Recall of MPs Bill

Julian Huppert Excerpts

Monday 24th November 2014 Commons Chamber

[Dr Julian Huppert (Cambridge) (LD)]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 3—Recall condition: consideration by election court—

‘(1) This section applies when a petition alleging conduct by an MP which constitutes misconduct in the office of member of parliament has been received by an election court as properly presented under section (The third recall condition: method of petitioning an election court).

(2) The court may consider such conduct wherever it is committed, and whether or not it is committed directly in carrying out the office of member of parliament.

(3) The court must examine evidence adduced of misconduct, and any evidence produced in rebuttal by the MP.

(4) The court must consider whether, on the basis of such evidence, it is reasonable to believe that the MP has misconducted 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.

(5) 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.

(6) If the decision of the court is that the alleged behaviour is such as to satisfy subsection (4), then it must notify The Speaker that it has so determined.

(7) Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.’

This new Clause establishes the process by which constituents’ allegations of improper behaviour by an MP may be considered and adjudged. It provides for fair and due process and seeks to avoid conflict with the provisions of the Bill of Rights.

New clause 4—MP’s pledge—

‘(1) Each MP shall at the start of each Parliament subscribe to the Pledge set out in this section.

(2) An MP subscribing to the Pledge may do so—

(a) in writing; or

(b) in person at the same time as taking the Oath required by the Parliamentary Oaths Act 1866.

(3) The Pledge shall be—

“I solemnly undertake that, in the course of my duties as a Member of Parliament and service to my constituency, I shall act in adherence with the Code of Conduct for Members of Parliament and uphold the standards of public life with selflessness, integrity, objectivity, accountability, openness, honesty and leadership.”’

New clause 5—Complaint of breach of MP’s pledge—

‘(1) This section applies when persons complain that an MP has acted in a way that represents a significant breach of the MP’s Pledge as set out in section (MP’s Pledge).

(2) A petition containing a complaint under subsection (1) may be presented to the electoral court if signed by at least five hundred persons on the electoral roll within the constituency of the MP named in the petition.

(3) The Secretary of State may by regulation prescribe—

(a) the form, content and process relating to the submission of such petitions; and

(b) the manner of constitution of an electoral court to adjudicate.

(4) The electoral court must examine evidence submitted of the alleged breach of the MP’s Pledge, and any evidence produced in rebuttal by the MP.

(5) The court must consider whether, on the balance of evidence, it is reasonable to believe that the MP has acted in a way that amounts to a significant breach of the MP’s Pledge, without reasonable excuse or justification.

(6) If the court finds in favour of the petitioners, then it must notify the Speaker, and the MP named in the petition, that it has so determined.

(7) Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.”’

Amendment 1, in clause 1, page 1, line 4, leave out “the first or second” and insert “a”.

This amendment provides for a further recall condition but is neutral if no such condition or conditions are agreed to.

Amendment 14, page 1, line 18, leave out subsection (4) and insert—

‘(4) The second recall condition is that, following on from a report from the Committee on Standards, the House of Commons order the suspension of the MP from the service of the House for a specified period of requisite length.

(4A) A specified period is of requisite length for the purposes of subsection (4) if—

(a) where the period is expressed as a number of sitting days, the period specified is of at least 10 sitting days, or

(b) in any other case, the period specified (however expressed) is a period of at least 14 days.’

Amendment 2, page 2, line 9, at end insert—

‘( ) A further recall condition (misconduct in the office of member of parliament) is that—

(a) an election court has considered a petition claiming that the MP has committed an act which constitutes misconduct in the office of member of parliament; and

(b) the court has determined, prima facie, that it is reasonable to believe such an act may have been committed; and

(c) the court has notified The Speaker of its decision under subsection (b).’

This amendment provides for a further recall condition.

Amendment 15, page 2, line 9, at end insert—

‘( ) A further recall condition (misconduct in public office) is that—

(a) the MP has, after becoming an MP, been convicted of the common law offence of misconduct in public office, and

(b) the appeal period expires without the conviction having been overturned on appeal.

Sections 2 to 4 contain more about this recall condition.’

This amendment provides for a further recall condition.

Amendment 24, page 2, line 9, at end insert—

‘( ) A further recall condition (section 10) is that—

(a) the MP has, after becoming an MP, been convicted of an offence under section 10 of the Parliamentary Standards Act 2009 (offence of providing false or misleading information for allowances claims);

(b) the appeal period expires without the conviction having been overturned on appeal.

