Recall of MPs Bill

Jacob Rees-Mogg Excerpts

Monday 24th November 2014 Commons Chamber

[Jacob Rees-Mogg (North East Somerset) (Con)]

New clause 3(7) reads:

“Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.”

However, if the House of Commons were to introduce a new code of conduct and that were to be interpreted by—effectively—an election court, would it not risk contravening the Bill of Rights?

[Dr Huppert]

As ever, the hon. Gentleman makes a very interesting point, but the new clause does not suggest changes to the code of conduct or making it subject to court proceedings, so his point does not apply to this new clause.

I think that new clause 2 has been substantially improved to address the criticisms levelled in Committee —we can have the discussion about the code of conduct at another appropriate time. Furthermore, as I said earlier, it is not a unique proposal. The state of Minnesota has a similar scheme under which 25 petitioners submit a proposed recall petition stating the grounds for the recall, whether it be malfeasance, non-feasance or serious crime; and a public hearing is held by a judge within 21 days who then reports to the Supreme Court on the test of

“whether the persons proposing the petition have shown by a preponderance of the evidence that the factual allegations supporting the petition are true; and…if so, whether the persons proposing the petition have shown that the facts found to be true are sufficient grounds for issuing a recall petition.”

This then leads to the recall petition, in which case the system requires the signatures of voters equalling 25% of the most recent turnout, which is roughly the same as the 15% we are proposing. This system exists, therefore, and it seems to work, as shown by its operation since it was introduced in 1996.

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If we are serious about the principle of recall, it has to be something that goes back to the constituents. Whatever the issues about decisions that might be taken by bodies within this House in relation to standards or breaches—I know that there are proposals in some of the other new clauses and amendments but I will not speak to them now—I still believe that the public will treat the idea of recall as serious when recall is in their ownership and can be at their initiative. I understand, however, that hon. Members feel that if we leave it just to the public initiative, it will be abused. They feel that there will be no bottom line, no standards and no protection. I believe that the idea of the pledge provides that sort of protection. It is the clear reference or standard point to which the public can look and hold MPs to account, and it is also the defence line for MPs.

[Jacob Rees-Mogg]

I agree that it would be better for the decision to be made by the electorate—by the court—but is not the problem with the pledge being determined by the court that the pledge is fundamentally political rather than legal?

[Mark Durkan]

I accept the hon. Gentleman’s point, but it can be legal up to a point; there could be some matters on which a clear-cut judgment could be made. I have chosen to offer the route through the court simply because it seemed to me that there was a will or a mood in Committee saying, “Well, if we’re going to allow any element of public petition to recall, then going to an election court could be the way that could be done.” I have simply taken that point and offered this new clause to try to test Members on whether they will follow through on the logic of the argument they made in Committee.

I do not commend the model in new clause 5 above all others. I still prefer the open rolling petition around a clear issue, but, again, I think that the open rolling petition should be on the basis of a pledge. I think the pledge as the basis for those petitions would create a much clearer standard for the public. It would also create a clearer standard for MPs, who would know, if they had committed to the pledge, whether they had abided by the code of conduct and could show whether they had upheld the standards of public life. That should not be too much to ask. MPs should not feel, “Oh, it’s hard to prove that we have upheld the standards of public life or lived up to the code of conduct.” It would send a very dangerous signal if Members felt that a pledge about the MPs code of conduct and the standards of public life would be difficult to uphold or could be abused in some untoward way. Then we would be seen to be trying to find ourselves some highly privileged protection where we decide that we always know best, even about the worst that we have done.

That is the simple point of new clause 5, which I do not intend to press to a Division. Its purpose is to ensure that if we are to improve the Bill, we take into account the absence from the Bill of a clear tool available to the public. Also, we need to make good the serious omission that we have all acknowledged—in circumstances where there is no serious job description for MPs, where is the bottom line? The new clause offers a bottom line.

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[Thomas Docherty]

With your indulgence, Mr Deputy Speaker, may I just clarify the point for the hon. Gentleman? Members of the two Houses of Congress, and the President and vice-president of the United States, are not subject to the recall provisions. Those apply only at state level, because the courts have ruled that there is no constitutional provision in the United States at federal level for the recall petition. So, ironically, the one group of US citizens who are exempt are those in Congress; many who observe their proceedings might wonder from time to time whether they should be recalled.

