Schedule 1

Political Parties and Elections Bill – in a Public Bill Committee at 5:45 pm on 11 November 2008.

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Investigatory powers of Commission: Schedule to be inserted into the 2000 Act

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General 6:00, 11 November 2008

I beg to move amendment No. 102, in schedule 1, page 13, line 15, leave out sub-sub-paragraph (1)(d).

The part of the schedule to which the amendment refers deals with powers

“in relation to registered parties and others”, and it is the “others” bit about which we have most concern. The amendment proposes the deletion of the term “regulated donee” from the list of people or groups to whom the commission’s new investigative powers will apply. This part of the schedule is effectively lifted from the PPERA, but with the important change of inserting that category.

The meaning of “regulated donee” is defined in paragraph 1(7) of schedule 7 to that Act as

“a member of a registered party...a members association; or...the holder of a relevant elective office, whether or not he is a member of a registered party.”

The amendment comes on the back of our concerns about the extension of the powers to individuals. Given that a person can fall under that provision and not be a member of a registered party, I fear that unless we are careful the effect will be to push people further away from the political process. The hon. Member for Cambridge said earlier that we have to examine politicians, but he will appreciate that what we are discussing here goes much further than politicians and deals with donors.

By broadening the scope of which people the powers of investigation cover, we are in danger of casting the net too wide. People may become fearful, or at least think twice about volunteering their time and energy to assist political parties, if the end result might be that they are investigated by the commission for an action that they have no direct involvement in. My understanding is that it was the Ministry of Justice, rather than the commission, that requested these extensions to the powers. Will the Minister please explain why, and why he believes that they will be required in practice?

In an era of political disfranchisement and unwillingness to get involved in the political process, the last thing that we wish to do is discourage donors. We must be careful to ensure that we do not introduce legislation so broad that it tars everyone with the same brush. We do not need another reason for members of the public to turn their backs on political parties.

The provision is also a disproportionately powerful tool to hand to the commission. How does the Minister see the balance between its enforcement role and the need to safeguard the public from arbitrary state interference working in the paragraph that I mentioned? Can he give hon. Members an idea of the number of people in the UK who would be considered regulated donees and therefore fall within its scope?

What evidence has the commission, or any other body, presented to the Government to support the need for such a broad definition of those who can be investigated? The impact of the change will clearly be to alter the limited scope of the powers and apply them to a hugely larger catchment group. Finally, what example can the Minister give of the powers having been required in practice?

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

The Electoral Commission’s view is that it requires regulatory power over at least some regulated donees. I notice that the provision is about donees rather than donors—the people receiving the money, not the people giving it.

Regulated donees are defined in the 2000 Act as members of a registered party, a members’ association or

“the holder of a relevant elective office”.

The particular group that the Electoral Commission believes it needs regulatory power over is the middle one, the members’ association. Under the current law, a members’ association is defined as

“any organisation whose membership consists wholly or mainly of members of a registered party, other than” something that is a party itself.

There is a requirement to regulate registered donees and to have access to their papers because otherwise it would be easy for sub-groups within parties to be set up in such a way as to evade regulation. It is perfectly reasonable for the Bill to extend the basic way in which regulation happens to members’ associations. It was implied in the comments of the Electoral Commission that the Government must answer why it is also necessary to extend the same powers to individual members of parties or individuals who hold elected office.

In fact, those two cases might be different. There might be an argument for the third category: those of us in the House, for example, who are holders of elected office. I shall not refer to particular media items, but it might be possible for donations to parties to take a route to an individual hon. Member for help in his office or such matters. They might otherwise have gone to the party, so perhaps there is a case to answer in such instances. However, I am worried about the extension of the powers to individual party members, which was the strongest point made by the hon. Member for Huntingdon.

Unfortunately, the amendment would go far too far. Under existing law, there is power to require documents from registered donees. The Bill adds powers of entry, which is what is worrying several people. The problem is that, under the existing law, powers to require documents and powers of entry are treated separately. The Bill puts them together.

Unfortunately, the hon. Gentleman’s amendment would not only prevent the extension of the law, but take the law away from where it is and reduce the power of the commission over requiring documents. We should not do that. It raises the matter that the commission mentioned, in that the issue should be approached not through entering people’s premises on a warrant or on the say so of the regulator, but by going instead down the route that it proposed of treating the whole thing as a civil matter, whereby the commission goes to the court and asks for an order requiring documents be produced.

It was proposed that if the requirement was not obeyed, at that point—as a remedy for the failure to comply—the court could either hold the object of the law in contempt or further authorise a search. There needs to be some regulation; there seems to be over-inclusiveness in the schedule’s drafting. I ask the Government to look at the matter again—not how the amendment proposes, but more subtly than that.

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

Independent review after independent review has recommended that the Electoral Commission’s powers should be overhauled. It cannot be right, for example, that when someone has used an agent to give money to a party, the Electoral Commission can require information not from the original secret donor, but only from the agent. The powers that we propose will allow the Electoral Commission to investigate effectively and request information from all those who have it.

There is a case to be made for allowing the investigatory powers to apply to regulated donees. However, of course I am aware of the concerns that have been expressed here today, and elsewhere, by hon. Members about the powers and their application to regulated donees. I am also aware that the Electoral Commission has perhaps been reconsidering its position—we have had some communications, and I intend to discuss the matter further with it and to reconsider carefully whether the extension provided by the Bill is defensible. Given that the commission has yet to use the power, the case for extending it may still have to be proven.

Colleagues and Members of Parliament have expressed concerns. We need to seek the advice of the regulatory body to see what it feels on the subject. When we have had those further consultations with the Electoral Commission, I shall respond to this point. However, I take up the invitation of the hon. Member for Cambridge to reconsider those points of view. As we are engaged in reconsidering the provision, I hope that the hon. Member for Huntingdon will withdraw his amendment.

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

This has been a helpful debate, and we have moved the argument on this afternoon. I accept some of the critique of the hon. Member for Cambridge on the drafting of the amendment, but the point is one that we certainly intend to think on further—he does too. I am pleased that the Minister has said that he will consult with the Electoral Commission and think further on the issue. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss the following amendments: No. 87, in schedule 1, page 13, line 24, after ‘been’, insert

‘, within the 5 years immediately prior to the date of the notice,’.

No. 88, in schedule 1, page 13, line 26, at end insert

‘and whom the Commission have reasonable suspicion to believe has committed an offence under this Act.’.

No. 89, in schedule 1, page 13, line 26, at end insert—

‘(2A) A disclosure notice must be served on the individual specified in paragraph (2) by hand by a person specifically authorised by the Commission to effect the service of such notices.’.

No. 90, in schedule 1, page 13, line 30, leave out ‘any’ and insert ‘information or’.

No. 91, in schedule 1, page 13, line 34, leave out from ‘of’ to end and insert

‘investigating an offence under this Act.’.

No. 92, in schedule 1, page 14, 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 paragraph (2A).’.

No. 93, in schedule 1, page 14, line 4, leave out from ‘within’ to end and insert

‘28 days of receipt of that disclosure notice.’.

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

We shall now deal with a batch of several amendments. Given the accusation about the commission’s passiveness in exercising its regulatory role, the amendments would ensure that there was no ambiguity or discretionary element coming out of the schedule, or would at least reduce them.

Amendment No. 86, by removing any suggestion of discretion, would make it clear to the commission and to the individuals or organisations covered by the schedule what must be done to comply with it. The addition of “only” would ensure that there was no ambiguity around when a disclosure notice may be issued by the commission. That would help to clarify the position for the commission and those subject to the provision.

Given the complexity of the schedule, certainty must be our objective, thereby reducing the possibility of the provisions being breached by administrative oversight or simple ignorance of the effect of non-compliance.

Amendment No. 87 would include a specified time limit for the period in which an officer of a party may be considered within the remit of the Bill under clause 2. It is an important issue. We do not wish to see individuals subject to disclosure notices for some long-forgotten donation or action. It is unreasonable and impractical to extend the power to cover actions taken or documents received at any point in history when we are talking about people who mainly are volunteer workers.

On a practical level, the keeping of comprehensive records for more than five years will be difficult to enforce and is unlikely to be achieved, given the limited space that party officials often find themselves working in. I am sure that a straw poll of hon. Members would find few with full and comprehensive records for matters that occurred before 2002 that were also easily accessible.

We must be mindful of the financial and administrative burdens that we place on those individuals and organisations, not to mention the likelihood that many of the individuals concerned may have left such offices, or even the country. The time limit of five years attempts to achieve more than just nodding acquaintance with the normal term of Government. I certainly hope, too, that where the commission is planning on issuing such disclosure notices, it does so expediently and well within the five-year limit proposed. If it does not, that will be the fault of the commission, rather than the individual.

In amendment No. 88, the need for “reasonable suspicion” by the commission is a theme that will be seen in a number of my amendments during the course of our debates on the Bill. Here I suggest its insertion into paragraph 1(2) of schedule 1. We are dealing, as always when we legislate, with the need to balance  competing interests. On the one hand, the commission must be given effective and workable powers of investigation that it can utilise in its role as regulator and, on the other, party officials and individuals must be allowed to go about their usual business without fear of being arbitrarily subject to possible investigative whims of the commission.

