Schedule 1 : Investigatory powers of Commission: Schedule to be inserted into the 2000 Act
Moved by Lord Marlesford
1: Schedule 1, page 39, line 24, at end insert "provided that prior approval to enter any premises and to inspect documents found on those premises has been obtained from a magistrate"
My Lords, I feel that I should apologise to the House for intruding on a Bill in which I have not taken part, although I have followed the proceedings on it. My point is wide and could affect all government departments in due course. Perhaps the only slight reflection I have is that—with the greatest respect to the noble Lord, Lord Bach, who I think will answer my amendment—it varies so widely that I almost wish that the First Secretary of State, Lord Pooh-Bah himself, were here to answer this brief debate.
My amendment is concerned with an important constitutional point, which is on the powers of entry to premises. Many will be fully aware of the Bill that my noble friend Lord Selsdon, who unfortunately is not able to be here today, introduced in your Lordships' House in 2007 as a Private Member's Bill that received its Third Reading on
We all recognise that, in the very complicated life which we all lead, with Governments inevitably involved in and having to legislate for rules and regulations covering many different aspects of our lives, it is necessary for the Executive and their agencies to be able to check and enforce the legislation. What I do not think is so axiomatic is that there should be powers of entry to premises without consent or, if consent is not forthcoming, without at the very least the same sort of consent that the police have always had to have, which is a warrant. My amendment is to Schedule 1, where it says on page 39 of the Bill:
"A person authorised by the Commission may, for the purposes of the carrying out by the Commission of their functions—
(a) at any reasonable time enter premises occupied by an organisation to which, or an individual to whom, this paragraph applies",
I propose merely to add the very necessary words—they would of course only apply where agreement has not been reached—
"provided that prior approval to enter any premises and to inspect documents found on those premises has been obtained from a magistrate".
It is a very simple amendment. I am doing it on this Bill because it was very disappointing that the Government, having indicated that they had sympathy with the desirability of reducing the occasions on which officials have powers of entry without warrant, did not take the opportunity in this Bill of circumscribing the powers of entry in this case, in this schedule, in the manner that I am advocating.
Unless we actually make a start on at least not extending the number of powers of entry without warrant, we will never get anywhere. I hope that the time will come when the thousands of powers of entry that exist, scattered through the legislation on the statute book, will gradually be reduced. I recognise that it is a peripheral matter to this Bill, but I hope very much that the Government recognise that it would at least show an indication that the concept of unlimited powers of entry without consent was no longer acceptable in this country. We have been talking much recently about the alienation of the people from Parliament and from Governments. If political parties of whatever side were to explain to people that they sought greatly to reduce the number of occasions on which powers of entry could be used without a warrant, it is the sort of thing that they would very much find strikes a chord. Therefore, my amendment, which in no sense damages the purpose of the basic provisions of the Bill, is modest. I hope very much—but not with enormous optimism—that the Minister may find it in his heart, if not in his brief, to give some warmth in his reply to my amendment. If, by chance, some drafting improvement could be made, then I would be perfectly happy for the Government to give an undertaking to come back at Third Reading.
In the mean time, however, I press the Government firmly to take account in the Bill of the need to take this step, in the direction that I have described. I beg to move.
My Lords, I support the amendment moved so ably by my noble friend. His intrusion, as he put it, into the debate is welcome. It highlights an issue which has in many ways been dealt with in some detail by the Government, in the way that they have responded to issues arising from how the Bill was originally presented in the other place. When it was, the powers proposed were certainly far more draconian than those being considered now. In the intervening period, we had the disgraceful situation concerning my honourable friend Damian Green in the other place, with the access that was granted to his offices without his consent and the searches that were conducted.
This is not in any way to suggest that the important work of the Electoral Commission—or, indeed, of the police, in the case of Damian Green—should be impeded, but simply that due process should be followed and that consent should be obtained. If consent cannot be obtained for some good reason, or there is a suspicion that, by giving notice, a further misdemeanour or crime may occur, it is open under my noble friend's amendment for the Electoral Commission to approach a magistrate and secure a warrant for that purpose.