Amendment 16, our third substantive amendment, deals with the quirk that under the Bill as it stands only offences committed after the date of Royal Assent are covered. We have previously highlighted our belief that this should apply to all new convictions, regardless of when the offence was committed. I do not intend to rehash previous examples, but where an offence comes to light only after a Member of Parliament is elected, surely it would be wrong to deny his or her constituents justice. Of course this should not apply where a conviction occurred before a Member was elected, because it is a reasonable assumption that the electorate have already taken that into account when choosing to vote for them, and there is precedent within the UK for that. However, how can a constituent know about an offence where no conviction has occurred? We hope that the Government will accept those arguments.

[Jacob Rees-Mogg]

I am sympathetic to most of the hon. Gentleman’s amendments, but I do have a query about this one. Is it not, as a general principle, unfair to apply a punishment to people that they did not know might be a punishment at the point at which they did the wrongdoing?

[Thomas Docherty]

I am grateful to the hon. Gentleman for his argument, but of course that person was not a Member of Parliament when they committed the offence, so would not expect to be denied something going forward. Let me take his argument and reverse it. This place abolished capital punishment some 40-odd years ago. If somebody were today convicted of a crime that previously had capital punishment as a tariff, we would not retrospectively apply a punishment that no longer exists.

[Jacob Rees-Mogg]

I thank the hon. Gentleman for being so generous in allowing interventions, but his argument also applies the other way around. If somebody were found guilty of an offence committed 40 years ago, for which the punishment was a maximum fine of 2 shillings and 6 pence, they could still only be fined that amount. It is a very important legal principle that the penalty may not be increased, but it may be reduced.

[Thomas Docherty]

I suspect the hon. Gentleman needs no reminding that this Bill is about providing rights to our constituents. I am talking about a right to recall where serious wrongdoing has occurred. Yet again, he tempts me to remind the House that, after being elected, my local Scottish National party MSP was found to have committed a string of domestic violence offences over a 30-year period. He was charged and convicted only after he became a Member of the Scottish Parliament, and there was no mechanism for recall, despite the fact that he had broken a frying pan over his step-daughter’s head. I believe the House will agree that it is absolutely right that, where offences have come to light and there is a new conviction, we provide justice to those constituents.

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[Chris Bryant]

Yes, and it is remarkably poorly used, for the simple reason that it is regularly taken to appeal—[Interruption.] If the hon. Gentleman wants to intervene again, I would be happy to give way to him, although I would probably be being generous with other people’s time rather than my own.

My argument is that these are imprecise terms. That is not a good way of legislating, not least because at the moment that a court decided that there had been misconduct such as that on which the hon. Gentleman wants it to decide and that none of the get-out clauses in new clause 3(5) applied, to all intents and purposes the court would have decided, in the public mind, that the Member of Parliament was guilty—end of story—and I cannot see how that would not affect whatever might happen in a subsequent recall.

I have one final problem with the drafting. I understand why the hon. Member for Cambridge has provided in subsection (7):

“Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.”

That appears because several Members have pointed out that there is a problem: if the Bill of Rights says that no proceeding in Parliament should be “impeached or questioned” in any court of law or any other place, it would be a bit rum for a court expressly to be told that it can go forward on the basis of whether or not an MP has “misconducted” themselves in a proceeding in Parliament. The new clause expressly says that one of the criteria that can be considered is “conduct”, whether it be as a Member of Parliament or not—completely and utterly irrelevantly.

I believe that there is a fundamental contradiction in the new clause. Under it, the court could decide that how somebody had spoken in Parliament or engaged in a proceeding in Parliament could be considered as relevant to a misconduct hearing. That would limit free speech, which we should guard jealously in this House, and, essentially, undo the Bill of Rights. It is a contradictory provision. For all those reasons, I could not support new clause 3, tabled by the hon. Member for Cambridge.

