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Clause 1: How an MP becomes subject to a recall petition process
Moved by Baroness Hayter of Kentish Town
1: Clause 1, page 1, line 10, at end insert—
“( ) In this Act the signing of a recall petition constitutes a public act and the information of each person who signs a recall petition will be accessible in a marked electoral register, if requested.”
My Lords, in moving Amendment 1, I shall also speak to Amendment 15. Together these amendments, tabled by me and my noble friend Lord Kennedy of Southwark, would enshrine in the Bill that a recall petition is a public act—an open declaration of one’s wish to recall an MP. We have moved to this position since Committee, in the belief that there is an urgent need for clarity on this issue.
At Second Reading and in Committee, we discussed whether signing a recall petition is to be secret or a public act. If it were the latter, we noted that people must be aware before they sign that their identity could become known in due course. We then waited for the Government to decide whether to attempt to keep this a secret act, and therefore bring in different rules from those for general elections regarding access to the marked register, or to acknowledge that secrecy cannot be maintained and therefore to make it clear that signing a petition would be, as with any other petition, a public statement.
Alas, the Government are still all over the place. In response to our Constitution Committee, they say they will set out in regulations—which we have not yet seen—how to address the issue of keeping names secret, yet they must surely realise that, at the very least, the MP and the agent are bound to have access to the marked register, as is anyone who thinks someone may have signed in their place. Little thought seems to have been given to how in this respect a recall petition differs from elections, and from referendums—that is, where signing is only a one-way act—and its implications for the rest of the process.
Nor have the Government consulted stakeholders on this issue, be they local government, the Electoral Commission, political parties, the Electoral Reform Society or the Association of Electoral Administrators. Even in the briefing yesterday, the Electoral Commission still did not told us whether it advised the Government that it should be open or secret.
Instead of consultation, the Government have simply tried to cut and paste bits from the Political Parties, Elections and Referendums Act and the Representation of the People Act without thinking through the implications of what they are proposing. A recall petition is neither an election nor a referendum, as in both cases the choice is indicated by the voter rather than being a one-way act. If we consider the history and character of petitions, we would see the difference from normal elections. Take the rules on public petitions in the other place. There are three requirements of signatories of petitions. They must openly declare their name, the petition must be signed by them and they must state their address. There is no doubt that, as our Constitution Committee said,
“signing a recall petition is a public act”.
Even the Government conceded that,
“whereas at an election the way in which a person has voted remains secret, this secrecy cannot be maintained absolutely through the process of signing this petition as there is only one way in which a person may sign”.
The Government’s almost unbelievable suggestion that people should apply to sign by post to maintain their confidentiality is not only flawed in practice—because of the marked register—but, importantly, it is flawed in principle. Postal votes were never designed to safeguard the secret ballot but to enable those who, for whatever reason, cannot make it to the polling station. The unavoidable truth is that, for a petition, going into a polling station, or returning a postal petition, immediately identifies your intentions. The Minister said in Committee that the Government were,
“considering what limitations there should be on access to the marked register”.—[ Official Report , 19/1/15; col. 1113.]
However placing restrictions on the normal access is probably impossible, as the police and others must have access to check on allegations of double or improper signing. Therefore, the consequent openness of the marked register must be reflected in communication with potential signatories. It must be clear from the start, on the notification sent to constituents, that this is different from elections or referendums, and that the fact they have called for recall may become public.
Indeed, it is not simply a question of the marked register, but of all the staff at signing places over eight weeks, party reps standing outside such places, journalists and their cameras hanging around, scrutineers and polling clerks. Are they all to be bound to secrecy? Of course that is not possible.
It is our view is that it is crucial that a clear decision is taken by Parliament so that everyone understands the position. Furthermore, we have come to realise that the only way forward is for it to be a public petition. It is too important a part of the recall process for this decision to be left to regulation or to the next Parliament, or—even worse—to those having to administer the first ever such petition. Our amendments remove any ambiguity, and would make it clear to potential signatories, to petition officers and their staff, and to campaigners that calling for recall is a public act.
The first amendment therefore asserts that a petition will be entirely open. Amendment 15 would require a petition officer to make the marked register available as normal, if requested, at the end of the process. It would also ensure that potential signatories are made aware that this is an open process, with a notice on the petition card warning that the fact that an elector had signed could become available on the marked register.
Without our amendments, we would be left with considerable uncertainty because of the Government’s inability to make up their mind about a fundamental aspect of the Bill. Recall is different from a choice between competing parties or competing views on European membership or devolution, where one can vote yes or no. The fact of signing means that one has voted only one way. If it cannot be kept secret that someone has signed—and our belief is that such secrecy could not be maintained—that must be clear to one and all. It is Parliament that must decide on this vital issue. I beg to move.
My Lords, it is the job of Parliament and this House to be clear in our language as far as possible. I was wondering whether I had time to rush out and check a copy of the Oxford English Dictionary. In all my years in public life, the word “petition” has always involved collecting names and presenting them on a list to whoever you are petitioning. That was certainly the case in the other place, and I assume it is in this House, although I have no experience of it. Should the Government not be minded to accept this amendment, it would involve a redefinition of the word “petition”. A petition involves petitioners, and petitioners are not anonymous people who cannot be traced.
My Lords, I have been a little confused by this as well. I imagined that when people signed the petition, they would be crossed off the electoral roll—that would be the proof that they had signed. There would be no question of checking the signatures; it would be a question of checking the electoral roll. I would be grateful if my noble friend could fill us in on that.
My Lords, I am sorry to delay my noble friend; I shall not do so for more than a moment or two. I made it quite plain in Committee that I thought this was a dreadful Bill, unimprovable and really unamendable. That remains my position. I could not take exception to the extremely cogent speech of the noble Baroness on the Opposition Front Bench. This is a terrible Bill that the Commons are inflicting upon themselves. I wish they were not. It betrays a lack of self-confidence in a great institution that is superior to any other in this country. Recall is the process that goes on at a general election. That is where I rest my case, and that is why I shall not put myself in either Division Lobby tonight.
My Lords, I thank the noble Lord, Lord Cormack, for that very brief Second Reading speech, and I thank the noble Baroness, Lady Hayter, for the meticulousness with which she has pursued this delicate issue—although perhaps not for some of her slightly ungenerous little comments in moving her amendment.
There are a number of difficult issues here. There are issues of potential intimidation and certainly issues of electoral fraud that require that a marked register be assembled and is available to those who want to check against impersonation—so we are conscious both that this cannot be an entirely secret process and that there are arguments that it should not be an entirely public process. The Government have considered this and consider that we can designate a process that guards against impersonation but which also provides some safeguards against intimidation.
As I said in Committee, signing a petition, particularly in person, is unavoidably, to a degree, a public act. However, that does not go so far as sanctioning the publication of the full list of those who have signed the petition—the marked register—as is implied by the Opposition’s amendment. I agree that regulations should specify—
I hope that I will be able to explain, as I continue, what some of the safeguards against intimidation might be.
The regulations should specify that the marked register will be available for inspection, although, as at elections, that will be dependent on certain restrictions and an application to the petition officer. There are also some protections we can provide, such as choosing not to mirror the provision at elections where the marked register can be requested as a document for campaigning purposes by political parties and candidates. There is a good argument here that inspection should be allowed for reasons of preventing personation, but that the document itself should be kept securely and used only to test whether or not personation has been attempted.
Furthermore, the wording of the amendments implies a degree of ease of access to, and publicity of, the marked register, which does not exist even at elections. Those who wish to view the marked register must justify to the returning officer, or the Chief Electoral Officer in Northern Ireland, where problems of intimidation exist very clearly, why they need to inspect the marked register itself and could not glean sufficient information from the full register. Inspection is under supervision and the law specifies that, although handwritten notes are permitted, portions of, or indeed the whole of, the marked register may not be copied down.
I hope that this provides the assurance needed. There is only a small amount of space between the Government’s intentions for the regulations and the spirit of the noble Baroness’s amendments. There will be a marked register and it will be a document which can be made available for inspection—although, as I have said, there will be controls mirroring those at elections and, in some respects, further controls in that the Government do not intend that copies should be made available for campaigning purposes, for the very evident reasons given. I also accept that signing is, to a degree, a public act, although there will be those who prefer to sign by post and avoid attending a signing place; that is their choice to make. I also see the merit in the petition notice card making clear the degree to which signing is an open process; it will therefore ensure that suitable wording is included before it is user tested.
However, I believe that the regulation-making powers in the Bill are sufficient to deliver the policy outcomes under discussion. I therefore thank the noble Baroness for the care that she has taken to ensure that we address this delicate and difficult issue. I hope that we have satisfied her and, on that basis, I hope that she will be able to withdraw her amendment.
My Lords, I am puzzled by what the Minister just said: that signing a petition is somehow—what was the word he used?—“delicate” or “difficult”. I am astonished. My understanding is that, once the election is past, the marked register is available to be purchased by election agents and political parties. He talked about the marked register being a campaigning tool. We are obviously all totally against names being made available while the petition period is going on, but surely to goodness, if a citizen of this country is asked to determine the fate of a Member of Parliament, he or she should not sign that petition carelessly, without thought to the possible repercussions. I really think that the Minister is quite wrong on the attempted secrecy of the marked register. I hope he will reflect, because he is not doing democracy any good whatever.
My Lords, I thank those who contributed to this short, but very important, debate. The Minister responded only on one bit of it, in respect of possible intimidation. There is another issue, which is the openness of this new democratic process. He has not really addressed that. He has not addressed whether journalists standing outside a council office where there is a signing will be able to write in the newspaper the names of the people who have signed, or whether they are all suddenly meant to be unable to report what they have seen.
Somebody who is known could go in to sign. The journalist could say, “I saw Hayter going in to sign”, and presumably that would be completely legal. The Minister seems unworried by that. It is not just the marked register. Either this is open or it is not—and that is something that Parliament must decide. I may not have put it down the right way—perhaps I should have had an “either/or” approach, which is not here, asking whether we want it open or closed. As the Government have left it, it will effectively be open. If that is the case, that should be in the Bill, and I wish to test the opinion of the House.
My Lords, I will also speak to Amendment 3 in my name and those of my noble friends Lord Lexden and Lord Norton and the noble Lord, Lord Alton. Our purpose throughout as a cross-party group has been to try to answer the very powerful point made by the Constitution Committee of your Lordships’ House about the second trigger in the Bill concerning suspensions by the Standards Committee. I will remind the House briefly of that very important comment:
“the provision that an MP should be subject to recall where he or she is suspended from the House for ten sittings days or more means that it will be MPs themselves, rather than voters, who under this scenario determine whether the recall process can be triggered. The constitutional purpose of recall is to increase MPs’ direct accountability to their electorates: it is questionable whether that purpose is achieved when the trigger is put in the hands of
MPs rather than constituents. There is also a possibility that decisions taken either by the House of Commons Committee on Standards or by the House itself may become skewed by knowledge of the ten-day trigger”.
The Government have now responded to this criticism with two important contentions. First,
“The Government believes that it is important to be careful to respect the disciplinary arrangements of the House of Commons”.
I had some difficulty in squaring that view with the purpose of the Bill, which is to increase direct accountability of MPs to voters. Deference to MPs’ own preferences about the regulation of standards created in a quite different environment and for a quite different purpose cannot be squared with direct accountability to the public. The second of the Government’s contentions in relation to the Constitution Committee’s concerns is that,
“It will be for the standards committee and for the House of Commons to judge how they wish to respond to the introduction of a recall mechanism”.
No one can disagree with that; they will have to work out how to respond.
However, lo and behold, I discovered this very morning this report published by the Standards Committee. In over 100 pages it sets out in extreme detail and with great relevance to this part of the Bill, a whole set of proposals for the future of that committee. It comes from a sub-committee chaired by one of the lay members but comprising six very respected Members of that House and that committee. The proposals have huge significance in terms of the committee’s composition, its role and the way in which it could operate in the future. Nothing could have more salience for this part of the Bill and, indeed, to our amendments. It beggars belief that the Government’s response to the Constitution Committee of your Lordships’ House, sent to the committee just a few days ago by Mr Sam Gyimah, made no reference whatever to the imminence of this report. It is also, incidentally, very relevant to Amendment 6 in the name of the noble Lord, Lord Campbell-Savours.
I simply do not know Mr Gyimah, as he entered the Commons in 2010 and by that time I had retired. I cannot imagine that a Minister of the Crown actually intended to mislead either our Constitution Committee or your Lordships’ House, but he must surely have been very badly advised or informed not to make any reference to this extremely important report. What were his officials thinking? I can imagine only that he may have been persuaded to be disingenuous, since surely he would not wish to have been thought naive. Either way, these are very unsatisfactory circumstances.
I and my colleagues are bitterly disappointed that we are now considering this section of the Bill with no idea of how the Government or the House of Commons as a whole intend to react to these recommendations. This report is extremely important. I trust that my noble friends on the Front Bench have been fully briefed about its contents because, if they have not, somebody is surely seriously at fault.
The report intimately relates to the tasks given to the Standards Committee in the Bill before your Lordships’ House. To consider one without knowing about the other is just absurd and fails to recognise the risks to the Standards Committee, about which we were reminded so forensically by the noble Lord, Lord Campbell-Savours, at Second Reading. Placing in the committee’s hands judgments about who should and who should not be subjected to a recall petition puts it and the Commons as a whole in an extremely invidious position. It risks further politicising the committee and, in so doing, seriously damaging public confidence in the whole recall process just when it so desperately needs to be reinforced.
Anyone who has followed the long gestation of these proposals must recognise that the perception outside of what the Government call “disciplinary arrangements” is that we inside simply mean that Members of Parliament should make the essential decisions about the potential recall of their colleagues. The system as proposed seems to place the red card of the recall procedure not in the hands of voters or in those of an independent referee but in the hands of MPs themselves. Unless the Commons first addresses the report of the Standards Committee, published this morning, on these very matters, the Bill and the recall process will be fatally flawed.
My noble friends and I argued in Committee that the best way out of this problem was to create a new, independent trigger which could be used by electors themselves, all overseen by something akin to an election court. I readily acknowledge that those proposals did not command the support in your Lordships’ House that we hoped for, and I understand the reasons.
However, I think that Members across the House will equally acknowledge—indeed, they have done so previously—that we have tried to come up with a satisfactory remedy. It is most disappointing that the Government have, by contrast, produced no alternative proposals whatever. Ministers have failed to make a compelling case for the second trigger or to explain how the Standards Committee can be protected from the invidious position into which it will otherwise inevitably be placed. In the absence of that case and that explanation, our Amendments 2 and 3 seek to do two complementary things.
