Recall of MPs Bill
Baroness Hayter of Kentish Town Excerpts(9 years, 11 months ago)
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Baroness Hayter of Kentish Town (Lab)
My Lords, the enthusiasm for this Bill is perhaps clear from the movement around the Chamber; we could be discussing the Recall of Lords Bill, but I do not think that is what it is meant to be. I shall speak also to Amendment 66 in this group.
Our major question is to ask the Government why they chose the figure four for the number of signing places, and after what consultation with the Association of Electoral Administrators and the Electoral Commission, given that they have totally failed to respond to what either of these two organisations recommended. If we are to have a recall petition, surely in the interests of fairness it should be equally easy for any constituents to sign, whether or not they live in the centre of an urban environment or in the country, whether or not they have a car and whether or not they have the time to make a two-hour round journey for the privilege.
The exact number of signing places required to meet the needs of individual constituencies, as well as the practical considerations surrounding staffing levels and availability, will surely depend on each constituency and should be left to someone who knows that geography and demography. Our amendment to Clause 7 would simply mean that where at present the number of signing places is limited to four, the petition officer would not be able to allocate fewer than four. The very fact that the Electoral Commission categorises the constituencies into boroughs and counties indicates that the demography of each varies enormously.
The largest constituency, Ross, Skye and Lochaber—I hope I have pronounced the latter correctly—is some 12,000 square kilometres, while Islington North, the smallest, is just 735 hectares. I therefore ask the Minister why it would not be better, as advocated by the Electoral Commission, to leave the responsibility for determining the number of venues to the petition officer, who will have far better knowledge of the area than either he or indeed I. The Electoral Commission states:
“We have previously highlighted its concern that 4 signing locations may not be enough to allow reasonable access for voters in every constituency given the diverse geographical nature of some constituencies … Petition Officers should be given the power to determine the appropriate number of signing places based on the characteristics of their constituency in order to provide more reasonable access for voters to sign a recall petition”.
The example of my home constituency of Brecon and Radnor that I used at Second Reading highlights this point exactly. As a county constituency, it has more than 90 polling stations at a general election. Having only four during the petition process will leave some electors facing the prospect of a round trip of an hour or more—and that is for people with a car. Those who have to rely on rural public transport could spend half a day out and about in the Welsh countryside—something that I would recommend, particularly to older people with pensioner passes, but hardly conducive for a busy parent with three children.
Having so few signing places will then tend to lead to a higher demand for postal votes, with consideration needed not just for the logistics of this but to provide safeguards to protect against fraud and double signing. Amendment 66 in this group would require the staffing requirements and opening hours of the locations to be set out in regulation. The Government’s memorandum states that in order,
“to keep costs low and to make use of convenient locations a petition officer may wish to use council owned buildings,”
and that they,
“anticipate that signing places will be open throughout the usual business opening hours of the premises used”.
Given that such timings will not suit everyone, the memorandum goes on to say that other options for some out-of-hours signing will be looked at. I therefore ask the Minister to set out the form that these considerations will take, whether stakeholders will be consulted, how frequently the Government anticipate out-of-hours options being available, and what the effect will be on costs of such extra hours. Furthermore, because no final decisions have been taken regarding the availability of signing venues, the Government admit that they will not be able to include provisions in regulations allowing for the emergency proxy of applications. Does the Minister recognise that that could have been avoided had the delay in bringing forward this legislation been used to give greater consideration to the logistic considerations? If the regulations will not cover emergency proxies, we need to know what provisions and guidance will be given.
Lord Wallace of Saltaire
My Lords, the recall process takes place in a number of other democratic countries. It is an established part of democratic institutions in a number of other established democracies.
Baroness Hayter of Kentish Town
My Lords, the noble Lord, Lord Forsyth, asked whether we were putting the cart before the horse. At least now I understand the Bill that we gave a First Reading to earlier, which was about the control of horses, which I had failed to understand thus far.
It is interesting that everyone who has spoken in this very interesting and geographically spread debate has supported the amendment tabled by me and my noble friend Lord Kennedy. We now hope that we will enjoy the same degree of support for our other amendments and will look forward to it as we proceed.
My noble friend Lord Howarth pointed out, as I was about to do, that if the best evidence that the Minister could have was from the Political and Constitutional Reform Committee report in the other House, it was on the basis that this measure should not proceed at all, so the case for four days really has to be better than that. However, I shall not labour that point because the Minister has agreed to take it away and look at whether the provision should state “minimum” or whether we simply leave it to the petition officer, as the Electoral Commission says. We would be content with either as long as there was that increased flexibility.
I am not a former Member of the other place, so I do not come with any of that, but it seems to me that the provisions relating to how you develop the petition, how you set up signing places and the training of the staff will be crucial. As someone who has been a teller at polling stations, I will want to know whether I will be allowed in, how many feet away I will be able to be from someone going to the polling station and whether I will be able to ask where they live—which effectively gives me knowledge of who they are and therefore who they are voting for. These are big issues, and we will need the staff at the signing places to have absolute clarity on that when they are challenged about how close I might be able to go wearing my rosette or my “Vote No to Wallace” badge. Would we be treated as we are at general elections? I can find none of that, even in the draft regulations. Therefore, the training, its length and the type of staff are absolutely key, which is why we wanted it spelt out more.
I thank all those who have given their support to the amendment. I hope that we can look forward to the Government tabling their own amendment on Report. For the moment, I beg leave to withdraw the amendment.
Lord Snape
My Lords, I support Amendments 38 and 39. I will ask the Minister a couple of genuine questions. He talked about the consultations that have taken place and will take place with local government officials about the administration of the Bill. I presume that the petition officer is more than likely to be the chief executive of the local authority—that is a reasonable assumption to make. Bearing in mind the numerous duties that chief executives have, it would be perfectly sensible for the Minister to look again at Amendment 38.
He has already said that among the matters to be resolved is the suitability of premises in which the petition is to be signed. Obviously, that cannot be done in a matter of hours; presumably it would take up a substantial chunk of the chief executive’s time. I do not want to go over the previous amendment again, but in his reply the Minister indicated the number of matters that are still subject to discussion between the Government and local authorities before the Bill is implemented. So I put it to him that surely, for those reasons, it would make sense for the number of working days to be increased from 10 to 21.
On Amendment 39, I agree very much with the noble Lord, Lord Norton. My noble friend mentioned abortion and the difficulties she had in her former constituency. Some years ago I was asked to speak about capital punishment on a television programme called “Central Weekend”, which might be familiar to at least one of my noble friends on this side of the House. Shortly before the programme went out there was a particularly brutal murder in the West Midlands. The question of capital punishment was raised—and understandably so—by local and national newspapers, in particular the newspaper covering my own constituency. I received a considerable amount of correspondence and some degree of odium because of the stance that I took. I would hate to think of someone in a similar position facing eight weeks of this sort of barrage, as well as whatever he or she had been charged with in the first place. An eight-week period would allow the media in effect to make the decision for the electorate, by putting on the sort of pressure that my noble friend faced on the subject she has just mentioned, which I faced some years ago and which many of us face. So both the amendments are sensible and I commend them to the Minister.
Baroness Hayter of Kentish Town
My Lords, the discussion about the role of different professions is interesting. I hope that the noble Lord, Lord Finkelstein, will help me. One of the little pieces of doggerel that I have remembered for years—I am sure that he will know the source of it—is about a journalist:
“I am the daily mentor who
Tells the Premier what to do:
And when he’s done it, I go on
To tell him what he should have done”.
Perhaps by the end of this he will let me know the source of that, which I learnt as a little girl.
The major amendment in this group is of course Amendment 39, which, as has been said, reduces the petition period from eight to two weeks. I have some sympathy with this as a probing amendment, simply to get the Government to spell out why they chose eight weeks rather than two, four, six or, indeed, even 10 weeks. Why was this thought to be the appropriate period? I assume that it was not chosen in the way that the Government chose the figure 500 as the number of seats they wanted in the House of Commons—by plucking the number from the air. I assume that there was more to it than that, but I have failed so far to find out what it was.
As an actual amendment, I am less sure that the two-week period per se would work. Let us think of this as more akin to an election. Before it we have that long run-in, or phoney war, which I am afraid we know too much about at the moment and which alerts people that the election is coming. If there were just two weeks to actually sign in that situation, that would be one thing. As noble Lords have said, the amendment has great attractions in terms of costs. However, as a realistic time for the whole process of alerting people to the issue, their right to sign, where the venues are—whether there are very few or more than few—and, importantly, to get postal votes if they cannot get there, two weeks is not the answer.
Lord Hughes of Woodside
My noble friend referred to the long period of time leading up to a general election. However, the moment a Member is referred to the Standards Committee, the whole thing will be under discussion in the constituency. Therefore, there is no need for eight weeks. People do not need eight weeks to make up their minds; two weeks is surely long enough.
Baroness Hayter of Kentish Town
There are two different issues here: making up your mind on the matter and the procedures involved. The questions I am asking the Minister are: why did the Government decide on this measure, and what is the appropriate period? Two weeks seems too short to get the whole thing set up and the registers ready. Indeed, we are talking about 12 weeks with a couple in between, given the eight weeks that have been mentioned, added on to a possible by-election lasting another four weeks.
I think that the noble Lord, Lord Finkelstein, now appreciates what my noble friend Lord Grocott said. The best thing would be to resign straightaway and call the by-election yourself, as the MP concerned, and go straight into a by-election, saying, “Yes, it is true that I have been kept out of the House of Commons for 10 days”—or whatever it is—“but that was because I felt very strongly about a matter; there was a Bill going through that I did not like”, or whatever the issue was. In that case, you are on the front foot. That is the point that my noble friend Lord Grocott was making. That would be a much more attractive proposition and might be the right way to tackle the matter—that is, by putting the MP in the control seat. Sadly, we have not discussed these issues fully and I do not think that the Government thought about adding the time for a by-election when they chose the eight-week period. They have some explaining to do about the choice of this period, particularly with regard to the discussions they have had with the electoral officers and the Electoral Commission on the eight-week period. We look forward to clarification on that.
Lord Wallace of Saltaire
This debate has ranged a great deal wider than the two amendments before us. I again remind the Committee that a commitment to bring forward a recall Bill was in the manifestos of all three parties in 2010. The draft Bill was published for pre-legislative scrutiny in 2011. The Political and Constitutional Reform Committee considered the proposed architecture and did not recommend changes, and it has also been approved by the other place.
I hear noble Lords around the Committee saying, “This is appalling. We have not thought of this before. This must be a last-minute proposal. Why has it not been thought through?”. This is not the case. We have consulted throughout, not with the Local Government Association, but with the society of chief executive officers and the Association of Electoral Administrators, the representative bodies for returning officers. They have not raised particularly difficult issues on this. I stress that the rationale for this measure was that the petition period would be parallel to, and part of, the process of discussion.
Baroness Hayter of Kentish Town
Does the Minister accept that we on the Front Bench have endorsed the Bill and are trying to make it work?
Lord Wallace of Saltaire
I entirely accept that the Front-Benchers are committed to that and I wish that noble Lords elsewhere were. We have already, in effect, extended the process of elections. The fact that postal voting starts at a much earlier stage is a problem that we now all face in elections. Indeed, we have extended the period, in regulations that I have taken through the House over the past two years, rightly, between sending out postal votes and the election, in order to provide more time for people overseas, people who are going abroad on holiday, or whatever. So the process of elections has now been extended and we have the severe problem, as I felt working at the last election, that by the last week of the election a substantial number of the electorate have already voted. The conversation takes place early. The intention stated in putting the Bill forward for pre-legislative scrutiny was that the dialogue would take place as the petition was opened.
Baroness Hayter of Kentish Town
My Lords, we have given notice or our intention to oppose the Question that Clause 8 stand part of the Bill. It is an opportunity to raise a fundamental issue about the whole Bill.
The Minister will recall that we discussed at Second Reading whether signing a recall petition was to be a secret or public act. As we noted then, if it was to be public, people must be aware that their identity will become known in due course before they decide to sign it. We gave given notice of our intention to oppose the Question that Clause 8 stand part of the Bill to ascertain from the Government what their present thinking is as to whether a recall will be by a secret vote or by a public petition. At the moment, the Government seem to have come to no conclusion. We would like to suggest a way forward. The Government have had nearly five years to decide on this issue, which is fairly key to the working of the Bill, but have failed to come up with a conclusion. They are therefore in need of some help, which I hope the Chamber will provide.
