Recall of MPs Act 2015 (Recall Petition) Regulations 2016

Thursday 11th February 2016 Lords Chamber

Motion to Approve

16:04

Moved by

[Lord Bridges of Headley]

That the draft regulations laid before the House on 15 December 2015 be approved.

Relevant documents: 14th Report from the Joint Committee on Statutory Instruments, 14th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)]

Your Lordships will recall the passage of the Recall of MPs Act 2015 in the last Parliament. The Act set out three conditions which would result in a recall petition being triggered, potentially resulting in an MP losing their seat and a by-election being held. It is perhaps worth reminding your Lordships that following passionate debates in this House, improvements were made to the recall procedure, including reducing the signing period from eight to six weeks and increasing the number of signing places that could be designated from a maximum of four to a maximum of 10.

These regulations prescribe how the petition should be conducted, the arrangements for signing, the mechanism for challenging the outcome, and the creation of offences in relation to the petition. The regulations also respond to amendments rejected when the Bill was before this House: for example, the suggestion of the noble Baroness, Lady Hayter, that the number of registered electors eligible to sign the petition should be made public, which will happen on the third working day after receipt of the Speaker’s notice and again on the first day of the petition, and to include successful applications to register to vote made on or before the day of the Speaker’s notice.

I was delighted to see the amicable passage of the regulations through the Delegated Legislation Committee in the other place two weeks ago. I was further heartened by the reaffirmed commitment from the Opposition in the other place to the implementation of the recall procedure and, by extension, these regulations.

No doubt your Lordships will have noted the period of time that elapsed between the Act receiving Royal Assent in March 2015 and when the regulations were initially laid in November. Obviously, this is a substantial set of regulations, as is proper for electoral law, and it has taken some time to draft. Furthermore, as was touched upon in the other place, the original regulations laid in November were re-laid in December after several anomalies were identified, particularly concerning the Welsh translation of some forms. Again, I can say only that once these errors were discovered we sought to rectify them immediately.

The regulations are comprehensive in setting out the petition process, as is the case for regulations prescribing other electoral events. Wherever possible, the processes are modelled on those for elections, with modifications to cater for differences, such as the petition being open for six weeks and the ability for the petition officer to designate up to a maximum of 10 signing places. The processes will therefore be familiar to voters and administrators and will adhere to the very high democratic standards that we demand of other electoral events.

The regulations also reflect views expressed during scrutiny of the Act and extensive consultation. As well as carrying out our statutory duty to consult the Electoral Commission, we have consulted with a number of stakeholders, including the Association of Electoral Administrators. Comprehensive user testing has also been undertaken on the key petition forms and their wording. We have opted for petition notice letters to be sent to electors as opposed to poll cards, so that those who regularly vote at elections are not inadvertently prompted to sign a petition, in a way similar to that in which a poll card prompts us to vote at an election.

Turning to the detail of the provisions, I assure your Lordships that I will not go through each of the 174 pages in great detail. Part 1 sets out how the regulations apply to the different parts of the UK. It also gives an interpretation of the common phrases used throughout the chapters. Part 2 is concerned with compiling the register of those eligible to sign the petition. It stipulates that the register must be constructed by street name where possible and include the names and elector numbers of those eligible to participate in the petition.

Part 3 forms a substantial part of the regulations. It concerns the conduct of the petition and is broken down into several chapters. Chapter 1 deals with general provisions such as the signing sheet. Chapter 2 sets out the steps that petition officers must take before the petition is available for signing. Chapter 3 sets out the manner in which the petition is to be administered at the signing place, including those who can enter a signing place, the delivery and receipt of signing sheets, and daily verification of the contents of the ballot box. Accredited observers will not be allowed at the signing location. Given that a petition can be signed only one way, knowing that someone has signed the petition is in essence the same as knowing what that person’s preferred outcome is. As such, the risk of signers feeling intimidated by the presence of observers is substantial.

Chapter 4 deals with when and how the count should be conducted, including the requirement for a postal signing sheet to be accompanied by a valid postal petition statement—or a declaration of identity in Northern Ireland—and the process for determining the validity of signing sheets by the petition officer. Chapter 5 deals with the steps that the petition officer should take after the count has concluded in relation to the storage and future disposal of the documentation completed during the administration of the petition.

Part 5 of the regulations prescribes the issue and receipt of postal signing sheets, along with who can observe such proceedings. This is restricted to the petition officer, his staff and representatives of the Electoral Commission. We have ruled out accredited observers from attending these sessions, as there is a need to protect the details of those who have signed the petition and to prevent a tally of signatories being made. Therefore, given what I have said, accredited observers will be allowed to observe only the count stage of a petition. However, the Electoral Commission will be able to observe all stages in order to ensure propriety.