Starting with Amendment 3, we strengthen the criminal trigger in the Bill by saying that any offence could cause a recall petition to be opened. The whole premise behind the Bill is to hand a measure of power to electors. In the case of an MP who had committed a minor offence, it would be for voters to determine whether they viewed it as sufficiently serious to merit about 7,500 of them turning up at designated places in each constituency to sign a special recall petition. I suspect that in the case of, say, a public order offence to do with a political protest or a minor motoring misdemeanour, the electors would be understanding and generous enough not to seek to dismiss their MP, especially given the quite extensive length that people have to go to in order to sign a petition. It is our contention that if the Government were to accept this quite radical strengthening of the criminal trigger, it could leave behind the non-criminal trigger and leave MPs and the Standards Committee completely out of the recall process.
It would be wrong, of course, to lose the second trigger without the substantial broadening of the first—although it could be right to do both in tandem. Doing so would mean acknowledging that the attempt to tie down bad, but not criminal, behaviour as a cause for recall had failed. Given the very wide concerns expressed on all sides of the House in Committee, these twin steps would seem to be a very reasonable compromise. They are simple proposals and would get the Government out of this dreadful bind that they have created for themselves.
Whatever their view on the amendments, I appeal to Ministers to recognise that the very existence of this new Standards Committee report today adds considerable weight to our argument. Indeed, the report recommends that, even in its more limited existing role—forgetting the Recall of MPs Bill for a moment—the committee should be rebalanced to introduce more lay members and increase their number from three to seven, so that there would be seven lay members and seven elected members. The need to clarify the balance of the committee becomes all the more pressing if the second trigger is allowed to stay in the Bill. Whether it happens or not is the hinge on which the credibility of the second trigger either hangs or falls.
It surely makes sense to determine the crucial matter one way or another before putting the Bill, in its present form, on the statute book. In these circumstances, your Lordships should not be asked to look at the Bill again on Third Reading until that is resolved and the whole issue of the role of the committee, its membership and its operation has been comprehensively addressed. In the mean time, I beg to move.
My Lords, I wish to retain the second trigger, and it is only on that matter that I part company from the position taken by the noble Lord, Lord Tyler. I wish to speak to Amendment 6 in my name. It is very much about House of Commons business in that it relates, again, to the structure of the Standards Committee.
The House has now been made aware of the very significant report that has been produced this morning, which was prepared by the sub-committee of the Standards Committee, established to deal with the issue of structure. I have been able to read that report in its entirety today, and it deals comprehensively with the future of the lay membership. It is an excellent report and analysis, although I depart from some of its conclusions.
I should make it clear that I have also read the entirety of the proceedings on this Bill at Second Reading, in Committee and on Report in the Commons. I take on board comments on the value of lay membership of the committee, which is currently three members, a development introduced after I left the committee in 2001. My own experience over the years I spent on the Standards and Privileges Committee and its predecessor drove me inexorably in favour of an independent element, which turned out to be the appointed lay membership. Amendment 6 deals with the independent element and that lay membership.
I have listened very carefully to the ideas proposed by the Liberal Democrats and their colleagues, and I have talked on the phone on a number of occasions to the noble Lord, Lord Tyler; I agree with him very often on constitutional reform and linked issues, but I cannot accept the external processes that he advocates. He is moving the process of inquiry away from Parliament to an outside body, and I simply do not believe that it will work.
I have to confess that my views are tempered by the IPSA experience, which has proved disastrous for Parliament, although that is not my only consideration. I have other considerations such as the handling of the Woolas case, interaction with the Bill of Rights, the role of the CPS, and the total absence of parliamentary experience among those required to make judgments on parliamentary misdemeanours. I want to build on the model already in place, which includes three lay members.
I am informed that the lay membership has been successful and has greatly helped the House of Commons membership of the committee both during deliberation and in the formulation of judgments. I therefore propose an alternative revised Standards Committee model, with a substantial increase in the independent lay membership as an alternative to the model being advocated by the noble Lord, Lord Tyler.
The current membership of the committee stands at 10 elected and three lay members. The three lay members are all people of distinction, but they have no vote, although they are free to express dissent over a committee report. I would reduce the committee to 10, comprising seven lay and three elected members—three MPs. In dealing with a complaint, the whole committee of 10 would be engaged in the consideration of commissioners’ reports, the questioning of witnesses were necessary, and deliberation, including discussion of amendments to committee reports. However, on the completion of the whole committee’s discussion on reports and their amendments—the committee meeting in its entirety—the elected three members would withdraw from the committee and the lay membership would then further their deliberations and they would vote on amendments, approve the report and decide on their recommendation of penalty, including suspension. The lay members would vote in the absence of the elected members.
That brings me to the status of the lay-approved report, which is at the heart of the approach. The lay report as approved in reality is no more a proceeding in Parliament than is the commissioner’s report. It is at the time of lay approval no more than private deliberation. It has no parliamentary status. It acquires parliamentary status only when it has been considered and reported by the three parliamentarians on the committee. In my view, it is they and only they who can give it the imprimatur of Parliament, so the committee reconvenes with the three MPs and they do precisely that. They decide on whether they wish to approve or reject the lay report. In my view, it is inconceivable that three elected politicians would choose to overturn the collective decisions of the seven distinguished lay members. Only in exceptional circumstances, which I cannot foresee—although they may exist—would a report be overturned, as to do so would inevitably provoke considerable backlash in the media.
The advantages of my proposal are that they bring independent decision-taking in judgments to the whole process. The process is simple. It is a development of existing practice. It avoids complicated arguments over parliamentary privilege and the Bill of Rights. It makes it far more difficult for the House as a whole to overturn a Standards Committee decision without provoking public concern and perhaps anger. It would avoid the prospects of an election court coming into conflict with Parliament. It is potentially cheap to manage, although the report today referred to by the noble Lord, Lord Tyler, shows some substantial figures in the funding of the lay membership, which could perhaps be re-profiled at some stage in the future. Many outside would regard it as a great honour to be appointed to a lay committee of the House of Commons. Finally, it ensures that the voice and experience of MPs is taken into account when judgments and penalties are decided on. My amendment emphasises the need for the lay membership to recognise this part of the process.
I turn, finally, to page 35 of this very substantial report, which has been referred to by the noble Lord, Lord Tyler. In referring to the Procedure Committee of the House of Commons when it was considering these matters, it said:
“The Committee concluded that if lay members were to be given voting rights”— that is what I am advocating, and I understand the noble Lord, Lord Bew, advocated it also when he gave evidence to the committee; I do not know whether he is here—
“legislation should set the matter beyond a doubt. The committee believed that appointing lay members in the absence of such legislation would carry a ‘strong element of risk’ in that it could ‘lead to conflict between the House and the courts and might have a chilling effect on how the Committee conducts its work even before such a challenge emerged’”.
It just happens that I tabled the amendment to do so, and the report came out today. I ask the Government to take this amendment seriously into account. If it is insufficient to deal with the concern expressed by the Procedure Committee, they might wish to come back at Third Reading to set in law the requirements that they believe are necessary.
My Lords, I support Amendments 2 and 3, to which, as my noble friend said, I am a signatory. They are designed to remove discretion by judges and politicians. I appreciate the arguments advanced by the noble Lord, Lord Campbell-Savours. I understand the case he is making, but I think the arguments for Amendments 2 and 3 are more persuasive.
It is important to remember, as my noble friend mentioned in moving the amendment, what the Bill is designed to achieve—it is to restore, or at least create, confidence in Parliament. I cannot see how the existing provisions of the Bill achieve that. A judge or members of the Standards Committee may be conscious that what they decide may render an MP eligible for a recall petition. It may or may not be a factor. However, the crucial point is not whether it is a factor but that members of the public may believe that it has been.
If an MP is suspended for eight or nine sitting days, there may be a good reason for selecting that period, but it may well give rise to suspicion that the number was chosen in order to avoid the MP being eligible for a recall petition. A judge torn between whether or not to sentence a Member to a period of imprisonment may err on the side of leniency, but, in so doing, may be accused of being overly lenient, ensuring that the MP is neither incarcerated nor subject to a recall petition. Electors may not share the judge’s view, but there is nothing they can do about it other than feel that the system has let them down.
These amendments take out the element of discretion. There is simplicity, there is objectivity. If an MP is convicted of an offence, any offence, he or she becomes eligible for a recall petition. The issue is simply one of innocence or guilt. If the Member is found guilty, it is then up to the electors whether to begin a petition to recall the Member. If it is a minor offence, as my noble friend Lord Tyler mentioned, they are not likely to take action, but it is up to them. There is no intermediary between the MP committing some wrongdoing and the electors.
In short, these amendments create conditions which electors will understand, and it is then up to them. I suspect they are more likely to feel strongly about MPs who break the law than those who offend against the rules of the House of Commons. If an MP accepts money for raising issues in Parliament, then that should perhaps no longer be a matter for disciplinary action by the House but for a change in the law.
As I argued at Second Reading, this is an imperfect Bill. These amendments are designed to render it less imperfect. I hope, even at this late stage, that the Government see, if not the light, at least a chink between the curtains.
My Lords, Amendments 2 and 3, which have been spoken to by the noble Lords, Lord Tyler and Lord Norton, have the combined effect of making the provisions of the Bill even more severe than they now are and of weakening the capacity of the House of Commons to discipline its Members itself. That seems to me to be an unhappy combination.
The noble Lords believe that a Member of Parliament found guilty by a court of any offence—not necessarily an imprisonable offence, but any offence—ought to become subject to the recall petition process. As the noble Lord, Lord Tyler, suggested, a minor motoring offence could expose the Member of Parliament to that process. He was optimistic that constituents would have the moderation and kindliness not to take advantage of that, but it does seem to me that a lot of politics could quickly come into this and that an opportunity might well be seized by those who wanted to see a Member of Parliament of a certain party displaced. Perhaps more seriously, a Member of Parliament who was found guilty in a court of some offence of obstruction during the course of protesting against proposals for fracking or wind turbines—or perhaps the tripling of tuition fees—would, again, be subject to the recall process.
This means that the Member of Parliament, instead of being subject to the rounded judgment of all his constituents in due course at the general election, becomes immediately subject to the wrath of all the Mrs Grundys in his constituency and of the censorious minority—only a small minority, 10% of registered electors, need to sign the petition to trigger the process. Members of Parliament will have to be paragons of virtue and constantly on their best behaviour. Those of us who know the character of the House of Commons well may think that pressures in that direction are not likely to be very positively productive.
The amendments would mean that suspension by the Standards Committee was irrelevant—that would be struck out as a trigger. Even if the amendment would not mark the formal abandonment of attempts by the House of Commons to regulate itself—I acknowledge that the rather substantial volume that the Committee on Standards has released today indicates that it has not given up on that process—it would certainly seriously undermine the capacity of the House of Commons to police itself.
The noble Lords, Lord Tyler and Lord Lexden, made much in Committee of paragraph 13 of the report of the Constitution Committee of your Lordships’ House. However, that report does not recommend removing the jurisdiction of the Standards Committee. What it does is to point to an inconsistency in the Bill, between its desire to increase the direct accountability of Members of Parliament to electors and its desire to retain a significant role for the Committee on Standards. There is a tension and a contradiction there, but for those of us who believe that it is grievously misguided to introduce this recall procedure, that tension or contradiction is something of a mitigating factor. I certainly do not think that the noble Lords can pray in aid the Constitution Committee as endorsing what they are seeking to do. They have decided that it stated a very important problem and that it is a problem that they want to solve.
Amendment 6, in the name of my noble friend Lord Campbell-Savours, takes us, as he has explained, only a small part of the distance that he wishes to travel. While I deeply respect his knowledge of the ways of the Standards Committee, on which he served for many years, I profoundly disagree with him. The noble Lord, Lord Norton, has reminded us that the stated purpose of the legislation is to restore the reputation of MPs and Parliament. The way for Parliament to restore its reputation is to demonstrate to the public that it has found better ways to handle, discipline and organise itself.
I am against what has already begun to happen. I am against the introduction of lay members. There is everything to be said for the availability of high-quality advice. I am much in favour of the role of the Parliamentary Commissioner for Standards but, as a famous parliamentarian once said, expertise should be on tap, not on top. It is for the House of Commons itself to find more convincing ways to regulate itself and demonstrate to the public that it is doing so.
Some people may ask what all this has to do with us in the House of Lords. I simply reply that we are a House of Parliament. We have a particularly close interest in the good functioning of Parliament, as do all the people of this country. I think that it is legitimate for us to offer advice. I agree that the House of Commons will surely wish to consider this important report from the Committee on Standards. That may mean some delay before we reach Third Reading, if matters are to be properly and decently conducted. There is no doubt that we are entitled to take a view on these matters. However, I disagree with noble Lords who have proposed these various amendments.
My Lords, I will speak briefly on this. I think that it is a mistake to play off these conditions against each other, as if you were to ditch one and get a quid pro quo strength in another. In principle, one should take and look at each condition on its own merit and principle. I do not want to refer to the second condition, as I do not quite understand the dynamics of what happens in the other place; other Members will understand.
The first recall condition needs to have about it a certain level of trigger. Simply to be convicted of any offence and then potentially to find this juggernaut or sledgehammer process kicking in seems wrong. As we all know, when these processes begin, the issues to which they are supposed to refer are not those on which they are fought. At the moment in our political system you need to get only 10% of the electors to agree to recall the MP and have a by-election. It would be easy for people to use a minor indiscretion that leads to a criminal conviction to generate this rather costly and unfortunate process. I believe in the Bill in principle, but there should be a healthy trigger. As set out, the trigger requiring that a conviction leads to a sentence of imprisonment, which I assume also includes a suspended sentence, seems about right.
I will briefly comment on the speech of the noble Lord, Lord Norton. I may be mistaken but he seemed to be painting an idyllic picture of what life is in the real world outside, in which the decision taken to discipline the Member of Parliament for whatever reason will be looked at with great objectivity by those reading the newspapers, listening to the radio and watching the television—you can imagine someone saying over their breakfast cereal, “I wonder what this is all about. What should we do? What considerations should we take into account?”. It does not work like that.
My noble friend mentioned the “f” word. We are not supposed to use the “f” word in your Lordships’ House. He mentioned fracking. The other “f” word I would like to use is fluoride. As the House will know, fluoride is a chemical which, put in the water supply, can bring immense dental benefits. For those who support it, it is a wonderful thing. For those who oppose it, it is responsible for every ill known to mankind and beyond. I know from personal experience how once the issue of fluoride comes up, all sorts of judgments come into play. The resources that people put into this are enormous. We know the facts of the modern world—Twitter and Facebook and all that sort of thing—of which, I regret to say, I know little indeed, except that I occasionally get them and delete them straightaway.
As ever, my noble friend Lord Maxton is complimentary to me. But, immediately recall becomes a remote possibility, the influence of the press and the media will be enormous. I really do not think that removing any sort of mitigating intermediary between the offence of an MP and a recall petition is the right way to go about it.
We speak lovingly about the need to restore the reputation of Parliament. We speak lovingly and meaningfully about how it is necessary for the highest standards to prevail. If we say constantly that the House of Commons is not fit to control itself, and that it needs people from outside looking in on it to put it right, that does nothing whatever to produce the effect we desire.
