. Three months’ retention mentioned elsewhere is specifically to protect the individual.

Lord Bates
I am grateful to the Minister, but why then cannot it be put in the letter to the individual to whom the disclosure notice is served that they should respond in a reasonable time? Of course, that will not happen—a specific time will be put down, because that will be judged as fair and reasonable. What would be appropriate would be to put down some marker as a time limit and a period within which would be appropriate. The Minister does not think that that is reasonable; he thinks that reasonable is sufficient. We will not press the matter at this point, but the point has been made and it stands. I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Amendment 7

Moved by

7: Schedule 1, page 25, leave out lines 15 and 16

Lord Tunnicliffe
I am pleased that somebody reminded us earlier that we are all experts in this room, and therefore almost everybody has an interest to declare. My own political career has not been particularly illustrious, but I recall that, almost by accident, I was treasurer of Bracknell Labour Party—a Herculean task.

I move this amendment because, in the judgment of the Minister, it is short, non-controversial and will be quickly and consensually agreed to. I trust that his judgment will be proved right. Amendment 7 seeks to narrow paragraph 2(1) of new Schedule 19B to the Political Parties, Elections and Referendums Act, which sets out organisations and individuals to whom the commission's powers of entry and inspection will apply. Under the current provisions, the powers of entry and inspection apply to registered parties, a recognised third party, a permitted participant, a members’ association and an organisation or individual formerly falling within these categories.

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

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

Lord Henley
I will now offer my noble friend a break from responding to the Government, as the noble Lord, Lord Bach, has also decided to take a break. I will also take the opportunity to declare my own interest as a former chairman of the Penrith and the Border Conservative Party association, which I think the noble Lord, Lord Campbell-Savours, knows well as a fellow resident of the north-west.

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

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

Amendment 7 agreed.

Amendment 8 not moved.

Amendment 9

Moved by

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

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

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

In considering whether the High Court should deal with these applications, we have taken into account the likely impact on the workload of the High Court, ensuring that the commission's investigations are not delayed, and the complexity and possible political sensitivities in play in these applications. We are reassured that the likely number of cases that will come before the High Court will not add in a significant way to the pressure of business on that court.

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

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

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

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

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

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

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

17:30:00

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

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

Amendment 9 agreed.

Amendment 11

Moved by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Amendment 11 agreed.

Amendments 12 to 14

Moved by

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

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

14: Schedule 1, page 27, line 3, at end insert—
 “4A (1) This paragraph applies where the Commission have given a notice under paragraph 3 requiring any information or explanation to be provided.
 (2) The High Court or (in Scotland) the Court of Session may make an information-disclosure order against a person (“the respondent”) if satisfied on an application by the Commission that—
 (a) there are reasonable grounds to suspect that a person (whether or not the respondent) has committed an offence under this Act or has contravened (otherwise than by committing an offence) any restriction or other requirement imposed by or by virtue of this Act, and(b) there is any information or explanation referred to in the notice under paragraph 3 which—(i) has not been provided as required by the notice (either within the time specified in the notice for compliance or subsequently),(ii) is reasonably required by the Commission for the purposes of investigating the offence or contravention referred to in paragraph (a), and(iii) the respondent is able to provide.(3) An information-disclosure order is an order requiring the respondent to provide to the Commission, within such time as is specified in the order, such information or explanation falling within sub-paragraph (2)(b) as is identified in the order.
 (4) A person who fails to comply with an information-disclosure order may not, in respect of that failure, be both punished for contempt of court and convicted of an offence under paragraph 13(1).”

Amendments 12 to 14 agreed.

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

17:41:00

Sitting suspended.

17:51:00

Amendment 15

Moved by

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

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

I will get back to the matter in hand, which is Amendment 15 and its associated amendments. The Minister briefly tried to pre-empt the amendment when we discussed Amendment 6 and the question of time limits, and whether one should use the word “reasonable”. Again, I stress that these are probing amendments; we are seeking to discover why the Government are doing what they are doing, and ask them to explain their reasons. The amendments ensure that documents cannot be held by the commission for the full three months set out in the Bill, but instead for only six weeks—that is, 42 days. Amendment 18 also gives the power to magistrates’ courts to extend that period by a further 14 days on application by the commission to the courts.

