Recall of MPs Bill

Lord Foulkes of Cumnock Excerpts

Monday 19th January 2015 Lords Chamber

[Lord Gardiner of Kimble (Con)]

My Lords, I thank the noble Baroness for her amendment. Concern has rightly been expressed by noble Lords and in the other place over the impact of “big money” on the recall process.

Amendment 60, however, focuses on the opposite end of the scale—namely, the lower limit above which campaigners will have to become accredited. The noble Baroness’s amendment will lower this from £500, as currently proposed, to £50. She rightly asked about the justification for £500. It is based on the previous spending limit for third-party campaigning for or against a candidate at the election. Indeed, the current limit is £700. This will, we believe, therefore permit local groups to carry out a certain amount of campaigning, such as printing and distributing leaflets. That is the reason for that number.

However, all campaigners will be subject to rules on the content of their literature, including imprints, as well as the rules on acting in concert, notional petition expenses and pre-election expenses. Once a campaigner becomes accredited, a significant number of additional registration and reporting rules kick in. We believe that these will deliver transparency over what is being spent and who is providing the financial backing.

[Lord Foulkes of Cumnock (Lab)]

The noble Lord has moved on a little. Who is going to keep an eye on the non-accredited campaigners’ expenditure and how will that be done?

[Lord Gardiner of Kimble]

If the noble Lord could be a little patient, I will be developing the points on non-accredited campaigners as well.

Under these rules, the accredited campaigner must register with the petition officer and appoint a “responsible person” who acts in a similar role to an election agent. At the end of the recall petition period, a recall petition return must be provided to the petition officer containing details of payments made during the recall petition process and claims for expenses that have not yet been paid. Evidence must be provided for all payments of more than £20. The return must also contain a declaration on expenses incurred under the provisions relating to acting in concert, notional petition expenses and pre-election expenses. Accredited campaigners, except registered parties that are not minor parties, must also detail in the return the value of each accepted relevant donation, the date it was accepted and information about the donor.

In drafting the Bill, the Government have taken the approach that it would not be proportionate to require those wishing to spend relatively modest sums during the recall process to be subject to an onerous compliance burden. This approach has been supported by the Electoral Commission. In its briefing for today’s proceedings, it notes that a low registration threshold,

“may deter constituents from participating in local campaigns and would be overly bureaucratic for campaigners”.

The commission therefore opposes the amendment. The £500 lower limit proposed in the Bill will permit local groups to carry out a certain amount of campaigning, such as printing and distributing leaflets, without subjecting them to registration and reporting requirements required of accredited campaigners. A revised lower limit of £50 would not allow campaigners to do very much without becoming accredited. Indeed, it is hard to see that many campaigners would come in under this limit at all. Noble Lords may recall that during the passing of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 this House, and, indeed, the Opposition, supported measures to ensure that the burden on small campaigners at elections was proportionate.

Turning to Amendment 72—

[Lord Foulkes of Cumnock]

The Minister said that if I waited he would answer my question. He has not. Who will monitor the expenditure of non-accredited campaigners? There could be three dozen little groups, all spending £450, undermining the local Member of Parliament. Suppose it was a Labour Member of Parliament: there could be four dozen Tories, each spending £450, undermining the Labour MP who was up for consideration. Whose responsibility is it to keep an eye on this expenditure?

[Lord Gardiner of Kimble]

My Lords, I asked for the noble Lord’s patience so that I might give him a full reply beyond, “It would be the local electoral officer”. I am now in a position to do so. I hope that the noble Lord will understand that I was waiting for some assistance, which I now have. I had not forgotten and I certainly would not forget. Responsibility for the administration and conduct of the recall petition falls to the petition officer, whose role in that process will be analogous to that of a returning officer at an election in ensuring that relevant information is open to public scrutiny. I am looking for the point on unaccredited campaigners. Just so I am absolutely clear, all this will come before the local electoral officer, but I was waiting on a piece of information to give the noble Lord the answer that he requires. If he will allow me, while I carry on we might get something that gives further clarity.

[Lord Foulkes of Cumnock]

I think I know the answer: it will be this poor petition officer. Otherwise, who will do it? Who will carry out the monitoring of all these non-accredited groups or individuals? It will be very difficult to do that. First, you have to identify who they are, then you have to ask them to produce receipts, then you have to check them and add them up. It is a huge responsibility and I am not clear who will do this.

[Lord Gardiner of Kimble]

My Lords, it will be the same process as for an election. Who will be keeping an eye on non-accredited campaigners? It would be for the police and the courts if anyone had a problem with non-accredited campaigners and there was a feeling that they were not behaving appropriately. If there are any further clarifications for the noble Lord I will make sure that he gets them, but I have answered as best as I am able.

