My Lords, in moving Amendment 21, I will speak to Amendments 22 and 23 as well. Amendment 21, in my name and that of the noble Lord, Lord Kennedy of Southwark, is an extremely important amendment. Amendments 21 and 22 together would restrict donations to all campaigners in the recall process to our normal rules. Thus it would forbid non-permitted—essentially foreign—donors flooding a constituency with money that they would be banned from giving to political parties. These amendments are not an attempt to restrict the activity of non-accredited campaigners who could have an important role to play in a recall but to ensure that this group of campaigners does not have access to funds from individuals or companies not domiciled here, funds which, quite rightly, are barred to MPs and political parties. Amendment 21 would ensure that all donations to both accredited and non-accredited campaigners are allowed only from permissible donors as defined in Schedule 4 Part 1 of the Bill. Amendment 22 would ensure that donations to non-accredited campaigns are treated the same as for accredited campaigns and covered by PPERA.
In Committee the noble Lord, Lord Gardiner of Kimble, stated that all campaigners will be subject to rules on the content of their literature, including imprints, as well as rules on acting in concert, notional petition expenses and pre-election expenses. We welcome this but it leaves the key matter of donations unregulated. Let me paint a picture for noble Lords and indeed the Electoral Commission, which in a rather odd briefing to us yesterday said:
“It is not clear what … benefit there would be to control the source of donations over £500 to campaigners who are only allowed to spend up to £500 on a petition”.
It must have read the amendment wrong because Amendment 21 would control all donations, not just those over £500. I shall explain why this amendment is needed. As the Bill stands, 20 separate donations of £500 could be given to individuals or campaigns all from foreign donors completely under the radar, equating to the same amount that could be spent by the one accredited campaign of the MP concerned who, of course, can take no such money.
In Committee the Minister indicated that he did not want overburdensome regulations for smaller, non-accredited campaigns. While I appreciate this, I think the Government have gone too far the other way by allowing these campaigns to spend up to £500 without any restriction on the source of their funds, possibly all of which could come from non-permissible donations. Stopping money from abroad is important in itself, while reporting the source of donations should surely be expected of all campaigners during such an important democratic process that the Government have said they want to be open and transparent. I hope that the Government will therefore accept the amendment to rule out the possibility of donations which would not be allowed during a general election, or indeed at any other time, being suddenly allowed during this significant period—the petition to sack an MP. The Electoral Commission somehow has bought, without query, the Government’s assumption that a petition would not,
“attract significant amounts of spending”.
Neither it nor the Government seem concerned that perhaps that assumption is misguided. The lack of control over donations is a glaring omission from the Bill, which we seek to rectify.
Amendment 23 is about fairness. It would take big money out of the equation and have just two accredited campaigns—one in favour of recall and one against. It would create a level playing field for the two sides, allowing voters to hold their MP to account while allowing that MP to make the case for remaining their representative. The wording of the amendment, which would limit the number of accredited campaigns to two—a pro and an anti-recall—is modelled on legislation governing the Scottish referendum. In that case, which we are not seeking to repeat, an equal monetary amount was prescribed for each side. That we regard as entirely sensible and fair, and it should be replicated during a recall—not the giving of money to both sides but ensuring an equality of arms between them so that they can each make their case: one for a by-election and one against. There are just two sides to the argument and they should be equally matched. There can be no case, on the grounds of fairness, against that.
Without Amendment 23 there is no limit on the number of pro-recall accredited campaigns, each of which could spend £10,000, against the MP’s single £10,000, so that one side could outspend the other five or even 10 times over. For example, an MP in a three or four-way marginal could face the three or more parties defeated at the previous election, each of them able to spend £10,000 to force a by-election, and that is before any local or national group decided to take an interest in the matter. We surely have to regulate against this, otherwise the reasons behind a recall being triggered will be thrown out of the window and the issue will become one of asking, “Do we want a by-election?”. If it is a marginal seat or if the Government have a majority of one, the answer will be driven by that and not by the behaviour of the incumbent MP. Therefore, voters will not be signing to hold their representative to account for his or her actions but it will be a referendum on the popularity of the Government, the surge of support for a new, emergent party, a campaign on fracking or whatever. Money and broader politics will count, not the record of the MP concerned.
A recall petition will have been triggered by a single event—say, a sentence of imprisonment or 10 days’ suspension from the House. However, multiple groups could then run individual campaigns on grounds entirely different from the reasons behind the recall. These could be the voting record or beliefs of the MP, or the availability of a national platform to launch a campaign on some topical issue—Europe comes to mind, should a promised referendum not materialise. Without a limit on the pro-by-election campaign, myriad groups could make their case, each spending £10,000 on the back of their MP’s misbehaviour.