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

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

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

The enhanced powers to seize documents, to which these concerns are related, were, I think, dropped from the Bill by Ministers during its passage through the other place. Therefore, in a sense, it is rather unclear why this issue has not already been resolved. In Committee, the Government argued that amendments along these lines would impact significantly on the commission’s ability to give proper consideration to documents which it required for the purposes of investigating a suspected breach or contravention of the 2000 Act. The Minister also pointed out that the commission could return documents before the three months if there was no reason to retain them for longer. However, in a sense, that flexibility should work the other way round, given that there is also the longstop provision that, in the case of a major investigation, the commission can apply to a magistrates’ court to extend the period.

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

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

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

18:00:00

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

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

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

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

“unreasonably short for the purposes of an investigation”.

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

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

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

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

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

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

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

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

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

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

Amendment 15 withdrawn.

Amendments 16 to 23 not moved.

Amendments 24 and 25

Moved by

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

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

Amendments 24 and 25 agreed.

Schedule 1, as amended, agreed.

Clause 3 : Civil sanctions

Amendment 26

Moved by

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

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

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

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

Lord Brooke of Sutton Mandeville
I had noticed the recommendation by the Delegated Powers Committee. Although I served on it for four years, I am not as adept as I should be in recognising when the Government have accommodated one of its recommendations. I verified that there had been no government response published by the Delegated Powers Committee and am extremely grateful to the Minister for having delivered it, so that we do not have to return to it in any other way. I notice in passing that the Joint Committee on Human Rights, which produced a report in February, was much more explicit in its advice to both Houses, and delivered a long amendment to be put in the Bill. The Delegated Powers Committee obviously operates at a higher intellectual level because it does not actually instruct both Houses, merely draws matters to their attention.

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

Amendment 26 agreed.

Clause 3, as amended, agreed.

18:15:00

Amendment 27

Moved by

27: After Clause 3, insert the following new Clause—
 “Education about electoral systems
 (1) In section 13(1) of the 2000 Act (education about electoral and democratic systems), paragraphs (b) and (c) are omitted.
 (2) For section 13(3) there is substituted—
 “(3) Subsection (1) does not apply in relation to local government elections in Scotland.”.”

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

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

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

“current electoral systems in the United Kingdom and any pending such elections, together with such matters connected with any such existing or pending systems as the Commission may determine”.

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

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

“current systems of local government and national government in the United Kingdom and any pending such systems”,

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

“the institutions of the European Union”.

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

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

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

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

Lord Tyler
I would like to comment briefly on the new clause proposed by the noble Lord, Lord Norton of Louth. We have anxieties which mirror his about ensuring that the commission has a clarity of purpose which it has lacked in recent years. I do not blame the commission for that. Quite frankly, it is a creature of the political system and political parties and Governments have raised expectations about the breadth of work it can undertake. However, I think that this is a good moment to ensure that there is some reorientation to provide more emphasis on the regulatory monitoring and reporting of the democratic process and to try to avoid spreading the net widely in the way that the noble Lord mentioned.

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

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

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

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

Lord Henley
I shall give my noble friend a little time to think of his reply to the noble Lord, Lord Campbell-Savours. I was somewhat surprised to hear the noble Lord, Lord Tyler, describe STV as the simplest system ever devised. Certainly that is not my view and I do not think that it is the view of many of us around here. Having said that, I was pleased to hear him express some support for my noble friend’s amendment. It strikes me as being a truly wonderful Conservative amendment in that it says that we must get the Electoral Commission back to its core regulatory and supervisory functions and strip away the extra bits which are not necessary, which it is not necessarily very good at and which are possibly a waste of money, or, if they are not a waste of money, that money can be put to better use.

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

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

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

Lord Marland
I confess and declare that I did not go to the University of Hull—in fact I did not go to any university at all, which probably makes me totally inadequate in making any statement here. However, I did go to the university of being Treasurer of the Conservative Party in probably the darkest and most difficult time for political funding. One of the lessons I learnt in dealing with the Electoral Commission—and it was put so beautifully by the noble Lord—was that it did not have any clarity of purpose. It was confused and unable to understand what disciplines it should mete out and how to control the funding. The key words here are “clarity” and “purpose”. We must ensure that we have people who understand the process operating the commission.

