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Political Parties and Elections Bill


9th February 2009

Jonathan Djanogly introduces a series of amendments on behalf of the Opposition and tells MPs the Bill represents a missed opportunity to deal with the crisis in public confidence in the political system.

Programme

Mr. Jonathan Djanogly (Huntingdon) (Con): This legislation has been by far the most poorly structured moving beast of a Bill that I and, I think, many other hon. Members will have worked on in this place. Although the Secretary of State and the Minister have never been less than courteous to me and my right hon. and hon. Friends during the Bill's passage to date, the contents of the Bill have changed dramatically-and, I have to say, thankfully-from being initially overly partisan and technically deficient to something rather more acceptable.

As a result of the Government amendments tabled for consideration today and those proposed for the second day of Report, we are moving the Bill towards what we consider a more acceptable position. Our Report amendments, however, show that we still think that the Bill still has some way to go and that, despite the progress, it represents a missed opportunity to deal with the crisis in public confidence in the political system.

We accept that the Committee stage succeeded in bringing many concerns to light and helped to establish important common ground, and since then discussions have continued. It is clear that the Government have done some serious thinking on the Bill, as is clear from their amendments and the proposed timetable that we now debating. We note that the Government have provided a second day for Report, which, given the significant number of Government amendments, let alone ours, is appropriate. I note that, as with the lateness of everything else to do with this Bill, the amendments under discussion today were only tabled about a week ago. That is hardly timely, given that the Committee finished on 13 November last year. Moreover, the fact that the second day for Report is not scheduled until March is typical of how this Bill has progressed-or not-and is revealing of a Government who are struggling to deliver the legislation, which, it must be said, they originally intended to rush through this place in a very short time. Although that may be indicative of a Government in their death throes, we shall not, for the reasons given, oppose the programme motion.

4.42 pm

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Main debate on the Bill

Mr. Jonathan Djanogly (Huntingdon) (Con): All the amendments in the first group except the first two new clauses address clause 3 and schedule 2, which introduce a range of civil sanctions for the Electoral Commission. The sanctions relate to the commission of offences and the contravention of restrictions or requirements under the Political Parties, Elections and Referendums Act 2000, or PPERA. Together, clause 3 and schedule 2 empower the commission to impose these civil sanctions on a "person", "registered party", "recognised third party" or "permitted participant", as defined in the 2000 Act.

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The Conservatives agree that the making available of enhanced civil powers and sanctions will, in certain situations, be more appropriate than the sledgehammer of criminal sanctions under the 2000 Act. The commission will have a wider range of sanctions to enable it to be a more effective and robust regulator, and that was identified by the Committee on Standards in Public Life report in January 2007, which picked up on the problems facing the commission. However, we are keen to ensure that any use of sanctions is valid-the use of powers must be proportionate, risk based and fair, and a number of aspects require further review by us today.

New clause 3 would replace a number of criminal offences in the 2000 Act with a fixed penalty of £1,000. The suggestion is interesting, but we are concerned that it could reduce the effectiveness of the Electoral Commission and weaken the strength of sanctions-there could be a lack of a proper deterrent in many cases if the commission is limited to the use of a fixed monetary penalty for the offences implicated by the new clause. We are prepared to review this conceptually in later stages, and the points made by the hon. Member for Leeds, North-East (Mr. Hamilton), particularly on the lack of guidance, were well put.

New clause 4 would create an independent panel responsible for producing a code of practice relating to the Electoral Commission's use of civil sanctions. The panel would also offer guidance to it. Although the new clause offers an interesting protection against the abuse by the commission of its powers, the 2000 Act contains an equivalent measure. Under that Act, the Parliamentary Parties Panel can make submissions to the commission on the use of sanctions, so this extra provision should be unnecessary. Again, I take the hon. Gentleman's well made point about careful monitoring, and I hope that the panel is put to its full use in that regard.

Our amendments 59 to 62 relate, respectively, to paragraphs 1(b), 2(b), 3(b) and 4(b) to schedule 2. They would remove the commission's ability to impose a fixed monetary penalty on a person, registered party, recognised third party or permitted participant for a non-offence contravention of the Act. It is important to note that the commission would still have the power to issue a fixed penalty for the commission of a prescribed offence.