The Constitution Committee noted that,
“signing a recall petition is a public act”.
Indeed, the Government conceded that,
“whereas at an election the way in which the person has voted remains secret, this secrecy cannot be maintained absolutely through the process of signing a petition as there is only one way in which a person may sign”.
Unlike elections or referendums, on which a large amount of the Bill has been drafted, there will not be an “against” box on the petition signing sheet. Furthermore, if the Government intend for a marked register to be available, the list of “for a recall” will become public, moving away from the notion of secrecy. There is nothing to stop organisations filming who goes into the signing venues or, as I mentioned earlier, stop those of us who lobby for one side or another and mark who goes in and who comes out. Indeed, we would ask for polling cards, as voters will be given polling cards in the same way as normal. I do not need to explain to the House how quickly videos or images can be circulated on a variety of different platforms, digital or otherwise.
It is crucial that a clear decision is taken as to whether this will be, in effect, a public petition or a secret act, which could be done not dissimilarly from the way suggested by the noble Lord, Lord Hamilton, who is not currently in his place, in Amendment 51, by having separate “for” and “against” forms. Whatever the final decision, it must be clear in the Bill and voters must be informed of it well in advance.
This is a complex issue, about which I, for one, have yet to decide. There are strong arguments on both sides. However, my concern is that this has not been fully discussed and the Government have not, to the best of our knowledge, engaged stakeholders, such as the political parties, the Electoral Commission, the Electoral Reform Society, the Association of Electoral Administrators, or anyone else. Indeed, when we met the Electoral Commission, it seemed unaware of this as an issue and had not really paid any attention to it.
We really must have a greater sense of this—of the arguments on both sides and of the views of others—before Report. We simply cannot afford to leave it to the next Parliament—or, even worse, to the triggering of the first ever recall—to take a decision on this. Everyone needs to be clear about the process before the first such petition happens. Therefore, as a Parliament, we need to decide now, but informed by research and consultation, which sadly has yet to take place. After that, we can see the regulations, the information to be given to electors and agree the exact procedures in the light of whether this is an open or closed petition. My suggestion to the Government is that they undertake that consultation before this comes back to the House. They should come back with a clear view based on the evidence of that consultation. That should be in the Bill and the relevant regulations could be so drafted afterwards.
Lord Soley (Lab)
My Lords, I share the concerns expressed. The Government need to think long and hard about the privacy issue. If this Bill had been put before the House in the 1970s or 1980s, there would have had to be a clause making it clear that it did not apply to Northern Ireland. Fortunately, I think we are over the worst of that but, as the Minister knows, it is still a sensitive area and I am not sure whether this will apply to Northern Ireland. I must admit that I meant to check that point but I did not. I also think that there could be real problems as regards the privacy issue in areas where there are ethnic or religious tensions. I am not sure what thinking the Government have had about that.
In view of all the battles, literally, over the centuries to get the secret vote, you can see why people might be worried about signing a petition in public or, worse still, signing without realising that it would be made public after the event. At that stage, people may want to take their name off the petition, to change their mind or whatever. I do not have any confident feeling that the Government have thought this part through. I look forward to the Minister explaining how he will deal with this, particularly in those areas where there are tensions and as regards expecting people to sign a petition but not to change their mind later and desperately try to get their name off.
Baroness Hayter of Kentish Town
My Lords, clearly the Government have still not made up their mind about this. What I most regret is the suggestion that this could be left to regulations. What we probably need is an amendment to the Bill at the Report stage because the question of whether this is going to be a public or a private act has to be clear before the Bill leaves Parliament. That is for us to decide if the Government really are not going to make it clear beforehand.
I think I heard the Minister say that consultations would take place with others outside before they come to a view on this.
Lord Soley
Perhaps I may draw attention to the fact that Clause 23 does actually extend to Northern Ireland. I ask the noble Lord to check that the Northern Ireland Secretary of State is aware of this, and whether she has any views on it.
Lord Grocott
My Lords, this is a heroic attempt to create, as my noble friend said, a level playing field. I am sure the noble Lord, Lord Hamilton, would acknowledge that Amendment 51 could be tidied up but the objective or principle behind the amendment of trying to make some provision for fairness is an important one in a very extended procedure. We know about the time between the Speaker and the petition officer and then the eight weeks that is in the Bill which will all have been preceded by lengthy considerations in perhaps a court or in the committee of the House of Commons, during which time the only case that will be heard is the specific case against the Member of Parliament. During the eight weeks, if the Bill stays as it is at present, the drama, at least at constituency level, will be all about how many have signed so far, “Have enough signed so far? Roll up! Sign up! We’re nearly there”. What is the defence against that? There is no defence.
The principle behind Amendment 51 in the name of the noble Lord, Lord Hamilton, is an impeccable principle. I hope that the Minister, even if he does not like the particular wording of the amendment, will at least acknowledge the importance of the principle.
Baroness Hayter of Kentish Town (Lab)
My Lords, I found the travels of the noble Lord, Lord Hamilton, around the highways and byways of Richmond Park interesting. When this Bill was first thought of, we were thinking it was going to be a Sheffield Hallam one with the NUS bussing in its students. So we have come further south from that early discussion.
Amendment 51 is interesting. As I said earlier, although I think the noble Lord, Lord Hamilton, was not in his place at the time, the amendment could answer the queries that I had raised about whether the process is secret or effectively open. It is another way of dealing with that by allowing people to vote against and not just in favour of a recall by-election. It would certainly be a clearer option for electors who know that they have a choice. They can express that choice, having thought about the issue.
It is not, of course, what the Bill proposes so I am not able to offer support for it, particularly as it would negate a by-election simply if 10% voted against. You could have 30% wanting a by-election and 10% against. Under the amendment as drafted, the 10% would trump the 30%, which I am sure would not be a desirable outcome.
With regard to the increase to 20%, what the right reverend Prelate the Bishop of Chester was saying was interesting. From that, I might take the other view; if you get the 20% you have lost a fifth of your electorate. Effectively there will be no by-election. After having 20% against them, no one will possibly contest the by-election; so there would be a by-election, but not with the MP there. The purpose of the Bill, as it has been drafted, was that there should be the possibility of a by-election at which the MP refights that seat and tests the issue as to whether, despite whatever they have been found guilty of, they are nevertheless able to represent their constituents. My concern about the 20% is that it undermines the difference between a by-election and a recall petition.
I acknowledge that the Political and Constitutional Reform Committee recommended 20% but I do not think that we should pray that in aid given that it wanted no sight of this Bill whatever. I look forward to the Minister’s comments. The interesting thing is why on earth 10% was chosen and not 5% or 15%. The problem of 20% is that it effectively gets rid of the idea of having a by-election that the MP would fight. In that sense, it goes against the spirit of the Bill.
Lord Gardiner of Kimble (Con)
My Lords, this has been an interesting debate and I have listened carefully and seriously to all the points that have been made. I know I am repeating this point, but it should not be forgotten that for a recall petition to be opened in the first place a Member of Parliament would have had to have committed serious wrongdoing and to have met one of the three conditions in the Bill. All of your Lordships know very well what those three triggers are.
The noble Lord, Lord Howarth of Newport, raised the concern that a future Parliament might do this or that with other triggers. We obviously cannot bind what another Parliament might wish to do. This Bill before us is about three triggers which involve serious wrongdoing. That is the right balance. That is the point which the other place had come to as well. We believe that reaching the figure of 10% of constituents signing the petition would show a significant level of support for a recall and would trigger a by-election in which the sitting MP could stand.
Recall of MPs Bill
Baroness Hayter of Kentish Town Excerpts(9 years, 11 months ago)
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“( ) The petition officer will make public, before the signing period begins, the number of eligible registered electors on the day of the Speaker’s notification that a recall condition has been met.”
Baroness Hayter of Kentish Town (Lab)
My Lords, Amendment 58A stands in my name and in the name of my noble friend Lord Kennedy of Southwark. There will be a key number—a target—in any recall. It is not like a normal election where, regardless of the number of promises that we manage to get, we still have to have more than the other guy in order to win. However, a recall is not the same issue. Once a specified number—10% of the registered electorate—is reached, a by-election is automatically triggered. Therefore it is vital that everyone knows what this figure is well in advance, so that it is not being argued about at the same time that signatures are being scrutinised, verified and counted. The amendment therefore requires the petition officer to publish the number of people who are on the electoral register the day that the Speaker announces that a recall condition has been met—in other words, the number at the point at which the 10% is to be counted. That is vital in order to have absolute clarity about the precise number of potential voters that constitute 10% of the constituency. The petition officer will need to know this number anyway, so everyone else should know it.
Lord Wallace of Saltaire
It is my understanding that that is the case, but I will make sure that I can confirm by Report exactly what the position is intended to be.
Baroness Hayter of Kentish Town
I thank the Minister. I accept that three working days before the petition opens would be a better date for the number to be published. However, I am slightly uneasy that he is going to leave it to regulations which will not appear before the next Parliament to make it clear that the number should be published well before the count takes place. There is a real concern that, if the result is very close, we should not have a debate about what the correct number is at that point, given that there are bound to be difficulties about the signatures. For example, some people will have signed in the wrong place and there will be difficulties around verification. We have all been there. That is not the right time to argue also about whether the relevant figure is 7,300 or 7,400.
In a moment I shall ask leave to withdraw the amendment, but I ask the Minister to think about whether, at Report, the Government will either suggest making it clearer that it would be published, say, within three working days, or at least writing it into the record that the Government’s intention is that the regulations are likely to specify that the number could be given well in advance. I shall leave that thought with the Minister. I think that he concurs. I beg leave to withdraw the amendment.
Baroness Hayter of Kentish Town
My Lords, I shall also speak to Amendment 72.
Amendment 60 would ensure that all campaigners spending more than £50 were covered by the recall rules. Amendment 72 would ensure that all campaigners were covered by PPERA. The purpose of these is the same, in a way, albeit the former is by way of a probe, to ascertain from the Government why they chose the figure of £500 and also what thought was given to five or six campaigns in a constituency all being able to spend £500—technically, I think it is £499—without any sort of regulation. We want to see all but very small, local petitioning campaigning done in compliance with rules of fairness and transparency, particularly in relation to donations and expenses.
Just 10 days ago, on 9 January, we read a Cabinet Office spokesman saying:
“We want to make the political system more accountable and prevent a situation where opaque and unaccountable groups spend large sums of money attempting to influence the political system”.
We say amen to that, but the Bill as it is written allows unregistered people, indeed, non-UK nationals, to give or to receive foreign donations—in other words, not simply donations from permitted donors—and it would allow them to campaign in a recall petition provided that they did not spend more than £500. However, three, four or even more such campaigns could all be at work in the same constituency, which is, surely, exactly,
“a situation where opaque and unaccountable groups spend large sums of money attempting to influence the political system”,
but, in the case of recall, the Cabinet Office appears strangely unconcerned.
Some such groups may be working in complete innocence, but also in ignorance of the normal PPERA and Representation of the People Act rules, as they will not be registered parties, with all the expertise and experience that that implies. So while we welcome the parity of campaigners when it comes to rules on printed literature, if all campaigners are to be held to the same standards of election law, they should also all have access to the same advice and guidance as registered parties.
Schedule 6 makes provisions for how the Bill affects existing legislation, including the Representation of the People Act 1983 and the Political Parties, Elections and Referendums Act 2000. It is the latter that our amendment concerns. At present paragraph 3(7) requires that only accredited campaigners be offered advice and assistance from the Electoral Commission, whereas we think that the commission should also be on hand to support non-accredited campaigners. Does the Minister agree that such access to advice is essential to help this be fair and transparent in the way we want? Will he, therefore, agree to correct this anomaly? Will he also confirm that all spending and donations should fall under PPERA, which, at the moment, they do not?
