Committee (2nd Day) (Continued)
58A: Clause 14, page 10, line 12, at end insert—
“( ) The petition officer will make public, before the signing period begins, the number of eligible registered electors on the day of the Speaker’s notification that a recall condition has been met.”
My Lords, Amendment 58A stands in my name and in the name of my noble friend Lord Kennedy of Southwark. There will be a key number—a target—in any recall. It is not like a normal election where, regardless of the number of promises that we manage to get, we still have to have more than the other guy in order to win. However, a recall is not the same issue. Once a specified number—10% of the registered electorate—is reached, a by-election is automatically triggered. Therefore it is vital that everyone knows what this figure is well in advance, so that it is not being argued about at the same time that signatures are being scrutinised, verified and counted. The amendment therefore requires the petition officer to publish the number of people who are on the electoral register the day that the Speaker announces that a recall condition has been met—in other words, the number at the point at which the 10% is to be counted. That is vital in order to have absolute clarity about the precise number of potential voters that constitute 10% of the constituency. The petition officer will need to know this number anyway, so everyone else should know it.
I ask the Minister to reflect on what he said on an earlier amendment when I think he said that no information was given out on an election day. In fact, I think that the acting returning officer and the people in charge of each polling station give to us, on the hour, as agents, candidates and sub-agents, the numbers that have voted at the polling station. That is incredibly important to us sitting in the committee rooms because we can work out where we have to get our people out. When the Minister was saying that trying to keep the rules during the eight weeks the same as they are for general elections would enable numbers to be given out during that eight weeks, I think the implication of his answer was that he did not think that was desirable. We might, therefore, want to look at that. We would not want those rolling totals but we do think that we should know the target number.
I should also like to ask the Minister about the register during the eight-week period. Page 14 of the Recall of MPs Bill memorandum concerning the regulations states:
“Unlike a poll where the register will be used for one day, the register will be in operation for 8 weeks and therefore a mechanism will need to be in place so that the register held at the signing place is updated to deal with changes as a result of a clerical error, court order, or where an application to sign by post or proxy has been granted”.
Given that adding names to the register could also affect the 10% figure, we would like to know from the Minister whether it does or whether the number will be frozen at the beginning, regardless of any that are added quite legitimately. Obviously, if it increases the 10% figure, it will be important to keep an eye on that. Will the Minister elaborate on what form the mechanism will take and how it will work in practice? I beg to move.
I thank the noble Baroness for her amendment. She is rightly teasing at various issues that are significant. I am aware that we need to make sure that we get the Bill and the regulations correct.
As I understand it, the last day on which an eligible elector can make an application to register to vote in order to be able to participate in a recall petition is on or before the day of the Speaker’s notice. This enables the petition officer to produce, in advance of the petition opening, a register of electors who are entitled to sign the petition. That register will include existing electors and eligible electors who applied to register on or before the day of the Speaker’s notice. It will also be used to ensure that only those entitled to sign the petition do so. It is not irrelevant that we have now introduced online registration so the reference here to,
“on the day of the Speaker’s notification”,
is a live and important one because it would be possible for a number of people to register on that day. As the noble Baroness knows, the take-up of online registration has been particularly high among younger voters.
Applications to be added to the register will not be processed immediately. The last date on which a person may be added to, or removed from, the register is three working days before the petition opens, except as a result of a court order or the correction of a clerical error. I stress that court orders and clerical errors represent extremely small numbers of cases. Until that date, the publication of the number registered would not give an accurate indication of the number of signatures that would be needed for a recall petition to be successful.
In some cases, it is possible that there will be a small change in the number of electors who are eligible to sign the petition because, for example, of the correction of clerical errors, which may result in the addition or removal of a small number of names, as sometimes happens ahead of elections. At the end of the signing period, these changes will be included in the total number of electors who have been eligible to sign the petition, and this figure will be used to calculate whether the 10% threshold for the removal of the MP has been met.