We have a legal system in the UK that operates on the principle of innocent until proven guilty. The amendment would maintain that principle and ensure that the commission operates within the rule of the law. The concept of “reasonable suspicion” is seen throughout the criminal and civil sanction regimes laid down by this House over the years. It is a vital tool in ensuring that the agents of the state do not have arbitrary powers to encroach on the lives and activities of honest groups or individuals. It is a reminder to agencies that they are not above the law, while providing an avenue for redress for an individual who feels that they are subject to unjustified and arbitrary state persecution.

The courts of this country are familiar with the concept, so too are the various regulatory bodies that operate to ensure compliance with the law in the UK. I have not proposed the need for belief beyond “reasonable doubt” as I believe that that may unduly hinder the effectiveness of the commission. The test of reasonableness, however, would not only safeguard the individual, but would focus the mind of the commission when investigating alleged offences under the Bill. Will the Minister tell hon. Members why such a safeguard was not originally included in the Bill?

Amendment No. 89 relates to sub-paragraph 1(2), which as it stands, is silent on the method of service for disclosure notices. That could have difficult practical implications for the effective workings of this new system. Are we to accept that by simply posting a notice the commission can be considered to have properly served such a notice? What of the situation where the individual or group has moved address? I believe that the service of such notices by hand is both the fairest and most proper way of handling this current deficiency. I have neither seen nor heard from the Minister any figures that would suggest that this would place a disproportionately arduous burden on the commission, nor do I believe it is unreasonable for the commission to serve disclosure notices in such a way. How many does the Minister consider will be handed out per year? Presumably, very few indeed.

If we are to grant the commission the power to enter premises and remove documents, thus interrupting the lives of individuals, it is a matter of due process, not to mention courtesy, that those individuals are first, made aware of the investigation and secondly, have proper notice of such an investigation and a disclosure notice, so that they may be given the fullest amount of time to comply and avoid further penalty.

I noted that I did not believe that service by hand would place an undue burden on the commission. To support this I would like to draw hon. Members’ attention to comments made by the Secretary of State for Justice in the first evidence session before this Committee. In response to questions I put to him he said:

“The answer is that, as at 16 June 2008, 29 people had been prosecuted under the 2002 Act, resulting in 23 convictions.”——[Official Report, Political Parties and Elections Public Bill Committee, 4 November 2008; c. 18, Q38.]

By my calculations, that is less than four prosecutions on average for each of the years that the commission has been operating. Unless the Minister has evidence to suggest that many more disclosure notices will be issued by the commission in the years following the enactment of this Bill, I believe that service by hand, when balanced against the severity of the penalties for none compliance, is fair. Amendment No. 90 is consequential.

Amendment No. 91, dealing with paragraph 1(3), would ring fence the powers of the commission and concentrate them only on investigations of offences under the Bill. The amendment would remove the ability for the commission to use this power in relation to “any of its functions”, which is an unnecessary and unjustified extension. The commission’s functions under PPERA have been the focus of many reviews by a multitude of different organisations. Indeed, we are here today because the commission’s previous functions were deemed too wide and therefore were hampering its ability to effectively undertake its role as a regulator. Part I of PPERA contains 21 sections and two schedules that expressly set out the functions of the commission.

Are we to believe that the Government intend these powers to extend to the commission’s multiple roles? Or rather are they to be used only in relation to their investigation of offences under the Bill? I hope very much, for the sake of all of those who act in some capacity that brings them into contact with political penalties or donations, that it is the former. Otherwise, the balance will have been tipped unnecessarily in favour of the commission. We would hand it powers that it not only does not need, but would not use.

I hope that the Government see that the breadth of the sub-paragraph as it currently stands is very wide. As an aside, would the Minister please confirm that the existing powers of investigation in PPERA will be terminated by the Bill so that there is no duplication of powers, which could—inadvertently, I am sure—be used to give the commission a second bite of the cherry?

Amendment No. 92 deals with paragraph 1(3). I would like to reiterate points made by Sir Hayden Phillips. In the first evidence session before this Committee, he said that he hoped we would be able to find amendments that would make everyone comfortable that the powers are not excessive. I fear that without a right of appeal, which I propose in the amendment, we are handing the commission a mandate to serve disclosure notices on individuals and groups associated to political parties in the manner of a fishing exercise. Without a right to appeal, there is nothing to prevent the commission from simply trawling the records of such people in the hope of finding an inconsistency on which it could build an investigation.

I am not suggesting that that would take place with the current commission, which has been co-operative throughout the development of the Bill, including with the official Opposition, but we are legislating for future generations that will not have been privy to the many discussions and debates that have surrounded it. As such, we must ensure that we minimise opportunity or flexibility that would leave the powers open to abuse in years to come. By having a right of appeal as set out in the amendment, we would, in effect, have a self-policing safeguard that would require no additional cost to be  borne by the commission. Furthermore, given the 14-day time frame, it would not produce unnecessary delay to investigations.

Amendment No. 93 deals with paragraph 1(4). It returns to my concern that many aspects of the Bill are so broad that they could be rendered almost unworkable in practice. Compliance in a “reasonable time” is too subjective a concept. One man’s reasonable may be another’s unnecessarily harsh or overly lenient. Elements of subjectivity in time-keeping should not have a place in a Bill such as this. Clarity and certainty are needed. The amendment would work to the ultimate benefit of all parties involved.

The 28 days recommended in our amendment should be sufficient for those served with a disclosure notice to locate the documents and information specified in it. Given the penalties that may be faced for non-compliance, every effort should be made to ensure that individuals do not fall foul of them because of unforeseen delays. Illness, temporary IT problems, personnel on holiday or any number of other eventualities may prevent documents or information from being submitted to the commission.

I would caution against over-zealous application of the limit by the commission. Co-operation is the easiest and simplest way to resolve most causes of a breach of the provisions of the Act, and the commission should not be too quick to take punitive action. I hope that the Government will see the value in what I have said, and I welcome the Minister’s comments.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs 6:15, 11 November 2008

I have a great deal of sympathy with what the hon. Member for Huntingdon said towards the end of his remarks, especially about amendment No. 93, which would add to the clarity of the schedule. I hope that the Minister has some explanation as to why the system at present operates on the basis simply of “reasonable time”.

I also have some sympathy with amendment No. 92, which would insert an appeal mechanism. That is necessary if we are not to go down the route that the commission suggested of having it go to the court in the first place to ask for enforcement of a disclosure notice.

However, I would like to spend a minute or two on amendments Nos. 88 to 91, with which I am less comfortable. They tend to conflate two different functions of the commission. It may well be the hon. Gentleman’s argument that the commission should have only one function, and that he is trying to get rid of the other one.

The two functions are inspection, and the investigation of offences. Of course, a body that has an inspection power will, ultimately, need some criminal law sanction, or some sanction, to enforce it. Nevertheless, the main point is that it is not the criminal law, or taking people to court to prosecute them for non-compliance, but the inspection itself that gets the compliance. The idea is that transparency, openness, information and audit all add together to produce compliance with the law—whereas investigatory powers of the second sort are more like what the police or prosecution authorities do.

In amendment Nos. 88 to 91, the hon. Gentleman is trying to remove the difference between those two. He is treating the Electoral Commission purely as a prosecution authority—as if it were the Serious Fraud Office or the DPP. I do not think that that is appropriate. A regulatory body needs tools other than prosecution to get compliance.  The tool available to it—inspection backed by sanctions—is an appropriate and better tool for what it has to do. I fear that the hon. Gentleman’s approach will have the opposite effect to the one he wants: it will make the commission more like a hard criminal prosecutor and less like a regulator. His approach will encourage the kind of attitude that those who read news stories about the commission’s activities have: that those involved in politics are the kind of people who commit criminal offences, as opposed to merely being the kind of people who need to be audited.

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

The hon. Members for Huntingdon and for Cambridge have made useful contributions; I am grateful to them. Many detailed issues were raised and I shall run through the amendments more or less in order—although I am afraid I will have to resist all of them.

Amendment No. 86 is unnecessary. It seeks to limit the extent of the commission’s investigatory powers under paragraph 1(2) of schedule 1 to the Bill. The effect of the amendment would be that the commission would only be able to issue a disclosure notice either to a treasurer or an officer of an organisation to which paragraph 1 applies, or to an individual to which paragraph 1 applies—in other words, regulated individuals. That is the effect of paragraph 1(2) anyway, so the amendment is unnecessary. The limitation in paragraph in 1(2) will have no effect on the use of paragraph 2, which is a separate power to which separate limitations set out in the Bill apply. The commission needs a cross-party consensus to become a more effective regulator. If it is going to do that, it needs more appropriate investigatory powers and the clause as drafted does that without straying too far. For that reason, the amendment is unnecessary and I hope that the hon. Gentleman will feel able to withdraw it.

I am afraid that I will also have to resist amendment No. 87 because it seeks to place a time limit on the commission’s powers to issue a disclosure notice under paragraph 1(2). The effect of amendment No. 87 would be that the commission would only be able to issue a disclosure notice to a person who has been a treasurer or another officer of an organisation to which paragraph 1 applies in the past five years. Currently, the commission can issue a disclosure notice to any person who is, or who has been the treasurer or another registered officer to which this paragraph applies, or an individual to which this paragraph applies. There is no time limit in relation to that.