I note that the Electoral Commission, in its briefing, does not feel that it,
“should be given the responsibility of registering campaigners at an event that is confined to only one constituency”.
I do not think that it is for the commission to decide whether it is up to it, but if Parliament accepts the fairness of this amendment then either the Electoral Commission should do this to ensure that our politics are kept clean of big money or we can ask some other body to do so.
We support the recall process, as it follows a finding about an MP’s behaviour and gives the local electorate the chance to decide whether, in the light of that conduct, they still want the MP to be their representative in Parliament. However, that process must be fair. Our amendment would introduce a crucial element of fairness, an equality of arms and a top limit on the total expenditure permitted in the constituency during this process. It would also make sure that we had control over foreign money coming in during the recall process. I beg to move.
My Lords, I support my noble friend’s amendment. At an early stage this evening, the noble Lord, Lord Gardiner, said that he thought and hoped that the recall process would be effective and be conducted politely in a civilised manner. I wish that that were the case. I think that what divides us across the Chamber throughout this Bill is not so much the principle—I think we all agree with the principle—but how it will be approached. Some people may think there has been exaggeration of how bodies coming from outside the constituency to fight against the MP are calling for recall on issues unconnected with his or her particular misdemeanour; the fact is that that is what happens.
I will refer to something that happened a long time ago about how foreign Governments and parties can become involved in a British political event. When I was a councillor in the city of Aberdeen, I persuaded the town council to have a contract compliance clause in which no South African goods would be accepted. It was purely symbolic. If you bought a bottle of sherry a year, you were doing very well. It was an issue of principle. That clause went through. Unbeknown to me, the local shipyard had a contract to build two trawlers for a South African company. The next thing that happened was that on the scene came an organisation called the South Africa Foundation. I should say that the South Africa Foundation of the 1960s is quite different from any South African foundations today, which serve good, charitable purposes, so let there be no misunderstanding. At that time, the foundation said that unless the council rescinded that decision, it would have the contract cancelled. Imagine what the local press thought of that. I went down to the shipyard and spoke to about 300 workers. They said that they were going to build the ships. I said, “I asked you not to build the ships”. They said, “But it will stop the conflict”. I said that the South African company was bluffing, and that, in any event, the South Africa Foundation was simply a front organisation for the South African Government. I did not deny that the South Africa Foundation and the South African Government had reason to come and challenge the views of Aberdeen. That was fair enough; their interests were at stake. But that was quite a different matter from trying to unseat an MP in a competition based on something else.
In the event, although I declared the South Africa Foundation a front for the South African Government, and it threatened to sue—I must say, that gave me some sleepless nights—it abandoned that when I pointed out that the organisation had on its letter heading South African Railways and Harbours Board, South Africa Marine, Eskom and all the South African industries which, in those days, were publicly owned and called parastatals. So that was dropped. That was simply one example of how they could come in. Had they decided to come in, with a lot of money, to unseat an MP—I think they would have done—that could distort the whole purpose of this recall Bill.
Although I share the views of many in this House who have declared that the Bill is unworkable and inflexible, nevertheless, I accept the general principle that MPs should not be totally free to do what they like. That has never been my position, nor is it, I believe, the position of Members on this side of the House. So, on the issue of funding, if there were strict control of funding in the general election, there would have to be at least the same limit on funding and a recall petition. It is straightforward and simple. I cannot believe that the Government would oppose this amendment in any way, as it is perfectly sensible and reasonable. So I hope that your Lordships will not think that those of us who oppose the Bill are taking rather fanciful, overblown or overdramatic views of the situation. Having been at the coalface for 27 years, I know how different bodies can go at things.
I want to say something that has nothing whatever to do with the Bill. I see in the press that the coalition is considering devolving abortion matters to the Scottish Parliament. I beg the Government not to do so. It is the most divisive issue of all in Scotland. What we need in this case is unity and some sense of proportion. However, perhaps the Minister will draw that to the attention of his colleague, the Chief Secretary to the Treasury.
Having got that off my chest, what we want to do—and we are all in favour of it—is to strengthen the House of Commons and Members of Parliament. We must try to regain—I was going to say the high regard that people had for MPs but I do not think people ever had a high regard for MPs. I think there was a misunderstanding. I think that MPs had some respect, which is a different matter altogether. We are reaching a stage in this Bill where, if we do not put this right, it will be a shambles. I hope that the Government accept this amendment.