I will say just one other thing in passing. When the expenses scandal started—and it was a scandal—it was said that the administration of expenses should be taken out of the control of Parliament itself. So we got IPSA—is it called?—to do that. Has that done anything whatever to improve the issue? All that happened was the press turned on IPSA and said, “You’re worse than the MPs were”. There is no easy answer to this. To imagine that this sort of Bill, especially in its dreadful form, will do anything whatever to improve the standards of Parliament and how it is viewed by people outside is totally mistaken. The only way for that to happen is for MPs to stop the nonsense of accepting that when they get petitions they must say yes to them. They are afraid, apparently, to have any independent views. I accept that as a former Member of Parliament I was subject to the Whips and I would never have been a Member of Parliament without being a member of the Labour Party. I understand the constrictions there are in that. Nevertheless, if we remove entirely any possibility of MPs speaking out for themselves about what may be unpopular causes, that may damage democracy irrevocably.
My Lords, I was glad to add my name to the amendments tabled by my noble friend Lord Tyler. As my noble friend has made clear, these important amendments differ significantly from those he brought forward in Committee. My noble friend and the cross-party group that supports him have reflected and reconsidered. Our proposals have been revised, cut back and simplified. They have been discussed at some length with my noble friends Lord Wallace of Saltaire and Lord Gardiner of Kimble. We await the Government’s response to them with interest, though not with unbounded optimism.
In their current form, the amendments are straightforward and uncomplicated. They seek above all to relate the process of recall more fully and directly to those for whom this legislation, whether we like it or not, has been devised—the electors of this country. The amendments would enable electors to exercise their judgment about the case for recall following a decision in the courts. In any worthwhile system of recall, electors should surely occupy the central position, as my noble friend Lord Norton of Louth, the Conservative Party’s leading authority on the constitution, emphasised so powerfully at Second Reading and repeated today. The famous watchwords of Tory democracy spring at once to mind—“Trust the people”—sometimes attributed to Winston Churchill but in fact coined by his extraordinarily combative and pugnacious father, Lord Randolph, in 1884.
As I have mentioned before, and as the noble Lord, Lord Howarth of Newport, recalled, my support for my noble friend Lord Tyler’s carefully researched and constructive initiative stems from the work done on the Bill by your Lordships’ Constitution Committee, of which I am a member. The committee’s report has featured quite prominently in our debates. Its central point, as far as these amendments are concerned, is that it expressed considerable scepticism about the wisdom of placing a recall trigger in the hands of the Standards Committee. I repeat the key passage of the report:
“The constitutional purpose of recall is to increase MPs’ direct accountability to their electorates: it is questionable whether that purpose is achieved when the trigger is put in the hands of MPs rather than constituents”.
I would add this question: do we not need to guard against the possibility that the existence of such a trigger might create dissatisfaction and disillusion among electors? If that should occur, the Bill—the purpose of which is to strengthen the electorate’s trust in the political system—could end up exacerbating the very problem it is designed to alleviate.
The committee’s report was published on
“it is important to be careful to respect the disciplinary arrangements of the House of Commons”.
That, of course, is a sound and overwhelmingly important principle of the internal arrangements of the House. It is not, however, obvious or self-evident that the principle should be applied to the procedures that will trigger recall, not least because of the acute danger that decisions relating to those procedures would be unduly politicised, as the noble Lord, Lord Campbell-Savours, argued so strongly at Second Reading.
Is there not a case for asking the House of Commons to reconsider these issues, which bear so directly and powerfully on the workings of democracy in our country, particularly in view of the new report, to which attention has been drawn this afternoon?
I am sorry to intervene on the noble Lord. He may not have the answer to my question—I perfectly understand that—but he might be helped by the noble Lord, Lord Tyler. I should really have intervened on the noble Lord, Lord Tyler. What does the noble Lord think would happen in the case of a non-declaration of interest, where there had been a repeated non-declaration of a major pecuniary interest, over a number of years, by a Member? Which committee would now decide on that matter, and to what extent does he think that that committee might be able to impose any penalty?
As the noble Lord suggested, I will leave that to my noble friend Lord Tyler, as a former Member of the House of Commons. However, the case for asking the House of Commons to reconsider the issues that these amendments highlight is strong. I incline to that view, and for that reason I support these amendments.
My Lords, I, too, am a signatory to these amendments. It is a pleasure to follow the noble Lords, Lord Lexden, Lord Norton and Lord Tyler. I think that in the part of the country that the noble Lord, Lord Tyler, comes from they have a saying: “You can’t make a silk purse out of a sow’s ear”.
I sympathise with some points of view expressed by noble Lords on the opposition Benches. I am not an enthusiast for this legislation; I would rather it was not before us for a variety of reasons. I entirely agree with what the noble Lord, Lord Campbell-Savours, said earlier about the climate that IPSA has created and the difficulties that have arisen because of a loss of confidence. However, as the right honourable Member for Blackburn, Jack Straw, said in evidence to the committee to which the noble Lord, Lord Tyler, referred, and which reported only today:
“It is important that we do not get ourselves into a gloom about this. Politicians have never been trusted. In a sense, in a democracy that is quite healthy … In the middle of the [Second World] war, Gallup surveyed public trust in politicians and it was pretty low”.
I am not indifferent to that: I think it is very important that people should have a high view of politics and politicians. However, as Jack Straw said, it has always been thus. I worry that the solutions that we have put in place will not deal with some of the endemic problems of a lack of trust, not just in politics or politicians, but in our institutions throughout this country, where there has been a considerable decline in public trust across the piece.
Like the noble Lord, Lord Lexden, I was grateful to the noble Lords, Lord Wallace and Lord Gardiner, for meeting us to discuss our reservations about the Bill. However, as I think the noble Lord, Lord Howarth, recognised, these are genuine attempts to try to make the Bill better, even if one does not agree with them. That is why I am happy to be a signatory to these amendments, not least because of the experience that I had when I served in another place and was a member of what was then the Privileges Committee—the Standards Committee’s predecessor.
I was a member of that committee when we had to deal with the so-called cash for questions scandal, when two Members of the House of Commons had received significant sums of money for tabling parliamentary questions. The end of that process brought to mind something which I think the noble Lord, Lord Grocott, said at Second Reading: that the real mechanism for people to decide whether to recall an MP, which is in place, is of course a general election. I was very struck that, at the end of that process, when two Members of Parliament were found guilty of those offences, in one case the constituents in the constituency where they lived decided not to return that Member of Parliament, but in the identical other case they did return that Member of Parliament. He continues to serve in another place. We had to look at some difficult cases but we were certainly not asked routinely to provoke potential by-elections. That is the issue that most concerns me and which I want to address in speaking to this amendment.
I was always impressed by the genuine desire of members of that Committee on Privileges, from whichever part of the House they were drawn, to maintain the reputation of the House of Commons and get to the truth. I did not sense any narrow partisanship; I worry that we are risking that by putting this mechanism in place. The fact is that Standards Committee Motions are also amendable on the Floor of the House of Commons. I hope that the Minister will address both the pressure that will be placed on members of that committee of a partisan nature in the future and what can then happen on the Floor of the House. Will he say in his response whether that possibility of amendable Motions on the Floor of the House of Commons will continue in this new situation? If so, could a partisan majority not be used to trigger a recall process by increasing a suspension to 10 days, even where the Standards Committee had decided against it?
I want to say a word about the Government’s response to the Constitution Committee, which talks of the Standards Committee taking judgments. The benefit of these amendments is that we would take those subjective judgments out of the process. I particularly agreed with the description that the noble Lord, Lord Norton, gave. He talked about simplicity and objectivity being at the heart of what these amendments seek to do. In particular, Amendment 3 would make the trigger incredibly simple. If you are convicted of an offence, the electors would get to determine whether they wish to keep you. Incidentally, I agree with what the noble Lord, Lord Hughes, said a few moments ago about the danger of vexatiousness creeping into the system with groups of people, for whatever motive, trying to undermine good Members of Parliament.
As the noble Lord, Lord Tyler, said, it is extraordinary that we are having this debate this afternoon, after this report of more than 100 pages was published this morning. Although I have obviously not been able to read it in any great detail yet, I was struck that the report said on page 5:
“The subcommittee heard from a number of witnesses who were concerned about the extent to which the current system was fair to those members subject to it. While we believe the system is broadly fair, it is clear that MPs do not feel well supported”.
The report also reflected on the Standards Committee itself on page 6, saying:
“The Committee does an essential but sometimes unpopular task”.
That is certainly true; I know from the expressions on the faces of one or two noble Lords who served on that committee in another place that they would agree. The report went on to say that,
“if the House fails to engage with the Committee’s proposals it undermines the Committee’s position but, more importantly, the House’s own standards”.
We have to take those points seriously and I hope that between now and Third Reading, we will have the chance to do that.
By contrast the Government’s second trigger, as it stands, gives Members of Parliament the whip hand. That cannot be in the spirit of what the Government themselves say that the Bill is about. The Constitution Committee of your Lordships’ House made that clear weeks ago but the Government’s response is, to say the least, wanting. In answering, it really would have had to demand that this matter be considered further, before Third Reading in any event. Now that the Standards Committee has published these proposals, that case for better and further consideration of the Bill and its impact on the committee must surely be even more compelling.
There are just six weeks left of this Parliament. We are not yet into the wash-up. We are not yet into purdah. We can, in the time remaining, amend the Bill and put in place a recall arrangement that would command public support—something simple, more objective and more easily understood, which avoids the perception that MPs will be able to make friendly interventions to prevent their own errant colleagues being subject to the process. In that six weeks, we can also look properly at the issues raised by the Standards Committee’s own report. Addressing the issue of lay members—a point that has been referred to by noble Lords, particularly the noble Lord, Lord Howarth—including their number and force, would go a long way towards dealing with some of the issues that I have been raising. Either way, it is not enough for the Government to dismiss such serious and widely expressed concerns out of hand. I hope we will hear a clear commitment from the Minister to come back to this question at Third Reading.
My Lords, it is always fun to watch the noble Lord, Lord Tyler, having a go at his own side and at one of the Government Ministers. Apart from that, I think it has been an interesting and useful debate, particularly on Amendment 2 about widening the kind of behaviour which could trigger a by-election. As an old campaigner on drinking and driving, this warmed the cockles of my heart and I thought it would have a great impact on the leisure behaviour of MPs, but maybe that is looking at it slightly too narrowly.
I really do not think that having just any criminal conviction is what our manifestos, the coalition agreement, the Government or indeed the House of Commons intended when they brought forward the recall Bill. Nor do I think it is what the public expected—and I was a member of the public rather than in your Lordships’ House when the misdemeanours that we have talked about happened—of the promise that where MPs were found guilty of deliberately falsifying their expenses claims or were sentenced to imprisonment, they should no longer automatically return to work after their sentence. Rather, I think recall was seen as a chance for the MP to explain himself or herself, to apologise or to ask for forbearance, and for the chance for voters to decide whether, despite the sentence, the MP was fit to continue to represent them in Parliament. Lowering the bar so that it covers any conviction risks a rush of petitions, perhaps over quite minor issues, which would take MPs away from their duties in the House for months. It would involve large sums of money, and importantly it would devalue the serious nature of a recall petition.
Incidentally, given that it is JPs—magistrates—who deal with 90% of crime, it is likely to be them rather than judges who will be dealing with these sorts of offences. As my noble friend Lord Howarth of Newport reminds us, the recall thus triggered could easily become a vote of confidence in the Government or a referendum on fracking rather than actually seeking the electorate’s opinion of their MP’s behaviour, which was the purpose of this Bill and the reason that we support it. There has to be a sensible balance as to what can constitute a trigger. As the right reverend Prelate the Bishop of Chester suggests, being sentenced to prison, whether suspended or not, seems to be the right place to draw that line.
Amendment 3 would remove any role for Parliament via its Standards Committee and a subsequent vote in the Commons to trigger a recall petition. This seems very hard to support. It does two things. First, it would absolve MPs in the Commons from a role in self-regulation and from any responsibility for policing the behaviour of their own colleagues. That is something which I do not think is right either in principle or in practice. Secondly, it would leave only criminal convictions and not gross unparliamentary behaviour such as breaches of the Code of Conduct or a failure to undertake democratic duties as the trigger for potential recall. The other place may need to make changes to its Standards Committee in order to build public trust, but that is probably not a matter for the Recall of MPs Bill. I know that my Labour colleagues in the other place support a radical overhaul of the committee, in particular to remove the government majority and to increase the role and authority of its lay members. Indeed, Labour has proposed considering whether with at least half the members being lay, there should also be a chair who is no longer an MP.
However, improving the way this trigger would act is different from removing the trigger. It was clearly the will of the Commons to include this trigger, which gives the Commons a role in the Bill, and we should respect that decision for its willingness to accept some collective responsibility for the behaviour of its Members. Furthermore, we should remember that without the second trigger, a number of non-criminal offences could occur without MPs having to face a possible recall, such as cash for questions or the failure to declare serious conflicts of interest. It would be a very radical suggestion to delete an entire trigger from the clause at this stage in the Bill when it was overwhelmingly agreed at the other end, and it would possibly go beyond our normal role of scrutinising legislation. However, that is not my reason for opposing it. I do so because it must surely be right that Members of the Commons should take some responsibility for their own behaviour and that of their colleagues and they should not wash their hands of their role in this.
Amendment 6 has been tabled by my noble friend Lord Campbell-Savours, and we happily support it. We have encouraged the inclusion of lay members on the committee. Indeed, as I have said, we floated the idea of one of them being the chair and of lay members being the majority. While the Government may not feel that this is a matter for the Bill, we hope they will join us in supporting the principle and commit themselves to further moves in the direction I have outlined.
My Lords, this debate has ranged very widely. I thank the noble Lord, Lord Campbell-Savours, for raising the Bill of Rights. I was thinking about it last week when looking at Magna Carta and how these various things pull together. The British constitution has parliamentary privilege as one of its core elements, and we recognise that in this Bill we are walking a delicate line between the maintenance of parliamentary privilege and the inclusion of a greater degree of popular sovereignty alongside parliamentary sovereignty. It is a delicate balance that we all wish to maintain.
Perhaps I may say what a pleasure it is to see the noble Lord, Lord Campbell-Savours, again. He told me in the corridor that he had been lying in his hospital bed at two o’clock in the morning watching Lords debates on his iPad. What he did not tell me was whether they kept him awake or provided him with a cure for insomnia.
As I understand the Standards Committee report, which I have not had a chance to read in full yet, it takes us rather closer towards the model which the noble Lord, Lord Campbell-Savours, would like than we have been before. It is a progression to move from a lay minority to an equal proportion of lay members and MPs, which is probably what the noble Lord, Lord Campbell-Savours, would regard as moving in the right direction. It is a progression but not a reversal; it is not a radical overhaul of the entire Bill.
Page 6 of the report states:
“We believe self-regulation, with external input, is the appropriate system”.
