I thank all noble Lords who have contributed to this brief debate and I welcome the noble Lord, Lord Khan, as another member of the team on the Front Bench opposite for this Bill. I look forward to working with him as I do with other noble Lords opposite.
The purpose of Clause 17, which the noble Lord opposes, is not to change anything but to maintain the existing role of the Crown Prosecution Service and Public Prosecution Service in Northern Ireland in bringing prosecutions under electoral law by clarifying the extent of the Electoral Commission’s existing powers.
I remind noble Lords that, when PPERA was passed—and it was an important reforming Bill by a Labour Government that established the commission—Labour Ministers then were absolutely explicit that the Electoral Commission should not have prosecution powers. The noble Lord, Lord Bach—a fine noble Lord—said at the time that the Neill committee, which was the independent committee that had looked into this,
“made clear its view that prosecutions in respect of breaches of the law relating to controls on donations and election expenses should be placed in the hands of the Director of Public Prosecutions and should not be the concern of the commission … the commission does not have that power … the commission will be an enforcement authority but not a prosecuting authority.”—[Official Report, 20/11/2000; col. 631.]
That was what the noble Lord said then, and I agree with him now.
The Explanatory Notes for PPERA clearly state that the Electoral Commission shall have
“a duty to monitor compliance (but not to mount criminal prosecutions).”
That was the basis on which the commission was set up, and all parties at that time assented to that proposition, including the Liberal Democrats.
What has actually changed? The Electoral Commission publicly stated in its Interim Corporate Plan 2020-21 – 2024-25 its intention to develop a prosecutorial capability that would allow it to investigate and bring suspected offences directly before the courts. That was in the aftermath of what some might consider the debacle of the pursuit by the commission of some citizens, which was summed up in by a headline in the Guardian on 14 September 2018:
“Elections watchdog got law wrong on Brexit donations, court rules”.
While the commission considers that current legislation provides scope for it to develop this function, that has never been explicitly agreed by any Government or Parliament. Indeed, as I just suggested to noble Lords, absolutely the reverse was the intention of Parliament when the Labour Government introduced this legislation. It is therefore important to clarify, in the light of the Electoral Commission’s statement, the relevant legislation to make it clear that the commission should not bring criminal proceedings and to put the matter beyond doubt. By doing so, we will avoid the risk of wasting public money as well as the risk of duplicating the work of the prosecution authorities who are already experts in this domain—I agree with the noble Lord opposite that that is where the resources should go.
The clause that the Government propose would add to the Political Parties, Elections and Referendums Act 2000 to make clear the original attention of Parliament that the commission should not bring criminal prosecutions in England, Wales and Northern Ireland. This would not apply in Scotland where there is already a single prosecutorial authority.
The clause will not amend any of the commission’s other existing powers. The commission will continue to have a wide range of investigatory and civil sanctioning powers available to it, and it will remain able to refer criminal matters to the police, as is currently the case. We must not forget that, as the noble Lord, Lord Stunell, himself reminded us, the commission has never brought a criminal prosecution to date, although it may be talking of wanting to develop that role. Clause 17 merely retains that status quo in practice, so our measure will not add a burden to the prosecution authorities or lead to fewer prosecutions.
The proper place for criminal investigations and prosecutions lies with the experts in this domain—namely, the police and prosecution authorities. That is in line with the Regulating Election Finance report by the Committee on Standards in Public Life, which found that there was no evidence or support for allowing the regulator to develop a prosecutorial ability in order to increase the number of prosecutions. The proper place for criminal investigation and prosecution is with the police and the Crown Prosecution Service, and the Public Prosecution Service in Northern Ireland. These are the experts. Having the commission step into this space is unnecessary.
I draw the Committee’s attention to the Crown Prosecution Service’s evidence to the Committee on Standards in Public Life in July 2021, when it stated that
“the CPS deals with criminal offences under the RPA and criminal charges under PPERA, while the Electoral Commission has civil powers to deal with PPERA cases. We assess this is an appropriate division. There are important prosecutorial functions that the CPS has vast experience of, and expertise in, including police PACE processes, adherence to CPIA legislation and to disclosure rules … In our view”—
this is the CPS, not the Government—
“a criminal-civil divide provides a good level of precision … Any unintentional blurring of the lines would be counter-productive.”
I think that is advice from prosecutorial authorities who know what they are doing.
We are committed instead to supporting the police as necessary to enforce electoral regulation proactively and effectively. For that reason, I urge the Committee to resist this opposition to the clause. If your Lordships were to follow it, it might encourage the Electoral Commission to develop this function. I think the existing practice should be maintained, and therefore I urge that Clause 17 should stand part of the Bill.