The power to issue fines is one of the key new flexible powers that the commission is given by the Bill. We hope that they will enable it to deal with enforcement more flexibly and proportionately than it has been able to do in the past. Fixed penalty notices require the person, registered party, recognised third party or permitted participant to pay an amount specified in the notice to the commission. We tabled the amendments because we feel the need to err on the side of caution when dealing with non-offence infringements of the Act. Will the Minister explain the scope of what we could be dealing with here? Our concern is that, depending on the operation of future electoral commissions, things may be interpreted oppressively, resulting in large fines for relatively minor infringements. We must be sure that we clearly set out the parameters of these powers and the circumstances in which they may be used-not necessarily for the current commission, which has been privy to much of this debate, but for the commissions of the future, which may not be so rational in the use of these powers.

At the grass-roots level of political engagement in particular, this is an extremely complex and difficult area of law, and the possibility for wide interpretation and the potential for abuse are correspondingly high. This lack of clarity has potential to have a negative impact at the implementation level. We do not want individuals and smaller groups and associations to live in fear of reprisal for minor infringements. When a potentially hefty penalty is the punishment, the criteria of contravention of the prescribed restriction or requirement could be too opaque and broad.

Amendments 74 and 82 would, respectively, amend paragraphs 2(6) and 9(3) to schedule 2. The paragraphs state which court is to be used for the appeal process in relation to a fixed monetary penalty and a non-compliance penalty for failure to satisfy discretionary requirements under part 2. The amendments would change the relevant court from a county court to the High Court. We remain concerned that the expertise of the county court could be insufficient to deal with a potentially complex case under the legislation.

The length of discussion on these technical points in Committee, and the debate so far today, show how complicated the various relevant provisions can be. For that reason, we suggest that the high level of judicial scrutiny that the High Court offers is to be favoured. Furthermore, the reputation of the High Court and the scrutiny it applies will serve as a useful check on the commission. Any case that reaches the High Court would become a useful precedent, and any guidance that the High Court gives would be useful in helping to avoid future court appearances. Furthermore, the need to satisfy the demands of the High Court would also encourage the commission to be thorough, if a case were to proceed to judicial scrutiny.

I remind hon. Members that the use of such powers would be very limited. As such, relatively few cases would be expected to reach this stage and it is unlikely that this requirement would place too great a burden on the High Court. What is important is that cases are considered properly and the relevant level of scrutiny is applied. We consider amendment 74 an important enough issue to press to a Division at the appropriate moment.

Amendment 78 looks to remove the early payment discount provisions in schedule 2.3(3)(d). As the Bill stands, that and other similar sections provide that notice of a possible penalty must include information about any early payment discounts. That implies that the commission may provide discounts for the early payment of a proposed penalty, imposed under the 2000 Act. Our amendments delete reference to early payment and thereby prevent discounts from being issued.

While we understand that the intention behind the provisions is to encourage swift settlement of penalty liabilities, we disagree that the discount mechanism currently in place is the best means of achieving the goal. A penalty is an important indication of wrongdoing. Allowing a discount for early payment could suggest that the seriousness of the offence had in some way been mitigated. That could send out the wrong message, and could trivialise the penalty regime.

Amendments 63 to 67 would serve to remove monetary penalties from the discretionary requirement regime. Amendment 63 would specifically remove subsection (a), relating to monetary penalties, from sub-paragraph 8, which defines what may constitute a "discretionary requirement". It would leave two remaining powers with the commission, which would be extremely flexible and could require a subject to take such steps as the commission sees fit to remedy an offence or contravention. Amendments 64 to 67 are consequential.

The power to issue fines is one of the key new powers that the Commission will be granted by the Bill. Fines can act as a crude penalty and disincentive when the 2000 Act has been breached. Conceptually, we support the penalty regime in certain circumstances, but we remain concerned at the potential for the Bill to encourage the over-zealous use of penalties when other avenues should be explored first. That is particularly so in the case of minor infringements of the legislation. The discretionary requirement regime, minus the penalty provision, is capable of remedying minor breaches, and we should not encourage a simple fine system that could fail to address the root of the problem. By removing the penalty, the commission would need to focus on imposing a discretionary requirement to take steps to stop or remedy a breach, under paragraph 5(b) and 5(c) respectively. We believe that that is a positive step, and would encourage understanding rather than retribution.

I expect that there may be concern that the commission will be seen as a light touch without the penalty regime. However, the amendments would leave in place the power to fine when an offence had been committed under the 2000 Act. Thus, in serious cases there would be no need to use the part 2 "discretionary requirements" provision unless it would be useful to do so. Furthermore-and this is a point that I would like to emphasise-if a non-penalty "discretionary requirement" is not satisfied, paragraph 9 would allows the commission to then impose a monetary penalty as a final resort. By leaving it as a final resort in non-offence and less serious cases, it would encourage the commission to help remedy the breach rather than issue a draconian penalty.

