David Heath
Main Page: David Heath (Liberal Democrat - Somerton and Frome)Department Debates - View all David Heath's debates with the Cabinet Office
(10 years ago)
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Mr David Heath (Somerton and Frome) (LD)
It is a pleasure to follow the hon. Members for Dunfermline and West Fife (Thomas Docherty) and for Richmond Park (Zac Goldsmith). I want to speak principally to the amendments in my name and those of other hon. Members on both sides of the House who have been kind enough to add theirs—amendments 42, 43 and 44 and new clauses 6 and 7—but first I want to welcome the Bill, which delivers on a manifesto commitment from at least three of the parties represented in the House. The other parties must forgive me as I do not know whether it was in their manifestos.
Mr Heath
The hon. Lady nods her head.
I am pleased that our commitment is finally being honoured. In government, I was frustrated at the time it took to get something before the House, and I think it is an open secret that I would have preferred it to have gone slightly further than the Bill before us, but nevertheless it is exactly in line with what those parties said they wanted and what they put to the people. I hope, therefore, that we can get away from this false dichotomy between a real recall Bill and a bogus recall Bill. This is not a bogus recall Bill, but it is one that could be strengthened, and that is exactly what we should be focusing on.
I think we might need to look at the constitution of the Standards Committee. As a former member of the old Standards and Privileges Committee, I think there is scope for changing the membership of the Standards Committee, although I would make one caveat about the voting rights of members. That point was covered in a Green Paper on privilege that I produced as Minister but which I do not think anybody read, apart from—possibly—the hon. Member for Dunfermline and West Fife. Either way, it was obviously minority reading, given that so many people since have commented from a position of sublime ignorance on the subject of privilege. Nevertheless, there are issues to consider and in principle I agree that we should reform the Committee.
We should not kid ourselves, however, that any Committee of the House will have the confidence of many members of the public. That is why I want a mechanism that provides the public with direct access to this process and which is not mediated by a custodial sentence or the decision of a Committee of the House. I am sorry but there is no way such a Committee could be seen as anything other than an old boys’ club. I winced slightly when I heard my constituency neighbour, the hon. Member for North East Somerset (Jacob Rees-Mogg), who is not in his place, refer to the capacity of the House to expel Members. This is not a gentlemen’s club. Can we please get away from the Victorian idea that we make the rules and deal with things? Our electorate has a right to be engaged in this process.
Kevin Barron (Rother Valley) (Lab)
Does the hon. Gentleman agree that the Standards Committee, whose lay members are denied a vote by the House, does nothing more than report to the Floor of the House? It is not a Committee that sits upstairs and comes to these decisions. The decision about whether somebody is guilty of misconduct—I have spent three years trying to find out exactly what that means—would be taken on an amendable report on the Floor of the House.
Mr Heath
The right hon. Gentleman is absolutely right, but that does not alter the fact that the public will not believe that any mechanism mediated by MPs, either in Committee or on the Floor of the House, is not going to protect MPs. I do not think it a fair criticism, but that prejudice is now impossible to remove, so let us accept it.
I want to find a new way to give the public access to the recall process. As was clear from the exchanges between the hon. Member for Richmond Park and the Labour spokesman, we are talking about behaviour that our constituents cannot accept, rather than views with which they disagree. As I think he knows, I have a lot of sympathy with much of what the hon. Member for Richmond Park is trying to do, and I accept his point about 20% being a difficult level to achieve—somebody would really have to incense their constituents—but I do not accept that 5% would be difficult to achieve for a well-funded campaign or even a political opponent who has lost an election and wants an immediate rerun. He blithely says, “Of course, all Members would probably have a petition process against them”, but that is not a satisfactory position for Members to be in. If someone wants to do radical things in the House and represents a socially conservative constituency, they will face problems of this kind. It does not take much to get 3,500 people to say they do not support gay marriage or some other policy on which we have legislated. I want to concentrate, therefore, on genuine misconduct.
Sir Edward Leigh
It could be the other way round—a social conservative could be attacked by more liberal constituents—but I agree with everything the hon. Gentleman has said. I presume he is in favour of the amendments from me and my right hon. Friend the Member for South East Cambridgeshire (Sir James Paice) providing that no process could be started based on votes cast or speeches made here. Is he in favour of what we are trying to do?