What is provided for in this Bill is trial by petition. The petition process will be the trial of the suitability of a particular Member of Parliament to continue to represent his or her constituents in the House of Commons. A Member of Parliament thus placed on trial deserves a fair trial, just like anyone else who is arraigned.
The principle of fair trial goes all the way back in our history to Magna Carta. The noble Lord, Lord Wallace of Saltaire, alluded to Magna Carta earlier today. Many of us have been very conscious, particularly in recent days, of how we should measure our democratic and political standards against the precepts and standards initiated in our history through Magna Carta. It derives from common law and the Bill of Rights, which the noble Lord, Lord Wallace of Saltaire, also referred to this afternoon. It was most importantly articulated in recent decades in Article 6 of the European Convention on Human Rights. The principle of equality of arms, which my noble friend Lady Hayter espoused, means that each party should be placed in a position in which they are able to present their case in a manner that does not put them at a disadvantage by comparison to their opponent. The process must be equitable and neither side should be privileged.
Of course, trial by petition is not trial in accordance with any known court procedures or court rules. There are no safeguards provided in the legislation to ensure that there is fairness for the MP whose conduct and future is in question in the process of recall. But we should, as long as possible, in designing these procedures seek to uphold the principle of fairness: it is fundamental to our democracy and the rule of law. It is extraordinary that the Government have presented us with the Bill in which, as I understand it—I am ready to be corrected by the Minister or any other noble Lord because the legislative drafting is often quite impenetrable—there is no limit to the number of accredited campaigns that can be run to seek to unseat the Member of Parliament. Each of them will be entitled to spend up to £10,000. There is no limit to the number of non-accredited campaigners who can be in the field, each of them entitled to spend up to £500, and there is no bar against funding to support the campaign against or indeed in favour of the Member of Parliament coming in from abroad. The system that Ministers are presenting to Parliament has been stacked against the incumbent MP who is having to defend themselves and whose future is in question. A system so weighted and inherently unjust must be unacceptable.
As my noble friend Lady Hayter pointed out, three or four political parties could join to try to unseat a Member of Parliament for the particular party that happens to hold the seat for the time being.
In our present fragmented condition of politics, three-way, four-way, even five-way marginals are part of the reality of life. There will be intense national interest. The amendments of my noble friends are right. They provide for equality of arms in terms of the capacity to spend for and against the petition. In the provision in the amendment on permissible donors, they would keep out foreign money, pretty largely. They will ensure that donations for and against the continuation of the Member of Parliament are aggregated, so it is essentially a yes/no binary campaign. There are just two campaigns.
I am puzzled—and I have not understood, from our previous proceedings—why, under this legislation, only donations of more than £500 are regulated. Unless I am mistaken, I think under election law donations of more than £50 in other contexts are regulated. I would be grateful to be advised on that. Possibly I have that wrong.
As I understand it, the definition of a permissible donor still allows donations from people living abroad but registered on an electoral register in the United Kingdom. They do not have to be registered on the electoral register in the constituency in question. Equally, businesses that are perhaps registered abroad, based abroad, carrying on the greater part of their business abroad but also carrying on some part of their business in this country are also eligible. They do not even have to be carrying on their business within the particular constituency.
The Electoral Commission offers us reassurance that these recall petitions and campaigns will be essentially local constituency affairs. I beg to differ. I think there will be not only intense national interest; I think there could even, in certain circumstances, be international interest. I think that we have to put in place the strongest safeguards we possibly can to ensure equality of arms and to ensure the process of petition campaigning is not inherently unjust because of the advantages it gives to one side against the other—that it gives to the petitioners against the Member of Parliament.
Although it may well be the case that these amendments do not do everything that we would ideally wish, I support them because they will go a long way to mitigate the worst inequities in this undesirable process.
My Lords, those who have been patient enough to watch these proceedings at Second Reading, in Committee and now on Report might have detected certain differences of opinion between the Opposition Front Bench and the Opposition Back Bench. Those noble Lords with forensic skills will have spotted that that is certainly true. The difference is that the Front Bench think it is a good Bill, and many of us on the Back Bench think it is a bad Bill but recognise that this is not the Chamber which throws Bills out, even were that possible.
However, on this issue of fairness of campaign funds between the two sides, there is absolute unity between the Front Bench and the Back Bench of the Opposition. I thought that that fact alone, given that we have been pretty frank about our divisions during the course of the passage of the Bill, might give a little pause for thought to the Government, as two groups of opposing views on this issue are united in what needs to be done. The reason is one of incredible simplicity, it seems to me: a petition campaign is a binary choice. There are only two options—you either sign the petition, or you do not. It is an absolutely fundamental principle of electoral fairness, the possibility of a just contest, a fair contest in our democracy for at least 100 years—I suppose since secret ballot times in the 1870s, or whenever it was—
May I ask my noble friend about binary campaigns? It is not. It is a single-issue campaign. You can decide to sign the petition, which has an effect. But if you do not sign, you are not taking part at all.