Part 6 of the regulations creates a number of offences relating to the petition process. The offences created are in line with those already in existence for other electoral events. Finally, Part 7 contains miscellaneous provisions, the most significant of which is in relation to the questioning of the outcome of a petition.

Given the amendment in the name of the noble Baroness, Lady Hayter, I will expand a little upon the marked register. After a recall petition has concluded, a copy of the marked register will be available only to the Electoral Commission, police and security services. However, we recognise that some restricted access may be required to help substantiate suspicion of fraud or irregularities—hence we have provided for the register to be available to anyone for inspection under supervision if the petition officer is satisfied that fraud may have taken place.

This contrasts with an election where a copy of the marked register is available to various bodies, including political parties, which may use it for campaigning purposes. Additionally, following an election, the marked register may be inspected under supervision by anyone who makes a successful application to the electoral registration officer to inspect it, stating the reasons for making the request and demonstrating why the inspection of a copy of the full register or unmarked lists would not be sufficient to achieve that purpose. It is worth noting, therefore, that there is not unrestricted access to the marked register after an election. The Government therefore feel that this provision strikes the right balance between transparency and secrecy.

I should also point out that including this provision in the regulations rather than the primary legislation is not an exceptional arrangement. The legislation governing the marked register for elections is detailed in the Representation of the People (England and Wales) Regulations 2001 and the equivalent regulations for Scotland and Northern Ireland. Moreover, these provisions fit with the rest of the detailed conduct arrangements which are provided for in secondary legislation. The Recall of MPs Act under which these regulations have been brought forward is clear under Section 18 that further provision may be brought forward by regulation pertaining to the conduct of a recall petition. That includes access to the marked register.

In the last Parliament, both governing parties and the Opposition all had manifesto commitments to introduce a power of recall. The Government continue to believe that this is one of many vital steps to help restore the public’s trust in politicians and in the functioning of the House of Commons. These regulations will deliver on that commitment. They provide a comprehensive set of provisions that will allow petitions to be administered fairly and effectively and I commend them to the House.

Amendment to the Motion

Moved by

[Baroness Hayter of Kentish Town]

As an amendment to the above motion, at end insert “but this House regrets that the Government have made the decision to legislate on restrictions of use, supply and disclosure of the marked register following a recall petition in the draft Regulations, rather than in primary legislation.”

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I must thank the Minister, who could almost make statutory instruments sound fun. I seek, however, to move my amendment, which regrets that such an important decision on whether this is a secret vote or an open petition should be snuck away in a 174-page SI, which I think the Government hoped would be dealt with rather quickly in 10 minutes in the Moses Room, rather than, as we urged at the time, being included in the Bill. I will deal with my amendment to the Motion first and then attempt to cover all the remaining parts of the 174 pages before the moon rises.

16:15

During the passage of the Bill, we urged the Government to take that decision on the nature of this unusual procedure: a vote on whether an MP should face a by-election. We asked the Government whether they considered that it was a petition, where people sign up and their signatures are known, or more like our traditional ballot where your vote was secret. If it was the latter, of course, then considerable efforts would have to be made to guarantee such secrecy, given that the simple act of casting a vote or signing can mean only one thing: being in favour of recall. As that would be the only option on the paper, the very act of signing would say to anyone which way you have chosen to express your opinion. The normal practice of publishing a marked register showing who has voted would therefore need to be curtailed, as it effectively shows who has called for a recall.

That is quite a change to the electoral law, regardless of what the Minister says, but even more importantly it is a policy decision. It is not an implementing decision, which is what SIs are really about. It is hard to blame the Minister for this, as he was not here at the time—but I will do so, all the same. Our regret is that the Government did not choose at the time of the passage of the Bill to take that fundamental policy decision. That is why we are arguing that this is not the correct use of a statutory instrument. We do not question the particular decision but the way that it is done. We happen to think that the Government are right to have opted for a secret poll, and in consequence for therefore not making a marked register available, but it should have been in the Bill rather than the regulations here today.

I can see why the Minister was so pleased that the regulations went through in the Commons. They took under 30 minutes there and, other than his honourable friend the Minister, there was only one speaker. I trust that we will not have that situation today. At the time, the Minister in the other place described the regulations as “extremely long and detailed”. Indeed, I doubt very much whether, other than my honourable colleague Wayne David, anyone else in that House knows that this is now to be a secret ballot rather than an open petition. That is therefore what lies behind my amendment.

However, we have some queries with the implementing of the decision, even once taken, particularly as it still leaves observers able visibly to identify who is going in to sign. Those people can be going in for only one purpose: to sign that the MP should face a by-election. I have read all 174 pages and I could not find anything in them to stop the names or photos being taken of people going in to call for a recall. Outside the normal area with which we are all familiar, I do not think that there is anything to prevent filming. Perhaps the Minister could clarify that.

