HL Deb 20 November 2000 vol 619 cc630-40

(" . The Commission shall not themselves institute criminal proceedings against any person in any court in the United Kingdom.").

The noble Viscount said: My Lords, in moving Amendment No. 47, I shall speak also to Amendment No. 48. I shall be reasonably brief. They are probing amendments which seek to clarify the position in regard to investigations and prosecutions. I do not think that the position is at all clear a) the moment.

These issues were raised in Committee. In responding to the points made, the noble Lord, Lord Bach, said: So far as concerns the electoral commission, where a party member complains about possible fraud, either in his or in another party, I imagine that the electoral commission will investigate. It may, as may anyone, bring in the police if it feels that it needs to do so. If it does, then in the normal way the question of whether or not a prosecution takes place will, in the last resort, depend on the Director of Public Prosecutions". The noble Lord then went on to say that, powers exist under the Bill to prosecute and the electoral commission will be in a position to do so. The position often changes when the police are brought into matters of this kind".— [Official Report, 12/10/00; col. 528.].

Those are interesting words. We need clarification on two issues. The noble Lord used words such as "I imagine" and "may", which was perfectly reasonable in Committee. However, I hope that he will be able to go further today. The noble Lord, Lord Bach, said that the police would be involved if the commission felt the need to involve them. Does that mean that the commission could itself investigate criminal offences created by the Bill, such as those of evading restrictions on donations or giving false expenditure reports? Who would prepare a file for the Director of Public Prosecutions? Would it be the commission or would the matter be handed over to the police and it then become the responsibility of the police? Where would the line be drawn?

Of particular importance, would there be circumstances in which the commission itself would be in a position to prosecute? The Minister's words in Committee gave me that impression and I should like to know whether or not that is the case. What would be the position in regard to prosecutions in Scotland and Northern Ireland? It would be very helpful if the Minister could explain that.

I assume—I may be wrong—that the commission would not conduct any criminal investigations or prosecutions. It would seem unwise for that to be part of its duties. In the light of what the Minister said, I should be grateful if he can confirm the exact situation. I beg to move.

Lord Bach

My Lords, I am generally grateful to the noble Lord and the noble Viscount for tabling these probing amendments. The position was certainly not clear from my remarks last time. I intervened later to reverse what I had said but the noble Viscount has now given me the opportunity to make the Government's position clear and I shall attempt to do so.

This group of amendments is concerned with the commission's powers in relation to criminal proceedings and investigations. The general powers of the commission in relation to enforcement of the provisions of the Bill are set out in Part X. Nowhere is it suggested that the commission should have the power to institute criminal proceedings in the same way as, for example, Customs and Excise. The Neill committee 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 noble Lord's amendment accords perfectly with that policy. But we believe that the amendment is unnecessary. If it were the intention that the commission should be able to institute criminal proceedings, it would have been necessary to make explicit provision to that effect. There is no such provision; therefore the commission does not have that power.

While the Neill committee did not intend that the commission should be a quasi-judicial body, it clearly did intend that it should have powers of investigation. The committee recommended that those powers should extend to investigating suspected breaches of electoral law. Against that background, Amendment No. 48 seems to propose a rather narrow role for the commission.

The noble Lord's proposition in this probing amendment would appear to be that, if a piece of evidence or an allegation comes to the notice of the commission which gives rise to the merest suspicion that an offence may have been committed, it should immediately be referred to the police. It is quite possible that the commission may attract a good number of allegations which may give rise to mere suspicion. We do not think it sensible to require that the commission should immediately place such suspicions at the door of the police.

The commission will be expert on the law in this area and it would therefore be entirely appropriate for its staff to undertake a preliminary investigation where it has cause for concern. Once it has established prima facie evidence of a criminal offence, it may—I choose that word carefully—then hand over its findings to the police or the Crown Prosecution Service for further investigation. An alternative course would be for the commission to initiate civil proceedings under Clause 144, in which case a reference to the police or the CPS might be inappropriate.

In short, the commission will be an enforcement authority but not a prosecuting authority. We should allow it space to undertake its proper enforcement role. I hope that my answer has cleared up some of the misunderstandings that may have developed as a result of our debate in Committee.

Baroness Park of Monmouth

My Lords, perhaps I may ask the noble Lord a question; I hope I shall be forgiven if I am asking it at the wrong moment. Suppose that some strange circumstance arose and an offence was committed that the commission did not want to pass to the police or anyone else. Would it then be open, for example, to Parliament or to the police to pursue the matter? I am not quite clear whether the commission is the be-all and end-all of the decision on whether to take action.

