Recall of MPs Bill

Baroness Hayter of Kentish Town Excerpts

Wednesday 17th December 2014 Lords Chamber

[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.

--- Later in debate ---

[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.