Sections 2 to 4 contain more about this recall condition.’

This amendment provides for a further recall condition.

Amendment 34, page 2, line 9, at end insert—

‘( ) A further recall condition is that the MP has been adjudged by an election court (as set out in section (Complaint of breach of MP’s Pledge)) to have acted in a way that is contrary to the MP’s Pledge as set out in section (MP’s Pledge)’.

This amendment provides for a further recall condition.

Amendment 16, in clause 2, page 2, line 18, leave out “The reference in” and insert “In”.

This amendment and amendment 17 ensure that a recall petition may be triggered by an offence committed before the day Clause 1 comes into force where an MP is convicted of the offence on or after that day and after he or she last became an MP.

Amendment 25, page 2, line 18, leave out “(the first recall condition)” and insert

“and ( ) (the first and section 10 recall conditions)”.

This amendment ensures that the provision made in Clause 2 in relation to the first recall condition regarding offences committed before, and convictions on or after, the commencement of Clause 1 also applies to the section 10 recall condition.

Amendment 17, page 2, line 18, leave out from “to an offence” to the end of the subsection and insert—

‘(a) the reference to an offence includes an offence committed before the MP became an MP and an offence committed before the day on which section 1 comes into force, but

(b) the reference to an MP being convicted of an offence is only to an MP being convicted of an offence on or after that day.’

Amendment 26, page 2, line 21, at end insert—

‘( ) The reference in section 1(3) to an offence does not include an offence mentioned in section 1(5A).’

Amendment 27, in clause 3, page 2, line 43, leave out “(the first recall condition)” and insert “and (5A) (the first and section 10 recall conditions)”.

Amendment 28, page 3, line 3, leave out subsections (2) to (4) and insert—

‘( ) “Relevant appeal”, in relation to the first recall condition, means—

(a) an appeal that—

(i) is in respect of the conviction, sentence or order mentioned in section 1(3), and

(ii) is brought within the usual period, or

(b) an appeal that—

(i) is in respect of the determination of an appeal that was itself a relevant appeal, and

(ii) is brought within the usual period.

( ) “Relevant appeal”, in relation to the section 10 recall condition, means—

(a) an appeal that—

(i) is in respect of the conviction mentioned in section 1(5A) or of any sentence or order imposed in relation to that conviction, and

(ii) is brought within the usual period, or

(b) an appeal that—

(i) is in respect of the determination of an appeal that was itself a relevant appeal, and

(ii) is brought within the usual period.’

Amendment 29, in clause 4, page 3, line 34, after second “MP” insert—

‘(a) ‘.

Amendment 30, page 3, line 36, at end insert

‘, or

(b) is convicted of an offence mentioned in section 1( ) (relating to the section 10 recall condition) within the meaning of that provision (see section 2).’

Amendment 31, page 3, line 37, after “order”, insert “in relation to the conviction”.

Amendment 32, page 4, line 4, leave out paragraph (b) and insert—

‘(b) that—

(i) in a case within subsection (1)(a), the conviction, sentence or order has, or has not, been overturned on appeal;

(ii) in a case within subsection (1)(b), the conviction has, or has not, been overturned on appeal, and’.

Amendment 3, in clause 5, page 4, line 16, leave out “the first or second” and insert “a”.

This amendment provides for a further recall condition.

Amendment 18, page 4, line 16, leave out “or second” and insert “, second or section 10”.

This amendment is consequential to the agreement to the section 10 recall condition.

Amendment 19, page 4, line 43, after “first”, insert “or section 10”.

Amendment 4, in clause 9, page 6, line 36, after “10 per cent.”, insert

‘in a case in which either the first or second recall conditions have been met, and 15 per cent. in a case in which the misconduct in the office of member of parliament recall condition has been met’.

Amendment 5, page 6, line 38, after “10 per cent.”, insert

‘in a case in which either the first or second recall conditions have been met, and 15 per cent. in a case in which the misconduct in the office of member of parliament recall condition has been met’.

This amendment increases the support required for a valid misconduct in the office of member of parliament recall petition, following the steps proposed in New Clauses (method of petitioning an election court) and (consideration by election court), due to the “reasonable to believe” test to be used by the election court.

Amendment 20, in clause 13, page 9, line 10, at end insert—

‘( ) The fourth condition is that, in a case in which the section 10 recall condition was met in relation to the MP, the conviction in question is overturned on appeal.’