Lord Bach

My Lords, I do not think that the powers of any other authority or individual are curtailed by the existence of the commission. In other words, other people's rights to investigate and bring charges (to approach the police, at least) remain.

Viscount Astor

My Lords, I am grateful to the noble Lord for his helpful explanation. It would be wrong for the commission itself to be involved in prosecutions. That would be the wrong role. I am grateful to the noble Lord for clarifying the position. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Clause 21 [Parties to be registered in order to field candidates at elections]:

Lord Bach moved Amendment No. 49: Page 14, line 17, at beginning insert ("Subject to subsection (4A).").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to government Amendments Nos. 50, 52 and 81, as well as Amendments Nos. 51 and 80 tabled in the name of the noble Lord, Lord Mackay. Amendments Nos. 49, 50 and 52 respond to an amendment tabled by the noble Lord, Lord Goodhart, in Committee. At that stage, the noble Lord suggested that what is now Clause 21 of the Bill went over the top in applying the restrictions on candidates' descriptions to elections for parish or community councillors.

I should remind the House that the purpose of these restrictions is to bring organisations that put forward candidates at an election within the controls on parties' income and expenditure. That said, we fully accept that there is no need for such controls to apply to a minor party—that is, one that operates solely at the level of a parish or community council. It follows, therefore, that the restrictions on candidates' descriptions need not apply at that level. Therefore, the amendments modify Clause 21 accordingly. It would remain open to a minor party to register, on a voluntary basis, under Part II of the Bill in order to ensure "copyright" of the party's name.

Although we can relax the restrictions on candidates' descriptions at parish and community council elections, the Government cannot support a more general relaxation along the lines proposed by Amendment No. 51. As I have already said, these restrictions underpin the controls on donations and campaign expenditure. It has been no easy task to define a political party for the purposes of this Bill. The approach that we have adopted is to identify a political party by reference to what happens at the polls. The key defining feature of a party is that it puts forward candidates for election under a common banner. We know, for example, that a Conservative candidate in Edinburgh is a member of the same organisation as a Conservative candidate in London, or Cardiff. It is through a candidate's description that we can finger, so to speak, the supporting organisation and thereby apply the financial controls that are an important feature of the Bill.

We believe that Amendment No. 51 would undermine this whole approach. Under the amendment, it would be open to an organisation to put up candidates across the country but without the need to register as a political party. The noble Lord has tabled a number of other amendments for this Report stage with a view to closing loopholes. Whatever the prospect of the loophole in question being exploited, we feel that the noble Lord is putting forward an amendment that has the potential to create quite a large hole in the scheme of controls, never mind a mere loophole.

If this amendment were made, we could have "Independent against the Euro" or "Independent for one nation conservatism" candidates standing throughout the country in election after election. The organisations that backed those candidates would, at best, be caught by the provisions in Part VI of the Bill, but outside an election period they would not be subject to the accounting requirements in Part III, nor the controls on donations in Part IV. We do not believe that that is a consequence which is acceptable either to the Government or to the noble Lord. Therefore, I ask the noble Lord not to move his amendment.

Finally, government Amendment No. 81 to Clause 32 addresses a minor drafting point that arises from changes made to the Bill in Committee. We are grateful to the noble Lord, Lord Mackay, for having spotted this point, but I hope that he will accept the Government's amendment in preference to his own. Schedule 23 will, in fact, apply to a minor party. Indeed, it is by making the appropriate declaration required by paragraph 2 of Schedule 23 that an existing registered party will be registered under Part II of the Bill as a "minor party". I hope, therefore, that the noble Lord will not move Amendment No. 80 but that he will support government Amendment No. 81 when we reach that stage. I beg to move.

10.30 p.m.

Lord Mackay of Ardbrecknish

My Lords, the point behind this series of amendments is an important one. I shall begin by saying that I am grateful to the Minister and to the Government for bringing forward their own amendments relating to candidates for parish and community elections. If we had left the position as it stood in Committee, it would have meant that people who were standing at these lower elections—if I may so describe them—would not have been able to add anything to the word "independent". If they were the independents against filling in the duckpond, or the independents against not filling in the duckpond, they would not be able to say so. That may appear to be a trivial local issue, but I have little doubt that it could be a matter of some heat and contention in various villages. It is important that at local elections people ought to be able to add to the word "independent" up to five other words to describe what they are standing for.

