Clause 2

Political Parties and Elections Bill – in a Public Bill Committee at 5:30 pm on 11 November 2008.

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Investigatory powers of Commission

Question proposed, That the clause stand part of the Bill.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

We move on to clause 2, which deals with the new investigatory powers of the commission. PPERA created the commission and, at the same time, provided it with supervisory powers. Section 145 set out the general function of the commission as the regulator and monitor of compliance with part III, on

“Accounting requirements for registered parties”, and part IV, on

“Control of donations to registered parties and their members etc.”

To complement that, section 146 empowered the commission to require a predefined group of entities to provide it with information relating to their financial affairs. That predefined group included registered political parties, recognised third parties, permitted participants in a referendum campaign, regulated donees and candidates at an election.

A person authorised by the commission may also enter the premises of a registered party, a recognised third party or a permitted participant to inspect their financial records. However, according to the Secretary of State for Justice, those powers have been used only once. On Second Reading, he said:

“In any event, the existing powers have been used only once since the Electoral Commission was established nearly eight years ago”—[Official Report, 20 October 2008; Vol. 481, c. 50.]

The first question to ask is, why have they not been used more frequently?

The scope of proposed new section 146 goes well beyond that, and the Minister must show some evidence of the need for such an extension. In particular, it would interesting to know what formed the catalyst for the Government to give those powers to the commission, what format the consultation process took and who was consulted. Can the Minister provide figures for the number of instances in which the commission has failed in its duty as a regulator on the basis of a lack of those proposed powers? In other words, have the Government reviewed to what extent the failure to regulate has so far been as a result of inaction by the commission, or of a lack of appropriate legislation? When does the commission feel that there could be a need to go into the homes of individual donors? How frequently is that likely to happen and on what basis?

Clause 2 seeks to replace section 146 of PPERA, thereby providing the commission with increased powers of investigation. Subsections (1) and (2) would insert and give effect to what is now schedule 1 of the Bill, while subsection (3) makes provision for penalties for offences under the new schedule. Among other things, schedule 1 would enable the commission to require access to financial records and information, and to enter premises to inspect and make copies of relevant documents.

Paragraph 1(1) of schedule 1 is particularly concerning. It would extend the power under section 146 of PPERA to enter premises that had previously been restricted to registered parties, permitted participants and candidates at elections. Paragraph 3 of schedule 1 would include other bodies or individuals such as donors. Those investigatory powers can be exercised in cases where the commission has “reasonable grounds” to suspect that an offence or contravention has been committed. Will the Minister give an early indication of what he thinks would constitute “reasonable grounds”?

This provision has the potential to erode the willingness of law-abiding citizens to donate to political parties—a point that has been made by many people. It would take only one heavy-handed and well-advertised use of those powers in someone’s home or office for other legitimate donors to take fright at the prospect of giving money to political parties. Giving money to political parties is, for the vast majority of contributors, done for the noble and civic intention of wishing to promote a better society for all. To destroy or hinder that instinct would be inexcusable, let alone anti-democratic. That is why we have tabled a number of amendments to schedule 1. The stakes are high and we must thoroughly justify the need for these new, sometimes severe powers.

In so doing, the Minister should bear in mind the comments of Peter Wardle, chief executive of the commission. Giving evidence to the Committee on the extension of the commission’s powers to cover regulated donees, he expressed reservations over the extension and said:

“We feel that the current powers are adequate to do the job we need to do regarding inspection. One can see why, for completeness, the powers have been extended, but we are not convinced that we need these powers.”——[Official Report, Political Parties and Elections Public Bill Committee, 6 November 2008; c. 43, Q104.]

I read with interest the White Paper published by the Ministry of Justice in the run-up to the Bill. I note in particular the sections entitled, “The case for change”, through to, “The Government’s proposals for reform.”  However, in the section entitled, “The case for change”, I was left somewhat bewildered by the fact that there was no mention of the need for the commission to have the power to demand documents from individuals. That does not appear until the proposals on page 27:

“To provide the Commission with a widened range of sanctions and investigatory powers to enable it to become a more robust regulator. The Commission’s powers to obtain information would be extended to allow it to require the production of information from relevant individuals not currently covered by the PPERA powers where it is appropriate to do so...This would need to be accompanied by appropriate safeguards.”

Furthermore, there is no recommendation that the commission should be able to enter the homes of individuals. Will the Minister tell us from whom that recommendation first came?

