Schedule 2

Political Parties and Elections Bill – in a Public Bill Committee at 1:45 pm on 13 November 2008.

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Civil sanctions: Schedule to be inserted into the 2000 Act

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss the following amendments: No. 32, in schedule 2, page 19, line 24, leave out subsection (b).

No. 33, in schedule 2, page 19, line 31, leave out subsection (b).

No. 34, in schedule 2, page 19, line 38, leave out subsection (b).

No. 1, in schedule 2, page 20, line 25, at end insert

‘and may by notice require the Commission to withdraw the notice and pursue the matter as a criminal offence under the relevant provisions.’.

No. 71, in schedule 2, page 21, line 25, leave out paragraph 4.

No. 72, in schedule 2, page 21, line 37, at end insert—

‘(3) Nothing in this paragraph prevents any criminal proceedings being taken for any other offence under this Act or any other Act.’.

No. 46, in schedule 2, page 24, line 24, leave out paragraph 8.

No. 47, in schedule 2, page 24, line 33, at end insert—

‘(3) Nothing in this paragraph prevents any criminal proceedings being taken for any other offence under this Act or any other Act.’.

No. 56, in schedule 2, page 29, line 29, leave out paragraph 20.

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

This schedule specifies the various civil sanctions proposed in the Bill. The amendments relate to paragraphs 1 and 5 of proposed new schedule 19B to the 2000 Act, which schedule 2 of the Bill introduces. Part 1 is entitled “Fixed monetary penalties”. The commission is empowered to impose a fixed monetary penalty on the person, registered party, recognised third party or permitted participant if it is satisfied beyond reasonable doubt that an offence under PPERA has been committed or, more loosely, that there has been a contravention of a requirement imposed by that Act. Paragraph 1(6) of the proposed new schedule states that where an individual is issued with a fixed monetary penalty for an offence, that could be

“punishable on summary conviction by a fine”.

Any penalty must not exceed the maximum of that fine.

A person who has been served with a fixed penalty notice may appeal in writing to the commission within 28 days. The recipient also has the opportunity to discharge their liability by payment of a sum less than or equal to the full penalty. After that 28-day period, the commission must decide whether to impose a penalty—in which case a further notice will served—or not to proceed if it is no longer satisfied that an offence has been committed. If the person is served with a fixed penalty, they may appeal to a county court against the decision.

Amendments Nos. 31 to 34 and Nos. 73 to 76 are probing and seek they clarification on the Government’s use of the words “prescribed restriction or requirement” and

“by virtue of this Act” in paragraphs 1 and 5 respectively. The latter amendments are essentially consequential on the former, as the same wording is applied to discretionary requirements as to fixed penalty notices.

Those two civil sanctions form the core of the new flexible powers that the commission will be granted under the Bill to enable it to deal with enforcement in a more flexible and proportionate manner. Fixed penalty notices require a person, a registered party, a recognised third party or a permitted person to pay an amount, specified in the notice, to the commission as a penalty for an offence under PPERA. Likewise, a discretionary notice places such persons under a duty to comply with a requirement placed on them by the commission to avoid further penalties.

We are slightly concerned at such broad terms and at the loose manner in which they may be interpreted by the commission. This is a complex and difficult area of law to understand and legislate on—that has been self-evident in our proceedings—and we believe that the drafting of these paragraphs is too broad. The possibility for wider interpretation makes the possibility of abuse high.

We should ensure that we clearly set out the parameters of the powers and the circumstances in which they may be used—not necessarily for the current commission,  which has been privy to much of the debate, but for the commissioners of the future, who might not be so rational in their use of the powers.

We are having this discussion because of the broad remit given to the commission in previous legislation. In the past, there has been a tendency to interpret the commission’s broad powers as an invitation to limit its role as a regulator. We must ensure that we give the commission a precise and coherent pointer as to its role. Unfortunately, that is not the case with the drafting of these measures.

The lack of clarity also impacts on implementation. How can the individuals, groups and associations covered by the powers be expected to know what they should or should not do? They could be penalised if they get it wrong. The phrase

“a...requirement...by virtue of this Act” is simply too opaque for practical purposes.

We also fear that the drafting may produce several unwanted outcomes. A less scrupulous commission could see it as giving free rein to use the powers, if it can squeeze its actions in under the broad headings. Press coverage of one heavy-handed or botched case could lead to a fall in the number of volunteers, who might fear being heavily punished for small mistakes. Then, in another six years’ time, we could be forced to review the commission’s powers again in another attempt to refocus its role.

Amendment No. 71 would delete paragraph 4, which deals with criminal proceedings and convictions in relation to fixed penalties. It is a probing amendment to try to discover the rationale behind the provisions. We are not entirely convinced that it is necessarily a good course of action to prevent the use of criminal proceedings as the ultimate weapon against non-compliance with earlier civil sanctions. We are concerned that the measure is too blunt in how it addresses the issue and would like to hear the Minister’s comments.

Amendment No. 72 would insert in paragraph 4 a new sub-paragraph, which would expressly exclude paragraph 4 from preventing any criminal proceedings being taken for any other offence under PPERA, or any other Act. The amendment is a consequence of our probing of this provision with amendment No. 71 and it would ensure that there was no confusion or possible grounds for a person to wriggle out of the offence.

There are a number of different offences relating to elections and political funding, not least in the Representation of the People Act 2000. Our amendment would make it clear that there was no overlap that would prevent a person from being prosecuted under such Acts where relevant. We should be careful not to encroach accidentally on other Acts, thereby reducing their punitive effectiveness or the offences under them.

Amendment No. 46 would strike out paragraph 8, although it is probing. Paragraph 8 deals with the imposition of criminal convictions for offences that have also involved the award of a discretionary requirement penalty. The Government’s attempts to prevent double jeopardy and the possibility of double penalties could be seen as too opaque and confusing. There is no reference to any time limit for the application of the provision, nor does it cover the possibility of what happens when there is non-compliance with earlier  sanctions. In addition, the carve-outs under sub-paragraph (2) seem to leave little for the provision to bite on. We would welcome the Minister’s clarification on that aspect.

Amendment No. 47 comes as a consequence of our probing amendment No. 46, and it would ensure that there was no confusion or possible grounds for a person to get out of the offence. There are a number of offences relating to elections and political funding, not least under the RPA. We have to be careful not to tie the hands of the commission when that is not necessary.

Amendment No. 56, which is also probing, would strike out paragraph 20, which deals with the extension of the time limits laid down in the schedule for the commission taking criminal proceedings. Will the Minister please shed some light on why the commission will need to extend the time for taking criminal proceedings: under what circumstances is that likely to happen? Given that the commission must be able to show beyond reasonable doubt that any sanction is required, is it not unlikely to be necessary—indeed, it might be unreasonable—to grant it additional time if it has not made full use of the investigatory powers granted to it by schedule 1? We must end investigations at some point, otherwise we will be in danger of their running on for years, which could be unfair and unjustifiable.

Finally, if the Minister can convince us of the need for the power, should it not be subject to judicial consent so as to safeguard against abuse by the commission?

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

Amendment No. 1 might seem to be a complete contradiction of the argument that I was advocating earlier when we were trying to prevent a move towards criminal sanctions rather than civil sanctions. However, it seems that the process under schedule 2 means that an individual who believes himself to be innocent of a charge brought by the Electoral Commission has to go through a long and drawn-out process, and that no alternative to that process is set out in the schedule.

My amendment suggests that an individual can make a representation to the Electoral Commission and may

“by notice require the Commission to withdraw the notice and pursue the matter as a criminal offence under the relevant provisions.”

Having an alternative provision to the procedures under the schedule could deal with one of the issues raised by the hon. Member for Huntingdon. Many people are concerned about the fact that someone might be accused of an offence and, that a long time will be taken to resolve such matters during which time the individual is under an extremely dark cloud. In such circumstances, a penalty might have been imposed on an individual who may not be guilty of an offence.

Let us suppose that an individual could say to the commission, “I believe that I am innocent and I want my chance to prove it as quickly as possible. If you believe that I am guilty of such offences, let us argue them out in court where the provision of proof is beyond reasonable doubt rather than proceedings taking place on the balance of probabilities that the commission will use.” That option would be fairer on the individual and possibly address the speed with which an accusation is properly addressed and ultimately resolved.

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

On a point of accuracy, although the commission would not be a court of law, it would have to be satisfied beyond reasonable doubt about the civil breach, just as much as if it thought that an offence had occurred.

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

I accept my hon. Friend’s point.

The purpose of the amendment is to deal with delay. We know of examples of hon. Members still awaiting resolution of serious issues, and whose careers have been blighted as a result of a significant delay. This is not the place to discuss that, but it is clear that, because of a long, drawn-out process, justice might not have been done in certain cases. I am suggesting a way in which to address that problem, but I should be interested in what the Minister has to say about the length of time that the processes take. In all circumstances, it is far better to have such matters aired as quickly as possible, and resolutions found as quickly as possible.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs 2:00, 13 November 2008

I shall deal first with amendment No. 1. The hon. Member for Carmarthen, West and South Pembrokeshire is right that a delay in the proceedings is a problem. It certainly is for people who are innocent and find it difficult to establish that. However, although the particular mechanism proposed is interesting, it has a number of difficulties. The main problem is that it allows someone to raise the stakes and go through procedure that the Electoral Commission would find more expensive. One can imagine that very well-off people who are accused of breaching the legislation in particular ways would use that method to, in effect, intimidate the commission and say, “You’ve not got enough resources to pursue me in the criminal courts.” That would therefore be a way for them to get the accusations against them dropped. There has to be a way to speed up the process because the legislation should not give an unfair advantage to well-off people who are accused over people who are not well off. However, I fully accept the hon. Gentleman’s point that speed in the proceedings is important.

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

Can the hon. Gentleman suggest a mechanism that would do just that?

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

No, I cannot. That is why the hon. Member for Carmarthen, West and South Pembrokeshire is right to raise the issue and ask the Government to think through these matters.

