Schedule 1

Political Parties and Elections Bill – in a Public Bill Committee at 12:00 pm on 13 November 2008.

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Investigatory powrs of Commission: Schedule to be insrted 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

I beg to move amendment No. 28, in schedule 1, page 17, line 13, at end insert—

‘(2) Where originals have been removed from premises, the Commission must take all reasonable steps to provide the individual or organisation with copies of those documents within 24 hours.’.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss the following amendments: No. 29, in schedule 1, page 17, line 23, at end insert

‘and leave a copy of such authorisation of warrant with that person.’.

No. 30, in schedule 1, page 17, line 34, after ‘any’, insert ‘reasonable’.

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

Welcome to the Committee, Mr. Atkinson. In an attempt to redress the balance on the retention of documents, amendment No. 28 would require the commission to furnish people from whom documents have been seized with copies of the documents. My hon. Friend the Member for Isle of Wight raised that issue in earlier deliberations, and I am pleased to be addressing it formally as he wished.

The amendment would enable people to minimise any disruption or financial loss during the period in which their documents were retained. Furthermore, the possibility of an individual or an organisation wishing  to seek legal advice when they find themselves in such a position is high, so by providing them with copies we would allow them to seek that advice straight away and ensure that their rights were observed in any redress processes available to them. In retrospect, I would redraft the amendment so that a person had to request documents before they needed to be given, but the principle is the same and, I believe, still valid.

Amendment No. 29 would provide for a copy of the warrant authorisation to be left with the person on whom it was served. It follows a similar vein to the amendment that I proposed to paragraph 4 of schedule 1, but it deals instead with paragraph 5. It is important that individuals or groups subject to the power of the commission have the ability to access avenues of appeal and redress, which provide vital safeguards to prevent abuse of the powers by the commission.

Having copies of relevant documentation at an early stage is vital if such avenues are to be utilised effectively and employed in a manner that protects the individual or group, as well as calls the commission to account for its actions. Furthermore, leaving a copy would allow for a cool and considered review of the warrant away from the heat of the moment, and would prevent a simple flash of paper with the recipient possibly in shock from the entry process. Perhaps another measure covers that point, but I would be grateful if the Minister explained the position.

Amendment No. 30 concerns the word “any”. It is far too broad a word when describing what a person must do in the context of an entry situation. Do we expect a wheelchair-bound donor to climb a flight of stairs or an arthritic party officer to press keys on a computer keyboard? It is easy to assume that those caught by the provision will be able-bodied or computer literate, or have any other skill set that we consider commonplace. Hon. Members will know from experience, however, that that is not the case in many local party offices or organisations, let alone in respect of individual donors. The amendment, therefore, by inserting the word “reasonable”, would force the commission to take account of the circumstances of each case and act accordingly. Again, we feel that this is a question of balance and proportionality.

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

I start by apologising to the Committee and to you, Mr. Atkinson, for my slightly late arrival. I am afraid that the Mayor of London has not yet succeeded in getting a grip on London’s transport. [Interruption.] Well, in this case, the blame lies where it lies. My apologies to the Committee.

I understand entirely why the hon. Member for Huntingdon has tabled these amendments. We are sympathetic to the concerns that lie behind them, but I hope that when he hears what I have to say, he will feel that he need not press them. He has set out clearly the reasons behind the amendments. In relation to amendment No. 28, I can see exactly why he has proposed it, but a blanket 24-hour requirement would be too inflexible.

I am willing to consider whether we might insert in the Bill a requirement that, if requested by those whom the documents were taken from, the commission would have to copy and return the documents within a reasonable time frame. That would ensure that only where the individual needed the copies to be returned to them the  commission would be required to do so. Otherwise, it would be an onerous burden on the commission to do that in all circumstances.

I would also expect the commission’s guidance on the use of its powers to include a policy in relation to seized documents, not least because of the concerns raised in the Committee. I am sure that hon. Members’ concerns will have been noted by the commission. I hope that, on that basis, hon. Members feel satisfied and will not press the amendment.

Amendment No. 29 would oblige the commission to leave with the person to whom it applied a copy of any warrant obtained to enter and search premises, but paragraph 7 of proposed new schedule 19A to the 2000 Act, as set out in schedule 1 of the Bill, requires a person to produce a warrant when searching premises. I believe that that is adequate protection to ensure that the person understands the grounds on which a search is taking place. I cannot understand why someone would need to retain a copy after the search has ended and I am not aware of any precedent for that.

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

Why would not someone whose house has been entered want to receive a piece of paper showing the warrant? When entry is made, they may be in a state of shock and things may be flashed in front of them. Is it not the correct procedure to leave them with a copy of the warrant that can be reviewed at a later stage?

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

As I said in relation to the previous amendment, I am perfectly happy to look at the issue and talk to the commission about whether the guidance could include such a provision, but I am reluctant to load the commission down with the onerous burden of doing that in all circumstances. I understand what the hon. Gentleman is saying in relation to those particular circumstances, and if necessary we will return to it on Report, but I hope that he is satisfied that the commission will produce guidance on that particular issue. There is no cause for the commission to be unreasonable on that point.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I am interested in how the Minister is following matters. He seems to be saying that the measure would burden the commission. In fact, the trial lies with members of the public, who take higher priority than the members of the commission. He has it rather topsy-turvy.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 9:15, 13 November 2008

I understand the hon. Gentleman’s point, but the point I am making is that we should not unduly burden the commission. In the end, the commission is funded by the taxpayer and if we put undue burden on it the taxpayer will bear the cost, which we all agree should be avoided as far as possible. Of course, if it is reasonable for the commission to protect the interests of those subject to the search, it should do so. This is not about not putting any burden on the commission—we are not reluctant to do that. It is a question of placing an undue burden and precisely where the balance is struck. However, we shall look at the issue—I am perfectly happy to do so. We shall talk to the commission  and see how it would regard such a thing, or possibly get some assurance that it will provide for that in guidance.