What consultation took place with local authorities on these regulations and why was it not thought fit to involve political parties, given their expertise in all matters electoral? Who is to pay for the cost of the six-week recall and for any subsequent by-election? I would also like some clarification about the funding of the yes and no campaigns, especially as there will be any number of pro by-election campaigns but presumably only one campaign against a by-election being run by the incumbent MP.

We asked in Committee, and I think on Report, whether, if the Government did proceed with their wrong-headed plans to extend voting rights in perpetuity to nationals who had long since left these shores, by remaining on the electoral roll these non-taxpayers would then be permissible donors. If so, would they be able to fund an “MP must go” campaign, even from the Virgin Islands? We have still had no answer on this, despite these 174 pages of very detailed verbiage. Perhaps the Minister is now in a position to answer this. It is very significant for the funding of these campaigns, should they happen.

We also have some serious questions about the return which will be made by the various campaigns after the process is over. These are to be lodged with the petitions officer, who appears to have no responsibility for checking them. Those of us who finish work early will have seen Michael Crick’s revelations on Channel 4 this week about the thousands of pounds in hotel and other by-election expenses allegedly missing from the Conservatives’ returns, seemingly—this is the interesting point for these regulations—with no one responsible for checking these returns. Will the same happen here? If so, the campaigns could outspend any limit and, provided the paper return is on time and shows no discrepancy, then all would be safely filed away.

We were certainly told in Committee that no one would check whether the donors were indeed permissible donors. Would anyone check that no extras had been omitted from the returns, or would we have to rely on a member of the public to check the figures and raise concerns? PPERA simply says the responsible person must, within 30 days, at the end of the recall petition, deliver the returns to the petition officer. There is nothing about checking them. We did persuade the Government to amend the Bill so that the returns at that stage would have to be forwarded to the Electoral Commission, which would produce and publish a report on the recall petition process. But that was really to evaluate the process itself—it has told us it would not have time to check the veracity of the returns.

The Minister will, I hope, be very pleased that we concur with some of the decisions taken in these regulations. We are pleased that our call for a ban on publishing running totals of how many people have signed each day during the six weeks has been accepted. We are also pleased that, as the Minister has said, the actual figure needed for a call for recall—the 10% figure—will be published at the start of the process.

However, we continue to have concerns on another aspect, in regard to postal votes. The register will be published very quickly after the process is started and will be distributed to the signing locations before the closing date for the application for postal ballots. This means that someone can go along and sign in person, and then after that apply for a postal vote. At that point, there would be no check on whether they have already voted, as there is no automatic electronic record updated hour by hour. Therefore they will apply for a postal vote and will be sent one with no check until the very end of the process, when presumably the petition officer’s staff would need to check every single postal vote to assure themselves that no one had voted both in person and by post. Given that this is a six-week period, there may be quite a few such cases.

The form which is included in the regulations is really not very strongly worded to warn against this. Surely it ought to have said—it is on page 90 if anyone wants to look it up—that if you have already signed in person, you may not apply for a postal vote. But it only says that if you apply for a postal vote, in future you will not be able to sign in person. Added to this, on page 86, the signing form does not have a date on it, which surely should have been included. If there are arguments later as to whether someone had signed at the point that they applied for a postal vote, there will be no evidence as to when they had signed the petition. I would like the Minister to explain why on earth the date is not included on the form that someone will sign.

Finally, the daily verification of slips issued and returned, which is effectively a daily count, is presumably to take place at the petition station under the simple supervision of the presiding officer and one other person. This seems to be an extreme variation of the normal customs associated with voting in this country. Was it intended that it should be so different, or might usual process have been considered, such as the transportation of sealed boxes to secure, central locations where the seals may be broken and the contents securely packaged and stored prior to the count?

Just a week ago, the Law Commission called for a complete redrafting or, as it called it, a rationalisation of election law in a modern legislative framework, as it has become such a mess, with differing, sometimes inconsistent rules applying to different sorts of elections. Now, added to what the commission considered, we have a further 174 pages of regulations written for a long time ago, in that they demand P&P on printed material, when surely a recall petition will be all about tweets and Facebook, and there will be no limit on the use of those.

The Act, perhaps well-intentioned to achieve the Government’s and, indeed, the Opposition’s aim of having a recall measure, was hastily drafted and ill-thought-out, with one major policy decision left to a statutory instrument rather than included in the Bill. We have a statutory instrument which, because of its length, makes proper scrutiny impossible. If I were marking the Government’s homework, I would have to say, “Not good enough. Must try harder”. I beg to move.

[Baroness Donaghy (Lab)]

My Lords, in the debate on the Recall of MPs Bill, as it then was, I recall my noble friend Lord Grocott saying that it is a measure of constitutional significance that will, as the Constitution Committee has said, affect the United Kingdom’s representative democracy. He reminded the House that had the Bill been an Act of Parliament 25 years before, only two MPs would have been affected. Although there were some supporters, including the noble Lord, Lord Cooper of Windrush, in his maiden speech, the overwhelming majority of speakers expressed concern. The noble Lord, Lord Forsyth of Drumlean, summed it up by saying:

“Members of Parliament are, bit by bit, dissolving their authority and removing the primacy of the House of Commons”.—[Official Report, 14/1/15; col. 820.]