I am grateful to the Minister for his response. I do not want to sound churlish when I say that I rather regret that the Government did not go a little further. My Amendment No. 51 goes that bit further. It states that a candidate who is an independent and who is standing for an election of any kind and at any level ought to be able to add up to five words to describe what he is standing for. We had a long debate on this matter in Committee and I do not intend to go over that. However, it is fair to point out, as did my noble friend Lord Norton of Louth, that the further description would enable voters to identify what an independent stood for.

I have no problem with candidates standing as independents, even when they occasionally stand in a way that is designed to try to take votes away from my party. It seems to me that one of the fundamental things about democracy is not just that one can vote freely and in secret but that one can also stand and tell the electorate what one is standing for. I do not want to speak at length at this time of night, but I worry about the kind of restrictions that the Bill occasionally imposes, often for well meaning reasons. However, they are there and they could be sorely abused in the future.

As I said, I have no problem with independents. I have no problem with an independent adding words to describe what he is standing for. As I understand the position, a Labour candidate could add some words to the description on the nomination paper. At a certain period in history it was popular in Scotland for political parties to coin the phrase, "Labour against the poll tax", for example. I am not sure what that added to the Labour Party's candidature, but they thought that it add something. If that is still allowed under the Bill—I think that it is—I cannot see why someone should not be able to coin the phrase, "independent against the council tax", or independent against whatever the person wants to be an independent against.

I hear what the noble Lord said about people standing in each constituency as independents against one particular thing and not falling foul—if I may put it that way—of the political parties route. But surely the electoral commission and the courts have some role in that. Members of the Conservative Party could all decide to stand as independent Conservatives and not have to obey any of the spending or the donation rules. That cannot be a serious proposition. It would not be allowed—not that we should think of doing it for a minute. I am taking the measure to ridiculous extremes. Why, therefore, are the Government so frightened that a crowd of people will get together and say that they are independents for the euro or independents against the euro and thus manage to evade the rules? I find it hard to understand that argument.

I accept that the Government have tidied up in their Amendment No. 81 what I attempted to tidy up in my Amendment No. 80. That is fine. However, I should like the Government to go a little further and try to address the matter of why an independent standing in an individual constituency with no connection to anyone else but wanting to make a point should not be able to describe what he is standing for? If the only argument put forward is that it is in case those who are anti or pro the euro decide to use that as a loophole, I believe that there are other ways round that rather than depriving an individual of his democratic right to stand and to describe what he stands for as he sees fit, provided that that does not confuse the electorate.

Lord Goodhart

My Lords, I am most grateful to the Minister for having put forward an amendment which deals with the point which I raised initially in Committee about the undesirability of forcing small groups which want to put up a slate in a parish council—I refer to my old friends the Ambridge ratepayers—to go through all the rigmarole of registering as a political party in order to be able to do so.

I am reluctant to look a gift horse in the mouth, but I wonder whether the amendment goes far enough. A candidate can currently stand in parish or community elections in the name of an unregistered party, such as the Ambridge Ratepayers. So why should any group wish to register as a minor party? It was suggested that that might give some copyright protection to the name. The only restriction that I can find in the Bill is that an unregistered party is not entitled to a party political broadcast. I hardly think that the Ambridge Ratepayers are likely to qualify for one anyway. I wonder whether it would not be simpler and better in this over-complicated Bill to go one step further and take out all references to minor parties. We could then get rid of the whole of Clause 32 and parts of many others. However, I am grateful for what the Government have offered. I am merely suggesting further tidying up.

We support the principle behind the amendment tabled by the noble Lord, Lord Mackay of Ardbrecknish, but there is a risk of abuse as it is currently worded. The Conservative Party is clearly not going to field candidates under the name "Independent Conservative" in every constituency, but there are other risks. The amendment would have allowed the Referendum Party at the 1997 election to have avoided the restrictions in other parts of the Bill by standing under the title "Independents for the Referendum". Without prejudice to any decision that we might wish to take if the noble Lord were able to bring the amendment back in a form that did not lend itself to abuse, we feel unable to support him.

Baroness Gould of Potternewton

My Lords, I understand the Government's argument about the need for descriptions to underpin the controls on donations and expenditure. It is right that the provision is to be relaxed for parish and community council elections. However, I am still anxious about the use of the word "independent", for completely different reasons from those put forward by the noble Lord, Lord Mackay.

