Recall of MPs Bill

Lord Kennedy of Southwark Excerpts

Monday 19th January 2015 Lords Chamber

Moved by

[Lord Kennedy of Southwark]

40: Clause 9, page 6, line 37, leave out subsection (4)

[Lord Kennedy of Southwark (Lab)]

My Lords, this amendment deletes from the Bill the wording on the petition that will be used when the recall provisions have been triggered. Along with Amendment 44, this amendment enables the wording to be agreed by regulation. The reason for these two amendments is to enable the wording of the petition to be properly tested before it is agreed. Our amendment also ensures that the Electoral Commission is involved in that process. It is the one organisation in the UK that I believe has the experience to test the proposed wording and it has a good track record in this respect.

Noble Lords might be aware that I was an Electoral Commissioner. I served in the group of commissioners appointed by political parties. I saw at first hand how the commission tested the question for the referendum in Wales on additional powers. It then tested the question for the referendum in Scotland. There were concerns that the original question proposed by the Scottish Government was unbalanced and led you in a particular direction. When we did our research and published our report, its recommendations were accepted fully by the Scottish Government and, after that point, the question itself was never an issue during the campaign.

Our Amendment 44 gives a role to the Welsh Language Commissioner. It is important that, in constituencies in Wales, Welsh speakers be given a translation of the question that both they and we are confident about. That shows proper respect for the Welsh language and Welsh speakers. Amendment 43 in the name of the noble Lord, Lord Wallace of Saltaire, just changes the order of the wording, and we are happy to support it.

In previous debates, the Minister has said that the testing of the question will be undertaken by a professional supplier and completed by the 2015 general election. If they do not plan to use the Electoral Commission for this, will he clearly tell the House why not and whom they are proposing to use? It has the experience and expertise for the job: why would they go elsewhere? If the Government choose to go elsewhere, will there be additional costs to the taxpayer? Why are the Government not following the procedure adopted to test the question in the Scottish referendum, which involved getting the question right, with the result that it never became an issue: people focused on the actual question itself, rather than on the wording of the question? I beg to move.

[The Deputy Chairman of Committees (Lord Colwyn) (Con)]

If Amendment 40 is agreed to, I will be unable to call Amendments 41 to 43 because of pre-emption.

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[Lord Wallace of Saltaire]

My Lords, the Electoral Commission unavoidably has a formal role throughout this process and has been consulted throughout. Informal consultations are part of the formal process. We need not batter about words too much. I say to the noble Lord, Lord Hughes of Woodside, that an election or a petition process that generates such excitement would be a joy to many of us. Part of the pleasure, in a sense, of the Scottish referendum was that it did indeed generate a great deal of excitement.

It is the nature of a petition that a petition is one-sided. The noble Lord, Lord Martin, remarked that petitions are petitions—they are not elections. I hesitate to suggest that some wish to turn the recall petition process itself into the by-election that may or may not follow.

I will speak first to government Amendment 43, which would make a small change to the final sentence of the wording to appear on the petition signing sheet that is set out in Clause 9(4). The signing sheet must include this specified wording, as it explains to the eligible constituent that they are signing the petition for their MP to lose their seat and for a by-election to be held.

During debates in the other place, it was suggested that the wording could be improved in relation to explaining when a by-election would not take place. The Government agree and therefore this amendment responds to the debate in the other place by making it easier for the elector to understand that the MP will not lose his or her seat and a by-election will not be held if less than 10% of the registered electors in the constituency sign the petition.

The wording of the petition signing sheet was developed with input from the Electoral Commission before the Bill was introduced, but we have a power to amend the formulation in regulations if that proves necessary after undertaking user testing of the signing sheet and notice of petition with members of the public. In doing this, it will be possible to confirm whether the formulation that we have best serves constituents’ understanding. I repeat that the Electoral Commission was happy with the proposals as set out in the Bill.