Amendment 6, page 9, line 10, at end insert—

‘( ) The fourth condition is that, in a case in which a misconduct recall condition was met in relation to the MP, the MP is subsequently charged with an offence, the penalty for which may be imprisonment or an order to be imprisoned or detained, for the conduct, or any part of the conduct, stated in the petition to the electoral court.’

This amendment seeks to reduce the risk of double jeopardy.

Amendment 21, page 9, line 13, leave out “three”.

Amendment 7, in clause 14, page 9, line 41, leave out “at least 10 per cent of the number of eligible registered electors” and insert—

‘(a) in a case in which either the first or second recall condition is met, at least 10 per cent. of the number of eligible electors; and

(b) in a case in which the [misconduct in the office of Member of Parliament] recall condition is met, at least 15 per cent. of the number of eligible electors.’

This amendment increases the support required for a valid (misconduct in the office of Member of Parliament) recall petition, following the steps proposed in New Clauses (method of petitioning an election court) and (consideration by election court), due to the “reasonable to believe” test to be used by the election court.

Amendment 8, in clause 22, page 14, line 29, at end insert—

‘“misconduct in the office of Member of Parliament” means conduct by an MP, whether or not it is committed directly in carrying out the office of member of parliament, which is misconduct to such a degree as to amount to an abuse of the public’s trust in the MP, without reasonable excuse or justification.’

This amendment establishes an offence of improper behaviour on the part of an MP, using the definition of the English common law offence “misconduct in public office” as its starting point.

Amendment 22, page 14, line 33, after ‘appeal”’, insert

‘, in relation to the first recall condition,’.

[Dr Huppert]

May I apologise to the House for the absence of my hon. Friend the Member for Somerton and Frome (Mr Heath)—not yet a right hon. Member, despite the praise that was heaped on him in Committee—who is currently acting as our trade envoy in Africa and is unable to be here? My apology is that Members will have to put up with me arguing the case, rather than him.

This is an important Bill. It delivers on the manifesto commitments of most of the parties in this House in some way or another. It means that it will be possible for MPs who are sent to prison to be recalled, no matter how long they are in prison, and that MPs who are suspended by this House for long enough may also be subject to recall.

However, the Bill has rightly been criticised for allowing MPs to mark their own homework, as it were. Unless there is a jail sentence—a threshold that was not mentioned in the manifesto commitments of any party in this House—it is ultimately us who will have to decide whether someone has behaved so badly that they should be subject to recall.

The hon. Member for Richmond Park (Zac Goldsmith) —it is good to see him in his place—proposed one solution to that problem in Committee, but many of us felt that it would have caused more problems than it solved. There was a concern that it might lead to trivial or vexatious complaints, or complaints based on political or policy differences, rather than complaints about genuine misconduct. There was extensive debate about that in Committee.

My hon. Friend the Member for Somerton and Frome and I proposed another route, by which a court would assess whether there were grounds reasonably to believe that an MP could have committed a common law offence of misconduct in public office. If there were, that would lead to the same recall process as the Government have described for those who are suspended or sentenced to jail. That amendment was tricky to write. We were clear in Committee that there were technical challenges in writing it. We therefore did not press it to a vote at that time.

We were encouraged by the cross-party support for our proposal. For example, the Opposition spokesman, the hon. Member for Liverpool, West Derby (Stephen Twigg), said that he was drawn to our ideas and that:

“In principle, giving the power to the people to bring a case against their MP before the election court is a good idea.”—[Official Report, 27 October 2014; Vol. 587, c. 134.]

The hon. Member for Dunfermline and West Fife (Thomas Docherty) said that our proposals

“have appeal because they enable a public trigger that is still based around wrongdoing.”—[Official Report, 27 October 2014; Vol. 587, c. 77.]

It is good to see both Opposition spokesmen here.

We also had support from the Government. The Minister of State, Cabinet Office, the right hon. Member for Tunbridge Wells (Greg Clark), said that he had

“a great deal of sympathy with the thinking behind the amendments”. —[Official Report, 27 October 2014; Vol. 587, c. 98.]

The Parliamentary Secretary, Cabinet Office, the hon. Member for East Surrey (Mr Gyimah), praised it as an “interesting idea” that should be returned to on Report. That is what we are doing now.

I had hoped that the Government would take over the work of doing the drafting and that we would now be looking at Government amendments that had all the benefit of parliamentary counsel’s detailed advice. Sadly, that is not the case. Indeed, it is striking that not a single Government amendment has been tabled for debate today—not even those of a technical nature to fix the errors that were highlighted in Committee.