The purpose of amendment 77 is the introduction of a time limit into the Bill. It relates to the period in which an individual can respond to the relevant civil sanction imposed on them by the commission. We contend that the provisions in place could be too vague. Clarity is preferred, especially when potentially innocent subjects are seeking to respond to the commission. The simple addition of specific predefined time limits into the schedule could tackle that problem. Amendment 77 would apply a 28-day limit to the making of representations and objections against a discretionary requirement to the commission. I would point out that part 2 of the schedule provides that in relation to a discretionary requirement the period for representations or objections

"may not be less than 28 days".

Does the Minister not agree that that inconsistency is revealing? Surely that shows that 28 days, as a minimum, should be a fair amount of time.

Amendment 75 would insert the word "promptly" into paragraph 6(5) in part 2 of schedule 2, which relates to the notice of a discretionary requirement. The Minister dismissed the use of the word "immediately" in Committee, which is why we are now back with a slightly less prescriptive term. The amendment would require the Electoral Commission to notify the subject of its final decision to impose a discretionary requirement or fixed monetary penalty promptly because, as things stand, there is no time limit for serving the notice.

Discretionary requirements, of course, are intended to provide the commission with a flexible means of ensuring compliance with the provisions of the 2000 Act. That flexibility is reflected in paragraph 5 in part 2, which states that a discretionary requirement can be

"a requirement to take such steps as the Commission may specify".

That flexibility is welcome, but there should be a compensating certainty, particularly in the delivery of the notice informing the subject of the requirement.

If prompt compliance is expected of the person, the commission should be an example of good practice in terms of its own expediency. There is no time limit in the Bill for the service of either notice. As such, it is possible that the commission might delay in delivering the notice and delay on the part of the commission is also likely to be reciprocated by the person. Good practice should be a statutory requirement and we believe that the simple insertion of the word "promptly" will help achieve that goal.

Government amendment 23 follows up on a number of amendments tabled in Committee by me and the hon. Member for Carmarthen, West and South Pembrokeshire (Nick Ainger) and relates to the requirement for the commission to publish guidance. In Committee on 13 November, concern was expressed about the frequency and timing of guidance published by the commission on the use of its powers. Questions were also posed regarding the content of any guidance. Our Committee amendments 61 and 62 and the Liberal Democrats' Committee amendment 136 sought to address deficiencies in that respect.

The consensus stemming from the debate was that annual guidance should be published and that it should be required to contain certain prescribed information, particularly on the use of investigatory powers. I am pleased to see that the Minister has taken those suggestions on board and we welcome Government amendment 23. It obliges the commission to publish annual information on the use of commission powers. It achieves that by attaching that requirement to the pre-existing annual financial reporting requirement contained in paragraph 20 of schedule 1 to the 2000 Act. The annual financial report will now include information in line with the newly introduced schedule 2 requirements. That seems to us a suitable way of going about that. We are pleased that the Government have included that positive amendment and we hope that the annual reporting requirement will reassure people that the commission is using its powers reasonably.

Government amendment 28 relates to a report published by the commission in accordance with paragraph 27 of the schedule. It stipulates that any report may, pursuant to the paragraph, omit certain information if, in the opinion of the commission, the publication of the information would or might be unlawful or if it might adversely affect any proceedings or investigation. In essence, it qualifies the obligation introduced by the welcome Government amendment 23.

Although we agree that some flexibility is acceptable in terms of reporting requirements, the measure could go slightly too far, we believe. There is no requirement that the commission's opinion of the lawfulness or any adverse affects of publishing certain information should be reasonable. We feel that an opinion to that end should be reasonable, and our amendment (a) to Government amendment 28 addresses the deficiency. It would ensure that the commission does not become overly defensive with regard to the information that it holds. As things stand, the commission could have a very subjective and defensive set of opinions, which could prevent full and frank disclosure in its report. That would dampen considerably the positive potential of the reporting requirement.

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We also have a slight reservation about the wording of sub-paragraph (b) in Government amendment 28. The effect of sub-paragraph (b) would be that information could validly be omitted from a report if its publication

"might adversely affect any current investigation or proceedings."

That goes further than the current wording of the Bill and, again, it could lead to over-cautiousness on the part of the commission. Our second amendment to Government amendment 28-amendment (b)-changes the wording from "might" to "would". That would refocus the commission when it decided on whether the publication of information really would damage its investigation. In combination with the mere subjective opinion requirement that I have identified, schedule 2 would, if not amended, allow for a very cautious report that might not be fully informative, and that would not fully reflect the reality of the commission's work. I would appreciate the Minister's further thoughts on those points.