While what we recognised in Schedule 1 was brought back after that incident, when it was taken on Report and at Third Reading in the other place there was a significant reduction in the powers of entry in that clause. That was welcomed and we appreciated the steps that the Government had taken to listen to our concerns at that point over Damian Green.
The amendment just offers a further tightening of the wording in a way that does not diminish in the slightest the powers of the commission to undertake its tasks. Therefore, we on these Benches are pleased to support my noble friend in his amendment. Obviously, we await the Minister's response with interest.
My Lords, I, too, support the amendment. There seems no good reason why we do not have the normal formula, such as "by order of" or "with the authority of" a court.
A further point is that the interrelationship between these powers of entry in paragraph 2 does not really tie in with paragraphs 3 and 4. I can see nothing in paragraph 2 about the commission having "reasonable grounds to suspect" something or other. In certain circumstances it can come to a conclusion and serve a notice that it suspects something such as the withholding of documents. If you look on at paragraph 4, you find on page 40 that, when the commission has served such a notice, the High Court can make an order if it is satisfied that,
"there are reasonable grounds to suspect that a person ... has contravened ... any restriction or other requirement imposed by or by virtue of this Act".
One of those requirements would obviously be one following from a paragraph 3 decision.
What troubles me is that this appears to be, in paragraph 2, a free-standing power of entry that is not linked with any conclusion by the commission that there are reasonable grounds to suspect that somebody is withholding something or has committed some other offence at all. This needs to be rethought, in my submission, and made harmonious with what one would normally expect. The noble Lord, Lord Marlesford, has moved an amendment with which I agree. The interrelationship between these clauses needs to be looked at.
My Lords, I too would like to add my strong support to this amendment. In my naivety I did not realise that the normal conditions of applying for warrants did not apply in this case. It is rather sad in a way that things should have to be tightened but, if tightened they must be, this amendment is extremely sensible.
My Lords, I am very grateful to the noble Lord, Lord Marlesford, for introducing this short debate on an important point. There may be some misunderstanding about it, but I understand the context in which the noble Lord is raising this issue. What he seeks to do in his Amendment 1 is to amend paragraph 2(2) of the new Schedule 19B to the Political Parties, Elections and Referendums Act 2000, which sets out the commission's powers of entry and inspection in relation to regulated organisations only. They are listed in paragraph 2(1). They are:
"(a) a registered party or in the case of a registered party with accounting units—
(i) the central organisation of the party;
(ii) an accounting unit of the party;
2(1)(b) a recognised third party (within the meaning of Part 6);
(c) a permitted participant (within the meaning of Part 7)
(d) is a members' association (within the meaning of Schedule 7)".
They are the only people who are subject to this power.
This is a supervisory power which allows the commission to enter premises at reasonable times to inspect documents relating to the income and expenditure of regulated organisations to which the power applies. The important point is that this is not a power for use in connection with investigations, or suspicions of wrongdoing. Rather, it is for use where the commission needs access to the financial and related documents, documentation of political parties and other related entities in connection with its regulatory role. That is why there is no relationship between this power in paragraph 2(b) and paragraphs 3 and 4 that the noble Lord, Lord Neill, stressed.
My Lords, that is probably true, but this is solely to do with the regulatory role as opposed to the investigatory role. This power actually replicates the commission's existing power. This is not something new. This was a power of entry in the Political Parties, Elections and Referendums Act 2000. Although I have not had a chance to research the matter completely, my understanding is that there was no opposition to this power when it was passed through Parliament in 2000. The only difference is that now it will apply to members' associations as well.
In practice, the power generally underpins the commission's ability to visit parties co-operatively, to verify claims for policy development grants and conduct risk-based assessments. The effect of the amendment would be to place a requirement on the Electoral Commission to obtain prior approval from a magistrate before it can enter the premises of a supervised individual or organisation to inspect documents relating to their income and expenditure.