Although it seems unlikely that in most cases, the commission will need to go back in time more than five years, we cannot entirely rule out that possibility. Given that the commission will have to exercise its powers reasonably, which is in line with the general principles of public law, before making a request under paragraph 1, we do not think that such a constraint needs to be put in the Bill. I therefore hope that the hon. Gentleman does not press the amendment.

I shall deal with amendment Nos. 88 and 91 together and at some length because they raise important questions that I know are of general concern to the Committee and hon. Members more widely. Both amendments seek to limit the extent of the commission’s investigatory powers. Although the amendments are clearly well intentioned—and we are grateful to the hon. Gentleman  for the spirit in which he is proposing them—they, nevertheless, suggest a misunderstanding about the different purposes of the powers set out under paragraph 1 and those set out under paragraphs 2 and 3. If there is such a misunderstanding, I hope that it will be helpful to the Committee if I set out the different purposes of those powers and the interplay between them. The hon. Member for Cambridge may have been alluding to that in his remarks.

Paragraph 1 of the new schedule restates, with some changes, powers that the commission has in relation to registered parties and others that are contained in section 146 of the 2000 Act. Under section 146(3) of that Act, the commission has powers to enter premises and take copies of information relating to income and expenditure from a registered political party, a recognised third party and a permitted participant in a referendum. That power under the Act can be exercised by the commission for the purposes of carrying out its function. At present, the power to enter premises does not apply to election agents or candidates in an election—except candidates at a local election in Scotland.

However, the commission currently has powers under section 146(1) to require the disclosure of documents relating to income and expenditure from election agents or candidates. The Bill repeats the existing power to enter in paragraph 1(5) of proposed schedule 19A, which is to be inserted into the 2000 Act by schedule 1 to the Bill. It also extends it to candidates—other than candidates in Scottish local government elections—election agents, regulated donees, including MPs, and regulated participants. The result of that is that the original power in the 2000 Act for the commission to enter premises for the purpose of carrying out its functions will now apply to election agents and candidates, alongside the other individuals and organisations listed in paragraph 1(1) of schedule 19A.

Paragraph 2 of the schedule seeks to provide new powers for the commission when it undertakes an investigation into a suspected breach of the 2000 Act. To that end, the Bill provides the commission with new powers to request information, to put questions and to apply for a warrant to enable it to enter premises when carrying out an investigation into a suspected offence or other contravention of the 2000 Act. Those powers can be applied to election agents and candidates who have such information in the same way that they may apply to anyone else.

However—this is crucial to addressing the concerns of many hon. Members in Committee and in the House more generally—we have also introduced a number of important safeguards for the use of such new powers. In relation to the entry of premises under this new power, the commission will need to apply for a warrant under paragraph 3 of proposed schedule 19A. There is no automatic right of entry. For a warrant to be issued, the commission must demonstrate on oath to a justice of the peace that it has reasonable grounds for believing that an offence has been committed—or that another contravention of the 2000 Act has occurred. It must also establish that documents are on the premises that were withheld following an earlier request or that are otherwise relevant to the investigation. When entering the premises, commissioners must be accompanied at all times by a constable.

The amendments seek to limit the extent of the commission’s investigatory powers under paragraph 1(2) and (3) of the schedule. The effect of amendment No. 88 would be that the commission would be able to issue a disclosure notice only to a treasurer or officer of an organisation to which paragraph 1 applies, or an individual to which paragraph 1 applies, such as regulated individuals.

That would impact on the powers of the commission in paragraph 2 of the schedule to require any person, including a regulated individual listed in paragraph 1, to produce documents or information that it reasonably requires to investigate suspected offences or contraventions. That would seriously hamper the commission’s ability to investigate suspected breaches or contraventions in conjunction with relevant prosecuting authorities.

The effect of amendment No. 91 would be to restrict circumstances in which the commission can issue a disclosure notice so that it could do so only when it has formed a reasonable suspicion that an offence has been committed under the Act. Currently, the commission can issue a disclosure notice seeking information or documents relating to the income or expenditure of the organisation or individual in question that it reasonably requires for the purposes of carrying out its functions.

The powers set out in paragraph 1 are supervisory powers and we believe that the commission should be able to use those powers to determine whether regulated individuals are complying with regulatory requirements. To restrict that power to circumstances in which the commission has formed a suspicion that an offence has been committed—as is required under paragraph 2—would unnecessarily restrict the commission’s ability to carry out its supervisory and monitoring functions. I, therefore, hope that the hon. Members will not press the amendment.

Unfortunately, I shall have to resist amendment No. 89, too. It would require a disclosure notice served under paragraph 1(2) of proposed schedule 19A to the 2000 Act to be served by hand by a person specifically authorised by the commission to do so. I understand the points made by the hon. Gentleman, but we cannot give him any information about how often the power will be used because we do not know that. However, it is likely that the relatively small number of occasions it was used between 2000 and 2008 will increase because, at that point, the commission did not have investigatory powers. How burdensome it would be to the commission is therefore impossible to say, but the case for resisting the amendment does not rest only on the fact that it would be burdensome.

Serving notices by hand is unnecessary. There are other ways in which to serve notices, which would remove the risk of such action being a burden on the commission. Moreover, it is important that the hon. Gentleman considers that serving the documents by hand might also create an opportunity to allow those to whom the commission intends to give a disclosure notice to obstruct the receipt of that notice in a way, for example, that delivery by recorded delivery or registered post does not. Such methods of delivery do not give the same opportunities. In light of my explanation, I hope that the hon. Gentleman will not press the amendment.

Sadly, I shall have to resist amendment No. 90 as well. It would allow a disclosure notice issued by the commission to require the production of documents or information rather than any documents, as the Bill  currently provides. The amendment’s effect is already achieved by paragraph 1(3)(b) of proposed schedule 19A to the 2000 Act. It provides for a disclosure notice to require the person to whom it is given to provide the commission with information. The amendment is unnecessary as it would not add to the effect of the Bill. I therefore hope again that the hon. Gentleman will not press it.

I resist amendment No. 92. It would allow a person served with a disclosure notice to appeal to the commission in writing within 14 days of receipt of service under paragraph (2A), which the amendment would insert. 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 income and expenditure of regulated individuals and organisations, and that are reasonably required by the commission for the purposes of carrying out its functions. The commission is best placed to decide whether it is necessary to issue such a request, and it would slow down the progress of investigation considerably if each notice were accompanied by a right of appeal.

Because a disclosure notice is not a sanction, we do not believe than an appeals process is necessary. It would be open to individuals who feel that they have a reasonable excuse not to comply with a disclosure notice because, for example, they do not hold any of the requested documents, to provide the commission with an explanation of why that is the case. In subsequent proceedings in respect of an offence for refusing to comply, any such explanation would have to be taken into account by the commission or, indeed, by a court. I hope that, in light of that reassurance, the hon. Gentleman will not press that amendment, too.

I come now to amendment No. 92, which the Committee may be relieved to hear is the final amendment in this group. It requires those served with a disclosure notice by the commission to comply within 28 days. Under the Bill, they would currently be required to comply within such reasonable time as is specified under the notice. I agree that those who receive a disclosure notice need to be given time to comply with it, and that they need to know the length of the period. That is why the Bill provides for a disclosure notice to specify a “reasonable” time within which the person served with the notice must comply. To that extent, there is certainty.

There has been some discussion about whether “reasonable” is sufficiently certain. We would argue that the flexibility that the term gives is appropriate, because the commission should have discretion to vary the period for compliance depending on the nature of the requests, which may be various. We believe this more flexible formulation is appropriate as, in some instances, the commission will need to allow a longer period—for example, for the production or provision of documents in some circumstances, such as if there is a large number of them. Equally, a request might be time-critical, particularly if there was concern that the success of an investigation might be under threat if not obtained speedily.

The term “reasonable” is in common usage and, for example, the courts have not had much difficulty in interpreting it. In the light of that explanation, I hope that the hon. Gentleman will not press that amendment as well.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General 6:30, 11 November 2008

As Members will have noticed, this batch of amendments has taken quite a long time to run through. The amendments are technical by nature, but we are covering new ground here and making new laws. This is the first sitting of several in this House and several in the other place, and it is very helpful that the Minister has given full answers and fully considered the amendments, because that will make both stages on the Bill more productive as a result. To the extent that there was a lot of information, I shall be going away and having a careful look at what he said today.

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

Because the hon. Gentleman will so generously consider what I said, I want to add one answer. He raised an important question about giving the commission a second bite at the cherry, which I regret that I inadvertently failed to address. The Bill would not allow that, and nor would it allow more than one sanction to be applied for the same offence. I hope that gives him some reassurance.

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

That is a very helpful clarification. In relation to his latter point, I shall be covering that again through one of my other amendments, so I must revisit that.

I took the point of the hon. Member for Cambridge that some of the amendments could have the implication of making the clause more criminal in nature, therefore making it less adaptable and user-friendly as a proportionate and varied approach from the commission. I shall look at our amendments again in that light, because that is an important point. Of course, the first line for the commission would be to approach people without any criminal or civil penalties whatsoever—just approaching people for information, which is probably the best way to get it.

On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss the following: Amendment No. 95, in page 14, line 6, leave out ‘their functions’ and insert

‘an investigation where they have reasonable suspicion that an offence under this Act involving in excess of £10,000 has been committed.’.