Amendments 40 and 44 in the name of the noble Baroness, Lady Hayter, would remove the specified wording of the signing sheet from Clause 9 and replace the power to amend that wording through regulations with a power to set the wording in regulations following further consultation with the Electoral Commission and the Welsh Language Commissioner. The signing sheet must include wording specified in Clause 9, which explains to the eligible constituent that they are signing the petition for their MP to lose their seat and for a by-election thereafter to be held.

There is value in the appearance of the wording in the Bill, as it has allowed MPs to express their views on it. This mirrors the position for UK parliamentary elections, where the form of the ballot paper appears in primary legislation, the Representation of the People Act 1983, but may be amended through regulations that must be approved by a resolution of both Houses. No amendments were tabled in the other place to remove the wording outright, but an amendment was tabled to improve it, so I think we should be mindful of that when considering this issue.

A further modest but worthwhile advantage of the appearance of the signing sheet’s wording in the Bill is that future changes made to it would then be reflected in the text of the parent Act, which helps to make the law as clear as possible for petition administrators, parties and campaigners.

On consultation with the Welsh Language Commissioner, I can assure the Committee that the Government will prepare a Welsh translation of the wording in secondary legislation, as is the practice at other statutory polls, using a power and following a principle established in the Welsh Language Act 1993. This translation will be subject to user testing in the same way as the English version. I hope noble Lords are aware that, throughout this Bill, we are following as closely as possible comparable regulations and comparable legislation in other Acts concerned with our democratic process.

As is usual practice, we will consult the Electoral Commission’s Welsh language experts to ensure that the translation is accurate and will accommodate any changes identified through user testing. One of the amendments suggests that, in addition to consulting the Electoral Commission, the Minister should consult the Welsh Language Commissioner. The Welsh Language Commissioner has an important role in promoting and facilitating the use of the Welsh language, but it has not been standard practice at elections to consult the commissioner directly on Welsh translations of voter-facing forms and notices.

In summary, I believe that it is important that the wording of the petition appears on the Bill but that it is user tested and commented on to ensure that any improvements that are identified can be made. For these reasons, I hope that I have persuaded the noble Baroness not to press her amendments.

[Lord Kennedy of Southwark]

I asked the Minister who would do the testing if was not to be the commission. He has not answered that point.

[Lord Wallace of Saltaire]

My Lords, I apologise. I do not have that detailed information at my fingertips, but I will write to the noble Lord as soon as I can.

[Lord Wallace of Saltaire]

My Lords, I am sure that the noble Lord was listening carefully. I apologise if I did not speak clearly enough for him to follow my argument. The process for the ballot form—and now for the petition form—is that it appears in the Bill so that MPs can reflect on it, but that it is open to amendment by regulation. In the Bill, we are following what already exists in the Representation of the People Act.

[Lord Kennedy of Southwark]

I thank the noble Lord for his response. I look forward to receiving his letter on the matter that I raised. At this stage, I beg leave to withdraw the amendment.

Amendment 40 withdrawn.

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[Lord Grocott]

Yes, it is a very serious offence. But we have been assured by the noble Lord, Lord Wallace, that the Bill as it stands is entirely in accordance with existing practice. I just cannot imagine the situation in any other election whereby this kind of running total would be available.

I vote Labour; that is what I do. It is in the DNA; it is inherited; it is passed on to future generations—that is how it works. It is like supporting Stoke City; it is what rational people do. I simply put it to the Minister that, even with that pedigree, if I could see the tally in a particular constituency’s voting after the postal votes had been handed in and could see a very close result coming out between two parties which I disliked intensely, but one of which I disliked marginally more than the other, and, sadly, my dear old party was nowhere, clearly there is a possibility that that might affect my judgment. I do not think that it would, actually, but I am putting a hypothetical case here.

Surely the same is true of any kind of running commentary on the numbers of people who have signed the petition. Surely, as my noble friend Lord Hughes has said, it must really render the process void if the returning officer, or whatever he is called, or anyone else, is telling the press, “Oh, it is up to 8% now, and 9%; we only need a few more and there we go”. If, as the noble Lord, Lord Wallace, has said, this is entirely in line with previous electoral law in the way we hold elections, fine; but if it is not, I do not understand the point.

