Recall of MPs Bill

Lord Kennedy of Southwark Excerpts

Monday 19th January 2015 Lords Chamber

Moved by

[Lord Kennedy of Southwark]

62: Schedule 5, page 55, line 41, leave out “, on request,”

[Lord Kennedy of Southwark (Lab)]

My Lords, the amendments in the group proposed by myself and my noble friend Lady Hayter of Kentish Town concern the work done after the petition process is over and the MP has either been recalled or not. The Electoral Commission in recent years has reported on election returns and highlighted both good practice and areas where things have not gone so well, or highlighted minor infringements or inconsistencies in what has been sent back by election agents. This has been a good, helpful process and has enabled better advice and guidance to be produced that has been helpful to everyone involved.

Whoever the campaigners are in a recall petition, we can definitely say that they will be new to the process and may be new to any sort of campaigning. If people break the rules, there are processes to be followed and action to be taken as appropriate, but I think it is right that the Electoral Commission should look at the returns submitted by campaigners.

We all hope that this Bill when it becomes law will never have to be used. I think we can confidently agree that if it is used it will be very infrequently. Because of that, we have to ensure that asking the Electoral Commission to look at the returns is a sensible and proportionate move. The problem with the wording in the Bill at present is, on page 55, line 41, the words “on request” and, on page 57, line 32, the word “may”. That for me is too loose and leaves an air of doubt. For such an important matter, the Electoral Commission must be sent a copy of all the petition returns and accompanying documentation and should produce a report on the actions taken or not taken in respect of the recall petition. This is far too important a matter to be left to the vagaries of “on request”, “may” and other similar words.

In conclusion, as my noble friend Lady Hayter of Kentish Town, has said, I am disappointed with some of the responses by the Electoral Commission to this Bill. I say that as a former member of the commission; I was a member only a few months ago. I am getting quite cross now, particularly with the comment that these are local events with a local feel. I live in south London, and in our times of 24-hour news, to suggest that the only people who will be interested in a recall by-election in south London will be the South London Press, published every Tuesday and Friday, is ridiculous. I really think we have to get rid of this idea. I beg to move.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, I thank the Minister for his response. However, I do not know whether he is aware that the Electoral Commission has in the past produced reports on every single local election, whether it be for the whole of London or of Derbyshire or Nottinghamshire. That is hundreds and hundreds of returns, while we are probably talking about one or two returns over a number of years—a very small amount in comparison, so it would not be a big or onerous task. He made the point that the commission has no investigatory powers but, if it looked at returns and found wrongdoing, it could refer that matter to the police. That is what it should do but, with that, I beg leave to withdraw the amendment.

Amendment 62 withdrawn.

--- Later in debate ---

[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.