Recall of MPs Bill — House of Lords, 2015-01-19
Topic: Mixed Topics
William John Lawrence Wallace (Liberal Democrats, Centre to centre-left): My Lords, Clause 18(1)(b), which Amendment 63 would remove from the Bill, allows for regulations to detail the process for questioning the outcome of the petition to be made. It does not say that Ministers shall decide but allows for regulations to detail the process. Amendment 67 would amend subsection (5) to make it a requirement for the judicial review process to be followed Judicial review, as noble Lords will be aware, is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. The process for challenging the result of an election requires an eligible person to lodge a petition with the relevant election court The role of the election court is to establish whether procedural irregularities have occurred, whether an election result should be declared void, and whether any individual or individuals are guilty of offences in relation to the election. As the grounds for challenging the result of a recall petition are also likely to concern irregularities of a type that an election court will be familiar with, this body may be the most appropriate to hear such challenges The method for questioning a petition will be set out in regulations, as is the case at other polls where legislation has been made in recent years—for example, European parliamentary elections. The Government do not anticipate the method varying substantially from the established process for challenging the outcome of elections and therefore we do not see a special need to specify the process in primary legislation The Government will need to consider the details of the regulations further, but our approach will need to have regard to achieving an appropriate degree of consistency with the established process. We would see it as very much being in line with that Amendment 64 on the power to create criminal offences would again affect Clause 18(2)(d). Clause 18 provides: "The Minister may by regulations … make further provision about the conduct of a recall petition". Subsection (2)(d) provides that such regulations may, "make provision creating a criminal offence" Such regulations are to be made by statutory instrument —subject, I say to the noble Lord, Lord Kennedy, to the affirmative resolution procedure In its report of 15 December, the Constitution Committee stated: "The House may wish to scrutinise why the Government consider it necessary to empower Ministers to create new election law offences by statutory instrument" The Government have not yet responded to the committee’s report but will do so as soon as possible. However, I say here that the power is in the Bill to enable Ministers to apply the existing electoral law on offences to the recall petition process, with suitable modifications. Again, this is a matter of adapting existing legislation, not extending or creating new offences In order to ensure the integrity of the recall petition process, a number of criminal offences will be required. However, the Government do not consider these to be new offences as they will mirror, with appropriate modifications, well established offences that apply at elections and referendums. The intention is to use the power only to replicate or apply criminal offences that already exist in relation to elections, adapted as necessary for the recall petition process. Examples of the kinds of offence that we anticipate are that it is an offence to impersonate another constituent and sign as them, known as "personation" at elections, as set out in Section 60 of the Representation of the People Act 1983; that it is illegal to tamper with signature sheets, which will be based on Section 65 of the 1983 Act; and that the details of the printer and promoter of petition campaign literature must be included on the literature itself or else an offence is committed, based on Section 110 of the same Act. The Government consider that it would be inappropriate to include in the Bill full details of all the criminal offences, as each offence will be attached to a breach of the detailed rules that will themselves be set out in regulations The noble Baroness has tabled Amendment 73, which would amend Clause 21(4) of the Bill to remove the power for regulations in relation to the conduct of the petition to be able to amend this Act itself. The Delegated Powers and Regulatory Reform Committee, in turn, questioned this. Again, the Government will respond to the committee’s report as soon as possible. Ahead of that, I will provide an answer to that point here. Clause 21(4) enables regulations relating to the conduct of the recall petition process to amend primary legislation, including the recall Bill when it is an Act. This power was included in the original draft Bill that was published for pre-legislative scrutiny in 2011 The power in question refers only to the conduct of the petition, as it relates solely to regulations made under Clause 18 and can be used only to make amendments that are consequential, supplementary or incidental to the regulations made under that power. It does not, for example, enable the amendment of the three triggers, or conditions, for initiating a recall petition in the first place. The power was originally included to allow for amendments to be made to the Act to allow for amendments made in other areas of electoral legislation, such as the introduction of individual electoral registration. Since the publication of the draft Bill, the legislation for individual electoral registration has now been put in place The Government are considering the committee’s recommendation on this point. As a general point, it is important that we take such powers with care, and only when it is reasonable to assume they will be needed. The Government will continue to consider the recommendation of the Delegated Powers and Regulatory Reform Committee and reflect on the views expressed in this House, and I am sure that we will return to this issue on Report. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.