I suppose the point I was making was that there are only two possible things that you can do in relation to someone asking you whether you will sign a petition.
I hope this is not really arguable from the Government, but if you have two sides in a democratic contest and one side has got colossally more money than the other, then you simply cannot have a fair contest. You see a lot of discussions where, much as we spell out our arguments, in private we might acknowledge that the other side has a bit of a case. I frankly admit that a lot of decisions in the Bill have been grey rather than black and white: for example, whether you have eight weeks or two weeks to sign the petition and whether there are 10 petition-signing locations or two or three.
These are all gradations and grey areas. However, I cannot see a grey area that enables us to have a different opinion as to whether two sides in a two-sided contest should have anything other than broadly similar amounts of money that they can spend, with a clear limit on how much. That is all that needs to be said. I just hope that anyone who cares about democracy and democratic choice—which includes all noble Lords I can see, scanning round this House—should be able to acknowledge that that is something that the Government really must concede on, because it is a matter of simple justice.
My Lords, again, this debate has ranged fairly widely. I am happy to discuss further with the noble Lord, Lord Hughes of Woodside, the level at which abortion law should be dealt with. I remember that some years ago the most obscure protocol to the treaty of Rome was added to a revision negotiation by the Irish Government, which said, “Nothing in this treaty shall countermand Article 39”—I think it was—“of the Irish Constitution”, which meant “Keep off”. About six months later, the Catholic Archbishop of Glasgow asked that this should be devolved. As soon as we are into multi-level government, the question of what level you do things at—at which level you decide that prisoners should have the vote, to take a hypothetical example—begins to be contested among the different levels. We now have several levels, and I am happy to talk about that further.
We discussed some of what we are discussing now, in not dissimilar terms, on the then Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, in which the Government were very much concerned in particular about the possibility of foreign money coming in through various umbrella groups and intervening in and influencing election campaigns. I recognise that there is a potential problem here, but we think it can be contained.
Here as elsewhere, in drafting the Bill, we employed the regulatory regime for campaign spending and donations drawn from existing electoral law. The proposed campaign rules for recall petitions follow those for referendums. In referendums, you have to report your spending at the £500 limit. In recall campaigns, £500 buys you a very small amount of activity. It does not seem to us that the image which the noble Baroness depicted almost, of a gentleman arriving from Switzerland with plastic bags with cash in them to distribute to various local householders, is a likely one; or, if it were to happen, that it would not appear in the Guardian or the Mail very quickly. We therefore think that £500 is the de minimis amount.
I was merely making the de minimis point. Above £500, you have to report. These amounts are then controlled and the question of what is a permissible donor comes into the existing corpus of electoral law. We are proceeding here in the same way as we have been proceeding in other cases. We have not diverged from the principles of regulation that have been proved to work and which are compatible, in our opinion, with the nature of campaigning. The de minimis is £500, and for accredited campaigners, those who are intending to spend over £500, only payments of over £500 are considered donations. These must be verified to confirm that they come from a permissible source and are reported as part of the recall petition return. The £500 limit for registration and reporting logically relates to the £500 limit below which payments do not have to be regarded as donations.
There has been some concern expressed that recall petitions will not be local events. We understand that we all prefer these to be local events. A recall petition is a question about who should be the representative of local issues at Westminster and therefore we wish local residents to have as much influence as possible. Our hesitation over designating one lead campaigner on both sides is partly because in those circumstances the likelihood of a national organisation being the first to come in to the arena and claim to be the accredited campaigner is part of the argument that we would resist. Incidentally, we do not assume, as I think that those who have spoken do, that there will be a huge imbalance on one side, with the poor MP left with only one sort of supporter gathered in his own campaign, and on the other side all the armies of Gideon arrayed around in different orders. An MP who has a justified case is likely to have a range of supporters on his or her side.
I am merely talking about the difficulty of having one accredited lead campaigner on either side. That takes us too far into the referendum campaign. The question of how one gets towards agreeing one accredited campaigner will need, I suspect, a good deal more than eight weeks to sort out.
If it were accepted that there could be more than one accredited campaigner on each side, would there be any objection on the Minister’s part to aggregating the expenditure of the campaign’s pro and con, for and against the Member of Parliament, so that the totality of the funding available to the range of accredited campaigners was limited to £10,000 or whatever the appropriate limit would be?