[Jacob Rees-Mogg]

I am in a good deal of agreement with the hon. Member for Rhondda (Chris Bryant). I came into this debate, most unusually, undecided as to how I was going to vote. No guidance was provided from the Whips about how I ought to vote, which I view as a great advance. It is to the great credit of my right hon. Friend the Member for Surrey Heath (Michael Gove) that he is not trying to tell people how to vote. It shows a considerable wisdom to return to the traditional practice of having free votes on constitutional matters. I hope that this will be continued by other parties and in other Parliaments. [Interruption.] The hon. Member for Rhondda says that I do anyway, and he is probably broadly right, but I think this should be encouraged across the House.

I was interested in new clauses 2 and 3. There is a need and desire to widen the ability for recall and to make it easier for constituents to remove Members of Parliament who they think have behaved improperly. The main thrust of the Bill is too narrow, which is a lost opportunity but not a fatal one because it can be developed in future Parliaments. Constitutional development often happens at a slow pace, which is not something I am against. I think we want constitutional reform to take place at a pace with which people are broadly comfortable and that carries the nation with it.

New clauses 2 and 3, however, fundamentally misfire. Instead of making this something that will be decided by the electorate, the provisions introduce a third party—the courts—to try to determine what the hon. Member for Rhondda rightly pointed out are fundamentally political issues. The restrictions to which he referred, particularly the third example where the misconduct case is “brought for party political” reasons, are a complete negation of what is being tried to be achieved. Any complaint must be brought for party political reasons, and any attempt to unseat a Member of Parliament is going to be carried out by somebody who has a party political affiliation of some kind, and it will be to the benefit of a political party to remove a Member of Parliament from another party. Even if the petition and process were started by some wonderfully high-minded figure, of which I am glad to say we have a very large number in North East Somerset, politicians would get involved in it because they would see the advantage, particularly if the Government had only a small majority, of removing a Member of Parliament or indeed of causing such inconvenience that would make it almost impossible for that Member of Parliament to continue in office.

Another issue involved is the legal costs. Are we to provide a fund to help Members of Parliament defend themselves in these circumstances, or do we find that the Member of Parliament could be bankrupted by the very process—to see whether he had committed misconduct in public office—and thus removed from Parliament anyway, even though the misconduct in public office could not, in the event, be proved?

We in this House have always sought to keep the courts out of our own proceedings. There seem to me to be two valid sets of people who can intervene in our proceedings: the general public who send us here, and who have an absolute right not to send us here but to send other people in our place; and our own systems, procedures and Committees, which are able to regulate internal goings-on in the House—a right that we declared long before we achieved it in the Bill of Rights.

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[Jacob Rees-Mogg]

I am grateful to the hon. Gentleman for his comment, but I am still discussing new clauses 2 and 3. I have not yet moved on to his amendments, towards many of which I am very sympathetic. What concerns me about the new clauses is that they would allow the courts to rule on what was going on in the House. It is very important to prevent that from happening, both from our point of view and from the point of view of the courts. The courts are rightly reluctant to rule on what they believe to be fundamentally political decisions, and it seems to me that new clauses 2 and 3 would give them authority in regard to fundamentally political decisions, such as whether someone’s standard had been that of a decent Member of Parliament who had committed no offence.

[Chris Bryant]

The hon. Gentleman may be interested to know that so reluctant are the courts—and rightly so—to judge on any proceedings in Parliament that when the court was considering whether Rebekah Brooks had ever paid a police officer for information, it was not allowed even to consider the fact that when asked on 11 March 2003, during a proceeding in Parliament, whether she had paid a police officer, she had said “Yes.”

[Jacob Rees-Mogg]

I happen to think that that is absolutely right, both from our point of view and from the point of view of the courts. It is important that our proceedings allow people to be honest and to speak freely without incriminating themselves, and that must be a protection that we seek to maintain. I think that if we undermine it by bringing the courts into the details of the behaviour of Members of Parliament, we will fail. I would go in the opposite direction. Like my hon. Friend the Member for Richmond Park (Zac Goldsmith), I would go the whole way and leave it to the British electorate. I would place my trust in them, and let them get on with it. But the worst of all solutions—worse even than a Committee of chums somewhere upstairs deciding that we have all behaved beautifully—is to involve the court system.