I return to Amendment 60, which relates to the amount of money that non-accredited campaigners can spend. There is nothing in the impact assessment as to how the figure of £500 was chosen; and why is the figure the same for all constituencies, regardless of the number of electors? At election time, the amount that one can spend varies, depending on the number of constituents. Can the Minister set out the thinking behind the choice of £500?
We are concerned about the lack of parity between non-accredited and accredited campaigners in terms of the scrutiny to which they will be subject and the guidance they will receive. Our understanding is that non-accredited groups, which could between them outspend the MP, will not otherwise be covered by PPERA; but, again, perhaps the Minister can confirm that our reading of that is correct and whether he is happy that so much money can be spent in one constituency with no rules at all. I beg to move.
Lord Gardiner of Kimble
I will take advice on precisely the answer to that so that I am most helpful to the noble Lord. I do not think that there is any point in me flannelling on when there may be a distinct reply to help the noble Lord.
Baroness Hayter of Kentish Town
I have to say that I have never heard the Minister flannelling on. I thank him for his reply. However, I have some problems with it. I think that the answer to my noble friend’s question about who keeps an eye on the non-accredited campaigners is clear: there is no one to do it. I understand the intention was that people should be able to spend up to £500 below the radar. He has called in aid, I think, the Electoral Commission. I really have to take issue with the Electoral Commission’s full submission for today. It keeps on saying, and has said it on this amendment, that these are intended to be localised events. I worry about the Electoral Commission if it really thinks that that is what a recall will be. It has to get real. Particularly as regards the first of these, it will not be a localised event. They will be extremely high profile. Michael Crick will be there and all of us will be there working for or against. There will be an enormous amount of scrutiny. The Electoral Commission has to get real about the fact that they will not be very localised. I am worried particularly about those that are under £500. As I have said, the £50 figure was probing but I wonder whether £150 or £200 is not a better figure.
I think that the Minister used the word “content”, and I have to correct him. The content of the material will not be scrutinised, it will only have to have the imprimatur, “printed and published by”, on it. That is the only requirement. More than that, those spending less than £500 are absolutely free of any requirements about donations. They can be taking money from Hong Kong or anywhere else without having to declare it. Even if there was someone to look over them, it would still be completely legal for them to do this. If I have understood this right, they can spend up to £500 with donations coming from anyone because they do not come under the PPERA rules at all. Therefore they break all our normal rules on this.
Lord Howarth of Newport
I am inspired with confidence when I listen to my noble friend expounding the Bill. Perhaps she can correct me if I am wrong, but am I right in thinking that in effect there can be any number of these non-accredited groups operating in parallel, but there is provision that where expenses are incurred by persons acting in concert, the total value of those expenses is to be regarded as having been incurred by each of the persons in question? It seems to me that the protections, if there are any, are very flimsy indeed. As my noble friend Lord Foulkes suggested, we have the very dangerous possibility of a great proliferation of many organisations campaigning to unseat a Member of Parliament with no control over their number, no control over their aggregate of expenditure, and with the freedom for them to solicit and receive expenditure from anywhere in the world. Is that not deeply unsatisfactory?
Baroness Hayter of Kentish Town
It is interesting to note that when we were dealing with the transparency of lobbying Bill, which has been mentioned, we could see that as soon as charities work together they all have to take account of each other’s expenditure. But as long as these groups do different things, with one of them responsible for the literature and another one doing something completely different, there can be any number of them. As I say, there can be any number of non-accredited campaigns and any number of accredited campaigns. Ten of them could all spend £500 and another 10 could all spend less than £500. The cumulative amounts could be very large. However, that is for the Government to answer rather than me. For the moment, I beg leave to withdraw the amendment.
“(A1) The Electoral Commission will, in relation to each of the two possible outcomes of the recall petition, designate under this paragraph one accredited campaigner as representing those campaigning for the outcome in question.”
Baroness Hayter of Kentish Town
Amendment 61 stands in the names of my noble friend Lord Kennedy of Southwark and myself. We tabled it partly because of the matters covered in the discussion that we have just been having: its intent is to limit the number of accredited campaigners to two. We believe that that would bring greater fairness to the recall petition. I shall also speak to Amendment 65.
As I said on Second Reading, and have just said again, the problem is that the Bill contains no restrictions on the number of pro-recall accredited campaign groups, all of which can spend up to £10,000. The groups could therefore include the three political parties that were defeated at the last election, and each of those could spend £10,000. So the other political parties could spend £30,000, whereas the MP or their party—if they were still supported by their party—would be capped at £10,000.
The Electoral Commission, in its response on this, said that it did not think it should be given responsibility for what was essentially going to be a local matter. As I said on the previous amendment, a recall will not be a local matter: Michael Crick will be there; it will be on prime-time television; there will be a lot of publicity; there will probably be a few stunts, and campaigners will certainly be bussed in from other constituencies, particularly if the Government have a slender majority or the seat is very marginal.
The Committee will know that we support a recall petition where an MP has been involved in serious wrongdoing, as has been agreed in the other place. Once this provision starts, however, it will not be about behaviour. Our worry, as my noble friends said earlier, is that it will turn into a debate over the MP’s voting record or beliefs. The current expenditure guidelines do not appear to recognise that logic. They are not sufficiently clear to ensure that the debate is not on those issues. If there was something going on in the big political world at the same time, the ballot could almost become a vote of confidence in the Government on that issue. Well funded vested interests could—they should not, but they will—play a part in the recall ballot. We therefore need rules governing the financing of the recall campaign to ensure that it is not hijacked by politically motivated groups out to deselect sitting MPs for something that is unrelated to their behaviour. In fact, it could be motivated simply by the desire to get a by-election, which might suit UKIP, for example, at the time. Will the Minister—who I think shares some of these objectives—outline the safeguards to prevent that?
Amendment 61 would prevent multiple organisations from campaigning on the same side, whether that is the “for” side or the “against” side. It would therefore limit the number of accredited campaigners to two: they would be either the MP or the anti-recall campaign and one organisation or group seeking to deselect the MP—the pro-recall campaign. In so doing, it would ensure an equality of arms between the two sides. There will be those who believe that, whatever wrongdoing the MP has been found guilty of, he or she should nevertheless stay and represent the constituency. There will be many cases where the constituents would want that to happen. There will also be those who feel that the MP has simply lost the confidence of the constituency and a by-election should be held. It seems to me that there are two options and that there should be two campaigns.
Amendment 65 would ensure that the campaign literature of all those involved is subject to scrutiny in order to deter campaigners from focusing on issues that are unrelated to the misdemeanour or criminal activity proven against the MP. This would not be a complete ban, as was mentioned earlier, but it at least ought to be sent in to the petition officer to be checked.
We want the recall debate to focus on the conduct of the MP and their consequent ability to represent the constituency, rather than the causes that he or she supports or their voting record on contentious issues. While we welcome the commitment by the Government in their memorandum on the draft regulation that it will be a requirement for campaign material published by both accredited and non-accredited campaigners to contain the name and address of the printer and promoter, we think there needs to be rather more guidance on this, particularly pertaining to the content of the material. I beg to move.
Lord Wallace of Saltaire
My Lords, I thank the noble Baroness for the very useful and constructive way in which she has presented these amendments.
Amendment 61 draws inspiration from the approach taken to national referendums, where the Electoral Commission designates a lead campaigner. Each designated organisation then receives a grant from the Electoral Commission of up to £600,000 to spend on referendum expenses across the UK. The amendment is not supported by any further amendments to provide grants to the lead campaigners in the event of a recall petition. We are, of course, concerned about the impact of big money and outside money on recall events.
I repeat: a recall petition will not be launched until one of the triggers has been pulled. That provides the defence against the idea that recall can be bought by wealthy campaigners, as it was argued would have been the case under the proposals tabled in the other place by the Member for Richmond Park, which are no longer in the Bill. Under the Government’s proposals, the only person responsible for a recall petition being triggered is an MP himself or herself for committing a defined offence. Wealthy campaigners cannot cause a recall petition to be initiated—
Lord Wallace of Saltaire
My Lords, there is a precedent in electoral law for limiting the number of people who can be involved. Even at a referendum, where a lead campaigner is appointed, multiple campaigners can also separately campaign for one side or other, subject to the spending limits. So even in a referendum, others can come alongside for the game. We are not persuaded that the tighter limits and much tighter controls proposed are desirable or necessary on this occasion.
Baroness Hayter of Kentish Town
As the Minister said, in a referendum, they are subject to spending limits, which they will not be here.
I do not know whether I disagree most with the Electoral Commission or the Minister. The Electoral Commission keeps saying that these will be essentially local electoral events. If this happens, there will come a time when it will discover that that is not the case. The idea that it does not want to choose and set up one campaign on either side seems to me to be not facing up to its responsibilities.
The major issue is that of the Government, as my noble friend has just been saying. I am not sure that there will even be local campaign groups. I do not know whether in Kentish Town tenants’ groups or local businesses—the groups that we know more—would campaign on this issue. What I do know is that the other political parties would. Unlike some of the noble Lords who spoke earlier, I think the party will sometimes rally round its MP because it will not want a by-election. I hope that it is not as the noble Lord, Lord Hamilton, said earlier—that it is going to be a minority Tory Government—but if it is I can imagine that we would be very keen to have a by-election from the Opposition, if we could make that choice. Even with an MP who had been out of the House for 10 days, we might well campaign for him and the other political parties would want to vote against. We on one side would be able to spend £10,000 and the four other parties could all spend £10,000 the other way, and the debate would be about whether there should be a by-election. It will not be about what the MP has done. It will be about whether there should be a by-election. There could be £40,000 spent on one side and £10,000 on the other side. The answer to my noble friend Lord Grocott’s question is that the Government are content with that. I think it is clear that we have our doubts about this, but for the moment I beg leave to withdraw the amendment.
Recall of MPs Bill
Baroness Hayter of Kentish Town Excerpts(9 years, 11 months ago)
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Lord Martin of Springburn (CB)
I have often been careful in the past to remind Members in the other place that they should not use amendments for Second Reading purposes, but perhaps I can stray, because the expenses situation has been mentioned by my noble friend and others and I find it interesting with regard to the recall of MPs. When I came into this House, some Members who had served in the other place were quick to condemn those who were, for want of a better word, exposed in the expenses scandal and said that it was a terrible thing. It was a terrible thing because five years of expenses were exposed at one time, because of freedom of information and the way it was handled. I have often thought this to myself and now say it out loud: if only some of those ex-Members who are now Members of the House of Lords and who were quick to criticise had been prepared to explicitly produce their bank statements, we might have been able to see what they claimed in parliamentary expenses.
However, that is not the reason I am on my feet. Forgive me if I do not get the first name right, but I remember Harold McCusker, who went to jail on a principle regarding the Troubles in Northern Ireland. He had a different point of view from myself and the noble Lord, Lord Maginnis, but I got on well with Harold McCusker. After he came out of jail, he said to me that it is a very humbling experience when the door is slammed on a prison cell, and you are in there wondering whether you have done the right thing. I often read the lovely articles that the noble Lord, Lord Finkelstein, writes when he speaks about recall and I ask him to think about the following point that I would like to make about expenses.
The media have their favourites—let us not kid ourselves. I go back to the expenses. There was a Member of Parliament—and good luck to him; I do not like using names, and in fact, I think there is a rule that we should not criticise Members of Parliament in the other place—who got into serious difficulty. Members of the media publicly said, and they were entitled to do so, “Well, you see, he was gay. He did not want his mother to find out about it”—I am not going to hammer this home—“because he was a Catholic”. Well, my mother brought up five children, and she was the most devout Catholic I ever met and am ever likely to meet. I tell you this: she would have known if one of her sons was gay. Then I look at the sum concerned, quite a fantastic sum of money. The power of forgiveness is important, and I do not deny anybody the right to defend someone who has erred. I think it was Robert Burns who said:
“Then gently scan your brother man,
Still gentler sister woman”,
and if you find that they have erred:
“To step aside is human”.
Here is the point I make to the noble Lord, Lord Finkelstein, and maybe he can think about it with some of his friends in the media. There was a man in the other place who went to prison. Those of us who were dealing with that individual before he went to prison knew that he should have been cared for with regards to alcoholism. He should have been in the Priory or some other institution. I speak as a teetotaller. At that time I spoke to parliamentary Whips about his difficulties. Anyone who knows about alcoholism knows that one of the difficulties with an alcoholic is you sometimes cannot tell them that they are their own worst enemy. For a small amount, he went to jail. Not one individual in the media stood up and said, “That man needs help rather than prison”.