The intervention of the hon. Member for Huntingdon was perfectly reasonable and we should see how we can take account of it in the best possible way—without putting undue burden on the commission.

I completely understand the aim behind amendment No. 30. We do not want the schedule to be overly onerous, and we want the powers to be used reasonably and sensibly. There is consensus in the Committee on that. However, amendment No. 30 is not necessary, because it would duplicate what is already in the schedule.

The schedule stipulates that, where an inspector is inspecting documents in electronic form, the person on the premises in question will be required to give any assistance that the inspector reasonably requires to inspect documents or to check the operation of any computer or associated apparatus. Therefore, the Bill already provides that, before it can be requested, what may be required must be reasonable. That test already includes an assessment of whether the substance of the requirement is reasonable, and also whether it is reasonable to require it to be done.

We must not forget that the powers must be exercised in a way that is consistent with public law principles of reasonableness. We are fortunate in having the protections of the European convention on human rights in this matter, including the right of respect for private life under article 8 and the right of enjoyment of property under article 1 of protocol 1. I am sure that the whole Committee is glad that we enjoy the protections of the European convention on human rights, embodied in UK domestic law under the Human Rights Act 1998. Therefore, I hope the Committee agrees that we have already provided that an inspector will not be allowed to make unreasonable demands. With those undertakings, I hope that the amendment will be withdrawn.

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

We are certainly pleased that the Minister has seen the sense of our amendment No. 28. We agree that things should be done by way of request, rather than the other way around—conceptually, we are in agreement on that and I look forward to seeing the ensuing Government amendment.

On amendment No. 29, again, I am pleased that the Minister has said that he will review the issue of leaving a copy of the warrant. We shall see how that progresses. On amendment No. 30, I thank him for his clarification, which seems to be in order. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Martin Linton Martin Linton Labour, Battersea

I beg to move amendment No. 118, in schedule 1, page 18, line 41, at beginning insert ‘Subject to subsection (1A),’.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss amendment No. 119, in schedule 1, page 18, line 43, at end insert—

‘(1A) A person does not commit an offence if, in the opinion of the Commission, the person had no intention of withholding or failing to provide information for the purposes of fulfilling any duty or obligation under this Act.’.

Photo of Martin Linton Martin Linton Labour, Battersea

It is a pleasure to serve under the chairmanship of a former fellow councillor, Mr. Atkinson—I hasten to add, before anyone worries, that it was in a split ward.

Both amendments concern the issue of unintended errors and honest mistakes. The current law states that a

“person who fails, without reasonable excuse, to comply” commits an offence. One could argue that any unintended error is, automatically, a reasonable excuse, but this has led to a lot of problems with the legislation.

In evidence, we heard descriptions of unintended errors. The treasurer of the Conservative party, Ian McIsaac, was asked what happens if the party worker whose job it is to list the donations accidentally drops a page behind the cabinet and discovers it six months later—that is a late declaration. It seems ridiculous that the Electoral Commission could regard that as an offence, whether there was intent or not.

Many Members have probably had similar experiences, and I had a late declaration myself—of a trivial nature, I thought. The reason for the lateness was to do with whether a hotel bill would be more than £1,000. At first, it seemed that it would not, but in the end it was, so the declaration was late. I apologised to the Electoral Commission and received a stiff letter in reply. According to the letter of the law, I did not have a reasonable excuse and it could have been regarded as an offence.

We all know of other more serious cases where declarations of donations have been made many months too late and the Electoral Commission, rather than disregarding the incident, has referred it to the Crown Prosecution Service. The whole machinery of the law can be set in motion over an error that was not only unintended, but which nobody believes was intended or deceitful, or born of any lack of good faith.

I support action against failure to declare where it involves deceit or intention. I can point to my record on this matter, having been on the sleaze-busting team at The Guardian, and having written a pamphlet about money and votes in the 1990s. I fully support—indeed, I played a part in—bringing about this legislation on disclosure. I would be the first to say that people who try to conceal donations should be prosecuted, but, equally, I do not want the police, the CPS or the courts to be clogged up with unintended errors and honest mistakes.

There is some evidence that the Electoral Commission has prosecuted, even when it believes that there is no deceit or lack of good faith. That is not my target. I was trying to introduce into the Political Parties, Elections and Referendums Act 2000 a measure like the one that is already in the Representation of the People Act 1983. I shall briefly quote from section 167 of the 1983 Act, if I may. One may, in respect of any electoral offence that one commits, which is an offence under the Act, go to a court—a High Court or an election court, sometimes even a county court—and argue

“that the act or omission arose from inadvertence or from accidental miscalculation or from some other reasonable cause of a like nature, and in any case did not arise from any want of good faith”.

If one persuades the court that that is true,

“the court may make an order allowing the act or omission to be an exception from the provisions of this Act”.

In other words, the court can wish the Act into nothingness—it disappears completely—under a process known as seeking relief. That provision was not imported into the 2000 Act. So if one commits an offence under that Act, in respect of the late declaration of donations, one cannot go to the court and seek relief.

The 1983 Act also has lots of provisions allowing candidates to be relieved of the consequences of the Act where an agent or a sub-agent is unable to do something because of death, illness, misconduct, or whatever reason. That is what the law should do; it should prosecute the guilty, not those who have no intention to break the law. I confess to the Minister that I really intended this amendment to apply not where the commission believes there was no intention, but where the court believes that. There should be a provision allowing someone, as soon as they discover that they have made a late declaration, to go to a court, seek relief and have the offence disregarded by the court before the Electoral Commission is in a position where it has to consider whether to prosecute.