Amendment No. 96, in page 14, line 7, after ‘enter’, insert

‘, only with authorisation by a warrant issued under paragraph 3 of this Schedule and when accompanied by a police constable,’.

Government amendment No. 122.

Amendment No. 97, in page 14, line 12, at end insert—

‘(6) For the purposes of this Schedule a person authorised by the Commission is a person who has express written authority of the Commission to act on its behalf and is one of the following—

(a) an employee of managerial level of the Electoral Commission;

(b) a member of a police force in England and Wales;

(c) a constable of a police force in Scotland; or

(d) a member of the Police Service for Northern Ireland.’.

Amendment No. 98, in page 14, line 12, at end insert—

‘(6) A person authorised by the Commission (who is not a police constable) may not use any force to enter premises, but a police constable may use such reasonable force only as is necessary to gain entrance to the premises.’.

Government amendment No. 123.

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

Amendment No. 94 is moved on a probing basis, to delete paragraph 1(5) of schedule 1, which empowers the commission to enter premises to carry out what is stated as its function under PPERA. Given the vagueness of the provision, we are keen for the Minister to justify fully the need for the powers. From Government amendment No. 122 and their consecutive amendment, it would seem as if they will make some concessions in this area and we look forward to hearing the Minister.

However, we have significant concerns about the proposals for powers of entry for the Electoral Commission. The commission already has powers of entry into political parties’ offices, under PPERA. Paragraph 3 of schedule 1 extends that to provide powers of entry into the premises of anyone who has donated to a political party or regulated donee. That has the potential to erode the willingness of law-abiding citizens to donate to political parties. It would take only one heavy-handed use of the powers in someone’s home or office for other legitimate donors to take fright at the prospect of giving money to political parties. Last October, in a speech at the university of Westminster, the Prime Minister pledged to curtail powers of entry with a new liberty test. I gave details of that in my earlier remarks.

As part of Lord West’s review into powers of entry, the Home Office estimated the powers of entry that are in force. I have voiced my concerns on that issue in a previous debate. A study of state powers of entry by the Centre for Policy Studies, last year, warned:

“In many cases, discretion as to what is considered as reasonable behaviour in exercising an entry power is left to the judgment of those wielding the entry power...Many powers are drafted so broadly that the citizen has little or no protection if officials behave officiously or vindictively. Some carry draconian penalties for obstruction, including heavy fines and prison sentences of up to two years.”

It is with that in mind that I proposed my amendments in an attempt to insert some statutory safeguards into the schedule.

If amendment No. 94 fails and paragraph 1(5) remains in the schedule, it would need to be amended. Amendment No. 95 would insert into paragraph 1(5) a higher threshold test for the commission to satisfy before it could enter premises. A high value is necessary to prevent a fear among small party donors that a bequest in a will, or a cheque for a friend who is running as a candidate in an election, might result in their home or office being invaded by the commission. The amendment would focus the commission’s mind on the abuses and offences that are the most flagrant contraventions not only of the Bill, but of the spirit of transparent party funding. This is a question of balance, but at the moment there is no balance.

Amendment No. 95 would operate a secondary safeguard. Once the commission had satisfied what I  will call the threshold value test of £10,000, it would have to prove that it had reasonable grounds for believing that an offence had occurred. It would then have to formulate its arguments and investigations into a cohesive submission to the justice of the peace when applying for a warrant. The idea of entry powers being given to investigate donations of a few pounds is bizarre, if not excessive.

Amendment No. 96 concerns the point of entry and goes together with the safeguards envisaged in amendment No. 95. It provides that entry would have to be authorised by a warrant, and that a police constable would have to be present to ensure that the commission acted within the law. The constable would also provide vital assistance to those acting on behalf of the commission in entering premises. We have no wish to create a cadre of have-a-go heroes under the auspices of the commission. We see the use of powers of entry as the last option available to the commission. Their use should be the nuclear option, to be used when all attempts to elicit the required information, or to co-operate with the individual or group suspected of an offence, have failed. Does the Minister share that view, or does he think that they will be used pre-emptively?

In such circumstances, the owner of the premises might not co-operate. Amendment No. 98 would make provision for the use of reasonable force. In drafting those powers, I have attempted to safeguard the commission, the property and its owner, so that only the accompanying police constable would be able to use such force. There is no need for the commission directly to have such powers. That is the police’s role, and I hesitate to provide anyone else with such powers. Given the unlikelihood of that last resort being used often, I see no practical difficulty in requiring the commission to act in that fashion. Does the Minister agree that such powers of entry would, and should, be used only in a few exceptional cases?

I reiterate that we have only just received Government amendments Nos. 122 and 123, so I have not given them a huge amount of thought. I certainly have not had the chance to consult on them. We think that they pick up on the comments of Peter Wardle, the chief executive of the commission, in our evidence session of Thursday 6 November. When discussing the commission’s current monitoring and inspection powers, he noted that they were typically used to run audits on the documents and records of bodies that receive policy development grants. That came about from a need to assure Parliament that such funds were being spent in an appropriate manner and in accordance with the terms of the grant. He said:

“That is inspection and audit; we do it already and we think that the current powers are adequate for that.”

The Government seem to have taken to heart what he went on to say, and that is to be welcomed in light of the Bill’s other deficiencies and the tight time frame in which it is being rushed through. Peter Wardle’s succinct comments give some understanding of the Government’s rationale behind the amendments. He 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 those powers. If Parliament were to have concerns about that particular aspect, we would be relaxed provided that the current powers are preserved so that we can continue our inspection and monitoring role.”——[Official Report, Political Parties and Elections Public Bill Committee, 6 November 2008; c. 43, Q104.]

That is what the Government seem to be attempting with this amendment; they have limited the right of entry under paragraph 1(5) to only the commission’s role as an auditor/inspector of financial documents. We welcome this moment of clarity from the Government and support their main principles and rationale in this regard. Indeed, this amendment echoes the sentiment of many of our own amendments relating to the schedule.

In many ways, amendment No. 97 can be read in line with amendments Nos. 95, 96 and 98. The schedule makes much reference to those people “authorised by the Commission”. In fact, almost all the powers granted to the commission under the schedule are also available to those individuals, yet we can find no reference in the Bill to a definition of who they are. Perhaps the Minister can assist me with this. My amendment No. 97 to paragraph 1(5) proposes solving that problem by specifying who may be authorised by the commission to exercise these powers. I have deliberately limited those powers to high-level employees of the commission, at least, and left it marginal in respect of who else should be included and why. Given that these powers of entry are unlikely to be used in all but the most extreme cases, it is justifiable to expect the commission to send an individual from management. Doing so would ensure that both the commission and the owner of the property take such a person, and their on-the-ground assessment, seriously.

We do not wish the commission to send people, such as its cleaning staff, for instance, to raid premises. Furthermore, given the seriousness of the exercise of this power, the ability simply to authorise anyone is not only worrying but would call into question the commission’s integrity.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs 6:45, 11 November 2008

The debate on these amendments comes back to the distinction, which I was trying to make in the previous debate, between the commission’s powers of inspection and its powers in respect of the investigation of criminal offences. The Government are now offering, in amendment No. 123, greater clarity in distinguishing between the two, making it clear that the powers laid out in schedule 1(1) may not be used as investigative powers when investigating a criminal offence. That clearly separates the two. It therefore follows that the amendments tabled by the hon. Member for Huntingdon, which talk about the sum at issue—amendment No. 95, for example—are no longer relevant, because the inspection power is not to do with amounts of money at stake in respect of an offence, but with ensuring that people are complying with more general requirements. Nevertheless, his other points still apply.

If the Government still want there to be a power of entry for the purpose of inspection, they have to think through precisely how that is going to work. What the hon. Gentleman said about ensuring that constables are there, that the powers are clear and that officials of a civil regulator are not resisted with force is still pertinent. The Government need to think that through.

More generally, the Government need to think through what the purpose is of having a power of entry for an inspector. Precisely why do we need inspectors to have powers of entry and under what circumstances, when they are not investigating offences? This brings us back to the point that the hon. Gentleman made about the Electoral Commission’s not being entirely enthusiastic  about having these powers and not seeing a great deal of benefit in them. If it is to have such powers, they need to be in more of a civil than a criminal context. If there were a clear link in the system between the failure to disclose a document following a reasonable request by the commission, and a power of entry at some point after that because of failure to comply, that could be justified. However, at the moment I see no link between the process for requesting disclosure and the power of entry, which seems to appear out of nowhere. I ask the Government to reconsider sub-paragraph (5). As the hon. Gentleman said, amendment No. 94 is a probing amendment; nevertheless, this aspect of the Bill needs to be reconsidered.

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

We welcome these probing amendments. We will have to resist them all, but the fact that we have tabled Government amendments on this issue shows that we are conscious of the need to get it right and to be flexible in doing so. We are not prepared to render the Electoral Commission ineffective, however, particularly as we are expanding and intensifying its role as a regulator. We must ensure that in doing that, we give it effective powers.

We are prepared to respond to concerns. The hon. Member for Huntingdon asked me directly whether we can expect the powers to be used rarely, and the answer is yes. I want to put it on the record that the commission should use them with great care. However, is it important that they exist, not least as a backstop and a deterrent to behaviour that none of us wants to take place.