Here is where I go when we come to recall. You get a recall, and let us say that you get people in a marginal seat. There could be a single issue in that constituency at that time. It could be a threatened hospital closure or some other big issue. Then mob rule can prevail.
The other place is entitled to do what it wants. Our great strength is to draw on our experience and the life that we have had and to say, “Watch, and be very careful what you are doing”. The aftermath of the expenses fiasco—the debacle, the scandal—has meant that it introduced IPSA. No one can even purchase as much as a postage stamp or a half a pint of milk but it has got to be made public. There is talk and complaint about that. The rigid system that exists there has come out of the difficulties of the past. We have a serious problem. Any time that I have been involved in legislation where both sides of the House and the third party are in agreement, then within a short space of time we rue the day that we made that decision.
Baroness Hayter of Kentish Town (Lab)
My Lords, this has turned out to be a rather more interesting discussion on the amendments than I had anticipated. I do not want to repeat my Second Reading speech, but I remind the House that particularly this third arm, if you like, was added by our party with great support in the other place. It was not added because some of us wanted to be Ministers. In fact, when some of us supported it, we were not even in this House. It was because those outside Parliament were deeply shocked when they saw MPs doing things which, if they were in any other profession, would have lost them their jobs. They saw these people still turning up at their place of work the day after they had done things that any other employer would have dismissed them for.
Lord Stoddart of Swindon (Ind Lab)
My Lords, like the noble Lord, Lord Maxton, and others, I did not take part in the Second Reading debate on the Bill because I felt that Members of the House of Commons know best how to control themselves and the relationship they have with the electorate. However, having heard other speeches, I agree that it is incumbent on this House to consider legislation and to have in mind the view, in particular, of the House of Commons.
I believe that this amendment is very dangerous indeed, and I am pleased to have heard the noble Lord, Lord Howarth, state that, if passed, it would in fact be illegal. That is because of the Bill of Rights 1689. No doubt the noble Lord, Lord Tyler, has investigated this and we will hear from him later. This amendment is dangerous in respect of the rights and privileges of the House of Commons. Quite frankly, I am getting fed up with the attacks being made on the House of Commons and its Members. All these attacks which describe them as shysters and people who concerned only for themselves do extreme damage not only to the House of Commons but to parliamentary democracy itself. People should remember that Parliament is the protector of the people against unfair government. We and the House of Commons are the protectors of the people. It is therefore very important that we should not denigrate the position of MPs. I believe that this amendment does exactly that. It is unnecessary and it denigrates the position of the House of Commons.
In effect, the House of Commons will decide whether an issue about a Member of Parliament should go to the electorate in a referendum, and I believe that that is the correct way. The amendment suggests that the House of Commons itself is not fit to do that. I repeat: that will undermine the position of the House of Commons itself, of its Members and, indeed, of Parliament. I cannot accept a situation where 500 people who are completely unqualified and lack knowledge, for some reason that is not really injurious to Parliament and to the House of Commons—this has been explained by many speakers in the debate—can introduce a position where judges can interfere in the decisions of Parliament, which of course should be sovereign. If we take away decision-making from Parliament and the House of Commons, they really will cease to be sovereign. For that reason, if the amendment is put to a vote—although I am sure that it will not be—I will vote against it.
Lord Kerr of Kinlochard (CB)
My Lords, I want to say just a word in support of what the noble Lord, Lord Forsyth, said against the notion that this is purely House of Commons business. That must be wrong. For example, it would be very useful to know whether the noble Lord, Lord Tyler, believes that the judicial procedure he has set out consisting of two judges who will consider cases of parliamentary misconduct would be confined only to allegations of parliamentary misconduct at the other end of the corridor. That seems to be rather illogical and therefore his amendment is absolutely our business. Of course, he is proposing the amendment, so he will not agree with that.
The amendment is extremely dangerous for all the reasons that have emerged, and particularly the first reason, which was so well explained by the noble Lord, Lord Howarth. I have to say that I think that the Bill as a whole is extremely dangerous even as it is. Mine is the Burkean principle. Members of Parliament are sent up not to represent the views of their constituents, but to exercise their judgment. They are chosen on the quality of their judgment, so for all those reasons the Bill is defective.
The only speech in this debate which has surprised and disappointed me was that of the noble Lord, Lord Finkelstein, for whom I have enormous respect. I think that he has been lunching too often with that chicken.
Baroness Hayter of Kentish Town
I apologise for leaping to my feet too quickly. I was going to say that in over an hour of debate the amendments have found no favour in the Committee, other than from those who added their names to them, and I will not alter that in what I say now. Having heard the name of Bernadette Devlin, I am going to share a secret with the small gathering in this Chamber. I was not actually born blonde. It may surprise noble Lords to hear this, but I looked very much like Bernadette Devlin. When walking around London I was for ever being stopped and I had interesting discussions. It is a long time since that has come to mind.
It is clear that the noble Lord, Lord Tyler, has devoted a great deal to these amendments but, in the words of the last two noble Lords to have spoken, they are, if not dangerous, certainly full of major problems. The amendments would catapult relatively minor misdemeanours well above our legal means of resolving alleged wrongdoings—and that starts with only 500 signatures. I could certainly get that number on a Saturday morning in busy Kentish Town. That would bring an MP not simply to the police, to the DPP or even to a magistrates’ court to see whether there was a case to answer, but up and over all of that to a judge, possibly on the basis of no evidence—simply following an allegation. The allegation would not have to be tested or proved at any level, nor would any suspicions have to be verified. Indeed, the issue could be entirely without merit and without evidence. It could be based on mistaken identity. Moreover, if the complaint against an MP is not criminal, why on earth would it go before a judge-led hearing? I assume it would not be criminal because the amendments state that the hearing would,
“be suspended if any of the matters under consideration are the subject of criminal investigation or criminal proceedings”.
I think that means that we are talking about something which is not even criminal, yet it would go to a higher level than things that would normally go to a magistrates’ court and be tested by a presenter or a prosecutor. I really do not understand why this is being taken to that level. What the amendments will do is up the ante, if you like, of misdemeanours to above the criminal, and straight before not just a single judge but a double-judge hearing. As a former magistrate, I find that quite difficult to understand. We were able to hear many cases of criminal wrongdoing and even indictable offences to see whether there was a case to answer. However, there would be no such filters on this.
There are also big questions which have already been touched on as to rules of evidence, legal representation, hearsay evidence, cross-examination and the disclosure of previous convictions. These are big issues. To bring someone in front of a court—the word “trial” has been used—on the basis of nil evidence is extremely worrying. The amendments would even force witnesses to attend, at the risk of being in contempt of court. As a magistrate, I do not believe that I had the right to do that. This is a heavy sledgehammer to use on what might be a completely unproven allegation, and certainly something of a non-criminal nature which otherwise would be dealt with separately.
What is this misconduct? If it is not a crime and it is not being dealt with by the police, what is it? Is it non-appearance, because people have said that they would not come? Is it about an MP being in Barbados for the past 11 months, although in the current weather I would quite understand if they were over there? What is the nature of bringing Parliament into disrepute? I see no merit at all in these amendments, and the speeches so far probably concur with that. I trust that we will not see them back at the Report stage.
Lord Gardiner of Kimble
My Lords, yet again we have had a thought-provoking and thorough debate. I acknowledge the work that my noble friend has devoted to this matter. As your Lordships know, the amendments are a modified version of those brought forward in Committee and on Report in the other place. The underlying principle behind involving the public in initiating the recall process for reasons of misconduct did indeed attract some support in the other place. Although I know that I shall not receive the approval of the noble Lord, Lord Grocott, it is interesting to see that these amendments were rejected in the other place by 271 votes to 64.
My noble friend’s Amendment 2 would remove the first and second recall conditions yet retain the third. The proposed new clauses create the concept of a parliamentary misconduct hearing, which would involve two judges examining the behaviour of an MP if the hearing received a petition alleging certain forms of misconduct that had been signed by 500 constituents. The parliamentary misconduct hearing would not be required to determine guilt to a criminal standard but rather whether parliamentary misconduct had on the balance of probabilities taken place. The noble Lord, Lord Howarth of Newport, highlighted this.
Turning to some of the detail of the amendments, the number of petitioners necessary for the parliamentary misconduct hearing to consider the allegation has been proposed at 500. The aim is to give the public some involvement in initiating the process. Of course, if it is alleged that a criminal offence has been committed, it takes only one person to make a complaint for that to be investigated by the police, for instance. Arguably, if the complaint is valid it should be taken forward regardless of the number of complainants. On the other hand, as a test of public will, is the number of 500 constituents perhaps too low? My noble friend has explained in detail the behaviour that the parliamentary misconduct hearing is being asked to judge. I am not going to outline that further, given the time.
Criminal matters, which could include bribery and misconduct in public office, as well as offences relating to parliamentary expenses, would be investigated by the police and adjudicated by the courts. However, my noble friend proposes that criminal convictions and prison sentences should not be a trigger for recall, except for offences regarding parliamentary expenses. The trigger my noble friend proposes is a finding by the hearing that on the balance of probabilities the misconduct took place—a lower standard of proof than that used in criminal cases.
Matters that fall under the Code of Conduct can be examined by the Parliamentary Standards Commissioner, the Standards Committee and the House of Commons, which can order suspension. The proposals in the Bill are that a suspension of more than 10 sitting days could trigger recall. My noble friend’s amendments would not prevent investigation by the Parliamentary Standards Commissioner or the Standards Committee or suspension from the House taking place; they would simply decouple it from recall. So there could be a parallel process of investigation by the commissioner, the committee or the House, and a parliamentary misconduct hearing—all of which, of course, could reach different views.
I turn to parliamentary privilege, which was first raised by the noble Lord, Lord Howarth of Newport. In addition to the proposed parliamentary misconduct hearing set out in these amendments, there are the serious concerns that noble Lords have quite widely expressed vis-à-vis the interaction with parliamentary privilege. For the parliamentary misconduct hearing to have any real effect, it is likely that the judges appointed to determine misconduct would need to question proceedings in Parliament and would need to examine issues that are covered by exclusive cognisance; that is, that Parliament has sole jurisdiction over its own affairs, including standards and discipline. As the noble Lord, Lord Howarth of Newport, identified, that would be contrary to the protection afforded by the Bill of Rights; for example, the provisions in the amendments would give a role to the hearing to examine breaches of MPs’ conduct, which would impinge on exclusive cognisance.
It is also proposed that the parliamentary misconduct hearing would be able to look at issues such as cash for questions, attendance in the House and abusing or bringing into disrepute the office of a Member of Parliament—all matters which are to some extent likely to be covered by privilege. The provisions also set out standards for Members of Parliament by defining parliamentary misconduct as non-attendance in a six-month period. However, the amendments are silent on the interaction with parliamentary privilege.
Of course, Parliament does possess the ability to allow a hearing to deal with matters that fall under its exclusive cognisance, and to question proceedings in Parliament. However, if we are to take such a momentous decision, we should be fully aware of what we are doing, and there needs to be an overriding reason to do so. The problem the Government face is not being convinced that either of these conditions has been met. The type of wrongdoing covered by this alternative trigger already triggers a recall petition under the conditions in the Government’s Bill. The triggers in the Government’s Bill, whether noble Lords like the Bill or not, are intended to fit in with the disciplinary and constitutional arrangements of our Parliament.
I turn to the relationship with criminal prosecution. While the amendment contains a provision to allow for the suspension of a hearing in the case of a criminal investigation or criminal proceedings, it may be that these would be initiated only due to testimony in or judgment of the hearing. In the case of alleged criminal misconduct, if the defence had already been rehearsed before a parliamentary misconduct hearing, or the hearing’s finding was considered prejudicial to the MP’s presumption of innocence, it may not be possible for the MP to have a fair trial. The fact that an MP had to answer allegations in a parliamentary misconduct hearing could prevent him or her from facing criminal prosecution for misconduct that amounts to a criminal offence.