This is a problem that most people acknowledge and there is more than one way of resolving it. I should like some assurance from the Minister that he is aware of the problem and that he will seek some way of getting round it. I should not agree with him if he were to say that there is no problem at all, because the record so far shows very clearly that the Electoral Commission sometimes proceeds on unintended errors. A lot of police, CPS and even court time is wasted on offences that would have been serious if there were intention to deceive, but are not really serious in the absence of that intention. We need a system in which the court can intervene at an early stage to avoid that.

Photo of Alan Whitehead Alan Whitehead Labour, Southampton, Test

I have great sympathy with what my hon. Friend has said about his amendments, particularly the idea that the Bill must be consistent with the Representation of the People Act. In his opinion, was the 2000 Act unintentionally or intentionally lax in that matter? A clause ensuring consistency between the Representation of the People Act and future legislation was omitted from the Act, so including it in the Bill would simply put matters right rather than create new precedent.

Photo of Martin Linton Martin Linton Labour, Battersea

I was a member of the Committee that considered the 2000 Act, and I do not recall any Minister or member of the Committee suggesting that there should be a prosecution in a case in which there was no intention to deceive. I certainly do not think that that was the intention. Page 18 of the Bill states:

“A person who fails, without reasonable excuse, to comply...commits an offence.”

The Minister might argue that that gives the Electoral Commission sufficient leeway to decide whether to prosecute, but there are two problems with it. First, “reasonable excuse” does not cover the same ground as an unintended error. If somebody were late for the Committee, even if they did not intend to be, one could argue about whether their reason for being late was a reasonable excuse. That is not the same thing as an unintended error.

One could easily get into a situation where somebody makes a very late declaration of a donation, and their only excuse is that they forgot. One might well say that  that was not a reasonable excuse, but that given that it was an unintended error, an honest mistake not motivated by any desire to withhold information or to deceive, it would be a waste of time to prosecute. I do not think that the intention behind the 2000 Act was to catch honest mistakes, but that may be the outcome. The 1983 Act creates a far better of range of cases in which it can reasonably be argued that a mistake was unintended and should not be subject to prosecution. I hope that we can put that right.

Much as we need tough legislation, it should not be so tough that it tangles itself up in unnecessary prosecutions. Many people have said that we must have laws that apply to politicians in exactly the same way as to any other section of the population, and that the regulator must have the same powers over politicians as over anybody else. I fully subscribe to that, but we must surely bear in mind the fact that the consequences of prosecution for an unintended error are great for politicians. In fact, the further up the political tree, the greater the consequences. Many of us would admit that we have seen politicians’ ministerial careers ended prematurely not because of any intended error but because of an unintended failure. We lose enough people from politics who are prosecuted for good reasons—that is how it should be—but to lose people who have not acted in bad faith is a great waste. Without asking for any special treatment, I simply suggest that the provision in the 1983 Act that relates to avoiding errors over unintended prosecutions should effectively be imported into the 2000 Act so that we have the same regime for both Acts.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs 9:30, 13 November 2008

It is a great pleasure, Mr. Atkinson, to serve under your chairmanship; I think it is the first time that I have done so. I fully support the intention behind the amendments. However, there is a technical problem with them, as the hon. Member for Battersea mentioned; namely, that it is a bit odd to make the legality of a prosecution subject to the opinion of the commission itself. I presume the Government will point that out. However, that technical defect does not take away from the important principle that crimes of negligence are difficult to justify. The question is under what circumstances should a negligent act—an unreasonable failure that was not intentional—be criminal? That should be the case only in exceptional circumstances. I have spent much time in other circumstances trying to argue against the imposition of the criminal law for negligence.

That brings us back to the question of what is the intention behind schedule 1? It should be made clear that the amendment applies only to the schedule 1 requirements; it is not meant to cover the whole of PPERA. In other parts of PPERA, there are serious offences—for example, section 61 relates to the evasion of restrictions on donations. Those offences are made explicitly dependent on someone knowingly, or intentionally, doing something. The amendment applies only to failing to comply with requirements under schedule 1, which, apart from the aspects of investigating criminal offences, is about inspection and audit. That was the point of our debate last week. Schedule 1 is not really about the heavy criminalisation of political parties or those involved with them; it is about regulation, inspection, audit and getting compliance. Ultimately, at some point we  need—I think I said this last week—to have some sort of criminal back-up for those kind of powers. However, that should not be heavy-handed. How the amendment has been drafted might not be quite correct, but I am confident that if the intention of the hon. Gentleman’s amendment were to be inserted into the Bill, it would improve it and make it clear that schedule 1 is more about regulation and audit than criminalisation.

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

In principle, we support amendments Nos. 118 and 119 tabled by the hon. Member for Battersea. He talked about them fully and eloquently. The hon. Member for Cambridge considered the clause from the point of view of putting negligence into a criminal context and whether that is right in the context of the Bill. That is an important argument to have had; he made a good point. However, I shall consider the measure in its criminal context.

A basic tenet of UK criminal law is that to be guilty of an offence, the person must have both the mens rea and the actus reus, as prescribed in law. In short, that relates to the mental decision to commit the crime and the physical act of committing the crime. If we consider the offence that the amendment would deal with, we can break it down into the mens rea and the actus reus. The offence is the failure to comply with investigation requirements. The mens rea is the decision not to comply and the actual non-compliance is the actus reus. The amendment would carve out a defence that acts on the mens rea element of the crime. It seeks to clarify that a positive decision not to comply is necessary for the individual or group to be found guilty of the offence. It is not sufficient for the document to have slipped down a crack in the desk; rather, it must have been placed there with the intention of concealing it.