As a former member and acting chair of the Committee on Standards in Public Life, I expressed the view in debate that the Bill was unlikely to improve standards in public life or the standing of Members of Parliament. I thought it would enhance the powers of the Executive at the expense of parliamentary democracy.

Nevertheless, we are where we are. The Bill is an Act and will not be implemented fully until the draft statutory instrument before us today has been approved. As has been said, the Bill was 60 pages long and the draft statutory instrument is 174 pages long. I must admit that I approached it with some trepidation, secretly hoping that it would do credit to Jarndyce v Jarndyce. In the interest of staying onside with my noble friend Lady Hayter, who has been incredibly loyal to her Front Bench on this and has played a straight bat throughout, I shall not reveal whether the draft fulfilled my secret hopes or not.

I think we all hope that the Act will never have to be used. I would be grateful if the Minister could give some guarantees about the issues raised by my noble friend in moving her amendment to the Motion. First, what guarantee will there be that people walking in to sign for recall will not be intimidated? Secondly, how will he ensure that there will be no double voting? Thirdly, how much would overseas people be able to put into a campaign? Fourthly, is the Minister content that the election returns will be checked?

16:30

The impact assessment, such as it is, anticipates that recall petitions will occur “extremely infrequently”. Does the Minister have a definition for “extremely infrequently”? Is it as infrequent as floods in Cumbria, for instance, or England—or should I say English men—winning the football World Cup, or some other assumption, such as two MPs every 25 years?

My final point is to refer back to the concerns expressed about the Bill by the Delegated Powers and Regulatory Reform Committee in December 2014. The committee expressed concern about the “rolling up” of different scrutiny procedures which,

“appears to us to be unconventional in its extent”.

The committee was referring to the then Clause 12(7) and (8), and stated:

“Taken together, the two subsections would allow powers that attract the affirmative procedure, powers that attract the negative procedure and powers that are not subject to any form of Parliamentary scrutiny to be exercisable in a single affirmative instrument”.

The committee was concerned that,

“in that respect, the practice could be seen to represent a further shifting of the legislative initiative from Parliament to the Executive, because it would leave to Ministers and not to Parliament the decision whether or not particular provision to be made by them should be subjected to a higher (or some) level of Parliamentary scrutiny”.

Those are not my words but those of the Delegated Powers and Regulatory Reform Committee.

Bearing in mind that the draft statutory instruments come from the Cabinet Office, which immediately raises suspicion in my mind, can the Minister give us an assurance that this “rolling up” of different scrutiny procedures does not occur in these draft instruments?

[Lord Campbell-Savours (Lab)]

My noble friend Lady Hayter raised a number of issues, and I think that I have deleted nearly all of them from my own contribution, because she has obviously raised all 174 pages of the document, as have I.

I supported the principle of the legislation when it went through the House; I have no problem with recall, although I took an active part in opposing a particular section of the legislation which dealt with the 10 working day trigger for suspension, which to this day I believe will end up with some rather difficult decisions for Members—in particular, the Committee on Standards in Public Life in the other place, where, I suspect, Members will be compromised. However, today’s debate does not deal with the trigger but with what it describes as the conduct rules. It is a classic case of the size of the regulations exceeding the size of the Bill, raising once again the whole discussion about skeleton Bills and the use of SIs.

Skeleton Bills are described, in the report from the Joint Committee on Conventions in 2006, as providing the circumstances in which it would be permissible for the House to divide on fatal Motions—not that that is my intention today. However, if today’s SI had formed part of the primary legislation, there would have been scope for Divisions, although I need to make it clear that I am not complaining. I recognise that the law in this area needs to cover all eventualities.

I want to deal with the detail of the SI and comment on comments made by Mr John Penrose speaking for the Government in the other place on 25 January. He said:

“The petition officer must publish the number of people allowed to sign the petition and the number that must sign for it to be successful. Those figures will be updated when a petition opens, to include any alterations to the electoral register”.

I ask a simple question on principle: should a person who is either too lazy or too indifferent to vote in the general election really be entitled to remove an MP on a petition? This is a quite interesting question. When you look at the stats, if the general election turnout is generally about 60% now—it used to be much higher when I was an MP, but it has gone down over recent years—suggesting an abstention rate as high as 40%, it means that if 25% of the abstainers sign the petition in a constituency, effectively they trigger a by-election. I wonder whether that is really the way we want to proceed on this. I accept the principle, but should abstainers have all that power to precipitate a by-election?