Mr Kevan Jones
Does the hon. Gentleman agree that the threat of recall would have an effect on MPs? In the United States, a lot of people who face a recall just resign. The hon. Member for Richmond Park (Zac Goldsmith) contended that the support of 50% plus one of voters would be required for a successful recall, but that is not the case; it would only require 50% plus one of those taking part in the referendum.
Richard Fuller
My hon. Friend just said that the threshold of 3,500 voters or 5% was low, and used the example of gay marriage as an issue on which a petition could easily be secured. Will he explain to the Committee how that would be so wrong for democracy? What would be so wrong for me, as the hon. Member for Bedford, to have to go back to my constituents under the threat of a potential recall because of something I had said in the House? I cannot understand what the problem with that would be.
Mr Heath
The hon. Gentleman might take a different view, but my personal view is that the general election process is where these things are decided, not on a single issue, but on the performance of the Member and the plurality of views that are expressed. To have a form of Athenian democracy in this country, where we have constant voting and constant re-election, does not seem to—[Interruption.] The hon. Member for Clacton (Douglas Carswell) is burbling from a sedentary position, but I do not think his party had anything about recall in its last manifesto, so perhaps he needs a further recall now, because if he votes for a recall provision this evening, he will be breaking his election pledge not to have one; I do not know.
Let us move on. I personally do not think that what the hon. Member for Bedford (Richard Fuller) described is in the interests of the sort of representative democracy that we have always enjoyed in this country. However, I do think—I feel this very strongly and have argued it passionately, both before the election and since—that we need to find a way of capturing those examples of misconduct that are not necessarily caught by the criminal law and might not attract the attention of the Standards Committee, or, even if they do, where the public do not accept that as a mechanism.
Geraint Davies
Does the hon. Gentleman accept that the constant threat of recall, particularly for those in marginal seats, might be intimidating and lead parliamentarians to champion popularity over principle, which would corrupt the democracy in which we live?
Mr Heath
I do think that is a recipe for “populism”—in the worst sense of the word—and that it is open to abuse. It is a naive view that it would not be abused by those with deep pockets and strongly held views. It would be, and I do not believe that is necessarily in the interests of parliamentary democracy as we understand it.
To return to misconduct, several Members have rightly said that it is difficult to define the misconduct that we are talking about, so I looked around for an objective test of whether somebody had behaved improperly. I found that in England there is such a test, which many Members will be familiar with. English and Welsh law has the common-law offence of misconduct in public office, which is often used against public officials—most commonly against police officers nowadays, but also against council officials or others in the public service, including occasionally civil servants. The offence is understood by the courts and has been in existence for a long time—since 1783: Rex v. Bembridge, if anyone wants to look up the start of the offence.
If it helps the Committee, I will give a simple definition. Actually, nothing is simple in this area, because it is open to interpretation, but the legal definition—the working definition for the moment—of the offence is where somebody
“wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder without reasonable excuse or justification”.
To an extent, therefore, it is a catch-all offence to deal with people who behave improperly. I felt that it might serve as an appropriate trigger for the public to have recourse to the system without having to go through the other mechanisms.
Zac Goldsmith
The right hon. Gentleman describes the offence as a catch-all, but the advice that I have had—I have sought advice on this—is that it is a catch-virtually-nothing-at-all. The Crown Prosecution Service has issued guidance saying that it should apply
“only where…the facts are so serious that the court’s sentencing powers would otherwise be inadequate”.
The House of Commons Library says:
“There are few prosecutions, suggesting that action is taken only when misconduct is particularly gross”.
And the courts have said:
“The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice”.
Is the right hon. Gentleman really adding anything at all to the Bill?
Mr Heath
Yes, I think I am, for two reasons. First, I do not accept what the hon. Gentleman has just said, because the offence is actually quite frequently used nowadays in the courts of England—we are talking about more than a dozen and towards 20 cases a year. In fact, there was one only last week, when a senior police officer was indicted for the offence. Secondly, the reason the offence is not used against Members of Parliament at the moment is, of course, the potential difficulties with the Bill of Rights—I need to move on to that, because that is one of the difficulties.
Lady Hermon (North Down) (Ind)
I am most grateful to the hon. Gentleman for allowing me to intervene. He will of course know that the Bill as drafted extends to Scotland, England, Wales and Northern Ireland, but his amendment extends only to England and Wales.
