Recall of MPs Bill

Lord Gardiner of Kimble Excerpts

Monday 19th January 2015 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, this legislation is intended to help promote and restore confidence in the political system. Yet the absence of transparency, clarity and regularity in campaign financing in the politics of this country is one of the principal causes of cynicism and disaffection from politics. It therefore seems contradictory and strange that apparently so little thought has gone into the provisions of the Bill regarding campaign financing. It is singularly important that the provisions be clear and universally acceptable. I look forward to the Minister explaining what he believes the justification can be for the vagueness and looseness of the current arrangements, the manner in which they will permit outside intervention from people whose intervention we would have thought was not legitimate, and how he proposes in the light of those considerations to strengthen and improve the legislation.

[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.

[Lord Hughes of Woodside]

Listening to the Minister’s explanation raises a number of questions. The answer to this may be in the Bill and, if it is, I apologise: what happens if, after the results have been declared, it is discovered that there has been a serious breach of conditions and that money has been irresponsibly or illegally spent? Is there the possibility of the MP going to court to have the result of the petition struck out or would it be automatically struck out? What happens next? Will there be a further recall petition?

[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.

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, I thank the noble Lord for moving his amendment. Taken together, Amendments 62 and 71 would require the petition officer to provide copies of every recall petition return to the Electoral Commission, and the Electoral Commission to produce a report after every recall petition process. Under the Bill as drafted, when a petition officer receives a copy of a recall petition return from an accredited campaigner, they are bound to make this available publicly for two years. This will ensure that, as for a candidate campaigning in a constituency, spending and donations are transparent.

In addition, the petition officer must supply a copy of any return upon request to the Electoral Commission if made within these two years. This provision complements the approach followed in Schedule 6, which amends the Political Parties, Elections and Referendums Act 2000. This will permit the Electoral Commission to produce, at its own initiation,

“a report on the actions taken, or not taken, under or by virtue of that Act”—

the recall Bill—

“in relation to the recall petition in question after the giving of the Speaker’s notice”.

In drafting the Bill we have, where appropriate, followed existing electoral law. A particular focus has been placed on creating a regulatory approach consistent with that applied to any subsequent by-election. This is very much the case in this situation.

The noble Lord, Lord Kennedy, is proposing an amendment which would require the Electoral Commission to produce a report after every recall petition. To support this, a further amendment would require the petition officer to transfer automatically all recall petitions to the Electoral Commission. The approach suggested by these amendments would create an inconsistency whereby the commission would be required to produce a report on a recall petition, while it would be for the commission to decide whether to produce a report on any subsequent by-election. The Electoral Commission does not have sanctioning and investigatory powers over campaigners at a recall petition or at the subsequent by-election. The Government therefore do not consider it appropriate to introduce a requirement for the commission to produce a report on the recall petition process. The Government believe that it is best left to the commission to decide whether to produce a report. Were the Electoral Commission to have a stronger role at recall petitions, it would introduce a regulatory approach significantly different from its current role at elections. This includes a by-election which would follow a successful recall petition.

I certainly do not want to irritate the noble Lord, Lord Kennedy, but the Electoral Commission’s view on this amendment is to note that,

“the discretionary power currently provided in the Bill for the Commission to produce a report on a recall of MPs petition, which is consistent with the Commission’s power to report on the administration of UK Parliamentary by-elections, is sufficient”.

I hope that the noble Lord will understand the Government’s reservations and feel able to withdraw his amendment.

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, I thank the noble Lord for his amendment. I understand his intention in bringing it forward. In making such a key constitutional change as introducing a power of recall, we must proceed with caution. In this sense, I appreciate the cautious intent behind the amendment. However, I question whether a sunset provision can be justified where the Bill relies on defined tests of serious wrongdoing. Having given the public the right of recall, it would be very hard to remove that right after a period without a very good reason. It seems to me that, should there be a wish to change the system of recall, the onus should be on future Governments to bring such arguments to Parliament to amend or repeal the provisions in the Bill through primary legislation. It does not seem right that the power of recall would simply cease to operate after five years with no examination of how effective it had been and no possibility of extending it, except by introducing primary legislation again. It is for those reasons that the Government are not persuaded that a sunset clause is the appropriate way forward and I ask the noble Lord to withdraw his amendment.

[Lord Tyler]

Before my noble friend sits down, will he respond to the alternative that my noble friend Lord Norton and I have put before him?

[Lord Gardiner of Kimble]

My Lords, obviously one cannot commit a future Government, but I am sure that a review in some form will take place and is interesting. However, I am dealing with the amendment that is before me, which proposes a sunset clause, and the Government do not think that a sunset clause is the appropriate way forward.

[Lord Norton of Louth]

My noble friend made the point that the Government wish to avoid a situation that would require the introduction of primary legislation should a sunset clause be effective. The advantage of putting a review into the Bill would be that it would avoid that, so that this would be a preferable way of dealing with the situation.

[Lord Gardiner of Kimble]

My Lords, I shall reflect on that.

[Lord Soley]

I am grateful to the Minister. I said in my opening remarks that the alternative was a review system and I think that the Government ought to think about that. It was interesting that in his summing-up the Minister used the phrase “defined tests”. He was obviously referring to the three tests that are used to trigger this process. It is not the tests that worry me so much, with the exception of the third one, which could become highly political. What worries me are the processes, which are so ill thought out and ill spelled out in the Bill. Ministers have again and again today been standing up and saying, “We are not sure how this will work. We are going to look at election law and bring it in”. There are so many uncertainties there. I can tell noble Lords that it is going to be a gift to lawyers if we do not get that bit right. We have not done it in the House. The process of this House as a reviewing Chamber has led, time and again, to the Government Front Bench saying, “Well, we will look at this further down the line”, or, “We hope to get regulations about it” or, “We will think about it”. Such uncertainty with regard to a constitutional Bill is almost an invitation for the courts to get involved, sooner or later, in some way. Either that or the Bill will not work as it is meant to. Indeed, the fallacy in the Bill is the lack of a clearly-defined process at a number of stages, and that is why I think that the Government should think about a review or a sunset clause. However, in view of what the Minister said—perhaps he will go away and think about it—I beg leave to withdraw the amendment.