I understand the argument about political descriptions being used to expound a political position, but what is to prevent an independent from having his occupation as a means of identification? I asked what might have seemed a simple and stupid question in Committee about what would happen if somebody changed his name by deed poll to the name of another candidate. The Minister's answer was that the middle name would count. If I went to the trouble of changing my name by deed poll, I would make sure that I did it properly and took the other person's full name. The only way to identify me in those circumstances would be to have some other words added. It would be useful to look at the possibility of adding an occupational title to the word "independent". That would get round a rather stupid anomaly.

Viscount Cranborne

My Lords, I support my noble friend Lord Mackay. We should be extremely grateful to the Government for their concessions. I wonder whether they could listen sympathetically to what my noble friend has said. For instance, if an independent were to stand in North Dorset for Dorset UDI—an increasingly worthy cause because it is Dorset soil, after all—and at the same time another independent were to stand for continued integration with the rest of the United Kingdom, however loopy those two positions might or might not be, if there were an independent willing to do that and another also standing, it would at least be convenient to know which of those two positions we were voting for if we were minded to vote for an independent.

I associate myself very much with what my noble friend has said. There is an extremely valuable tradition of independents standing for Parliament. I would greatly regret it if it were restricted in any way, particularly as the main political parties are becoming increasingly institutionalised, not least because of many of the provisions of this Bill. With all the powers that we are giving to this commission, would it not be possible to rely on its own judgment as to whether a party was trying to get around the rules by standing as independent but actually organising itself countrywide? I suspect that we would all recognise it when that happened. My noble friend has already given the example of the Referendum Party. I suspect that we all knew there was one financier for that party. It was extremely well organised during the course of the last general election. I am sure that it would have fallen foul of any independent judgment made by a neutral and Olympian commission. I wonder whether the Government's proposed amendment, although welcome in its way, does not in fact restrict the admirable tradition of independents standing for Parliament. Can we not look to the commission itself to address the very understandable objection that the Minister has put forward?

Lord Hodgson of Astley Abbotts

My Lords, perhaps I may also add my request to the Minister to have another look at this matter. We had a long discussion about it at Committee stage. I do not wish to rehearse all those arguments again. There is the in-built advantage of major parties; the fact that there is real importance in keeping the roots of local democracy alive for people to be able to believe that they can air a local grievance by standing for Parliament. Such people are perhaps necessarily of modest means and modest experience. They need a descriptive nomenclature as part and parcel of their arrangements.

When we discussed this at Committee stage I asked the Minister whether or not this matter did not give an in-built advantage to major parties. He was kind enough to say that it did and that that was the price of modern democracy. I would like us to find a way to make sure that that was not the price we had to pay.

Lord Bach

My Lords, the Government, too, would like to find a way because we also value the independents in an election, whatever stance they take. It is a healthy sign of our democracy. Our problem is exactly as I stated it when I moved my amendment. We have sought ways of trying to prevent parties evading the rules, but we cannot find any. If noble Lords opposite can produce something that avoids destroying the scheme that underpins the Bill, we would be very grateful. It is this provision which prevents, for example, Independents against the Euro-Party from escaping the controls that everyone else has to observe. It is a pity that independents cannot describe themselves, but we believe it is necessary to underpin the Bill's scheme. If I am throwing the matter back to noble Lords, they will understand why I am doing so. It is done more in sorrow than in anger. We do not have a solution to this particular problem and I am not sure that there is one.

However, I do not believe that that would preclude the commission, once it is up and running, from looking at this matter if it should turn out to be a problem or if in practice it was unfair. I am sure that the commission will be robust in the way that it considers the procedures. We would certainly not be against that. However, we do not believe that we can move on this issue in the context of the Bill.

On Question, amendment agreed to.

10.45 p.m.

Lord Bach moved Amendment No. 50: Page 14, line 40, leave out subsection (3).

On Question, amendment agreed to.

[Amendment No. 51 not moved.]

Lord Bach moved Amendment No. 52: Page 15, line 11, at end insert— ("(4A) Subsection (1) does not apply in relation to ally parish or community election.").

On Question, amendment agreed to.