I see some merit in the noble Baroness’s proposal. It would give constituents and campaigners an indication of the number of electors who would need to sign the petition in order for the 10% threshold to be reached. However, a more appropriate date on which to refer to the register is the “cut-off day”, which is three working days before the petition opens. Even then, this figure would not reflect any additions to, or removals from, the register before the end of the petition signing period, although I acknowledge that it is unlikely the figure will change significantly.
Noble Lords will be pleased to hear that regulations to be made under Clause 18 will set out further provision about the conduct of a recall petition, including the use of the electoral register and how the public will be informed about the result of the petition. Along with arrangements for elections, we envisage that the formal declaration of the result would include details of the number of electors who successfully signed the petition, the number of spoilt signing sheets and, in answer to the point made earlier by the noble Lord, Lord Forsyth, details of the number who signed by post.
In designing the regulations, we will need to give consideration as to whether it would be helpful to make it a requirement for the petition officer to make public the number of electors registered in the constituency at the beginning of the signing period and eligible to sign the petition, although, as I have said, I see merit in the arguments advanced. However, I do not believe that there is a special case to include this level of detail in the Bill. Therefore, while recognising that this is a significant matter to be included within the regulations, I urge the noble Baroness to withdraw this amendment.
I agree wholly with the Minister that those who wish to promote a recall should know at the start of the signing period what the total number is so that they can calculate how many people they have to get to sign. However, will he give an undertaking that there will be no announcing on a daily basis the number of people who have voted?
I thank the Minister. I accept that three working days before the petition opens would be a better date for the number to be published. However, I am slightly uneasy that he is going to leave it to regulations which will not appear before the next Parliament to make it clear that the number should be published well before the count takes place. There is a real concern that, if the result is very close, we should not have a debate about what the correct number is at that point, given that there are bound to be difficulties about the signatures. For example, some people will have signed in the wrong place and there will be difficulties around verification. We have all been there. That is not the right time to argue also about whether the relevant figure is 7,300 or 7,400.
In a moment I shall ask leave to withdraw the amendment, but I ask the Minister to think about whether, at Report, the Government will either suggest making it clearer that it would be published, say, within three working days, or at least writing it into the record that the Government’s intention is that the regulations are likely to specify that the number could be given well in advance. I shall leave that thought with the Minister. I think that he concurs. I beg leave to withdraw the amendment.
Amendment 58A withdrawn.
Amendment 59 not moved.
Clause 14 agreed.
Clauses 15 and 16 agreed.
Schedule 3: Regulation of expenditure
60: Schedule 3, page 24, line 17, leave out “£500” and insert “£50”
My Lords, I shall also speak to Amendment 72.
Amendment 60 would ensure that all campaigners spending more than £50 were covered by the recall rules. Amendment 72 would ensure that all campaigners were covered by PPERA. The purpose of these is the same, in a way, albeit the former is by way of a probe, to ascertain from the Government why they chose the figure of £500 and also what thought was given to five or six campaigns in a constituency all being able to spend £500—technically, I think it is £499—without any sort of regulation. We want to see all but very small, local petitioning campaigning done in compliance with rules of fairness and transparency, particularly in relation to donations and expenses.
Just 10 days ago, on 9 January, we read a Cabinet Office spokesman saying:
“We want to make the political system more accountable and prevent a situation where opaque and unaccountable groups spend large sums of money attempting to influence the political system”.
We say amen to that, but the Bill as it is written allows unregistered people, indeed, non-UK nationals, to give or to receive foreign donations—in other words, not simply donations from permitted donors—and it would allow them to campaign in a recall petition provided that they did not spend more than £500. However, three, four or even more such campaigns could all be at work in the same constituency, which is, surely, exactly,
“a situation where opaque and unaccountable groups spend large sums of money attempting to influence the political system”,
but, in the case of recall, the Cabinet Office appears strangely unconcerned.
Some such groups may be working in complete innocence, but also in ignorance of the normal PPERA and Representation of the People Act rules, as they will not be registered parties, with all the expertise and experience that that implies. So while we welcome the parity of campaigners when it comes to rules on printed literature, if all campaigners are to be held to the same standards of election law, they should also all have access to the same advice and guidance as registered parties.