Lady Hermon
Oh, so it extends throughout the whole of the United Kingdom? It would be helpful if the hon. Gentleman could confirm that and give some examples.
Mr Davis
This is meant to be helpful. In the several cases of misconduct in public office that I have had to deal with, the charge has been used because, really, there was nothing else that would catch the offence that had been created by the public official. I am sympathetic to the hon. Gentleman’s argument; the problem is that there is very little in the way of proper precedent that tells us what the offence really means. It seems to me that that is a very bad basis for any law at all.
Mr Heath
It is difficult, and as the right hon. Gentleman probably knows, the common law offence of misconduct in public office has been subject to scrutiny over recent years. Indeed, the Law Commission is studying it right at this moment to see whether it could be put on to a statutory basis, which might provide a better definition. Curiously enough, however, one of the attractions of the offence for this purpose is its lack of definition, because all I am trying to do is define the things that fall short of fraud, assault and battery or whatever, but that nevertheless clearly constitute improper behaviour in the conduct of a Member of Parliament.
What I am seeking to do is put the matter in the hands of the public, not MPs, so that there is a third trigger in the process. I am trying to ensure an objective test, which is applied in two ways. First, misconduct in public office is a recognisable offence. Notwithstanding what the right hon. Member for Rother Valley (Kevin Barron) said, it is one that the English courts understand—I will come back to the problem with the other jurisdictions in a moment. Then, using a court that is understood—the election court, which is established under the Representation of the People Act 1983, which provides for two High Court judges in England and Wales, two judges of the High Court of Northern Ireland or two judges of the Court of Session in Scotland—the matter would be assessed.
That would put Members of Parliament in the same position as other public servants, which is an important signal in itself. Notwithstanding the need for protection under the Bill of Rights, I do not see why we as Members of Parliament should not be in a different position from other public servants in other respects. I have also drafted my amendments so as to automatically provide a filter for claims that are trivial, vexatious or clearly simply party political in nature, rather than genuine claims of misconduct.
What are the difficulties with my proposal? There are two really big drafting difficulties that I encountered in trying to put it together. I think I am reasonably adept at drafting parliamentary amendments, but I have to say that these were significant problems. One problem is exactly the point that the hon. Member for North Down (Lady Hermon) made. We are talking about English common law and there is not a directly comparable offence of any kind in Scotland. I looked in vain for a common law offence in Scotland, and the nearest I could find was breach of duty, which is not the same as the common law offence in England. That is why there has to be a slightly, I would say, circumlocutory approach—perhaps that is not the right expression, but it is certainly complex—in that the courts would be asked to adjudicate on the offence as though it were committed in England, irrespective of where it was committed by the Member. I accept that that is a difficulty, and I would like better constitutional lawyers than I am to have a look and find a more elegant way of achieving the same objective.
Chris Bryant
It seems to me that there is another problem. The Crown Prosecution Service says clearly in its guidance on misconduct in public office:
“The suspect must not only be a ‘public officer’”—
not as straightforward to define as it seems—but that
“the misconduct must also occur when acting in that capacity.”
When does an MP act in the capacity of an MP except when proceeding in Parliament, which is the one thing that the hon. Gentleman wants to preclude?
Mr Heath
That is another precise difficulty in the drafting that I foresaw. If the hon. Gentleman looked at my new clause—there are so many tabled in the name of the hon. Member for Richmond Park (Zac Goldsmith) that I cannot find it at the moment. [Interruption.] Yes, new clause 7, which states:
“The court may consider such conduct whether or not it is committed in England and Wales, and whether or not it is committed directly in carrying out the office of member of parliament.”
In other words, it deals with the Member of Parliament irrespective of that hazy definition of what the terms of contract of MPs are. I accept that this is a difficulty, however, and I do not want to pretend anything other than that these are difficult issues. I hope the Committee will accept that this is a genuine attempt to find a solution to a very difficult problem.
John McDonnell
I commend the hon. Gentleman for the struggle he has entered into. Let me provide him with this practical example that occurred in my constituency in the 1980s. Statements were made in this House that we considered to be of a racist nature, and we thought that they would have been prosecutable if they had been made outside this place. The individual, however, was covered by parliamentary privilege, so was not brought to book. He could only have been brought to book if there had been a right for the electorate to trigger a recall.
