Clause 3

Political Parties and Elections Bill – in a Public Bill Committee at 10:15 am on 13 November 2008.

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Civil sanctions

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. 85, in clause 3, page 2, line 26, at end insert—

‘(1A) The Secretary of State, after consulting the Electoral Commission, shall make an order that specifies what discretionary requirements may be imposed by the Electoral Commission under Part 2 of Schedule 19B.’.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss amendment No. 77, in schedule 2, page 22, line 26, leave out from ‘requirement’ to end of line 39 and insert

‘such requirements as specified by virtue of section 147(1A).’.

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

Clause 3 deals with the new civil sanctions regime, and so we move to a new aspect of the Bill. Amendment No. 77 and its consequential amendment, amendment No. 85, are probing. They would delete paragraph 5(5) of schedule 3, which defines what is considered a discretionary requirement for the commission.

The aim of the amendments is to strike out the definition of what can be considered a discretionary requirement that may be imposed by the commission under part 2 of schedule 2 so that a further review can be undertaken of what discretionary requirements it is appropriate for the commission to impose.

I shall raise our concerns about the wholesale adoption of the Macrory review proposals in the Bill during our discussion on clause 3 stand part, but I have to say at this early stage that we are not convinced that the Government have got this right, in the same way that we remain to be convinced in respect of schedule 1. We believe that there is a need to review what is meant by “discretionary requirement”.

The definition in paragraph 5(5) is very broad. Phrases such as “such amount”, “such steps” and

“within such period as they may specify” are vague and offer no guidance to the commission or safeguards to those who are subject to such requirements.

It is inadvisable to have a penalty regime without parameters or guidance: not only could it be less workable  in practice, but it offers the potential for abuse of power by the commission. There would be a real problem if we ended up with a public perception that the party finance and electoral system regulator was worse than the system it was there to regulate. We support in principle the idea of flexible sanctions, but not at the cost of proportionality or reason.

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

Amendment No. 85 would require the Secretary of State, having consulted with the Electoral Commission, to specify in an order the type of discretionary requirements that may be imposed by the commission under part 2 of proposed new schedule 19B. The discretionary requirements are set out in paragraph 5(5) of the schedule and they are

“(a) a requirement to pay a monetary penalty to the Commission of such amount as the Commission may determine,

(b) a requirement to take such steps as the Commission may specify, within such period as they may specify, to secure that the offence or contravention does not continue or recur, or

(c) a requirement to take such steps as the Commission may specify, within such period as they may specify, to secure that the position is, so far as possible, restored to what it would have been if the offence or contravention had not happened.”

The size of a monetary penalty or the type of steps that are needed will, inevitably, depend on the nature and scale of the offence committed. The clause necessarily leaves the decision about the precise nature of a penalty or the steps to be taken in each case to the commission. That is sensible, as it would be impossible to try to anticipate every step or penalty that the commission may wish to impose. Trying to draft an exhaustive list of what the commission may or may not do in different circumstances risks omitting things that subsequent cases will demonstrate should have been available.

The penalty or steps contained in any notice must be set out precisely when the requirement is imposed. If not, or if the steps are uncertain, the requirement will be susceptible to appeal—for example, on the ground that it is unreasonable.

It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.