As someone who recognises that parliamentary privilege is not something we wish to throw out of the window, I agree strongly with that sentiment.
We have also touched on the question of how far we restore popular trust in Parliament and the political system, or indeed how far any of us can ever restore trust in Parliament or our political system. I think we all recognise that this Bill is intended to assist in that process, but none of us has any illusion that it will solve the problem. It is much broader than that.
The noble Lord, Lord Alton, asked whether the process of amending Motions to report recommendations to the Standards Committee on the Floor of the other House will continue. That is a matter for the other place. It is a matter of its procedures into which the Bill and this House will not wish to intrude. In introducing the amendments, my noble friend Lord Tyler said that this quite radical proposal would remove two of the three triggers, thus radically changing the basis of the Bill, which has been through the scrutiny of the other House and a good deal of other scrutiny besides. I thank my noble friend for the very constructive conversation we have had since Committee and for his active engagement in discussions about the most appropriate triggers for recall petitions.
The Government considered a number of options and came to the conclusion that a custodial sentence was one of the appropriate levels for a trigger. It is of course difficult to know exactly what line one wishes to draw, but we have concerns, which have been expressed by a number of noble Lords in this debate, that lowering the threshold to include all convictions would risk MPs having to face recall in circumstances where it was not appropriate: for example, for minor traffic offences or for offences of strict liability where no criminal intention needed to be proven. The Government’s intention for the Bill is that the recall process should be there as a safeguard which does not, we hope, need to be used very often in an atmosphere of generally good behaviour. My noble friend Lord Tyler’s amendments might well lead to recall becoming a quite frequent procedure, one which a very large number of people would not regard as justified.
I understand my noble friend is concerned that the second trigger for recall petitions relies on recommendations of the Standards Committee, and he is doubtful about that. We all recognise many of these problems, but we do not see his solution of removing two of the three triggers from the Bill as being the answer. I understand my noble friend’s concern about politicising the Standards Committee and also about MPs themselves being involved in the triggering of recall. However, I do not think the answer is to take away from a constituent the ability to recall their MP for wrongdoing that might be serious enough for them to question whether they want their MP to represent them. Collapsing the three triggers into one would drive a coach and horses through the Bill.
This brings me to Amendment 6, tabled by the noble Lord, Lord Campbell- Savours, which would add to the definition of the Standards Committee in Clause 1. I simply say that we will consider the Standards Committee report and whether there needs to be anything in the Bill that relates to the report or whether, on the basis that things are moving in the direction in which the noble Lord wishes, we should leave well alone and leave out matters that are not central to the Bill. We will consider that between now and Third Reading.
My Lords, I will certainly take that back and see what the Government can do. I hope that I have provided constructive answers to a very constructive debate, and I urge my noble friend to withdraw his amendment.
My Lords, we intend to proceed to Third Reading with all deliberate speed. The House will, of course, be in recess next week.
My Lords, I am grateful to all Members who have contributed to this debate. I wish that we had had a general debate of this nature rather earlier in the process on this Bill. The central point is that my noble friend has just said that he does not agree with our solution. He does not appear to agree with that of the noble Lord, Lord Campbell-Savours, either, but he seems to recognise that some solution is necessary. That leaves us in a most extraordinary situation. The Government agree that this is unfinished business, yet they have produced no solution. I am afraid that that is an unsatisfactory situation.
The noble Lord, Lord Campbell-Savours, has proposed what is to my mind a perfectly acceptable way in which we might proceed. I am not saying that it is necessarily the only way, but it also chimes very much with this report. I wonder what would have happened if this report had appeared tomorrow. Your Lordships would have been left completely unadvised of the current situation of the Standards Committee, which is absolutely critical to the recall Bill. I am concerned that we are in a really difficult situation. There is a general feeling around the House, particularly from those who have served in the other place, that we are in danger of putting the Standards Committee in a very invidious situation. The noble Baroness, Lady Hayter, has made that point herself. The noble Lord, Lord Howarth, is in a minority in saying that he opposes an increased lay role in the committee, but the committee itself is very much in support of that. So there is a serious danger that, if this section of the Bill survives unamended, the pressures on the Standards Committee will be immense.
My noble friends on the Front Bench have not served in the other place, but I want to let them into a little secret. I hope that they will not be too shocked. Sometimes the decisions in the other place are affected by partisan party politics, and we are in danger of handing to the committee a yet more formidable problem. In those circumstances, I appeal to my noble friends to accept that this is unfinished business and to agree to re-examine the role of the committee before Third Reading, not least in the light of this extremely important debate. In the hope that they are prepared to do this, in the mean time I beg leave to withdraw the amendment.
Amendment 2 withdrawn.
Amendment 3 not moved.
Moved by Lord Campbell-Savours
4: Clause 1, page 2, line 4, leave out “10” and insert “20”
My Lords, I thank the noble Baroness, Lady Taylor of Bolton, for her preparedness to take on my amendment during my absence in hospital. I have always held her in high respect for her contributions on many issues, which is why I asked her to propose my amendment.
I hesitate to repeat the case made at Second Reading and in Committee, apart from drawing attention to my 15 years’ experience as a member of the Commons Privileges Committee. The noble Baroness, Lady Taylor of Bolton, was a member of that committee during the critical period that led up to the Nolan reforms.
I have supported recall for nearly 30 years. So what is the argument all about? I shall put it briefly. The Government’s original Bill, as presented to the Commons, required a suspension of a Member of Parliament of more than four weeks before the second trigger provoked a petition and a possible by-election. The Labour Opposition Front Bench moved its amendment on Report reducing the period of suspension from more than 20 days to 10 days or more. Having read the whole report of Committee in the Commons, I found almost no reference to this amendment in debate apart from speeches by Mr Docherty speaking from our Front Bench and the Minister replying on behalf of the Government. Furthermore, my approaches to a number of MPs who voted for the amendment revealed that they were totally unaware of its content. Only one MP whom I contacted knew of the amendment—Mr Kevan Jones, the Member for North Durham. Only two members of the Standards Committee and the Privileges Committee voted at Committee stage; the chairman and three members abstained and four members voted against. They opposed the 10-day amendment. The Conservative Benches in the Commons voted on a free vote in favour of 20 days—that is to say, they took my position today, which is to have a free vote. The truth is that there was no proper consideration of this 10-day amendment.
In my view, the amendment moved by my honourable friends and may well come back to haunt the Commons in the future. The effect of it will be to concentrate the mind of the Standards Committee’s membership not on the nature of a breach of the code of conduct and the appropriateness of any penalty imposed but on whether a suspension of more than 10 days could trigger a petition; the substantial expenditure by the local authorities on the petition process; a possible by-election with substantial expenditure by the local authorities and political parties, running into hundreds of thousands of pounds; and considerable political manpower being poured into constituencies as part of the campaigns. But, perhaps most importantly, a 10-day plus suspension could trigger political advantage or even disadvantage, which may well end up in the mind of a committee member. That latter consideration, among others, will transform a quasi-judicial committee into a political and politicised committee, and it is utterly inevitable—let there be no doubt of that. As I say, I say that as a former member.
The noble Lord, Lord Davies of Stamford, after the debates at Second Reading, asked me privately while we were seated what the difference is between 10 and 20 days. Surely, he said, the same principle applies. I want to answer that, because it is an important question. First, some cases need more than 10 days’ penalty, but not a by-election. The committee needs the flexibility to introduce longer suspensions without triggering a by-election. Ten days may well be too short a suspension period for some breaches of the code. If the appropriate suspensions are to be imposed under the 10-day rule, we may end up with an excessive number of petitions and a wholly discredited process. Finally, cases of more than 20 days are now few and far between, but such cases may involve major breaches and clearly warrant the petition procedure.
So how have my noble friends and my honourable friends on the Front Benches of both Houses sought to justify the 10-day amendment? Mr Docherty put it this way:
“According to the excellent research services of the House of Commons Library, it appears that that threshold would have been met on only two occasions over the past two decades, and that no one found guilty during the cash for questions scandal received a sufficiently long suspension to meet the Government’s proposed threshold”.—[Hansard, Commons, 27/10/2014; cols. 69-70.]
That has been at the heart of the argument that they have used against us but, with respect to the very erudite Mr Docherty, that is an inadvertent misrepresentation of where we were at the time.
Both those cases took place prior to the expenses scandal. The first involved Michael Trend—I have read in its entirety the third report on February 2003—who was suspended for 14 days. His case turned on the dishonest designation of a house of a friend as his main home and claims for additional cost, when in fact he stayed there infrequently and, when he did stay, it was rent-free. The penalty today would be substantially higher—therefore, it is irrelevant.
The second case was that of Mr Derek Conway, on whom there were two reports—the fourth report of May 2007 and the third report of January 2009. Again, I have read them in their entirety. He was suspended for a total of 10 days, so he would have met the trigger, as it appears here. His case turned on improper payments to his sons, Freddie and Henry. Repayments were made to the Fees Office.
Both these cases would have incurred substantially higher penalties under the conditions that are currently in place. It is now inconceivable that such breaches would command penalties of only 10 and 14 days. If by any chance they were not the subject of criminal charges under Section 10 of the Parliamentary Standards Act 2009, under trigger three, they would certainly trigger in excess of four weeks as a penalty under trigger two. That fact alone, and those two cases, destroys the Official Opposition’s case. I hope that when my noble friend deals with this debate from the Dispatch Box she is not tempted to use those two cases, because they are at the heart of the argument that I have been having with colleagues on the Front Bench in the House of Commons who support the amendment.
The second and final justification for the amendment is more credible. During meetings with Mr Docherty, we were told that Labour was considering longer term plans for the reconstruction of the Committee on Standards and Privileges. That follows upon the decision taken by the committee to establish a sub-committee and the report which everybody knew was being prepared. Obviously, other political parties have been involved in establishing their position and deciding how they wish to respond to the report. However, the setting up of the committee followed two recent reports, one on Mr Peter Lilley and the other on Maria Miller. Having read both of these, I recognise why the committee took the decisions it did on Peter Lilley. I confess to having some difficulty over the Maria Miller case, but that is not a matter for us. Recognising the need for reform from both Front Benches, the Standards Review sub-committee, established to consider the future structure, is suggesting that the legislation we are dealing with today may well be further amended when it is considered at a later stage in the House of Lords. It says that the,
“system is likely to be affected by any Act resulting from the Recall Bill, currently passing through Parliament, which proposes to allow an MP’s constituents, in certain circumstances, to institute a petition for his or her recall. At present this will apply if an MP is suspended from the House for more than ten days. The Bill has not yet completed its passage and this may change”.
The people on the sub-committee recognise the dilemma. They were not going to comment on legislation going through the House but it is quite clear that they do not agree with what is in this Bill and they hope for some further amendment to be made at this stage or a later one.
That report makes a great number of recommendations, some of which I support and some, as I have already said, I oppose. Whatever the final recommendations are, they have not yet been approved by Parliament. This brings me to the point made by the noble Lord, Lord Tyler. Why are we dealing with this now, without having heard the final position taken by the Committee of Privileges and a decision by the House of Commons on the structure of these committees? We have no guarantee that a reformed structure would command the support of MPs in the new Parliament. It would certainly have to pass the privilege test set by Mr Jacob Rees-Mogg in Committee on
We know that if the recall Bill, as currently drafted, is enacted, the new structure will still have to surmount the hurdle of the 10-day trigger. An increase in lay membership will not remove the problem because a controversial 10-day trigger petition and by-election could influence the deliberations and future decisions of a committee comprising a greater lay membership. A controversial by-election, called on a 10-day penalty, exploited by the media and with all the political ramifications being felt by the lay membership of a lay-dominated committee could, over time, enter the collective mind of the committee and meddle with its thinking on 10-day judgments. The lay members, and Members of Parliament on the committee, would be placed in a totally impossible position.
All roads lead back to the 10-day trigger. It has to go. The question is at what stage is it going to go.
My Lords, my noble friend Lord Campbell-Savours spoke compellingly on this issue at Second Reading and he has done so again today. He is right that the House of Commons made a mistake in reducing the minimum requirement for a trigger for the recall process from 20 to 10 days’ suspension from the service of the House. He has explained very powerfully why that was a mistake and suggested convincingly that the House of Commons inflicted this error on itself without having adequately considered what it was doing. It is surely essential that the Standards Committee is enabled to retain a sufficient scope and flexibility and a sufficient range of penalties and sanctions to be able to temper its judgments to the particularities of the individual case before it. If a 10-day suspension automatically triggers the recall process then the Standards Committee has become excessively constrained. As my noble friend has just described, the political consequences are very major indeed. The committee should not be boxed into a position where it very often has little alternative but to precipitate a by-election, with all the political and personal implications that follow from that.
Nor should this legislation diminish the standing of the Standards Committee. Part of the motive of those who voted in favour of the reduction from 20 days to 10 was because they had given up on the Standards Committee. They actually believe that it has ceased to be a useful instrument of parliamentary self-government. As I said in the previous debate, I, by contrast, believe profoundly that one of the ways in which the House of Commons can help to restore its reputation and public credibility is to be seen to strengthen its capacity for self-regulation and self-discipline, not the reverse.
To go back to a 20-day minimum suspension period triggering the recall process is not to eliminate the political difficulty that the existence of recall will introduce into the proceedings of the Standards Committee. It may be said that there is, in principle, no particular difference between nine days not precipitating recall and 10 days doing so and between 19 days not precipitating recall and 20 days doing so. However, it does diminish the difficulty because it will reduce the frequency of the occasions when the committee feels under inexorable pressure to pronounce or make a recommendation to the whole House that the suspension period should be 10 days or more. It therefore diminishes the force of that politicising pressure on the committee and that is very important. I am grateful to my noble friend for his exhaustive and courageous examination of these issues. He has given wise advice and this House should, in turn, give wise advice to the other place.
My Lords, perhaps I may briefly intervene. It seems extraordinary that in rising to support the Government in their original position, I am rising to support an amendment proposed by the noble Lord, Lord Campbell-Savours. They had got it right when they originally specified 20 days. In the 18th century, one was hung for stealing a cabbage, or for murdering your wife. If you committed any offence, you might as well get rid of any witnesses in order to avoid being hung for stealing the cabbage. We are rather in that position here.
If the provision is about persuading the outside world that the House of Commons takes bad behaviour seriously, I point out that most people would think that losing your pay for 10 days was not a particularly serious sanction. I therefore think that the nought to 10-day spectrum is far too narrow, and that nought to 20 days would be considerably more just and avoid the problem of the kind of political pressure that the noble Lord referred to.
The more that I, as a former Member, read and listen to the debates on the Bill, the more I believe that the House of Commons has lost confidence in itself. It is a bit like the situation at the moment: whenever there is a difficult problem there is a tendency to set up a public inquiry rather than actually address the issue. The public inquiry then goes on for ever, costs a lot of money and people feel, in the case of some inquiries, that no one has been held to account and it has all taken so long that the situation has moved on. That all adds to the sense of irritation on the part of the public.
