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Political Parties and Elections Bill

The amendments deal with the investigatory powers of the Electoral Commission. Let me provide some of the background. The commission was created by the Political Parties, Elections and Referendums Act 2000, which gave it supervisory powers. Its functions are set out in section 145, which stipulates that its role is as a regulator, with attendant responsibility to monitor parts 3 and 4 of the Act. Those parts relate to"““accounting requirements for registered parties and their members””" and the"““control of donations to registered parties and their members””" respectively. In carrying out its role, the commission is empowered by section l46 of the Act to request information from any of a group of subjects, including political parties and candidates at an election. Additionally, a person authorised by the commission may enter the premises of a registered party, a recognised third party or a permitted participant to inspect financial records. We should therefore appreciate that potent powers are already available to the Commission, as the Minister confirmed in Committee. We support the existence of effective powers and will not revisit the PPERA powers here, but it is important for political activity not to be discouraged for fear of a heavy-handed, over-zealous and excessively empowered Electoral Commission. Furthermore, as the Minister acknowledged in Committee, the extensive powers that already exist have been used very rarely. Indeed, on Second Reading the Secretary of State for Justice confirmed that"““the existing powers have been used only once since the Electoral Commission was established nearly eight years ago.””—[Official Report, 20 October 2008; Vol. 481, c.50.]" Above all, let us not forget that the Bill and the Electoral Commission's powers have a common aim: restoration of confidence in the political system through the eradication of unfair and underhand practices. It is against that backdrop that we cautiously welcome the Government amendments, which, in our view, represent a significant improvement on the Bill presented in Committee. In particular, the provisions that empowered the Commission to enter the premises of donees—including MPs—for the purpose of monitoring has been withdrawn, while the ability to apply for a search warrant for the purpose of investigating a suspected offence or legislative breach has been entirely removed. Nevertheless, a number of reservations remain, and there is more work to be done before we can be fully satisfied. Schedule 1 contains the provisions of a new schedule 19A to the 2000 Act, which is inserted in the Act by clause 2(2). In respect of schedule 1, I reiterate our conceptual support for an enhanced role for the commission as a regulator, but that support is not unqualified, and attention is now required as we address the detail. Amendments 46 and 47 are intended to inject clarity. In the light of the commission's wide-ranging powers, it is sensible to define the limits of the relevant provisions carefully. The amendments are linked, and introduce a specified time limit for the period in which a retired officer is subject to the disclosure notice provisions. We are keen to avoid a scenario in which long-retired ex-officers of political associations are subject to disclosure notices in relation to some long-forgotten donation or action: it is both unreasonable and impractical to extend this power to very historical actions. From a more practical perspective, the likelihood of comprehensive records or documents being kept by an officer for more than five years after his tenure is small and the power would be difficult to enforce, especially in view of the limited physical space in which party officials often find themselves working. We must also be aware of the financial and administrative burdens that we place on such individuals and organisations, as well as the fact that many of the individuals concerned will have left such offices altogether and may even have left the country. What concerned the Minister in Committee was that, given the wording of the amendment that we proposed then, long-standing officers of more than five years' standing could be excluded even if they were still serving. That was clearly not our intention. We have taken this opportunity to hone the earlier amendment, proposing amendments 46 and 47 to address its deficiencies. They address the point made by the Minister by removing the ability to serve a notice on an ex-officer who has been retired from the post for five years or more, while not limiting the ability to serve a notice on any current officer. An additional benefit would be the encouragement of expedient and efficient issuing of notices by the Electoral Commission. If the commission does not find grounds for investigation within five years of an officer's retiring from a post, it is normally the fault of the commission rather than the individual or group. Let me repeat that we are dealing with unpaid volunteers in our associations who involve themselves in politics because they want to give their time freely for what they hope will be the better of our society. We must, as far as possible, encourage them in that, and not put them off by unnecessary and burdensome liabilities. To that end, I intend to press amendment 47 to a Division. The background to Government amendments 11 to 22 is contentious. Great concern has been expressed throughout the passage of the Bill about the excessiveness of the new ““powers of entry”” regime. Prior to the amendments, the Bill would have extended the Electoral Commission's existing powers of entry under section 146 of the Political Parties and Electoral Reform Act to include other bodies and individuals such as donors and MPs. Quite simply, hard-fought personal liberties—specifically privacy—were at stake. Moreover, we were greatly concerned about potential erosion of the willingness of law-abiding citizens to donate to political parties and engage with the political system. A single abuse of the entry powers—perhaps the entering of a suspected but innocent person's home—could have had grave consequences for donations generally, thus damaging the general aims of the Bill. The Government amendments remove from the Bill the commission's excessive power to enter the premises of regulated donees, regulated participants, candidates at an election and election agents. However, they replace the removed passage with a new paragraph 1A which retains the commission's ability to enter the premises of a registered party, a recognised third party, a permitted participant, a members' association, or an organisation or individual formerly falling within any of those groups. The Bill will still permit the commission to enter premises other than those excluded by Government amendment 11 for the purpose of carrying out its functions, and it may then inspect documents relating to income and expenditure. Government amendments 12, 18 and 21 are consequential, and ensure that the remaining provisions of the schedule are consistent with the change. On 11 November last year, in Committee, the hon. Member for Cambridge (David Howarth) expressed concern lest the wholesale removal of entry powers in relation to all donees, as proposed by what was then our amendment 102, would go too far and actually reduce the existing powers of the commission. In particular, the removal of ““donees”” from the paragraph would remove members' associations—along with MPs—from the ambit of the provision. Government amendment 11 addresses that concern by including members' associations in new paragraph 1A(l)(d). The commission itself has also confirmed that the power conferred in Committee was not essential