Schedule 6 makes provisions for how the Bill affects existing legislation, including the Representation of the People Act 1983 and the Political Parties, Elections and Referendums Act 2000. It is the latter that our amendment concerns. At present paragraph 3(7) requires that only accredited campaigners be offered advice and assistance from the Electoral Commission, whereas we think that the commission should also be on hand to support non-accredited campaigners. Does the Minister agree that such access to advice is essential to help this be fair and transparent in the way we want? Will he, therefore, agree to correct this anomaly? Will he also confirm that all spending and donations should fall under PPERA, which, at the moment, they do not?
I return to Amendment 60, which relates to the amount of money that non-accredited campaigners can spend. There is nothing in the impact assessment as to how the figure of £500 was chosen; and why is the figure the same for all constituencies, regardless of the number of electors? At election time, the amount that one can spend varies, depending on the number of constituents. Can the Minister set out the thinking behind the choice of £500?
We are concerned about the lack of parity between non-accredited and accredited campaigners in terms of the scrutiny to which they will be subject and the guidance they will receive. Our understanding is that non-accredited groups, which could between them outspend the MP, will not otherwise be covered by PPERA; but, again, perhaps the Minister can confirm that our reading of that is correct and whether he is happy that so much money can be spent in one constituency with no rules at all. I beg to move.
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.
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.
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—
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?
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.
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.
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.
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?
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.
On donations over £500, it is also important to make it clear that where I think the Minister said that the returns will go to the petition officer, he implied that the officer would do something with them. However, the returning officer in an election is responsible only for looking after and keeping custody of the returns and making sure that they are available for scrutiny by the other political parties, by the police, or by anyone else who makes a complaint. Having spoken to petition officers, my understanding is that they have no role in scrutinising and checking up on them. They make sure that the political parties put them in by the right date, but they do not scrutinise whether the donations have been made correctly. We will come on to an amendment which tries to deal with this by making sure that the returns do go to the Electoral Commission so that somebody checks on them. At the moment, no one does.
The point I made at Second Reading is that this is new for petition officers. Currently, donations are made only to political parties, which then submit them to the Electoral Commission, which checks over whether this one or that one is a registered donor, whether they really do live in the country and whether they are on the electoral roll. No doubt there is something else that the commission has to check, but I have forgotten it. However, the people who become the petition officers do not do that at the moment, so they will be unaware of it. That is why we are really worried, even more than the people spending over £500, about whether they will be checked. At least they will be caught by the rules for those spending less than £500.
I am sorry that this has been a long response to the Minister’s response to me, but there are some serious issues here around where the money comes from and the checks being made on it. I would be grateful if the Minister could ensure before Report that there is absolute clarity about small, non-accredited campaigns not having to abide by any election law other than that of putting “PandP” on their material. Also, would the Government consider whether the figure of £500 is right, thus enabling so much activity to be carried out unregulated?
I am inspired with confidence when I listen to my noble friend expounding the Bill. Perhaps she can correct me if I am wrong, but am I right in thinking that in effect there can be any number of these non-accredited groups operating in parallel, but there is provision that where expenses are incurred by persons acting in concert, the total value of those expenses is to be regarded as having been incurred by each of the persons in question? It seems to me that the protections, if there are any, are very flimsy indeed. As my noble friend Lord Foulkes suggested, we have the very dangerous possibility of a great proliferation of many organisations campaigning to unseat a Member of Parliament with no control over their number, no control over their aggregate of expenditure, and with the freedom for them to solicit and receive expenditure from anywhere in the world. Is that not deeply unsatisfactory?
It is interesting to note that when we were dealing with the transparency of lobbying Bill, which has been mentioned, we could see that as soon as charities work together they all have to take account of each other’s expenditure. But as long as these groups do different things, with one of them responsible for the literature and another one doing something completely different, there can be any number of them. As I say, there can be any number of non-accredited campaigns and any number of accredited campaigns. Ten of them could all spend £500 and another 10 could all spend less than £500. The cumulative amounts could be very large. However, that is for the Government to answer rather than me. For the moment, I beg leave to withdraw the amendment.
