Recall of MPs Bill

Lord Campbell-Savours Excerpts

Tuesday 10th February 2015 Lords Chamber

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.

[Lord Campbell-Savours (Lab)]

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.

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[Lord Lexden (Con)]

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 15 December. The Government’s response, received a few days ago, states that,

“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?

[Lord Campbell-Savours]

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?

[Lord Lexden]

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.

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[Lord Wallace of Saltaire]

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.

[Lord Campbell-Savours]

The report does not suggest that they should have a vote.

[Lord Wallace of Saltaire]

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.

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Moved by

[Lord Campbell-Savours]

4: Clause 1, page 2, line 4, leave out “10” and insert “20”

[Lord Campbell-Savours]

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”.—[Official Report, 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 of 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 for 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 27 October, as reported in col. 73. One could argue that the trigger provisions in the legislation should await reform of the committee.

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.

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[Lord Wallace of Saltaire]

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.

[Lord Campbell-Savours]

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.

[Lord Wallace of Saltaire]

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.

[Lord Campbell-Savours]

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.

[Lord Soley]

I again ask the Minister to think this through. The House of Commons has produced a report that has only just come to light and which affects the Bill now. The Government did not know about it until yesterday—

[Lord Campbell-Savours]

It was one o’clock this morning.

[Lord Soley]

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.

[Lord Campbell-Savours]

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.