I appreciate the intention behind the amendment, which is to help us to ensure that powers of entry are used appropriately. We fully support the view that the powers of entry in the Bill should be proportionate and justified, and feature appropriate safeguards to prevent their misuse. That is why the Government took steps in another place to restrict the application of this power to regulated organisations and not to individuals, and to prevent the use of this power of entry in connection with an investigation into a suspected breach or contravention of the 2000 Act. As I understand it, in so far as any investigation or suspected breach is concerned, even getting a warrant would not be sufficient to allow entry after the changes the Government made in another place.
These steps are in addition to retaining the safeguards which the power has featured since the 2000 Act. For example, the power must be exercised at reasonable times and is confined to financial documents. Additionally, authorisation of a person acting on behalf of the commission to enter premises must be in writing and must be produced by that person if required to do so by the owner or occupier of the premises.
We therefore think that the power of entry already features sufficient safeguards to prevent its misuse. A step such as that proposed in this amendment would, we think, place an unnecessary obstacle in the use of this power. As such, it risks undermining the Electoral Commission's effectiveness. Now more than ever, it is vital that Parliament empowers the regulator so that he or she is fully equipped to regulate the political system effectively. We therefore share the commission's view that the amendment would result in additional bureaucracy without any additional benefit. An application to a magistrate may lead to a negative and false inference being drawn; a court granting such a warrant may be seen to imply that the commission suspects breaches of the rules. That is not the case: the commission's use of this power is not concerned with the investigation of, or any suggestion as to the commission of, an offence.
Furthermore, it is not clear what factors a magistrate would be taking into account when deciding whether to give approval. Given that the power allows the commission to enter premises at reasonable times for the purposes of carrying out its supervisory functions, it is difficult to envisage a situation where approval could reasonably be withheld.
The further steps we have already taken to prevent the use of this power of entry in connection with an investigation into a suspected offence ought to reassure the House that the power will be used appropriately. In addition, the Electoral Commission says in its briefing:
"Government amendments agreed during the passage of the Bill provide appropriate safeguards on this power ... The proposed involvement of a magistrate may create the misperception that a party has breached the law, where clearly it has not".
The commission also undertakes to give organisations whose premises it intends to visit advance notice of the time and date of the proposed visit.
This power of entry is not new—as I say, it has existed since 2000. The Electoral Commission has undertaken to use it only when necessary and to give parties prior warning. I repeat that the power cannot be used for investigations; instead, it allows the Electoral Commission to access information on those it regulates for its supervisory functions.
My Lords, I hope that the noble Lord realises that saying that something is already there and therefore it must be all right really is not acceptable in this area. Secondly, if the situation is as the noble Lord says, why does not the commission simply have the power to invite the organisation concerned to visit it, bringing along the relevant documentation?
My Lords, of course I do not say that because this has been law since 2000, that is a complete answer to the amendment of the noble Lord, Lord Marlesford. However, it seems to have worked fairly well since 2000; no one seemed to object the last time this matter was before Parliament. I am not sure what has changed since then to make a difference. Secondly, of course the commission—
My Lords, the Minister asked what has changed since then. The answer is the incident with Damian Green. We never considered that those powers would be exercised in the way that they were. They were exercised in that particular way and, as a result, the House is now extremely vigilant before giving them to anyone else.
My Lords, I do not blame the noble Lord for using that example, but it is a completely irrelevant answer to my rhetorical question. The Damian Green incident had nothing whatever to do with a power that already exists in law and has done since 2000. It has absolutely nothing to do with the power that remains in the schedule, which has existed since 2000. To answer the second point made by the noble Lord, Lord Pearson, of course it is hoped and intended that normally these regulated organisations—which are, as I have set out, the parties—will go to the commission if and when requested. This is just a back-up power in case that does not happen. It has nothing to do with investigations or times when there is a suspicion of wrongdoing.