What the noble Lord is proposing is eminently sensible and I am really looking forward to hearing the Minister’s response as to how he is going to explain how what I assume was a carefully considered Bill was presented to Parliament and amended in this way. We have almost gone into a competition to, sort of, wear the hair shirt—against the interests of Parliament. I am not being critical of the Opposition and I understand why they have done that, but it is a route that will lead to the destruction of the House of Commons in people’s eyes. If the House of Commons does not believe in itself, if it does not trust itself, how on earth can one expect the outside world to trust it if it demonstrates that it does not have the confidence to carry out its own sanctions?
It is a long time since I left it in 1997 but in the House of Commons that I remember, there is political partisanship—of course there is, which is why the point about the 10 days is important—but, on the whole, the House has a sense of its own worth and of its relationship with the public. It can be trusted to take the decisions that we are talking about and the amendment is immensely sensible. I hope that my noble friend will revert to the Government’s previous position and accept it.
It is entirely right that the noble Lord, Lord Forsyth, has drawn attention to the real problem underlying all this—the lack of self-confidence within the House of Commons. It is rather tragic that we have the Bill before us. I am slightly worried at his reminding people that one could be hung for various things. A number of people would like to hang MPs, and I remind him that when I was chairman of the Parliamentary Labour Party and it was heard that I might come to this place, one member of the PLP said that they had the ideal reform for the House of Lords, with one Peer for every lamp-post. I do not use that example too often.
However, I intervene briefly and seriously. My noble friends Lord Campbell-Savours and Lord Howarth both made a strong case on this issue. My view is, and remains, that the Bill is a mess and should not have been brought forward but, precisely because of the nature of the mess here and the report to which my noble friend Lord Campbell-Savours referred, the Government ought to say that they will take this issue away, look at it in some detail and come back with a proposal involving a return to the 20-day period. I would sign up to that. The Bill is not in a coherent state. It would be bad news for the House of Commons, and I suspect that it is unlikely to be used or be used very much. It is undesirable to have legislation in a mess such as this, especially when there is a report of the type that has been referred to that indicates why we ought to have the 20-day solution. The Government have a duty to this House and the other place to say that they will go back, consult and come back with a proposal that is more likely to work in a coherent way.
My Lords, you will not be surprised that we do not support these amendments for the reasons given by my noble friend Lord Campbell-Savours—well, no, actually, not for the reasons given by him. The amendments would reverse the very changes that Labour won with wholehearted—or should I say widespread—support in the Commons.
The coalition Government had proposed what my noble friend now wants, which is that MPs would need to be suspended for more than four sitting weeks for the threshold to trigger a recall petition. However, no matter how much we cut that period, only rarely would that trigger be reached. Importantly, it would mean that some serious offences in the House would virtually never trigger a recall petition, which may be the intention of the amendment—or not; but that would be its effect. It would emasculate the role of the Commons in regulating its Members.
We believe that the House of Commons decision to suspend a Member should be able to act as a trigger and that four weeks’ suspension is simply too long. It makes the trigger too high for what constituents would expect. When all this was happening, I was not in Parliament; I was outside. If one asked now how serious an offence should be before someone should face a recall, I should say that being suspended for two weeks is about the right amount. We would not want the threshold to be so lowered that it would allow mischievous claims to be made in the other place. We also recognise that parliamentary dissent is part of our democratic heritage, and that an MP standing up for their beliefs in the other place should not find their right peacefully to protest compromised by unnecessary recall petitions. There is a balance to be struck. However, none of those suspended for protesting would be caught by the new threshold, which was agreed overwhelmingly in the Commons by 210 to 124 votes. In the words of the noble Lord, Lord Forsyth, if we are to trust the House of Commons, that vote is one that we should hear.
Obviously, the noble Lord, Lord Forsyth, will not appreciate that on a one-line Whip an awful lot of them disappear, as he has never been in the House of Commons.
It was a joke. It is called irony. It does not work in Hansard; maybe it could use italics. I was explaining that I have never been there. Forget it.
While my noble friend is celebrating the virtues of House of Commons procedure, will she recognise that there is much merit in a one-line Whip or a free vote on matters that refer to the governance of the House? On matters of parliamentary organisation, the Government always ought to be deferential and accept that these are matters for parliamentarians to decide, not under the pressure of a three-line Whip.
I really do not think it is for me to tell the House of Commons how best to call its votes. What I do say is that if we are to trust the House of Commons then hearing that it agreed this by 203 votes to 124 on a one-line Whip is a fairly ringing endorsement of its decision. However, I am concerned about the discussion of this amendment rather than the wording of it. Some of the discussion has been more about the pressure on the decision-makers involved—be that the Standards Committee as it is or as it is going to be—than whether the number of days is correct and whether the electorate should be able to petition following the wrongdoing of a Member of the House of Commons. I do not think pressure on decision-makers ought to be higher in our minds than the rights of electors. I say this as someone who has been a magistrate, has had to send people to prison and has sat as a lay adjudicator on all sorts of disputes in other professions when they have lay members in, including removing people completely from their profession. I have been in those sorts of positions. Noble Lords, particularly those on the Cross Benches who have been judges, have taken even bigger decisions than I have. People have backbones and I do not believe that the worry of the pressures on these good people should be uppermost, over and above the rights of the electors to take an opinion on their MP where they have obviously done something serious enough to be suspended by their colleagues in the other place.
The Bill as it stands strikes the right balance on this issue. It strengthens the right of constituents to consider recall without jeopardising parliamentary democracy. I think the other place got it right and we should support it.
My Lords, triggering the opening of a recall after a 10-day suspension rather than 20 or 21 days certainly means there is the potential for petitions to open in a wider range of circumstances. My calculation, which I hope I got correct, of what would have happened over the past 15 years during all the rumbling expenses scandal is that on a 10-day suspension trigger some seven Members of the House of Commons in 15 years would have come under it and on a 20-day suspension only two.
The noble Lord is missing the point of my contribution. The climate has completely changed. Do not go by what has happened in the past. Punishments, suspensions, fines or whatever in the past are irrelevant. It is about what happens in the future. That is why all these arguments about the past are totally irrelevant.
I take on board the noble Lord’s deep concern for the strain on the members of the Standards Committee but the Standards Committee is evolving. The committee is likely to be up to the task it faces. As the noble Lord, Lord Kennedy, said in Committee, Members who have committed wrongdoings sufficiently serious to attract a suspension of 10 sitting days ought to be held to account by their constituents. That is what the other place decided and we should hesitate to suggest that it is our duty to save the other place from itself, which I think the noble Lord, Lord Campbell-Savours, is getting close to saying.
The noble Lord has expressed fears that this would politicise the Standards Committee on decisions regarding suspension and would affect its decision as to how long to suspend a Member. Of course there is always a degree of political sensitivity to the suspension of a Member of Parliament. The Standards Committee and the House of Commons have exercised their discretion in the past over the suspension of Members and I am confident that they will continue to do so effectively when looking at future cases. Members of the other place have amended the Bill so that a recall petition will open where the House of Commons has agreed to suspend an MP for 10 days or more. One of the reasons for that was the consideration of previous cases where an MP was suspended for less than 21 days but their behaviour was such that they ought to have faced recall if it had existed at the time. Since this Bill relates only to Members of the other place we should reflect very carefully before seeking to overturn what the other place has decided. I urge the noble Lord to withdraw his amendment.
I have had a rather difficult few weeks. I have had all sorts of discussions with colleagues about what we should do and whether we should divide the House. Until about 10 minutes ago I was going to divide the House. Having heard the intervention from my noble friend Lord Soley appealing, even now there are those who want me to divide the House. Surely something can be done before Third Reading. Can there not be consultations with people in the Commons about what is happening? Can the noble Lord not say something to suggest a basis on which the Government could return at Third Reading? My noble friend Lady Hayter from the Front Bench is shaking her head because she is wedded to this principle, while on the Back Benches, both in the House of Commons and here, there are people who desperately want to get rid of this 10-day trigger.
It is not a desirable principle to proceed on legislation in conflict with that. The noble Lord, Lord Wallace, is right to say think carefully before you throw something back to the House of Commons but we have a duty to advise and warn when information has come to light from the other House. I am sorry for a long intervention. I hope it helps.
I welcome interventions on my wind-up, although I do not want to delay the House. I appeal to Ministers to go away and ask around. This is wrong. It is a mistake. Everybody I talk to in the Commons knows it is a mistake. No one knew what they were doing at the time. The House was fairly empty; you can tell by the vote. It was all done on a free vote so a lot of people had gone home. It is only here where I understand there are some Whips in operation to make sure that this nonsense amendment is not interfered with. Regretfully—I know I am upsetting some of my noble friends—I beg leave to withdraw my amendment but I do so with a very heavy heart.
Amendment 4 withdrawn.
Amendments 5 and 6 not moved.
Clause 3: The first and third recall conditions: expiry of appeal period
Moved by Lord Gardiner of Kimble
7: Clause 3, page 3, line 30, after “within” insert “the period of 28 days beginning with the date of that determination or, if it ends earlier,”
My Lords, Amendments 7 and 8 make a small change to Clause 3 which details the appeal period that must expire before a petition can open following an appeal by an MP against a criminal conviction or sentence that has met the first or third recall conditions. The Bill makes provision for the recall process not to begin until the appeal period has expired, which ensures that the MP has the opportunity to bring an appeal. In addition, an MP may bring a second appeal, including bringing a judicial review to the High Court, against a decision of a lower court in England and Wales, and also in Northern Ireland. The usual time limit for requesting a judicial review in England, Wales and Northern Ireland is three months. Judicial review is not available in Scotland in relation to a criminal law conviction. Such reviews are rare but the possibility that an MP may wish to bring a judicial review against the initial appeal would prevent the recall process starting until a further three-month period had expired, starting with the date the initial appeal is disposed of. This is the case even if no judicial review is brought. The recall process would be unable to start earlier even if the MP in question indicated that he or she did not intend to bring a judicial review as the MP would have the right to change his or her mind.
Although the right of appeal is important, and an MP subject to the process must be guaranteed a fair hearing, the recall process must also meet constituents’ expectations. This amendment would ensure that the recall process could begin in good time once the initial appeal had been disposed of by limiting the period in which a second appeal could be brought to a maximum of 28 days or the usual period for an appeal to be brought, whichever was the shorter. Other, more common types of further appeal would, in any event, have to be brought within the 28-day period in order to be “in-time” appeals. I should note that all relevant appeals in Scotland have a time limit of 28 days or less.
The amendment does not preclude a judicial review being brought as a second appeal but simply limits the timeframe in which bringing a judicial review for a second appeal will stop the recall petition commencing. If that time passes without an appeal being brought, the recall process will begin. In the unlikely event that a judicial review was brought following an initial appeal and after the 28-day limit, it would not stop the recall petition process commencing. If the court overturned the conviction, the Speaker would have to order the early termination of the process under the provisions in Clause 13.
Amendment 9 would alter Clause 4 to remove the requirement for the court to inform the Speaker that a former MP had been convicted and sentenced after the person had ceased to be a Member of Parliament. As drafted, the Bill requires the court to inform the Speaker if it convicts an MP and sentences the MP to be imprisoned, or if it convicts the MP of an expenses-related offence under the third trigger. This requirement stands, however, even if the MP has vacated the seat in the mean time, or after being convicted and before the appeal is heard, and is therefore no longer a Member of Parliament. That is an unintended consequence of the original drafting and would not serve a practical purpose. First, the Speaker would already know that the MP had vacated their seat and, secondly, the conviction would of course be irrelevant to the Speaker and the recall process. The amendment addresses that by clarifying that the court is not required to inform the Speaker where the person in question has ceased to be an MP. I beg to move.
Amendment 7 agreed.
Moved by Lord Gardiner of Kimble
8: Clause 3, page 3, line 39, after “within” insert “the period of 28 days beginning with the date of that determination or, if it ends earlier,”
Amendment 8 agreed.
Clause 4: The first and third recall conditions: courts to notify the Speaker
Moved by Lord Gardiner of Kimble
9: Clause 4, page 5, line 4, at end insert—
“( ) A court is not required under this section to notify the Speaker if, at any time since the application of the section, the MP’s seat has been vacated (whether by the MP’s disqualification or death, or otherwise).”
Amendment 9 agreed.
Moved by Lord Dubs
10: After Clause 5, insert the following new Clause—
“Election courts: recall
Within 2 years of the passing of this Act, the Secretary of State must lay before each House of Parliament a report assessing the merits and feasibility of granting election courts the discretion of initiating a recall petition process.”
My Lords, we debated an amendment in Committee to deal with this matter. Put simply, the problem is this: if the Bill becomes law, we will have two different systems running in parallel. We will have the system as envisaged in the Bill and a separate, older system, which is the election court. As I said in the previous discussion, it is possible for an election court to punish a Member of Parliament, deprive him or her of their seat and not allow them to stand for a number of years in any by-election for a lesser offence than that covered by the Bill. Clause 1(11) states:
“The loss by an MP of his or her seat under this Act as a result of a recall petition does not prevent him or her standing in the resulting by-election”.
That is very clear, yet the election court has the power—and used it in the case of Phil Woolas in 2010—to prevent a Member of Parliament standing in any by-election for a number of years. That seems to me, at the very least, inconsistent and potentially unfair. After all, under this Bill an MP could be sentenced to a term of imprisonment of up to a year, yet he would still be subject to the Bill and would be able to stand at the by-election. In the case of Phil Woolas and the election court, he was not sentenced to imprisonment but he lost his seat. I am not talking about the merits or demerits of what he did; I am talking about what the election court did to him, which was at variance with the purpose of the Bill.
Therefore, the amendment is very simple. It is much milder than the amendment we debated in Committee, so I hope that the Government will find it fairly easy to accept. It says:
“Within 2 years … the Secretary of State must lay before each House of Parliament a report assessing the merits and feasibility of granting election courts the discretion of initiating a recall petition process”.
We are not making a dramatic change; we are saying that, if the Government are so minded, they can take steps to ensure that in future an election court can say, “No, we don’t want to do what we did to Phil Woolas. We want to subject him to the provisions of this particular Bill”. It seems a very reasonable and mild amendment, and the Government can surely say yes to it. I beg to move.
My Lords, I have put my name to the amendment, which is milder than the one we considered in Committee. It is a reasonable, moderate and sensible amendment, and therefore I tend to fear that the Government may not look at it very favourably.
The principle seems crystal clear. One of the few good things in the Bill, which otherwise I dislike intensely, is that it gives the final word to the electorate, which is where it should be. That is what I think is at fault with so much of the rest of the Bill: it has all sorts of complicated procedures that intervene between an MP and his or her constituents. Quite properly, a judgment is made every five years at a general election and, in my view, that is the way it should have rested. There are numerous other mechanisms within parties’ own disciplinary procedures which could enable most of the evils that it is alleged are identified by the Bill to be addressed.