Turning to the noble Baroness’s other amendment, I clearly understand her point about extending the provision allowing the Electoral Commission to give advice and assistance to petition officers and accredited campaigners to all other campaigners. We recognise that understanding and complying with the rules can sometimes be challenging, particularly for those who seek to participate in electoral events for the first time. With this in mind, Schedule 6 amends the Political Parties, Elections and Referendums Act 2000 to allow the Electoral Commission to give advice and assistance to petition officers and accredited campaigners. PPERA already allows the Electoral Commission to give advice and assistances to other persons, such as returning officers and recognised third parties at elections.

In tabling this amendment, the noble Baroness rightly notes that the provision in the recall Bill does not explicitly state that this advice and assistance can also be provided to non-accredited campaigners. Non-accredited campaigners are likely to require advice and assistance in determining what the rules are and whether or not they are required to become accredited. I therefore appreciate the noble Baroness’s concern. The Government also want to ensure that non-accredited campaigners are able to access advice from the Electoral Commission in the same way as accredited campaigners. We consider that this will be the case as Section 10(3)(b) of PPERA allows the commission to,

“provide advice and assistance to other persons which is … otherwise connected with, the discharge by the Commission of their functions”.

I believe, therefore, that the point that the noble Baroness has raised is covered. The Government have given considerable thought to the matters to which she referred in terms of the level of £500 and have sought what we believe is an appropriate balance to transparency and participation. On that basis, I ask the noble Baroness to withdraw her amendment.

--- Later in debate ---

[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 Foulkes of Cumnock]

Did the Minister not hear earlier when the noble Lord, Lord Elystan-Morgan, made it absolutely clear from his judicial experience that an MP could appear before a court and the options would be to send him to prison for 14 days or to fine him a few hundred pounds? If he was fined a few hundred pounds for the offence, this would not be triggered; if he was sent to prison, it would be. That is entirely outwith his control. It is within the control of the magistrate or the judge making that decision.

[Lord Wallace of Saltaire]

My Lords, I am talking at the moment about the power of wealth intervening. I am not sure whether the noble Lord is trying to suggest that wealth would come into the question of affecting the judgment made by the magistrate or judge.

[Lord Foulkes of Cumnock]

With respect, the Minister said he had gone off wealth; he had gone back on to his familiar track of saying that the only person responsible for pulling the trigger is the MP himself. I am contesting that and I have given him an example, which the noble Lord, Lord Elystan-Morgan, gave earlier on, and it is about time that the Minister listened to some of these examples.

[Lord Wallace of Saltaire]

My Lords, the noble Lord’s track is also rather familiar to the rest of us, if we are going to trade comments of that sort.

Of course, when it comes to the recall process, campaigners can use their financial capacity—subject to the £10,000 limit—during the regulated period. Then we come to the question of whether, if several campaigners agree to work together, the sum of all expenses incurred as part of this common plan would count towards the spending limit of each campaigner—an issue that some of us battled over in the transparency of lobbying Bill. This does not prevent a number of groups campaigning for the recall of an MP and each spending £10,000, provided that they do not co-ordinate their plans.

This would not necessarily always be on one side. In the event of an MP being convicted of an offence on what may be considered a point of principle, there would no doubt be many others who would rally to his or her support in a recall petition—I have to say that it would be a very exciting experience to watch at that point. We do not therefore see that a lead campaigner is desirable or practicable. We wish to encourage local, grass-roots campaigners to be actively engaged in deciding on who should be their representative.

--- Later in debate ---

Moved by

[Lord Foulkes of Cumnock]

63: Clause 18, page 12, line 1, leave out paragraph (b)

[Lord Foulkes of Cumnock]

My Lords, Amendments 63 and 67 have been drafted by the Law Society of Scotland. They would remove the power of the Minister to question the outcome of the petition. Instead, any suspected irregularities would be subject to judicial review, so they would take it out of the political arena and put it into the legal framework. I beg to move.

[Lord Kennedy of Southwark]

My Lords, Amendments 63 and 67 relate to issues raised by the Law Society of Scotland as referred to by my noble friend Lord Foulkes of Cumnock and concern matters raised by the Constitution Committee of your Lordships’ House. My noble friend makes a powerful point about the questioning of the petition and the powers this Bill gives to Ministers to make regulations.

These are very serious matters and I have some concerns about things not being very clear in the Bill. Can the Minister explain carefully why the Government are not being more specific about their intention? Can he also confirm by what process these regulations will be approved by Parliament? Am I right in saying that if anyone were unhappy they could seek the intervention of the court through the judicial review process anyway and that nothing here proposed would stop that? Amendments 64 and 73 in this group tabled by myself and my noble friend Lady Hayter of Kentish Town seek to address concerns expressed by committees of your Lordships’ House in respect of excessive powers being placed in the hands of Ministers. In particular, we have concerns as to why the Government think it necessary to give a Minister powers to create new criminal offences by statutory instrument. There is, for what in effect is quite a small Bill, far too much left in the hands of the Government to make decisions through the use of statutory instruments.