Penrose then went on to say,

“the petition officer must make ‘reasonable’ provision for the petition to be available for signing outside those times, which could include evenings and weekends. The regulations do not prescribe what the additional hours must be; they will be determined by local circumstances and covered by Electoral Commission guidance”.

Guidance can be ignored. The local authority decides what happens in the case of a borough where there is an overwhelming single party majority. The local authority could be awkward. It might wish to protect its Member of Parliament for two reasons. One might be political—it is sensitive to the loss of the seat and therefore does not necessarily want to follow the guidelines set by the commission—and secondly, as my noble friend said from the Front Bench, what about the cost? If the cost falls upon the local authority, it may well be that it is not too keen on the prospect of a by-election taking place. Are we absolutely satisfied that we have covered all such eventualities, that is to say, eventualities where local authorities might be a little cautious—I use the term—in the way it wishes to proceed?

I have to admit that a number of my questions might appear pedantic, but this is going to be a very controversial process, perhaps leading to legal proceedings challenging petitions. Every eventuality has to be covered because when Members of Parliament are subject to these petition proceedings and face the prospect of a by-election they will be hiring lawyers and whatever to go through these regulations in great detail to establish whether there is a basis on which they can appeal against the proceedings that are under way.

Penrose goes on to say:

“Unlike at an election, accredited observers will not be allowed to be present at signing locations, or at any stage of the petition process other than the count”.

I stood in a number of general elections over many years. My noble friend raised from the Front Bench the issue of people observing. People observe. People stand outside polling stations. They take numbers. On this occasion, they will not be taking numbers but, as my noble friend suggested, they might be taking photographs. If people are to be assigned a signing location which, as I understand it, is the position under Clause 16, you could have as few as 600 people entitled to sign at a particular station—I keep calling them polling stations, but in fact they may well actually be called polling stations or stations used in general election campaigns. If that is the case, then if they can observe from outside, why can we not observe from inside? What is the distinction? As I understand it, the way that the regulations are drawn up is that unless you are in a particular category—I think it is the Electoral Commission—you cannot enter the signing location. However, you can stand outside or sit in an office over the road and watch who is going in. There seems to be a lack of understanding about what will happen when people go in to sign off their names.

Penrose then went on to say:

“Accredited observers may be present at the count, along with the representatives of the Electoral Commission”.—[Official Report, Commons, 25/1/16; cols. 3-4.]

Again, my noble friend asked about payment. Who is going to pay even the Electoral Commission observers? Are they going to be paid by the local authority? Are any of these people? We are trying to establish on whom all the costs of this process are going to fall.

What about the issue of people signing twice? Mr Penrose, in his reply to Wayne David in the Commons, stated:

“It should be easier to make sure that people cannot sign twice, in the same way that we do not allow people to vote twice on a polling day. However, the checks and the principle underlying the process—the mechanics—will, of course, still be the same”.—[Official Report, Commons, 26/1/15; col. 7.]

Because the whole process is so controversial, if not the regulations then certainly the guidance from the Electoral Commission should be quite specific on this matter. For MPs affected, every petition signing will count, particularly if they are on the margin.

Paragraph 57(5) of the regulation states:

“A person is not entitled to sign any one petition as proxy on behalf of more than two persons to whom that person is not related”.

The same issue is raised in paragraph 63, which deals with the declaration. My question is simple: what does “related” actually mean—a cousin, a brother-in-law, a civil partner, a sharia-based marriage or an informal partner arrangement? These are the sorts of things that people are going to query, particularly in areas with a large ethnic-minority population.

Paragraph 59 deals with the use of personal identifiers. On that subject, I simply point out that a national identity card would do away with many of these administrative requirements. My next question is one of principle. Why is there a different approach in the conduct of the process in Northern Ireland? Northern Ireland is part of the United Kingdom.

Finally, I turn to paragraph 129, which is headed:

“False statements as to MP or accredited campaigner”.

The paragraph says:

“A person who … during the period beginning with the giving of notice”—

I am deleting words that are not relevant to what I am saying—

“and ending with the last day of the signing period … makes or publishes any false statement of fact in relation to the personal character or conduct of a relevant person is guilty of an illegal practice, unless that person can show that they had reasonable grounds for believing, and did believe, the statement to be true”.

The “relevant person” is described later as,

“the MP to whom the petition relates; or … a person who is an accredited campaigner in relation to that petition”.

For a start, who is an accredited campaigner? Secondly, what about a statement made in a local newspaper, particularly during the last days of the petition period? It could be in the form of editorial comment, an article or even a letter to the editor. We know from our experience of tabloid journalism that it is quite easy, without libelling the person, to write an article that completely undermines the credibility and character of a public figure. I oppose censorship and had great difficulty in thinking about this section. However, should not the last few days or week of a petition period be the subject of some restraint? A local newspaper could destroy a local MP’s reputation without even libelling them. We need some way of exercising restraint if an MP is to be given a fair hearing. Perhaps Ministers can discuss with the Electoral Commission whether some guidance might be appropriate in these circumstances.