[Lord Kennedy of Southwark]

My Lords, this has been an interesting debate. I should say straightaway that I am a supporter of voting at 16, and if my party wins the general election in May then it will be introduced. I do not believe, however, that we can have a situation whereby people cannot vote until they are 18 but are able to sign a recall petition at 16. They have to go together, in my opinion, and as soon as legislation is brought forward to give young people the vote, consequential amendments will have to be introduced about such things as the age at which they can sign a recall petition. I hope that my noble friend Lord Foulkes of Cumnock will appreciate my position on this issue, though I do agree with the noble Lord, Lord Tyler, that the ad hoc, piecemeal approach is not the right way to go about these things.

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[Lord Forsyth of Drumlean]

Will the noble Lord indicate which side of the argument he is on regarding whether the names of the people who sign the petition should be made public or made known to the Member of Parliament?

[Lord Kennedy of Southwark]

I think that the Government are going to consult on that and will come back on it. They have not made the position clear at present.

[Lord Hughes of Woodside]

I should make it clear that my amendment does not say that the names should be published but simply that the numbers should be published. The two issues are not therefore connected.

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Moved by

[Lord Kennedy of Southwark]

47: Clause 10, page 7, line 27, at end insert—
“( ) Any persons wishing to apply to vote by post, who are not registered to do so before the Speaker’s notice is given or before the cut-off day, must do so no later than the end of the fifth week of the signing period.”

[Lord Kennedy of Southwark]

My Lords, this amendment is proposed by myself and my noble friend Lady Hayter of Kentish Town. It puts a strict time limit in the Bill on when electors can apply to sign a recall petition by post. The amendment gives the right balance between allowing people to decide whether they want to sign a petition by post and ensuring that measures and enough time are in place to check that everything is correct to prevent fraudulent activity regarding the timing of the petition. It is very possible, with so few signing places available, that many more electors will choose to sign by post, rather than travel to an appointed signing point. I remember from our debates last week and earlier today my noble friend Lord Foulkes of Cumnock telling your Lordships’ House that, in his former constituency, four signing places to cover a seat of hundreds of square miles is totally inadequate. If the Government are not prepared to move on this it is very likely that many more people will want to sign by post.

We are all aware of the concerns that have been raised about postal voting in recent years. Additional safeguards have been brought in to improve security. The amendment would put a clear cut-off point as part of the tools to manage the risk. The political parties have all signed up to a code of conduct respecting elections and postal votes. However, this is not postal voting as such: it is the signing of a petition. There is no code in place, with lots of different campaigners out and about trying to get people to sign, or not sign, a petition. This whole area is very loose and the potential for fraud is very widespread.

I hope that when the Minister responds to the debate he can tell the Committee what role he sees for the Electoral Commission in all of this. As I am sure he will be aware, the commission proposed, and got the agreement of the political parties to sign, the postal vote code of conduct. If he is not minded to accept the amendment, can he tell the Committee how he sees the security of postal vote signing of the recall petition being ensured if there is not a clear cut-off period for the application to sign by post? I beg to move.

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[Lord Wallace of Saltaire]

On the question of the deadline for the applications for postal votes, it is normal in an election for the numbers of postal votes cast to be announced after polls have closed.

[Lord Kennedy of Southwark]

In my contribution I talked about the code of conduct regarding postal voting that the Electoral Commission brokered to all the political parties. Of course, when it is a petition it is not postal voting; other campaigners can be involved. What does the Minister envision for a code of conduct for the campaigners?

[Lord Wallace of Saltaire]

That is a very good and detailed question on which I need to take some advice. I will ensure that I do so and I will write to the noble Lord. On that basis, I hope that he is able to withdraw his amendment.