[Richard Fuller (Bedford) (Con)]

My hon. Friend has managed to shower his proposal with praise from a number of people. May I demur from that and ask, at this time when the public rightly have a lot of frustration with the establishment—be it the political elite or other elites—what is the benefit of including the judicial elite in determining issues that should rightfully belong to the people?

[Dr Huppert]

I am wary of straying into the debate we had in Committee because there was a huge amount of discussion about that and the House reached a decision. It is about finding a balance and ensuring that we avoid trivial or vexatious cases, while capturing the power for the public. The other deficiency in the proposals by the hon. Member for Richmond Park was that it was a complex, multi-stage process—possibly too complex to be workable. I respect his views and those of many Members who supported him, but that amendment was defeated by the House and we are trying an alternative approach.

[Mr David Burrowes (Enfield, Southgate) (Con)]

The hon. Gentleman is speaking about extending the scope of recall. I declare an interest as a lawyer, but would not new clauses 2 and 3 be a charter particularly for lawyers, meaning that the system becomes unduly litigious? That will detract from the original intention of recall, which is to give real power to the people.

[Dr Huppert]

I am not a lawyer; I dropped out of studying law after my first year because my exams coincided with the general election, so I bow to the hon. Gentleman’s expertise in how litigious lawyers can be and how they will seek to make money out of whatever proposals there may be. I do not agree, however, that the new clauses will lead to a huge amount of litigation, so allow me to outline how I think they would work. If the hon. Gentleman has proposals for improving the Bill, I would be happy to hear them.

No Government amendment contains all the required measures, so my hon. Friend the Member for Somerton and Frome and I worked on the amendments and adjusted them in the light of criticisms from right hon. and hon. Members across the House. Although we do not have the Government’s seal of approval, we believe this is a workable approach that can, if necessary, be tweaked in another place, which has more specialist constitutional lawyers than this House. We feel that we should not simply hand the Bill over to the Lords unamended and say, “Try to sort the whole thing out”, without giving them a strong steer. Recall applies to Members of this House; the other place can consider the detail, but it should not be considering the principles.

Our proposed option would be in addition to triggers already in the Bill and would mean that 500 electors could sign a petition alleging misconduct by an MP. An election court would hear evidence of that misconduct and any rebuttal by the MP, and decide

“whether, on the basis of the evidence, it is reasonable to believe that the MP has misconducted 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.”

If the court upheld the allegation, that would act as another trigger for a recall petition in the same way as a suspension by the standards Committee of this House would do. However, because there would have been no proof of misconduct, only evidence of reasonable belief, we would require a slightly higher hurdle for the petition—15% rather than 10% of the electorate. That change is one of a number that we introduced, and we hope that the new clauses answer the criticisms that were made.

Let me highlight our other changes. The hon. Member for Liverpool, West Derby and the right hon. Member for Haltemprice and Howden (Mr Davis) both felt that 100 petitioners, as in the original proposal, was too low a number and too easy to achieve, so we increased that to 500. We are not keen to go higher because the court’s role in ruling out unsubstantiated trivial or vexatious cases is best before the complaint has built up a large head of steam. Otherwise, it rather obviates the point of the later petition phase, which needs 15% of the electorate. The provision also simplifies the rules on expenses. Five hundred is a substantial barrier to a small or trivial claim—one annoyed individual, for example—but not if there is a real sense among the public that an MP has done something wrong.

The hon. Members for North Down (Lady Hermon) and for Liverpool, West Derby pointed out one serious flaw in our previous drafting—my hon. Friend the Member for Somerton and Frome was explicit about this. We were trying to apply the common law offence of misconduct in public office to Members representing Scotland and Northern Ireland, where that common law offence does not apply. We sought to get around that by stipulating that courts would act as though the offence were in England and Wales, on the basis that the House is in England, but that was inelegant and we accept that it was flawed. We solved the problem by specifying in the Bill the definition to be used, which is taken from the Attorney-General’s advice on common law in England and Wales. We are therefore no longer asking a court to determine anything based on a jurisdiction that is not its own, and we can still benefit from existing case law for that wording.

[Mr Andrew Lansley (South Cambridgeshire) (Con)]

I am sure that my hon. Friend knows that the House, when in Committee, was sympathetic to the view that there should be a mechanism by which members of the public in a constituency are able to initiate a recall process, but it has to be one that we understand will work. Is the test, which the new clause intends to apply, analogous to the offence of misconduct in public office, or is it something less than that? If it is that, why will it not, if a court determines there is prima facie evidence, trigger a prosecution?