Finally, amendment 83 inserts a threshold test after paragraph 27(2) of schedule 2. The amendment aims to ensure that the commission excludes details of less serious offences in the reports that it is obliged to publish under paragraph 27(1). The measure would serve three purposes. First, it would excuse from further censure those who have fallen foul of the legislation to a minor extent. The threshold ensures that only the more serious offenders are named and shamed. Secondly, the removal of minor offences from the reports would mean a more intense focus on the major offenders. The threshold of £5,000-the amount is negotiable, as far as we are concerned-catches the most serious cases and ensures that they are rightly named and shamed. Thirdly, the measure would act as an additional deterrent to the commission of offences and infringements. Again, I would be interested to hear the Minister's thoughts on those proposals.

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LATER INTERVENTIONS IN THE SAME DEBATE

Mr. Djanogly: Surely the hon. Gentleman appreciates that the provisions go much further than MPs. Great concern was expressed on both sides in Committee that honourable people who give up their time on a voluntary basis for our associations, for instance, would be unfairly caught by the provisions.

David Howarth: I appreciate that point, but we must be careful not to make special rules for politics just because we know about politics and we do not know about other areas of activity in the economy and in social life.

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Mr. Djanogly: In making all those points, the hon. Gentleman runs the risk of putting the monitoring of our electoral system in the same basket as dealing with parking tickets. There is a difference between the two, and that point applies to everything that he has just said-not least, to his last point.

David Howarth: The 2008 Act deals with a whole range of topics, some of them very serious. The hon. Gentleman has to show why the special characteristics of politics, party funding and all the matters with which we are dealing should lead to the specific special treatment that he wants. I am afraid that he has not done that.

Mr. Djanogly: I would say that most people would put the running of our electoral system in a different category from that of the monitoring of commercial affairs.

David Howarth: It is in a different category, but the question is about why that different category should be treated in the specifically different ways that he is talking about. My fear is that it is simply because we in the House know more about the political process-we know far more about it than about economic and commercial processes-that we think that we ought to provide differently for it. I am afraid that I do not think that that is good enough.

Mr. Djanogly: I put it to the hon. Gentleman that the reason is that we are here to guard our democratic system.

David Howarth: Precisely right. But I want the hon. Gentleman to demonstrate that the provisions that he puts forward-in amendment 74, for example-specifically help to guard the democratic process. My central worry is that this is not do with thinking about the function and the importance of politics but has more to do with our self-regard and our specific knowledge. That is insufficient reason to treat better an activity that we know more about than other sorts of activity that we regulate every day.

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Mr. Djanogly: The Minister almost assumes that the commission will act proportionately. That may be the case with the existing commission, but we are legislating for the long term, and many amendments that Opposition Members and the hon. Member for Leeds, North-East (Mr. Hamilton) tabled, and many comments from other hon. Members, reflect concerns that the commission may not always exercise proportionality. Will the Minister deal with our anxieties?

Mr. Wills: Of course, the hon. Gentleman is right; it goes without saying that we are not legislating for the current commission but for all commissions for the foreseeable future. As he knows, we have already tackled many of his concerns. I will address each amendment in turn, and I hope that when he considers how I have done so, he will realise that we are conscious of the need to legislate for the future-and we believe that we are doing exactly that. I hope that I have reassured my hon. Friend the Member for Leeds, North-East sufficiently for him to feel able to ask leave to withdraw the clause.

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Mr. Djanogly: The Minister said that we were talking about distinguishing the commission's activities from other aspects of public life, but the legislation to which the hon. Member for Leeds, North-East (Mr. Hamilton) referred probably deals mainly with commercial life.

Mr. Wills: I was including commercial life in the phrase "public life"-or, if I can be precise, "matters that affect the general public". I hope that that reassures the hon. Gentleman. Anyway, I hope that I have said enough to persuade my hon. Friend the Member for Leeds, North-East not to press his new clause 4.

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Mr. Djanogly: I would appreciate it if the Minister addressed the concerns that many people have expressed about the possibility of imposing a large penalty for a minor civil offence.

Mr. Wills: I can only refer the hon. Gentleman again to what the Electoral Commission has said. It has made it absolutely clear that it will approach each case on its merits and proportionately. The dictionary definitions in respect of what he has just described are that it is not proportionate. We have to accept what the Electoral Commission says and be extremely careful about binding its hands. I refer him back to what I have just said: what he is suggesting in amendments 59 to 62 may have the perverse consequence of producing the opposite result to that which he is seeking.