I am very conscious that my noble friend has devoted a lot of time and work to putting forward his amendments, given some of the background to why we are where we are. I hope your Lordships will understand that we feel there are very serious matters, which your Lordships and I have endeavoured to outline, that are of sufficient concern that I ask my noble friend to withdraw his amendment.
Lord Finkelstein
For words to fail the noble Lord, this really is a serious crime.
Baroness Hayter of Kentish Town
My Lords, first, I will answer one question. This does indeed cover suspended sentences, which is clear in the Bill. I am surprised—my noble friend normally reads every jot and tittle in it—but it covers suspended sentences as well.
Lord Foulkes of Cumnock
Perhaps my noble friend could draw my attention to exactly where.
Baroness Hayter of Kentish Town
I need notice of that question—and he is my noble friend! I believe that the Minister will have the actual paragraph by the time he comes to reply.
Amendment 3 would allow a conviction and imprisonment outside the UK to count as a trigger. My noble friend Lord Foulkes hinted that he knew someone would raise the question of Saudi, as indeed I will do. I am sure that he does not mean that someone who was perhaps a transgender person driving a car in Russia, which we have just learned is going to be unlawful, or a woman driving a car in Saudi, or indeed a gay person in Iran or Nigeria who is imprisoned, should trigger a recall in this country—
Lord Hamilton of Epsom
That is obviously one example, but how about the paedophile in the Philippines or somebody who is drug-running in some country that has a reasonable legal system?
Baroness Hayter of Kentish Town
I was about to come to another example and say that that does not prevent the Standards Committee considering whether that brings Parliament into disrepute. The option is still there, but it is not mandatory. I think that is the right way of approaching it. I heard on the “Today” programme yesterday—the Deputy Prime Minister had not heard of it at the time although by lunchtime he had and he condemned it—of someone being flogged 1,000 times in Saudi. Well, if that person happened to have been one of our MPs and was imprisoned as well, that again would automatically trigger recall under this amendment. I am sure that is not what would be wanted. The ability for it to be considered under the other mechanism is still there but it would not be automatic.
Lord Forsyth of Drumlean
Surely the Standards Committee would not be able to address it, because the first recall condition would not have been met. Is not the answer to this—perhaps with a bit of drafting— that one looks at offences outside the United Kingdom which would be considered offences in this country? Surely the point is right that if someone has committed a serious offence elsewhere, which would be a serious offence here, and has been convicted, as my noble friend said, it is an enormous loophole in the Bill, given its intent—not that I particularly favour the Bill.
Baroness Hayter of Kentish Town
Undoubtedly there will be cases and jurisdictions where we would be very content to take that, but there will be others—sadly, probably more around the world—where we would query both the jurisdiction and the sentencing. I do not feel that making it automatic, as this amendment would, should be supported. As has been made clear, Amendment 4 conflicts with the current situation in that, if I have understood it correctly, it would trigger recall following a year’s imprisonment. As my noble friend accepts, that was not its aim; it is a probing amendment. I differ from my noble friends Lord Foulkes and Lord Soley in that they want to keep the decision only with the House of Commons, whereas we have supported the proposal that there are circumstances where it should go to the electorate. Giving the electorate a say following someone’s imprisonment—possibly for a very serious offence—is something that we have supported and continue to support.
The other difficulty that I have with what I understand came from the Scottish Law Society—I am sorry if I offend it by not supporting its amendments—is the idea that if an offence, not a conviction but an offence, was declared beforehand, that will be enough to enable someone to escape the possibility of a recall petition. We could have someone saying before being elected an MP, “Well, it is true that I have been arrested for a bit of a punch-up”. That is declaring the offence. However, the conviction may take place sometime afterwards, by which time we discover that actually he had broken his wife’s arm in three places, kicked in the door, set fire to the carpet and broken her favourite records, but that was all a minor punch-up. I do not think that we would want to excuse someone just because they have said, “Oh, I am in trouble with the law”. The word “offence” is used rather than “conviction”. I do not think that there should be letting off at that stage.
As my noble friend says, these are on the whole probing amendments and useful for that, but I do not think that we should move to allow another jurisdiction automatically to trigger a recall in this country.
Lord Gardiner of Kimble
My Lords, perhaps before I turn to the amendments of the noble Lord, Lord Foulkes, I may speak to the government amendments, to which the noble Baroness, Lady Hayter, has put her name.
Amendment 15 gives effect to the opposition amendment from the other place. Clause 2 contains further detail to clarify the sentences and orders that would meet the first condition under which an MP would be subject to a recall petition—that is, where an MP has been convicted in the UK of an offence and is sentenced or ordered to be imprisoned or detained and the appeal period has expired without that being overturned.
As introduced in the House of Commons, subsection (1) ensures that offences committed before the MP became an MP can trigger the opening of a recall petition, as long as the conviction and sentencing take place after the day on which the MP became an MP—but only if the offence is committed after the day on which Clause 1 comes into force. That would rule out historic offences triggering a recall.
The House of Commons was clear that it wished historic offences to be caught as well, as long as the conviction took place after the Bill came into force and after the MP became an MP, and voted with that intention, passing an amendment tabled by the Opposition Front Bench in the Commons by 236 votes to 65.
A pair of amendments was tabled to give effect to that intention: a substantive amendment and a paving amendment. Unfortunately, however, only the paving amendment was actually made, which had the effect of deleting the words “the reference” at the start of Clause 2(1) so that it does not now make sense. The substantive amendment was not made, so the Government tabled Amendment 15 to give concrete effect to the will of the House of Commons.
Amendment 20 is a minor and technical change to the definition of “appeal” in Clause 3(6). The amendment is to reflect that the Scotland Act 2012 amended the appeals regime so that certain devolution appeals in Scotland that deal with compatibility with EU or human rights law are dealt with under Section 288AA of the Criminal Procedure (Scotland) Act 1995, rather than the provisions currently listed in the Bill. Making express reference to this section provides certainty that such appeals would be covered.
Clause 22 is a technical clause which defines the interpretation to be given to key words and phrases in the Bill. Amendment 74 would alter Clause 22 to remove any possible ambiguity about the definition of the word “quashed” in relation to overturning a conviction on appeal by replacing it with a phrase making clear,
“that there is no longer a conviction”,
in relation to the first and third conditions for recall. This would cover the scenario where a sentence is replaced with an absolute or conditional discharge, meaning that it is no longer legally to be considered a conviction, as well as the case where the conviction is directly overturned.
I turn to the amendments tabled by the noble Lord, Lord Foulkes. He rightly said that they were paving amendments, and they are of considerable interest. I was intrigued particularly by Amendment 3, which would mean that if an MP were to be convicted outside the United Kingdom, the MP would also be subject to a recall petition process. As the noble Lord mentioned, the Law Society of Scotland raised that issue. The noble Baroness, Lady Hayter, referred to a number of the difficulties with such a proposal. Outside the United Kingdom, Parliament has no control over what acts amount to criminal conduct or when custodial sentences are imposed. Therefore, we cannot predict that a recall petition would be appropriate in all circumstances where an MP is given a custodial sentence outside the United Kingdom.
Recall of MPs Bill
Baroness Hayter of Kentish Town Excerpts(9 years, 11 months ago)
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Lord Tyler
I dare to make a brief comment after what the noble Lord, Lord Grocott, said. I have sympathy with the proposed new clause. It is clearly outwith the current arrangements but it is very relevant for the reasons that the noble Lord gave because it says that the final arbiter in these circumstances should be the electorate rather than a judge. I do not want to repeat what was said earlier but wish to explore whether proposed new subsection (1) of the amendment is relevant to the circumstances that I faced in October 1974. I am afraid that all of us have travelled down memory lane today. I was defending a very small majority in my former constituency. A newspaper was delivered to a large number of households by a pro-apartheid group which alleged that the then Young Liberals leader, Mr Peter Hain, and all those who worked with him or were associated with him in the Liberal Party, including myself as a sitting Liberal MP, were effectively guilty by association of murdering babies in South Africa. That campaign may or may not have been effective.
As I did not have the resources, and because I did not think that it would be fair on my then successful Conservative opponent, I decided not to go to an election court and say that he must be responsible for the relevant leaflet. It had an imprint on it but it was not clear that it had been published by his agent, although it was published by an organisation which was run by a former Conservative MP. However, I thought then, and I think now, that there should have been some way in which those circumstances could be investigated short of effectively seeking to unseat my opponent. I think that some way could be found. I do not know whether the noble Lord, Lord Dubs, would agree, but I think that this might fall within his first category. In that case, it would be right that, in the end, the final arbiter might be the electorate rather than a judge in an election court. There is therefore some important relevance in what the noble Lord has laid before the Committee, and I hope that it will be further considered.
Baroness Hayter of Kentish Town (Lab)
My noble friend Lord Dubs has, as usual, set out eloquently why he has sought to bring the outcome of election court proceedings and the new ones in the Bill more into line. His arguments were echoed by my noble friends Lord Soley and Lord Grocott, and by the noble Lord, Lord Tyler. It might indeed seem very odd to a member of the public if an MP imprisoned for a serious drink-drive offence faced only a recall petition and a possible by-election, which he could then contest, whereas a different court—an election court—has the ability to exclude an MP from Parliament altogether, and even to ban that MP from contesting the seat at a by-election.
We therefore welcome this as a probing amendment, partly to give the Government the opportunity to spell out what consideration they have already given to such issues, what discussions they have had with the electoral court, and whether they are satisfied that these two mechanisms have a degree of consistency that is easily explicable both to Members of the other House and to the public. We look forward to hearing the Minister’s views.
Lord Gardiner of Kimble (Con)
My Lords, I thank the noble Lord for his probing amendment and the debate that we have had on it. As he said, his amendment would introduce a further recall trigger where an election court finds a person or persons guilty of illegal practices in respect of a parliamentary election. The noble Baroness, Lady Hayter, rightly asked what consideration has, and could be, given to this suggestion.
Under the Representation of the People Act 1983 the result of an election can be challenged by any eligible person by lodging a petition with the relevant election court. The election court will first consider whether the MP was fairly returned. If the court, upon hearing the evidence, finds the candidate or other persons guilty of corrupt or illegal practices, it will produce a report. Any report produced will state the names of all persons who have been proved at the trial to have been guilty of corrupt or illegal practices, and it will be laid before the Director of Public Prosecutions.
A candidate or other person reported as guilty of corrupt or illegal practice shall not be able to: register as an elector or vote in any local government or parliamentary election held in the United Kingdom; be elected as an MP; or hold any elective office. In the case of a person reported as guilty of a corrupt practice—for example, personation—these incapacities will apply for five years. A person found guilty of an illegal practice—for example, double voting—will be subjected to these incapacities for three years. The incapacities will apply from the date of the report, and the person must vacate any elected seat held.
Under the noble Lord’s amendment, if an election court found that illegal practices by a person or persons had resulted in the election of an MP, but the MP was not found guilty of any offence, this would automatically trigger a recall petition. However, under Section 167 of the Representation of the People Act 1983, an MP would automatically be guilty if his agents were found to have engaged in corrupt or illegal practices during the election, and would therefore have to vacate his seat.
If the noble Lord believes that an MP should not automatically be found guilty because of the actions of others in securing his seat, that would require an amendment to the Representation of the People Act. I am sorry to disappoint the noble Lord, but it is the Government’s view that the system and penalties that we currently have in place under that Act are sufficient. For that reason, I ask the noble Lord to withdraw his amendment. I am most grateful for the comments that have been made. Although I cannot promise to bring anything more back, this has been a very interesting debate.
Recall of MPs Bill
Baroness Hayter of Kentish Town Excerpts(10 years ago)
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Baroness Hayter of Kentish Town (Lab)
My Lords, I thank the Minister for introducing the Bill so clearly. Like him, I look forward to hearing the maiden speech of the noble Lord, Lord Cooper of Windrush, in which he will bring his experience not just from No. 10 but from the SDP—so he will have some insights for us, I think.
