I’ve blogged often enough before about the Political Parties, Elections and Referendums Act 2000, its requirements in relation to political donations and the offences that can be committed under it. And as I explained yesterday in Consilio’s audio review of the week’s legal news, the Peter Hain case is a big test for the legal and regulatory regime on political donations: if PPERA and the Electoral Commission are to earn public confidence, some time, some politician has to be made an example of, and prosecuted for an offence. In Peter Hain’s case, that’d be under paragraph 12(2) of Schedule 7, unless he can show he took all reasonable steps and exercised all due diligence to ensure donations were reported, in accordance with paragraph 12(3).
I also said in the review that I felt sorry for Peter Hain: this is why. The paragraph 12(3) test of due diligence seems to me a high one, and I doubt it can http://www.gooakley.com/ really be discharged simply on the basis of delegating responsibility to a member of staff. If I were advising someone like Peter Hain in advance of his campaign, I’d have told him he needed to require weekly updates on donation reports so that a failure of compliance could only happen if his staff deceived him contrary to section 61(2) (which applies because of paragraph 9 of Schedule 7, which puts the regulated donee, Peter Hain, in a position analogous to that of party treasurer for this purpose), thus releasing him from personal criminal liability and putting someone else in the frame.
Well, perhaps Peter Hain did something like that, and perhaps the Electoral Commission will accept his explanation that he was too busy to keep proper track as satisfying paragraph 12(3). But my broader point is that I’m not sure, really, that Schedule 7, by placing personal criminal liability personally on candidates for party office, really fits the political realities. It seems to me reasonable, actually, that a candidate for deputy cheap oakley leader should be able to delegate responsibility for matters like donation reports. He should be too busy for that kind of thing. He should be able to focus on campaigning – and in spare moments, serving constituents as an MP, and the general public as a minister. So I think PPERA actually over-regulates the position as regards candidates for party office, and imposes criminal liability personally on the regulated donee in a way that I think is inappropriate.
What I’d like to see is amendment to Schedule 7 so that a regulated donee can nominate a treasurer to be personally responsible for reporting campaign donations, just as parties themselves nominate a treasurer responsible for donation reports, under section 24. That’d be too late for Peter Hain though, and for the Electoral Commission, who now face a major test. Will they pass papers to the CPS?
Mr Gardner,
Would you not regard the Electoral Commission as a largely politicised organisation – as perhaps the CPS has become?
Surely it matters little whether Hain is directly at fault for the ‘failure’, or whether those to whom he has chosen to delegate the task have failed. Is it not the case that by law he personally must carry responsibility? He might plead mitigation, given the supposed circumstances, of course. But – as has frequently been pointed out – his protestations and apologetic tone do not amount to exoneration for these clear transgressions of the Law.
Equally there has been a politically driven attempt to distort the interpretation of the legislation to require proof of ‘intention’. The common observation that this was not ‘deliberate’ is irrelevant. There is no necessity to prove this point.
True, the legislation may be poorly drafted, but that should be for the Legal process to test and decide. What is happening here is the deliberate setting out of a ‘Defence’ in the public fora before charges have even been brought.
If we are to accept that individuals may, by virtue of their position in society, be somehow less culpable for their own failings, we are on a vertiginous and well lubricated slope.
Personally I doubt that the Electoral Commission will have the political courage (and most certainly not the moral courage) to take any action. That will be a measure of the Commission. As for the CPS, it will do what it is obliged to do by circumstances. I live in hope, but in neither case can we expect to see a moral stance.
I’m reluctant, too, to let politicians off the hook by allowing them to point the finger and their staff: I hate it when ministers try to hide behind civil servants, for instance.
But what worries me here is that the law potentially makes Hain criminally liable for failures which aren’t necessarily his personally – whereas it doesn’t, for instance, make Gordon Brown personally liable for Peter Watt’s failures over the David Abrahams fiasco.
Well then, the law should be allowed to take its course – including, naturally, appeals all the way up the line to The Lords and beyond. We cannot have the situation where observance of the law depends on whether a piece of legislation is badly drafted or no. If we did then there is hardly a law which might stand.
As you know, much law is changed – certainly in interpretation – by cases. Here we have an ideal opportunity to do just that. Hain might be doing a public service by encouraging such a case to go forward.
If, however, you feel that there is natural injustice in that the two instances (or cases, if heard) might lead to different outcomes, then I’d agree. As far as I’m concerned neither the guillotine nor the pathway to it should be partial.
As to criminal liability, what about corporate liability and the directors of those companies whose activities have led to criminal hazard? I do not think Hain’s position from that point of view is so secure. I’d suggest that there may be many instances where individuals may be held responsible for the outcome of actions taken by people under their command (corporate manslaughter, for example) – and setting aside the rulings at Nuremberg for just a moment.
Let’s also remember that this is not just some idiot in the street who has somehow manged to foul up the household budget. This is an experienced politician, of Ministerial rank, who was a fervent advocate of such regulation. Frankly his protestations bear little apparent credibility. I doubt anyone seriously believes the explanations which he has offered, and it is noticeable that he has refused all questions and all opportunities to clarify his statement. Are these the actions of someone who has nothing to hide and is completely innocent? And this is even before there is any suggestion of charges being laid.
A personal view, of course.
Dizzy made a good point.
There are no sentencing guidelines; he has an interesting opinion as to why.
So even if prosecuted and found guilty, which is extremely unlikely, all he’ll get is a smack on the wrist.
@ fnusnuank
Yes, but he’ll have a conviction on his record in that (as you say) unlikely event.
But this business of apologies being a substitute for due process is, for me, deeply troubling.