I have raised a number of what might appear at this stage to be minor points. Each and every one of them could be the subject of argument both during and after a petition period. As I have already said, ideally, much of the regulatory detail outlining this SI should have been presented in primary legislation, thereby giving us the opportunity to amend and divide. I therefore hope that the Electoral Commission in its guidance notes will take on board the thrust of my comments, those of my noble friend from the Front Bench and those due from my noble friend who is to speak.

16:45

[Lord Lipsey (Lab)]

My Lords, I am grateful, and I hope the House is grateful, to the noble Baroness, Lady Hayter—I should have said my noble friend because she has been my noble friend for many years now—for putting down this amendment, because it has led us to have a fuller debate this afternoon than we might otherwise have done. She has ably made her points of substance. However, I will go a little wider and consider what this tells us about secondary legislation.

This document, which I just managed to carry from the Vote Office without being forced to my knees by its weight, is an exemplar of how secondary legislation should not be. The fact is that secondary legislation in part is being considered by the committee of the noble Lord, Lord Trefgarne, on the Strathclyde report. Some of the things said this afternoon may be very useful input into the work of that committee.

This is secondary legislation and it has passed through both Houses, so I will not restart a debate on its purpose. I was in error by not participating at that stage. It was of course a delayed reaction to the MPs’ expenses scandal. The Government—and the opposition parties—wanted to show they were doing something about that. However, the Government, and the opposition parties, did not want to open the door very wide. There are countries which use the recall quite widely: in the United States a governor of California was recalled not long ago, and the speaker of one state who recently had the temerity to favour gun control legislation has also been recalled, which might be a warning sign of some of the effects which recall legislation that goes wider can have. In the Andean countries of Latin America, especially in the light of the pink tide that took place there in the 1990s, there are quite a lot of recall elections—Lima is the world capital, having held some 7,000. Incidentally, I am relying for this information on a seminar I chaired at St Antony's College Oxford, at which the noble Lord, Lord Cooper, spoke—which shows that academic seminars can sometimes help us. I learned there the nearest thing to an amusing fact about recall elections that I have ever learned, which is that one of their greatest exponents was Vladimir Lenin. He was a huge enthusiast. In post-revolutionary Russia there were hundreds of thousands of recall elections, until of course Lenin established himself and his friends in power, when for some strange reason their enthusiasm for the recall ebbed away. Our Government, wisely, did not want to establish a recall on the American or Peruvian scale, let alone on the Leninist scale, therefore we remain a representative democracy.

This legislation could hardly be more limited—the conditions in which it applies are very limited. If an MP is sentenced to more than 12 months in the jug, they are disqualified anyway, so the measure can apply only when the sentence is shorter than that, when they are suspended for more than 10 days by a committee of fellow MPs or when they withhold information on expenses. That is not going to happen very often and in most such cases the MP would, through shame, resign anyway. They could not hang on in those circumstances. Even if those conditions are met, you then have to get 10% of the electorate to sign your petition within six weeks. That 10% of the electorate is probably around one in five of those who voted at the last election, with turnout having been around 60% or slightly less. It is going to be one helluva job to organise that. The noble Lord, Lord Cooper, explained at the seminar how uninterested in politics people generally are. Some were asked, in a focus group, to name one politician and they were able to manage David Cameron. When pressed, they also managed Ed Miliband and his brother, Ed Balls, as the noble Lord reported to the seminar, so there is not a fantastic surge of interest. It could happen but it does not seem very likely.

The House does not need me to tell it that this is going to be a rare event. As my noble friend Lady Donaghy said, the Cabinet Office says so itself in paragraph 10.2 of the Explanatory Memorandum. It says that it is anticipated that recall petitions will occur extremely rarely. If you ask me, extremely rarely probably means never. Be that as it may, this really is a mouse of a proposition—and I am pleased that it is—but, although it is a mouse of a proposition, it has given birth to a mountain of secondary legislation.

I cannot claim to have read all 174 pages of the regulations—I defer in diligence to my noble friend Lady Hayter—but I have poked about in it. As a journalist, I always read documents from the back and usually get to the bit that someone is trying to hide. Regulation 128 deals with illegal canvassing by police officers. Can one imagine? “Mr Plod is going from house to house illegally canvassing. Let’s lock him up as swiftly as we can”. I admire the imagination that puts that into the regulations.

Another regulation bans exit polls. Why it should do that, I am not quite sure, but I can tell your Lordships that nobody is ever going to commission one. No single recall petition could possibly be interesting enough for anybody to commission an exit poll.

Parts of the regulations are wholly incomprehensible. I read Regulation 132, on the prohibition of paid canvassers, about eight times. I may not be the sharpest kid on the block but I still do not have the faintest clue as to what it means. I am reluctant to ask the Minister to explain when he winds up because we might then be here into the early hours of the morning, but I am sure that he will take the point.