However, as I said, the one good thing in the Bill is that it allows a Member of Parliament, even after a recall petition has been carried, to at least stand in his or her own defence in a by-election. That option does not exist following decisions of the election court. The MP—all too easily, it seems to me—is not only thrown out of Parliament but prevented from asking the electorate to give their judgment on the merits or otherwise of their having been thrown out of Parliament. It may well be that the electorate will endorse the decision of the court—in this case, the election court—and say, “Yes, you are right. It is wrong for this person to continue as the Member of Parliament”, but at least they should be given the option. When you introduce, as the Bill effectively does, a new sanction on Members of Parliament who misbehave, or are deemed to have misbehaved—that is, the recall system and the recall petition—then it seems to be a matter of common sense, if not common fairness, that we should consider whether this new mechanism is applicable to existing disciplinary offences or other existing offences. That is the point.
Therefore, this very moderate amendment simply says that, in future, within a period of two years a Secretary of State should be able to consider and report to Parliament whether this new recall petition procedure should be available to the election court as part of its machinery of penalties. If not, all sorts of anomalies might arise. If you bring in a new penalty for a similar category of offence, clearly consideration should be given to whether it should be introduced for older offences and older penalty mechanisms.
Does the noble Lord agree that the power of the electorate has already been pre-empted in the first place? What he said is perfectly right, in my view, but it has happened too late to bring constituents back in again with a vote or with an opinion, because their power has been pre-empted.
What the noble Baroness said is right to the extent that the whole mechanism of this Bill is doing as she said. But I suppose I am looking for some mechanism whereby it could be made a little fairer and across the board. I am not even doing that; I am saying that the Secretary of State should report to Parliament so that it can judge whether these offences, as determined by the electoral court, should have available to them the penalty of a recall system, which Parliament appears determined to impose. That is all that is being asked by this amendment, and my noble friend put it very well. I rest my case.
My Lords, I have considerable sympathy with this amendment, and the noble Lord, Lord Dubs, has come up with an ingenious way of bringing it forward. However, as the noble Lord, Lord Grocott, indicated, it raises an important issue of principle, which is the freedom of choice of the electors. This is something to which I keep referring and it is why I opposed attempts to ban dual mandate. My view is that if electors wish to put somebody into assemblies, it is entirely a matter for the electors. It might be impractical, but that is not for us to say. It is for us to allow electors to do that. So I agree with the point that the noble Lord, Lord Dubs, made. It may be that the court says, “You have committed an offence”, but if the electors feel it is important that that person should be returned to represent them, then it is entirely a matter for them.
We keep bringing forward rules that restrict the freedom of electors. We should be looking at it the other way, trying to open up our process as much as possible and leaving it up to electors. If they want somebody to represent them, that is a matter for them. Leave it to the electors. Do not impose restrictions on them. For that reason, I have considerable sympathy with what the noble Lord, Lord Dubs, is trying to achieve. Certainly, I am all in favour of reviewing that provision and perhaps even widening it, for the reasons I have given, to look more broadly at how we can protect electors in making the choice that they wish to make, having whom they wish to elect and not being restricted in that.
My Lords, as my noble friends have spelt out, the Bill raises the interesting question not just of the interplay between this process and that of the election court but also of what I think is the Government's slap-dash drafting of the Bill, with their cut-and-paste from other legislation, without actually thinking through the best way of dealing with allegations of wrongdoing. As I have said, and as the noble Lord, Lord Gardiner of Kimble, has echoed, we do not want ever to see this Bill used. We hope that MPs will never find themselves in the position of triggering a recall petition. However, if it happens, we need to be sure that the most appropriate mechanisms and penalties are available to suit the particular misconduct. We may have it in this Bill, but we may not; it may not be right. Indeed, on the reverse side, it might be much better for other misconduct to trigger a recall petition rather than straight expulsion, as my noble friend Lord Dubs suggested. The proposal of a report to consider this in the round and come forward with proposals on that basis seems eminently sensible. I hope that the Government will support this amendment.
My Lords, behind this issue are some large questions about the role of election courts and the seriousness of electoral offences such as electoral fraud. The role of election courts is to assess whether electoral fraud has taken place and to determine whether it has had a material impact on the outcome of an election. I know that what happened to Phil Woolas preoccupies a number of noble Lords on the Labour Benches. I went back and looked at that sad history and I believe that the noble Lord, Lord
Dubs, suggested in Committee that he be acquitted on appeal. He was indeed acquitted of one of the three offences but the other two were affirmed.
Electoral fraud is a serious business. I can think of other potential occasions where we could find ourselves with contested results of elections. We had a contested issue in east London in local elections where the severity of what is pled or what might perhaps have happened is not—as I think is being suggested here—something less serious than other potential misconduct. I understand the noble Lord’s intentions in tabling his amendment but I am not persuaded that, after two years, a particular fact will have come to light which would necessarily cause the Government of the day to reappraise the role of election courts, which is what this is really about.
I am also concerned that granting election courts the discretion to initiate a recall petition risks sending a confused message about the seriousness of electoral fraud as such. At present, there is a public expectation that those who commit offences that breach electoral law should face the appropriate penalty and that the appropriate penalty is set. Those offences are particularly relevant to the MP’s democratic mandate, and they are intended to affect the MP’s democratic mandate because, thankfully in this country, we have a very low level of electoral misconduct during campaigns and of electoral fraud; but we are conscious that the potential is always there. In the event that fraud has been committed by a sitting MP, his or her constituents might be confused if they were asked to sign a recall petition, knowing that an election court had already identified proven wrongdoing on the MP’s part.
The Government do not consider that this Bill should be a vehicle for the election court’s functions to be adapted, or for the consequences of established electoral offences to be altered; that is a different and other serious set of issues. There is also a risk that an MP, having been subjected to a recall petition by the election court, could then be prosecuted and sentenced in the criminal courts for an offence of which the election court had found him or her guilty. If the MP had held on to his or her seat following the first recall petition and were then sentenced to a period of imprisonment of 12 months or less, this could trigger another recall petition under the first recall condition.
There are some complicated issues here, but I end where I started. Election fraud or an election offence during a campaign that materially affects the outcome of that election are serious offences. That is the role of election courts. However, the Government are not persuaded that we should now downgrade the severity of that offence.
My Lords, I am disappointed in the Minister’s reply because he has not really faced the point that we were seeking to make in this amendment—and I thank noble Lords who gave their support to it. What happens now, under the Government’s present Bill, is that a Member of Parliament can be sentenced to six or nine months’ imprisonment, yet he would still be subject to the recall procedure and he could stand again. It seems to me that a sentence of six to nine months’ imprisonment is pretty serious, yet the Government, in their wisdom, have a Bill that says,
“Yes, but you can be subject to the recall procedure and you might well be re-elected”. Indeed, in our history, Members of Parliament who have been refused their seats have stood again and have got re-elected—so that is up to the voters. The whole point of this amendment is that we must trust the local voters to make the right decision, and they can decide one way or the other.
On the subject of severity, I do not have all the details of the Phil Woolas case in front of me, and I do not think that I said in Committee that he had been acquitted. What I am saying is that the electoral court proceedings lost him his seat, but there was no further sanction in terms of imprisonment. Imprisonment is serious, yet under the Bill an MP can be imprisoned and can still be subject to the recall procedure. So the position is entirely inconsistent; it does not make any sense. The amendment simply proposes that the Secretary of State assess the merits and feasibility of granting election courts this discretion. If it is too difficult, the feasibility study would say, “No: it is too difficult”, for the reasons the Minister gave. We are asking only for the Government to have a more detailed look at this than the Minister suggested in reply.
We have been debating for quite a long time and there are further amendments to come. Part of me is tempted to test the opinion of the House. I will not do that, but I wish that the Government could be a little more flexible. Frankly, they have lost the argument. I beg leave to withdraw the amendment.
Amendment 10 withdrawn.
Clause 7: Where and from when the recall petition may be signed
Moved by Lord Gardiner of Kimble
11: Clause 7, page 6, line 23, leave out “4” and insert “10”
My Lords, this amendment would increase the number of signing places that a petition officer can designate in their constituency from a maximum of four to a maximum of 10. Noble Lords may recall that the Political and Constitutional Reform Committee recommended that there should be a maximum of four signing places, and it is for this reason that the Bill included it as a maximum. That said, the Government have listened to the concerns expressed both in the other place and in this House during debates about the potential difficulties that a cap of four signing places could pose in certain circumstances, such as in constituencies that have a large number of population centres or are far flung and where it could be difficult for some constituents to attend a signing place in person.
Indeed, during the debate in Committee on the amendment moved by the noble Baroness, Lady Hayter, which sought to introduce a minimum of four signing places, we heard how some electors in the noble Baroness’s home constituency of Brecon and Radnor could face a round trip of an hour or more by car and up to half a day by public transport if they wished to sign the petition in person. These concerns were shared by a number of noble Lords, including the noble Lord, Lord Foulkes, who reminded us that constituencies such as Orkney and Shetland and the Western Isles are made up of a number of islands served by ferries, which makes the choice as to where to designate signing places particularly important to those who live there. Having listened carefully to these arguments, the Government accept that, in some circumstances, petition officers may wish to designate more than four signing places.
In reaching the decision to increase the maximum number from four to 10, the Government have consulted those returning officers whose constituencies could benefit most from raising the cap. I am particularly grateful to the Electoral Management Board for Scotland, which provided views on the subject, and, through them, the returning officers for the Western Isles and for Argyll and Bute. They were clear that a limit of four could pose particular challenges in large rural constituencies or those with a number of islands, and felt that a raised limit would afford them helpful flexibility.
We do not propose to make this an open-ended provision whereby petition officers can designate a considerably higher number of signing places, and nor do we propose to impose a minimum number of signing places that is greater than one. As we said in previous debates on the subject, the petition will be open for eight weeks and there will be an option to sign by post. In some constituencies, it may be that one or two signing places will be sufficient, as has been argued by the Association of Electoral Administrators and the Electoral Commission. I am of the view that we must ensure that petition officers can take a proportionate approach to the provision of signing places.
I recognise the need to ensure that there is enough flexibility to ensure reasonable access for constituents, especially in larger constituencies or those with particular geography. The Government believe that increasing the maximum number of signing places that can be designated to a maximum of 10 allows petition officers to designate the appropriate number of signing places based on the characteristics of their constituency. I also note that the Electoral Commission has stated in its briefing for this debate that it welcomes the change provided for by this amendment to allow greater flexibility for petition officers. I thank those noble Lords who participated in the earlier debates. We have reached a sound conclusion and I beg to move.
My Lords, I am delighted to see that my noble friends have been able to respond to the views expressed right across the House on this issue in Committee. Geography, scale and lack of public transport were certainly features in my former constituency of North Cornwall, as I referred to in Committee. But I am even more delighted to witness the fact that my noble friends on the Front Bench seem to be listening a little to what has been said in the House on this Bill—just a tiny little bit. I hope that between now and Third Reading we see some more evidence of flexibility from my noble friends.
I am going to be a little more generous than the noble Lord, Lord Tyler, and thank the Minister for listening to the debate on the amendment that we moved in Committee. He will not be surprised that we are delighted with this. Not only is it the right answer in itself, but I also think that it will reduce the demand for postal votes. That will save the resources of the petition officer—their time, their staff and their money—because there will be less need for people to apply for postal votes. So we are very happy to support this government amendment.
My Lords, I am most grateful for the generous comments that have been made. As I said, this has come forward because it makes practical sense. If there is an unfortunate instance of recall, it is important that constituents, wherever they are from—the islands or the large constituencies—have the ability to sign if they so wish. So far as my noble friend Lord Norton is concerned, as I said at the beginning, our basis for the maximum of four signing places was because that was what the Political and Constitutional Reform Committee had recommended. If I have further particulars on that, I will of course write to him, but that was the basis for four. However, what has happened in the other place and in your Lordships’ House has ensured that sense has prevailed, so I commend the amendment to your Lordships.
Amendment 11 agreed
Clause 9: Recall petition to be made available for signing
Moved by Lord Howarth of Newport
12: Clause 9, page 7, line 16, leave out “8” and insert “3”
My Lords, Amendment 12 would reduce the signing period from eight weeks to three weeks. It is intended to minimise the period of the petition—to shorten as far as possible the period in which there can be campaigns on both sides and, in particular, campaigns to secure names for the petition to unseat a Member of Parliament. Three weeks would be amply sufficient for this process. Three weeks allows plenty of time for constituents to make their way to one of up to 10 signing places, thanks to the amendment moved just now by the Minister, which was welcomed by the House. It is also plenty of time in which to organise postal votes to arrange for people to be able to sign the petition by post.
Imagine the situation that will prevail. The Member of Parliament has already been found guilty of serious wrongdoing by a court or by the Standards Committee. Already, he or she has been publicly disgraced. They have been shamed at length before their colleagues, their constituents and the nation. There will have been quantities of media coverage, much of it vindictive and gloating, in the period leading up to the judgment and at the moment when that judgment was made. Local media and social media will all have ensured that the Member of Parliament’s constituents are fully aware of the issue. What virtue is there in dragging out the period of the petition? Why do we wish to create this modern form of trial by ordeal? Why in this year of grace, 2015, are we legislating to provide that a political corpse shall twist in the wind and decompose for up to eight weeks? If by any chance there is still any life in that corpse—that politician—a by-election may follow, during which there will be more weeks of media sport, with the media pack baying for blood, and of accusation and counteraccusation; all of it highly unedifying and tending to give politics a bad name.
Some noble Lords may have read an article in last Saturday’s Guardian by the Reverend Giles Fraser, who described how, in the days when we burnt heretics and witches in this country, sellers of cherries would offer their wares to the spectators who had come to witness the public execution. This euphemistically termed “recall Bill” is in fact a process of public torment of a disgraced MP. I do not want to be excessively melodramatic, but I suggest that it is tantamount to political sadism. The market gardeners will be there, out and about in the constituency, selling their cherries. The local Mesdames Defarges will be knitting outside the signing places.
I do not in any way condone or mitigate the seriousness of serious wrongdoing, but it seems that this legislation, and this petition process in particular, is a gesture of self-abasement and of gratification of an angry public on the part of a traumatised and scared political class. The noble Lord, Lord Forsyth, spoke of the lack of self-confidence in the House of Commons, and I agree very much with what he said. It is right that the House of Commons should have made its apologies. It is right that there should have been contrition on the part of the political class. It is right to take steps to reform the culture of Parliament and to improve its disciplinary processes. But it is not right to do so by tossing miscreants to the crowd for ritual humiliation.
The political leaders, however, and Members of the House of Commons, in their wisdom—it seems to me a somewhat primitive wisdom—have approved the process that is provided for in the Bill. Should we not, however, be aiming to minimise the nastiness in politics, starting, perhaps, with the weekly cage fight at Prime Minister’s Questions in the other place?