It must be said that the Electoral Commission does not support these amendments, as it believes that the provision in paragraph 12(1) is relevant. That provision is that there is an offence only if it is done “without reasonable excuse”. That point has been debated, not least by the hon. Member for Battersea. The other difference is that his amendment applies to the Act whereas paragraph 12(1) applies only to schedule 1 of the Act, so his principle is much wider, but just as important for that.

It would be helpful if the Minister could explain what might constitute a reasonable excuse in the context of these amendments and the difference between them. However, the Government need to take heed of these amendments. Not only are they sensible but they show the breadth of concern that exists about the Bill and many of its new powers, and also the ease with which volunteers and junior party officials could fall foul of its provisions in what would be a very costly way. To that extent, we would be minded to support amendment No. 118 in a Division.

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

Of course I understand all the concerns that have been raised here. I hope to reassure the Committee that it will not be necessary to press amendment No. 118 to a Division, but if my remarks do not reassure the Committee I am perfectly happy to look at this issue again. However, we have already looked at it quite carefully.

Nobody wants to pass into law something that would make politicians liable to be needlessly subjected to sanctions for what are genuine oversights. My hon. Friend the Member for Battersea gave some good examples of how such oversights might happen and to make politicians liable for them is certainly not the intention of this measure.

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

Of course I do. No one should be needlessly subjected to sanctions for what are genuine oversights; that would go against the spirit of the Bill. We have made it clear all along that we do not want to put onerous burdens on volunteers who are performing a public service in the spirit of public duty.

So, we have to be careful about this measure and we have looked at it carefully. I start by reminding my hon. Friend that it derives from the 2000 Act and not from the 1983 Act, which is based on a different model. With all respect, we should not go back to the 1983 Act. We moved on with the 2000 Act, so we must look at starting from 2000 rather than 1983.

Most of the offences in the 2000 Act are worded to provide that a person commits an offence if he or she does something, or fails to do something, “intentionally or recklessly” or “without reasonable excuse”. In cases where a person inadvertently breaches the law, in the way that my hon. Friend has mentioned, it will rarely be the case that an offence of the type outlined in the 2000 Act will have been committed. Accordingly, whether this amendment is necessary hinges to a large extent on the extent to which the “reasonable excuse” defence allows for honest mistakes to be judged a “reasonable excuse”.

I hope that I can reassure my hon. Friend that this amendment is not necessary. There are two principal types of offence in the 2000 Act. One is where someone does something “recklessly or intentionally” and the other is where an offence is committed if something is done “without reasonable excuse”. The former case is where someone intentionally does something wrong or should have known that what they were doing was wrong but went ahead and did it anyway. That sort of behaviour is not what this amendment would appear to be concerned with.

The second category offence is where a person commits an offence if he or she did something “without reasonable excuse.” That is what the amendment is concerned with. There is nothing in the 2000 Act, or in the Bill to require law enforcement agencies or the commission to investigate or sanction apparent breaches of the rules. In all cases, the provisions are permissive. Where the commission is satisfied that a breach was genuinely inadvertent, it may not always be in its interests to use its powers and resources to conduct a full investigation or to sanction that person. That will be a matter of discretion. That is why—if the hon. Member for Huntingdon will forgive me—I will not take up his offer to specify the circumstances in which action will be taken. That is a matter for the commission, and we must trust it to use its judgment appropriately. To some extent, it would still have to do that under the amendments.

If a person has claimed on several occasions to have forgotten to comply with a significant request from the commission, we might expect it to be more sceptical about the claim of an “honest mistake”, than it would be in the case of someone who had failed to comply for the first time about a less significant request that was easier to forget about.

Photo of Martin Linton Martin Linton Labour, Battersea

My right hon. Friend says that the commission is under no obligation to proceed against somebody in cases of an unintended error or an honest mistake. However, under the current law, there is nothing to stop it from doing so. As he says, it is a matter of discretion. I have heard of cases where the commission has proceeded against somebody, even though there has been no suggestion of an intention to deceive or an act of bad faith. I am concerned about that.

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

I understand my hon. Friend’s point. The commission has said that it will write to the Committee, setting out its intention to take a risk-based approach to regulation. That ought to militate against the kind of risk that he has outlined, where cases will be pursued that are not in the public interest or, in particular, that are disproportionate. Following that letter from the commission, if the Committee and my hon. Friend are still concerned, we will be happy to look at the matter again. I hope that that will reassure him. We want to reassure everybody involved in politics that the kind of disproportionate action that he is concerned about, does not take place.

Photo of Alan Whitehead Alan Whitehead Labour, Southampton, Test

My right hon. Friend has made a kind offer for the Committee to receive communication from the Electoral Commission about its intentions in this matter. Has he considered that redress for an act by the commission in respect of a fine imposed under the schedule, appears to be an appeal to a county court subsequent to action taken by the Electoral Commission, if that act is felt to be unreasonable? The amendment suggests that relief may be obtained before the Electoral Commission’s action. Therefore, the long process that might be started even if the eventual outcome is clear, could be averted. Would a communication from the Electoral Commission reflect on that, or would it reflect only on the extent to which its actions are reasonable or otherwise, even if they could still subsequently be tested in the courts?

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

I understand my hon. Friend’s concerns, but there is another side to that matter, to which I will return. In the opening sitting, the hon. Member for Cambridge said that we should steer between two poles. I agree with that and I will address that particular point.

There is no way that we can avoid having the Electoral Commission make those judgments. Sometimes people who engage in political activity will have to go through that process, and we cannot avoid it. I understand my hon. Friend’s concern and the concerns of other hon. Members about trying to strike a slightly different balance, and that is what we seek to do.

