Schedule 2
Political Parties and Elections Bill
1:45 pm
Jonathan Djanogly (Shadow Minister, Business, Enterprise and Regulatory Reform; Huntingdon, Conservative)
This schedule specifies the various civil sanctions proposed in the Bill. The amendments relate to paragraphs 1 and 5 of proposed new schedule 19B to the 2000 Act, which schedule 2 of the Bill introduces. Part 1 is entitled “Fixed monetary penalties”. The commission is empowered to impose a fixed monetary penalty on the person, registered party, recognised third party or permitted participant if it is satisfied beyond reasonable doubt that an offence under PPERA has been committed or, more loosely, that there has been a contravention of a requirement imposed by that Act. Paragraph 1(6) of the proposed new schedule states that where an individual is issued with a fixed monetary penalty for an offence, that could be
“punishable on summary conviction by a fine”.
Any penalty must not exceed the maximum of that fine.
A person who has been served with a fixed penalty notice may appeal in writing to the commission within 28 days. The recipient also has the opportunity to discharge their liability by payment of a sum less than or equal to the full penalty. After that 28-day period, the commission must decide whether to impose a penalty—in which case a further notice will served—or not to proceed if it is no longer satisfied that an offence has been committed. If the person is served with a fixed penalty, they may appeal to a county court against the decision.
Amendments Nos. 31 to 34 and Nos. 73 to 76 are probing and seek they clarification on the Government’s use of the words “prescribed restriction or requirement” and
“by virtue of this Act”
in paragraphs 1 and 5 respectively. The latter amendments are essentially consequential on the former, as the same wording is applied to discretionary requirements as to fixed penalty notices.
Those two civil sanctions form the core of the new flexible powers that the commission will be granted under the Bill to enable it to deal with enforcement in a more flexible and proportionate manner. Fixed penalty notices require a person, a registered party, a recognised third party or a permitted person to pay an amount, specified in the notice, to the commission as a penalty for an offence under PPERA. Likewise, a discretionary notice places such persons under a duty to comply with a requirement placed on them by the commission to avoid further penalties.
We are slightly concerned at such broad terms and at the loose manner in which they may be interpreted by the commission. This is a complex and difficult area of law to understand and legislate on—that has been self-evident in our proceedings—and we believe that the drafting of these paragraphs is too broad. The possibility for wider interpretation makes the possibility of abuse high.
We should ensure that we clearly set out the parameters of the powers and the circumstances in which they may be used—not necessarily for the current commission, which has been privy to much of the debate, but for the commissioners of the future, who might not be so rational in their use of the powers.
We are having this discussion because of the broad remit given to the commission in previous legislation. In the past, there has been a tendency to interpret the commission’s broad powers as an invitation to limit its role as a regulator. We must ensure that we give the commission a precise and coherent pointer as to its role. Unfortunately, that is not the case with the drafting of these measures.
The lack of clarity also impacts on implementation. How can the individuals, groups and associations covered by the powers be expected to know what they should or should not do? They could be penalised if they get it wrong. The phrase
“a...requirement...by virtue of this Act”
is simply too opaque for practical purposes.
We also fear that the drafting may produce several unwanted outcomes. A less scrupulous commission could see it as giving free rein to use the powers, if it can squeeze its actions in under the broad headings. Press coverage of one heavy-handed or botched case could lead to a fall in the number of volunteers, who might fear being heavily punished for small mistakes. Then, in another six years’ time, we could be forced to review the commission’s powers again in another attempt to refocus its role.
Amendment No. 71 would delete paragraph 4, which deals with criminal proceedings and convictions in relation to fixed penalties. It is a probing amendment to try to discover the rationale behind the provisions. We are not entirely convinced that it is necessarily a good course of action to prevent the use of criminal proceedings as the ultimate weapon against non-compliance with earlier civil sanctions. We are concerned that the measure is too blunt in how it addresses the issue and would like to hear the Minister’s comments.
Amendment No. 72 would insert in paragraph 4 a new sub-paragraph, which would expressly exclude paragraph 4 from preventing any criminal proceedings being taken for any other offence under PPERA, or any other Act. The amendment is a consequence of our probing of this provision with amendment No. 71 and it would ensure that there was no confusion or possible grounds for a person to wriggle out of the offence.
There are a number of different offences relating to elections and political funding, not least in the Representation of the People Act 2000. Our amendment would make it clear that there was no overlap that would prevent a person from being prosecuted under such Acts where relevant. We should be careful not to encroach accidentally on other Acts, thereby reducing their punitive effectiveness or the offences under them.
Amendment No. 46 would strike out paragraph 8, although it is probing. Paragraph 8 deals with the imposition of criminal convictions for offences that have also involved the award of a discretionary requirement penalty. The Government’s attempts to prevent double jeopardy and the possibility of double penalties could be seen as too opaque and confusing. There is no reference to any time limit for the application of the provision, nor does it cover the possibility of what happens when there is non-compliance with earlier sanctions. In addition, the carve-outs under sub-paragraph (2) seem to leave little for the provision to bite on. We would welcome the Minister’s clarification on that aspect.
Amendment No. 47 comes as a consequence of our probing amendment No. 46, and it would ensure that there was no confusion or possible grounds for a person to get out of the offence. There are a number of offences relating to elections and political funding, not least under the RPA. We have to be careful not to tie the hands of the commission when that is not necessary.
Amendment No. 56, which is also probing, would strike out paragraph 20, which deals with the extension of the time limits laid down in the schedule for the commission taking criminal proceedings. Will the Minister please shed some light on why the commission will need to extend the time for taking criminal proceedings: under what circumstances is that likely to happen? Given that the commission must be able to show beyond reasonable doubt that any sanction is required, is it not unlikely to be necessary—indeed, it might be unreasonable—to grant it additional time if it has not made full use of the investigatory powers granted to it by schedule 1? We must end investigations at some point, otherwise we will be in danger of their running on for years, which could be unfair and unjustifiable.
Finally, if the Minister can convince us of the need for the power, should it not be subject to judicial consent so as to safeguard against abuse by the commission?