I am glad that the hon. Member for Huntingdon said that his amendments were tabled on a probing basis. That means I need not spend the time that I was going to spend dismantling them. However, I shall put a couple of points on the record. The schedule allows for civil sanctions not only to be used where the commission thinks a criminal offence has been committed, but where there has been some contravention of other requirements. The hon. Gentleman is perfectly entitled to say, as he did, that there is a question about the clarity of that and where it would apply. However, there is no doubt that there are some instances in which that would apply and where it would be useful for the commission to have such a power.

The example the commission gives in its latest briefing is worth putting on the record. It talks about the regulations on accounts and reports of donations. There is a requirement on parties to give full and accurate quarterly reports of donations and loans. It is a criminal offence to make those reports late, but it is not a criminal offence to make them inaccurately. The question is what to do about that situation. One possibility is to make that a criminal offence as well, which I think the hon. Gentleman might have been suggesting. However, that would simply increase the number of criminal offences created by the statute. The other possibility is simply to say that this is a regulatory requirement and there needs to be some sanction for missing it. What should the sanction be? The sanction that the schedule allows is not just monetary; it relates to more appropriate things, such as requiring the party concerned to submit accurate accounts. That should be the first port of a call.

I was going to spend a lot of time arguing against the second set of amendments, but I now think that they can be disposed of quicker. Those amendments would basically remove the safe harbour created by being subject to the civil sanction regime. The way in which the schedule works means that if a person or organisation is subject to the sanctions in the schedule, criminal proceedings cannot be taken against them. That seems to be a wholly useful provision that adds to legal certainty—it is generally a good idea to avoid uncertainty. The measure also fulfils a principle that is important to me and my party—although perhaps less to others who voted for other legislation some years ago—that there be no double jeopardy.

I do not really understand why the hon. Gentleman has proposed what seems to be a backwards step, but if his point is merely to ask the Government to be clearer about the circumstances in which the measure will apply, that is fair. That goes back to the point we tried to make earlier in the week about the need for clear guidance. I am still entirely unconvinced by the Government’s position, which seems to be that the commission should be given the power to give guidance, but that it should not be required to give guidance.

The hon. Gentleman rightly pointed out that these are complex provisions and difficult for lay people to follow. It therefore seems right to require the commission to give guidance. That guidance should be not only about what is necessary for compliance, but also about what is sufficient. That would help to enforce the law and allow a greater degree of public confidence in the way that the law works.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I would like to say a word in response to the proposal by the hon. Member for Carmarthen, West and South Pembrokeshire on amendment No. 1. The issue goes to the root of the behaviour of organisations such as the Electoral Commission and the Standards Board for England. The example I will give comes from the Standards Board, but it applies equally to any other organisation that requires a response and which, with a long effort, gets people to change their needs. In other words, the action can last not just for a year, but beyond. The example comes from my constituency, and if hon. Members wish to read about it in more detail, they can do so in the debate from Westminster Hall last Tuesday.

Six of my constituents were referred to the Standards Board. They told it that they understood that their case needed to be examined, and that that would take some time. The Standards Board says that in general, 90 per cent. of cases will be looked at within six months, but after 13 months, it was still working on this one. That is the problem. Cases go on far too long, the board discusses things for too long and, in this instance, that made it impossible for my constituents to continue. One of my constituents has spent £14,000, which was hard to come by. The Standards Board is still working on the case. Four of my constituents need to find sums of up to £8,000. One of them is dead.

I now find these provisions being proposed for organisations such as the commission—I am aware that the Standards Board is not the same as the Electoral Commission, but the performance is exactly the same. The rights and remedies of the Standards Board are the same as those of the Electoral Commission.

I suggest that after x months, or even x years, the right to raise an issue would collapse and should be withdrawn. If the problem has not been sorted out after a year, the case should stop. That is the only way in which we can force organisations such as this either to act or to withdraw the case.

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

These are important matters, and I am glad to see that the Opposition have taken the issues seriously enough to have tabled so many amendments. I am grateful for the opportunity that that gives me to address them. I shall respond at some length, partly in the hope that we can avoid a lengthy stand part debate covering much of the same territory.

Several points have been raised and I shall address those before I come to the detail of the amendments. They are general points of principle. The problem of delay has been mentioned several times and we all recognise that that can be an issue. The hon. Member for Isle of Wight has given some graphic examples, of another regulator, but he is right that the principles can apply to all regulators. Everyone shares an interest in a speedy—not hasty—resolution of the issues.

We must seek the Electoral Commission’s reassurance on the matter, and are doing so. We hope that the commission will recognise that in its guidance and in how it approaches the case. The hon. Member for Huntingdon mentioned guidance, but I should stress that the commission is already producing guidance—in fact, the commission is required to produce guidance on the operation of civil sanction powers. That is a requirement. What we are not doing is to introduce a blanket requirement to produce guidance on every single aspect of the 2000 Act, as that would make the guidance extremely unwieldy.

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

The irony in what the Minister has just said is that, if there is to be comprehensive guidance on the use of civil sanctions, it must include guidance on the rest of the 2000 Act, because the schedule applies to any requirement in the Act and, therefore, to understand those requirements, one must have had guidance on them.

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

The hon. Gentleman may well be right but, with all respect, he was not quite listening. I was talking about the requirement. Of course, it is for the  Electoral Commission to interpret for itself the scope of the guidance; it may well go into some, if not all, of the area he just talked about. He may well talk about that, but the question is about what duty we place on the commission. We must allow it some flexibility. In earlier discussions, we all agreed that flexibility and proportionality were good things, and it is those two principles that we seek to apply to the production of guidance. However, on this issue, the commission is required to produce guidance.

One other point, which has come up a couple of times, concerns complexity. We have all experienced the complexity of the Bill—inevitably so, as it is a complex and sensitive area. However, it is worth pointing out that most people will not need to understand the intricacies of the sanctions regime. The requirements on regulated people have remained largely the same since the 2000 Act. As far as we are aware, they are generally well understood. Notices imposing a sanction will, of course, set out—I am sorry, I have lost my place.

Mr. Kidneyrose—

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

If it helps, my right hon. Friend was in the middle of something about complexity.

While the Minister is gathering his thoughts on that point, I shall go back to his first point, which was the general issue of delay. I was concerned on Tuesday, when the Minister resisted an Opposition proposal that the Electoral Commission should not go back further than five years in finding faults with people’s behaviour in the past. We are now being asked to pass a law that says the Electoral Commission can go as far back in time as it wishes to raise something, and can take as long as it likes into the future to investigate. The period that could be encompassed by an Electoral Commission investigation, which involves a person being accused of something, could be many years.

In this country’s court system, there are limitation periods in both criminal and civil cases, occasionally there are time limits within which courts must deal with a case and, generally, there is a power to get a case kicked out if it does not seem to have been prosecuted with sufficient vigour. As the Bill passes through Parliament, will my right hon. Friend consider whether there should be some kind of limitations in the statute on how far the commission can go back and on how long it can take to finish an investigation?

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

We have to retain some flexibility. I understand the concerns—real concerns—and, after this Committee, we shall talk to the Electoral Commission and see what its view is and what reassurance it can give. However, we have to be careful in trying too rigorously to prescribe time limits, backwards and forwards. I am aware of the limits in the law and so on, but it cuts both ways. If we give the Electoral Commission flexibility, we could be allowing it too much time, and the statutory limitations may be too long and not encourage a speedy resolution of the issues. We have to be careful. Equally, if we set too short a time limit of weeks or months rather than years—the period that most hon. Members who have  spoken so far would like—we might in some serious cases be prescribing the ability of the Electoral Commission to act as an effective regulator. There is a balance to be struck, and we must be careful how we do it.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight 2:15, 13 November 2008

The Minister says that we may be setting a limit that is too long, so it is better to have no limit at all. That does not add up.

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

With respect, that was not what I was saying. I was saying that we need reassurance from the Electoral Commission that it will act in a timely and speedy—not hasty—fashion. That is not a precise limit set in terms of months and years, but most people would accept that it is a limit. For example, 12 years would not, by any stretch of the term, be regarded as speedy.

The problem is that, if we go to the sort of limitations that exist in other areas of the law, most members of the Committee would be horrified to think that investigations could continue for, say, six years. If we start specifying a limit, we would almost certainly get the balance wrong in some cases. Although, as always, we are willing to consider the matter again, we believe that it is better to allow some discretion—but discretion that is constrained by reasonable expectation of what timely would mean. General prescriptions of such matters probably go back to the Human Rights Act 1998, but we need to consider what reassurance the Electoral Commission can give the Committee, after which we might be prepared to revisit the matter. However, my firm instinct at present is to avoid setting fixed time scales. We would get ourselves into more trouble than we would want.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

The Minister is moving in the right direction, but without saying that there is a target. I understand why a target is not right for all circumstances, but I hope that he can say that certain misbehaviour would be regarded as bad and dealt with in, say, one year, while other types of misbehaviour would be more complicated and take three or four years to deal with. Such limits must be written down; they cannot be made up and be in the Electoral Commission’s view. To be understood, they must be written down.

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

I am glad that the hon. Gentleman thinks that I am moving in the right direction. I hope that he will forgive me if I move no further in any direction on this matter. I have said as much as I can reasonably say at the moment. We are pretty resistant to setting time frames, and specifying particular periods for particular offences would complicate the matter and increase the likelihood of our missing something and fettering the Electoral Commission in a way that would not be desirable.

I have now remembered what I was endeavouring to say earlier about the difficulty of understanding the regulations. The actual requirements on people have not essentially changed since the 2000 Act, but the notices that impose a sanction will explain to the person in question what they are required to do.

The hon. Member for Huntingdon referred to the opaqueness of when double jeopardy would apply. It is clear that it will not apply, except when a non-monetary penalty is imposed, but there is failure to comply. In those circumstances, because non-monetary penalties are preventive, the Electoral Commission must be able to punish non-compliance.