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Mr. Djanogly: Will the Minister give the House one example of when an early payment discount would be likely to apply? These powers are not likely to be used frequently, and as he has said, in many people's minds, such practices are more relevant to parking tickets than to electoral offences.

Mr. Wills: Just to correct the hon. Gentleman, let me say that that was not my analogy. I was quoting him, and I am not sure that I share his view. The point is that it will be for the commission to determine the circumstances, and we have to allow it flexibility as a regulator.

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Mr. Djanogly: First, the Minister will appreciate that House procedures meant that I had to suggest that we would vote on the matter rather than wait until a later date. More particularly, does he not appreciate that the average county court judge is not very used to dealing with the legality of electoral matters? That is why they should go to the High Court.

Mr. Wills: I stand corrected on the procedures for voting and I am happy to accept the hon. Gentleman's point about that. As to the county court, appeals on electoral law cases are currently heard there, and we believe that that is appropriate. More expertise exists in the county court than currently in the High Court and the point remains about the burden that the amendment would place on High Court resources. The hon. Gentleman's proposal is unnecessary because we do not believe that, because the appeal would go to the High Court rather than a county court, the Electoral Commission would adapt its approach. It should not do so, and I do not think that it will do so. If we are to provide for an appeal to go to the High Court, I am afraid that we require a more convincing case for such a change, which would break with existing precedent and indeed with the precedent of the Regulatory Enforcement and Sanctions Act 2008.

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Mr. Djanogly: There is no precedent, because we are setting up a new system.

Mr. Wills: With all respect to the hon. Gentleman, there is a precedent in respect of electoral law and there is certainly a break with the precedent established by the Regulatory Enforcement and Sanctions Act 2008. Of course what is proposed is not identical, because as the hon. Gentleman says, we are dealing with new law, but in so far as there are precedents, the amendment would constitute a break with them. I hope that I have convinced the hon. Gentleman not to press amendment 74 to the vote and to withdraw it.

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Mr. Djanogly: Is the Minister asserting that any fine, no matter how small-very small fines could be imposed for short periods of late fining-should go into the annual report?

Mr. Wills: As I have already said, transparency is absolutely crucial and our approach mirrors the position with criminal prosecutions where a person has been convicted of an offence. That fact is normally known. I remind the hon. Gentleman that an imposition of a civil penalty in this case might, after all, be an alternative to criminal prosecution.

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Mr. Djanogly: I put it to the Minister that if a company files its report and accounts late it will now be fined. So far as I know, however, such companies do not get listed in an annual report. Why should association officers be treated differently?

Mr. Wills: The hon. Gentleman has already answered his own question in his responses to the hon. Member for Cambridge (David Howarth). He said-I hope I am paraphrasing him correctly, but forgive me if I am not-that most people would agree that regulating the democratic process is different from regulating, for example, commercial life. If that is the case, it is an important principle of transparency-as I have said, it is anyway a fundamental principle that when penalties are imposed they should be made public-that the fact that people have gone through the process, which contains a lot of safeguards as I have just described, and been fined for an offence should be known and made available to the public, whom we serve.

Mr. Djanogly: May I suggest that it is the Minister who has turned the argument on its head? He was arguing that everyone should be treated equally. Now he is saying that they should be treated differently. The more I hear of this, the more I think it is something that we shall have to return to.

Mr. Wills: No. I am afraid that the hon. Gentleman is paraphrasing me incorrectly. If he had listened carefully to what I said, he would know that I said that we should follow the framework set down by the 2008 Act, unless there is a compelling reason not to do so. I have been extremely careful to say that on every occasion that I have made that statement. I hope that that clarifies his confusion.

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Mr. Djanogly: If it makes the Minister happy, I shall say that as well.

Mr. Wills: That has cheered me up immensely, and I am grateful to the hon. Gentleman. I shall give him some further comfort, but he will have to wait a bit for it, because I wish to deal first with the two sets of Government amendments. As hon. Members have said, they significantly overhaul the commission's powers of entry in schedule 1, and I believe they will be universally welcomed by the House.

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Mr. Djanogly: We welcome the Government's significant shift on many of the provisions to a position that we basically support. I appreciate the Minister's agreement this evening to review the role of the High Court.

However, there remain issues that we will want to look at in detail when the Bill goes to the other place. The Minister has just addressed the main one; we are pleased that he now sees that there is a case for offering protections to non-serving association officers, who normally will have served on a voluntary basis. We had great concerns that ongoing liability would be unfair to such people. Having heard the Minister's explanation, and his promise to table an amendment in the other place, I will not press amendment 47 to a Division. I beg to ask leave to withdraw the amendment.



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