We rightly deplore the growth of Henry VIII clauses. As I reflect on the legislative situation, there is one thing that has changed hugely since Henry VIII. In his day, the secondary legislation had to be written on parchment. It was a helluva process and, if anybody wanted to change it, it was a helluva process to write it on parchment again. Alas, our legislative procedure has been bugged by the discovery of the word processor. This makes it possible to add, muck about with and expand clauses, thus expanding legislation, with extraordinary facility. It is a case of, “If in doubt, put it in”. That is why the number of pages of secondary legislation has expanded from 4,800-odd in 1970 to 12,000 in the latest year for which figures are available, according to a recent Hansard Society study which was made available to the Campaign for an Effective Second Chamber this week. There is nothing to stop it.

Secondary legislation this may be but it is the law of the land. Citizens can be sent to prison for disobeying the stuff that is before your Lordships this afternoon. Ignorance of the law, as we know, is no excuse, but not necessarily every citizen is going to read the 174 pages of this—I could not even manage it.

Although the Government have made one change in response to representations made to them, neither House has had the opportunity to amend this, and that refers to the point that my noble friends Lady Hayter and Lord Campbell-Savours made: that much of this should have been in primary legislation.

I hope that this afternoon’s narrow debate, and the slightly wider but still narrow debate about the Strathclyde report, will transmute into a much wider debate, which we urgently need, and one that uses one of many ways available to Parliament to look at the whole issue of secondary legislation and of scrutiny in the round. If that happens, this misshapen monster that we have before us this afternoon may, at last, have found a purpose to serve.

[Lord Bridges of Headley]

My Lords, it has been an excellent debate and I am delighted that we are having it on the Floor of the House. The noble Baroness was extremely gracious in trying to absolve me of responsibility for this misshapen monster, but I will do my very best to try to defend it, warts and all. The noble Lord, Lord Campbell-Savours, described some of his points as pedantic. I do not see them as pedantic at all. That is exactly what we are here to do: to question the details, whatever they might be, in this volume before us. If what I say fails to accurately address some of the points that noble Lords raised, I will certainly write to all those who spoke and place a copy of that letter in the Library. As the noble Lord said, there are some very important points that we need to iron out.

I heed entirely what has been said about secondary legislation, especially something as long as this. The noble Lord, Lord Lipsey, is absolutely right: this is exactly the kind of debate that we need to be having in the weeks ahead. My noble friend Lord Trefgarne is here, and I very much hope that he heeds what was said. I will certainly endeavour to draw his attention to those points.

To pick up on a few of the points that were made, the noble Baroness, Lady Hayter, and the noble Lord, Lord Campbell-Savours, asked about people taking photos and intimidating petitioners outside the place. I want to make two points about that. First, petitioners have the opportunity to have a postal vote if they are really concerned about that happening. Secondly, and more to the point, I am told that—it is the same as for elections—anyone intimidating signers would be committing a criminal offence. I will write to the noble Lord and the noble Baroness on precisely where that offence lies.

[Lord Campbell-Savours]

If you can observe from outside, why can you not observe from inside?

[Lord Bridges of Headley]

I think it comes back to the point that, if there is an accredited observer inside, they may be able to take the names of people who are petitioning and, therefore, those people might feel intimidated. I entirely see the noble Lord’s point, but I gently disagree. Let me come back to noble Lords on where exactly that is in law.

As regards the consultation on this, as I said in my opening remarks, the Electoral Commission has been consulted, as is required by statute. On top of that, consultation has been undertaken with the Association of Electoral Administrators, returning officers, electoral registration officers, the Chief Electoral Officer for Northern Ireland, the Electoral Management Board for Scotland and the electoral management software suppliers. The territorial officers and officials in the Scottish Government have also been consulted on the relevant parts of the legislation. It is not statutorily required for the Government to consult political parties.

A very good point was made about the cost, and I apologise for not mentioning that in my opening remarks. I am told it is expected that a recall petition would cost approximately £100,000. In terms of the payment of that, the Electoral Commission would pay for its own staff and it would not be reimbursed for that. Other payments would be met centrally by the Treasury from the Consolidated Fund. Again, I will write to noble Lords to confirm exactly that point.

17:00

A couple of noble Lords referred to the issue of whether someone might be able to sign twice. This point was raised in the other place and I remind your Lordships of what was said there by my honourable friend John Penrose. He said: “It is important that the proper processes are followed over the six-week period to ensure that people cannot sign twice. This means that any application made to sign the petition by post during the signing period will have to be checked by the register held at the signing place. If the register has been marked to show that the elector has been issued with a signing sheet at the signing place then the application to sign by post will be refused. If the register shows that a signing sheet has not been issued, then the application will be approved and the register held at the signing place will be marked accordingly. The fact that the register held at the signing place is marked when signing sheets are issued prevents attempts at double signing”. I should add that I understand that it is an offence to vote twice.