I have been struck that noble Lords on all sides of this House who are former Members of the House of Commons have made the case that we do not need this recall procedure at all. The House of Commons has the power to expel a Member of Parliament who disgraces himself or herself and the House. If the Member of Parliament does not resign voluntarily—I will give way.
My noble friend has been talking about MPs who have disgraced themselves. Clearly, that is the origin of the Bill but, as I pointed out, and others have pointed out, in a number of cases the danger is that this Bill will be used where there is a political aspect to the case. We need only think of the Irish Members who in the past have been in conflict or, in the example I gave, if we look forward, of perhaps a Muslim MP going to fight in Syria—not for ISIL, but for one of the other groups—and yet being arrested and perhaps sent to prison. I think we should not fall into the trap of assuming that this will be used only against MPs who have clearly done wrong, because it has more dangerous implications.
I agree with my noble friend. The process provided for in the Bill would allow for the intrusion of all kinds of extraneous factors, such as the ones he describes. If we return to the question of whether a Member of Parliament has committed serious wrongdoing in the terms that the Bill envisages, of course, if that MP chooses not to resign voluntarily, the parties have their means of persuading the Member of Parliament to resign. The parties can remove their endorsement. The matter can thereby be dealt with cleanly and quickly.
Lethal injection is one thing. But hanging, drawing and quartering over eight weeks is quite another. If we must have this petition process, let us make it as short as possible. I propose that three weeks would be amply sufficient, but some noble Lords may consider that, for practical reasons, we might need four weeks, conceivably even five weeks. I would not be dogmatic on that. The principle that I wish to put forward in this amendment is that we should keep the petition process to the minimum of time in which it can be performed as satisfactorily as possible. Eight weeks, it seems to me, is altogether excessive. There is also a consideration that if we are to have 10 signing places staffed for eight weeks on end, it will be very expensive. However, that is not my argument. My argument is about mitigating or minimising the gratuitous unpleasantness that is inherent in this process.
I hope that noble Lords will agree with my point of view. I hope that Ministers may feel that there is scope for them to respond flexibly and perhaps adjust the period of eight weeks to three, possibly four. I beg to move.
My Lords, my observation is simply on the practicalities of this. I do not know what would happen in these signing places, the number of which we have just agreed should be extended to a maximum of 10. What would actually happen to them in weeks two, three, four, five, six, seven and eight? Surely, the overwhelming evidence shows that, with the kind of build-up that is being described by my noble friend Lord Howarth, anyone who wanted to sign this petition would, I imagine, have built up to a sufficient level of frenzy that they would be virtually queuing at the station where the petition could be signed. Certainly, they would have dealt with it by week two or week three. There is an idea, somehow, that we need to keep these stations open for 10 weeks. For heaven’s sake, consider a general election campaign, until this dreaded Fixed-term Parliaments Act came along, about which I have expressed opinions in the past. Normally, there were five or six weeks of intense campaigning, which constituted a general election campaign. That was more than enough for most of us, I think. As far as I was concerned, I found it exhausting.
We know, from the evidence, about postal voting. Experts such as my noble friend Lord Kennedy on the Front Bench will no doubt know more about this than I do. Is not the evidence overwhelming that people either cast their postal vote within a day or two of receiving the ballot or they do not do it at all? I think exactly the same principle would apply to this. I think it most unlikely that this Act, as it will become, will come into operation very often, if at all, which makes the whole operation seem rather a waste of time. Assuming, however, that it comes into operation, I would safely predict that the poll clerks in these up to 10 signing places would be sitting there reading newspapers for weeks 3, 4, 5, 6, 7 and 8. I can see no conceivable practical reason, let alone in the arguments that my noble friend has advanced, why we need such a long period for signing.
I want to emphasise what I said in my intervention. Bear in mind that when Bobby Sands starved himself to death, there were constant displays outside all sorts of places relating to government in Northern Ireland and southern Ireland. If we have this, there will be something similar. It will not, I hope, ever be as dreadful as that period again, but do bear in mind a very important point: people get sentenced for offences as a result of a political situation.
I shall give another example, which has been given here in the past and concerns the First World War and conscientious objectors. There is a whole range of issues on which, in the past, Members of Parliament have committed offences which are illegal and get them into trouble with the law. Under this legislation, it would result in their losing their seats. If you want to look at a situation, of course it is easy to identify ones where MPs fiddled their expenses. That is the easy option. However, when they are linked into a political-style offence, it is a very different ball game and there are all sorts of dangers. To my mind, that is a much bigger danger in the whole of this Bill, not just this individual question of three or eight weeks.
My Lords, I do not wish to detain the House for long, but would the Minister like to say exactly why eight weeks was chosen? In all our debates, I have never heard—I may have missed it—a precise definition of how that was arrived at. Why eight weeks? There must have been some reason for choosing eight weeks. Was some sort of scientific study done? Or was eight weeks simply plucked out of the air as a good idea? Of course, the shortest time would be one day, but that is clearly impracticable. We would not want it to be a sort of side-show to be done in one day.
I simply throw this into the ring. It may be that the eight weeks that is provided to give people the maximum amount of time to make up their minds and to vote actually has the opposite effect. By the end of these eight weeks, people may be so fed up with it that they will not bother going to sign the petition, which would be counterproductive. The other side of that is that when you ask people to sign the petition, they might ask, “When do we have to sign by?”. If you say, “Eight weeks from now—two months”, they will say “I’ll do it tomorrow”. Some of my noble friends will, like me, remember knocking on people’s doors asking them to go the poll and them saying, “Can we come and do it tomorrow?”. That is absolutely true. I imagine that people will say, “Well, we’ll put it off”.
Although I am one of those who is, if you like, a sort of prophet of doom in the sense of fearing that a huge frenzy will build up in the media, even the media cannot sustain things much beyond three weeks. Even the most lurid cases disappear after three weeks, because the media have moved on to something else. I am not sure that even the media would be prepared to commit the resources to get the petition signed for, in totality, beyond two or three days.
Apart from that, the timing is far too long. A decision must be arrived at, although whether three weeks is the right length of time or not, I really do not know. My noble friend has not said why it should be three weeks; he said that perhaps it could be three or four. We should be flexible on this, in the sense that neither the coalition Government nor we should say it has to be three weeks and nothing more or nothing less. The Government are wrong in thinking they have to stick by eight weeks. If the Minister cannot accept three weeks, I hope he will understand that this is not an attempt to wreck the Bill or anything like that. Whatever its faults, we have to try to make the Bill as sensible and workable as possible. Why eight weeks? Why not four weeks? Would that not be a much better way and a much better use of resources?
I was enormously impressed with the noble Lord’s very dramatic introduction of his amendment. Perhaps he has been over-Mantelled recently and has been watching too much “Wolf Hall”. However, in these circumstances, he has a perfectly valid point.
My questions follow on from the contribution of the noble Lord, Lord Hughes. Who advised Ministers that it should be eight weeks? Most significantly, there is the very important cross-reference with the number of signing places, which my noble friend Lord Norton and I referred to in Committee. If there are only two signing places, perhaps you do need longer; but if there are 10, you should obviously review that situation. Has whoever gave advice to Ministers on the number of weeks, on the original basis of a maximum of four signing places, been asked to review that advice in the light of the Government’s now much more flexible attitude? That is something we need to be told now, otherwise it seems to me that the amendment of the noble Lord, Lord Howarth, has huge merit, at least in making the Government think again about the very new circumstances that their own flexibility has now created.
My Lords, I, too, support this amendment for the reasons we discussed in Committee. I argued then that the number of signing places should be expanded and the period of time in which you can sign reduced. The Government have got half way there, so I hope that they will now go the rest of the way as well, for the reasons that have been well advanced.
Like other noble Lords, I cannot understand the rationale for eight weeks. As the noble Lord, Lord Howarth, said, it is much longer than an election campaign. In the case of one election, the Prime Minister announced it and it took place four weeks to the day after that. However, here we are saying that twice as long should be available for people to reflect on whether they should sign a petition—eight weeks. Why on earth should anyone take eight weeks to think about whether they should sign a petition or not? The news about the Member being eligible will be out quickly. It will be in the news and, as has been touched on, it will then cease to be newsworthy after a matter of days, if that. Why are we going to linger for weeks with people sat at polling stations twiddling their thumbs waiting for people to turn up and sign? I can see no argument for that length of time. It is not even as if we are still in the period where it took days for news to reach people and they then had to rely on some slow means of transport to get somewhere to actually sign something. Even if we were in that period, they could do it in less than eight weeks. Why nowadays, with instant communication and the ability to get to one of potentially 10 places to sign fairly quickly, do we need as long as eight weeks? It may be an arbitrary figure, but why eight rather than, say, six?
The noble Lord, Lord Howarth, said that he is flexible and that it could be four or five weeks. I thought he was, if anything, generous in saying three weeks. Why on earth would you need three weeks to reflect? Are you going to call the family together to hold great deliberations about whether you should sign it or not? Once you know about it, you think about it and then you decide whether you are going to make the effort to go and sign the petition—you go and sign and that is it. That could be quite easily achieved within a period of three weeks and, to be honest, one could achieve it with a much shorter period.
As I said, the noble Lord, Lord Howarth, is being quite generous in putting down that figure. Had he not put down his amendment, I would have put one down to reduce the period and would probably have chosen an even shorter period. The argument for his amendment is eminently rational. It does not raise any serious issue of principle in terms of recall per se, so I see no reason why the Government, having moved on the number of places where signing can take place, could not be moved just as easily on this. It makes perfect sense. There is also the practical point that was touched on about people having to staff the places at which signing can take place. There is a cost to the public purse, and we should not lose sight of that.
My Lords, my noble friend Lord Howarth of Newport has made a good case for considering whether and why eight weeks is somehow the perfect period for the petition to run. We remain unclear on the question that my noble friend Lord Hughes raised as to why the Government chose this period—a question to which they never gave a clear answer in Committee. As I said before, two weeks, as it was then, did seem too short a period if it was to include the run-up to the signing period—in other words, the time to get the signing issues out and for everyone to get to know about them as well as the signing period itself.
The Electoral Commission thinks eight weeks is, in its words, a relatively “long signing period”. Certainly, in democratic terms, two months is a long period for an MP to be effectively out of the Commons and fighting to retain his or her seat. However, the period does have to be sufficient for people to know about it, to hear the debate and to come to a view, and three weeks probably is too short if it is to cover the whole of the public awareness period—I do not like the word campaign—as well as the actual signing period. Amendment 12, as it stands, might not be the right one, but it will be very interesting to hear whether the Government can give us any reason why they chose eight weeks and, even more interestingly, whether they are willing to consider some movement on this.
My Lords, I am most grateful to the noble Lord for tabling this amendment; we have had a very interesting debate. I appreciate that an eight-week period may seem lengthy, but the main reason why it was considered appropriate is that we thought it was important that constituents are given sufficient time to consider any available information from the Member of Parliament or from those concerned with the petition. I very much hope, as I said before, that we do not have these recall petitions. I hope and expect that the behaviour of Members of Parliament will be of the highest standard, and that this will not happen.
In answer to the point of the noble Lord, Lord Hughes, an eight-week period is appropriate because we think that it is important that all the available information should be seen not in a rushed and precipitate manner, although I do not think that it will be Madame Defarge and cherries. We want the feeling that this period is one of mature reflection and that there is proper consideration over a period of time. The shorter period that the noble Lord, Lord Howarth, has proposed could result in electors feeling pressurised into making their decisions without all the facts before them. I understand the point that the noble Lord, Lord Howarth, is raising about a Member of Parliament being hung out to dry, but we hope that that not will happen. We hope that this will be an eight-week period of reflection.
In its briefing today, the Electoral Commission has stated that it does not support this amendment. It is concerned that a three-week signing period would significantly reduce the accessibility of the petition process to people entitled to sign. We share this view. Reducing the signing period to three weeks could make it difficult for those who wish to sign the petition by post. This is the point I would like to make to the noble Lord, Lord Grocott, in response to his mention of the practical reasons. One of these, to which I will refer later, is that it is likely that in certain parts of the kingdom, perhaps in Northern Ireland or maybe some far-flung places, signing by post will be a popular way in which constituents will wish to respond.
While existing electors with a postal vote in place would automatically be sent a signing sheet when the petition opens, electors without a postal vote who wished to sign by this method would have to submit an application, have it approved and receive their postal signature sheet in good enough time to return it before the petition closes. At elections the deadline for making an application by post is 11 working days before the poll. Under the noble Lord’s amendment, which proposes a 15 working-day signing period, the time available for an elector to decide whether to apply for a postal signing sheet would be unduly constrained.
Electors are very familiar with the ways in which they can vote at an election. However, recall petitions are likely to be rare and the first time that an elector will receive information on the alternative methods for signing a petition will be when they receive their petition notice card. Under the amendment, electors would have to decide probably too quickly, perhaps within the first week of the signing period, whether they wished to sign by post and request an application.
Petition notice cards will need to be dispatched once the register for administering the petition has been created. The earliest that this can happen is three working days before the petition opens. Assuming an elector received their petition notice card on the day before the petition opened, they would have only a short time to apply for a postal signing sheet. We will discuss the deadline for postal signing-sheet applications in a later group, but if we look at the deadline that exists at elections, postal-vote applications must be made by the 11th working day before the poll to allow the applications to be checked, and postal votes to be printed, despatched and returned. This allows very little time for electors to consider their options and decide, in this case, whether they wish to sign the petition.
For a variety of reasons postal signing could prove to be a popular and convenient way for electors to participate in a recall petition. Therefore, the Government believe that having a signing period of eight weeks is desirable and necessary, as it ensures that electors have time to consider the arguments put forward, and if they choose to sign the petition, to decide when, and in what way, it is most convenient for them to do so. As the Electoral Commission points out, three weeks would significantly reduce the accessibility to electors of the petition process.
I entirely understand the good intent and the kindness of the noble Lord, Lord Howarth, in bringing this amendment forward.
Does the Minister accept that one of the problems of an eight-week period is that someone who signs in the first two or three days might well reflect after five, six or seven days that he or she has made a mistake? There is no provision if someone changes their mind. For the process to work properly, if it can work at all, the shorter the period in which people make up their minds, the better.
Another interpretation is that if you have too rushed an arrangement and want to vote by post, along with the problems that I have outlined about three weeks, this will be a serious and rare event. In replying to the noble Lord, Lord Hughes, I think that there should be a time in which mature reflection is permitted. If someone knows that they have a decent length of time either to send their vote back by post or to go to the signing place, this encourages them rather than causing in them a knee-jerk reaction from the last thing they read in the press. Because this is a serious move, a period of calm is required and would be provided.
If it was all to be condensed into a very short period, we could possibly have the hiatus and the cherries and the Madame Defarge scenario, whereas we want this to be taken seriously by Parliament; and if that happens, we want it also to be taken seriously by electors who will not in my view feel rushed by the arguments of one or the other side. They should have some time in which to reflect properly on the matter.