My Lords, I will have to take that one away and think about it. The Government have not considered this so far and it is therefore not within my current brief.
My Lords, I cannot give that assurance at the moment. Between now and Third Reading we have some time, as he well knows. Of course we continue to consider all matters, but at the moment I am not persuaded.
We do not see the question on Amendment 23 as entirely justified. The argument for an accredited campaigner in a referendum, as was said before, is that they are then rewarded with a substantial government grant to support the campaign. That will not take place in this area.
Perhaps I may finally stress that permissible donations for accredited campaigns will also follow the same rules as others. They will be reported and controlled. If I may refer to Amendment 24, which we will discuss next, I see value in ensuring that the Electoral Commission in particular has access to the information necessary to assess the appropriateness of the spending and donation rules. We will be debating this in the next amendment. The question of how far in we pull the Electoral Commission is one to which the Government are live and sympathetic.
Before he sits down, I really need to have it from the Government’s mouth that the Minister’s fairly lengthy response is basically saying that the Government are relaxed about the possibility of one side in a two-horse race having vastly more expenditure than the other, and that they are not prepared to make any rules to prevent that happening. I just want to hear it from the Minister because this is a very serious point. If that is the Government’s position, it is his responsibility to the House to say it.
I understand that. It is a one-horse race, of course. The other does not have a horse at all, so to speak. The Government are not prepared to designate a single lead campaigner on either side. We are not persuaded that an overall limit is practical or measurable, but that is one of the things we will come to in Amendment 24. There are several issues in this, as I well understand, including the question of foreign non-permissible donations, which we will come to in Amendment 24.
My Lords, it is interesting that it was the Minister himself who mentioned the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill. Not everyone was here for that, but once charities go into a single campaign they have to take responsibility for the expenditure of others; they have to nominate a lead, and the expenditure of a small charity goes against the upper limit on what a big charity can spend. The Government were very happy to do that but somehow this is different.
This is really a nonsense. It is not about the MP having lots of people on their side. If it was a Labour person who had been kept out of the House for 10 days, the Conservatives, the Lib Dems, UKIP and the Greens would all be voting for a by-election. Each could spend £10,000 and the Minister is clearly content with that.
I am even more unhappy about the Minister’s complete acceptance that foreign money up to £500 can come in, not controlled in the way that we control donations —very sensibly and rightly—to the political process from those who have no skin in the game as far as our elections are concerned. We will have non-doms, tax evaders, anyone—all giving up to £500, and the Government are quite content with that. It is for that reason that I ask the Government to go through the Lobbies and vote for the continuation of this Bill, which will allow foreign money up to £500 to be given. I beg to test the opinion of the House so that people outside can see that that is what the Government are content with.
My Lords, Amendment 24, which is in my name and that of my noble friend Lady Hayter of Kentish Town, would ensure that all returns by campaigners are subject to being checked by the Electoral Commission. Our amendment deletes the phrase “on request” from paragraph 8 of Schedule 5 and thereby requires a petition officer to deliver a copy of all the recall petition returns they have received.
This is a small but significant amendment and will require the Electoral Commission to take a greater role in the process than it currently seems prepared to do. I understand why it appears reluctant to do more. We hope that recall will never have to be used but if it is, it will be infrequent. Therefore, we do not believe there will be an overburdening of the Electoral Commission with vast amounts of additional work. As a former member of the Electoral Commission, I am confident that it has both the staff and financial resources to undertake this work, which will be required extremely infrequently. As I said in Committee, the
Commission has recently looked at the returns and produced valuable advice, and I see no reason why it could do not it in this process as well.
At present there is no obligation on anybody to check the returns of campaigners. This is surely a ridiculous situation to be in. The petition officer has to record the receipt of returns but is not responsible for scrutiny of the financial dealings of campaigners. The returns of campaigners need to be checked to ensure confidence in the process for many of the reasons that the noble Lord, Lord Wallace of Saltaire, mentioned in the previous discussion. I do not think many noble Lords will disagree with that and the Electoral Commission should be the organisation to do it, as it has the financial and staffing capacity and the expertise to do the work. I beg to move.
My Lords, the Government are keen to encourage participation in recall petitions, but in allowing this freedom of participation it is vital that the rules governing campaigning are appropriate and are complied with. In what will, we hope—as the noble Lord, Lord Kennedy, suggested—be the very rare event of a recall petition being initiated, spending and donation returns will be subject to high levels of scrutiny. This is made possible by the transparency that the Bill affords. Recall petition returns are to be made publicly available for a period of two years. Any member of the public can review these and report any evidence of wrongdoing to the police, who will investigate the matter. If it is thought that there is substance to the allegations, the police can refer the matter to the CPS, who may launch a prosecution.