Amendment 60 withdrawn.
61: Schedule 3, page 24, line 33, at end insert—
“(A1) The Electoral Commission will, in relation to each of the two possible outcomes of the recall petition, designate under this paragraph one accredited campaigner as representing those campaigning for the outcome in question.”
Amendment 61 stands in the names of my noble friend Lord Kennedy of Southwark and myself. We tabled it partly because of the matters covered in the discussion that we have just been having: its intent is to limit the number of accredited campaigners to two. We believe that that would bring greater fairness to the recall petition. I shall also speak to Amendment 65.
As I said on Second Reading, and have just said again, the problem is that the Bill contains no restrictions on the number of pro-recall accredited campaign groups, all of which can spend up to £10,000. The groups could therefore include the three political parties that were defeated at the last election, and each of those could spend £10,000. So the other political parties could spend £30,000, whereas the MP or their party—if they were still supported by their party—would be capped at £10,000.
The Electoral Commission, in its response on this, said that it did not think it should be given responsibility for what was essentially going to be a local matter. As I said on the previous amendment, a recall will not be a local matter: Michael Crick will be there; it will be on prime-time television; there will be a lot of publicity; there will probably be a few stunts, and campaigners will certainly be bussed in from other constituencies, particularly if the Government have a slender majority or the seat is very marginal.
The Committee will know that we support a recall petition where an MP has been involved in serious wrongdoing, as has been agreed in the other place. Once this provision starts, however, it will not be about behaviour. Our worry, as my noble friends said earlier, is that it will turn into a debate over the MP’s voting record or beliefs. The current expenditure guidelines do not appear to recognise that logic. They are not sufficiently clear to ensure that the debate is not on those issues. If there was something going on in the big political world at the same time, the ballot could almost become a vote of confidence in the Government on that issue. Well funded vested interests could—they should not, but they will—play a part in the recall ballot. We therefore need rules governing the financing of the recall campaign to ensure that it is not hijacked by politically motivated groups out to deselect sitting MPs for something that is unrelated to their behaviour. In fact, it could be motivated simply by the desire to get a by-election, which might suit UKIP, for example, at the time. Will the Minister—who I think shares some of these objectives—outline the safeguards to prevent that?
Amendment 61 would prevent multiple organisations from campaigning on the same side, whether that is the “for” side or the “against” side. It would therefore limit the number of accredited campaigners to two: they would be either the MP or the anti-recall campaign and one organisation or group seeking to deselect the MP—the pro-recall campaign. In so doing, it would ensure an equality of arms between the two sides. There will be those who believe that, whatever wrongdoing the MP has been found guilty of, he or she should nevertheless stay and represent the constituency. There will be many cases where the constituents would want that to happen. There will also be those who feel that the MP has simply lost the confidence of the constituency and a by-election should be held. It seems to me that there are two options and that there should be two campaigns.
Amendment 65 would ensure that the campaign literature of all those involved is subject to scrutiny in order to deter campaigners from focusing on issues that are unrelated to the misdemeanour or criminal activity proven against the MP. This would not be a complete ban, as was mentioned earlier, but it at least ought to be sent in to the petition officer to be checked.
We want the recall debate to focus on the conduct of the MP and their consequent ability to represent the constituency, rather than the causes that he or she supports or their voting record on contentious issues. While we welcome the commitment by the Government in their memorandum on the draft regulation that it will be a requirement for campaign material published by both accredited and non-accredited campaigners to contain the name and address of the printer and promoter, we think there needs to be rather more guidance on this, particularly pertaining to the content of the material. I beg to move.
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—
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.
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.
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.
The Electoral Commission, which the noble Baroness proposes should be responsible for designating the lead campaigner, opposes this amendment, stating that the proposals give,
“accredited campaigners a monopoly over the arguments for or against an MP’s recall”.