These provisions are based on the Regulatory Enforcement and Sanctions Act 2008. That is why we have not imported the requirement for judicial consent, which I think the hon. Gentleman referred to under amendment No. 56. The Act provides that secondary legislation is the correct route. As with everything else, we are happy to consider this, but we have taken the fundamental view that we should apply the 2008 Act except where there is good reason not to. We do not see any reason to depart from that view in this case, but we are open to argument if good reason can be found. The same applies to the hon. Gentleman’s point about the drafting being too broad. Of course we need flexibility in each case, but the requirement must be precise, otherwise it could be appealed as being unreasonable.

Amendment No. 1 addresses an important issue, and I understand the concerns of my hon. Friend the Member for Carmarthen, West and South Pembrokeshire. He says, I think, that the intention of the amendment was that forcing a case to be pursued as criminal would offer greater procedural safeguards to the person on whom the penalty was to be imposed. We can all agree on the principle of safeguarding the rights of all those subject to the regulation of the commission. However, we believe that the amendment would undermine the fundamental objective of making the commission a more effective regulator, which is in part achieved by giving it access to this range of more flexible and proportionate sanctions, as the Committee on Standards in Public Life recommended. That addresses another of the points raised by the hon. Gentleman.

We believe that the amendment is unnecessary because the Bill already includes important safeguards for the person subject to the sanction. A key safeguard is that a fixed monetary penalty can be imposed only when the commission has evidence that satisfies it beyond reasonable doubt—subject to that criminal standard of proof—that an offence or a contravention has taken place. That sets a high bar for the imposition of the sanction and ensures that the commission’s investigations are thorough and rigorous. That is a serious test for the commission, and leaves no room for complacent application of the sanctions.

I do not believe that the commission will act in what anyone would consider a heavy-handed or unthinking fashion. A key element of the Bill is that the commission is required by law to publish guidance on how it will operate the new regime of sanctions, before the regime can commence. The commission will need to set out in detail how it will use the sanctions and in what circumstances. The amendment is technically flawed because it assumes that all cases that may be subject to monetary penalties are open to the criminal route in the first place. I understand that it is a probing amendment, but technically it is not correct. Monetary penalties are also available for breaches of prescribed restrictions and requirements, which may not be criminal offences. In such instances, the effect of the amendment would be  that the recipient of the monetary penalty would be able to block the sanction and avoid censure, effectively rendering the application unenforceable.

I hope that my hon. Friend will not press the amendment because it would neuter the effectiveness of the sanction as part of the new regulatory regime, undermine the principle of flexibility and effective regulation, and not give effect to the Committee on Standards in Public Life recommendations, including a recommendation that was supported by Sir Hayden Phillips and which we believe has considerable support.

The practical effect of amendments Nos. 31 to 34 would be to prevent the Electoral Commission from applying a fixed monetary penalty to any of the four entities concerned—a person, a registered party, a recognised third party or a permitted participant—for contravention of a prescribed restriction or requirement. The amendments also miss an important point: the ability to prescribe regulations or requirements in the 2000 Act is provided to enable us to replicate the present system under that Act where a small number of breaches of the Act are subject only to the graded system of financial civil penalties set out in section 147(3) of that Act. For example, where a party fails to inform the commission of a change of treasurer, as required by section 31(4), importing into the Bill the concept of prescribed requirements or restrictions is technically necessary to allow us to continue that approach, and that is sensible.

The amendment goes against the flexibility of the system we are trying to introduce. Indeed, the Committee on Standards in Public Life recommends that civil sanctions be available in instances that could be considered more minor and where it considers administrative penalties more appropriate. We believe that it must be for an independent electoral commission to determine when a fixed monetary penalty, or any other appropriate civil sanction, should be used where a prescribed restriction or requirement has been contravened and it must use its expertise to determine what mitigating or aggravating factors might be taken into account.

Amendment No. 71 would remove paragraph 4 from proposed new schedule 19B, as set out in schedule 2, which relates to fixed monetary penalties. Paragraph 4 stipulates that criminal proceedings cannot be instituted against persons subject to a fixed monetary penalty during the period available for discharging liability by payment of the penalty. It also provides that criminal conviction cannot take place for an offence when the commission has issued a non-monetary penalty for the offence and it has been complied with. I am not sure why it should be thought desirable to remove those safeguards. Paragraph 4 offers important protection against penalising someone twice for the same behaviour. It cannot be right that a person is potentially subject to a criminal penalty having already been given a fixed monetary penalty. Removing the paragraph would leave an individual or organisation open to being sanctioned twice, with a civil sanction and a criminal prosecution, so we hope the hon. Gentleman will not press the amendment.

Amendment No. 72 would add to paragraph 4 the provision:

“Nothing in this paragraph prevents any criminal proceedings being taken for any other offence under this Act or any other Act.”

However, paragraph 4(2) already makes it clear that that is the case; it states that a person on whom a fixed monetary penalty has been imposed may not be convicted of an offence

“in respect of the act or omission giving rise to the penalty.”

That double penalisation provision prevents criminal proceedings being taken only in relation to the same act or omission. It does not provide protection from criminal proceedings with respect to a different offence, or an omission or offence under another Act, so we believe that the amendment is unnecessary.

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

Could someone be prosecuted under a criminal provision in a different Act for the same offence for which someone gets a civil order as set out in the Bill?

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

No, it does not provide protection from criminal proceedings with respect to a different offence, or an omission or offence under another Act. There is one sanction, except in the case of non-compliance to which I have already referred. I hope that reassures the hon. Gentleman. I am reassured by the provision.

Amendment No. 46 would remove paragraph 8, which relates to discretionary requirements and stipulates that criminal conviction cannot take place for an offence for which the commission has issued a non-monetary penalty that has been complied with. For the same reasons I outlined in relation to amendment No. 72, I hope that the hon. Gentleman will not press the amendment.

Amendment No.47 would add a new sub-paragraph to paragraph 8 stating:

“Nothing in this paragraph prevents any criminal proceedings being taken for any other offence under this Act or any other Act.”

However, there is no principle in law that prevents criminal proceedings for another offence in the Act or another Act, so the specific provision is unnecessary. In any event, in the context of discretionary requirements generally, paragraph 8(1) already makes it clear that that is the case. It states that a person on whom such a discretionary requirement has been imposed, and with which they have complied, may not be convicted of an offence

“in respect of the act or omission giving rise to the requirement.”

Amendment No. 56 would remove paragraph 20 from the proposed new schedule. The paragraph currently allows a supplementary order to be made to extend the period available for opening criminal proceedings in certain circumstances. If the amendment were adopted, in theory a person could string out a discretionary requirement or enforcement undertaking until criminal proceedings could no longer take place. I know that the hon. Member for Isle of Wight would be horrified if such a lengthy time scale were to be implemented, but it could happen in theory. The procedure could be strung out until criminal proceedings could no longer be taken, thereby enabling people to escape the sanction and frustrating the commission in its wish to enforce the 2000 Act. The removal of the paragraph would create a loophole for avoidance. That is undesirable and I hope that the hon. Member for Huntingdon will agree and withdraw the amendment.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General 2:30, 13 November 2008

This has been a full debate on what we believe are important concepts. I thank the Minister for his detailed review of the double jeopardy provisions. We included the amendments to initiate such a debate. It has been helpful, and I will look at what has been said. I am pleased that the Minister said that he was open-minded on the point about judicial consent, and I hope that he will look at that.

We still have an issue about general clarity. The Minister said that he does not want to bind the hands of the commission and the guidance mentioned by the hon. Member for Cambridge will be important. However, we are concerned about the wording of the provisions and would like it to be reviewed.

Various Members spoke about timing and said how important it was to have an element of speed to the process. All members of the Committee will have had experience of dealing with the Electoral Commission and of the delays that investigations can sometimes involve. Both sides of the Committee expressed the general concern that processes should not go on for ever and that decisions must be made to allow people to move on. The example given by my hon. Friend the Member for Isle of Wight was about a different agency, but it was very pertinent. Such circumstances are relevant to the Bill. We shall probably return to the need for deadlines.

I was pleased that the Minister said that he understood the concerns raised, and that he would discuss them with the Electoral Commission. However, this is the sort of situation in which we should tell the Electoral Commission how Parliament expects it to behave, as much as listening to its views. I understand that it is right for the Minister to take the views of the commission into account, but ultimately we should tell it what sort of response we want to see.

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

The hon. Gentleman might like to reconsider the verb. These are people who regulate us. We need to guide them and set the legal framework, but we must be careful about how far we go in telling them how to regulate us. I refer again to the wise words of the hon. Member for Cambridge at the beginning of the proceedings.

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

I did not say that we should tell the commission how to regulate us, I said that we should tell it within what period of time it should make decisions. We will look at the issue in later stages of the Bill. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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. 35, in schedule 2, page 20, line 3, at end insert

‘within 28 days of receipt of the notice under paragraph 2(4).’.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss the following amendments: No. 36, in schedule 2, page 20, line 20, at end insert

‘within the period specified under paragraph 3(2)(a).’.

No. 37, in schedule 2, page 20, line 25, at end insert

‘at any point during the period specified in paragraph 3(2).’.

No. 67, in schedule 2, page 21, line 5, leave out ‘effect of’ and insert

‘ability to discharge a person’s liability by’.

No. 68, in schedule 2, page 21, line 6, at end insert

‘provided payment is received within the period specified in paragraph 3(2)(a).’.

No. 69, in schedule 2, page 21, line 11, after first ‘the’, insert

‘date of commencement of the’.

No. 70, in schedule 2, page 21, line 13, after ‘the’, insert

‘date of commencement of the’.

No. 45, in schedule 2, page 24, line 19, leave out sub-paragraph 7(3)(b)(iii).

No. 55, in schedule 2, page 28, line 24, leave out subsection (a).