Mr Heath
That is the other major drafting difficulty. I do not believe it would be right for me to put something before the Committee that accidentally repealed the Bill of Rights. I think the Bill of Rights provides important protection to Members. My proposals skate on the very edge of what counts as parliamentary privilege and what does not. If the words had been uttered here, they would not be covered by the recall procedure, but I do not think they should be covered by that procedure rather than by having a general election. That is my answer.
What mechanism am I proposing? It is for 100 electors from the constituency—[Interruption.]
Mr Heath
Thank you, Mr Amess.
I am proposing that 100 constituents—I deliberately kept the number low—can petition and make a claim of misconduct to an electoral court. That election court will then receive submissions relating to that claim or petition and will receive any rebuttal from the Member of Parliament concerned. The court will be asked not to find guilt—that would provide the difficulty over the clash with the Bill of Rights—but rather to certify that a prima facie case of misconduct has been made. The recall process would be triggered and it would then be for the electorate to decide. The jury would be, as was said earlier, the electorate, and they would decide whether they felt that the case was sufficiently proven and that they would no longer be prepared to accept the individual as their Member of Parliament. The recall process would then proceed.
Is my new clause a perfectly formed amending provision? I do not believe it is because of the very serious drafting issues I have mentioned. If, however, the Committee’s view is that misconduct should be captured, but thought and speech should not be captured, my new clause provides a potential mechanism for doing so. I hope to hear from the two Front-Bench teams—to be fair to the hon. Member for Dunfermline and West Fife, I have partially heard it already—that they are prepared to take the provisions away, talk to people much more learned in the law than I could be as a layman, try to provide a workable mechanism and then lay the proposals before the House on Report. It is essential to crack this nut of public access to the system. That is what I want to achieve. I will support the Bill irrespective of whether it contains a further trigger, but I would very much like to see a mechanism that gives the general public access to something that is currently exclusively the preserve of this House if not through custodial sentencing.
Mr David Davis
Before he concludes, I would like the hon. Gentleman to address two issues that can be seen in the central turmoil of the debate. The first is the trigger of 100 people. That is not a large number to get together, raising the risk of continuous vexatious references. How would he overcome that problem? Secondly, when the outcome is a finding against the Member by the electoral court, is that a 10% test, as in the Government’s proposals, or a full referendum test as suggested in the proposals of my hon. Friend the Member for Richmond Park (Zac Goldsmith)?
Mr Heath
The first point is explicitly covered in new clause 7(6), which states:
“If the court considers, on the basis of such evidence, that the allegation of misconduct is—(a) not supported by the evidence; or (b) trivial or vexatious in nature; or (c) brought for party political purposes; then the court must dismiss the petition.”
That is the filter that prevents people from bringing vexatious charges time and time again. In extremis, of course, the courts have the power to award costs if they feel that the same allegations are being brought forward again and again inappropriately.
On the second point about the threshold, my proposal is that this should act as a further trigger to the Government’s proposed mechanism. I am perfectly open, however, to discussion over whether a better and more appropriate threshold could be applied—both in terms of the original complaint and of the petition process. I do not have strong opinions on this; I would like to talk to others and see if a consensus could be reached.
Kevin Barron
Would the decision of the election court be challengeable? In other words, if someone were found to have been involved in misconduct, could they appeal against it, bringing an element of fairness into the procedure?
Mr Heath
My new clause is constructed in such a way that there would not be an appeal process because the court would not find on matters of guilt. It would find only on the prima facie case in the same way as a magistrates court when it sends an offence for trial at a higher forum. The electorate of the constituency are the court of appeal as well as the court of indictment, which seems to me appropriate.
Zac Goldsmith
One of my points was half-addressed earlier when the hon. Gentleman suggested that one of his arguments against the notice of intent to recall, which we are proposing, is that it would be awkward and inconvenient for MPs to have this bubbling away. However, the same arguments apply even more so to the fact that only 100 people could get headlines in the local papers such as “Misconduct Charges brought upon MP”—even if the attempt was vexatious. There is more room for that sort of mischief in the hon. Gentleman’s proposals than there are in my amendments. However, I have a question for him about the “gross dereliction of duty” in his new clause 7. How is it possible to find an MP guilty of gross dereliction of duty when there is no job description? Would this apply to an MP who refused to come here to engage, debate and vote, as is the case with some parties?