I shall go through the amendments in order. Amendment No. 94 would delete paragraph 1(5) of schedule 1, which essentially restates the commission’s existing powers in relation to supervised individuals. Those powers allow it to enter premises occupied by specified individuals to inspect documents relating to their income and expenditure, at any reasonable time, for the purpose of carrying out its functions.

Amendments Nos. 95 and 96 would amend the same powers of entry to make them applicable only in connection with an investigation involving more than £10,000, and exercisable only with a warrant and accompanied by a constable. The material difference between that power and the version in the 2000 Act is the range of individuals to whom it may apply. Most notably, the Bill extends the commission’s powers to cover regulated donees—Members of the House and of political parties, as well as candidates, their agents and permitted participants at referendums.

That extension is being made to ensure that the commission can routinely access all the information that it needs to exercise its functions. The key thrust of the Committee on Standards in Public Life’s 2007 report, which was instrumental in the genesis of the Bill, was that the commission is currently not equipped to fulfil its role. More recent events have also brought that to the fore. It has a general function of monitoring compliance with the rules governing elections and politics in this country, and we must not lose sight of the importance of that role. Public confidence in the probity of our political system rests in large part on the faith that scrutiny can command. It is vital that the commission be able to access all the information that it needs to monitor compliance with the rules.

Having said that, real concerns have been expressed in Committee today and on Second Reading about the extent of that power and the intention behind it. We have already indicated our intention to move on the issue, and I am willing to listen further. However, we need to remember that if the commission did not have such a power of entry, it would be entirely lawful to refuse to admit the commission if it sought to inspect party records on party premises. There would be no negative consequence of that for the party concerned, and such a backward step would be seriously detrimental to the transparency and scrutiny of our political system. To remove the power at the very point when we are refocusing the commission on its monitoring role would send out the wrong message and deprive it of a potentially important tool in performing that role.

The amendments would constrain the commission’s existing powers of entry and make them almost identical to the powers in paragraph 3 of the schedule that apply in relation to suspected offences. We believe that that would be a similarly backward step. As I explained earlier, it is vital that the commission be able to access the information that it needs to supervise those whom it regulates. Any credible regulator must have those powers, and it does. It is similarly vital that, where the commission has reason to believe that an offence or other breach of the rules has been committed, it can look into it thoroughly and effectively. Without that power of entry, it would be wholly reliant on law enforcement agencies for investigations, and that would make it impotent in the face of apparent wrongdoing. Merging the two powers and constraining both by the need for a reasonable belief of an offence, together with the need for a warrant and the accompaniment of a constable, would not work in practice. The two powers are for different purposes and, rightly, they are differently constituted.

Amendment No. 97 would require a person entering premises under the power in paragraph 1 to be either a manager at the Electoral Commission or a police officer.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight 7:00, 11 November 2008

The Minister appears to distinguish in this matter between everything and nothing. This is not a debate about everything and nothing. In amendment No. 97, it is about £10,000. However, it need not be that amount—it could be £5,000 or £500. I am trying to obtain some kind of explanation that takes account of different scales rather than just yes and no.

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

I am sorry if I have not made this clear. I hoped that I was saying that we realise people’s concerns. We have indicated that we are prepared to listen to them, and I am happy to go on meeting concerns as best we can. However, I am not prepared to remove the powers. It is not everything or nothing. We are prepared to be flexible about how those powers are exercised. We have already proposed certain safeguards, we are proposing more and we are happy to listen to other suggestions. Nevertheless, we must ensure that the commission remains an effective regulator. That is all I am saying. If the hon. Gentleman thinks that we should be flexible about how we make the regulation effective, I am happy to enter into a dialogue about that. We have already done so, and I will continue doing so. I hope that that reassures the hon. Gentleman.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I welcome the Minister’s response. The problem is that somebody can be done for having 7s 6d in their pocket at home. I am trying to understand what would require the commissioners to investigate and make a distinction between those with 7s 6d in their pocket and those with £15,000. If there is no difference, the commissioner must get on with it. He has the law. The law, it seems to me, is an open and shut case. The Minister is saying that every opportunity will be given to the commissioners to make the decisions. That is what is wrong.

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

I am not altogether following the hon. Gentleman. Perhaps he could refer to the amendment that he is talking about. I am sorry if I am missing his point; perhaps he could be a little more specific.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I am talking about amendment No. 95. When someone says, “You have 7s 6d in your pocket”, the same powers are being used as in the case of a man who has £10,000 in his pocket. What is making that person exercise the powers if it is not the scale of the things in the pocket?

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

I am still not altogether clear about it, but in so far as the hon. Gentleman mentions 7s 6d and all the rest, that will be a question of judgment for the commission. It is a matter of proportionality. I am not sure that I entirely follow his concerns, but if he would like to convey them to me afterwards, I would be happy to engage with him and try to reassure him.

Throughout, we have tried to strike a balance. As I said at the beginning of my remarks on this, we have to strike a balance between not putting disproportionate burdens on people who are often volunteers and taking a proportionate response to the offences being committed. At the same time, we must be cognisant of the point raised by the hon. Member for Cambridge at the start of his opening remarks that, as politicians, we cannot exclude ourselves from the kind of regulatory constraints to which people in other public bodies are rightly subject. It is a question of proportion and balance. We think that we are trying to strike the right balance in the application of these powers.

As I was saying, amendment No. 97 requires a person who enters premises under the paragraph 1 power to either be a manager at the Electoral Commission or a police officer. Authorisation of the use of this power by a manger at the commission would, in practice, be embedded in the commission’s operation of the power. It is set out in statute that an entry could only be carried out by a senior member of staff in that context and could be restrictive and inflexible. In carrying out its duties, the commission must effectively have the ability to delegate entry and inspection duties to staff below such a senior level.

There is not currently a definition of “manager” in the statute. It might be difficult to interpret what grade of employee would be capable of using the power. Structures within the Electoral Commission might change over time and we think that that is an unnecessary inflexibility. The commission has no intention of using this power lightly. It is well aware that entering a premises is a significant step. We believe that it will operate the power responsibly, as it has done with the existing power to date. It is worth reminding the Committee again that the commission has had these powers.

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

It might be helpful if the Minister could describe what he thinks an entry situation would involve—what would actually happen?

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

With respect, I will not pre-empt the judgment of the Electoral Commission on that. However, I shall say one other thing. I know that the Conservative party wants to abolish the Human Rights Act 1998, but if Conservative Members were to listen to my words, they may have cause to revisit it. Article 8 of that Act gives valuable protections in precisely these circumstances. That is why it is a good bit of legislation and why we hope, in time, the Conservative party will come to realise its value.

Photo of James Duddridge James Duddridge Opposition Whip (Commons)

I thought the Minister was saying that politicians ought to be treated equally in these amendments and the clause more widely. Is it not the case that the Electoral Commission would not be able to enter the House of Commons and raid an MP’s office and that they would not be able to go into the House of Lords, unless the Member was perhaps based in 4 Millbank, which is not formally part of the parliamentary estate? If that were the case, their office could be raided. Is that not an inconsistency?

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

My point related to that made by the hon. Member for Cambridge: we should not seek to remove ourselves from the general constraints to which other people in public life have rightly been subject. That was the general point. In relation to the particular application of the powers, he has rightly identified some issues. As I said earlier, the subject of the susceptibility of MPs to the legislation is an area we are considering at the moment and that we will continue to explore.

I think that we are making some progress. Amendment No. 98 provides that no force can be used by the commission in its use of power of entry in paragraph 1. That is already the case. If the commission were to be authorised to use force to gain entry to premises, that fact would need to be set out in statute. In the absence of such a statement, it follows that the commission cannot use such force. That is evident in the statement given in paragraph 3(3) that a police constable may use

“such force as is reasonably necessary”.

Without that wording in the paragraph 1 power, no force can be used to gain entry to premises.

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

Is the Minister therefore saying that a constable would have to be present for the power of entry to be exercised? I think that was the implication of what he just said.

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

If force were to be used. The commission cannot use force under the Bill to effect entry. I hope that the hon. Gentleman will not press the amendment on the basis that it is not necessary.

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

I am not sure whether the Minister is saying that, as it stands, the schedule implies that the commission can call on a constable to help it enter premises using force. In fact, some case law suggests that that might be possible. Alternatively, is the right hon. Gentleman saying that the schedule does not authorise  anyone to use force to enter premises? [Interruption.] Mention has been made from a sedentary position of paragraph 3(3). The trouble is that that is about investigatory powers and Government amendment No. 123 would separate what is stated under that paragraph from what is stated under paragraph 1. We need more clarity about how the proposals would work together.

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

If the commission were authorised to use force, it would have to say so under the Bill. It does not, so it follows therefore that it cannot. However, a police constable may use force. I hope that I have made the position more clear, and that the hon. Gentleman accepts that the amendment is not necessary.

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

Is the Minister saying that, if a constable is not taken along, and the commission is not allowed in if it turns up at the premises, it has to go away again? Does that mean that it will have to go to the premises with a constable?

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

It would depend on the circumstances. If force is necessary, there would have to be a warrant and a constable may use such reasonable force as is necessary. That is the point. The commission is not authorised to use force. It would not necessarily have to go to the premises. Some things could be consensual.

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

Is the Minister saying that the power would normally be used pre-emptively? Will he say how it is likely to be used?