[Dr Huppert]

The wording is exactly the wording there would be for misconduct. First, that offence does not exist in Scotland or Northern Ireland. I will come on to that later with an example, but there are some issues. We would want Members to be equal, broadly speaking, regardless of where they have been elected from. The other issue is that although the offence of misconduct in public office is used quite regularly against police officers—there are a number of other cases—it has never actually been used against a Member of Parliament. There is a question of whether we trust the Crown Prosecution Service to be the deciding factor, particularly when there could be questions about how it would interact with various Members and Ministers.

[Mr Burrowes]

Drawing on the previous intervention and my point about litigation, does this not then become a shadow trial in a line to what perhaps should be a criminal trial in relation to the common law offence? That is the danger, because we are raising not only a civil but criminal liability that may become very protracted and not lead to the end result of a proper recall process.

[Dr Huppert]

We have put in provisions so that, in the event of criminal proceedings, they would take precedence and the recall process would be stayed while that was happening, so I think we have addressed that. As I will go on to say, there is a very similar model already in use in the US and that does not seem to have the same sorts of problems that the hon. Gentleman describes.

On other changes we have made, the hon. Members for Richmond Park (Zac Goldsmith) and for Liverpool, West Derby were concerned about a phrase we included relating to gross dereliction of duty as an MP perhaps being considered as misconduct in public office. They both highlighted the point that there is no definition of our duties as Members of this House. We accept that point and have removed it from the revised amendment. However, I think there is general agreement in the House that there should be some provision in the code of conduct to deal with that. The well-known case of the Member of Parliament who spent most of his time running a pub in Ireland is not one that I think any of us would consider acceptable or wish to see emulated. We should try to ensure that the code of conduct is updated so that, for example, an MP who chose not to attend the House for months or years on end with no good reason, could not continue in that way. Local councils have a rule that councillors have to attend a meeting within six months, with a provision for extensions when there is good reason, for example illness.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

The hon. Gentleman touches on non-attendance. Labour Members supported the House of Lords Reform Act 2014, which makes attendance compulsory at least once a Session. What does he say to those MPs from Northern Ireland who choose not to take their seats, but whose electorate understand fully that that is their principled position?

[Dr Huppert]

First, just because somebody can be recalled does not mean they would automatically be recalled. How to phrase that in the code would be an interesting question. Trying to have repeated recalls of those Members would be a somewhat futile and repetitive exercise, as it was with the case of Charles Bradlaugh, the Member for Northampton. He was elected three times as an atheist and refused to take a religious oath. The rules were eventually changed because it was made quite clear that his electorate wanted him. I think that, in the case of the Members the hon. Gentleman is referring to, there would have to be some sort of accommodation that there would not be recall elections for that process.

[Mark Durkan (Foyle) (SDLP)]

rose—

[Dr Huppert]

That may be addressed by the proposals from the hon. Member for Foyle (Mark Durkan), who I suspect is about to say that.

[Mark Durkan]

What would be the hon. Gentleman’s guarantee that nobody’s constituents in Northern Ireland would be prone to engage in a futile or repetitive exercise?

[Dr Huppert]

I would certainly give no guarantee of that kind. It is important to say that the proposals we are making at the moment do not deal with this issue. I am suggesting that the code of conduct should be updated. I am very happy to have a discussion on the details of that, but it is not germane in detail to this amendment—they are separate processes.

[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.

[Mr John Redwood (Wokingham) (Con)]

How does the hon. Gentleman answer the criticism that the whole point of recall is to give power to the people but that his system gives power to judges?

[Dr Huppert]

It still starts with 500 people and ends with 15% of the public making the decision. We have to strike a balance—we discussed this in Committee, and I do not want to give a blow-by-blow account of that very long debate—over whether there should be any constraints at all and whether there can be any trivial or vexatious cases. That is the difference.

In Minnesota, several cases have been deemed to be unreasonable. The two most recent cases involved State Representatives Ward and Radinovich, both of whom supported same-sex marriage against the wishes of their constituents, and in both cases, the court concluded that it did not constitute malfeasance, saying:

“Constituent disagreement with how their elected representative exercised discretion, through public statements made or votes taken, does not equate to malfeasance by the representative.”

That is surely a principle the House would want to stick to.

