I was going to endorse what Jonathan has said. As you rightly identified, what we have, I hope, illustrated is the need for significant consultation as to the implications of what is actually being proposed. What we propose is a far broader, perhaps, offence than that set out within the remit of clause 22, but we reflected the purpose in our phraseology, 'the intention by making the representation to affect the return of any candidate', but we add, because, as Jonathan quite rightly observes by analogy, the comparator between making a false representation in this context and making a false representation 'for gain', which is the phraseology of the Fraud Act, i.e. money, that there is a similarity in terms of ultimately seeking an objective, whether that is power or whether that is money. There is a similarity in methodology, and that's why we're able to draw analogy with existing legislation, the Fraud Act 2006, and the case law that arises.
But what is imperative, and this acts as a gateway towards prosecutions, is the use of the phrase 'dishonest', because that doesn't feature in clause 22. It's something that we discussed, I know, when we appeared before the committee back in the spring, the requirement and the necessity when alleging serious matters such as this—false representations—is to have that gateway of dishonesty, because ultimately that is what you are saying: tarring and labelling somebody a criminal by virtue of a false representation by implication infers dishonesty, but this is not because of the serious nature of the offence, because of the parallels that can quite properly be drawn with the Fraud Act 2006, where dishonesty is integral. This should not be what's called a strict liability offence, an offence where you simply have to demonstrate that what was said was false or misleading. The necessity for a guilty mind and dishonesty surely is an absolute necessity, as it is when dealing with offences of making a false representation for gain.
So, we draw analogy with the Fraud Act. We think there is a direct comparator. We think, actually, it affords an easy mechanism of drafting legislation, because although the intentions may be different—the intention for loss or gain, as opposed to the intention to affect the return of a candidate in an election; as Jonathan properly identifies, the serious nature of the consequence is power as opposed to money—they are comparable. In many instances, of course, one leads to the other. But they are comparable, and therefore the necessity. Because, ultimately, a conviction for this sort of offence is career-destroying, life-destroying in many instances, and so the necessity of having that element of dishonesty that is replicated within the Fraud Act is crucial.
But also, in another sense, in order to prosecute, any cases have to pass the evidential test. There has to be a realistic prospect of a conviction and, in applying that, filtering out malicious allegations is also very, very important to ensure that the system is not swamped. There are, sadly, people out there who monitor, no doubt, every word politicians say, with a view to making a complaint thereof. Without that crucial safety net of the necessity of dishonesty—. Being able, on the evidence, to demonstrate that the person who made the representation knew that it was false or misleading is, in our view, crucial to ensure that the system isn't swamped. To ensure that only meritorious claims, assertions or charges are preferred is vital, and, when one is dealing with life-defining allegations such as this nature, surely it is entirely appropriate that that additional hurdle is included. So, it has many important functions, not least to ensure the system itself isn't swamped.