This is a significant Bill and its heart, I believe, is in the right place. We support constituents having the power to recall their MP for serious wrongdoing. Perhaps I can surprise your Lordships’ House by quoting with approval Andrew Lansley, who said:
“When the public see instances of gross misconduct that result in … a court sentence or a … period of suspension … they say that in any other … profession people would lose their jobs … This Bill puts Members in that position when it might not have happened otherwise”.—[Official Report, Commons, 27/10/14; col. 130.]
We concur with that aim.
The Bill introduces an entirely new process which, in the words of our Constitution Committee,
“affects a fundamental principle of the … constitution: representative democracy. In particular, it arguably runs counter to the long-established Burkean principle that Members of Parliament are not delegates”.
First, as the Minister said, it will see a recall petition triggered, either by a court or by a vote in the Commons on a recommendation from the Standards Committee; secondly, a gathering of signatures from those who want the MP to stand down; and, thirdly, if 10% sign, a by-election that the MP would be free to contest. We support the Bill’s intention; we want the highest standards in public life and agree that an MP sentenced to prison or who has misused their expenses should be held to account by the electorate.
However, I have to ask why the Government have taken so long to produce this Bill. The 2010 coalition agreement said:
“We will bring forward early legislation to introduce a power of recall”.
The draft Bill was published 18 months later and now here we are three years later finally with the Bill. As the Minister in the Commons admitted,
“we have not rushed into this reform”.—[Official Report, Commons, 21/10/14; col. 770.]
Indeed, the delay is so long that it can have no effect in this Parliament, as we are already in the six months before a general election, during which the Bill, under Clause 5(2), has no effect.
More seriously, after all this time and that delay, why have both the principles and logistics not been better thought through? There are two big questions that the Government need to answer. First, is this a secret or an open process? Secondly, are they confident that there are sufficient safeguards to ensure that recall really will be in the hands of constituents and not at the whim of wealthy groups running expensive campaigns?
On the first of these, we must decide as a Parliament whether this is going to be a public petition for a recall or a secret ballot. The Constitution Committee has noted that,
“signing a recall petition is a public act”.
Indeed, anyone going into the signing room is automatically voting for a recall, as there is no “against” on the petition signature list. Furthermore, as a marked register showing who has voted will be published after the ballot, the list of those calling for a recall would be made public. That is the end of the traditional secret ballot. The Government appear to accept this, judging by their response to the Political and Constitutional Reform Committee, although in the Commons the Minister seemed to say that while,
“there will be a marked register”,
he then said that the Government were considering whether it would be,
“in the public domain”.—[Official Report, Commons, 3/11/14; col. 595.]
This is too big an issue for the Government still to be considering at this stage of the Bill. We must know the answer. Is the list of those who have signed to be made public, or not? If it is, every potential voter must know beforehand that their name and address will be made public, as the marked register comes into the public domain. It also means that care will be needed over intimidation—not just being watched or filmed going into the signing places but even if they vote by post, because that can only be a vote for a recall—if the marked register is then publicly available.
There is an alternative, which the Government have not chosen, which is for the petition to be secret and depart from the normal practice of making the marked register public, while taking steps to ensure that the scrutineers, the press and others abide by the rules of confidentiality. These are big questions and I look forward to hearing the response of the noble Lord, Lord Wallace of Saltaire, to update us on the Government’s current view on making the list of those who have signed available. Furthermore, how will the Government ensure that anyone who does sign, if the list is to be open, is aware of that before they take that decision?
My second major concern is whether there are sufficient safeguards to ensure that recall will be in the hands of constituents and not run by wealthy groups and their expensive campaigns. Will the defeated party run the pro-recall campaign? Perhaps, where MPs have been sentenced for so-called political crimes—refusal to pay the poll tax, trying to prevent fracking, defending an abortion clinic, or any “acts of protest without any element of violence or dishonesty” in the words of Democratic Audit—will the supporters or opponents of that cause pile into the constituency to resist or encourage the recall, potentially with large sums of money? The trigger may have been a sentence of imprisonment, but the possibility is that the campaign becomes on the issue of policy for which the MP is well known.
We have in this country MPs with a proud record of fighting for gay rights, the end of capital punishment, for abortion and assisted suicide. These causes are rightly fought on political or ideological grounds. We do not want them fought by the moneyed against the non-moneyed. We know that the public support us on this. A YouGov survey showed that half of those questioned thought that recall was appropriate where an MP broke a promise made in their election leaflets—sorry, Lib Dems, I did not say tuition fees. Rather surprisingly, only half of those questioned thought that crossing the Floor merited recall, despite in our country MPs being largely elected by their party label. However, most notably, the very last reason that people thought a recall should be triggered was that the MP supported a policy with which the voter disagreed. I believe that that chimes with our concerns on policy-driven campaigns.
The problem is that the Bill allows for any number of pro-recall accredited campaign groups each to spend up to £10,000, but with the MP capped at £10,000 for his or her own “Please don’t sign for recall” campaign. There could be £10,000 for the campaign of the MP who is up for recall against £50,000 or £100,000 with any number of groups, each of which could spend up to £10,000. Who knows how many well-funded vested interests could come in, particularly in a marginal seat or where the Government have a tiny majority?
We need rules on the financing of a recall campaign which ensure that it is not hijacked by politically motivated groups out to deselect sitting MPs, not because of their misdeeds but because of their voting record. Whether this is by limiting each side to be able to spend £10,000 or by monitoring campaign literature, those are options which I hope we will explore more in Committee. Furthermore, while accredited campaigners’ spending would be covered by PPERA, non-accredited campaigners spending under £500 would be subject to no other regulation—presumably not even an imprint on their leaflets or checks on whether their donors were legitimate. So an overseas resident could, perhaps, give £400 to each of 20 local campaigns.
When we were taking the lobbying Bill through this House, the noble Baroness, Lady Williams, who is not in her place, warned us at the time about the PACs from America. Surely this is exactly what this Bill could allow. We can all think of newspapers, lobbyists, companies or anyone else who could easily pour money into a single seat. I therefore ask the Minister whether he is content with this absence of regulation for potentially many local campaigns. Are the Government willing to reconsider whether anyone involved should be covered by PPERA, despite their current view that that should not be the case?
I turn to some practical issues that we will explore in Committee. We welcome the increase in signing locations from just one in the original draft Bill to four, but why only four? In large rural areas this could mean very long journeys to sign in person. In Brecon and Radnorshire, which I think normally has about 90 polling stations, some electors will have a 30-minute drive each way to sign—an hour’s round trip by car. That is nigh impossible for those without a car. Why have the Government not thought to leave it to the local petition officer to assess what is best for an area in terms of accessibility as well as costs, as suggested by the Electoral Commission?
That brings me to the issue of costs. A recall will cost £55,000, according to the impact assessment. When I phoned a number of petition officers—returning officers, as they are called at the moment—I heard an enormous burst of laughter when I mentioned a sum of £55,000. I could not tape the laughter to bring it to the House today. Postage alone will cost £17,000 and printing £21,000, and that is before prepayment postage for the returning of postal votes, which will obviously go up from the normal number and could add another £3,000. There will also be substantial staffing costs. Even with just four places, there will have to be two people sitting in those four places for eight weeks, possibly from nine to five. At one point, it was suggested in the Commons that the hours would be from 7 am until 10 pm. However, I think they have rowed back since then and think that the hours will be nine to five, but, even so, the eight-week period and four locations, with two staff at each, constitutes a very high cost for any local authority. Moreover, local authorities do not at present have the computer software to be able to check electronically who has signed. Normally, this happens on one day at a general election, but over eight weeks one could sign in person in the first two weeks and then apply for a postal vote and sign again. We will have a good time discussing these issues in Committee.
The Select Committee in the other place asked the Government to reconsider whether returning officers were qualified to oversee petition expenditure and donations, or whether the Electoral Commission was better placed to undertake this. Indeed, at present, no one will scrutinise the returns, as the returning officer’s job is only to preserve them. The Government have declined to give the Electoral Commission any role, yet there are challenging decisions to be made, such as which individuals are entitled to be permitted participants under PPERA and may therefore become accredited campaigners. Who will advise those sending in the notice to the returning officer whether they are permitted participants? Who will check up on it? Likewise with permissible donors, who will advise or check up on such matters? These will be absolutely new matters for returning officers but, given the amount of detail that will have to be covered in regulation, will the Government commit to publish early drafts, because a lot of the implementation of this Bill will be through secondary legislation? The Select Committee also emphasised that recall should not be a substitute for elections. I do not believe that the Bill is about that. It is about constituents being able to decide whether their Member of Parliament, having been imprisoned or found guilty of fiddling their expenses, should continue to serve as an MP as a right or face the judgment of their electorate.
We have no argument with the purpose of the Bill but regret the failure to use the delay to clear up some of these big policy decisions and a lot of practical decisions. For the future of our parliamentary democracy, it is right that someone who has transgressed should seek a vote of confidence from the electors, but we must make sure that this Bill is fit for purpose—a role that I know your Lordships’ House is willing and able to play.
Lord Wallace of Saltaire
My Lords, I was not involved in that election; perhaps the noble Lord was. However, I have to admit to the House that early one morning, when I was half awake, my mind turned to the noble Lord, Lord Grocott. I had an image of a debate in this Chamber in about 1831, in which an Earl Grocott denounced the proposals for major constitutional change as being unnecessary and disturbing the established traditions of party patronage. Perhaps the noble Lord and I might discuss off the Floor which proposals for constitutional reform over the past 150 years he might have supported at the time.
All three parties committed to a recall system in their manifestos, and this was included in the coalition’s programme for government. The noble Baroness, Lady Hayter, had some fun talking about parties that do not carry out all the pledges in their manifestos. All three parties were committed to this in principle in their last manifestos, which provides a certain basis for it. I remind her of something that I have said previously to other members of her party—namely, when one examines the 1997 Labour Party manifesto, the clearest pledge was to bring forward proposals for electoral reform. However, the Labour Party then entirely abandoned that pledge, as it did with a number of other things as well.
This Bill will introduce a system where MPs will be subject to a recall petition where they are found guilty of wrongdoing under a specific set of triggers, as set out in the Bill. Regulations have been mentioned. I assure noble Lords at the outset that before Committee we will put in the Libraries of both Houses an early draft of the regulations which will need to be made under the Bill, which will set out the areas that will need to be covered. The regulations will build upon the principles and precedents in electoral legislation. Noble Lords will have recognised already the extent to which the drafting of the Bill has followed as closely as possible the language in a number of previous Bills about electoral and political regulation.
Some large and detailed issues have been raised. Most of those who have spoken have said that they supported the principle of the Bill. I think I counted at least three, perhaps up to five, speakers who explicitly or implicitly opposed the principle of the Bill. Let me start with the detailed scrutiny issues that have been raised. I particularly welcome the speech of the noble Baroness, Lady Hayter, who raised a number of specific questions that we must address in Committee and on Report. There is the question of whether this is a secret and open process, and how far the process is in the hands of the constituents themselves or outside, wealthy groups. There are also questions on how many signing points there may be within the constituency and who will check on permissible campaigners and permissible donors. Those are very much the sort of point on which we, as a revising House, would wish to focus in our further consideration.
Baroness Hayter of Kentish Town
Can I take it from that that the Government still have not decided whether they want an open or secret vote?
Lord Wallace of Saltaire
My Lords, unavoidably, as the noble Baroness has said, this has to be partly a public process. One goes to vote. Incidentally, the fact that this is a more public process does not mean the end of the secret ballot because the ballots when one is electing someone remain entirely secret. Access to the register of people who take part by post is a matter that we need to explore further. There are perhaps mechanisms to write into the regulations that will restrict access to the register for those who do not want their names to be entirely public. However, that is something that we need to explore because there are important principles here. Some noble Lords might wish to argue that signing a petition should be a public declaration because that is part of the transparency of objecting to one’s current representative. We will explore that further.
The question of the number of facilities in a constituency has also been raised—the Brecon and Radnor question, as we will have to refer to it. Again, we will come to that as we go through Committee and Report. The Government have consulted electoral administrators and returning officers, and their representative bodies—the Association of Electoral Administrators and SOLACE—throughout the Bill’s development, and we welcome their responses. They agree with the policy intention of the campaign regulation provisions in the Bill that petitions should be events with a local feel, without a need for a statutory register of campaigners. The question of how we deal with separate campaigns, and how, in particular, we interpret the existing rules on those who are acting in concert, is a matter that we will want to test and make sure that we get right in Committee and on Report. We appreciate that there are important questions at stake and we are all concerned to limit the influence of money in this process, as in others. Much of the debate so far has brought back the painful memory of the transparency of lobbying Bill, in which some of us took part this time last year.