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

With respect to the hon. Gentleman, I will resist the temptation to speculate on how the Electoral Commission might, in individual circumstances, seek to use the power. As I have explained, we want to give it the power as a backstop, should it be necessary for it to use it. We also hope that it will be a deterrent and encourage people to comply with regulations, and not give the commission any cause to even think about using such a power. I cannot speculate about every occasion on which the commission might or might not seek to use it.

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

I want to come back to the meaning of Government amendment No. 123 and its relationship with paragraph 3 of schedule 1, the issue that was raised from a sedentary position. It is important to get the matter straight. The amendment states that the

“power conferred by paragraph 1(5) may not be used to enter premises and inspect documents for the purposes of an investigation by the Commission of the suspected offence or contravention.”

Paragraph 3 refers to powers when a person is causing an offence or when a person has contravened

“any restriction or other requirement imposed by or by virtue of this Act”.

My original reading of Government amendment No. 123 was that, by virtue of what it states about “suspected offence or contravention”, it was separating paragraph 1 entirely from paragraph 3, and that nothing under paragraph 3 will apply to the right of entry under paragraph 1. That raises my original question about what does apply. We need to be clear about that because, if that is not the case, the amendment would not achieve the full separation between the inspection power and the investigatory power.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 7:15, 11 November 2008

We have moved on to consider the Government amendments. After issuing the hon. Member for Huntingdon with a final invitation not to press his amendments, I can ask him and the rest of the Committee to consider accepting ours. I will, if I may, come to Government amendment No. 123 after speaking to Government amendment No. 122.

We have tabled our amendments in response to concerns that have been raised. As I have said, those concerns are considerable and it is important to get the measure right. Although the commission’s proposed new powers have existed in some form since 2000, and they are the same as other regulators’ powers, we none the less realise the sensitivity of the measure. We realise that to some extent—notwithstanding what I said about the need for politicians not to exempt themselves from scrutiny and regulation—politics is a particular activity.

The hon. Member for Huntingdon has frequently referred to the importance of volunteers, so we have to be careful not to discourage volunteer activity. It is important that we do not criminalise inadvertent mistakes or discourage decent people, acting out of public spirit, from participating in political life. In that spirit, we have tabled our amendments.

The power in paragraph 1(5), which restates the existing powers of entry, can be exercised by the commission for the purposes of carrying out its functions and does not require a warrant. That is because the power does not allow force to be used to obtain entry. It can also be exercised only at a reasonable time.

In addition to the power in paragraph 1(5), the Bill also gives the commission a new range of powers to access information reasonably required for its investigations into suspected offences or contraventions of the 2000 Act from any person who might hold it. Paragraph 3 of proposed new schedule 19A creates a power for the commission to apply for a warrant to enter premises occupied by any person, to search those premises and to seize documents. A warrant may authorise the use of reasonable force for those purposes.

Consequently, the Bill introduces a high threshold for a warrant to be obtained under paragraph 3. The commission will need a warrant to search premises. To get it, it must satisfy a justice of the peace, on information on oath, that it has “reasonable grounds for believing” that an offence or contravention has been committed and that documents that have been withheld following request, or that are otherwise relevant to the investigation, are on the premises.

When exercising the warrant, the commission must be accompanied at all times by a constable. Anyone who is to accompany a constable on to the premises can do so only if named in the warrant.

We believe that those wider powers are necessary to help to ensure that the commission is equipped to conduct effective investigations into suspected breaches of the Act, in conjunction with prosecuting authorities. Nevertheless, we have noted all the concerns raised in the House about possible confusion over the powers of search and entry in paragraphs 1(5) and 3.

The Government amendment to the schedule makes it clear that if the commission suspects that an offence or contravention has occurred and it wishes to enter  premises to continue its investigation, it must use its new powers of search and entry by warrant, which has all the safeguards attached.

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

I will in a moment. I have given way a lot, and I am trying to clear up the confusion about what we are doing.

The commission cannot use the power under paragraph 1(5) to conduct a fishing expedition if it thinks that wrongdoing has occurred. We believe that the safeguards on the power to enter premises ensure that use of the power will be proportionate and justified, and for its proper purpose.

Photo of Nick Ainger Nick Ainger Labour, Carmarthen West and South Pembrokeshire

My right hon. Friend refers to the thresholds that are required and to a warrant that might be granted by a justice of the peace. Is he satisfied that the threshold is high enough? Should we be considering a judge in a court issuing an order, rather than a JP in a magistrates court issuing a warrant?

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

My hon. Friend raises an important point, which we will actively consider.

Photo of Tony Lloyd Tony Lloyd Chair, Parliamentary Labour Party

In support of my right hon. Friend the Minister considering the point made by my hon. Friend the Member for Carmarthen, West and South Pembrokeshire, this is not a trivial point. Those of us who have experience as constituency MPs of the use and, sometimes, the failure of the warrant system know that JPs, whom I am sure in all cases are estimable people, do not always ask the searching questions necessary to determine what ought to take place.

There is merit in having a higher threshold and a higher level of interrogation to force demonstration of reasonable grounds for entry to a premises. Frankly, that is not always the case in criminal law, and we should not replicate that in the Bill. I hope that my right hon. Friend the Minister will think about this matter.

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

I am extremely grateful to my hon. Friend for his comments. He and my hon. Friend the Member for Carmarthen, West and South Pembrokeshire have made some important points and a major contribution to the debate. As I said, the Government are anxious to listen to what colleagues on the Committee have to say. We understand the concerns that have been expressed and will continue to explore what we can do to address them. In the meantime, I am extremely grateful to my hon. Friends for their contributions, which brought real enlightenment to the onward movement of the debate.

I have come to the end of my remarks. I hope that what I have said will be enough to persuade the Committee to accept the Government amendment.

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

The Minister said that the commission is not equipped to fulfil its role. Various issues come out of that. First, we are still short on evidence as to why that is the case. Secondly, if we accept that it is the case,  it does not necessarily follow that the commission needs powers of entry in connection with a donation of only a few pounds, for example. Many of the comments made by hon. Members reflect that.

My hon. Friend the Member for Isle of Wight made an important point when he said that this is not a black-and-white issue. We must consider the range of responses and gradations. The more I have heard from the Minister on this batch of amendments, the more I think that he has not totally thought through the impact and mechanics of the powers of entry.

Having said that, I am grateful to the Minister for discussing the amendments fully and putting the Government’s position on the record, and for his attitude in saying—to his hon. Friends, at least—that he will address the various concerns that have been raised. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 122, in schedule 1, page 14, line 12, at end insert—

‘This is subject to paragraph 2(6).’.—[Mr. Wills.]

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss amendment No. 100, in schedule 1, page 14, line 32, leave out sub-paragraph (3).

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 the part of schedule 1 that deals with powers in respect of suspected offences or contraventions. The amendments are consequential upon each other. Paragraph (1)(3) of proposed new schedule 19A, as set out in schedule 1, says what the recipient of a disclosure notice may be expected to do to comply with it. Again, I am conscious of trying to ensure clarity and avoiding repetition.

In amendment No. 88, I sought to require the commission to have “reasonable suspicion” that the person served with the disclosure order had committed an offence. When speaking to that amendment, I sought to strike a balance between the regulatory and enforcement role played by the commission and the right of the individual to go unhindered by arbitrary state intervention. With that in mind, and largely consequent upon that amendment—which, of course, failed—I believe that by inserting “information or” or “any” we can do away with the need for paragraphs 2(2), 2(3) and 2(5). My rationale is as follows.

Paragraph 2 of proposed new schedule 19A is entitled:

“Powers in relation to suspected offences or contraventions”.

As I noted in speaking to amendment No. 88, disclosure notices should be issued in such circumstances only by the commission, and disclosure as expressed by amendment No. 99 would be of any information or documents that the commission may require for its investigation. To leave paragraphs 2(2) and 2(3) in place would therefore result in duplication, as we could give the commission the same powers with only two words rather than two sub-paragraphs. That, in turn, would increase clarity and understanding at no cost to the commission’s powers of investigation.

In any event, will the Minister please address my suspicion that there could be a degree of duplication between the parts of the schedule? In that vein, will he also explain sub-paragraph (5)? If the power of entry is invoked, will it be necessary to go to a magistrate, as stated in paragraph 3, and if not, why not?

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

The amendments would mean that the commission could not require information or documents from any person who was reasonably required to provide them for the purpose of investigating a suspected offence or a contravention.

The power to require documents becomes available when the commission has reasonable grounds for suspecting that an offence has been committed under the 2000 Act or that another contravention of the Act has occurred. Under paragraph 12 of the schedule, it is an offence to refuse to comply with such a request without reasonable excuse. We believe that the amendment would seriously hamper the commission’s ability to conduct effective investigations into suspected breaches and contraventions of the Act, in conjunction with prosecuting authorities. Not only that, but the technical effect of the provision would be to make unavailable the power to seek a warrant authorising entry. That is because a warrant can be issued under paragraph 3 of the schedule only if a prior request for documents under paragraph 2(2) has been made. However, the amendment would remove that latter paragraph.

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

Yes, it is. That is exactly right. The technical effect of the amendment—again, I am sure the hon. Gentleman is happy to concede the fact—would be an unintended consequence, which I hope he would not relish.

