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Political Parties and Elections Bill

In moving Amendment 97, which proposes a new clause after Clause 9, I shall speak also to Amendments 136 to 138. They would re-formulate some of the offences in the Political Parties, Elections and Referendums Act 2000 so that they allow adequate account to be taken of the reason for the breach of the Act at the time that an assessment is made about whether an offence has been committed. Debates in another place indicated the widespread concern that, although it is right and proper that the requirements of the 2000 Act are observed and enforced, it may not be right and proper for every breach of those requirements to be pursued, particularly where there might be a very good reason for that breach. It is helpful in this context to note that the Electoral Commission’s proposed approach to the use of its new investigatory powers and civil sanctions, published in January 2009, suggests that the commission considers the public interest as a material factor in determining whether to proceed with a particular case. Notwithstanding this helpful confirmation of approach, some of the reporting requirements in the 2000 Act are formulated without any prior consideration being given to why non-compliance occurred; that is, the late submission of a donation report is in itself an offence. Consideration of why non-compliance happened is left to a separate defence which can subsequently be demonstrated by that showing, ""all reasonable steps and … all due diligence"," have been exercised. That is a high test, requiring a person to show that "all" reasonable steps and due diligence have taken place. Further, this particular defence might be unnecessarily narrow. It suggests that at least some steps have been taken or considered which do not deal with a case where a person for a good reason mistakenly concludes that no report needed to be delivered. For these reasons, we were persuaded by the debates in another place that the existing position included an unhelpful formulation that could result in some inadvertent breaches being pursued without there being a proper examination of why the breaches occurred. These amendments provide that offences of late and incomplete reporting of donations and loans—by parties, regular donees or treasurers—are only committed if the breach is "without reasonable excuse". In parallel, they remove the defence of taking, ""all reasonable steps and … all due diligence"," as it is no longer necessary. Because each case is different, it is impossible to be prescriptive about what will and will not be a viewed as a "reasonable excuse". A reasoned judgment will of course have to be made on the facts of each case and the relevant circumstances. However, I can say that "reasonable" imports an element of objectivity here: not just any old excuse will do. This approach ensures that there is flexibility to take account of any reason given for non-compliance without meaning that all a person has to do to avoid liability is to make up an excuse that sounds vaguely plausible. I stress, for the avoidance of doubt, that the effect and intention of these amendments is not to absolve regulated persons of guilt for all unintended errors. It might well be that a really bad breach of the requirements of the Act, even if not deliberate, does not have a reasonable excuse and as such still constitutes an offence. While we are sympathetic to concerns about the commission pursuing those who did not intend to breach the Act, we are equally clear that the public interest demands a stringent and well enforced regulatory regime. Any more blanket excuse that would allow unintended errors to go unpunished would risk incentivising ignorance of the law, which would over time prove highly corrosive to public confidence in our political system. We do not wish to create a situation in which a person who serially forgets to comply is absolved of any possible punishment simply because there was no intent to deceive, but we do think that a person who fails to comply should have a chance to show that there was an objectively good reason for doing so. I am pleased that the commission has welcomed this approach. In its latest briefing on this Bill, the commission states: ""The Commission believes the proposed new defences are more proportionate, providing greater protection to those we regulate and more certainty to the Commission"." Our amendments strike the right balance between the twin aims of helping to ensure that inadvertent errors with good reason are not punished and ensuring that the regulatory system is not undermined by absolving of the consequences of their actions all those who did not intend to commit a breach. I beg to move.