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

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

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

18:30:00

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

We would resist this as we believe that these roles go hand in hand. In advising people about how to vote and on registration procedures, the commission should also be able to educate people about how the various systems of local and national government in the United Kingdom, and institutions of the European Union that they might be voting for, operate. This will ensure that people fully understand the various systems in place so that they can make informed choices about how to vote. The Electoral Commission is well placed to provide this role given its independence and breadth of experience in the field.

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

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

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

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

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

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

The noble Lord, Lord Campbell-Savours, asked what my motivation was. It is that I took part in the debates on the Bill in 2000 and raised the issue then, because I was not persuaded that this was a core function of the commission. I think the view at the time was, “Let’s test it and see if the commission encompasses it”. I am therefore pursuing the line and am not persuaded that there is a case for retaining it—if anything, I think that my argument is now stronger in the light of experience. I am grateful to my own party for the support that it gave me back in 2000 on this issue.

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

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

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

Amendment 27 withdrawn.

Schedule 2 : Investigatory powers of Commission

Amendment 28

Moved by

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

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

“the only sanctions that the Electoral Commission has if the parties do not comply with the legislation is to name or shame or, if the offence is sufficiently serious, to refer it to the Crown Prosecution Service for criminal prosecution”.

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

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

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

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

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

I am slightly puzzled by these amendments. Amendments 47, 49, 53 and 57 seem to be based on the premise that a penalty requirement could be applied even if there has been no offence or any contravention. Guidelines from the commission may deal with that, rather than introducing requirements or penalties where there has been no offence or no contravention. Similar arguments apply to Amendments 39 and 48 and I am not sure why they have been degrouped. I should be grateful for further information on this.

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

18:45:00

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

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

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

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

Under this amendment, the phrase would change to:

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

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

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

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

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

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

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

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

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

“would prefer to retain the ability to scrutinise the offences and contraventions in respect of which the Commission is to be able to impose the new sanctions”.

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

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

Lord Campbell-Savours
A party worker.

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

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

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

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

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

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

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

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

Amendment 28 withdrawn.

Amendment 29

Moved by

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

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

The amendments would basically remove the word “prescribed” where it appears in relation to an “offence” or “restriction or requirement”. That means that civil sanctions are available in relation to any offence, restriction or requirement and not just to those that are prescribed.

At this point I want to say a little more about the punishment fitting the crime which is being undertaken here. When offences have occurred, a just outcome is what we seek. In many ways, what is being proposed in terms of fixed monetary penalties would fall into this category. That type of sanction could be available to a court if it was a criminal sanction. The court may decide that a fine is the appropriate outcome. I would not want to see these presented as a mere slap on the wrist: they are a significant advance over the current power in the Act which effectively allows the commission to name and shame or refer cases to the Crown Prosecution Service.

There are some pretty substantial penalties here, and it is important how this works. I referred to our concern over what might be termed innocent mistakes. In other words, without testing the emotions of the Minister, we are dealing with a network of people who are volunteers up and down the country, and the sanctions that may be available to them. We were concerned that there should be a defence of an innocent mistake, or that that might be considered. The strong point about the civil sanctions that have been proposed is that they would allow for some incremental offence. In the first instance, therefore, someone would be told to desist from such an action that could potentially give rise to a crime, the clear implication being that if they did not stop, there would, sadly, be no alternative than to pursue a criminal prosecution. That is going in the same direction as the financial penalty that would be levied by the commission, which one would hope people would comply with. In the event that they are unable to comply with the financial penalty, there would be an incremental reference through the Crown Prosecution Service into the courts, which I presume would take account of an individual’s ability to pay.

19:00:00

These are probing amendments that follow the approach that there are some pretty strong powers here under the civil sanctions, which could be used in most cases to satisfy and ensure that action is stopped. The objective of all these provisions is to serve as a deterrent to people as well as to ensure that the punishment fits the crime. With those comments, I look forward to the Minister’s reply. I beg to move.

Lord Campbell-Savours
I express a margin of concern about this part of the Bill. I go back to the little old man with no money and who has made a mistake. It is the dynamics within the constituency party that interest me. The treasurer, who may be the person who at the end of the day is held to account, could be subject to all sorts of pressures within a constituency party or association. They might be bullied, misled or ill advised, or they may feel that they have to assert their position in some way to convince others that they warrant the position that they have been given. There are all kinds of pressures on individuals that might lead someone into a position in which they made a mistake.