[Lord Kennedy of Southwark]

I thank the noble Lord and at this stage I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

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[Lord Forsyth of Drumlean]

My Lords, I am afraid that I cannot support the noble Lord’s amendment because it would be almost impossible to enforce, even if it was desirable in the age of blogs, the internet and everything else. I understand where he is coming from and, at the risk of repeating myself, I think that any Member of Parliament who finds himself subject to a petition is already dead in the water.

I was rather intrigued by our earlier discussion. If someone was present at the count of postal votes in any election and then inadvertently told someone else what the position was, they could very well find themselves facing a prison sentence and a recall petition of this kind. That is a good example of something which might be regarded as a matter where one could win the argument, but in practice it would be very difficult to stop the kind of comments that are made.

However, the noble Lord has done the Committee a service by underlining the key point in all this: once you get to the point of a petition being launched, it will not be about the issues surrounding the Member of Parliament; it will be about 1,001 grievances, political views or whatever. That is why I think that the Bill is fundamentally ill conceived. The House of Commons may think that where the committee has decided that someone should be sent away from the House for more than 10 days, that should start the procedure. However, it would have been better simply to have gone to the point of creating the by-election that would inevitably follow. It would save a lot of time, bureaucracy and cost, as well as a lot of grief and further damage to the standing of the House of Commons and the status of Parliament.

[Lord Kennedy of Southwark]

My Lords, the probing amendment proposed by my noble friend Lord Hughes of Woodside raises the important matter of what is said about an MP in a campaign in connection with a recall petition. Many noble Lords who have spoken in our debates on the Bill have expressed concern that MPs who take up causes that are unpopular and then find themselves subject to a recall petition could find that opponents use campaigns or issues that have nothing to do with the issue in question to try to take advantage of the situation. That raises a very important point for your Lordships’ Committee.

My noble friend Lord Hughes was for many years the chair of the Anti-Apartheid Movement, but not so long ago not everyone was so well disposed towards that organisation and its aims. My noble friend made a point by giving examples of issues in his constituency, and I noted his comments about our reputation in the world with regard to the state of our democracy. He went on to make the particular point that there needs to be fairness in the process so that MPs are not allowed to be judged or abused on the positions they take as part of their job of being an MP and which have nothing to do with the actual issue in question. They should be judged on the subject of the recall petition itself. I hope that the noble Lord will respond carefully to the issues that my noble friend raised.

[Lord Gardiner of Kimble]

My Lords, I am most grateful to the noble Lord, Lord Hughes, for his amendment, which intends that in the event of any material being written, spoken or broadcast that is unrelated to the wrongdoing which initiated the recall petition and which is detrimental to the MP, the petition will become null and void.

The Government believe that there are three significant concerns as to why this amendment presents difficulties. Indeed the noble Lord, Lord Hughes, referred to the first, which is the principle of free speech—an issue which of course all of us in this House prize very strongly. I do not think that we should, in effect, severely restrict what individuals, including MPs, constituents and the media, may say or write for a period of eight weeks.

My second concern is the appearance that this amendment gives of particular and special treatment for a Member of Parliament. The noble Lord’s amendment states that it is only material unrelated to the wrongdoing and which is detrimental to the MP that will cause the petition to become null and void. That leaves the clear interpretation that there will be no such consequences to publishing material unrelated to the wrongdoing that is beneficial to the Member of Parliament facing recall. Indeed, while I realise the view of my noble friend Lord Forsyth on the Bill, here he is absolutely right. The third concern is that the proposals would make recall unworkable. Indeed, who would determine whether something is detrimental—and is that even possible?

I say by way of example that it would be impossible to conceive of an eight-minute period, let alone an eight-week period, which could pass without even one example of detrimental material being put into the public domain. The noble Lord’s proposals would make it very difficult for any recall petition to reach its conclusion because it would be quite simple for the supporters of a Member of Parliament to put out negative comments just to secure that outcome. I hope that the noble Lord will accept that I entirely understand and accept his good intentions, but, for the reasons I have outlined, I hope he will feel able to withdraw the amendment.