My Lords, at the risk of testing the Minister's patience, I agree with his point about Damian Green but it is absolutely fundamental that the Electoral Commission has failed to police the donor system since 2000. It has failed to carry out its authority. Therefore, the amendment categorically puts in train a system that prevents the failure of the Electoral Commission. We must encourage this. There has been a litany of failure by the Electoral Commission. I would not want to be the executive of a party that was visited by the officers of the Electoral Commission on its whim, and without the authority of a magistrate.
My Lords, hard as he tried, the noble Lord could not try my patience. I take the point, but I do not think that this is an example of the failure of the Electoral Commission. The power remains. It has been there since 2000. It is useful as a back stop. I quite understand why the noble Lord, Lord Marlesford, has chosen this as a way of getting across his important and general point about entry into premises, but I submit that it does not apply here. I invite the noble Lord to withdraw his amendment.
My Lords, it has not happened. It is a back-up power. It has either been successful or not, depending on how the noble and learned Baroness looks at it. It has not been necessary to use it.
My Lords, in the Minister's explanation of why the Government wish to reject the amendment, he placed great stress on the fact that this power was for inspection, not investigation. We must understand that, in these circumstances, fishing expeditions may surely follow. You go out to inspect and, lo and behold, you end up with an investigation. It is naïve for us to think that there is a clear dividing line between inspection and investigation. The noble Lord, Lord Marlesford, is really concerned about investigation, but investigation may follow inspection as surely as night follows day. In many cases, the Electoral Commission may wish to use this power of inspection without the let and hindrance that the noble Lord, Lord Marlesford, proposes to impose upon it, to find ways of triggering and beginning investigations. The Minister is not being fair to the House in suggesting that there is a clear line between the two.
My Lords, I think that for once the noble Lord is wrong. I specifically asked outside the Chamber what the position would be if in the course of a normal supervisory, regulatory visit to a political party, suspicion of wrongdoing was found. I understand from the answer that was given to me that at that moment, the Electoral Commission would have to leave the premises and go through the process to which the noble Lord, Lord Neill, related, in paragraphs 3 and 4. That is the law. As soon as the Electoral Commission becomes suspicious that a wrongdoing has occurred, it has to work under different rules altogether.
My Lords, I have one question. The noble Lord, Lord Bach, has been saying repeatedly that this will not be used for investigatory situations but the Bill is unclear because it all comes under proposed new Schedule 19B, entitled "Investigatory Powers of Commission" at page 38. I support what my noble friend asked a moment ago. How on earth will one tell what the commission thinks it is doing?
My Lords, it is all in Schedule 1. This item comes under the sub-heading "Powers of entry and inspection"; which comes after "Power to requiredisclosure" and before "Powers in relation to suspected offences or contraventions". This passage occurs before that. I have tried to do my best to tell the House how this will work and how it would have worked since the year 2000.
He said that there may be a misunderstanding but there is no intention on my part, and no consequence from this amendment, to interfere with the proper functions of the inspectorate and those who are checking, as they are required to do, the implementation of the legislation. That is the first, basic point. I accept that in the great majority of cases—99 point whatever per cent—there will be no need for magistrates' warrants because these matters will be dealt with by a perfectly civilised communication and request for inspection and consideration. Most police actions are perfectly straightforwardly done by consent, discussion and agreement. The noble Lord said that the provision did not refer to individuals but it specifically says:
"This paragraph applies to the following organisations and individuals".
When the police have to intrude compulsorily on an individual they have to get a warrant and the magistrate takes into account the reasonable cause that the police put forward for the warrant. Exactly the same would apply here. The implication that magistrates would be incapable of making a decision is one that I would, I am afraid, reject.
I am very disappointed in the noble Lord's response. The argument about it being there since 2000 is never a good one. We are moving forward and there is increasing dismay at the extent, much of it inevitable, of the supervising, the checking and, in some sense, the intrusion on organisations and individuals. The time has come that this should be limited, as far as possible, to consent, and where consent is not given then the warrant of a magistrate is a good and democratic way to discourage unnecessary intrusion. I am afraid that I am not happy with what the Minister has said, and I should like to test the opinion of the House.