In 2001, the state attorney-general did not take steps to ensure that a ban on sodomy was not struck down—again there were complaints, but the court did not conclude that he had failed to do his job; and in 1999, Governor Jesse Ventura was accused of having done well out of his book by virtue of being governor, but again the court felt the accusation was unsubstantiated and struck it out.

[Thomas Docherty]

It has been brought to my attention that earlier today the hon. Gentleman published an article on Lib Dem Voice about his test stating:

“This test of “reasonable to believe” puts the burden clearly on the MP to disprove beyond doubt the allegations against him or her in the first instance.”

Now, he takes a clear and principled stance on terrorism legislation, so some of us are surprised he is reversing the burden here. Is he not contradicting himself by leaving it up to the MP to disprove the allegation, rather than the petitioners to prove it?

[Dr Huppert]

I will have to check the wording of the article—[Interruption.] Sorry, I am not challenging the hon. Gentleman; it is possible, in writing it so speedily, that I miswrote it, because that is certainly not what it ought to say. That is not how it ought to work, and if I wrote that, it was my mistake and I apologise to him and anyone else who read it. I will check it as soon as I have a chance.

The system in Minnesota, which is similar to what we are suggesting, seems to work. Our proposal would protect MPs from trivial recall petitions, but allow the public a route, not mediated by the House, to recall MPs who have committed misconduct. I hope, therefore, that the House will support new clauses 2 and 3, along with the consequential amendments, when I put them later today.

I wish to turn briefly to the other amendments in the group, many of which are in my name and that of the hon. Member for Dunfermline and West Fife (Thomas Docherty) and others.

[Mr Lansley]

Before my hon. Friend moves on to other amendments, I would find it helpful if he explained whether new clause 3(1), which says that the conduct that has to be alleged by the petitioners to a court must constitute

“misconduct in the office of member of parliament”,

is consistent with subsection (2), which says:

“The court may consider…conduct…whether or not it is committed directly in carrying out the office of member of parliament.”

We would be in the curious position where conduct unrelated to the office of a Member of Parliament and duties consequent on that office might be used to allege misconduct in that office. Is that not contradictory?

--- Later in debate ---

[Dr Huppert]

I think the right hon. Gentleman’s point is answered by amendment 8, which has a fuller definition of misconduct. I hope he will have a chance to take a look at that precise point.

Amendment 24 adds another recall trigger: if a Member has been convicted of an offence under the Parliamentary Standards Act 2009—providing false or misleading information for allowances claims—whether or not it has led to a prison sentence. The amendment was proposed in Committee by the Opposition and, given the particular sensitivities of the issue, we fully support the proposal. It is a good idea. Similarly, amendment 15 provides another trigger: if any Member is convicted of misconduct in public office, whether or not they are imprisoned—something that has never happened to a Member before, but which does happen on a semi-regular basis, sadly, to police officers in particular. It seems inconceivable that an MP convicted of such an offence could be immune from recall, so I hope the House will support that amendment too.

Amendment 14 tackles the time frame for suspensions from the House to count and ensures that only suspensions after the Committee on Standards has produced a report are involved, thus excluding those from the Speaker alone. Again, this was an idea proposed by the Opposition in Committee and it is sensible. The other amendments that my hon. Friend the Member for Somerton and Frome (Mr Heath) and I have supported deal with a range of technical details—not least the need to add words such as “third”, “fourth” and “fifth” to legislation that frequently enumerates conditions—as well as more substantial matters, such as historical offences, which I will leave to the hon. Member for Dunfermline and West Fife to explain.

Lastly, there are the amendments tabled by the hon. Member for Foyle (Mark Durkan) and the amendment to his new clause 4, from the hon. Member for South Down (Ms Ritchie). I have particular sympathy for the amendment to the new clause, which follows on from the work of Charles Bradlaugh to expand the oath to allow more Members to take it honestly. I am therefore supportive of the ideas of the amended new clause 4. However, I am concerned by the proposal in new clause 5, even though I recognise much of the wording has been taken from my new clauses. It is reasonable to ask a court to consider misconduct offences, but it is much harder to ask it to judge abstract conceptions such as leadership. Do we have any idea how a court could judge whether we in this House had displayed adequate leadership?

I look forward to hearing comments from across the House on the amendments, but I intend to test the will of the House on all amendments, in particular new clauses 2 and 6, as well as the consequential amendments, and, if they are not accepted, I shall support those proposed by the hon. Members for Dunfermline and West Fife and for Liverpool, West Derby (Stephen Twigg), rather than passing the buck to the other, unelected House.