It has also identified several workability issues with limiting the number of accredited campaigners on either side of the outcome,
“including the limited amount of time available there would be to receive applications, assess them and make a designation decision”,
thus delaying the process. It continues by stating that,
“it is also questionable whether a national body, such as ourselves, should be given the responsibility of registering campaigners at an essentially local electoral event, especially when it may have limited prior knowledge of the local context and when campaigners might find it difficult to evidence how representative they are of local opinion”.
Amendment 65 is intended to say that campaign literature should concern itself only with the issue of recall and not with other issues. We do not regard this as either desirable or practical. It is in the nature of any campaign that other issues will come into it. There will of course be limits; for example, public statements or behaviour that incite race, religious or other forms of hatred during the recall petition are matters for criminal law, and wider electoral law also contains specific provisions on campaign literature relating to false statements about candidates and details that campaigners must include on election publications. These are important features of electoral law that the Government want to see extended to recall petitions. It is intended that these will be delivered through the regulation-making powers provided to Ministers under Clause 18. It is intended that these provisions will apply to all campaigners at a recall petition whether they are accredited or not.
Although I understand the belt-and-braces intent behind the noble Baroness’s amendment, I hope I can assure her that it is not necessary and that her second amendment would cramp the style of the recall petition further than is desirable, practical or necessary. I hope that that answers her constructive concerns and that, on that basis, she will not press her amendments.
The noble Lord emphasised that the Government are anxious to limit the influence of big money and outside money, and he quite rightly made the point that neither big money nor outside money can trigger the recall process. However, he gave no explanation as to how the provisions of the Bill would in practice limit the power of either big money or outside money to influence such local campaigns. It would be helpful, because it is very important, if he could explain what the safeguards are; and if he cannot, if he could undertake to go away and invent some.
My Lords, the distinction between local and national money, as all of us currently preparing to fight a range of local campaigns at the next general election know, has become increasingly blurred over the years. As we know well, NGOs and civil society organisations have local branches of national organisations, so of course there is not a rigid distinction between local money and national money. We understand that one cannot entirely build a wall around a particular constituency in terms of funding. However, the limits proposed are intended to limit the amount of money that can be spent, and thus to limit the role of outside funds.
I put the question in a slightly different way. If the Minister is confirming what I think that he has been saying, it is really alarming. I was most interested in the earlier parts of the Bill. Whereas we all know that in a local election campaign for a particular Member in a particular constituency, there are controls over what each candidate can spend which have been there since about the 1870s, I think that that—not the figure, but the principle—is understandable, because a number of different choices are available: Labour, et cetera. In the case of whether there is or is not to be a recall, there are only two possible positions: you are for it or against it. You may be for it or against it for a variety of different reasons, but the decision to be made is binary, there are two choices.
It seems to me so fundamental as to be hardly worth stating that there must be a balance between the expenditure on the two sides of that simple argument. Is the Government’s position that there is no need to worry about that and that, on a range of different issues, one side in what I repeat is a binary decision can spend vastly greater sums of money than the other? Are the Government comfortable with that?
I just wanted to hear from the Government Front Bench that in this choice there could be vastly bigger sums of money spent on whether there should be a recall—or on whether there should not. As the Minister knows, I am not at all keen on the Bill, but I am keen that if that decision is made, there must be some equality of expenditure between the two sides of the argument. I find it incomprehensible if that is not the Government’s position.
My Lords, I have some experience of fighting elections in which I was fighting with an infinitely smaller budget than the other candidates. We are content that there should be more than one registered campaigner on either or both sides. In one recall petition, one side may have several groups and the other may not; in another, it may be the contrary side. That is the Government’s position.
My Lords, there is a precedent in electoral law for limiting the number of people who can be involved. Even at a referendum, where a lead campaigner is appointed, multiple campaigners can also separately campaign for one side or other, subject to the spending limits. So even in a referendum, others can come alongside for the game. We are not persuaded that the tighter limits and much tighter controls proposed are desirable or necessary on this occasion.
As the Minister said, in a referendum, they are subject to spending limits, which they will not be here.