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

Amendment No. 35 would amend paragraph 1(5) of proposed new schedule 19B, by inserting a 28-day time period in an attempt to specify the time frame within which the fixed penalty notice must be paid.

Amendment No. 36 would amend paragraph 2(2) to tie in the information given in the notice under paragraph 2(1), about the ability to discharge one’s liability by payment within the specified 28-day period, as set out in such a notice. In essence, it is a consequential amendment, designed to tie off any loose ends.

Amendment No. 37 would amend paragraph 2(3) by reference to a 28-day period in paragraph 3(2) specifying in what time frame an appeal must be made against a fixed penalty notice. The aim is to add clarity to the provisions. As the Bill stands, the only clear indication of the time limits for responding to notices is tucked away at the end of what is a bit of a legal maze. Even when we get to paragraph 3(2), we see:

“Neither period may be more than 28 days beginning with the day on which notice is received.”

That is simply not clear enough for compliance when the cost of getting it wrong can be so high. We must remember that the people who will have to react to the new provisions are likely to be volunteers with little or no legal training. We need to make things as clear as possible. Vague concepts of reasonable time limits may be acceptable in certain circumstances, but not here, especially when non-compliance can lead to individuals and groups quickly climbing up the penalty tariffs. We must be careful not to penalise innocent mistakes or administrative oversights. A number of other amendments were tabled with a similar aim in mind. We shall address them as the selection and grouping allow.

Amendments Nos. 67 and 68 refer to paragraph 3, which sets out the requirements for the information that must be included in a notice issued by the commission of the intention to impose a fixed monetary penalty. That includes the grounds for the issuing of the notice, the right to make representations, the period in which the liability may be discharged, the right of appeal against the penalty and the consequences of non-payment. During the period when the person can discharge their liability for the penalty by making a payment, the commission cannot bring criminal proceedings against them. Moreover, a person on whom the commission has imposed a fixed monetary penalty for an offence under PPERA may not be convicted for the same offence again—the basic rule of double jeopardy is seen with  the powers. The second part of the new schedule gives the commission power to impose discretionary requirements on the person and so forth.

Amendments Nos. 67 and 68 would amend paragraph 3(1)(b) to prevent the commission reducing the amount of penalty notices for early payment. Our aim is to clarify exactly what is required to be notified to an individual or group. The paragraph allows for the person or group subject to a fixed penalty notice to discharge their liability under it by paying the specified amount within the time limit. The sum required to be paid to discharge that liability may be less than the full amount of the penalty, so it is important that the potential payee understands both that and the incentive that such a mechanism provides. The information should form part of the notice with which they are presented. Our amendments would do just that, by amending the relevant sub-paragraph to set out, at the start, what payment of that sum will do and when it needs to be paid for that to apply. As legislators we need to signpost clearly the way in which people can and should comply with the Bill’s provisions. In doing so, we not only make it easier for people to comply, but we encourage early compliance because people understand the incentives in the Bill.

Amendment No. 69 deals with sub-paragraphs (2)(a) and (b) of paragraph 3. Amendment No. 44 applies to paragraph 7(2). Both look to insert

“date of commencement of the” into the wording of the provisions, which relate to the information contained in notices issued in relation to fixed penalty notices or discretionary requirements. The amendments follow the themes of the vast majority of our amendments in this group, which is to satisfy the need for clarity. Furthermore, our supporting arguments echo almost completely those that I have just made for amendments Nos. 67 and 68.

As the Bill stands, the two sub-paragraphs set out information on the period of compliance that must be included in the notices issued with the imposition of a fixed penalty. There are too many questions about what they mean for them to provide a useful guide for either the commission or the subject of the notice—“the period within which” is simply too vague a phrase. For instance, is it inclusive of the first or last days of the period? If the period is 28 June to 28 August, can one make payment to discharge a liability right up to midnight on 28 August, or does the period end at midnight on 27 August? Such matters may seem trivial in the context of some of our debates on the Bill, but they could form the basis for serious legal disputes, and contract law books are littered with cases on just such points. Our amendments would do away with all that by the inclusion of one simple phrase,

“the date of commencement of the” inserted at the start of the provision, which would ensure that there is no confusion. To continue with the example to which I referred earlier, we think that it would be clearer to say, “The period of 28 days will commence on 28 June”. It would be a simple change, but it is an easy way to prevent future confusion that could end in legal action.

Amendments Nos. 45 and 55 would delete “early payment discounts” from paragraphs 7(3)(b)(iii) and 18(1)(a) in relation to the payment of monetary penalties.  We appreciate that the aim of the proposed new schedule 19B is to provide an incentive for a speedy conclusion of the enforcements, but it misses the point that the amount in itself is the penalty. Having to make sacrifices is a necessary consequence. The amount is decreased for late payment because the person is not subjected to the full impact of the penalty. To reduce it for early payment is not the same thing. Instead, it would suggest that the seriousness of the offence had in some way been reduced.

We do not want to turn the commission into some sort of traffic warden, or its financial penalties into parking tickets, but the Government could be providing for just that with the provision. It undermines the position of the commission as a regulator. Instead, it would be a reactive enforcer such that while it might incentivise early resolution of an offence, it could diminish its authority. We believe that the commission has a more significant role than an enforcer of financial penalties. It is a regulator and provider of guidance first and foremost. The amendment would do away with the provision that could detract from that role.

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

I shall deal first with amendments Nos. 35, 36 and 37, which would impose a time limit for various stages in the process of imposing fixed monetary penalties—payment of the penalty, representations to the commission about the penalty and appeals against the imposition of the penalty. The amendments are unnecessary. The Bill already provides that the commission must specify the exact period for payment of the fixed monetary penalty when it imposes it, and that the period cannot exceed 28 days. Amendment No. 35 would ensure that the commission cannot require payment in a period that is less than 28 days. That additional constraint is unnecessary, given the requirement that the commission acts in a reasonable manner in its exercise of its civil sanctions power.

If a demand from the commission allows an unreasonable period, it may provide grounds for an appeal. It may be asked, quite reasonably, why the commission might need to have a shorter period than 28 days, which, after all, is not that long. There could be situations when sanctions had been imposed repeatedly so it might be necessary to have a shorter period to put the point to the person in question more forcefully. I am sure that the Electoral Commission will note our debate and reflect in its guidance some of the points that have been made.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

Will the Minister remind me where amendments Nos. 35, 36 and 27 are set out?

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

Amendment No. 36 refers to page 20, line 20 of the Bill and would insert

“within the period specified under paragraph 3(2)(a)” at the end of proposed new paragraph 2.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

What I meant is: where do we find such a provision in the Bill now? I am not referring to what my hon. Friend the Member for Huntingdon put in our amendment. I am asking where it is now.

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

I shall come on to that in just a moment. I shall make the argument and then direct the hon. Gentleman to where precisely we find it. I was just making the point that there may be occasions when the Electoral Commission will want to impose a shorter time period for the payment of these penalties, such as when someone repeatedly ignores the sanctions. Amendments Nos. 36 and 37 add in time limits of 28 days for the payment of the penalty, representations or appeals against it.

We believe that is unduly prescriptive. This sort of detailed provision is better suited to secondary legislation. Moreover, I do not believe that it is necessary or desirable for us to set statutory time limits of this nature. There is a requirement for all civil penalties to be reasonable and I believe that that is adequate protection. I direct the hon. Gentleman to paragraph 3(2)(a). I hope that I have said enough to persuade hon. Members not to press those amendments.

I turn now to amendments Nos. 67, 68, 69 and 70. Amendments Nos. 67 and 68 relate to the information that must be given by the commission when giving notice of an intention to impose a fixed monetary penalty on a person. I agree that the notices should include this information. However that is already required. Again I draw attention to paragraph 3(2)(a) of the schedule. I do not believe that this amendment is needed. I should like to talk about amendments Nos. 69 and 70 together as they both relate to information on the period for discharging liability that must be included in the notice that the commission intends to impose a fixed monetary penalty. I should stress that this is the notice of the intention to impose the penalty, rather than the final penalty itself.

This provision closely follows sanctions laid out in the Regulatory Enforcement and Sanctions Act 2008. Again, we see no reason for changing the operational design of the sanctions regime or why it should be different for the areas regulated by the Electoral Commission compared with the areas regulated by other regulators. We also believe that this amendment may compromise the rights of the recipient of the penalty, for example if there were any delay in receipt, which is why the model in the Bill in which the relevant periods begin upon receipt is preferable.

Amendments Nos. 45 and 55 both relate to early payment discounts or late payment penalties for monetary penalties. Of course I understand the point made by the hon. Member for Huntingdon, but we do not believe that it diminishes the importance of the sanction. There are some cases in relation to stop notices where the size of the sanction is important. In many cases we have to strike a practical balance. What is important is that the sanction is imposed. We do not want to put the Electoral Commission to unnecessary effort to pursue the discharge of those sanctions if there can be put in place a relatively simple and straightforward encouragement for it not to do so. Parliament had a chance to debate all this during the passage of the Regulatory Enforcement and Sanctions  Act through both Houses. This is the approach that was taken there and we have imported it here. We think that it is proportionate.

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

I am trying to think of circumstances in which fixed penalty notices would be appropriate. I can see how they might be appropriate under the previous legislation, in which businesses can be fined set amounts for set things. Will the Minister give an example of a fixed penalty notice being appropriate in the context of this Bill, given the limited number of people whom it would presumably apply to?

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

I am sure that the hon. Gentleman refers to fixed monetary penalties. We are talking about encouragement for early payment, and that principle applies whether there is a small or a large number of people to whom the measure applies. In all circumstances, if we can find a simple and effective way of encouraging people to pay up quickly we should do so, otherwise the commission will have a lot of problems pursuing the debt. Where we can simply and easily avoid that difficulty, and provide some encouragement to pay up quickly, we have done so. We see no reason here not to bring across the requirements of the 2008 Act. If the hon. Gentleman can make a compelling case for why Members of Parliament and other people who would be subject to the sanctions should be excluded from that general provision, we will, as always, consider it.