If, following the Electoral Commission’s communication to the Committee about its planned risk-based approach, the Committee still has deep concerns, I will return to the matter, but I want to explain the other side, because  it is important to remember that as we deliberate we have a duty to look to the public and their confidence in the way in which we do our business.

We must strike a balance between the two. Of course, we do not want to run the risk that my hon. Friend the Member for Battersea so graphically outlined. That would be in no one’s interest, it would not generate public confidence, and it would discourage people from taking part. However, we must remember that if we allow someone to escape liability on the basis of an honest mistake, that could—not would, but could—give carte blanche, and encourage people to be ignorant of the law and to feel that they can take risks with their observance of the duties to which they should be properly subject. That would not help to inspire public confidence in our political system, and is not that sort of defence.

In contrast, the defence of reasonable excuse that we have put in allows someone to say that they forgot to comply, and why. There is a defence for the sort of behaviour that my hon. Friend described. If they have a good reason, they will not be liable, and the sort of cases suggested by my hon. Friend would fall into that category.

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

Let me finish my point, and then I will give way because I know that my hon. Friend the Member for Battersea also wants to intervene. I shall give way to him first, and then to the hon. Gentleman.

If mere forgetfulness is allowed to pass every time with no sanction, of course the controls will fall into disrepair over time, and that is in no one’s interest, not least because it is difficult to prove whether someone who says that they genuinely made a mistake and forgot actually did so.

Photo of Martin Linton Martin Linton Labour, Battersea

I thank my right hon. Friend for the full consideration that he is giving the matter. My hon. Friend the Member for Southampton, Test makes an important point about timing. If there is an allegation of impropriety against an elected representative, the Electoral Commission will consider it, perhaps for months. During that period, they may have the press camped on their doorstep, the local and national papers may be full of speculation about the outcome of the investigation, and their surgery may be picketed by the press or the public just because there is a suspicion. None of us is arguing against due process. We all want the guilty to be punished and the innocent not to be prosecuted, but because of the nature of the offences a process that gets to the truth quicker might be better for all concerned.

An elected representative, treasurer or whatever who finds that they have omitted to declare something that should have been declared six months previously may think, “Oh my God, I shall have to take this to the Electoral Commission.” Their life will be on the line while the commission considers the matter, and if it decides, even without evidence of ill faith, to refer it to the Crown Prosecution Service, speculation will build up over many months. Surely, it is better for that person to be able to go to the court and seek relief before the process gets under way.

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

I will happily address that point, but before that I give way to the hon. Member for Cambridge.

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

My point goes back to what the Minister said about undermining the process if there were no possibility of prosecuting other than for intentional offences. The amendment would simply require an extra step by the commission. Instead of just saying what the requirement is, and leaving it at that, so that if the person who is subject to the requirement forgets to comply they will be in danger of committing an offence, the commission would have to write again to that person and say, “You must comply now; otherwise, you will intentionally be disobeying the commission and breaking your obligations.” All that is required is that extra, more specific step for the commission. In the interests of fairness, the commission should be required to do that before someone is prosecuted for a criminal offence.

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

There are two separate points here. First, on timeliness, I understand the Committee’s scepticism about some of the delays that might occur, given the Electoral Commission’s history to date. That is a fair point, and I am happy to ask the commission to include a comment about timeliness in the letter that it has said it will write to the Committee. I believe that it is due this week or possibly at the beginning of next week. I would ask the Committee to consider that letter and the way in which it addresses the particular concerns about the risk-taking approach, which ought to be a mitigation of the kind of risks that have been described, and also timeliness. All regulatory bodies, including the commission, ought to act in a timely fashion. If they do not, they have problems of their own.

I am not sure that I share the interpretation of the amendment given by the hon. Member for Cambridge. The amendment may introduce an extra step, but that will not actually deal with the problem. In the end, the commission will still have to make a decision. A concern that I have not yet addressed, because I do not want to diminish the real concerns that the Committee obviously has, is that by accepting the amendment, we might push the commission to make a judgment on the good faith of a person who protests that he made an honest mistake.

It is important that the commission act proportionately. That is the essence of a risk-taking approach. The kind of occasion that my hon. Friend the Member for Battersea described must fall within that requirement. It cannot be thought proportionate to go through the whole process for a return that is a few days late. That would not be proportionate or consistent with a risk-taking approach, in my judgment. That cannot be the case—it would not fall within the intent of the Bill. However, it is something that we will have to leave to the commission.

The Government have considered the matter. Given that we believe that the 2000 Act controls allow for an honest mistake to be taken into account, we must be extremely careful about creating a charter for widespread avoidance, whereby the controls could be avoided without a person having to demonstrate that there is a good reason why they were unable to comply. That might be the case if the amendment were to go through. We do not allow that in other contexts—for example, in respect of tax returns—and I am not convinced that we should  take a different approach in this case. However, as I said, we must ensure that people are not penalised unnecessarily. That is in no one’s interest, and it would go against the spirit of the Bill.

There is no compulsion on the commission to sanction breaches. That has been said many times, and it is well aware of that. The element of a reasonable excuse definitely allows the commission or the court to be lenient if they judge that a genuine oversight rather than an intentional obstruction has taken place, and that applies from the start of the process. There is no requirement to take someone through a public process with the kind of deplorable consequences that my hon. Friend described.

We must be careful about this. Everything should be proportionate, and each case must be judged on its merits. It might be proportionate to take action in respect of late reporting of even a few days if a large sum of money were involved, but I do not think that it would be proportionate in the kind of cases to which my hon. Friend referred. It is a matter for the commission to decide.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

The Minister appears to be saying that if the offence is minor, we will let it through. The issue is whether an offence was committed, not whether it was big or small. Either a criminal offence was committed or it was not.