The question of who is responsible for regulating the campaign has also been raised. We will, again, explore that further. Enforcement of the rules will be the responsibility of the police and the courts. Transparency is intended to be the basis of the campaign. Responsibility for the administration and conduct of the recall petition falls to the petition officer, whose role in the recall petition process will be analogous to that of a returning officer in an election in ensuring that relevant information is open to public scrutiny. The Electoral Commission will be responsible for oversight of the rules in the way in which it already takes that part.
The question that the noble Lord, Lord Lennie, and the noble Baroness, Lady Hayter, raised about the numbers of groups spending £10,000 is a matter that, as I say, we will need to look at to make sure that the regulations cover that. The noble Baroness raised the question of whether those spending less than £500 would remain entirely unregulated. Non-accredited campaigners spending small sums will of course have to include their imprint in everything that they publish. That comes within the normal rules. Those who spend less than £500 will also be subject to the “acting in concert” provisions that cover existing elections.
On double signing, the intention is to ensure that the maximum number of people have the opportunity to sign, but the normal checks will be in place to ensure that each person signs only once and that the petition clerk at the signing place will mark the register to check whether the person is eligible to be issued with the signing sheet.
The noble Baroness, Lady Hayter, also raised the question of whether the petition process places a heavy burden on local authorities. I stress that the Government see this process as a reserve power. This also partly responds to the suggestion that there should be a sunset clause; the noble Lord, Lord Soley, suggested a period of five years. We see this not as a mechanism that would need to be used often—five years is, therefore, far too short—but as a necessary reserve power for the public and Parliament to have, because it has become a necessary element in re-establishing a degree of confidence in our parliamentary democracy.
We all accept that the vast majority of people involved in politics are entirely honourable. Indeed, I think that many of us who have read about British politics in the 1920s, 1930s and 1950s would accept that the degree of misconduct is much less now than took place then. I can think of several Prime Ministers who would not have survived current scrutiny of their personal or financial affairs but who nevertheless had good careers in the first half of the century. Nevertheless, we recognise that there are always some bad apples in every single basket and that some measures to make sure that where misconduct takes place there is a degree of comeback. That is what this Bill is about.
The noble Lord, Lord Kennedy, asked about the wording of the petition signing sheet. It has been developed in consultation with the Electoral Commission to ensure that it is balanced and fits in with the commission’s guidance for referendum questions. We are confident that the wording we have devised through discussions with the commission gives petitioners the information they need, including making the important addition that if an MP loses their seat as a result of a petition there is nothing to stop them standing as a candidate in the subsequent by-election.
Deregulation Bill
Baroness Hayter of Kentish Town Excerpts(10 years, 1 month ago)
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(a) after subsection (10) of section 213 of the Housing Act 2004 (requirements relating to tenancy deposits) insert—“(11) Where an order made by the appropriate national authority under subsection (5) requires, in connection with the tenancy in respect of which a deposit has been paid, the provision of the name, address, telephone number, and any email address or fax number of the landlord; the name, address, telephone number, and any email address or fax number of any agent who is holding the deposit on behalf of the landlord may be provided instead.”;
(b) ”
Baroness Hayter of Kentish Town (Lab)
My Lords, a bit like government Amendments 25 to 35, which are in this group, Amendment 24B will close an unforeseen loophole in existing legislation. The loophole arises because, where letting agents are managing a tenant’s deposit on behalf of the landlord, they usually put their details on the documentation given to tenants. Obviously, that is particularly useful where landlords live abroad and where their only address for service in the UK is therefore that of the letting agent.
Under the terms of the tenancy deposit legislation, certain information, known as prescribed information, has rightly to be given to the tenants. Unfortunately, the wording of the order is highly prescriptive. It requires the landlord’s contact details, even if it is the agent who manages the deposit. There have been claims by tenants, including in court, that deposits have not been protected in accordance with the law. In fact, the agent has done everything correctly, other than to put down its address for service rather than the landlord’s home address. Nevertheless, a claim on behalf of a tenant has been upheld by a county court, meaning that what has been normal practice ever since tenancy deposit protection was introduced in 2007 is now potentially unlawful. There has not as yet been a High Court case on it, but clearly, given the county court’s case, there is now uncertainty and it seems much more sensible to fix this problem now before it is tested in the High Court. In the mean time, solicitors are taking this to court and challenging the proper protection of a deposit on behalf of a tenant.
Lord Wallace of Saltaire
My Lords, this clause and the government amendments are here because of the uncertainty and concern caused to landlords and tenants across the private rented sector by the Court of Appeal decision in the case of Superstrike Ltd v Marino Rodrigues. The noble Baroness’s amendment also touches on some of the implications of that case. The decision effectively interpreted the legislation differently from its original intention and contrary to the advice given by successive Governments. It left a large number of landlords at risk of court action and open to a financial penalty, because the tenancy deposit protection requirements must be complied with within a set period. That leaves landlords in an impossible position with no means of complying. The situation is made more complicated by the increase in the number of landlords resident outside the United Kingdom, which means that they are dependent on letting agents to deal with their tenants. Similarly, it has left tenants unclear about the status of their deposits.
The aim of Clause 31 is not to completely reverse the decision made by the Court of Appeal, as it is important that the protection offered to these tenants as a result of the ruling is retained. It gives landlords a grace period to protect those deposits and give the necessary information to the tenant. That applies to landlords who still hold deposits which were taken before the introduction of the tenancy deposit protection legislation for tenancies which rolled over into statutory periodic tenancies after the introduction of the legislation.
The clause will make it clear that where a deposit has been protected, the prescribed information is given to the tenant and the tenancy is subsequently renewed, there is no need for the landlord to keep providing the same information every time the tenancy is renewed. It will also be clear that this has always been the position and will continue to be from now on.
Where legal proceedings are under way at the time the provisions come into force, tenants will be protected from paying their landlords’ relevant legal costs where the court subsequently decides against the tenant in the light of these provisions. We see the provisions as striking the right balance between ensuring that tenants do not suffer financially as a result of the retrospective legislation and ensuring that landlords are not penalised where they have followed government advice. I hope that these changes are accepted as uncontroversial.
Finally, government Amendments 25 to 35 are technical drafting amendments.
The Government agree with the intention behind the noble Baroness’s amendment but are not sure that it is necessary. We understand that the law as it stands provides that, where the agent holds the deposit, it is sufficient for just the agent’s details to be included in the prescribed information. Article 2(1)(g)(iii) of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007—I am sure that she knows it by heart—indeed states that,
“the name, address, telephone number, and any e-mail address or fax number of the landlord”,
should be provided. However, Section 212(9)(a) of the Housing Act 2004 explains that any reference in Chapter 4 of Part 6 of the Act—and hence in the 2007 order—to “landlord” in relation to any shorthold tenancy includes a reference to a person acting on his behalf in relation to the tenancy. Clearly, an agent managing the deposit on behalf of the landlord falls within that definition. Paragraph 40 of the regulatory impact assessment that supported the 2007 order covered this point, stating that:
“The person who receives the deposit will need to be the person who is registered with the authorised tenancy deposit scheme. Thus, in instances where the deposit is taken by a letting agent, the landlord’s details will not need to be included in this information”.
This is an issue with the deposit schemes that letting agent bodies have previously raised with the department, and I understand that they still consider the language of the Act and the supporting statutory instrument to be ambiguous. As I have set out above, we do not share that view. Of course, if they are able to provide evidence to the contrary we will consider whether a change to the order could be made to clarify the point, but we do not believe that any change to the primary legislation is required. I have asked officials from the Department for Communities and Local Government to contact the tenancy deposit schemes and letting agent bodies to discuss this further.
I hope with that assurance that the noble Baroness will be willing to withdraw her amendment. I thank her for the discussions we had before Committee and, if necessary, I am very happy to have further discussions. I commend Amendments 25 to 35 to the Committee.
Baroness Hayter of Kentish Town
My Lords, I thank the Minister for that. Clearly this would not have been brought up and supported by the groups I mentioned if there were not real concerns. They have counsel opinion that differs from that of the Government. Of course, if the Government would like to assure them that should it go to the High Court they will then cover all their costs and those of all landlords, maybe we could accept that. Would he like to make the offer now? Offer came there none.
The groups are doing this day to day—their lawyers have worries and counsel opinion continues to say there is a difficulty that the words “or their agent” do not apply to the instrument. That seems the problem. I also cannot see why this change cannot be made. It would be very easy and would make sure we did not have to go to the High Court to get a ruling. I urge that that meeting takes place before we come to Report, so that I can then consult these good organisations and, if necessary, table an amendment for Report if they are not reassured by the meeting. If it is possible to set that up before Report then I would be happy to withdraw this amendment at this stage. I think the nod means that the meeting will take place before Report. On that basis I beg leave to withdraw.
Cabinet Office: Efficiency and Reform Programme
Baroness Hayter of Kentish Town Excerpts(10 years, 5 months ago)
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Lord Wallace of Saltaire
Of course, as with taxation, there are a range of different objectives in what you are attempting to save. However, much of what the Efficiency and Reform Group has been doing is to apply the sort of careful consideration of how best to ensure that you make the best use of centralised and long-term contracts, as supermarkets do in their relationship with their suppliers. The creation of the Crown Commercial Service earlier this year and of the Major Projects Authority in April 2011 are very important factors in making Whitehall officials more competent and efficient in dealing with the commercial world.
Baroness Hayter of Kentish Town (Lab)
We support any work that is done to cut costs, but is the Minister not slightly ashamed when he asks civil servants almost to count the paperclips when the Government then waste £1 billion on selling Royal Mail too cheaply?
Lord Wallace of Saltaire
My Lords, the noble Baroness knows that floating companies and making IPOs are always very difficult matters to estimate. We can go on arguing about that particular transaction for a long time, but I am very proud of what the Efficiency and Reform Group has included. I have not yet touched on the digital transformation in which, as we all know, the move from using paper to using digital in transactions with government offers enormous potential savings.
Deregulation Bill
Baroness Hayter of Kentish Town Excerpts(10 years, 5 months ago)
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Baroness Hayter of Kentish Town (Lab)
My Lords, this has been an interesting debate, which—a bit like this Christmas tree of a Bill—has been like a Christmas party, with people calling in to raise concerns, including about inadequate consultation, last-minute clauses and lack of evidence, which leads us to query whether this Bill is more about dogma than good governance. Why do the Government speak with a forked tongue—more red tape for charities and unions under the lobby Bill, as my noble friend Lord Monks reminded us; more red tape for trading standards officers under the consumer Bill; and an attack on localism in this Bill, despite the Localism Act passed in the Session before last? None of us likes red tape—unless it is around those presents under the Christmas tree—but it is worth remembering that regulation is brought in for pretty good reasons, such as to safeguard children or the public, or, in the words of the noble Lord, Lord Fowler, to ensure that the interests of the consumer are pre-eminent. Whether we are introducing or abolishing regulation, it is always worth asking who it helps and whether it is worth the candle.
Like the Consumer Rights Bill, which we debated last week, I like the title of this Bill, as indeed I think does the noble Lord, Lord Cope. It is the content that leaves me a bit queasy, for the reasons that we have heard today. As the 35th speaker, there is nothing new for me to say, but I think that one or two themes have emerged. The first is the absence of evidence for some of these changes. The second is the inadequate consultation that took place, particularly with local authorities over both alcohol and minicab licensing, or with the taxi industry over the clauses that put the safety of passengers at risk. Indeed, there seems to be a lack of consideration for consumers, just six days after the Second Reading of the Consumer Rights Bill.