A person could also lodge a petition with the electoral court if they thought that the alleged breach of electoral law had affected the outcome of the petition. As the Bill stands, the Electoral Commission is also able to produce a report on a recall petition. This report would look at the administration of the campaign, how the rules on spending and donations actually worked and whether the limits set in the Bill are appropriate. The decision to produce this report lies with the Electoral Commission. The Government consider that providing the Electoral Commission with this reporting power is vital to ensuring confidence in the process and outcome of a recall petition.
To support this, the commission has been given the power to request recall petition returns from the petition officer. This amendment, which would require petition officers automatically to forward recall petition returns to the Electoral Commission, could further add confidence in the approach to regulation taken for recall petitions. So the Government recognise the merits behind this amendment and will consider this issue further before Third Reading. At this point, and with that assurance, I hope that the noble Lord will be willing to withdraw his amendment.
I thank the noble Lord for that. I am very pleased with the response of noble Lords and, on that basis, I am very happy to withdraw the amendment. I look forward to having a discussion between now and Third Reading.
Amendment 24 withdrawn.
Clause 21: Regulations
Moved by Lord Gardiner of Kimble
25: Clause 21, page 14, line 27, leave out “(including this Act)”
My Lords, the proposed amendment would alter Clause 21 to remove the power for the Act to be amended through regulations relating to the conduct of the recall petition process. Noble Lords will recall that this recommendation was made by the Delegated Powers and Regulatory Reform Committee in its report on the Bill, and an amendment to that effect was tabled by the noble Baroness, Lady Hayter, in Committee.
The power to amend the Act relates only to making regulations about the conduct of the recall petition process. It was originally included to allow for changes in other areas of electoral legislation, in particular the introduction of individual electoral registration. Now that such reforms have been made, we do not believe such a power is justified in this case.
The Government have since responded to the report of the Delegated Powers and Regulatory Reform Committee, agreeing that such powers should be taken with care and that, in this instance, the power is no longer necessary. The Government have therefore tabled this amendment to remove the power to amend the Act through conduct regulations. I beg to move.
My Lords, Amendment 25 removes the words “including this Act” from the Bill. The Delegated Powers and Regulatory Reform Committee thought that these words would permit the infiltration of substantial and significant provisions into the Bill, and we agree. This is the amendment that my noble friend Lady Hayter moved in Committee, and I am delighted that the Government have listened to the Delegated Powers and Regulatory Reform Committee and the Opposition in this respect. We agree with them that this was a step too far. I support the amendment.
Amendment 25 agreed.
Moved by Lord Norton of Louth
26: After Clause 24, insert the following new Clause—
(1) The Prime Minister must make arrangements—
(a) for a committee to carry out a review of the operation of this Act and, if appropriate in consequence of its findings, to make recommendations for the repeal or amendment of this Act, and
(b) for the publication of the committee’s findings and recommendations (if any).
(3) Arrangements under this section are to be made at least five years after the day on which this Act is passed and no later than six years after the day on which this Act is passed.”
My Lords, this amendment provides for a review of the Act five to six years after enactment. It follows debate in Committee when the noble Lord, Lord Soley, proposed a sunset clause, but raised as an alternative a review of the Act. I favour review. Debate on the Bill has demonstrated uncertainty about its effect. Throughout today’s debate on Report, most of the discussion on amendments made the case for this review. There is a clear degree of lack of knowledge of what the effect will be. It has not been thought through. We are totally unclear about what impact the Bill will have.
To reiterate what I have said on a number of occasions, the purpose of the Bill is to restore, or at least to enhance, trust in politics, so let us see after the experience of a whole Parliament whether it has made any difference. It may be that no recall petitions are started in the period. That does not mean that an MP has not become eligible for a petition to be raised. Even if there have been no MPs who have acted in such a way as to trigger eligibility for a recall petition, it would still be useful to review the situation. If no MPs have acted in such a way as to render themselves liable, it would be useful to examine whether that is a result of the provisions of the Bill. Has it had a deterrent effect, or does it appear to have been irrelevant? If one or more MPs have been eligible for a recall petition, have petitions been raised and, if so, with what effect? If they have been eligible but no petitions have been raised, what does that tell us about the Bill?
There is clearly a case for review. It may be that there is not that much to review, but that in itself is important to know, and it is important to examine why that is the case. The Bill will be subject to post-legislative review anyway but, given the nature of the measure, a formal review is necessary, not least given the degree of uncertainty demonstrated by our deliberations on the Bill. I think it will be helpful for Parliament, but it should be especially for the benefit of electors. It is designed for their benefit. Has it had the desired effect?