[Mark Durkan]

The hon. Member for Cambridge (Dr Huppert) has already touched on new clauses 4 and 5, which stand in my name, and amendment (a) to new clause 4, which has not been selected, in the name of my hon. Friend the Member for South Down (Ms Ritchie).

I should clarify that the purpose of new clause 4 is to answer a question that I and other hon. Members posed when we discussed the Bill in Committee and on Second Reading. There is no job description for MPs, so if we are creating the principle of recall—a principle I fully endorse: I believe recall should be possible at the initiative of constituents and the electorate—it is important to have a yardstick. If we are affirming that MPs have and owe that degree of accountability to their constituents, there should be a clear basis on which constituents can rightfully wrest the exercise of that right. We had all sorts of circular arguments about whether having an open petition system could lead to all sorts of specious and spurious grounds that were motivated by partisan or other interests. I believe it was important to create a basis on which MPs could subscribe to the possibility of recall by acknowledging from day one when they take their seats here that they are subject to that degree of accountability and owe service to their constituents. That is why I support the concept of MPs taking a new pledge.

It is rather strange that we are pursuing a Bill that is creating the idea that a strong rule of accountability is to be translated into a recall, yet whenever MPs come here to assume their seats, all they do is issue words in the form of an oath or an affirmation about allegiance to the Crown, which many of them do not actually believe. I am not sure that that does anything for the credibility or reputation of politics when the first thing that politicians do in taking their seats is to recite words that they might not believe. Those who believe in those words should absolutely be able to recite them, but it is important that, regardless of whether Members believe in the affirmation or the oath, we should utter a pledge in respect of our parliamentary standards.

Given that hon. Members proposed amendments in Committee that made reference to the MPs’ code of conduct and given the importance of expenses and other relevant issues that could motivate a recall, we need to recognise the significance of the seven standards of public life, which appeared in the Parliamentary Standards Act 2009, for this Bill. Hence the pledge I propose in new clause 4 has MPs, on taking their seats, affirming that they will abide by the MPs’ code of conduct and honour the seven standards of public life as they are now. Those standards could, of course, be revised and extended in future. The new clause would leave the phrasing of the pledge open.

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[Dr Huppert]

The hon. Gentleman said that a mistake, even an honest one, will not suffice. Does he actually think that MPs should be subject to recall just because they have made an honest mistake?

[Zac Goldsmith]

The hon. Gentleman knows my arguments concerning recall. I am deliberately trying not to rehearse the arguments that were made in Committee because I lost them by a ratio of 2:1, but I fundamentally disagree with his view on how recall should be used. I was elected largely on the basis that I would put up a fight against Heathrow expansion. Had I, immediately after the election, taken a non-executive role within BAA—even an unpaid role of some sort—and flipped my position entirely, that would have amounted to a fraud on my voters. Had I performed such a U-turn, I believe they should have had the right at that point to recall me. The hon. Gentleman disagrees and that is a fundamental philosophical difference, but I will not rehearse the arguments because, as I said, I accept that I lost them a few weeks ago, sadly.

So, we have the same Bill, more or less, with a few synthetic changes if they are passed later today, and we are supposed to believe that the three main parties are all of a sudden happy with it. Perhaps they are, but if so it is only because they were not really, genuinely, authentically unhappy with the old version that we debated. Either way, it is an embarrassing, insulting nonsense. They have tied themselves up in knots to avoid letting voters hold them to account, all the time pretending that they are doing the opposite.

As if to prove how seedy this affair has become, the most extraordinary letters have been sent by MPs to their constituents, explaining why they blocked real recall. I will not rattle them all off, but let me give one example. The hon. Member for Torbay (Mr Sanders) told his constituents that he opposed real recall because

“I could have faced…recall…for voting in favour of an in out referendum”.

He added:

“I could have faced a recall campaign for having voted to close corporation tax loopholes.”

Does he honestly, truly believe that his constituents would have wanted to recall him for doing either of those things? Is it possible to have greater contempt for one’s voters than he expresses in that article in his local newspaper? I have seen countless letters explaining that pure recall would undermine the independence of MPs—letters, incidentally, sent by MPs so dependent that they have never once strayed from the party Whip, never once been disobedient to the parties they serve.

And then we have the Deputy Prime Minister, who robustly opposed real recall six times in this Chamber that I am aware of. Six times he was on the record opposing California-style recall—

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[Thomas Docherty]

I want to set out Labour’s position on the principle of recall and the reasoning behind the amendments that have been tabled by me, my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) and others. I will then set out Labour’s views on the new clauses and amendments tabled by the hon. Member for Cambridge (Dr Huppert). Finally, I will deal with the new clause tabled by my hon. Friend the Member for Foyle (Mark Durkan).