I do not know whether I disagree most with the Electoral Commission or the Minister. The Electoral Commission keeps saying that these will be essentially local electoral events. If this happens, there will come a time when it will discover that that is not the case. The idea that it does not want to choose and set up one campaign on either side seems to me to be not facing up to its responsibilities.
The major issue is that of the Government, as my noble friend has just been saying. I am not sure that there will even be local campaign groups. I do not know whether in Kentish Town tenants’ groups or local businesses—the groups that we know more—would campaign on this issue. What I do know is that the other political parties would. Unlike some of the noble Lords who spoke earlier, I think the party will sometimes rally round its MP because it will not want a by-election. I hope that it is not as the noble Lord, Lord Hamilton, said earlier—that it is going to be a minority Tory Government—but if it is I can imagine that we would be very keen to have a by-election from the Opposition, if we could make that choice. Even with an MP who had been out of the House for 10 days, we might well campaign for him and the other political parties would want to vote against. We on one side would be able to spend £10,000 and the four other parties could all spend £10,000 the other way, and the debate would be about whether there should be a by-election. It will not be about what the MP has done. It will be about whether there should be a by-election. There could be £40,000 spent on one side and £10,000 on the other side. The answer to my noble friend Lord Grocott’s question is that the Government are content with that. I think it is clear that we have our doubts about this, but for the moment I beg leave to withdraw the amendment.
Amendment 61 withdrawn.
Schedule 3 agreed.
Schedule 4 agreed.
Schedule 5: Recall petition returns
62: Schedule 5, page 55, line 41, leave out “, on request,”
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.
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.
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.
Schedule 5 agreed.
Clause 17 agreed.
Clause 18: Power to make further provision about conduct of a recall petition etc
63: Clause 18, page 12, line 1, leave out paragraph (b)
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.
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?
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.
Amendment 63 withdrawn.
Amendments 64 to 67 not moved.
Clause 18 agreed.
Clause 19: Performance of the Speaker’s functions by others
Amendments 68 to 70
68: Clause 19, page 13, line 17, leave out subsection (1) and insert—
“( ) If a relevant circumstance arises, the functions of the Speaker under or by virtue of this Act (“the Speaker’s functions”) are to be performed by the Chairman of Ways and Means or a Deputy Chairman of Ways and Means.”
69: Clause 19, page 13, line 22, after “reason,” insert—
“( ) the first, second or third recall condition has been met in relation to the Speaker,”
70: Clause 19, page 13, line 24, leave out subsections (3) and (4)
Amendments 68 to 70 agreed.
Clause 19, as amended, agreed.
70A: After Clause 19, insert the following new Clause—
The provisions of this Act expire at the end of the period of 5 years beginning with the day on which this Act is passed.”
My Lords, this amendment would create a sunset clause; that is, it would bring the Bill to an end five years after the date when it became law. I came to the conclusion quite a few years ago that sunset clauses were useful in a couple of situations. That was originally drawn to my attention in the Prevention of Terrorism (Temporary Provisions) Act 1984, in which we had a sunset clause because the Government accepted that the powers in it were very serious and we needed to consider the idea of letting the Bill lapse if it did not need to be renewed. In fact those powers had to be renewed, and we did that. The other case in which it is useful, which is much more relevant to this one, is where the outcome in the Bill as regards becoming a law and its effect is very uncertain, and it contains constitutional implications. That is the case for reviewing it at the end of a certain period. The Minister may want to say that the Government do not like the idea of a sunset clause—I know some of the arguments against sunset clauses—but if they would like to consider just reviewing it at that stage, that might be another option.
I have two fears about the Bill. I will start with the simple one that does not keep me awake at night much: that it would be largely ineffective and might not even reach the statute book intact. There are so many uncertainties in the Bill, many of which we have heard about this evening, that it is quite hard to see how it would be in good enough shape to become a complete law before the general election. It will not surprise me if it does not quite achieve that. You could say, “Well, that could be the end of the matter”. The second and much more worrying fear, which causes me concern and which has come up a number of times on both days of Committee, is that there are possibly quite serious implications here. Indeed, the Constitution Committee picked out one of them, which we have referred to on a number of occasions. If the offence that a Member of Parliament commits is a political one, the committee indicates that the outcome of that is a very serious matter.