Mr Heath
If a Member of Parliament is elected and fails to carry out even the basic duties of a Member of Parliament, that Member of Parliament will, in my subjective view, be guilty of a dereliction of duty. If the hon. Gentleman is referring to the number of Irish constituencies represented by Members who have not taken their seats, I think, judging by the electoral history, that a recall procedure would be unlikely to succeed in the long run, simply because people would elect those Members again in the full knowledge that they would not take their seats.
There was a famous Member of Parliament who decided to go and run a pub in Northern Ireland, and did not attend the House of Commons for a very long time. I think that he was eventually persuaded to do so by inducements offered by the then Government, who were rather short of voting power at the time. It may be that his constituents were perfectly content with that position, but I think that it should at least have been argued that he was failing in his duties to the electorate and to the House.
Thomas Docherty
I intervene merely to seek more information. Will the right hon. Gentleman tell us what the scale of the costs of the election court is likely to be, and who he expects to meet them?
Mr Heath
So many Members have now referred to me as a member of the Privy Council that I think I must have received that status by acclamation. Will someone please tell the Deputy Prime Minister that I obviously behave as though I were a member of that august club, although I am not?
I assure the hon. Member for Dunfermline and West Fife that the arrangements would be identical to those that currently govern election courts and election petitions. However, if someone were clearly initiating vexatious proceedings, as is the case with the present election courts, the court could, if it wished, award costs against the petitioner, and might well do so if it felt that the process was being abused.
I hope that I have answered all the questions that have been asked. I am sorry to have spoken at such great length, Mr Amess, but I have done so mainly in response to interventions, which seems to be par for the course this evening. Let me end by saying that I think that my new clause is objective, and that it fulfils some of what Members on both sides of the Committee want to achieve. I do not claim that the drafting is perfect and cannot be improved, but I hope that the new clause will begin a process of discussion which may reach a conclusion allowing for many of the things that the hon. Member for Richmond Park and some of his supporters want to see achieved without opening the door to what some people equally adamantly do not want to see achieved, which is Members of Parliament being in constant fear of recall on the basis that they have voted to the displeasure of someone very rich in their constituency.
Mr Kevan Jones
It is a pleasure to serve under your chairmanship, Mr Amess.
I support recall, as outlined in the Bill, for serious misdemeanours. Those of us who were in the House at the time of the expenses scandal knew that things had to change, and, as was pointed out by my hon. Friend the Member for Dunfermline and West Fife (Thomas Docherty), the proposal on which we are being called to vote today was in our manifesto.
I shall oppose the amendments tabled by the hon. Member for Richmond Park (Zac Goldsmith), and, although I know it is a dangerous thing to do, I shall support those tabled by the hon. Member for Gainsborough (Sir Edward Leigh). This must be the first and only time I have agreed with him about anything. I also want to say something about the attempt by the hon. Member for Somerton and Frome (Mr Heath) to find a middle way.
The Bill has been publicised as though it constituted a method of giving the electorate more of a say. It has been suggested that anyone who speaks against it does not trust the voters, and is somehow less of a politician because he or she is afraid to stand for election. It is a bit like being accused of being a witch. Well, each and every one of us has the guts to stand in every election, and to put our record before our voters. I have always said that the one thing that distinguishes all those who stand for election to Parliament or a local council, or for any other elected office, is that they have the courage of their convictions, the courage to stand before their peers and ask for their trust. We should recognise that, because it is an important principle.
I think that we may have given too much away to the unelected quango state and the like. We seem to have believed that if we fill organisations with independent people who have no political influence at all—I do not know whether they are born or develop—there will be better decisions. I am a great big believer in the importance of elected office. I think that it is something of which we should be proud, and for which we should argue forcefully as parliamentarians and other elected office holders.
The Bill is strange in that it has united UKIP with the far left in the belief that it somehow represents a radical way forward. I do not think that it does. I think that it is very dangerous. It does not empower voters, and it will undermine the democracy that we in this country take for granted.
The effects of the amendments tabled by the hon. Member for Richmond Park would be very simple. The amendments remove the notion that someone must be recalled on grounds of imprisonment or suspension, and allows the recall of Members for any reason. I think that this the first time I have ever heard a Member present the argument that his proposals will never actually be used. The hon. Gentleman said that it would be very difficult, and that the barriers were very high. Why put such a proposal on the statute book? Is it conning the electorate to give them something that is so difficult to achieve? Is the hon. Gentleman being dishonest with the people who he suggests will be empowered ?