Mr.
Djanogly: I beg to move amendment No. 151, in
clause 8, page 6, line 30, at
end insert— ‘(5A) A person
does not commit an offence if, in the opinion of the Commission, the
person had no intention of making, or by innocent mistake made, a false
declaration under this
section.’.
The
Chairman: With this it will be convenient to discuss
amendment No. 6, in
clause 8, page 7, line 28, leave
out the words in column 2 of the table and insert ‘A fine of
£1000’.
Mr.
Djanogly: Clause 8 creates a new responsibility for donors
to political parties to clarify the source of their donations.
Amendment No. 151 would insert a new sub-paragraph after proposed new
section 54A(5) of PPERA, as set out in clause 8(2). The main purpose of
the sub-paragraph is to provide a defence for those who have made an
innocent mistake and have fallen foul of the regulation in PPERA only
as a consequence of an administrative oversight or an honest mistake.
We
want to make it clear with this amendment that the commission is
empowered to excuse those who have made an innocent
mistake.
The drafting
of section 54A(5), as proposed in clause 8(2), is not
sufficiently prescriptive. The sub-section as
drafted— “knowingly
or recklessly makes a false
declaration” —does
not specify that innocence will be a defence. By articulating a
protection for innocent mistakes, we would force the commission to have
regard to the mental decision element of the crime, rather than simply
allowing it to hand out criminal sanctions based solely on the action
of giving a false
declaration. Section
167 of the Representation of the People Act 1983 contains that
idea. It states that where a person has been charged with an offence
under its provisions, they may apply to the High Court, an election
court or other court as appropriate, for relief from liability on the
grounds
that “the
act or omission arose from inadvertence or from accidental
miscalculation or from some other reasonable cause of a like nature,
and in any case did not arise from any want of good
faith” The
Minister might suggest that sub-section (5) is sufficient to protect
those who make an innocent declaration because they would not fall into
the definition of having “knowingly or
recklessly made a false declaration”,
but I would point him
to the volumes of criminal case law that deal with the difficulty of
those two concepts. If the protection was included in the
Representation of the People Act 1983, I cannot see the basis on which
it should not be included in the Bill. While we have the chance, we
should aim for clarity, not only for donors and the commission, but to
prevent the need for interpretation of our intentions by the judiciary
at some later date when a sanction is challenged in a court of
law. Amendment
No. 6, which was tabled by the hon. Member for Battersea, would remove
the summary conviction and indictment penalty tariffs in relation to an
offence under section 54(5)—making a false declaration about the
source of a donation. In its place would be inserted a standard
£1,000 fine. I do not support the imposition of
one-size-fits-all penalties and I am concerned that the amendment,
while well intentioned in that it would reduce the maximum penalty,
would be an arbitrary and in some cases, a disproportionate
penalty.
Much was made
in the lead-up to the Bill of the role of better regulatory regimes and
the use of flexible tariffs. My concern with the amendment is that we
would take a step back from that flexibility. A range of sanctions will
always require a top-end option. It may not be used often, or at all,
but its existence acts as a deterrent. I am afraid that the amendment
could remove that option and undermine the seriousness of the offence.
I have more sympathy with the view that it should be an indictable
crime. We will consider that element
further.
David
Howarth: The question is how serious a crime it is to make
a false declaration about the source of a donation. As drafted, the
Bill allows for a prison sentence, and the amendment would change that.
To come back to my previous point, does the question not depend on what
the purpose of clause 8 is, and whether it is to pave the way for a
donation cap at a later date? The Minister has now put that off even
further, but the issue depends on whether there is to be a donation
cap. What is the hon. Gentleman’s attitude to a donation
cap?
Mr.
Djanogly: The hon. Gentleman makes an interesting
point.
The
Chairman: Not at
length.
Mr.
Djanogly: I will not go on to donation caps, Sir Nicholas,
but the hon. Gentleman made an interesting point with regard to the
amount that would fit. Of course, if there is an offence with respect
to the lack of declaration, there will probably be another offence
caused in relation to a breach of PPERA, or whatever. There will
probably be an underlying charge, which could relate to the seriousness
of the underlying offence—simply for not putting in the right
bit of paper. I have some sympathy for the views of Government Members
on the seriousness of not filling in the bit of paper, which is why we
should look again at whether the offence is summary or
indictable.
David
Howarth: That is my point. If the underlying offence were
to be to exceed the donation cap, it would be a very serious offence.
That changes the entire context, so I come back to my question. What is
the hon. Gentleman’s attitude towards the donation
cap?
Mr.
Djanogly: No. The underlying offence could be in relation
to a number of issues under PPERA, not necessarily the donation
cap.
Martin
Linton: I am confident that the Minister will, in the end,
accede to my plea under an earlier amendment, that the relief system
under the Representation of the People Act should be imported into
PPERA. If my hon. Friend is unable to do that, I hope he will accept
the amendment. No one in Committee would want the threat of a jail
sentence to hang over someone for a simple mistake that was not made in
bad faith and was not an attempt to deceive or withhold information.
The amendment does not ask for special privileges for politicians, but
it is unfair to have the potential of a jail sentence for an unintended
error. The issue, central as it is to the Bill, would be better dealt
with by the Minister tabling an amendment to introduce section 86 of
the Representation of the People Act into the PPERA, so that hon.
Members who find themselves in this difficult position can seek relief
from the court to have the offence struck out, and we do not have all
the unnecessary paraphernalia of investigation by the Electoral
Commission or the police over an unintended
error.
Mr.
Wills: Throughout our consideration of the Bill, we have
tried to tread the line between having an effective set of regulations
and avoiding unduly onerous burdens on volunteers and, indeed,
politicians, whose work is vital to our democratic processes. We have
been striving to get the balance right, which is why clause 8 states
that a person commits an offence only if he or
she “knowingly
or recklessly makes a false
declaration”. I
know that the hon. Member for Huntingdon is sceptical about the
requirement, but it will catch those who intentionally make a false
declaration, or who do not properly turn their minds to whether the
declaration is accurate. It does not seek to punish innocent mistakes,
where steps have been taken to ensure that a declaration is accurate or
where there is no good reason to think
that it might not be. We believe that our wording strikes the right
balance. Importantly, it goes no further than the wording of other
false declaration offences in the 2000
Act. Hon.
Members spoke about the 1983 Act, but that framework was replaced by
the 2000 Act, and there is no reason why the particular offences are
special cases requiring different treatment. We do not believe that the
amendment is necessary, but of course we hear the
concerns about the dangers of an overzealous approach to
enforcement—of the minor, technical breaches. We are not talking
about substantive breaches, but about the inadvertent, minor breaches,
which my hon. Friend the Member for Battersea has mentioned on several
occasions. It
being twenty-five minutes past Ten o’clock, The
Chairman adjourned the Committee without Question put,
pursuant to the Standing
Order. Adjourned
till this day at One
o’clock.
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