Recall of MPs Bill

Angela Watkinson Excerpts

Monday 24th November 2014 Commons Chamber

[Greg Clark]

I am grateful for that intervention. It is now clearly on the record and Members can reflect on the view taken by the Committee.

Let us consider the body that would make the judgment about alleged misconduct. Election courts are convened to consider cases that question the outcome of an election, and they do not meet unless a petition has been brought. At the end of the hearings, the court determines whether the election was valid or void, which can take several months to a year. The court has no investigative capacity but hears views from relevant parties. Giving this new role to an election court would mark a significant departure from current practice, and as I said, it lacks the capacity to launch an investigatory process. Furthermore, no appeal is provided for in the new clauses; indeed, the election court is not currently subject to appeal but only to limited judicial review. That raises the question of whether the election court model is the right basis for the proposal. If it is, I suspect that a number of questions could usefully be asked when fleshing out the detail, including whether there should be an appeals mechanism.

My hon. Friend the Member for Cambridge proposes to set the number of petitioners necessary for the election court to consider an allegation of misconduct at 500. Of course, if it is alleged that a criminal offence has been committed it takes only one person to make a complaint and to have it investigated by the police. Arguably, if the complaint is valid, it should be taken forward regardless of the number of complainants. On the other hand, as a test of popular will the House will want to take a view on the right number of petitioners. The new clause increases to 15% the percentage of electors who need to sign the petition to trigger recall, which is higher than for the other conditions. However, 500 is a lower threshold for the initial trigger.

If there are to be such additional triggers in the Bill, the House must consider whether to set out the relationships, or hierarchy, between the different recall conditions. An election court could look at issues that could also be considered by the Committee on Standards, which operates on a trigger, or by the police as the gateway to a criminal conviction. If the defence was rehearsed before an election court, or if the court’s finding was considered prejudicial to an MP’s presumption of innocence, it may not be possible for them to have a fair trial. The fact that an MP had to answer allegations in an election court could prevent him or her from facing criminal prosecution for misconduct that amounts to a criminal offence.

Finally, let me turn to the issue of parliamentary privilege. New clause 3 includes a provision stating that section 9 of the Bill of Rights will not be affected. I understand that this is intended to ensure that privileged matters are not the subject of judgment by the electoral court. However, the use of the word “affecting” could be read in one of two contradictory ways by a court: either as a statement that privilege matters are excluded; or as an admission that the Bill overrides the Bill of Rights, and therefore impacts on privilege but only for these limited purposes, thereby inviting an election court to consider privileged issues as part of a case. If an exclusion is desired, it could benefit from clarification.

In conclusion, the Government were clear on Second Reading that we are open to ways to improve the Bill and we stand by that commitment. My intention has been to summarise and highlight some of the points the current drafting raises. It is right that the House votes in full knowledge of the technical and policy challenges that remain, as well as the principles behind the amendments. I look forward to hearing the views expressed during the remaining part of this debate.

[Dame Angela Watkinson (Hornchurch and Upminster) (Con)]

I support the principle of the Bill: to enable the recall of MPs between general elections if they are considered to have conducted themselves in a grossly unacceptable or inappropriate manner that has led either to a custodial sentence or a suspension from the House of Commons for a period of at least 21 sitting days. Sentences of more than 12 months already lead to automatic disqualification under section 1 of the Representation of the People Act 1981. A third trigger has been proposed, in new clause 2, for a petition signed by 500 people to present allegations of improper behaviour. Presumably, this would not relate to illegal conduct, which would have already led to arrest and charge. I urge caution, because I think this opens up a whole debate on the interpretation of the word “improper”, which will mean different things to different people. An MP’s prolonged absence from the House of Commons without good reason would not be a criminal offence, but it would leave constituents effectively unrepresented and might justify a recall petition on the grounds of wholly improper conduct.

I did not support proposals in Committee for recall by 5% of the electorate for any reason. I predict that “any reason” could comprise such a wide spectrum as to invite frivolous petitions and could include, for example, disapproval of an MP’s political or religious views on controversial subjects such as: a Member’s sexual orientation, entering a same-sex marriage, capital punishment, euthanasia, abortion, smoking, hunting, alcohol, drugs, gambling and local planning matters. We could all think of any number of reasons that would give rise to frequent vexatious recall attempts of MPs with views that are unpopular with certain sections of their electorate. Recall could be generated easily by well-funded pressure groups or individuals, with all the associated costs to the taxpayer.