We support the principle of recall, but it is very disappointing that the Government have waited until the last few months of this Parliament to bring forward a Bill that was in the coalition agreement. As noble Lords have said before, a paper was due in 2011 and here we are in 2015. Leaving so much unresolved is not good enough. Will the noble Lord tell the Committee why so little preparatory work has been done in advance of this Bill coming forward? Will the noble Lord give us some indication where or what these new offences might be that he may have to regulate on?

Amendment 73 would remove the words “(including this Act)” from the Bill. The Delegated Powers and Regulatory Reform Committee thought these words could permit the infiltration of quite substantial and significant additional provisions into the Bill, and we agree. Can the noble Lord explain clearly why the Government think it is necessary to take such wide-ranging powers with little or no explanation?

[Lord Wallace of Saltaire]

My Lords, Clause 18(1)(b), which Amendment 63 would remove from the Bill, allows for regulations to detail the process for questioning the outcome of the petition to be made. It does not say that Ministers shall decide but allows for regulations to detail the process. Amendment 67 would amend subsection (5) to make it a requirement for the judicial review process to be followed.

Judicial review, as noble Lords will be aware, is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. The process for challenging the result of an election requires an eligible person to lodge a petition with the relevant election court.

The role of the election court is to establish whether procedural irregularities have occurred, whether an election result should be declared void, and whether any individual or individuals are guilty of offences in relation to the election. As the grounds for challenging the result of a recall petition are also likely to concern irregularities of a type that an election court will be familiar with, this body may be the most appropriate to hear such challenges.

The method for questioning a petition will be set out in regulations, as is the case at other polls where legislation has been made in recent years—for example, European parliamentary elections. The Government do not anticipate the method varying substantially from the established process for challenging the outcome of elections and therefore we do not see a special need to specify the process in primary legislation.

The Government will need to consider the details of the regulations further, but our approach will need to have regard to achieving an appropriate degree of consistency with the established process. We would see it as very much being in line with that.

Amendment 64 on the power to create criminal offences would again affect Clause 18(2)(d). Clause 18 provides:

“The Minister may by regulations … make further provision about the conduct of a recall petition”.

Subsection (2)(d) provides that such regulations may,

“make provision creating a criminal offence”.

Such regulations are to be made by statutory instrument —subject, I say to the noble Lord, Lord Kennedy, to the affirmative resolution procedure.

In its report of 15 December, the Constitution Committee stated:

“The House may wish to scrutinise why the Government consider it necessary to empower Ministers to create new election law offences by statutory instrument”.

The Government have not yet responded to the committee’s report but will do so as soon as possible. However, I say here that the power is in the Bill to enable Ministers to apply the existing electoral law on offences to the recall petition process, with suitable modifications. Again, this is a matter of adapting existing legislation, not extending or creating new offences.

In order to ensure the integrity of the recall petition process, a number of criminal offences will be required. However, the Government do not consider these to be new offences as they will mirror, with appropriate modifications, well established offences that apply at elections and referendums. The intention is to use the power only to replicate or apply criminal offences that already exist in relation to elections, adapted as necessary for the recall petition process. Examples of the kinds of offence that we anticipate are that it is an offence to impersonate another constituent and sign as them, known as “personation” at elections, as set out in Section 60 of the Representation of the People Act 1983; that it is illegal to tamper with signature sheets, which will be based on Section 65 of the 1983 Act; and that the details of the printer and promoter of petition campaign literature must be included on the literature itself or else an offence is committed, based on Section 110 of the same Act. The Government consider that it would be inappropriate to include in the Bill full details of all the criminal offences, as each offence will be attached to a breach of the detailed rules that will themselves be set out in regulations.

The noble Baroness has tabled Amendment 73, which would amend Clause 21(4) of the Bill to remove the power for regulations in relation to the conduct of the petition to be able to amend this Act itself. The Delegated Powers and Regulatory Reform Committee, in turn, questioned this. Again, the Government will respond to the committee’s report as soon as possible. Ahead of that, I will provide an answer to that point here. Clause 21(4) enables regulations relating to the conduct of the recall petition process to amend primary legislation, including the recall Bill when it is an Act. This power was included in the original draft Bill that was published for pre-legislative scrutiny in 2011.

The power in question refers only to the conduct of the petition, as it relates solely to regulations made under Clause 18 and can be used only to make amendments that are consequential, supplementary or incidental to the regulations made under that power. It does not, for example, enable the amendment of the three triggers, or conditions, for initiating a recall petition in the first place. The power was originally included to allow for amendments to be made to the Act to allow for amendments made in other areas of electoral legislation, such as the introduction of individual electoral registration. Since the publication of the draft Bill, the legislation for individual electoral registration has now been put in place.

The Government are considering the committee’s recommendation on this point. As a general point, it is important that we take such powers with care, and only when it is reasonable to assume they will be needed. The Government will continue to consider the recommendation of the Delegated Powers and Regulatory Reform Committee and reflect on the views expressed in this House, and I am sure that we will return to this issue on Report. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Foulkes of Cumnock]

In view of that comprehensive explanation by the Minister, I beg leave to withdraw the amendment.

Amendment 63 withdrawn.