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

I find it strange that any fine under the legislation could be subject to a discount for early payment. That seems bizarre.

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

The hon. Gentleman finds it bizarre. I have just invited him to give me a reason for that. We have given the reasons why the principle is appropriate. It has already been established in legislation. The 2008 Act was so consensual that it went, I think, through the House of Commons without a vote. If the hon. Gentleman thinks that there is a good reason to except this form of regulation from the other forms that the House has already agreed should include this sort of provision, I am happy to hear it. Simply to say that he finds this bizarre, is not as compelling an argument as I would require. I am always happy to hear further representations on that point.

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

I note the Minister’s desire for flexibility with the timing of notices, and I will consider the amendments in that regard. The Minister also replied comprehensively on the timing of the period of service of the notices; I thank him for his response and I will go away and look at it. I still maintain that the concept of discounts for quick payment of fines is—

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

Yes. It is bizarre, in the context of the Bill. The Minister mentioned the previous legislation, on which the Bill is based. That relates to the regulation of companies, and presumably where there are mass problems and lots of notices being handed out, discounts can be offered. That is not relevant to the Bill, and we will look again at the parts of the schedule that refer to discounts. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss amendment No. 40, in schedule 2, page 23, line 24, leave out sub-paragraph (4).

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

These are both probing amendments. They inquire of the Minister what the rationale was behind a second decision-making process. Amendment No. 64 seeks to leave out proposed new paragraph 2(5) and amendment No. 40 deletes proposed new paragraph 6(4). Both those sub-paragraphs permit the commission to review its actions in issuing notices for a second time. We query the need for the commission to have a separate review of its decision to issue the notice. That is an additional administrative step; the basis for issuing the notice should be under ongoing review. Furthermore, we are not convinced that the inevitable delay in the enforcement procedure is justified. Our only thought as to the rationale behind it, is that the Government anticipate that, under proposed new paragraph 2(1), the commission could be issuing fixed penalty intention notices without much forethought. To avoid embarrassing judicial scrutiny on appeal or the inevitable negative press coverage, they have placed a formal “second glance” mechanism in the Bill to protect the commission from embarrassing gaffes. The commission should ensure that when issuing such notices it is happy with the reasons that it is doing so—it should not be done as a matter of course. As such, we are reluctant to give it a get out of jail free card in the form of proposed new paragraphs 2(5) and 6(4). We fear the potential for abuse.

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

I am slightly surprised by the grounds on which the hon. Member for Huntingdon moved the amendment. I thought he was going to suggest something else, such as the view that a court rather than the commission should consider the representations. The hon. Gentleman seems to have constructed rather a complicated rationale, which I am frankly baffled by. Deleting proposed new paragraph 2 would simply mean that the commission would not be able to take into account any representations against the imposition of the sanction, effectively rendering the representations process meaningless. I had hoped that all members of the Committee would have welcomed the opportunity to make such representations to the commission.

As the hon. Gentleman is aware, there is already an appeals process built into this sanction; should the commission reject representations, the recipient may appeal to a county court or, in Scotland, to the sheriff. That process is there not to protect the commission from having made a mistake, but because it is simply a matter of natural justice that people should be able to make representations against an imposition. That is set out in proposed new paragraph 6(7). I remind the hon. Gentleman that the additional representations stage was incorporated into the 2008 Act in the Lords, as it was felt that it would add an extra safeguard, not for the regulator but against wrongful imposition of the sanction. It does not replace the appeals process to the courts; it is meant to be an extra safeguard, which, I thought, the Committee were ardently seeking in every area. I hope we can all agree that the amendment should not proceed.

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

The amendment is probing to allow the Government to defend this “second bite at the cherry” procedure. As the Minister has done that, I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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. 65, in schedule 2, page 20, line 38, leave out from ‘penalty’ to end of line 43 and insert

‘at any point within 28 days of receipt of the notice under paragraph 2(4).’.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss the following amendments: No. 66, in schedule 2, page 20, line 44, leave out ‘a county court’ and insert ‘the High Court’.

No. 107, in schedule 2, page 24, line 43, leave out from ‘notice’ to end of line 5 on page 25 and insert

‘at any point during a period of 28 days from receipt of that notice.’.

No. 50, in schedule 2, page 25, line 6, leave out ‘a county court’ and insert ‘the High Court’.

No. 78, in schedule 2, page 23, line 16, at end insert

‘at any point during the period specified in paragraph 7(2).’.

No. 43, in schedule 2, page 23, line 34, leave out from ‘requirement’ to end of line 43 and insert

‘at any point within 28 days of receipt of the notice under paragraph 6(5)’.

No. 44, in schedule 2, page 24, line 8, after ‘the’, insert ‘date of commencement of the’.

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

The amendment looks to insert a 28-day limit into paragraph 2(6) of proposed new schedule 19B to specify in what time frame an appeal must be made against a fixed penalty notice. Amendment No. 107 looks to insert the same time frame for appeal into paragraph 9(3) under the provisions that relate to an appeal against the imposition of non-compliance penalties. Amendment No. 43 inserts the same 28-day appeal limit into paragraph 6(6) in relation to appeals against penalties in the form of “discretionary requirements” that have been imposed pursuant to paragraph (5).

I do not wish to rehash the arguments that I made about amendments Nos. 35 to 37, but they would echo the arguments for these amendments. Suffice it to say that the aim is to add to the provisions a level of clarity that we do not believe currently exists. As they stand, the only clear indication of the time limits for responding to notices is tucked away at the end of a complicated set of provisions. Co-operation will be key to much of the enforcement action that the commission takes on, and we agree that the threat of sanctions will provide a useful incentive to co-operate. However, co-operation can only be founded on a strong base of understanding, and for that we need clarity in the legislation.

Amendments Nos. 66 and 50 would amend proposed new paragraphs 2(6) and 9(3). The amendments seek to change the court to which individuals must go to appeal against sanctions under proposed new paragraph (1), fixed penalty notices, and proposed new paragraph (9), discretionary requirements. We question whether the level of expertise in the county court is sufficient to deal  with what could possibly be a highly complicated case because of this Bill and the political background. For this reason, we suggest that the higher level of judicial scrutiny that would be afforded to the case in the High Court may be preferable.

Furthermore, an action in the High Court could serve as a check on the commission and make it think twice before opening itself up to public censure at the hands of the High Court because the basis for its action was too shaky. If that were the case, the amendment will have done its job.

Given the expectation that this power will be used in only a limited number of cases, I do not think that the requirement to appeal to the High Court places too great a burden on the individual or group involved, the commission or HM Courts Service. We would seek the Minister’s views on that.

Amendments Nos. 78 and 44 are consequential on each other in a way similar to many of the other amendments tabled. It shows the complexity of this Bill that so many detailed amendments have been made to its nuts and bolts.

Amendment No. 78 amends paragraph 6(2) by reference to a 28-day time period in paragraph 7(2), to specify in what time frame an appeal must be made against a discretionary requirement. Amendment No. 44 amends paragraph 7(2) so that it clearly specifies when the 28-day time period begins and how it is to be highlighted in the notice imposing the discretionary requirement.

I have already said much on the need for clarity in reference to amendments Nos. 65, 66, 107, 50 and 43. By adding specific time limits to the provisions of the schedule, we make compliance with the requirements easier. Our amendments, therefore, propose to put in place a 28-day time frame across the board. This would add a level of certainty to the provisions which we feel will be beneficial for all sides—certainty of time period for the individual and a clearly signposted procedure for the commission.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs 3:00, 13 November 2008

Rather than make a speech of my own, may I ask the hon. Gentleman about amendments Nos. 65, 107 and 43? They do not just impose clearer time limits, which is fair enough; they remove all grounds for appeal. What does he imagine would be the grounds for appeal if there were no grounds for appeal specified in the Act?

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

The hon. Gentleman makes a good point. The drafting would need to be changed accordingly. However, the 28-day time frame across the board, as a principle, still stands and on that I would be grateful for the Minister’s comments.

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

Given the size and range of this group, I will, if I may, address each amendment in turn. We believe that amendment No. 65 is unnecessary because paragraph 16 of the schedule allows the Secretary of State to make provision supplementing the primary legislation. We believe that this sort of detailed provision is better suited to secondary legislation.

We will be talking to the courts and the Electoral Commission about appropriate periods for appeal. They will be appropriate. I make no commitment but it is unlikely that they will be significantly less than 28 days;  they could well be more. It is not necessary or desirable to set statutory time limits of this nature. The requirement for all civil penalties to be reasonable is adequate protection.

Regarding amendment No. 66—the provision for appeals to be heard in the High Court rather than the county court—I heard what the hon. Gentleman said about burdens on the High Court. We believe it may impose a burden on the High Court. There is precedent, in that electoral law appeals are heard in a county court. It might be possible, subject to circumstances, for appeals from the county court to be heard in the Court of Appeal. So there is a higher level of judicial scrutiny at the end of the process.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

Will the Minister advise me what is the condition for financial assistance when someone is challenged by the Electoral Commission in a county court or a High Court?

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

I think that the hon. Gentleman is referring to the conditions in which legal aid might be available. If I may, I will write to him on that point. It is a complex area and I would rather get it right, in writing, rather than mislead the Committee inadvertently.

Amendment No. 107 relates to the appeals process for a person who has been issued with a non-compliance penalty for failure to comply with a discretionary requirement. It would amend the process by removing part of proposed new paragraph 9(3) of the schedule. The schedule currently allows a person to appeal against a non-compliance penalty on certain grounds. The amendment would remove those grounds of appeal, and instead provide that a person served with a non-compliance penalty would have a period of 28 days from receipt of that notice to appeal, but the grounds of such an appeal would no longer be clearly set out. We believe that the grounds of appeal against a non-compliance penalty should be clearly set out and the amendment would muddy the water by removing them.