The commission states that the power of entry is consistent with that used by other regulators. Will the Minister tell us what circumstances have necessitated the use of such powers? How often does he or the commission envisage the powers being used? Is the Minister also aware of the commission’s own concerns that the safeguards for access to premises occupied by regulated donees—including individual MPs and other holders of elective office—may not be robust enough? Has the Minister taken up the commission’s offer to consider further how to safeguard such powers effectively? Does the Minister not find it concerning that the very organisation that they seek to empower shies away from the arbitrary power being handed to it?

According to a press release issued by the Home Office in July there are now 1,043 separate laws that allow state inspectors to enter people’s homes and premises. On 15 July, the operational policing section of the Home Office slipped out a new detailed survey of powers of entry by state officials. There was no press release, no comment and no fanfare.

Of those 1,043 state powers of entry, 753 are exercisable under primary legislation and 290 through secondary legislation. In total, an estimated 430 new powers of entry have been created by this Government. Despite the Prime Minister’s pledge last year to curtail those rights, a further 16 new laws are being pushed through Parliament that entrench or extend powers of entry.

In a speech last year, the Prime Minister pledged to curtail powers of entry with a new liberty test. He said that any change to entry powers would be accompanied by new guidance on using such powers and on the rights of members of the public to prevent their abuse. To paraphrase his speech, he made three points. He said that any change will be accompanied by guidance on how it is to be exercised; that individuals have the right to take action if that guidance is not complied with; and that we should consider whether we need to do more to offer redress for the individual against disproportionate use of those powers by the state.

From my reading of the Bill so far, not one of those limbs of the test has been complied with. Will the Minister explain why not, and when and how they will be, or is it simply that, given what I hope is not going to become the partisan nature of the Bill, the Government want to rush through the measures in time for the next general election?

We support the general need to empower the commission and to provide it with tools to be an effective regulator. However, unless we are careful, the effect of the measures will be to push people further away from the political process. As my right hon. Friend the Member for Horsham (Mr. Maude) rightly pointed out on Second Reading:

“We all agree that the Commission must have appropriate powers to enable it to carry out its duties, but there is a real concern about the proliferation of search and entry powers.”—[Official Report, 20 October 2008; Vol. 481, c. 58.]

Donations to political parties are a way of volunteering assistance to the political process, and the last thing that we wish to do is discourage it. We must be careful to ensure that we do not introduce knee-jerk legislation when we have not fully considered its long-term impact. Given the rushed nature of the timetable for the Bill, I fear that we may be in danger of doing just that. It seems that the old saying “more haste, less speed” could be applied to the Government. In their desire to push through the Bill, I trust that they will not breach their own code of practice on guidance—or the Government’s guidance on guidance—which states that guidance should be issued at least three months before any regulation comes into effect.

I want to finish by saying that there is a twist to this. In answering a written question from my hon. Friend the Member for Chichester, the Minister noted that the consultation on clause 10 will be that of the Electoral Commission and not the Government. Will the Minister explain the position relating to clause 2 and schedule 1 and confirm that that full consultation will occur, whichever body undertakes it?

Photo of Frank Cook Frank Cook Labour, Stockton North 5:45, 11 November 2008

I should draw the Committee’s attention to the fact that the hon. Gentleman made extensive reference in his contribution to various elements in schedule 1. I did not stop him, but that makes me less well disposed to the prospect of having a stand part debate on the schedule. If other members will bear that in mind, it will help me.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

Thank you for those comments, Mr. Cook. It will take me much less time than the hon. Member for Huntingdon to say what I have to say about the clause. He is right to worry about powers of entry and other details that we will discuss when we debate schedule 1, but we politicians have to bear it in mind that Parliament has imposed lots of requirements on other people. When it comes to imposing similar requirements on politicians themselves, people who were not concerned before suddenly become concerned, and we must be aware of what that looks like to the outside world. The key is that we should not make arbitrary exemptions for ourselves. The principles that we apply when regulating politics are the same as those that we apply to the regulation of anything else. I hope that when hon. Members make points that might sound self-interested, they will at least have the grace to concede that similar points can be made about other people’s civil liberties, not just their own.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I should simply like an explanation of the measures on page 2. In the right-hand column, lines 5 and 8 mention summary convictions, and that is to be understood. Further down,  however, there seems to be a rather peculiar situation in which the Northern Irish are entitled to six months off from what the English, Welsh and Scots have to pay as a penalty. Why are the Irish entitled to a lesser penalty than the English, Welsh and Scots?

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I shall be relatively brief, because many of the important points of detail that the hon. Member for Huntingdon has raised will be covered in our discussions on amendments. I shall simply say a few general words about the clause.