We all know that regulatory authorities can sometimes be very heavy-handed. I do not always trust these bodies to take the right decisions in those circumstances. They say “prosecute” or “bring charges” or whatever without understanding what is going on in the background. I am not trying to argue against this part of the Bill, but I am entering this reservation. When my noble friend describes in his letter the so-called areas of prescribed offences and penalties, he and his civil servants might have in mind the possibility that those conditions could exist within a political party or association.

Lord Pearson of Rannoch
I apologise to the Committee for arriving somewhat late, but I have only just come back from across the pond, as they say. I very much support the general thrust of these amendments and I shall refer to what I said at Second Reading. A very substantial donor to my party had been on the electoral roll for many years, and was then left off it in error for one year and gave a substantial sum of money to my party. This is a slightly delicate matter, because we are in dispute with the Electoral Commission about it, but the point is that the error was purely technical. The commission now says that the sum of money has to be repaid, which is not an easy matter at all.

It is true that the then treasurer of the UK Independence Party did not behave well towards the Electoral Commission. He was somewhat arrogant in saying that this was just a technicality and, “Get off our backs”, as it were, but I hope that we have apologised for that. We cannot discuss the present case, but, going forward, it seems that if a treasurer of a party knows that someone is not on the electoral roll for technical reasons, and that there are other reasons whereby, for example, someone might not want to be on the electoral roll for security reasons—one has in mind the Islamist threat and, previously, people who were exposed in Northern Ireland—the treasurer should be free to accept a donation from such a person, provided that he explains the matter to the Electoral Commission and it is satisfied with his explanation.

I wish to make only a brief contribution at this stage. Depending on what the Minister says, I may come back and make a better fist of it at the next stage. I support these amendments.

Lord Bach
To some degree I was tempted to answer the points to be made on this group during what I had to say on the previous group. Other interesting issues have arisen.

The question of how the commission uses its powers is interesting, but I should remind the Committee that the civil sanctions regime, if I may call it that, is very flexible indeed. One possible outcome is a fixed monetary penalty, provided that the commission is satisfied beyond reasonable doubt that a prescribed offence has been committed, which has to reach the criminal standard of proof. Instead, the commission may impose a discretionary requirement on a person, a political party, recognised third party or permitted participant, when it is satisfied beyond reasonable doubt that a person has committed a prescribed offence. A discretionary requirement can take various forms, including a monetary penalty or just an instruction to take certain actions designed to prevent the recurrence of an offence or contravention, or to restore the previous position.

The Electoral Commission can also impose a stop notice on a person to prevent them doing what they are doing. If the commission has reasonable grounds for believing that a prescribed offence has been committed, it can accept an enforcement undertaking from an individual or party. I point those examples out to show how flexible the system is. The commission states that its criteria in investigations are,

“intended to ensure that we only use our supervisory and enforcement powers where it is reasonable and proportionate to do so. Our action is likely to include an investigation [of] whether a breach has occurred, or whether to impose a civil sanction… in the limited number of cases where this is currently possible … or determine that a case should be considered for criminal prosecution. Our policy is to investigate where a case meets the following criteria: there is evidence or credible information indicating a possible breach of party and election finance legislation—not merely assertion”,

or rumour,

“and we consider that it is in the public interest for us to investigate, taking into account the potential impact of the possible breach on the integrity or transparency of party and election finance, the cost of investigating relative to the overall impact of the breach, and any other considerations that may be relevant”.

It comes to this: the commission is not obliged to do anything even if an offence has been committed. The commission has issued enforcement guidance saying that it will act proportionately and in the public interest, as I have just quoted. If a decision is taken to impose a fixed monetary penalty, it will be at the relatively low end of the scale, and there is a right to make representations before a final decision is made to issue the penalty. The commission is obliged at this stage to take local pressures into account if it is made aware of them.

My noble friend gave the example of the impoverished treasurer who has made a mistake. Later in Committee, we will discuss government amendments that introduce a concept of “reasonable excuse” into the reporting requirements of the 2000 Act, so that an offence will be committed only if a report is submitted late and without reasonable excuse. This will ensure that good reasons for a failure to comply are taken into account.