The Minister will recognise the wording of the amendment. It is taken in large part from the Fixed-term Parliaments Act. Parliament accepted the case for review of that Act. I think there is an equally compelling case for a review of this measure. I beg to move.
My Lords, I am sympathetic to this: as the noble Lord said, it follows on from my sunset clause proposal. I would prefer the sunset clause—having given it some thought since that original debate—mainly because I am hopeful that this Bill will not be used at all; and therefore, with a sunset clause, it would just have fallen, nobody would have noticed and the House of Commons could have got on with being what it ought to be: a very respected place in the eyes of the country. This is another attempt at that sort of approach, and I understand it. My only anxiety is that it actually raises the issue again, because it would have to be debated. That is my only issue with it, but otherwise it is probably better to have this than nothing. I would have preferred a sunset clause.
My Lords, I agree that the sunset clause would have been preferable; but this could be helpful, although it may well be that there is insufficient experience after a period of five to six years to enable a satisfactory review. It might possibly have been preferable if the amendment had provided that, so long as the Act remained on the statute book, the Prime Minister had to arrange for a review to take place in the first year of each Parliament. I fear, however, that the amendment proposed by the noble Lord, Lord Norton of Louth, could be unhelpful in that it risks stirring up Zac Goldsmith and others who think as he does and want constituents to be able to launch the process of recall between elections simply because they dislike the politics or the personality of their Member of Parliament. That would be an immensely dangerous thing for representative government. I am rather surprised that the noble Lord, Lord Norton of Louth, should be giving his name to something that could prove so rabble-rousing. I am grateful to him none the less for putting forward this amendment.
My Lords, I rise briefly to support the sentiments expressed by my noble friend Lord Norton of Louth. I very much hope that the Minister will perhaps, in this short debate, explain to us how the Government think this legislation should be reviewed, given the many potential traps within it that have been outlined during the various stages of our debate. A little earlier, the noble Lord, Lord Grocott, tried to entice me and others to support his amendment on the basis that the Labour Back Benches agreed with the Labour Front Bench. I have never found the proposition of the Labour Back Benches agreeing with their Front Bench automatically to be an enticement to support the arguments that they have put forward. In relation to this Bill, I have noted that, on occasions when the Opposition Front Bench and the Government Front Bench are agreed on a piece of legislation, but across all parts of the House great reservations are expressed about how the legislation might actually work in practice, as opposed to in the theory of the party leaders—who perhaps in haste have agreed to introduce measures such as this—we should keep that legislation under proper review. We always talk about the need for more post-legislative scrutiny, and I would very much like to hear from the Minister how the Government think that might be undertaken in this case.
I would have preferred the amendment of my noble friend Lord Soley, but this one is eminently sensible. The idea of a review after six years appeals to me. I put in an early bid to be a member of the reviewing committee, so that I could have the great pleasure of pointing out that the whole operation really was a waste of time, and being able to employ my favourite phrase: “I told you so”.
My Lords, I am now trying to think what would tempt the noble Lord, Lord Rennard, to vote with us. It does not work when I say the same thing as our Back-Benchers; it does not work when I say the same as the Government. I am not sure that I am ever going to get him into our voting Lobby.
There may have been others when the noble Lord did.
As we said earlier, the idea of reviewing the Bill—in that case it was to see how it fitted with the cases taken to the electoral court—seems entirely sensible. It is a new part of our democratic structure and one that could impact both on how MPs see their role and how constituents view their ability to hold MPs to account. While the Act is new, we will need to see whether it achieves the aims set for it. We must also review whether, as we fear and as the House has heard, big money could enter the equation; or, failing that, whether local electors who participated in a recall feel empowered by it or cheated by it, or that it was not what they expected. Anyway, we think that all Bills should be subject to some post-legislative scrutiny to ensure that they solve whatever they were set up to meet, and we support a review once the process has been used.
What surprises me is that the noble Lords, Lord Norton and Lord Tyler, who is not in his place, should want a review in the hands of a committee with an in-built Commons majority. As my noble friend Lord Kennedy said just now, we foresee a bigger role for an independent organisation, the Electoral Commission, in reviewing the workings of the Act, should it ever be used. Therefore, I am particularly surprised that an eminent academic, the noble Lord, Lord Norton of Louth, does not want a more vigorous and independent look at the operation of the Act. I am equally surprised that the noble Lord, Lord Tyler, who in Committee argued for an independent trigger out of the hands of MPs, now wants a review conducted by a Committee with a majority of MPs. Sadly, he is not here to explain himself.
