Political Parties and Elections Bill

A number of opposition amendments have been tabled which seek to alter some of the detail contained in new Schedule 19C to the 2000 Act. Quite a few of these amendments concern fixed monetary penalties, which will be available to the Electoral Commission as part of a new range of flexible civil sanctions. We believe that this will be a vital component of our proposals to make the Electoral Commission a more effective regulator of political party finance. I will say a few words on the purpose of fixed monetary penalties and why they are included in the Bill. They were included in the Regulatory Enforcement and Sanctions Act 2008, of which some of us have happy memories, for the purpose of addressing relatively low-level instances of non-compliance. We believe that fixed monetary penalties are an appropriate tool for the Electoral Commission as they will allow smaller infringements, perhaps for a report which is late by a few days, to be dealt with without the need for a full criminal prosecution. Fixed monetary penalties, as part of the range of new civil sanctions, will allow for a more proportionate approach to enforcement which will be less likely to expose minor errors to the full glare of prosecution and will in turn reduce administrative burdens associated with the enforcement of PPERA. That is not to say that a fixed monetary penalty may be imposed lightly. It is important to stress that Schedule 19C contains a number of key procedural safeguards, as set out in that piece of legislation. As the noble Lord, Lord Neill, pointed out during Second Reading, the evidential standard for imposing a civil sanction remains at the criminal standard of "beyond reasonable doubt". The Electoral Commission will therefore need to be thorough in its investigations and will not be able to apply this penalty as if it were a parking ticket. Apart from a criminal evidential standard, this sanction, as with the other sanctions provided for by Schedule 19C, contains other important procedural safeguards, including the following. First, there is a requirement for the commission to state the grounds for the proposal to impose the sanction in an initial notice of intent so that it may be disputed before the imposition of the final penalty. Secondly, there is an opportunity to make representations and objections in response to the initial notice, which must be taken into account by the commission before it decides whether or not to go on and impose the penalty. Thirdly, as I said in answer to previous amendments, there is a right to appeal to a county court—or to the sheriff in Scotland—against a final decision of the commission to impose a fixed monetary penalty. Where the commission proposes to impose such a penalty in respect of an offence triable summarily or triable either way, that penalty must not exceed the maximum that would be available to a court if the same offence were pursued as a criminal matter. That maximum is currently level 5 on the standard scale, or £5,000. On a related note, as we discussed earlier, following a recommendation by the House of Lords Delegated Powers and Regulatory Reform Committee, we brought forward Amendment 26 to provide that an order prescribing the amount of a fixed monetary penalty must be subject to the affirmative resolution procedure. One of the fundamental tenets of the of the Macrory review, as expressed in the RES Act, was that effective and proportionate regulation should see criminal prosecution reserved for the most serious cases. That was also the recommendation of the Committee on Standards in Public Life. We believe that, as part of a range of new civil sanctions, fixed monetary penalties will help to provide not only for a more proportionate system but also for a more effective one. I move on to the amendments. Amendments 40, 41 and 42 all relate to the timescales for periods of discharging liability. These amendments were tabled during the Bill’s Committee stage in another place. Amendment 40 seeks to alter the definition of a fixed monetary penalty set out at Schedule 19C by incorporating a requirement that such a penalty must be paid within 28 days of receipt. It is worth noting that the Bill differentiates between a notice of the commission’s intent to impose the sanction in the first instance and the subsequent imposition of the final fixed monetary penalty itself. The effect of Amendment 40 would be that a fixed monetary penalty would always have to be paid within 28 days. Currently, the Bill states, at paragraph 2(1), that the period given in any notice inviting a person or body to discharge liability or to make objections in terms in response to the initial notice regarding a proposal to impose a fixed monetary penalty must be 28 days. However, the Bill does not set out this time limit for the final fixed monetary penalty notice, although paragraph 3(3) requires the commission to include a defined timescale for making payments in that notice. Therefore, the 28 days does not necessarily apply to the fixed monetary penalty notice but only to the first part of the process—that is, the initial notice. We have not set out a timescale for compliance for the final notice because, again, as I think I have already argued this afternoon, we feel that the commission will need the flexibility to ensure that this sanction can be applied appropriately, using its knowledge and experience to determine in which circumstances it might be appropriate to have a shorter or longer timescale payment. It is also in line with the approach taken by the RES Act, and we are not minded to depart from that unless there are very strong arguments in favour of doing so. The additional constraint introduced by Amendment 40 is unnecessary, given the requirement in public law that the commission acts in a "reasonable" manner in the exercise of its powers, including those allowing it to impose civil sanctions. If a demand from the commission allows an unreasonable period of time, that may provide a ground for appeal. I could go on and deal with each of the amendments in turn but I do not think that the Committee would want me to—I think that I have support for that proposition. I take very much into consideration the fact that the noble Lord, Lord Bates, says that these amendments, many though they may be, are probing, so that he can get more than an impression of what we are saying here. Perhaps I may quote from the commission’s draft enforcement guidance. Paragraph 3(4) states that, ""it is important to conclude investigations as quickly as possible, in the public interest and in the interests of natural justice for those involved and will balance [this] with our first priority to conduct a fair and thorough investigation"." We must be wary that any attempt to be more prescriptive over the commission’s procedures, however well intentioned that may be, does not produce unintended and unwanted consequences. This group contains a lot of amendments, and I do not think that there is anything else that I need to say. I hope that I have given enough information about how we see the Bill giving enough flexibility to the Electoral Commission to do its job better, while at the same time preserving the interests of either political parties or individuals who come under its gaze.