I am also concerned that 500 constituents would form a very small percentage of the electorate. In a constituency of 85,000, 500 would be way below 1%. I have not done the exact calculation, but it would be somewhere between 0.5% and 1%. I am sure somebody is scribbling away already to give me the exact figure. That threshold is far too low, and for that reason I will not support new clause 2, new clause 5 or the related amendment 34. Every Member of this House will know that an accusation against one of our number reflects on each and every one of us, and on Parliament as a whole. The blame falls collectively and the media rejoice in referring to MPs as though all 650 of us are guilty of something of which one or a very small number stand accused. We need to guard against a “guilty until proven innocent” culture, where an MP may be destroyed reputationally and financially, and then, when cleared, finds that the damage is irreparable.

New clause 4 proposes an MP’s pledge. This has some merit, although I have always assumed that its contents were implied when an MP is sworn into this House. The pledge would reinforce that, although I do not take comfort, as the hon. Member for Foyle (Mark Durkan) does, that its contents would reassure the general public or help to deter vexatious accusations.

--- Later in debate ---

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. We are dealing with the new clauses and amendments. The hon. Lady’s comments might relate to some of the amendments, but she will want to bring her remarks back within the scope of the discussion.

[Dame Angela Watkinson]

Thank you, Mr Deputy Speaker.

To conclude, when he winds up the debate, I hope that the Minister will indicate that an induction course for new Members after the 2015 general election will be put in place.

[Chris Bryant]

I will restrict my comments to new clause 3, tabled by the hon. Member for Cambridge (Dr Huppert) and others.

In the first round of these debates a few weeks ago, I supported the amendments tabled by the hon. Member for Richmond Park (Zac Goldsmith) because I wanted a fuller system of recall that gave voters the opportunity to decide when a recall should be advanced, rather than keeping such decisions entirely within the House. At the time, I recognised the honest and honourable endeavour of the hon. Member for Cambridge and others in his party to find another way of opening up that gate, were the amendments tabled by the hon. Member for Richmond Park to fail.

I must say, however, that I have profound misgivings about the new clause. First, many of the terms are imprecise. I heard the hon. Gentleman say that they were all common- law terms. That is true, but we are putting common-law terms in statute law, and quite often that leads to a difficult situation for courts and judges to provide decisions around. It gets much more complicated in that kind of environment, because they are looking for a steer—what did Parliament really intend by putting a common-law term into statute law?

For instance, new clause 3(5) sets out the condition that

“the court considers, on the basis of such evidence, that the allegation of misconduct is—

(a) not supported by the evidence”.

I think that is a fairly readily understandable concept; however, subsection (5) continues:

“or…trivial or vexatious in nature”.

I would suggest that they are two different categories and have generally been treated differently in common-law decision making. Yes, there is case law that relates to that—sometimes the court has said to the Crown Prosecution Service, “I’m sorry, this should not be considered because it is inadequately serious.” However, it is difficult to import that into this kind of decision.

Then we have the phrase

“brought for party political purposes”.

I cannot conceive of a political argument that I have not advanced for a party political purpose. Maybe that makes me immensely partisan—[Interruption]—although I think that every Member who just said, “You said it,” or, “Hear, hear,” was being partisan in the very way they advanced that argument, or at least one could argue that. That is my central point: anybody could argue that any argument was being made for a party political or not for a party political purpose. Guessing what was in the minds of the 500 people who brought the case—500 minds, incidentally, that the court would have to consider in deciding whether something had been done for party political purposes, not one mind—makes a bit of a mockery of that phrase.

There is also a problem with what, precisely, it is that the court is deciding that the Member would have done. New clause 3(4) says:

“The court must consider whether, on the basis of such evidence, it is reasonable to believe that the MP has misconducted”—

I do not like that word for a start, which seems remarkably American in tone—

“himself or herself, to such a degree as to amount to an abuse of the public’s trust in the MP, without reasonable excuse or justification.”

It seems to me that it would be almost impossible ever to adjudicate on such a term. How does one know that the misconduct is of such a degree that the public’s trust in the MP could or should be abandoned? We might be able to determine whether it had been, but I cannot see how a court could determine that the misconduct was of such a degree that the public should have lost their trust in the Member of Parliament, even if they might not have done so, other than the 500 people before the court. And what is this “reasonable excuse”? The concept of “reasonable” is well used in the courts, but what about reasonable excuse? Normally, the reasons for appeal are presented in statute law; in this case it is just a “reasonable excuse,” and we cannot possibly arrive at a decision about what that might be.