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

The Minister keeps saying that it is important that the commission has the right to take decisions, but the words

“if, in the opinion of the Commission” in the amendment mean that it does not take away the commission’s ability to take a view.

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

Let me deal first with the point that the hon. Member for Isle of Wight made. What he says is right, but the question is whether the commission should take action against the breach and apply a sanction, or accept that there was a reasonable excuse for committing it. That is the point of the measure.

On the hon. Member for Huntingdon’s point, that is precisely what I was saying. The amendment does not get away from the need for the commission to make judgments. It would introduce a different test, which, for the reasons I have given, we think less satisfactory. We accept that there are concerns about the measure and the commission is aware of those concerns. It will be even more aware of them after it reads the Hansard of these proceedings. It has said that it will write, and we hope that the commission’s letter will reassure the Committee regarding these points. I therefore hope that the amendments will not be pressed today, and I will be happy to return to this issue later if the Committee still has concerns.

Photo of Martin Linton Martin Linton Labour, Battersea

In view of the flaw in the amendment and the Minister’s assurances, I am happy to withdraw it, although we might return to this issue on Report. I beg to ask leave to withdraw the amendment.

Hon. Members:

No.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 10.

Division number 5 Nimrod Review — Statement — Schedule 1

Aye: 7 MPs

No: 10 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

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

I beg to move amendment No. 125, in schedule 1, page 19, line 6, at end insert—

‘Guidance by Commission

(1) The Commission shall prepare and publish guidance as to—

(a) the circumstances in which the Commission are likely to give a notice under paragraph 1 or 2(2);

(b) the consequences (including criminal sanctions) that may result from a failure to comply with such a notice;

(c) the circumstances in which the Commission are likely to exercise their power under paragraph 1(5);

(d) the procedures to be followed in connection with questioning under paragraph 2(4);

(e) the circumstances in which the Commission are likely to apply for a warrant under paragraph 3;

(f) the principles and practices to be applied in connection with taking possession of, or taking other steps in relation to, documents that appear to be ones to which paragraph 3(2) applies;

(g) the principles and practices to be applied in connection with the exercise of powers under paragraphs 4 and 5;

(h) any other matters concerning the exercise of powers under this Schedule about which the Commission consider that guidance would be useful.

(2) Where appropriate, the Commission shall revise guidance published under this paragraph and publish the revised guidance.

(3) The Commission shall consult such persons as they consider appropriate before publishing guidance or revised guidance under this paragraph.

(4) The Commission shall have regard to the guidance or revised guidance published under this paragraph in exercising their functions.’.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this we may discuss the following: Government amendment No. 126.

Amendment No. 14, in schedule 1, page 19, line 6, at end add—

‘13 The Commission shall lay before Parliament, on a quarterly basis, reports specifying how it has exercised its powers under this Schedule.’.

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

I shall deal with the Government amendments first. Government amendment No. 125 will impose a duty on the Electoral Commission to publish guidance  on its use of investigatory powers. It specifies the information that must be set out in guidance. We will also impose on the commission a requirement to consult such persons as it considers appropriate before publishing guidance or revised guidance. Those provisions will help to ensure that guidance is comprehensive and covers all relevant aspects of the commission’s investigatory powers.

As the guidance will be published and the commission is required to have regard to it in exercising its functions, the amendment will ensure that regulated individuals and other persons who may be subject to the commission’s investigatory powers are aware of the manner in which those powers will be used. In addition, if the commission departs from that guidance by using its powers without objectively justifiable reasons, its actions could be judicially reviewed in the courts.

We believe that the amendment is necessary to address the concerns expressed on Second Reading about the lack of certainty on how the commission will exercise its new powers. We hope that the Committee is reassured by the amendment, and we will work with the commission with a view to ensuring that its guidance is produced before its investigatory powers are commenced. We understand that the commission is already starting work on the guidance required by the Bill and will publish it as soon as possible.

Amendment No. 126 will require the Electoral Commission to report, in the annual report that it lays before Parliament, on its use of the investigatory powers in proposed new schedule 19A to the 2000 Act, which is in schedule 1 of the Bill. That will make the commission directly accountable to Parliament for each case in which it uses its investigatory powers. However, it will not require the commission to report any information that, in its opinion, is inappropriate for inclusion because that would be unlawful or would prejudice a continuing investigation. That is important, because it would be undesirable to oblige the commission to reveal details of continuing investigations. To do so would undermine the prospect of a successful outcome.

I hope that the Committee will welcome the amendment, because it is intended to address the understandable concerns that were raised on Second Reading. I hope that it will also help to allay Members’ concerns about the possible misuse of the powers, some of which have been expressed today. The Bill already includes a similar provision requiring the commission to report from time to time on the use of its sanctions.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General 10:00, 13 November 2008

Government amendment No. 125 will insert a new sub-paragraph into the schedule, placing a duty on the commission to publish guidance on its proposed use of the powers in the schedule. Hon. Members will note the overlap between that and our amendment No. 14, although I hasten to add that the Government amendment is significantly more comprehensive. I will therefore stick to the Government amendment for the purposes of the debate.

We welcome the amendment, as it will add much-needed clarity and certainty to the process. The Bill is extremely complicated and places significant burdens on those in the party structure, who are often volunteers and would disproportionately bear the penalty for any breach.  Guidance is therefore essential to determine where, when and how the commission will interpret the law and what it expects from individuals or groups in complying with its provisions.