for its purposes. We are now close to a position that is acceptable to all in terms of entry powers. Accordingly, we welcome this significant Government climbdown and the reduction in the commission's power, and we are pleased that the ability to invade the privacy of MPs and other individuals will be removed. Even with these amendments, the commission will still possess significant powers to ensure it is equipped to tackle offences and infringements of the 2000 Act. Indeed, the drafting essentially preserves the status quo under the Act while removing the contentious provisions. To that extent, these amendments represent a significant retreat from the menacing position proposed in the Bill presented in Committee and return a much-needed balance to the schedule. As amended by Government amendment 11, schedule 1 would make reference to those people ““authorised by the Commission””. Such people are very important, and almost all the powers granted to the commission are available to these individuals. Unfortunately, there is no reference in the Bill to what constitutes a person ““authorised by the Commission””. Considering the great powers placed in their hands, we consider that it would be better if they were a defined group of persons. Amendment 52 proposes a solution, and defines"““a person authorised by the Commission””," and who may be authorised by the commission to exercise its powers under the schedule. Who such a person can be has been intentionally restricted to high-level employees of the commission. In Committee on 11 November, the Minister expressed concern that this would be too ““restrictive and inflexible””. However, the Minister went on to address this concern by confirming:"““The commission has no intention of using this power lightly””.––[Official Report, Political Parties and Elections Public Bill Committee, 11 November 2008; c. 175.]" Reconciling these two statements, I ask this question: is it not sensible that a power that will be rarely used, and employed only to tackle serious cases, is exercised only by the more senior members of the commission? It seems entirely reasonable to expect the commission to send a senior individual, ensuring that both the commission and the subject of the search take the process seriously. As things stand, the commission could theoretically send the cleaner along. Any lack of flexibility caused by this amendment reflects the need to exercise caution when exercising commission powers. Government amendment 13 represents another progressive development in an area that was hotly disputed in Committee. First and foremost, it removes the power of entry by warrant introduced by paragraph 3 of schedule 1. This is significant, and shows the progress we have made in departing from the draconian provisions of the original Bill. Without this amendment, the Bill would permit entry, by force, on to the premises of MPs and other individuals. Given recent events, I hardly need to remind hon. Members how contentious that power was; it was excessive and had the potential to be used disproportionately. In addition, the amendment replaces the entry by warrant provision with a more acceptable measure: the ability for the commission to apply for a court order that documents be released. The commission may apply for a court order when it has exhausted the request by notice procedure in paragraph 2(2). We support this measure, and believe that it is a helpful last resort when the commission is confronted with a reluctant subject of a proper investigation. The hurdles in place before an order can be made also seem adequate, and the commission must show that there are ““reasonable grounds”” to suspect that a person has committed an offence under the 2000 Act. Government amendments 14, 15, 17, 19, 20 and 22 are consequential amendments ensuring that the Bill is internally consistent in the wake of the changes. Despite our general support for the removal of the warrant system and the introduction of court orders, we have two concerns and have tabled amendments to Government amendment 13 accordingly. The first of our amendments has been introduced because we believe that the High Court is a more suitable venue for hearing an application than the county court. A higher judicial threshold places a greater obligation on the commission to ensure that the reasoning behind its application is legally sound. A judge in the High Court would subject any arguments to more thorough scrutiny than could be expected from the county court. It is important that a strong check is placed on the issuing of disclosure orders, ensuring that any such order is proportionate and justified. We remain hopeful that the use of orders will be infrequent, and that this higher threshold will therefore not place any excessive burden on the commission or the High Court. Nevertheless, when such an order is required, the superior scrutiny of the High Court will be beneficial. Our second amendment to Government amendment 13 addresses our concern that no specific time limit is given for compliance with an order once it is served. The Government amendment simply states that an order will require delivery of the documents"““within such time as is specified in the order””." As we have argued in relation to other provisions in the Bill, we recommend that a minimum 28-day limit should be placed on all compliance requirements in schedule 1. There should be a sufficient and clear period during which those served with a disclosure notice can locate the documents and information specified under the notice, and provide it to the commission. Effort should be made to ensure that individuals do not fall victim to the Bill's penalty regime because of unforeseen delays and an uncertain deadline. With a 28-day limit in place, subjects will know how long they have to comply, and can work to the deadline without fearing that the commission might place them under an unrealistic deadline. Amendments 2, 3 and 9, tabled by the hon. Member for Leeds, North-East (Mr. Hamilton), deal with the commission's power under the Bill to enter and search premises by warrant. The amendments are an alternative to amendments tabled by the Government, which remove the powers of entry and search by warrant, and I believe they have effectively been superseded. Amendment 57 would provide that subjects for search are provided with a copy of the authorisation for the search. It is important that individuals or groups who are subject to this power of the commission have the full details of the search. A copy of the authorisation is important for them to decide whether they wish to access avenues of appeal and redress. The amendment fortifies vital safeguards, and helps to prevent the abuse of powers by the commission. Providing copies of the authorisation documentation ensures that the propriety of the search is asserted, and that the subject can confirm the details of the search. Further, leaving a copy allows for cool and considered review of the warrant away from the heat of the moment, and it prevents a simple flash of paper when the recipient is in shock from the entry process. In the heat of the moment, it is possible that the shock of the entrance could counteract any explanation of the search, however thorough and clear the commission believes it to be. Further still, there is no guarantee that a relevant person will be at the premises when it is searched. For example, the cleaner or an office junior might be the only person present, and as such not be qualified to fully comprehend the explanation, let alone communicate it to someone more senior. In Committee on 13 November, the Minister considered this issue and promised to return to it on Report if necessary, so I would be pleased if he were now to give us his views on it.