I also cannot agree with the hon. Member for Foyle (Mark Durkan), which is rare, because I often do agree with him. He has proposed a “pledge” in new clause 4. I do not like the pledge. I think that it reads as a sort of bureaucratic announcement that we are all going to do good things, in that awful “speak” that is so common in conferences, about how you should be a leader and grab hold of your management skills, and all that waffle.

I do not like that at all. It does not accord with my vision of myself as a Member of Parliament. I think that Members of Parliament are here at the service of their constituents, and that their constituents will judge whether they are doing their job properly, rather than someone’s saying that they have not shown leadership. What on earth does “showing leadership” mean? If you are the Prime Minister it is easy, but what is a Back-Bench MP meant to do? [Interruption.] The Prime Minister always shows wonderful, clear, decisive leadership. The hon. Member for Dunfermline and West Fife (Thomas Docherty) is cackling from his Front Bench. Many people think it is a pity that he did not show leadership by trying to become leader of the Scottish socialists, which would have been very welcome.

[Chris Bryant]

Or even the Scottish Labour party.

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[Jacob Rees-Mogg]

Or even the Scottish Labour party, which is much the same thing.

I do not think this presents the right image of what a Member of Parliament is trying to be. A Member of Parliament is not trying to be some sort of second-tier bureaucrat. A Member of Parliament is someone who is there to represent his or her constituents, to take a view on the interests of the nation, both nationally and internationally, to stand up and be counted on the basis of what he or she says or does, and then to be held to account by the electorate, rather than making some waffly pledge.

I also think that in trying to get away from the oath we already take, it fundamentally misunderstands the purpose of the oath. The purpose of the oath is not to show we do not want to change the laws, and it is not to show even that we are necessarily monarchists—although, for the avoidance of doubt, I certainly am—but it is to show that we accept the norms and standards of the country as they currently exist and are willing to use those to change the law through Parliament, and subscribing to that is an indication that a Member of Parliament will behave properly in seeking change, rather than do it in a demagogic or potentially violent fashion. Therefore the oath as a statement of loyalty to the nation via the sovereign is a very important statement and does not preclude people from holding republican views. It merely requires them to express them and act upon them in a parliamentary and legal fashion. I think that is an important distinction and it is why I would oppose new clause 4 and it follows that I would oppose new clause 5. I also think, as I said in an intervention on the hon. Member for Foyle, that the two did not go together—that trying to give it to the people and then giving it to a court did not work.

I want to finish very briefly on the amendments from the hon. Member for Dunfermline and West Fife. By and large I think they are extremely well considered. I believe that the right of recall should be as wide as it can possibly be made. I would like it to be more generous, and therefore reducing the threshold is sensible. It is obviously sensible, in the atmosphere over the last few years and considering the sensitivity of expenses, to say that somebody who has committed an offence in claiming their expenses ought to face the risk of recall. That ought to be a basis of it because it shows that somebody in this House has behaved badly in their basic terms of membership of this House, so I completely support that, but I cannot support the final amendment on retrospection. I think this is unjust. I see the reasons for it and the case the hon. Gentleman made about the Member of the Scottish Parliament who had committed many serious crimes, but it indicates a problem with the establishment of the Scottish Parliament that it could not do anything about that.

I also accept that somebody at, let us say, 30 who goes out and robs a bank is not thinking, “Good heavens, if I get into the House of Commons in five years’ time, I may lose my membership because that may be part of the penalty.” I am sure they are thinking more immediately about the risk of a police officer being there and catching them in the act and hauling them off to chokey, but none the less it is unfair to penalise people in a way they did not know could apply to them before they committed the offence, and if this House does not stand up pedantically for the rule of law, nobody will.

[Thomas Docherty]

rose—

[Jacob Rees-Mogg]

Does the hon. Gentleman wish to say something? He is wavering about whether to intervene. I may be persuading him; he may wish to withdraw his amendment on the strength of what I am saying.

There is a further protection, which has been overlooked throughout this whole debate on the issue of recall, and that is that if the behaviour is so egregious—so shocking to all good common sense—then this House of Commons has the right to expel that Member anyway. We should not forget that, or allow it to wither on the vine.