I point this out to indicate the flexibility of the scheme. As the noble Lord, Lord Rennard, said earlier, under the present scheme, either offences are classed as criminal in a manner that goes way over the top, with courts being bothered with matters that should never concern them, or nothing is done at all. This is a more satisfactory way of dealing with the issue. I imagine that, if some impoverished treasurer of a constituency association or party should find themselves in this position, the commission will act reasonably and proportionately towards them.

Lord Campbell-Savours
I am sorry to interrupt my noble friend, but this is important. If the regime changes in the way that the noble Lord, Lord Rennard, described, there may be more interventions by the commission, because the threshold will have been dropped. There are likely to be more complaints, and perhaps more complaints upheld, with action being taken. My noble friend says, “Well, they can take into account the local conditions and a reasonable defence”, but this is not a court of law. An officer of the commission will decide on something that might be critically important to an individual. There are no proceedings and no appeal body that they can go before that will decide whether, on balance, the penalty imposed is reasonable. This is the area that I am uneasy about. Will my noble friend bear it in mind? I do not expect him to give a detailed response now, but he might have it in mind when he and his civil servants respond to the noble Lord, Lord Bates, and me, on these matters.

Lord Bach
I promise that we will have that in mind, but a number of issues arise. One is that for a fixed monetary penalty, a notice must be served allowing representation to be made by the individual or the party to what is intended. Also, after representation has been made, there is a right of appeal to a county court against the decision of the commission and any penalties that have been imposed. Thus, careful balances have already been made.

Of course, my noble friend has a good point. The threshold may be lowered and the commission may be tempted more often than it has been in the past. That is possible. But it is important that the system is enforced, as I think he will agree, so that public confidence can be upheld. When I write to him, I will make sure that I explain why I do not feel that there is a real danger that someone in the position of the person he described will in any way come out worse than under present conditions.

19:15:00

Lord Bates
I am grateful for the Minister’s reply and for the other contributions to this short discussion on this important matter. This is our opportunity to try to shed a bit of light on the circumstances in which particular orders will be used. I shall test that a little further, although it may have to be dealt with in the Minister’s response to the next group. If he can deal with it now, that would be interesting.

The Minister referred to the commission’s assertion that it would effectively have four tests—the first being body of evidence, the second, public interest, the third, cost of investigation and, four, any other factors. The element of discretion is in that last point. Would the financial circumstances or standing of the institution, or organisation or individual, be one of those factors that could be taken into account? The objective—and it is very important for the commission’s work—is to be able to move very quickly to stop problems and put out small fires, rather than have big fires that get wrapped up in the courts and go on for ever and ever, as the noble Lord, Lord Pearson, said. Can we have some clarity on where the dividing line is between the different choices of the clubs in the commission’s bag?

I would be grateful if the Minister could say a little more on the ability of the commission to take into account local pressures. I may have misheard that or misplaced the context, but could the Minister expand a little on what he was referring to there?

Lord Bach
In the end, it will be up to the commission to determine its own criteria, but they will have to be reasonable and proportionate. It is not something that we feel that we can legislate for. I promise to ask the commission if it can provide any further information to the Committee and the House on their intentions as regards the questions that noble Lords have so properly asked.

When I spoke of local overall impact, I was trying to illustrate the flexibility that the commission will exercise in deciding the appropriate thing to do in any given case. I will put more information in a letter if the commission comes up with something that can help.

Lord Bates
I understand that I am pressing into areas that are not written down on the application of the provisions. One of the things that we are looking at here is what the noble Lord, Lord Campbell-Savours, referred to; that is, the possibility, to which I referred in a different context, that, while there have been only 23 prosecutions under the 2000 Act, with the wider range of sanctions available to the commission, the number of penalties and fines levied could mean that the number of offences increases substantially. That could occur and it would be good to understand the limits of the sanctions.

It also refers to the kind of circumstances which would lead to the commission of a proscribed offence. The section describes the difference between the civil sanctions, where they would not be appropriate and what the orders would be. The Minister has referred to this and I do not want to draw out any more examples at this stage. I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

Amendments 30 to 39 not moved.

Amendment 40

Moved by

40: Schedule 2, page 32, line 13, at end insert “within 28 days of receipt of the notice under paragraph 2(4)”

Lord Bates
Two themes have recurred in the discussions on the amendments on this first day in Committee: the first is the boundaries of discretion of the Electoral Commission and the second is the question of timings. I tested the Committee’s patience when I tried to impose timings earlier—I did not meet with a great deal of success—but in this schedule a number of references relate to time limits. For example, under “Completion certificates” the Bill states that,

“The Commission shall make a decision whether to issue a completion certificate within 14 days of the day on which they receive such an application”.