There is cross-party consensus on the need for the commission to become a more robust regulator, but we believe that the amendments would damage its ability to do so. Removing the powers would leave the commission out of step with other comparable regulators, such as inspectors appointed under the Companies Act 1985. If the commission is granted these powers, the Government will expect it to exercise them sensibly and responsibly. When it seeks to use them, it will of course be subject to the usual requirement imposed by public law to act reasonably; its actions must also be compatible with the European convention on human rights, under the Human Rights Act 1998.

I hope that the hon. Gentleman has been sufficiently reassured that his amendment may have unintended effect. I therefore ask him to withdraw it

Amendment, by leave, withdrawn.

Amendment made: No. 123, in page 14, line 45, at end insert—

‘(6) The power conferred by paragraph 1(5) may not be used to enter premises and inspect documents for the purposes of an investigation by the Commission of the suspected offence or contravention.’.—[Mr. Wills.]

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

I beg to move amendment No. 103, in page 15, line 1, leave out ‘justice of the peace’ and insert ‘judge in the High Court’.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss the following: Amendment No. 12, in page 15, line 2, after ‘may’, insert ‘, subject to sub-paragraph (1A),’.

Amendment No. 101, in page 15, line 6, after ‘Act’, insert ‘involving in excess of £10,000.’.

Government amendment No. 124.

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 paragraph 3, dealing with powers of entry and search, where again it would seem that the Government have had some further thoughts since the earlier sittings of the Committee. However, we still have various concerns in relation to the provisions. Amendment No. 103 would change paragraph 3 of the schedule to require the commission to obtain a warrant from a High Court judge, rather than a justice of the peace, before it was entitled to enter premises in the course of its investigations into alleged offences under PPERA. I think this was the point made by the hon. Member for Carmarthen, West and South Pembrokeshire in his earlier intervention on the Minister. That higher judicial threshold would place a greater obligation on the commission to ensure that the reasoning behind any use of its powers of entry was legally sound.

The increased experience and expertise of a judge in the High Court would subject the commission’s arguments that it had reasonable grounds to a higher level of judicial and legal scrutiny than could be expected from a justice of the peace. That would act as an important check and balance on the use of any of the powers, thereby ensuring that any cases of entry into premises were proportionate and justified.

I would be interested to hear from the Minister how frequently he thought that the powers of entry in this schedule might be used by the commission, although to judge from previous remarks he might be reluctant to give that information. I suspect that it will be infrequently, so the higher threshold would not place any significant or undue burden on the commission or prevent it from utilising its powers effectively.

There has been an almost unprecedented increase in state powers of entry under this Government, as I have explained in earlier remarks. I believe the amendment offers an important safeguard to members of the public and those involved in assisting parties. I would like to press the Minister for some clarification on the proposed mechanism for regulating the commission’s use of its powers of entry. The mechanism as it stands allows the commission to seek, through a justice of the peace, a warrant for entry, where the commission has issued a notice and it has not been voluntarily complied with. Lisa Klein, director of the commission’s party and election finance team, noted in the evidence session last Thursday that there were a number of different routes to force compliance.

The approach taken in the Bill, which apparently was the choice of the Ministry of Justice rather than the commission, requires the commission to apply to the magistrates for permission to go with a constable and see if it can find the answers itself. The other approach, as used in the United States, would be for the commission to ask the courts to order someone to answer the  questions put to them by the commission. If they did not do so, they would be held in contempt of court and it would then become a criminal matter.

The Government proposed the former criminal route and I would like to hear from the Minister why that was the case. Furthermore, did they consider the alternative civil-type route, and if so, why was it dismissed? It is important that the main check on the commission’s investigation power is through the judicial system. The commission is acting as a regulator separated from the Government and if the separation is not maintained, its legitimacy will break down.

Further, while potentially cumbersome, an affected individual or group has the right to judicial review of the commission’s actions. As such, it is imperative that we ensure that the Government have chosen the correct route for regulation of the commission’s powers in the Bill.

On a final point, I would like to ask the Minister how the Government consulted on the proposals to give the commission these powers and the safeguards that are attached to them. Again, are the powers proportionate given their powerful scope? We are not yet convinced.

Amendment No. 101 is a consequential amendment following amendment No. 124, which we debated previously. It aims to bring in a threshold of £10,000, which would mean that the powers of entrance and search could be used only in respect of the larger issues, which seems a more proportionate approach.

Finally, Government amendment No. 124 introduces a new sub-paragraph into paragraph 3 of schedule 1, adding a further safeguard that gives the commission wide-ranging powers of entry. Our starting point was one of concern about the lack of safeguards in the paragraph and about the need to redress the balance between powers and safeguards. We therefore welcome this Government amendment as a first step along the road to a clearer and more proportionate allocation of the powers of entry. However, I have a few small concerns about the amendment that I hope the Minister will address.

My first concern is about the form and duration of the chief executive’s authorisation. We would like the measure to specify that any authorisation must be specific to each case and warrant, in order to avoid blanket authorisation being given. Will that be the case? Further, we would like a reasonable time limit to be placed on such authorisations, so that they have an expiry date and cannot be used further down the line as a basis for further search warrants during the same investigation.

We would like the appointment system regarding alternatives to the chief executive to be tightened up through the addition of a need for the agreement, or at least consent, of the Speaker’s Committee to the proposed replacement. We would also like a time limit to be placed on the authorisation of that person as a replacement. Finally, we would like any such appointment to be made public within five days by way of notice in the London Gazette.

Those changes would not place an unnecessary burden on the commission, given that it is unlikely that such warrants will be an everyday occurrence and that the absence or inability of the chief executive to approve  them will be even rarer. The important measures that I have outlined would ensure that the safeguards operate effectively. As welcome as the Government’s amendment is, it has the feel of something that was rushed out on Friday on a reactive basis. That rather underlines our point that more time is needed between evidence and drafting sessions. The amendment does not go far enough to allay our concerns about this paragraph, and I look forward to hearing the Minister’s comments on it.

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

My starting point with this amendment is that it seems a little over the top to require a High Court judge, who does not normally deal with warrants in criminal cases, to grant a search warrant in relation to a fairly minor offence. The point that the hon. Member for Huntingdon made about High Court judges’ experience is quite wrong; they have virtually no experience in giving search warrants, because most search warrants are given by justices of the peace. That is, presumably, why the Bill specifies that it should be a justice of the peace.

At first then, the amendment seems quite extraordinary, but there is a point to be made. The Bill brings together the situation in paragraph 3(1)(a), in which someone is suspected of having committed a criminal offence, for which it would be entirely normal to get a search warrant from a magistrate, and the situation in paragraph 3(1)(b), in which someone has

“contravened (otherwise than by committing an offence) any restriction or other requirement imposed by or by virtue of this Act”.

It is the words in parentheses that cause the problem. We are considering the grant of a search warrant in a situation in which no one is suspected of having committed a criminal offence.

In civil law, there are equivalents to search warrants. They used to be called Anton Piller orders in the old days, but then they were renamed with a not very fancy name. In civil law, if one wants to do something similar to what is done in criminal law, one has to go further up the judicial chain. That is the problem with this provision. I have no problem with a justice of the peace issuing a search warrant in a criminal case, but I do have a bit of a problem with that if no criminal offence is suspected.

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

The hon. Gentleman said earlier that the nature of many of these powers would or should be through the civil rather than the criminal route. Is not he proving that I did have a point to make?

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

I accept that point, because the Bill conflates criminal and non-criminal aspects, and it is not right to have the same procedure in each case. That adds a layer of complication, and it is entirely over the top to require a search warrant from a High Court judge in an ordinary criminal case.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I would like the Minister to help me with the question of what happens when things are taken away. Paragraph 8 of the schedule says that “documents” include “any books or records”. If there is a room full of computers, people can walk in, collect the computers and walk out again. If this happened in the middle of an election, one can imagine the damage caused to election organisers. Is there any provision to take copies  of what you have got and keep them? Obviously, some computers have to be removed, perhaps all of them, but should there not be a power to keep copies?

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

I have already made it clear that we are prepared to look at the question of judicial oversight. I hope that in the light of that the hon. Member for Huntingdon will withdraw his amendment, but I do want to assure him that we are exploring this. We have to consult the judiciary, among others, as to feasibility. We have to take into account—and I am sure the judiciary will take into account—the sort of points raised by the hon. Member for Cambridge.

The points made by my hon. Friends, the Members for Carmarthen, West and South Pembrokeshire and for Manchester, Central are well taken. We recognise the need to reassure the House on this. These are important powers that we do not expect to be used often. Perhaps the tightening of judicial oversight will be a way of providing extra reassurance. I am sorry I cannot be more specific and enlighten the Committee at this stage as to exactly what we are proposing but I will come back to the Committee or the House at some point.

The hon. Member for Huntingdon asked whom we consulted. As I have said already, the White Paper was published in June, the Bill was published in July, and we consulted widely on both, including with the Opposition parties. I hope that will give him some comfort that we have taken our obligations to consult very seriously.