[Thomas Docherty]

Given that this Act will, assuming it clears the Lords, come into force at the start of the next Parliament, does the hon. Gentleman not recognise that anyone who chooses to stand for election at the general election on 7 May would know that, if they had committed an offence for which they were then prosecuted and found guilty, they would be subject to recall?

[Jacob Rees-Mogg]

The hon. Gentleman puts as good a gloss on it as he can, but I do not think it changes the fundamental principle. We could equally say that a Member of Parliament who had committed an offence should be subject to double the time in prison, regardless of when the offence was committed. That would be fundamentally unjust. If we were to say that from tomorrow Members of Parliament who commit an offence should have double the time in prison, that would not be unjust. That would be simply saying that Members of Parliament should be held to a higher standard, and that is perfectly arguable, but to say for an offence committed previously that the punishment can be increased is to act against justice and that is something it is important not to do.

[Dr Huppert]

That is exactly what happened with police and crime commissioners in legislation for which I presume the hon. Gentleman voted. If they have ever been convicted of an imprisonable offence, they are debarred from the office.

[Jacob Rees-Mogg]

I think the PCCs are rather an irrelevance to what we are discussing and I want to remain in order. I believe it is important to be pedantic about upholding the rule of law, and therefore I will oppose that amendment from the hon. Member for Dunfermline and West Fife. I will support his other ones, but I must reject the proposal that we bring the courts—

[Lady Hermon]

May I put a proposition to the hon. Gentleman which is a possibility? On 17 July Lady Justice Hallett’s report was published and a statement was made by the Secretary of State for Northern Ireland. In that report, it was identified that 14 terrorists of the republican movement had been granted the royal prerogative of mercy. They are unnamed, but it is believed they might include senior politicians representing Sinn Fein. If the names of those 14 recipients of the RPM whom we know to be republican terrorists were to be revealed and included a Member of this House, would the hon. Gentleman think differently?

[Jacob Rees-Mogg]

I always give way to the hon. Lady and she always then serves up the most impossible and difficult interventions. I think she is the Michael Holding of interventions, with these very fast balls being bowled at me. My stumps have disappeared behind me, but what I would say is that I would apply exactly the same rules to those people as to anybody else.

[Thomas Docherty]

If someone commits an offence currently for which the sentence tariff is less than one year, it is quite reasonable that in future the House of Commons may change the disqualification Act to bring that disqualification down to less than one year. That would equally apply to them. Why does the hon. Gentleman not think that this House has the right to recall somebody who has committed offences prior to this date?

[Jacob Rees-Mogg]

I am not sure the hon. Gentleman is right about that because, interestingly, the ability to expel peers very carefully ensured it was not retrospective to the crime or to the sentence. It was right to adopt the principle that it is fundamentally unjust to punish people when they did not know that was the punishment at the time when they committed the offence, so I must oppose his amendment.

[Conor Burns (Bournemouth West) (Con)]

My hon. Friend will see that sometimes when the courts come to sentence someone who is brought before them for an offence committed many years previously, they are obliged to look at the sentencing guidelines that applied at the time of the offence. The case he is making is absolutely right: we cannot have retrospective cases such as this.

[Jacob Rees-Mogg]

I entirely agree with my hon. Friend and we have seen this in some of the recent celebrity sex offending cases: people have been sentenced under the old rules. That is a good principle of law and this House ought to maintain good principles of law. That is why we should reject that amendment, and reject the amendments of my hon. Friend the Member for Cambridge (Dr Huppert), because they bring the courts into our proceedings, but I think we should accept the amendments of the hon. Member for Dunfermline and West Fife that allow more free-flowing recall, because ultimately we should trust the good sense of the British people, especially those in Somerset where most good sense is to be found.

[Michael Ellis]

As usual, it is a great honour to follow my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). May I start by agreeing very much with him about the issue of retrospective penalty? It is more than guidelines; it is a fundamental principle of the law of England and Wales that penalties do not apply retrospectively. I have prosecuted and, for that matter, defended cases in court which are often historical offences—this relates particularly to sexual offences, but it can relate to other types of offence as well—where the penalties have moved on and often been increased in the intervening years. The historical sex offence with which the individual defendant is charged carries a maximum that no longer applies, but the court is bound by the maximum sentence that was in place at the time of the offence.