The amendment follows a similar vein by requiring a fixed penalty monetary notice to be paid within 28 days. This group of amendments is designed to probe how quickly a fixed monetary penalty should be imposed and seeks to insert some important time limits into the Bill. The amendments relate to the period in which an individual can respond to a relevant civil sanction imposed upon them by the commission. As it stands, the Bill is very vague.

That was recognised in the debate which took place at the Report stage in the other place on 9 February (Official Report, Commons; col. 1143). The Minister said at the Committee stage on 13 November that these amendments were unnecessary because the Bill already provides that the commission must specify the exact period for payment of the fixed monetary penalty when it imposes it, and that that period cannot exceed 28 days. However, I think the Minister is aware of the line that I am going to tread in order to get a little more information. Hitherto, it was stated that no limit in circumstances was required; here, there is a limit of 28 days for the amount to be paid.

Again picking up on the interesting point made by the noble Lord, Lord Campbell-Savours, when he referred to the ability to pay, is the Minister proposing that there must be a commencement period and that the funds must be received within 28 days, or is there just a maximum of 28 days? Is it possible—I should be grateful for the Minister’s guidance on this—that payment of the fine could be required within, say, seven, 14 or 21 days up to a maximum of 28 days? Perhaps the person would be unable to make that payment or would require longer, depending on the scale of the fines that could be levied.

There are some reasonable issues to tease out. These are probing amendments. We are trying to tease out the reason for inserting that the time limit cannot exceed 28 days, and we are also trying to tease out what difficulties that might impose on the commission collecting the fine or the individual paying the fine. I beg to move.

Lord Bach
A number of opposition amendments have been tabled which seek to alter some of the detail contained in new Schedule 19C to the 2000 Act. Quite a few of these amendments concern fixed monetary penalties, which will be available to the Electoral Commission as part of a new range of flexible civil sanctions. We believe that this will be a vital component of our proposals to make the Electoral Commission a more effective regulator of political party finance.

I will say a few words on the purpose of fixed monetary penalties and why they are included in the Bill. They were included in the Regulatory Enforcement and Sanctions Act 2008, of which some of us have happy memories, for the purpose of addressing relatively low-level instances of non-compliance. We believe that fixed monetary penalties are an appropriate tool for the Electoral Commission as they will allow smaller infringements, perhaps for a report which is late by a few days, to be dealt with without the need for a full criminal prosecution.

Fixed monetary penalties, as part of the range of new civil sanctions, will allow for a more proportionate approach to enforcement which will be less likely to expose minor errors to the full glare of prosecution and will in turn reduce administrative burdens associated with the enforcement of PPERA. That is not to say that a fixed monetary penalty may be imposed lightly. It is important to stress that Schedule 19C contains a number of key procedural safeguards, as set out in that piece of legislation. As the noble Lord, Lord Neill, pointed out during Second Reading, the evidential standard for imposing a civil sanction remains at the criminal standard of “beyond reasonable doubt”. The Electoral Commission will therefore need to be thorough in its investigations and will not be able to apply this penalty as if it were a parking ticket.

Apart from a criminal evidential standard, this sanction, as with the other sanctions provided for by Schedule 19C, contains other important procedural safeguards, including the following. First, there is a requirement for the commission to state the grounds for the proposal to impose the sanction in an initial notice of intent so that it may be disputed before the imposition of the final penalty. Secondly, there is an opportunity to make representations and objections in response to the initial notice, which must be taken into account by the commission before it decides whether or not to go on and impose the penalty. Thirdly, as I said in answer to previous amendments, there is a right to appeal to a county court—or to the sheriff in Scotland—against a final decision of the commission to impose a fixed monetary penalty.

Where the commission proposes to impose such a penalty in respect of an offence triable summarily or triable either way, that penalty must not exceed the maximum that would be available to a court if the same offence were pursued as a criminal matter. That maximum is currently level 5 on the standard scale, or £5,000.