Can I please explain why my noble friend is not here? He has not been well of late, and he was advised that he should not stay late tonight.
I thank the noble Baroness for that. In return, I send our good wishes for his rapid return—not necessarily to voting, perhaps, as we never approve of the way in which he votes, but we like to hear his voice. He has our good wishes for a speedy recovery.
The principle of reviewing this new part of our democratic institution, which could be a significant part, is right. Therefore, I hope that the Minister will say something positive—although he never says anything positive to me—about the possibility of a proper review of this measure, once it has been put into use.
My Lords, the Government are fully persuaded of the merits of post-legislative scrutiny as a general principle. There are frequently valuable lessons to be learnt for the future, and the Government are always happy to listen to and consider recommendations arising from such reviews.
As noble Lords have said, the Government have included review clauses in several of their Acts this Parliament, including ones affecting constitutional or electoral matters. However, the Government have some reservations in this case. My noble friend’s amendment commits to a review after five years. That is a reasonable period in some respects, but it is of course by no means certain that there will have been a recall petition by that point. In fact, I think that the noble Lord, Lord Howarth, was getting very close to that. A review of an Act which has not had the opportunity to operate as intended would be severely limited in its usefulness. It would be unable to consider the operation of the recall process, and its conclusions would have to be to some extent hypothetical.
Recall does not have to be regularly used for the power to be a good addition to democracy. Indeed, as I have said before—and I hope noble Lords will understand my good intent—the Government fervently hope that no petition is triggered because Members’ conduct is of the highest standard expected. I am sure that noble Lords would not suggest that Parliament’s disciplinary powers should lapse simply because Members’ behaviour does not cause them to be used.
It is, of course, open to Parliament and to the Government of the day to review legislation on their own initiative, without a statutory requirement to do so. It would be entirely appropriate for a parliamentary committee to conduct its own post-legislative scrutiny at such a point as it felt that it would be useful to do so. I am sure that the Government of the day would be more than happy to reflect on any considerations that might be brought forward in that case.
I hope that we will not have a recall because the standards of Members of Parliament are very high, so will not need a review. The Government are not happy about my noble friend’s amendment and we ask him to withdraw it, because in this case we are not convinced that it would be of the use that we know he intends. If there has not been a trigger, it would not be the sort of valuable review that we would like were we to have reviews. I hope that he feels able to withdraw his amendment.
My Lords, I am grateful to all noble Lords who have spoken. The noble Lord, Lord Howarth, is clearly not familiar with my reputation. The noble Lord, Lord Grocott, may find himself rather busy in five to six years because this will probably coincide with the review of the Fixed-term Parliaments Act. I suspect he will be only too happy to volunteer to serve on that review as well and to reach similar conclusions on both. I may be able to allay the fears of the noble Lord, Lord Howarth, on the content of the amendment in terms of how the review would take place. This also relates to what my noble friend the Minister said. It stipulates a review but there will not necessarily be any action in the light of the committee’s investigation. It may find that it has had a deterrent effect and there is not too much to be done, which might be worth celebrating. It would not be in the scope of the amendment to cause more problems or give an opening to those who want to pursue a more radical measure. It would only be if the committee came up with recommendations for repeal or amendment of the Act as it stands. It does not necessarily open it up for everybody to come forward with alternatives.
I agree with the noble Baroness, Lady Hayter, that the underlying principle is the important point. The content of the amendment is not set in stone. I put it in its current form because the Government had already accepted it for the Fixed-term Parliaments Act and I thought this would make it a bit more difficult for them to say no to this. The arguments on both measures are identical. If you accept the arguments for the review of the Fixed-term Parliaments Act—which might be working wonderfully, so why do we need to review it?—those same arguments apply to this Bill. You either have some provision for both or neither. That was the reason I drafted it the way I did: to entice the Government in this direction rather than setting something in stone. I would be quite amenable, if it was felt appropriate, to coming back to this with a differently worded amendment to achieve review.
This will clearly be subject to post-legislative review by the relevant department after five or six years. It needed to be a wider review and be on record as more formal, as is the case with the Fixed-term Parliaments Act. I have made the case for it and I hope the Government might reflect on it, even at this late stage. It does not undermine the principle of the Bill; it just makes a sensible provision that we should look at these things in terms of how they work out. They may not be working as intended but that does not mean they have gone completely belly up—which is when we tend to do something about it—but they might merit modification. However, I do not intend to pursue it further at this late stage. I beg leave to withdraw the amendment.
Amendment 26 withdrawn.