I note that the Electoral Commission welcomed the amendment in its latest paper, noting that it parallels the need for guidance on its civil powers set out in paragraph 25 of schedule 2. In the Committee’s second evidence session last week, Peter Wardle, the chief executive of the commission, highlighted its own emphasis on the need for guidance:

“There are lots of questions about the Bill at the moment. We are already beginning to try to work out what our guidance would look like and we would hope to have that guidance in the public domain by January. I do not think that it is possible to get anything useful and in detail in the public domain before then.”[Official Report, Political Parties and Elections Public Bill Committee, 6 November 2008; c. 47, Q113.]

Does the Minister agree with the Electoral Commission’s position on the timing of the guidance? Perhaps he will give us an update on the timing issue.

Government amendment No. 126 will place a reporting requirement on the commission to act as a check and balance on the use of its investigatory powers—a self-auditing requirement. We certainly support that principle, and the amendment somewhat copies our own amendments Nos. 61 and 62 on civil sanctions under schedule 2. The requirement to report in a publicly accessible fashion is an important tool in ensuring the fair and proportionate application by the commission of its powers. The opportunity for media and public scrutiny cannot be downplayed and should act as an impartial way for performance to be monitored and any possible over-zealous activities of the commission checked on.

We are concerned about the extent to which the process might be used to name and shame. It is not that that would necessarily be wrong in all situations, but it should not be used in respect of minor situations. Will naming and shaming be for only bad cases or is it the intention to mention names in respect of every investigation, even perhaps where investigations do not lead to charges, let alone convictions? It would be helpful if the Minister elaborated on the proposals in that regard.

The Electoral Commission, in a note provided yesterday or a couple of days ago, came at this matter from a slightly different viewpoint:

“In principle the Commission supports Government amendment 126, requiring us to publish information on the use of our supervisory and investigative powers in our annual report. Sub-paragraph 3 of the amendment enables the Commission to omit from such reports information that it could be unlawful to include, and information that might adversely affect any current investigations or proceedings. We believe it is also important that we should not be required to include information that would enable the identification of subjects of specific supervisory or investigation activity, since this may be prejudicial to individuals and organisations who are asked for information on a routine basis, or where an allegation is investigated by the Commission and found to be groundless.”

That is the same point that I have made in relation to whether people should be named or not, but it is made for a different purpose. It would be helpful if the Minister addressed that issue.

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

I am grateful for the hon. Gentleman’s comments. On the timing, our understanding is still that the commission will produce its guidance for January 2009. We will seek an update from it and if that changes significantly we will let Committee members know.

Naming and shaming is not intended in respect of investigations, but if sanctions are imposed, those will, as with any criminal proceedings, be made public.

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

We would expect sanctions to be imposed only in significant cases and then, as with any criminal proceedings, they would be made known.

Amendment agreed to.

Amendment made: No. 126, in schedule 1, page 19, line 6, at end insert—

‘Information about use of investigatory powers in Commission’s annual report

(1) Each report by the Commission under paragraph 20 of Schedule 1 shall contain information about the use made by the Commission of their powers under this Schedule during the year in question.

(2) The report shall, in particular, specify—

(a) the cases in which a notice was given under paragraph 1 or 2(2);

(b) the cases in which premises were entered under paragraph 1(5);

(c) the cases in which a requirement was imposed under paragraph 2(4);

(d) the cases in which a warrant under paragraph 3—

(i) was applied for;

(ii) was issued;

(iii) was executed;

(e) in relation to each warrant under paragraph 3 that was executed—

(i) what force (if any) was used to enter the premises;

(ii) whether documents were seized;

(iii) any other noteworthy details.

(3) This paragraph does not require the Commission to include in a report any information that, in their opinion, it would be inappropriate to include on the ground that to do so—

(a) would or might be unlawful, or

(b) might adversely affect any current investigation or proceedings.’.—[Mr. Wills.]

Question proposed, That this schedule, as amended, be the First schedule to the Bill.

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

I do not intend to speak for long, because we have had significant debate on the schedule. However, given the number of issues that have arisen, it is worthwhile summing up.

My hon. Friend the Member for Chichester hit the nail on the head on Second Reading, saying that

“the proposals look extremely heavy handed...We cannot possibly implement the proposals in the Bill as drafted, so we must look at them again.”—[Official Report, 20 October 2008; Vol. 481, c. 105.]

It is entirely understandable that the Electoral Commission’s investigatory powers should be enhanced, but the way that the Government propose to implement this idea is flawed. The commission’s powers to demand the production of relevant information on pain of a fine and its ability to search premises and seize documents must both be subject to proper judicial control, as is the case under statutes conferring similar powers.

We have also uncovered, through the debates, various deficiencies in administrative aspects of the schedule, which will need to be urgently addressed. The Minister has said that he will discuss these issues with the Electoral Commission. I hope that will be done urgently. Given the Bill’s tight timetable, it would be helpful if he set out how he proposes to do that.

The commission will have the power to order anyone to produce any document or give any information that it believes is relevant to a suspected contravention of the legislation. The commission will also have the power to fine people who fail to do so. These powers can all be exercised without a judge being involved. The power to make orders for the production of documents and information could be exercised without prior notice being given to the person concerned. The only judicial control proposed is that the person charged, prosecuted, convicted and fined by the commission under these powers will have a right of appeal to the court after the event.

The commission will have extensive powers to obtain search warrants to allow it to enter and search premises to seize documents that are considered relevant to an investigation. Those intrusive powers, which can cause immense damage to businesses and reputations, might be exercised without prior notice being given to the people whose premises are to be entered and whose documents might be seized.