While I understand the kind and good intentions that the noble Lord has portrayed in not wanting to seek an unattractive scenario, I think that the eight weeks provide the calm reflection that I hope there would be abroad for this very serious matter, and so I ask him to withdraw his amendment.
My Lords, I am very grateful to everybody who has spoken and certainly to all who have expressed support for the principle of what I was trying to achieve in putting this amendment forward.
Even at this stage, I hope that I can persuade the noble Lord, Lord Gardiner of Kimble, who has been conciliatory and flexible on the number of signing places, to be equally conciliatory and flexible on the matter of the duration of the signing period. As the noble Lord, Lord Tyler, put it so strongly and effectively, there should be an interaction between these two factors. The Government have helpfully and constructively moved on the one, but so far the noble Lord, Lord Gardiner of Kimble, has given us only half a loaf. If he is prepared to reflect on it he will see that there ought to be an interaction between these two considerations.
I have not at any point sought to suggest that we should so abbreviate the signing period that it becomes in practical terms impossible to conduct its administration properly. I also do not think that these decisions about recall should be taken hastily—far from it, because I agree with everybody who has stressed just how important these decisions are. Equally, we do not want to be dilatory about this process, partly for the reasons that I developed as I moved the amendment. We run a risk of some extended, gratuitous unpleasantness that is bad for political life and for our country. I know that the Minister fully understands the significance of that.
There are other factors. There is cost. These are stringent times. How can it possibly be justified to keep these signing places open, staffed by paid officials, for more weeks than they are genuinely needed? My noble friend Lady Hayter made another important point for which I am most grateful. She drew attention to the fact that if the petition signing period runs for eight weeks, and should there not be the 10% of registered voters signing the petition, the Member of
Parliament whose future is in question will be absent from the service of his or her constituents, and absent from the House of Commons, for the whole of that period. That seems to be a very important case.
The Minister has expressed in very general terms the desirability of people not being made to rush their judgment in this matter. I think there is realistic scope for a compromise to reduce the period of eight weeks to what would be the necessary minimum to enable constituents to reflect adequately on the important decision they have to take and to implement that decision by way of signing the petition, whether directly or by post. Is the Minister willing, between now and Third Reading, to think further about it and perhaps meet us to discuss it? I hope that he will not be as adamant as the first part of his remarks just now seemed to suggest. I invite him to tell us now whether he sees an opportunity for some further consideration of this—which, it seems to be agreed all around the Chamber, it is desirable to do—to reduce the signing period to the necessary minimum and no longer. Is the Minister willing to give us that undertaking?
My Lords, I do not think I am in a position to give an undertaking. The truth is that thought should be given towards any stage in your Lordships’ House. But I cannot promise to bring anything further back because, for the reasons I have outlined, the Government are of the view that three weeks is not sufficient and they think that eight weeks is the right length for mature discussion. Of course, I am always very happy to see the noble Lord, but I am not in a position to promise that I would be able to support anything beyond the Government’s current position.
I completely understand that the noble Lord is not in a position to give a solid undertaking that he will introduce an amendment that changes the signing period. But I take it from what he has just said that he is willing to enter into a discussion with his ministerial colleagues. He has said that he is willing to talk to some of us about this. That would be genuinely desirable. I think that somewhere between three weeks and eight weeks, we can arrive at a better span of time which should be agreeable to everybody. On that basis, I beg leave to withdraw the amendment.
Amendment 12 withdrawn.
Moved by Lord Kennedy of Southwark
13: Clause 9, page 7, line 22, leave out subsection (4)
My Lords, Amendments 13 and 14 are in my name and that of my noble friend Lady Hayter of Kentish Town. I moved similar amendments in Committee. Amendment 13 removes the petition wording from the Bill, and Amendment 14 makes provision for the wording to be agreed following consultation with both the Electoral Commission and the Welsh Language Commissioner.
At present we have words in the Bill that have not been user-tested. The Electoral Commission has given some advice, but unlike the referendums in Wales and Scotland, it will not be involved in the user-testing. According to its briefing, it seems quite content with that, which in itself is a bit odd. In Committee I asked the noble Lord, Lord Wallace of Saltaire, which organisation would be undertaking the user-testing of the wording. He was not able to answer me then but agreed to write to me, which he has done and I am most grateful to him for that.
I would like to understand why the Cabinet Office launched a tender exercise on user-testing rather than asking the Electoral Commission to do the work. What was the discussion in government that came up with that decision? The Government have not been clear on that so far and it is not referred to in the briefing note from the Electoral Commission either, but discussion on this issue must have taken place. This is all very rushed and not a good way to undertake an important exercise. Putting untested petition words in the Bill, although they can be amended by regulation, is not the most satisfactory way to go about this.
I am grateful to the noble Lord, Lord Wallace of Saltaire, as I hope he will confirm the involvement of the Welsh Language Commissioner in the process but, as I said, it should be done in a much better way. I think that the noble Lord, Lord Wallace, should reconsider the position he took in Committee. This is not a very encouraging way to move forward and I think it is a bad case of putting the cart before the horse. I beg to move.
My Lords, it seems to me that the horse is actually before the cart. The noble Baroness, Lady Hayter, suggested—I thought rather unkindly—that there was a lot of cut and paste in the Bill. Actually, we have followed wherever possible agreed and established rules in comparable cases of electoral law. That seems to be an entirely appropriate way to do it.
Our decision to include the specified wording in the Bill mirrors the position for UK parliamentary elections where the form of the ballot paper appears in primary legislation but may be amended through regulations. As I said in Committee, a modest but worthwhile advantage of the appearance of the signing sheet’s wording in the Bill is that any future changes made to it will then be reflected in the text of the parent Act, which helps to make the law as clear as possible for petition administrators, parties and campaigners.
I agree that it is important to check that the wording is fit for purpose. That is why we have committed to user-test it with input from the Electoral Commission on the user-testing specification. If changes are identified, these can be made through regulations which require the approval of both Houses. We currently have a tender out for a supplier to undertake this work in consultation with the Electoral Commission.
On the question of consultation with the Welsh Language Commissioner, I can reaffirm that the Government will prepare a Welsh translation of the wording in secondary legislation, as is the practice at other statutory polls, using a power and following a principle established in the Welsh Language Act 1993.
This translation will be subject to user-testing in the same way as the English version, and we will consult the Electoral Commission’s Welsh language experts to ensure that the translation is accurate and user- friendly.
The Welsh Language Commissioner has no formal statutory role in assessing electoral forms and notices. I am in favour of those with an interest in the process being involved in and aware of user-testing, although it would be unusual to provide a statutory role for the commissioner here and not in respect of other polls. In summary, I believe it is important that the wording of the petition appears in the Bill, and that it is user-tested and commented on to ensure that any improvements which are identified can be made. With those reassurances that we are following established practice in both respects, I hope that the noble Lord will feel able to withdraw his amendment.
I thank the noble Lord for his response. I still think it is an odd way to be moving forward. I am not sure that the Government have thought this through particularly well. We are trying to help the Government with these matters, but at this stage I am prepared to withdraw the amendment.
Amendment 13 withdrawn.
Amendments 14 and 15 not moved.
Moved by Lord Kennedy of Southwark
16: Clause 9, page 7, line 35, at end insert—
“( ) The petition officer must not make public a running total of signatories to the recall petition during the signing period.”
My Lords, the two amendments in this group are in my name and that of my noble friend Lady Hayter of Kentish Town. Amendment 16 mirrors an amendment tabled in Committee by my noble friend Lord Hughes of Woodside.
I disagree with both the Government and the Electoral Commission that when the recall provisions have been triggered, it will be a local event with a local feel. It would be a grave error for a running total to be published throughout the eight-week signing period. It will be a national event and a potential media circus, with different outlets reporting daily on the number of people who have signed the petition. If the noble Lord is not minded to accept my amendment, I hope that he will confirm very clearly to your Lordships’ House that this will not be allowed to happen and that in the regulations that will be issued it will be explicit that the number of people who have signed the petition cannot be released under any circumstances during the signing period.
Amendment 18 requires the petition officer to make public the number of people on the electoral register at the cut-off period before the petition process opens. This will enable everyone to be clear on the number of signatures needed to trigger the recall process. It is very important that everyone involved in the process is clear on the number of signatures needed to have a Member of Parliament recalled, and for there to be no doubt about what that figure is.
Again, if the Minister is not minded to accept my amendment, I hope that in responding he will give a clear assurance to the House that this will be explicit in the regulations he issues. I beg to move.
My Lords, I am very happy to confirm that the Government’s intention is that the regulations will require the petition officer to make public the number of eligible electors in the constituency—as has been suggested—and that the regulations would not sanction the issuing of a running total during the petition process itself.
As I said in Committee, the Bill does not specify whether a running total should be published, but further detail would be a matter for the conduct regulations. It would not be consistent with the level of detail in the Bill to specify these matters here but I can assure the noble Lord that we have heard and understood his arguments, that we agree with them and that they will be adequately covered in the regulations. On that basis I again hope that he is sufficiently reassured to be able to withdraw the amendment.
Amendment 16 withdrawn.
Clause 10: Persons entitled to sign a recall petition
Moved by Lord Kennedy of Southwark
17: Clause 10, page 8, line 12, at end insert—
“( ) Any persons wishing to apply to vote by post, who are not interested to do so before the Speaker’s notice is given or on the cut-off day, must do so no later than the end of the fifth week of the signing period.”
My Lords, Amendments 17, 19 and 20 again are in my name and the name of my noble friend Lady Hayter of Kentish Town.
Amendment 17 would bring in a deadline of the end of the fifth week to be able to apply to sign the petition by post. At both Committee stage and in the memorandum which outlines the draft regulation, the only information provided by the Government on the limitations on signing the petition by post was that the procedures for elections and referendums would not be appropriate for the recall process. However, a letter to my noble friend Lord Hughes of Woodside stated that the Government intended to maintain the same time limits. So can the Minister tell the House why 11 days is deemed appropriate? Who has been consulted on this?
Even with the Government’s commitment to increase the number of signing places from four to 10—which is welcome—it is reasonable to believe that there will be a greater demand to sign the petition by post. Given all that, does the Minister think that 11 working days will be long enough to check—and double-check—all the applications that may be received? Our amendment allows for a longer period to check that everything is okay. It enhances security and enables greater vigilance to be deployed by petition officers, as they will have more time to undertake their work.
Amendments 19 and 20 are the same as those I moved in Committee. They raise the penalty for double signing from an illegal practice to a corrupt one. I was disappointed that the Minister did not accept those amendments then. I have I have had some discussions with him outside the Chamber and I would be interested to hear careful words from him that clearly state that the reasons for double signing will not necessarily be the same and that therefore on some occasions prosecutions in the corrupt band would be necessary, while in others they would be in the illegal band.
As I said in Committee, a corrupt practice at an election includes things such as impersonating another individual to use their vote, signing and submitting a false election expense return or attempting to bribe, treat or use undue influence on a voter, whereas an illegal practice includes not putting an imprint on your leaflet. The noble Lord must surely accept that the former offences are more in keeping with the double signing offence than are the latter. I would be interested to hear the Minister’s response to this and other points I have raised. I beg to move.
My Lords, I thank the noble Lord for again raising these issues, which we have discussed in Committee. As I stated in Committee, the detail of how postal and proxy signing will operate will be dealt with in the regulations made under Clause 18. This again mirrors the approach made at UK parliamentary elections, where the rules for absent voting appear in secondary legislation.
Therefore, the Bill itself does not set a deadline by which postal signature sheet applications must be received. At an election this is usually the 11th working day before the poll, which allows applications received in the days just before and up to the deadline to be processed and postal ballot packs issued to electors for them to complete and return in time for the close of poll.
As I previously stated, for a petition it is possible to set a deadline during the petition signing period itself. The last day of the period is, in effect, analogous to polling day at an election, so there needs to be a cut-off point. I therefore have some sympathy with the policy suggestion made by this amendment, and can confirm our intention that the regulations will set a deadline. However, the amendment is not necessary, as the regulation powers in the Bill are sufficient to enable a deadline for applications to be set.
It would be prudent to ensure that the rules about postal and proxy signing are set out clearly in a single place for the benefit of practitioners and campaigners, and in this sense it is not helpful to specify the deadline for only postal signature sheet applications in the Bill. So the regulations will set out regulations for both postal and proxy voting.
Amendments 19 and 20 would modify the nature of the offence in the Bill for signing the petition twice, making it a corrupt rather than an illegal practice. It does this by amending provisions in the Representation of the People Act 1983 that apply to the offence of double voting. These amendments were originally tabled in Committee.
Clause 12 makes it an offence for two or more signatures to be added to the petition by or on behalf of any individual elector, just as in elections it is an offence for two or more votes to be cast by or on behalf of an individual elector. As was noted in Committee, Clause 12 mirrors the offence of double voting in electoral law in terms of the maximum penalties that apply upon conviction. First, a person guilty of the offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale, which is up to £5,000—a not inconsiderable sum. Secondly, a person convicted of the offence is incapable for a period of three years of being registered as an elector or voting in parliamentary elections and local government elections in England, Wales, Scotland and Northern Ireland, being an MP or holding a local government elective office in England, Wales or Northern Ireland. The sentencing court has the option partially or wholly to waive these incapacities.
The amendments proposed would modify the first of these two aspects, with the result that a person convicted of double signing would be liable on conviction to a prison sentence of up to two years. In this respect, the amendments treat the offence like an even more seriously corrupt practice in electoral law such as personation, either by impersonation or via an absent vote.
I read through all this with great fascination. My wife votes twice, and has voted twice for some time, holding a proxy as she does for our son, who has been working in the United States for some time. One of the greatest delights in the past week is that he has just accepted a post at Edinburgh University—so her second proxy vote will be removed as he returns to this country.
The amendments do not amend the second aspect: the duration of the incapacity to vote or stand in an election. The three-year bar is retained, and replaced by a five-year bar for corrupt practices such as personation.
The Government’s view is that the penalties for illegal practices are adequate for the offence of double signing, and that the penalties for corrupt practice are more appropriate for these even more severe offences. Our consideration is—again given the existing law covering electoral offences—that it would be inappropriate to arrange for a different set of standards for petition elections than holds for other forms of election. I hope that that is clear. We are attempting to be consistent here and I hope that on that basis I have again reassured the noble Lord. His knowledge of electoral law is—I am well aware—deeper than mine, but I hope that he will be able to withdraw his amendment.
I thank the Minister for his response. I hope that outside the Chamber we may be able to have some discussions about the question of the signing period for applying for a petition vote. There is some issue about the 11 days and the sheer amount of pressure on returning officers to deal with that, so I hope that we can do that. The offence of double signing, if proven in a court of law, would sit more comfortably with corrupt rather than illegal practice. However, at this stage, I am happy to withdraw the amendment.
Amendment 17 withdrawn.
Amendment 18 not moved.
Clause 12: Double signing
Amendments 19 and 20 not moved.
Consideration on Report adjourned until not before 8.30 pm.