Recall of MPs Act 2015 (Recall Petition) Regulations 2016
(Limited Text - Ministerial Extracts only)
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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
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.
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.