Clause 23 [Office-holders to be registered]:

Lord Bassam of Brighton moved Amendment No. 53: Page 17, line 1, leave out subsection (4) and insert— ("(4) The person registered as a party's treasurer shall be responsible for compliance on the part of the party—

  1. (a) with the provisions of Parts III and IV (accounting requirements and control of donations), and
  2. (b) unless a person is registered as the party's campaigns officer in accordance with section (Parties with campaigns officers), with the provisions of Parts V to VII (campaign expenditure, third party expenditure and referendums) as well.
(4A) In the case of a party with accounting units the person registered as the party's treasurer shall, in relation to the provisions of Part III, be responsible for compliance on the part of the party's central organisation (rather than of the party).").

The noble Lord said: My Lords, in moving Amendment No. 53, I wish to speak also to Amendments Nos. 55, 57, 64, 71, 73 to 79, 278 and 279. This group of amendments relates to the role of a party's registered treasurer. The government amendments respond to points raised in Committee by the noble Lords, Lord Mackay and Lord Rennard.

The noble Lord, Lord Mackay, argued that, in order to undertake the key role of compliance officer, it was not necessary for the person registered as the party's treasurer to have overall responsibility for the financial affairs of the party. Indeed, the noble Lord saw a positive advantage in separating the two roles. I would not go so far as that, but in Committee I indicated that I accepted that, for the purposes of the Bill, it was not essential for the two roles to be combined. Accordingly, Amendments Nos. 53 and 57 redefine the role of both a party's registered treasurer and the treasurer of an accounting unit in terms solely of his or her responsibility for compliance with the provisions of the Bill.

The other amendments address the long-standing concerns of the Liberal Democrats about the impact of the Bill on their federal party structure. The noble Lord, Lord Rennard, indicated that his party's internal structures and lines of accountability could be better accommodated within the framework of the Bill if the person in charge of the party's day-to-day campaigning—namely, himself, as I understand it—instead of the registered treasurer were to be responsible for compliance with the provisions of Parts V to VII of the Bill. As I indicated in Committee, that would add a further complication to the Bill. However, arguably it would be a price worth paying if it helped to resolve the difficulties faced by one of the country's three main political parties.

The amendments provide that a party may elect to be a party with a campaigns officer. Where a party so elects, the party's registered treasurer will be responsible for compliance with the accounting requirements and the controls on donations under Parts III and IV, while the registered campaigns officer will be responsible for compliance with controls on election and referendum expenditure under Parts V to VII.

The new clause to be inserted by Amendment No. 55 makes further provision for parties with a campaigns officer. I draw the attention of the noble Lord, Lord Rennard, to subsection (1)(b) of the new clause. That would enable the person registered as a party's campaigns officer also to be registered as the party's leader or nominating officer, or both. I understand that the noble Lord is the Liberal Democrats' nominating officer and that it is his party's intention that he should also be the party's campaigns officer. That would be in order under the new clause and, therefore, that would be all right for the noble Lord, Lord Rennard.

The amendments to Clause 28 and to Schedules 4 and 23 provide for the submission to the electoral commission of the details of a party's registered campaigns officer and for those details to be kept up to date. The two amendments to Clause 32 make it clear that the provisions in respect of campaigns officers do not apply to minor parties. I beg to move.

The Deputy Speaker (Lord Lyell)

My Lords, I have to advise your Lordships that, if Amendment No. 53 is agreed to, I shall not be able to call Amendment No. 54.

Lord Mackay of Ardbrecknish

My Lords, in so far as some of these amendments relate to issues which I raised, I am grateful to the noble Lord for heeding them. In so far as they allow the Liberal Democratic Party to continue their federal structure, in a manner entirely consistent with my usual stance during this Bill, I welcome them as well.

Lord Rennard

My Lords, very briefly, I too welcome these amendments, and thank the Minister for having expressed the case for them so eloquently. They look very familiar to me, as indeed they are markedly similar to those which I put forward at Committee stage, with the exception of the change of title from nominating officer to campaigns officer. I think that is a clear improvement and makes it plain that the burden on myself and my day job will increase markedly as a result of this legislation. The amendments allow greater flexibility to all the parties in the running of their affairs. As the noble Lord the Minister said, it is especially important where responsibilities are organised on federal lines rather than in parties where perhaps the London party dictates to other local parties exactly how election campaigns should be run.

Lord Bassam of Brighton

My Lords, I have a question for the noble Lord, Lord Rennard, which is: is he on performance-related pay?

On Question, amendment agreed to.

[Amendment No. 54 not called.]

Lord Bassam of Brighton moved Amendment No. 55: After Clause 23, insert the following new clause—