I start with Clause 1. Apart from the points elaborated by my noble friends Lady Andrews, Lady Donaghy, Lord Monks, Lord Collins, Lord Whitty, Lord McKenzie and Lord Rooker, as well as the noble Lords, Lord Stoneham and Lord Fowler, I wonder how the Bill provides for the interests of those, mostly the elderly, whose hairdresser visits them at home; those who are passengers of self-employed drivers; and myriad others who are protected by the Health and Safety at Work etc. Act 1974. That legislation places duties on the self-employed to ensure that they do not expose themselves or others, including non-employees, to health and safety risks. That includes customers, clients, visitors and the public. Who asked those people whether they wanted to lose such protection?
Similarly with taxis and minicabs, serious concerns have been raised by my noble friends Lord Monks, Lord Whitty, Lord Collins, Lord Davies of Oldham, Lady Turner and Lady Thornton, as well as the noble Baroness, Lady Eaton, and the noble Lords, Lord Tope and Lord Hussain. Like everyone on the government and opposition Benches—not, I have to say, the Bishops’ or the Cross Benches—I have visited Brighton many times for the wonderful delights of party conferences. We arrive at the station and jump into those very familiar Brighton and Hove cabs, and we know that we are going to be safe. We know that they have been tested for safety and that their drivers have been tested for competence, insurance and trustworthiness. Brighton and Hove, by way of example, now worries that ending annual relicensing will diminish its effectiveness as a regulator, while having out-of-area cabs on its streets—over which the authority has no control—will pose a risk to customers. As my noble friends have already said, it will be women who will be the most vulnerable to illegal pick-ups by unlicensed drivers in minicabs or even from licensed drivers, who will no longer be checked annually. So just who asked for this measure, introduced with minimal consultation? It was certainly not women or passengers, nor, as we have heard, the Suzy Lamplugh Trust or crime commissioners.
As for banning CCTV for parking, this comes from the same Government who brought in the Localism Act but now decide to dictate to local authorities how they can enforce, or not enforce, parking as they think best, and despite six of the eight consultation responses opposing a CCTV ban. As the noble Lord, Lord Tope, said, it is, after all, local government that knows its area best. In my own borough of Camden, more than 85% of CCTV enforcements cover major junctions, bus stops, pedestrian crossings and no-waiting areas. In a busy urban area these are key to keeping traffic moving and for safety, as the noble Lord, Lord Low, the noble Baroness, Lady Eaton, and my noble friends Lord Davies of Oldham and Lord Whitty said.
On alcohol licensing, my noble friend Lord Brooke of Alverthorpe, outlined the worry that the new ancillary licences might allow virtually any business, when serving drink is not its primary purpose, to sell alcohol. Health groups fear that this could lead to virtually unlimited alcohol premises. Who demanded this? Why were local authorities, health bodies and others not properly consulted? What research was undertaken on any downside, including any impact on the emergency and ancillary services? Why is there no requirement to make public health a licensing condition? Why is there no minimum price legislation? And why piecemeal changes rather than making this part of a proper strategy, which the Government had laid out in 2012 but seem to have abandoned, to tackle the million crimes linked to alcohol, let alone the cost to our health service?
Turning to insolvency practitioners, here the Government, I think, have got it wrong with their suggested regime of partial authorisation for insolvency practitioners, as my noble friend Lord Rooker, the noble Lord, Lord Sharkey, and the noble and learned Lord, Lord Mackay, said. Splitting the regulation of this tiny profession into two—for company and for individual insolvencies—would particularly harm small firms, two-thirds of which do both corporate and personal insolvency work, just at the same time as the Government’s small business Bill is meant to be helping small businesses.
Furthermore, it would require the development, delivery and oversight of new, additional systems of exams and qualifications. It would also allow some insolvency practitioners to undertake corporate bankruptcies, which almost always also affect the status of the individuals involved, with no qualification over the needs of the latter. In Committee, we will seek to ensure that this does not become the case. Regulation is usually for the consumers, the community or the vulnerable, as my noble friend Lady Turner said. It used to be the Tories who argued that the City was overregulated, and look where that led us.
More locally, as a cyclist—albeit not today in lycra cycling from Cambridge and across Westminster Bridge—I take great comfort from knowing that lorries on our roads are not overloaded, that their tyre pressures are checked, that their drivers are qualified, that their insurance is in place, that their fumes are not excessive and that their brakes work. All of that, of course, is as a result of regulation. However, that does not seem to be enough for this Government. They now want all regulators to include the growth duty, including, I presume, the Health and Safety Executive, the Information Commissioner, the Gambling Commission, the Charity Commission, the Electoral Commission, the Health and Care Professions Council, Monitor, the Legal Services Board and Ofsted—soon to be headed, we gather, by a Tory donor if the papers are to be believed. All those will now have the growth duty. It will be essential that the economic growth strategy does not trump the principal objective of those regulators, because that surely is the protection of the public interest.
Will the Government heed the words of the right reverend Prelate the Bishop of Truro, my noble friends Lady Andrews and Lady Thornton, the noble Lord, Lord Sharkey, the ICC, the noble Baroness, Lady O’Neill of Bengarve, and indeed the Joint Committee on Human Rights, which said:
“Applying the economic growth duty to the EHRC poses a significant risk to the EHRC’s independence”,
because it would be compelled take directions from the Secretary of State? Has dogma trumped common sense and good governance? Anyway, is this really deregulatory, as my noble friend Lady Andrews asked?
There are other issues on which we will await with interest the response of the Government, including the proposal from my noble friend Lord Macdonald to amend the copyright Act 1988 in relation to broadcasting. That attracted the support of the noble Lord, Lord Clement-Jones, and my noble friend Lord Dubs, as well as the noble Lord, Lord Grade.
In the light of comments by the noble Lords, Lord Fowler, Lord Grade, Lord Stoneham, Lord Sharkey and Lord Clement-Jones, we also seek reassurance from the Minister that no decision on decriminalising BBC licence non-payment will be taken prior to the review of the royal charter.
We also look forward to the Minister’s response to other issues raised by my noble friends Lady Donaghy, Lady Turner, Lady Andrews, Lord Whitty, Lord Davies, Lord McKenzie and Lord Rooker and the noble Lords, Lord Stoneham, Lord Grade and Lord Clement-Jones, on a range of issues, such as right to buy, London short lets, gangmasters, maritime investigations and even school holidays.
Despite the words of the noble Lord, Lord Sherbourne, there is no demand from consumers for a relaxation of the settled position on Sunday trading. Let us leave well alone something that balances family shopping preferences with workers’ rights, the interests of corner shops and the legitimate expectations of churchgoers.
Like the noble Lords, Lord Bew and Lord Brabazon, I welcome paragraph 40 in Part 8 of Schedule 20—and yes, I did read it. It repeals sections of the Defamation Act 1996, as would have been the case with the Private Member’s Bill of the noble Lord, Lord Lester, to which we gave a Second Reading on 27 June, but which now will not be needed in the light of this legislation.
I turn finally to knitting yarns. Perhaps I see myself as une tricoteuse at la Place de la Révolution, or Place de la Concorde as it is now, watching the guillotine fall on the supposed red tape. But this is no revolution. It is a slightly tacky hotchpotch of a Bill, conceived for effect and designed by committee. We will bless the bits that do no harm and welcome the few that help, but we will seek to amend those that pose risks to workers, consumers and to the public at large.
Parliamentary Privilege (Defamation) Bill [HL]
Baroness Hayter of Kentish Town Excerpts(10 years, 5 months ago)
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Baroness Hayter of Kentish Town (Lab)
My Lords, it is for me a particular privilege with an element of déjà vu to be standing here. Almost four years ago, on 9 July 2010, as the noble Lord, Lord Lester, said, I was fortunate to make my maiden speech during the introduction of his Private Member’s Bill. The noble Lord, Lord McNally, who is not in his place, was then of course the Minister. My noble friend Lord Prescott stood by me, more or less holding my hand as I spoke. It is therefore nice to be back here for another Private Member’s Bill moved, as usual, so ably and succinctly by the noble Lord, Lord Lester.
It is also for my noble friend Lady Wheeler and myself something of a privilege to sit here—still, perhaps, as the new girls—and hear from the very mouths of the noble Lords who were here and who spoke in that debate of the machinations that took place in the passing of that legislation. It is also a privilege to hear from my noble friend Lord Prescott about some outstanding issues, including that of costs.
The Bill is short, simple and, as well as being necessary, one with which we would all concur and would happily send on its way—except, of course, that it is perhaps a little unnecessary given that, as the noble Lord, Lord Lester, says, on page 203 of the Deregulation Bill we have almost exactly the same words, which have been through the House of Commons. Although I am not in the prediction business, I have a feeling that those words will go through this House without too many difficulties.
There is one little lesson we might take from this, which we have found before with the Dangerous Dogs Act and others: legislation passed either in haste, as the noble Lord, Lord Lester, says, or to answer one particular case, is rarely good legislation. This Hamilton amendment was passed by the previous Conservative Government—disgracefully, as my honourable friend said in the other place—to assist a then Tory MP, who, as has been said, is now a UKIP fundraiser, in a dispute with the Guardian. I also take another lesson from this: namely, that it is probably best not to take on that newspaper. I think of Jonathan Aitken, Mr Coulson and various others.
We on this side are very content that this section of the 1996 Act disappears, and concur with the June 2013 view of the Joint Committee on Parliamentary Privilege that any replacement discretionary waiver would cause uncertainty and a possible chill. I am glad to see the noble Lord, Lord Lester, nodding, because when he gave evidence to the 1999 Joint Committee he said that a replacement might be appropriate. I think we are now all agreed that this simple “thank you and goodbye” is appropriate.
Charity Commission
Baroness Hayter of Kentish Town Excerpts(10 years, 9 months ago)
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Baroness Hayter of Kentish Town (Lab)
My Lords, I thank the noble Baroness, Lady Barker, for the debate on regulating what is one of society’s most valuable assets, charities, which are often described as,
“the very bedrock of our civil society”.
There are nearly 1 million trustees of charities, and I reckon that around 700 of them are in your Lordships’ House. I have set up and run various charities and I remain a trustee of two.
The regulator’s role in maintaining trust in this sector is key but, as we have heard, today’s debate comes after the NAO and PAC inquiries, the latter saying that the commission fails,
“to regulate charities effectively. The Commission is a reactive rather than proactive regulator, and has yet to use its powers properly … we are not convinced it has the leadership capability to tackle its significant failings and transform its culture”.
It goes on to say that the commission has “no coherent strategy” and that it is “buffeted by external events”. It is,
“too willing to accept what charities tell it”,
and has failed to tackle “poor performance” and to “implement recommendations”. Indeed, the Charity Commission itself has admitted that it was,
“weakest in identifying … deliberate wrongdoing”.
Furthermore, when asked whether it had,
“sufficient resources to effectively regulate the sector”,
Mr Younger’s answer was,
“very close to being no”.
So, should the commission and the Government begin to rethink what has become a near impossible job and consider even the issue, which has just been raised, of a levy on charities? The commission thinks that anyone who feels like it should be able to establish a charity. It gets 27 applications a day, but we have heard nothing about how those 7,000 concerns a year perform or whether all their trustees, who are often untried and untested, are actually capable of running a charity, given that,
“charity law is hard … especially … for trustees setting up small charities”,
and that, to quote the commission,
“in the overwhelming majority of cases where trustees are getting it wrong”,
it is “through ignorance” that sometimes seems to be “bordering on negligence”. Given this, why of all things did the chair of the commission promise to tackle “the politicisation of charities” or consider that the lobbying Act was broadly satisfactory to the sector, despite its “gagging” effect and despite the sector’s own view?
The Charity Commission’s report on investigations shows that fraud is one of the most common problems. Indeed, of its completed investigations, 39 were about fraud, accounting and crime, 33 were about trustee issues and only one was about political activities. Is there another agenda here, as I fear we have heard something of today?
We welcome many of the suggested new powers in the government consultation, especially broadening the range of offences for which trustees can be disqualified, but focusing on powers misses the point. The problem stems from being overly cautious, not from a lack of legal powers. Some of those suggested may go too far, such as giving the commission the pre-emptive power to block charities from holding certain events or inviting particular speakers. Preventing fraud, mismanagement, abuse and the funding of terrorism should be the priority, not gagging legitimate activities.
The Charity Commission has made progress. However, there is more to make, and the Government have a role in terms of thinking whether they are asking this small organisation to do far too much on far too little money.