The hon. Gentleman also raised the question of why we rejected the approach—apparently suggested by the Electoral Commission in its evidence—that we should go down the US route of applying for a court order and then a sanction being contempt. This was an interesting contribution from the Electoral Commission. The warrant approach is in the tradition of this country. We were not aware that the Electoral Commission favoured a different approach to it. If that is indeed its position—that it would prefer to go down that route—we are happy to explore that with it and come back to this Committee. There are arguments against this route but, as it is the Electoral Commission that will have to apply the powers, we think its views important. We have not had the opportunity to discuss this with it but we will. I hope that gives some comfort.

The hon. Member for Isle of Wight raised an interesting point. I know he is much concerned about what will happen during an election campaign. He raised similar concerns on Second Reading about the effect of the exercise of these powers. He has made some very good points about that. The answer is that it will depend on the individual circumstances. The warrant will authorise what happens. He is right that the provision does include computers. That does come within the ambit of this but it will be for the warrant to take stock. He makes a valuable point. We will take it away and see if there is anything that can be done.

We are also reflecting on some of other hon. Gentleman’s other points about the operation of the powers during an election campaign, as I think he is aware. They are important points, as we do not want any disruption to the normal process of an election campaign. We do not  necessarily think that the commission’s capability as an effective regulator will be interfered with. I hope that on the basis of what I have said, the hon. Member for Huntingdon will feel able to withdraw the amendment.

I hope also that the extra safeguard that we are introducing in Government amendment No. 124 will be acceptable to the Committee. It produces an extra safeguard before a warrant can be issued under paragraph 3 of proposed new schedule 19A. We have tabled it in response to the concerns expressed on Second Reading that the powers may be mishandled or treated too casually by the commission. Under the Bill as drafted, to obtain a warrant to enter premises to investigate a suspected offence or contravention, the commission must demonstrate on oath to a justice of the peace that it has “reasonable grounds for believing” that an offence has been committed and that documents that have been withheld following a request, or that are otherwise relevant to the investigation, are on the premises. In addition, as we have said, the commissions must be accompanied by a constable at all times when exercising a warrant.

It is worth emphasising again that a warrant can only ever be applied for when there is a history of a lack of co-operation by the subject of an investigation or by someone who holds useful information. Whether a warrant is issued is not in the commission’s gift. It must convince a justice of the peace, or possibly a higher judicial authority, that it really needs to enter the premises to get hold of relevant documents that it believes are there.

Of course we recognise the concerns that have been expressed, and as I have said, I want to meet them while still ensuring that the commission retains effective powers where necessary. The effect of the amendment will be to ensure that no application can be made for a warrant to enter and search premises without the written authorisation of the chief executive of the commission. If that office is vacant or the chief executive is absent or unable to act, the authorisation will come from a member of staff of sufficient seniority, who has previously been designated by the chief executive for the purpose and whose designation is still in force.

The hon. Gentleman launched a number of probing questions about the time limit and whether the Speaker’s Committee should have oversight. I am certainly happy to raise those points with the Electoral Commission. As the regulatory authority, it is obviously important that we ascertain its views, and it will be influential in deciding how we proceed. However, although I am not closing my mind, I say to him as a first response to his questions that there could be some difficulty. It would be one thing if the post of chief executive were vacant for a considerable time, but the Government amendment covers his being

“absent or unable to act”.

That might mean a temporary illness or something like that. We need to be careful about introducing procedures that are too cumbersome and would interfere with the commission’s ability to discharge its duties effectively.

Photo of Tony Lloyd Tony Lloyd Chair, Parliamentary Labour Party 7:45, 11 November 2008

It is quite clear that there is a real attempt to raise the threshold, but I share the hon. Member for Huntingdon’s desire to probe the matter. The wording could, ironically, allow the office junior to be routinely designated. I know that that is not the Minister’s intention—that is clear from  what he has just told us. Would it be worth considering a form of words that would guarantee that the power will not be routinely delegated to an inappropriate level? It is not likely that the chief executive would want that, and I know that it is not the Minister’s intention, but as often in life, we need to ensure that our intentions of today are honoured in 15 years.

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

I agree with my hon. Friend that we cannot be too careful, but such a scenario is extremely unlikely. As I have said, I have an open mind on this and I am perfectly happy to consult the commission. It would certainly not want to trivialise the power in the way that he suggests—why would it? There would of course be a test of seniority and experience, and I know that my hon. Friend uses the office junior as an extreme example to make his point, but the general point is valid. We want to ensure that there is sufficient seniority. I think that the hon. Member for Huntingdon was probing how we define that and ensure that it is at an appropriate level. Those are perfectly fair points. I would be very happy to explore them and we will do so with the Electoral Commission. With that, I hope that the Committee will be prepared to support our amendment.

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

The Minister has said that he will review the need for judicial oversight and the form of the warrant process. I am grateful for that. It is necessary given the current state of the clause. He also said that he would discuss with the Electoral Commission whether the US civil-type approach would be suitable. That would be helpful too. I am also pleased that he will be taking up my questions on his amendment with the Electoral Commission and I should be grateful if he would circulate its reply to the Committee. That would be important for our later deliberations. On that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 124, in schedule 1, page 15, line 38, at end insert—

‘Authorisation of application for warrant under paragraph 3

(1) An application for a warrant under paragraph 3 may not be made without the written authorisation of—

(a) the chief executive of the Commission, or

(b) where the office of chief executive is vacant or the chief executive is absent or unable to act, a member of the staff of the Commission who has previously been designated by the chief executive for the purposes of this paragraph and whose designation is still in force.

(2) A person may be designated under sub-paragraph (1)(b) only if the chief executive considers the person to be suitable having regard to the person’s experience and level of seniority as a member of the staff of the Commission.’.—[Mr. Wills.]

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

I beg to move amendment No. 25, in schedule 1, page 15, line 41, leave out ‘three months’ and insert

‘42 days from the date on which they were seized.’.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss the following amendments:

No. 26, in schedule 1, page 15, line 45, leave out from ‘within’ to ‘proceedings’ and insert

‘42 days from the date on which they were seized.’.

No. 27, in schedule 1, page 16, line 2, at end insert—

‘(2A) The Commission may apply a magistrates court to extend this 42 day period by a further 14 days where they can prove on reasonable grounds that the continued retention of such documents is vital to the investigation into offences under this Act which involve in excess of £10,000.’.

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

We now move on to paragraph 4 which deals with the retention of documents. When read together, amendments Nos. 25 and 26 seek to insert a court-based safeguard into an otherwise possibly arbitrary power for the commission to withhold documents. The current entitlement as proposed in the Bill is three months or 90 calendar days. My amendment would reduce that initial time frame by half, but would add in the power to have that extended on application to a magistrate by a further 14 days.

This inserts an important judicial safeguard mechanism into the Bill to prevent the commission from holding documents for an unnecessarily long period of time and thereby potentially placing an individual or group in a very difficult position. The retention of documents can cause significant disruption to individuals, businesses and groups. We must ensure that we strike a balance between the desire to have an effective regulator in the commission and the ability of those under investigation to continue their lives as unhindered as possible. After all, we are all innocent until proven guilty but the way the current provision in the Bill is drafted seems, to my mind at least, to flip that principle on its head.

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

As the hon. Gentleman has explained, the amendments seek to alter paragraph 4 and the length of time for which any documents may be retained. I am curious about how he alighted on the figure of 42 days. [Laughter.]

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

I am interested that he seems to believe that it is a relatively short period of time.

As we have said, the amendments would impact significantly on the commission’s ability to give proper consideration to documents, which it requires for the purposes of investigating a suspected breach or contravention of the Act. It is open to the commission to return documents before the three-month period expires if there is no reason to retain them any longer. Furthermore, the commission can retain documents for more than three months only in specific circumstances covered in paragraph 4. Forty-two days is not a sufficient time limit within which to expect the commission to have considered documents or taken steps it considers appropriate to pursue an investigation into a suspected breach of the Act.

Indeed, it could require the commission to reach a decision about whether to take proceedings unnecessarily quickly. I am sure that the hon. Gentleman would not have intended that to be a consequence of the amendment. That could lead to proceedings being abandoned, unnecessary stress and disruption, and everything else that goes with that, when a longer period might have  shown that there was sufficient evidence to justify the proceedings or, equally seriously, to err on the side of taking proceedings where the evidence later turns out to be insufficient.

It is hard to see how an amendment that risks having either effect could be anything other than damaging to the regulatory regime that proposed new schedule 19A seeks to support. I do not think that the proposed extension period in amendment No. 27 properly addresses that point, not least because the sorts of offence or contravention to which the power to enter may relate will not always have a quantifiable monetary value. It is in everyone’s interests to ensure that a proper balance is struck between the needs of the commission to have time to consider what evidence it has before it and the needs of the person whose documents have been taken to know what is to be done with them and to have them returned within a reasonable period, if proceedings are not to be taken.

Our proposal reflects the approach taken by Parliament towards other regulators and, therefore, is based on a  workable precedent. I hope that the hon. Member for Huntingdon will withdraw his amendment.

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

The Minister said that he was concerned that the impact of the amendments could be that the Electoral Commission would have to take a faster decision than it otherwise would, which could lead to a bad decision. I take his point, but I have tried to address that issue by saying that the commission would have the right to go back to the magistrate to request a further 14 days, and I would not have a problem with that being a recurrent right, on the basis that the commission would have to justify its wish to keep the documents. For the moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned.—[Ian Lucas]

Adjourned accordingly at three minutes to Eight o’clock till Thursday 13 November at Nine o’clock.