The noble Baroness asked why there is no date on the signing sheet. The date is marked on the register by the petition officer.

The noble Baroness, Lady Donaghy, asked me to define “infrequently”. As the noble Lord, Lord Lipsey, said, this is covered in the Cabinet Office guidance. It is hoped that this would mean very rarely indeed. However, it is not for me to define what “infrequently” means; that is an issue for Members of Parliament. I say no more than that.

The noble Baroness also asked whether I can give an assurance that the scrutiny powers being used are not mixed. The powers being exercised under these regulations will all be subject to the affirmative procedure and so there is no mixing of procedures.

The noble Lords, Lord Campbell-Savours and Lord Lipsey, made interesting, valid points about whether someone who did not vote in a general election should be able to sign a petition. Should abstainers have this power? That is the current state of the Act. I cannot address the issue now in regard to these regulations, but I heed what has been said.

I will need to write to the noble Lord about is meant by “family relationships”. I am afraid that my understanding, which potentially may not be helpful to him, is that it mirrors the process for elections and is not defined in legislation. I shall write to the noble Lord to define further exactly what that might mean.

The noble Lord also asked about who is the accredited campaigner. There will be two categories of campaigners —accredited and non-accredited. Anyone who wishes to incur expense of more than £500 in relation to petition campaigning must become an accredited campaigner. Those wishing to become accredited campaigners must notify the petition officer and nominate a responsible person to ensure that the spending limits are observed. The campaigner will be entitled to spend up to £10,000. Accredited campaigners must provide details of any donations over £500 to the petition officer. Non-accredited campaigners will be able to spend up to £500 campaigning on the petition without having to make any declaration concerning spending.

I hope your Lordships will forgive me for not addressing the other points now. As I say, I shall certainly write to noble Lords about them.

[Lord Campbell-Savours]

I am worried about the media destroying the reputation of a Member of Parliament during the last week or so of a campaign. When the Minister writes to us, will he ask his officials to give consideration to this matter? I think it will be an issue when we get the first one. Everyone in the debate has presumed that the first one will be quite involved—and I think we are very near to the first one.

[Lord Bridges of Headley]

I certainly undertake to do that and to give it some consideration. It is another very valid point.

The noble Lord, Lord Lipsey, asked me to interpret Regulation 132. I will try to do so. It prevents people being paid—in other words, employed—to canvass on behalf of either side of the petition. To do so is an offence of illegal employment.

These regulations deliver on the manifesto commitments of the three major parties in the previous Parliament to introduce a system of recall. As I said in my opening remarks, I hope that they will go some way to restore the public’s faith in our elected representatives in Parliament. I commend them to the House.

[Baroness Hayter of Kentish Town]

My Lords, I thank my noble friends Lord Lipsey, Lady Donaghy and Lord Campbell-Savours. My noble friend Lord Lipsey said that we had known each other a long time; it is actually some 45 years since we started work together. The last point, which my noble friend Lord Campbell-Savours raised, about it being illegal to canvass, is very interesting. That means that an MP’s member of staff presumably could not work on behalf of the MP. I had also read and reread that. Presumably it means that no paid official of a party will be able to do it. It would be helpful for the Minister to be absolutely clear in writing that personal staff will not be able even to go around with the MP.

I will be brief because there are only two points I want to leave with the Minister. He has not answered the point about overseas voters. The significance of that is that there is no upper limit on what can be spent on a recall petition. The MP could spend only up to £10,000, but there could be 10 or 20 accredited campaigns working for a recall. Each of those 10 or 20 campaigns could spend up to £10,000. Indeed, there could be 20 or 30 campaigns spending up to £500 without even having to say where their money comes from. There is no upper expenditure on this. If the vote is extended beyond the 15 years to people who have been out of the country, these campaigns could be funded solely from outside the country. I do not expect the Minister to answer on that now because he has obviously chosen not to, but it is something that anyone who wants to keep big money out of politics has to think about.

I also remain worried about intimidation. The Minister said that people can, of course, apply for a postal vote, but that is only if the intimidation starts before the closing day for the postal votes. It is very likely, if people queue up and look at who is going into a signing place, that it would be much closer to the closing date, by which time it would be too late to apply for a postal vote. So the question of noting who goes in remains an issue.

Above all, my noble friend Lady Donaghy has shown the greatest wisdom today in her hope that this never has to happen. That would keep all of us most content—but, as my noble friend Lord Campbell-Savours said, if it happens it will be highly controversial. The way that these regulations have been written, and particularly the fact that they were not voted on either in this House or the other place, is regrettable. I thank the Minister for his time today, and my noble friends for supporting me on this Thursday afternoon. At this stage, I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

Motion agreed.

House adjourned at 5.10 pm.