There is no requirement for the commission first to try to use its powers to require documents to be produced before seeking a warrant. If no attempt has been made to use those powers, there is no requirement for the commission to explain why and satisfy the court that issuing a search warrant is necessary. The Bill provides for these warrants to be issued by magistrates and we are relieved that the Government have now accepted that that aspect of the Bill needs to be reviewed. We look forward to receiving their proposals on that. We also note the Minister’s agreement to review aspects of the guidance process and powers of entry. We look forward to receiving their proposals on that, too.

Since the last sitting, I have been approached by a Queen’s counsel who works in the criminal law and who has been following our proceedings. He asked why the statutory formulation for the commission’s power of entry was not modelled on the same powers of entry for the police under the Police and Criminal Evidence Act 1984, which have been tried and tested through the courts. Apparently, under PACE, the warrant is issued to a constable or individual. However, under the Bill, the warrant will be issued to the commission. The QC to whom I spoke thought that might be wrong—in other words, how can the commission have reasonable belief? Surely, only a person in the commission could have such belief.

Another matter brought to our attention during proceedings on the Bill relates to the media. One feature of the Bill is that it gives the Electoral Commission a power to demand information and documents from the media and fine them for not providing it. Worse, the commission will have the power to obtain a search warrant from a magistrate to allow it to enter and search a media organisation’s premises and seize documents found there.

The point was made that there is a need to respect journalistic confidentiality and that that is something recognised throughout Europe as a precondition to a civilised society. Apparently, information of that kind is expressly protected by detailed safeguards under PACE, but there are no restrictions at all on that in the Bill.

Again, to return to the schedule, I reiterate our agreement and support for the improved role of the commission as a regulator. However, the devil is in the detail in these matters and the number of amendments tabled to the schedule shows our concern. In the Committee’s first evidence session, Sir Hayden Phillips said:

“It is very much up to the Committee to try to find the sorts of amendment that will make everyone feel comfortable that the powers are not excessive.”——[Official Report, Political Parties and Elections Public Bill Committee, 4 November 2008; c. 32, Q79.]

We do not yet think that that position has been reached in the Bill, and that has not been helped by the lack of preparation time—I say that again because is it a fact.

As things stand, we consider today and the previous sittings to have been a good opportunity to get the issues out on the table—particularly in relation to schedule 1. We have had some movement from the Government in terms of amendments and what they intend to do. The Minister’s approach in that regard is welcome. These issues will almost certainly be returned to in later stages of consideration and in the other place. We therefore hope to be told at the earliest opportunity what the Government’s position is so as to give all hon. Members and Members in the other place time to think the matter through.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 10:15, 13 November 2008

This has been a useful debate. I hope that the Committee agrees that our proposals in respect of the schedule and the contributions made by all hon. Members have helped to improve the Bill. We certainly feel that they have.

This area is difficult. There is no question but that, if the Electoral Commission is to be the effective regulator that we all want it to be, it must have credible powers of enforcement. We believe that the powers broadly outlined in the schedule are designed to that effect, and we fully accept that we have to be extremely sensitive in how we move forward with them.

As originally drafted, the Bill had a significant number of safeguards. In our view, they were much more balanced and proportionate than the powers available to the commission under the 2000 Act, but we have made further progress. For example, we have signalled our willingness to have a higher degree of judicial oversight, as we have that the chief executive should approve the application of some of the powers.

I make it clear that we regard the power to enter premises very much as a last resort. In most of the cases that we have discussed, we have talked about extreme circumstances. We see the powers as much as a deterrent as a backstop enforcement measure.

The hon. Member for Huntingdon asked why the powers are not based on PACE. It is precisely because they are based on the Regulatory Enforcement and Sanctions Act 2008, which governs similar regulators such as the Health and Safety Executive and the Financial Services Authority. We thought that that was an appropriate  model. As amended, the powers are not exactly the same as those under the 2008 Act, but they are based broadly on it. I hope he is reassured by my explanation.

The Electoral Commission has to request the documents before it can apply for a warrant. It cannot use the powers under paragraph 3 without having taken that first step. I do not want to take up much more of the Committee’s time. We have a lot to get through.

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

I would appreciate it if the Minister addressed my point about the media, which concerned there not being an exclusion in respect of investigatory powers and the media, as there is under PACE.

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

As I have said, there is no desire for those engaged in political activity to go through the public exposure to which my hon. Friend the Member for Battersea referred. It is not necessary to change the provisions in that respect.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

My concern is different. Let us suppose that there is a knock on the door and someone is standing in the passage waiting to enter the house, and that the person inside the house does not know the law. Will the person inside the house know that they have the right to say no or will they be inclined to let the other person into the house, so the commission will then have the right to find things that otherwise it would not have been able to find?

Will the person who wants to enter the premises explain to the person inside his rights, or will the representative of the commission simply assume that the other person knows the law and go into the house not needing a warrant? That is the difference.

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

I gave way to the hon. Gentleman because I assumed that he would make a similar point to that made by the hon. Member for Huntingdon. If I may, I shall finish responding to the previous point before I come on to the issue raised by the hon. Member for Isle of Wight.

I was hoping to reassure the hon. Member for Huntingdon on the media question. The circumstances are not analogous, for all the reasons that I have given. However, as I said, if there are still genuine concerns, I am happy to consider them. If the hon. Gentleman has a particular view on how the matter should be handled, I would be happy to talk to him and, if necessary, table amendments on Report. We do not think that will be necessary, but I will consider suggestions from him or anyone else.

I understand the concerns raised by the hon. Member for Isle of Wight. Of course the circumstances should be explained to the person.

This has been an important debate. We have had to strike a balance between giving the commission sufficient powers to act as a credible investigator—I believe the Committee agrees that that is important—and putting appropriate safeguards in place. We believe that the Bill now contains those safeguards, but, as I said before, I am happy to address any remaining concerns.

Question put and agreed to.

Schedule 1, as amended, agreed to.