The distinguished contributions of the hon. Members for Huntingdon and for Cambridge clearly illustrate the path that we have tried to tread with the clause and the schedule. Of course, we have to be sensitive, as the hon. Member for Huntingdon has said, to the voluntary nature of a huge amount of political activity. We must be sensitive to the need to sustain that activity and to the risk of that effort being damaged by any legislation giving the Electoral Commission new powers. He made the case very well about the potential risks of this clause and, indeed, any legislation that seeks to regulate.

The hon. Member for Cambridge rightly points out that we must be extremely careful of seeming to exempt ourselves arbitrarily from regulations and controls to which we rightly expect other participants in public life to be subject. The controls that we propose are not dissimilar to those relating to the Financial Services Authority, for example. We have to steer a careful course here. My right hon. Friend the Secretary of State for Justice and I made it clear on Second Reading that we are sensitive to the concerns that hon. Members on both sides of the House have expressed about this clause and about the powers in the schedule to which it is so closely linked. The amendments that the Government have tabled, which we will discuss in due course, show that we are trying to respond to those concerns.

However, in relation to the overall position, it is worth reminding the Committee that the commission already has extensive powers under section 146 of the 2000 Act, which requires the disclosure of documents and gives it the power to enter premises and take copies of information for the purposes of carrying out its functions. It is a criminal offence, under the provisions of that Act, to fail,

“without reasonable excuse, to comply with” a request or to obstruct entry and search.

The powers that we are discussing already exist. They have, from memory, only been used once in the past eight years. They have not been used extensively, but they exist. As we discuss the matter, we will see that these powers are being restricted. We have tabled amendments and we will discuss the details as we go forward and I will, if I may, address many of the particular points that have been raised in the course of that discussion. It is important to bear it in mind that, so far, we have consensus on the importance of the Electoral Commission’s regulating the conduct of elections more effectively than it has done in the past—I think that all Committee members agree with that. If the commission is to do that, we have to give it the powers to be an effective regulator.

We have tabled a lot of amendments and I will bear in mind your strictures, Mr. Cook. However, if I may suggest it, there would be merit in, and the Committee  would benefit from, a stand part debate on schedule 1, because it is important, there is a widespread degree of concern about it, and we should have such debates. However, I will restrict myself at this point.

We have to bear in mind that we must give this body the powers to be a credible regulator.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

It is important that, at this stage, the Minister gives the Government’s rationale for needing the clause. He just said that there has been only one prosecution in this area in the last eight years. Does he think that there are things that would be prosecuted, but are not being prosecuted, because there is a lack of legislation, or does the commission need to pull its finger out and do more of what it should have been doing? Perhaps he can give the Government’s view on what needs to be done.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

We are trying to give the commission new powers so that it can be more effective, as is necessary, in respect of the offences. As the hon. Gentleman has said, powers of entry are provided for under those new measures. The commission should be a credible regulator that can act as a deterrent as much as anything else. I ask the hon. Gentleman, as we discuss these matters further, to bear it in mind that the existence of these powers may act as a deterrent to the kind of behaviour that we do not want to see in the conduct of our elections. That is an important point. It is not that we think that these offences will necessarily be committed and that they will then have to be prosecuted under the relevant powers; we want to stop this behaviour happening. The existence of these powers could be a credible deterrent.

I want to address a lot of the detail, because it relates to the amendment, but first I want to correct a remark I made earlier and put the record straight. The commission has not used its powers of entry; it has only once used its power to request documents.

I hope that Committee members will support clause 2 and that we can discuss its detailed implementation as we go through schedule 1.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I was hoping that the Minister would respond to my question.

Photo of Frank Cook Frank Cook Labour, Stockton North

Order. Has the Minister given way to Mr. Turner? He cannot take two interventions at the same time.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I made my remark and sat down.

Photo of David Kidney David Kidney PPS (Rt Hon Rosie Winterton, Minister of State), Department for Work and Pensions

On the question asked by the hon. Member for Isle of Wight, might the answer relate to the passage of the Criminal Justice Act 2003? Might it be that that does not yet apply in Northern Ireland, which is why there is a distinction between a six-month sentence in Northern Ireland and a 12-month sentence in the rest of the UK? It was a new sentence introduced in the 2003 Act, under which I think half is meant to be served and half not. There is still a maximum of 26 weeks to be spent in a prison cell.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I am grateful to my hon. Friend, who has summarised the situation perfectly.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.