The noble Lord, Lord Hamilton, who has gone now, used the example of Zac Goldsmith and Heathrow Airport, of which I have some knowledge. I have no doubt that in due course the Conservative Party will change its position on the third runway and conclude that it was its idea to expand the airport all along and that I had nothing to do with it despite the last 20 years of campaigning. However, the important point about Zac Goldsmith is that, to his credit, he has indicated that he will resign from the Tory party if it changes its position. Let us assume that the party changes its position—which I think it will, whether it is in government or not—and Zac Goldsmith resigns from it. That would not trigger an election. However, he feels very strongly about this issue, and if he feels so strongly that he does some form of demonstration in the Chamber of the House of Commons and gets himself excluded from the House for more than 10 days, we will enter into this process. You have to ask, “Do you really want to create that sort of condition?”. The last few debates have been about how important it is to debate the issue of the MP’s wrongdoing. In this case, I suggest that if Zac Goldsmith behaved so badly—I am not saying that he would—that would be the effect, but the election would be all about the third runway at Heathrow, and all the campaigners on both sides would pour in on it. There are many examples of that; my noble friend Lord Hughes gave some, and I gave others. There is a danger of politicising elections.
The other thing that troubles me about this, and the other reason why some form of review or sunset clause is necessary, is because there are umpteen opportunities in the Bill for pulling in the judiciary. The last few amendments we have discussed are all replete with opportunities for legal challenges, which would go either to an electoral court or—which would be less likely, but is conceivable—to a conventional court. All that seems to be opening up an area where we pull the judiciary more and more into the political process, which I am very strongly against. The case of Phil Woolas that I quoted at Second Reading is a dramatic example of why we should not get the judiciary muddled up with political process, and of how right the 18th-century political philosopher was—his name escapes me—who said that the electorate are sovereign in the British political system. The electorate must decide. That is very real and we should stick to it, so keeping the judiciary out of politics is a good idea.
All that suggests to me that the case for having some review system at the end of the Bill would be useful. We need to remember that the sunset clause is an advantage. If the Bill is not used at all, which is quite possible, it will just die. It will come off the statute book and we will not have to bother about it again. On the other hand, if it requires reform, we can reform it at that stage. That was done with the prevention of terrorism Acts. The alternative is that it works fine and we can renew it. That is not a bad safety valve to have in a Bill of this nature, which has constitutional implications and, as I have indicated, certain serious provisions.
I looked through the Constitution Committee’s report and it contains a number of important issues. I will not repeat them all now because we dealt with some of them earlier. It is not just a matter of politicisation. As has come up recently, if the Electoral Commission is not to be heavily involved in this—and clearly it is not, from what has been said in Committee this evening—then there are all sorts of opportunities for challenges for the proper running of a recall election. What will happen then? Are we going to have to have another recall election, just as we would if an MP or someone else challenged the validity of a conventional election for that MP? There is an opportunity here for all sorts of applications to court, particularly on the expenses issue. Incidentally, Edmund Burke was the philosopher that I was trying to remember at this late hour.
We really need some way of ensuring that we can review this Bill. My best guess is that it might not be used much if at all, in which case it could die after five years. If it is used, frankly there could be very real dangers in it. It is very important, as the Constitution Committee pointed out, that there are ways of removing MPs. The expenses scandal was a classic example of that: several MPs were removed. Indeed, one of the saddest things about the Bill is that every MP in the House of Commons now has been re-elected by the electorate, who are sovereign in our system. None of them has done anything wrong. However, this Bill is about flagellation. As I think I said before, flagellation is a bad idea at the best of times but do-it-yourself flagellation when you are not even guilty of anything is ridiculous. No MP need be sitting at the moment thinking, “I have done something wrong”.