We followed the drafting of the 2008 Act and the civil sanctions it imposed, and we cannot see any good reason to depart from that operational design in relation to the sanctions of the Electoral Commission, in comparison to other regulators. As always in such matters, when we are talking about transposing the requirements of the 2008 Act, if members of the Committee can make a reasonable case for making separate provision in relation to the Bill, we would be happy to consider it.

Amendment No. 50 is similar to amendment No. 66, but in this case it would provide for appeals against stop notices to be heard by the High Court, rather than a county court as the Bill currently provides. As I said earlier, the Government believe that county courts are a more appropriate forum for appeal; they are where electoral law appeals are heard. Using the High Court might place a strain on its resources, when the county court provides a perfectly adequate opportunity for appeal.

Amendments Nos. 78 and 44 both relate to information that must be included in the notices issued by the commission when it proposes to impose a discretionary requirement. I am not altogether sure why amendment No. 78 has been tabled, as new paragraph 7(2) already stipulates the available period for making representations, which must be no less than 28 days beginning with the  day on which the notice is received. It also clearly states that the notice must specify this period. Therefore, the amendment does not change the required contents of the notices and is unnecessary.

Amendment No. 44 would alter the wording of new paragraph 7(2). The amendment stipulates that, in a notice of intention to impose a discretionary requirement, the commission must include a specific date for the commencement of the period for making representations against it. As currently drafted, new paragraph 7(2) requires such a notice to include information about the period for making objections. It also states that that period may not be less than 28 days, beginning with the day on which the notice is received. That provision closely follows the sanctions laid out in the 2008 Act. We do not see a reason for changing the operational design of those sanctions, nor why they should be made different for the Electoral Commission in comparison to other regulators.

We also believe that the amendment might compromise the rights of the recipient of the penalty, for instance if there were a delay in receipt. That is why we prefer the model set out in the 2008 Act, in which the relevant periods begin on receipt, as that offers a fair opportunity for all in terms of making objections.

Amendment No. 43 would remove the list of grounds for which appeal against imposition of a discretionary requirement is allowable. It would also impose a 28-day limit on the right of appeal. That would be unhelpful and unnecessary. The grounds for legitimate appeal will help those on whom a discretionary requirement is imposed to understand when it is worth them pursuing an appeal. The grounds for appeal are not exclusive and there is also provision for prescribing other grounds in secondary legislation, but in reality, a court would be likely to entertain an appeal only on grounds similar to those set out in new paragraph 6(6). We believe that stating that explicitly in the Bill will help people to understand their position in determining whether to launch an appeal against a commission decision to impose a discretionary requirement.

On the timing of appeals, we will need to decide with the commission and the courts, after further consultation, the appropriate timetable for appealing against a decision of the commission. That will be a matter for the rules of court rather than for legislation, as was decided in the 2008 Act. If it is a matter of pressing concern to members of the Committee, we will see what we can do to advance it, so that we can return to it in a meaningful way on Report.

I assure the Committee that the Electoral Commission is aware that its operation of the new civil sanctioning powers needs to be responsible and clear. We keep coming back to that point, but it is aware of that. As we have discussed, it is required to produce guidance on how it will use the powers and set out explicitly what the sanctions that it is imposing require, and within what time frame.

I assure the Committee that the sanctions will be overlaid with a statutory instrument setting out important procedural matters relating to the civil sanctions regime. Where it deals with the most pressing matter in the schedule, it will be subject to the affirmative resolution procedure, but both routes will offer the House ample opportunity to scrutinise the detail of the sanctions and their operation if it so wishes.

In light of those reassurances and explanations, I hope that the hon. Member for Huntingdon will withdraw the amendment.

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

Let me thank the Minister for putting on record again the fact that he understands the need for clarity. That is exactly what we are trying to get at through most of our amendments. I thank him also for going through the amendments on appeals comprehensively, and we shall review the position further. On amendment No. 78, I thank him for clarifying what is already in the Bill. I note what he says about appeals to the High Court, and we will examine that matter further.

On the equalisation of time periods, I should add that before this Bill, I served on the Public Bill Committee that considered the Employment Bill, and we examined the employment tribunal process. Everyone agreed that the time limits for bringing various claims to an employment tribunal should be made the same. The problem was that no one could actually agree on what that period should be. I see the potential for different periods in this Bill, and we do not want to be in the same situation. We should sort it out before the Bill comes into effect, rather than have a series of different periods for different people, which is confusing, and then return to the matter in several years’ time. It would be much better to get that right at an early stage, which is why I have been suggesting equalisation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss amendment No. 42, in schedule 2, page 23, line 32, after ‘is’, insert

‘, how it is to be complied with, and the exact time period in which compliance must occur.’.

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

Amendment No. 41 would insert the word “immediately” into new paragraph 6(5) of the schedule and so introduce a requirement for the commission to notify the person in question of its decision to impose a discretionary requirement under part 2 of the schedule immediately. The commission should be a beacon of good practice. If we are to expect prompt compliance on the part of those subjected to sanctions under the Bill, it is only right and reasonable to expect the enforcing body to be even quicker in responding to or notifying them. It is a simple case of leading by example. If it does not do that, its legitimacy will begin to look shaky. If the Minister wishes to argue that that would create immense and intolerable administrative burdens on the commission, I ask him to give evidence of that.

Amendment No. 42 would insert into the same sub-paragraph provisions as to what notices of discretionary requirements should set out. It echoes amendments Nos. 44, 69 and 70, and I have tabled it for the same reasons. There are too many questions about what the notices will mean for them to provide a useful guide to either the commission or the subject of a notice. We should dispel that ambiguity and confusion, or we  could face a rash of cases in which people are penalised for mistakes. Such notices need to be as prescriptive as possible. Furthermore, a more prescriptive approach could be mutually beneficial: the commission would increase its level of enforcement and results, and people would be able more easily to comply with sanctions and avoid possible penalties.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 3:15, 13 November 2008

We come back to the tension between clarity and prescription, in the hon. Gentleman’s words, and flexibility. We need to strike a balance between them. We do not believe that amendment No. 41 is desirable because we are not seeking to limit the commission in its application of the new civil sanctions regime by requiring it to act immediately. Varying circumstances in different cases will inevitably require different approaches.

We believe that amendment No. 42 is unnecessary, as new paragraph 5(5) of the schedule already stipulates that a discretionary requirement is

“a requirement to take such steps as the Commission may specify, within such period as they may specify”.

When imposing discretionary requirements, the commission needs to be clear what the requirement on a person is and when it should be completed. If the requirement is not clear, it will be open to appeal on the grounds that it is uncertain, and therefore that it is, by its nature, unreasonable, which is grounds for appeal under new paragraph 6(6)(d), where non-monetary discretionary requirements are concerned. That is common sense and there is already provision in the legislation, so I hope that the hon. Gentleman will withdraw the amendment.

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

I thank the Minister for that clarification on amendment No. 42. I am pleased that the point is covered in the Bill. As for amendment No. 41, the concept was well debated earlier, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss amendment No. 52, in page 26, line 31, after ‘may’, insert

‘, on an application by that person or by decision of the Commission.’.

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

Amendment No. 51 is a probing amendment. It is based on a speech that my hon. Friend the Member for Isle of Wight gave on Second Reading on stop notices, which are one of the number of new civil sanctions given to the commission by the Bill. Stop notices allow the commission to demand that an individual or group cease doing an activity that they are carrying on, on the basis that it is liable to result in a contravention of or offence under PPERA.

In discussing the amendment, to the extent that it has basically come from my hon. Friend, I cannot do better than read what he said on Second Reading. He stated:

“Paragraph 10 of proposed new schedule 19B...allows the commission to impose so-called stop notices. These are to be imposed on individuals to prohibit them from carrying on an activity which the commission believes is “likely to involve” their committing an offence under the 2000 Act. The wording implies not “has done”, but merely “may do”. Likewise, a stop notice can be imposed if the commission believes the person’s activities are likely to lead them to commit an offence or contravention of the Act.

Does the Lord Chancellor recognise that those measures could interfere with an individual’s wholly legal actions? An individual could be treated as if they had already committed an infringement, even if their actions never led to such an infringement. Is not the Electoral Commission’s purpose to ensure that elections are run legally and to punish individuals appropriately once an infringement has occurred, and not before? Does the Lord Chancellor not also agree that absolute clarity is needed when qualifying situations that are deemed ‘likely’ to lead to an offence?”—[Official Report, 20 October 2008; Vol. 481, c. 88.]

It would be helpful if the Minister could respond to those concerns and put the matter on the record.

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

We have already debated the principle of stop notices, and I said at the time that I thought that they were necessary. They are the equivalent of an injunction. There are circumstances in which activities need to be stopped and not just sanctioned in other ways, and it must not be possible to buy one’s way out of a requirement.

The concern that was raised by the hon. Member for Isle of Wight is mainly about stop notices when the banned behaviour has not yet happened. He is right to some extent to be worried about that. In civil law, there are special ways in which to deal with the situation when the forbidden behaviour has not yet happened. That is the idea of the quia timet injunction. I should be happy if the Minister could explain to the Committee how similar considerations might be brought to bear in the context of the Bill.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I wish to add the sentence that the commission may serve on the person a notice rather than an outside body, such as the court, but it seems that someone other than the commission is taking charge of what is being proposed.

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

I will deal with the matter at some length because it is important. We have already debated it in a slightly different context, but I understand the concerns that have been expressed. The sanctions are severe. The hon. Member for Huntingdon said that the proposal was a probing amendment and that it would remove stop notices from the Electoral Commission’s battery of powers, but we should be clear that it would severely weaken the range of sanctions available to the commission and its ability to act as an effective regulator.

Stop notices were recommended by the Macrory review, to which the hon. Gentleman has referred. They were recently brought into law under the 2008 Act and are available to several operators. We believe that they should be available to the Electoral Commission for the reasons set out by the hon. Member for Cambridge and to which I have alluded, in that there are certain circumstances when the potential sanctions that might follow serious transgressions would not be adequate to deter someone who is determined to break the law.