On a related note, as we discussed earlier, following a recommendation by the House of Lords Delegated Powers and Regulatory Reform Committee, we brought forward Amendment 26 to provide that an order prescribing the amount of a fixed monetary penalty must be subject to the affirmative resolution procedure.

One of the fundamental tenets of the Macrory review, as expressed in the RES Act, was that effective and proportionate regulation should see criminal prosecution reserved for the most serious cases. That was also the recommendation of the Committee on Standards in Public Life. We believe that, as part of a range of new civil sanctions, fixed monetary penalties will help to provide not only for a more proportionate system but also for a more effective one.

19:30:00

I move on to the amendments. Amendments 40, 41 and 42 all relate to the timescales for periods of discharging liability. These amendments were tabled during the Bill’s Committee stage in another place. Amendment 40 seeks to alter the definition of a fixed monetary penalty set out at Schedule 19C by incorporating a requirement that such a penalty must be paid within 28 days of receipt.

It is worth noting that the Bill differentiates between a notice of the commission’s intent to impose the sanction in the first instance and the subsequent imposition of the final fixed monetary penalty itself. The effect of Amendment 40 would be that a fixed monetary penalty would always have to be paid within 28 days.

Currently, the Bill states, at paragraph 2(1), that the period given in any notice inviting a person or body to discharge liability or to make objections in terms in response to the initial notice regarding a proposal to impose a fixed monetary penalty must be 28 days. However, the Bill does not set out this time limit for the final fixed monetary penalty notice, although paragraph 3(3) requires the commission to include a defined timescale for making payments in that notice. Therefore, the 28 days does not necessarily apply to the fixed monetary penalty notice but only to the first part of the process—that is, the initial notice.

We have not set out a timescale for compliance for the final notice because, again, as I think I have already argued this afternoon, we feel that the commission will need the flexibility to ensure that this sanction can be applied appropriately, using its knowledge and experience to determine in which circumstances it might be appropriate to have a shorter or longer timescale payment. It is also in line with the approach taken by the RES Act, and we are not minded to depart from that unless there are very strong arguments in favour of doing so.

The additional constraint introduced by Amendment 40 is unnecessary, given the requirement in public law that the commission acts in a “reasonable” manner in the exercise of its powers, including those allowing it to impose civil sanctions. If a demand from the commission allows an unreasonable period of time, that may provide a ground for appeal.

I could go on and deal with each of the amendments in turn but I do not think that the Committee would want me to—I think that I have support for that proposition. I take very much into consideration the fact that the noble Lord, Lord Bates, says that these amendments, many though they may be, are probing, so that he can get more than an impression of what we are saying here.

Perhaps I may quote from the commission’s draft enforcement guidance. Paragraph 3(4) states 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 and will balance [this] with our first priority to conduct a fair and thorough investigation”.

We must be wary that any attempt to be more prescriptive over the commission’s procedures, however well intentioned that may be, does not produce unintended and unwanted consequences.

This group contains a lot of amendments, and I do not think that there is anything else that I need to say. I hope that I have given enough information about how we see the Bill giving enough flexibility to the Electoral Commission to do its job better, while at the same time preserving the interests of either political parties or individuals who come under its gaze.

Lord Bates
I am very grateful for the Minister’s reply and clarification as to where the 28-day limit applies, which is very helpful. Paragraph 3(3) of Schedule 2 states:

“A notice under paragraph 2(4) must include information as to … the grounds for imposing the fixed monetary penalty … how payment may be made … the period within which payment may be made … any early payment discounts or late payment penalties”.
 

We are interested in the concept of the early payment discount and whether it will be coupled with “easy payment” terms. It is likely that if the fine is set at level 5—that is, £5,000—a hefty tariff will apply.

The notice must also include information on rights of appeal. Our amendment was trying to tease out a little further whether there were any time limits and how long someone could spin out the appeals process. What would be their rights of appeal, for example, and how long would they be given to pay? We basically wanted a general discussion on that, but the Minister has been extremely helpful in providing assurances and understanding. As such, I beg leave to withdraw the amendment.

Amendment 40 withdrawn.

Amendments 41 to 46 not moved.

Lord Tunnicliffe
This may be a convenient moment for the Committee to adjourn until tomorrow at noon.

The Deputy Chairman of Committees (Baroness Gibson of Market Rasen)
The Committee stands adjourned until tomorrow.

Committee adjourned at 7.37 pm.