As the Constitution Committee points out, if the Bill is designed just to reassure the electorate, it is unlikely to have any effect. The most we can hope for is some sort of publicity of this sort of event and the hope that people notice it. The chances of people taking much notice of what is happening on this right now are very limited. If an MP did something, they would almost certainly be disciplined by the procedures that operated effectively even in the last Parliament. As I say, at best this Bill is unlikely to be used and therefore should die after a five-year period; at worst, we could have situations where very heavily political cases had to be fought on that basis. That is bad news for democracy and I ask the Government to look at a way of reviewing the effectiveness of this Bill after a five-year period and then to let it lie, to amend it and bring it back, to get rid of it or, if I am wrong and it works, to just accept that it works.
My Lords, the noble Lord, Lord Soley, made a persuasive case. However, I am particularly drawn to the alternative that he identified, which is to provide for a review of the Act after, say, five years. The precedent already exists in the Fixed-term Parliaments Act. We have already written into that Act that it will be subject to review.
The Minister may say that this Act will in any case be subject to post-legislative review by the relevant department three to five years after enactment, but I think there may be a case with such a significant constitutional measure for the review to be post-legislative scrutiny and for it to be included in the measure. I commend that review proposal as an alternative to what the noble Lord is putting forward. It is something to which we may wish to return on Report.
My Lords, not for the first time I entirely agree with my noble friend Lord Norton of Louth. However, I want to make one more substantial point about the Bill and say why I think that some form of review is necessary, whether it is a sunset clause or a review of the kind that my noble friend has suggested.
I have followed the course of these proposals from the very early days of the draft Bill in the other place. I have attended debates there and have watched and listened and have been involved in a number of discussions with Members of both Houses. We should recognise that a feature of this Bill which has been very evident from our discussions in your Lordships’ House is that Members of the other place were for understandable reasons very inhibited when they examined the details of the Bill. They felt that it was self-serving to some extent and they were embarrassed at looking at it in great detail and finding fault with it because they felt that, in so doing, they were somehow putting themselves in an invidious position. Indeed, some were also influenced by pressures from outside not to say anything, not to question, not to challenge and not to query. For that reason, the Bill, as it now stands, will satisfy no one.
In those circumstances, we should bear in mind very carefully what was said by noble Lords on all sides of your Lordships’ House—that they hope that the Bill will never be used. It was said most recently by the noble Lord, Lord Kennedy. He said that he hoped it would never be used or used very infrequently. In those circumstances, it would be irresponsible of Parliament not to set out some sort of review procedure to determine the timescale for looking at the Bill again. The proof of the pudding will be in its eating. If nobody eats it, is satisfied with it or finds it digestible in any form whatever, Parliament has a responsibility to go back and look at it again.
We have all discussed in various fora the advantages of post-legislative scrutiny, and I know that my noble friend is a protagonist for that. Of course, we should do that more often but in this particular case it is important that Ministers think very carefully between now and Report about what mechanism they would prefer for doing that. I do not mind which it is, whether it is a review or a sunset clause. This is an unusual Bill in the way it has been treated in the other place and the considerable concerns and anxieties that have been expressed throughout the House. I make no bones about it: I think it is still capable of being improved. Some think that it is beyond improvement. I have put forward some proposals and am still hopeful that Ministers will meet me and other colleagues from all sides of the House to look at the concerns and criticisms of the Constitution Committee to see whether we can meet them in a more effective way. However, as things stand, I believe that it would be simply irresponsible for Parliament to leave this Bill in its current state without including some mechanism for proper review in a prescribed way and at a prescribed time.
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.
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.
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.
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.
Amendment 70A withdrawn.
Clause 20 agreed.
Schedule 6: Minor and consequential amendments
Amendments 71 and 72 not moved.
Schedule 6 agreed.
Clause 21: Regulations
Amendment 73 not moved.
Clause 21 agreed.
Clause 22: Interpretation
74: Clause 22, page 14, line 44, leave out “quashed” and insert “that there is no longer a conviction for the purposes of section 1(3) or (7) (as the case may be)”
Amendment 74 agreed.
Clause 22, as amended, agreed.
Clauses 23 to 25 agreed.
Bill reported with amendments.
House adjourned at 10.20 pm.