We have to be careful to give the Electoral Commission powers to prevent anyone from having the ability, for example, to buy the outcome of an election. That is unacceptable, and stop notices are an important part of the powers that we want to be available to the commission. As I have pointed out, a very high threshold must be overcome before the commission can impose a stop notice. We realise the seriousness of the matter, and we have set a high threshold. As well as having a reasonable suspicion that a prescribed offence or contravention of PPERA has taken place, or is likely to take place, the commission must reasonably believe that the harm caused by such a breach would seriously damage public confidence in the controls on party income and expenditure under the 2000 Act. Stop notices will be available only in what are likely to be rare cases when the breach or likely breach is such that it is necessary to impose a sanction to preserve the integrity of the controls under the 2000 Act.

There must be absolute clarity about the circumstances in which stop notices are imposed. They can be used in circumstances when the activity is likely to breach electoral law. We discussed that with the Electoral Commission, and it was clear that, if it had information that someone could be planning to spend a large sum during an election campaign that might switch the course of the campaign or determine its outcome decisively, it felt that it was necessary for it to have the power to intervene and impose a stop notice.

However, the same safeguards and hurdles have to be overcome. They are, I repeat, very high hurdles. In all circumstances, the ordinary principles of public law will apply, so a decision to impose a stop notice, whether on continuing actual activity or anticipated activity, will necessarily involve the commission first considering the full range of powers at its disposal, particularly whether any other of its sanctions are a more appropriate means of achieving its aim. Only when it has undertaken such consideration can it contemplate the imposition of a stop notice. That is a high hurdle.

A person may also apply to the commission for a completion certificate, which will discharge the stop notice and release the person from the obligations imposed, in circumstances where the person believes that he or she has fully complied with the notice. A refusal by the commission to issue a completion certificate is subject to a separate right of appeal to the county court, on the same grounds as an appeal against the original stop notice.

As I said, of course we understand that there are reservations about how stop notices will work in practice. Members have valid concerns about that and how such notices may be used incorrectly by the commission. However, they will be used only in carefully circumscribed circumstances. There is a wide range of civil sanctions, which we have been discussing and which is available to the commission, where the proscribed offence is less serious; in such circumstances, alternative sanctions should be used. The commission is under an obligation to consider those sanctions first, before going for stop notices. Nevertheless, we believe that the notices are fundamental, therefore we hope that the Committee will reject the amendment.

Amendment No. 52 inserts additional wording into paragraph 13(2) in schedule 2, which sets out the grounds for appeal against imposition of a stop notice. I am not  altogether clear what the additional wording seeks to achieve, but it does not obviously add anything to the existing appeal right, which enables any person served with a stop notice who has been refused a completion certificate to appeal on certain specified grounds. Such an appeal will inevitably require an application to be made. I do not see how giving a role to the commission in deciding whether an appeal should be allowed would improve the process. Indeed, such a role could be thought in some circumstances to restrict the process, which is not desirable given the serious nature of stop notices. I hope that hon. Members will not press the amendment.

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

I am pleased that the Minister was able to give such a full explanation of why he thinks stop notices are necessary. Conceptually, they will be a useful arm for the commission. We shall look further at what he said, but at this stage I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss amendment No. 54, in page 28, line 4, after ‘made)’, insert

‘, but such provision shall not be more punitive than any provided for under this Act.’.

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

The amendment deletes proposed new paragraph 16 in schedule 2, which covers the general powers of the Secretary of State to make supplementary provisions by order. We are not sure about empowering the Secretary of State to create more legislation that is

“supplemental...consequential...or incidental to this Schedule.”

It could lead to excessive powers being taken.

The schedule, as I have been highlighting, hands broad and potentially powerful sanctioning capabilities to the commission. We are also concerned about some of the drafting of the schedule, particularly on the limitation of the powers for the safeguarding against abuse. We do not want to see the creation of yet more legislation empowering the commission further down the line without proper parliamentary consideration.

Amendment No. 54 inserts into proposed new paragraph 16(3) a qualification that any order may not be more onerous than those provisions already in the Bill. That is the fallback position—if we cannot convince hon. Members of the need to remove the provision, we seek to limit it, so that the Secretary of State cannot provide for further or more punitive sanctions.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 3:30, 13 November 2008

Amendment No. 53 would remove proposed new paragraph 16 from schedule 2. The effect would be that no supplementary order could be made. That is not desirable, because it would prevent us from specifying crucial details to allow the provisions to work properly. However, I doubt that that is the intention. It is more likely that the amendment would prevent important details about how the power would work in practice from being left to secondary legislation.

We recognise that the detail of how the powers will be applied is crucially important. The way in which a monetary penalty will be calculated, for example, is very important. For that reason, a carefully produced order, subject to full consultation with the commission and other appropriate persons, is the right approach. That will ensure that all the necessary detail is subject to the appropriate level of scrutiny. The order will be subject to the affirmative resolution procedure if it deals with what offences, requirements or restrictions are to be prescribed or if it seeks to amend another Act of Parliament. If it deals solely with other matters, the negative procedure will apply. Both routes provide Parliament with the opportunity to undertake detailed scrutiny where that is thought appropriate.

It would be unhelpfully inflexible if details, such as the example of the calculation of monetary penalties, which might change over time, were set out in primary legislation. If we are serious about having a flexible sanctions regime—I return again and again to the concept and principle of flexibility—albeit one that is certain and set out in legislation, we need this power.

Amendment No. 54 would amend paragraph 16(3), which allows for a supplementary order to be made by the Secretary of State to

“make provision amending, repealing or revoking an enactment (whenever passed or made).”

The amendment appears to seek to ensure that such provisions may not be more punitive than any provided under the Bill. However, the power in paragraph 16(3) is only intended to be used where consequential changes are needed to other bits of legislation because of the way the Bill works. For example, any provisions made about the powers of courts to deal with appeals may require changes to other legislation that also deals with that topic. Any such order remains subject to the affirmative procedure, therefore the amendment is not necessary. I hope that the hon. Gentleman will ask leave to 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’s response does not surprise me. I have heard such a response on many occasions when discussing the need, or otherwise, for secondary rather than primary legislation. The position that I set out previously is fair. We are still concerned about paragraph 16(3), but at this stage I will not press the amendment to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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. 57, in page 31, line 2, leave out paragraph 24.

Amendment No. 57 is a probing amendment that would delete paragraph 24 of schedule 2, which requires that fines are to be paid out of the funds of unincorporated associations. Would the Minister expand on what the purpose of this paragraph is and what mischief it seeks to prevent? What is the rationale behind the need to prevent that?

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

I have a further question to add to those asked by the hon. Member for Huntingdon. What happens if an unincorporated body does not have the  funds to pay the amount that is required of it? The general law is that, in those circumstances, the directing committee of the unincorporated organisation is liable and in certain circumstances, although it is rarer than people think, the individual members are liable. The Bill says that the amount “shall” be paid out of the funds of the unincorporated association, but there seems to be a puzzle, or gap, as to what would happen in those circumstances.

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

The hon. Gentleman raises an interesting point. If the money is not there, does the schedule imply that it should not be paid?

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

That seems to be one possible interpretation of what the Bill says at the moment. The other interpretation is that the general law applies and, in such circumstances, the members of the committee or of the association would pay. I will be grateful if the Minister explains what he thinks the schedule means in this regard.

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

I am glad that the hon. Member for Huntingdon made it clear that this is a probing amendment. It would remove the requirement for any fixed monetary penalty imposed on an unincorporated association to be met from its own funds, and it is unclear how the costs would then be met. As I have said many times, I understand the concern, but we must seek not to over-regulate the many volunteers who contribute to our political system. We are not minded to accept the amendment. We expect appropriate monetary penalties to be imposed by the commission. Any penalty must be reasonable, and if it is not, it can be appealed against. Where it is proven that an offence has been committed, an appropriate penalty should be imposed, and we see no reason why the body that has committed that offence should not be required to meet the cost.

The hon. Member for Cambridge raised an important practical point about what will happen if the body does not have the funds. We will look into that. We think that—as with civil debtors—it would involve the members of the association, but we will look into that and come back to the Committee with a definitive answer. Having set out the reasons behind the clause, I hope that the hon. Member for Huntingdon will withdraw the amendment.

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

That raises an interesting question, because political parties can potentially become insolvent and go bust. One way of reading the provision could be that in a situation where an unincorporated association is insolvent, the people behind it—those mentioned by the hon. Member for Cambridge—would not be liable. It is an important point, and I thank the Minister for agreeing to take it up and come back to the Committee, perhaps by letter. He nods his assent and I thank him for that. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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. 59, in page 32, line 8, at end insert

‘but such guidance will not be considered as mandatory if in the reasonable opinion of the Commission it would be in the public interest for them to exercise their functions otherwise than with regard to the guidance.’.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss amendment No. 58, in page 32, line 8, at end insert—

‘(9) The Commission shall publish the guidance specified under this paragraph no later than 28 days after the date of commencement of this Schedule.’.

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

The amendment inserts a provision that would give the commission leeway to deviate from its published guidance in exceptional circumstances. While accepting the need for guidance on the way in which the commission will look to enforce the provisions in the Bill, we do not wish to hamstring it by tying it to a course of action that flies in the face of the public interest and common sense. Therefore, we propose to insert a waiver—if we can call it that—which would permit the commission to deviate from the guidance where it is appropriate for it to do so in order to fulfil its role as regulator and enforcer of the PPERA provisions in the public interest. This is a probing amendment.

Amendment No. 58 would insert new sub-paragraph (9) that sets out provisions on the guidance to be published by the commission in relation to the various sanctions available to it in the schedule. It would enable the proper implementation of the Bill, and would require the commission to produce guidance on enforcement within 28 days of enactment.

In their desire to push through the Bill, the Government are in danger of being in breach of their own code of practice on guidance. That states that guidance should be issued at least three months before any regulations come into effect. I quote:

“To give organisations time to prepare for regulations, guidance will be issued at least 12 weeks before a regulation comes into effect, with some necessary exceptions... Sometimes more than 12 weeks will be needed, for example, if a regulation is complex or costly to implement”

Guidance will be crucial for effective implementation and compliance by local party groups and organisations that will be on the front line in dealing with the legal requirements. Without guidance, they will be operating in the dark.

We have voiced our unhappiness about the rushed nature of the Bill on numerous occasions, and we believe that the amendment is important to ensure that once the Bill is enacted, guidance will follow shortly afterwards.

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

I am grateful to the hon. Member for Huntingdon for raising those concerns; he makes perfectly valid points. Nevertheless, we think that a statutory commitment to tie publication of guidance to the date of commencement would be excessive. However, I am happy to announce that we are making a commitment to commence the provisions making civil sanctions available to the Electoral Commission only once it has published its guidance on how it will operate them. That is certainly not inconsistent with our guidelines, to which the hon. Gentleman referred. Both the Government and the commission are keen to demonstrate that these powers will be used fairly and sensibly. I know that guidance will help reassure hon. Members of that. The commission is writing the guidance and will publish it as soon as possible, but I hope that the comments I have made in response to amendment No. 58 will reassure the Committee. The regime will operate fairly and effectively  only if guidance is published before commencement, rather than in the 28 days following commencement, as the amendment provides for.

Amendment No. 59 would explicitly put in the Bill that when considering the imposition of civil sanctions, the commission would not have to act in accordance with the guidance. That would mean that the commission could act otherwise than with regard to the guidance, if it were in the public interest for it to do so. I understand that these are probing amendments. If the intention behind the measure is to ensure that the commission’s hands are not tied by its own guidance when it would be in the public interest to depart from it, I agree with that in principle. The commission should be able to operate the civil sanctions regime in a flexible and appropriate manner—those are the words to which we keep returning: “flexible” and “appropriate”—to ensure that it is effective. However, it is not necessary to put that in the Bill. The Electoral Commission would be bound only in operating the civil sanctions regime by the law itself anyway.

By contrast, the guidance is precisely that: it is a strong indication of what will happen in practice, but there is no absolute guarantee of that. After all, we must recognise that different cases will call for different approaches and, inevitably, guidance will not be able to anticipate every possibility. It is right for published guidance not to bind the commission’s hand in law. However, guidance must inform what the commission does and the commission’s approach, and it must be considered carefully and seriously by the commission in carrying out its functions.

Quite legitimately, guidance will create expectations among the general public about how the commission will act. A consistent approach towards that, which, of course, the guidance is intended to facilitate, will be key to ensuring that the public and those whom the commission regulates have confidence in it. That is why we have expressly provided that it will be necessary for the commission to have regard to the guidance when considering the imposition of civil sanctions, even if it later chooses to depart from the approach set out in the guidance. It the commission does depart from the approach set out in the guidance, it will need to explain why it thought it was appropriate and reasonable to do so. If it is unable adequately to defend its departure from guidance on objectively justifiable grounds, it may find its actions vulnerable to challenge by way of judicial review.

Having given that explanation, I hope that the hon. Gentleman will not press that amendment.

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

I thank the Minister for his comments. I agree with him in relation to amendment No. 59, but I am pleased he has been given the opportunity to set out the nature of how the guidance process works. On amendment No. 58, we are pleased to hear that the Government have agreed that the provisions will not come into effect until the guidance has been published. That is very good news indeed. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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. 60, in schedule 2, page 32, line 10, leave out paragraph 26.

The amendment is probing. Will the Minister share with hon. Members how the consolidated fund works, and how it is administered and controlled? What parties  have access to it and what funds are held in it? In addition, on what basis can funds be removed from it? It is worth while putting an explanation of that on the record.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 3:45, 13 November 2008

I accept the probing nature of the amendment and am flattered that the hon. Gentleman thinks that I carry the body of academic knowledge to answer all those far-reaching and comprehensive questions, which—with all due respect, Mr. Atkinson—might be slightly outside the scope of the Bill.

Nevertheless, I am happy to write to the hon. Gentleman with a full account in answer to all those questions, and I hope he finds time to read it and return to me with any further questions. In the meantime, I will give an account of why we intend to resist the amendment, because it raises important questions of principle that I am not sure he necessarily wished to raise.

The fines and monetary penalties will be paid into the consolidated fund, as in other examples, because doing so is an important safeguard against regulators seeking to impose monetary penalties for their own financial benefit. The hon. Gentleman said that the amendment is probing, and I take it in that spirit. Otherwise, I cannot imagine why he would want to remove that important safeguard. If those penalties were retained by the commission instead of the consolidated fund, whose workings will shortly be revealed to the Committee in exhaustive detail by letter, the commission would clearly have a financial incentive to impose monetary penalties. That would be unwelcome and undermine its credibility, so on that basis I very much hope that he will withdraw the amendment.

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

I am pleased that the Minister has put that on the record, which is simply what I wanted. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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. 61, in schedule 2, page 32, line 20, leave out from ‘shall’ to ‘specifying’ in line 21 and insert ‘publish an annual report’.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

With this it will be convenient to discuss the following amendments: No. 136, in schedule 2, page 32, line 20, leave out ‘from time to time’ and insert ‘annually’.

No. 62, in schedule 2, page 32, line 33, at end insert—

‘(3) In a report the Commission will not specify the names of those persons who have been the subject of the cases specified in sub-paragraphs 1(a), (b) and (c), save where the amount of any penalty exceeds £1,000.’.

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

The amendment relates to paragraph 27(1) of the proposed new schedule, which deals with the commission’s obligation to produce reports on the use of its civil sanction powers. It proposes that the commission should be required to produce a report annually, rather than from time to time, as the Bill requires. That is also the substance of amendment No. 136, tabled by the hon. Member for Carmarthen, West and South Pembrokeshire.

Given that those are entirely new powers and that the commission has shown reluctance in various areas, it is important that there is a review mechanism by which the Government, the commission and the public can assess how it is using those powers. Furthermore, the lack of statistical data on the actions of the commission has meant that reports to date and the background to the Bill have often been hampered by a lack of concrete evidence on which to base decisions. Instead, we have had to rely on the empirical evidence that the commission supports the need for greater powers, and something sits uncomfortably with us when we view it in that way. The annual reporting requirement should not prove unnecessarily burdensome, given that the commission already produces an overall report of its work throughout the year.

Amendment No.62 would insert a threshold test into paragraph 27(2), which deals with the details of offences committed by individuals that may be excluded from the commission’s reports published under paragraph 27(1). We feel it appropriate to set a high threshold of £10,000 so that only the most serious cases of abuse would be captured.

We have no intention to penalise twice—with financial penalties and public censure—those at the lower end of the spectrum. Having said that, once the threshold has been passed, there could be advantages in the details being freely accessible in the public domain so that the worst offenders were subject to public scrutiny, which would act as a further deterrent.

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

Amendment No. 136 is also probing. Earlier, the Minister moved Government amendment No. 126, which proposed that information on the investigatory powers of the commission be included in the annual report. Paragraph 27 of the proposed new schedule implies that from time to time reports will be produced on the use of the civil sanctions that the commission has imposed. Does that mean that whenever a sanction is imposed there will be public report on the case? Is that why the Bill says “from time to time” or does it mean that perhaps every 18 months a report will be produced that lists the series of different issues and cases where civil sanctions have been used?

If the commission is producing an annual report, either it could put together all the different reports on civil sanctions that had been taken in that year and publish them, or it could publish a report once a civil sanction case had been concluded. Perhaps that is why the measure is drafted in this way. Should a report be produced each time a civil sanction issue has been settled or should they all be brought together in an annual report, in the same way that the investigatory powers issues are brought together in an annual report? I would be interested to know the purpose behind the wording of the measure.

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

The hon. Gentleman has essentially asked the question that I intended to ask, but let me put it in a slightly different way. What publicity, in the normal course of events, will a fixed penalty notice case have? Will the information about the identity of the person required to make a payment be discoverable under freedom of information legislation? Will it be published in the normal course of events or be treated as essentially a private matter between the parties?

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

My hon. Friend the Member for Carmarthen, West and South Pembrokeshire made compelling arguments. The Government are persuaded by the arguments that they have heard and would like to consider accepting the amendments. However, for the avoidance of problems down the line, I would like to ensure that the drafting does not cause any technical difficulties. We should also, as a matter of courtesy and principle, consult the Electoral Commission on this.

Certainly, we are disposed to accept the principles behind the amendments. If I may, I will come back to the Committee with a proposal to accept the amendments or something very similar in due course. With that, 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 approaching the end of what has been a pretty full day and that is a welcome thing to hear from the Minister. I thank him for agreeing to come back to the Committee on these proposals. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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. 63, in schedule 2, page 32, line 36, at end insert—

‘(aa) the Serious Fraud Office,’.

We come to the final amendment to the schedule. Amendment No. 63 would amend paragraph 28(1), which sets out the bodies whose files and information  the commission will have a right to access when exercising its powers, by including the Serious Fraud Office in the list of bodies with which the commission can share information. It is important that there is communication between the various agencies. Efficient use of information can not only save valuable financial and administrative resources, but will help the enforcement environment as a whole.

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

It may well be that the commission would benefit from a statutory power to access information such as that held by the Serious Fraud Office, but we would need to consider the wider implications of such a change and any implications as regards the framework for other regulators as established by the 2008 Act. I would be interested to hear more from hon. Members about their reasons for tabling the amendment, but we will give the point further consideration if, for the time being, the hon. Gentleman is happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Further consideration adjourned.—[Ian Lucas.]

Adjourned accordingly at five minutes to Four o’clock till Tuesday 18 November at half-past Ten o’clock.