I want to begin by again placing on record Labour’s support for the principle of recall when an elected representative’s conduct falls well below the standards that Parliament and their constituents expect. That is why our 2010 manifesto promised to introduce recall legislation and why we supported the Bill on Second Reading. We will support it again on Third Reading.

However, we continue to believe that the Bill could be strengthened. We have tabled a number of amendments to that end, and I am grateful that they have attracted cross-party support. We discussed the principles behind each of them in Committee, and the hon. Member for Cambridge has already mentioned them briefly, so I will not detain the House by rehearsing all the arguments or going into unnecessary detail.

Amendment 14 seeks significantly to lower the threshold for the period of suspension relating to the point at which a Member of Parliament may be subject to a recall petition. As it stands, the Bill states that the second recall condition is that a Member must be suspended from the House for 21 sitting days to reach the threshold. We believe that that sets the bar too high. For example, neither of the MPs who were suspended during the cash-for-questions scandal would have been subject to potential recall using that threshold. By reducing it to 10 days, as we propose, Members such as those and many others who have been suspended over the years would be captured by the revised mechanism.

However, we recognise the genuine concern that Ministers flagged up during the Bill’s previous stages, which has been echoed by the hon. Member for Richmond Park (Zac Goldsmith), that a Member who had twice been named by the Speaker for unparliamentary activity or protest could fall foul of the lower threshold. That is why we have inserted the provision that the suspension must be the result of a report into an MP’s behaviour by the Standards Committee, although it is for the House as a whole to determine the length of a suspension.

Our amendment 24 deals with Members who have been convicted of fiddling their Independent Parliamentary Standards Authority-funded parliamentary allowances. Some may be curious as to why we are proposing that the recall process should apply even where a non-custodial sentence is handed out. We believe that a flagrant misuse of public funds by MPs is simply unacceptable. Those of us who were not MPs in the previous Parliament fully understand the public’s anger at that whole sorry saga. As the Leader of the Opposition has highlighted, the public’s confidence in our political system has been severely strained by the events of the past few years. We hope that this amendment signals to the public that Parliament is listening and changing.

[Dr Huppert]

The other point the hon. Gentleman could make is that his party’s manifesto specified that recall would be only for MPs found responsible for financial misconduct. So his proposal is entirely in keeping with his manifesto, as our proposal is with our manifesto commitment. Indeed, the surprise is that none of the major parties had something analogous to that which seems to be pushed by so many.

[Thomas Docherty]

I am grateful to the hon. Gentleman for his support for our amendment. I would not say it was only about that condition, but we did specifically state that it was grounds for recall, which is why we supported the Bill on Second Reading and will do so on Third Reading.

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[Thomas Docherty]

We absolutely agree on the point about IPSA expenses. To provide justice to our constituents, it is a relatively uncontentious tweak to the Bill to say that if a Member of Parliament were convicted of serious wrongdoing they should not be able to evade natural justice just because their offence was carried out before Royal Assent. Let me now make a little more progress.

We see these three amendments as sensible steps towards improving the Bill and significantly strengthening the rights of constituents to hold their Members of Parliament to account. I am grateful to Members from the other parties and to those on the Government Benches who have signed our amendments or who have indicated that they will support them tonight. I hope that when the Minister responds he will confirm that he, too, supports our proposals and that he will encourage all his colleagues to endorse them so that they can be carried without a Division.

I now turn to the new clauses and amendments tabled by the hon. Members for Cambridge and for Somerton and Frome (Mr Heath). I want to deal first with new clause 2 and the amendments relating to it. As I said in Committee, we support the principles behind the idea. We agree with the hon. Gentlemen on the idea of an independent mechanism when it can be demonstrated that wrongdoing has occurred. Like the hon. Gentlemen, we entered into talks with Ministers in good faith to make it work. However, as has already been mentioned by the hon. Member for Cambridge, despite lots of warm words from Ministers the Government have walked away without fully engaging. At no point did Ministers proffer alternative wording, which will of course leave many wondering whether parliamentary counsel were ever engaged properly. The Government Chief Whip who, yet again, is nowhere to be seen, seems to have decided that this is all too much effort.

That is no way for the Government to behave, not only after giving clear assurances in Committee but on a Bill that was, as the hon. Member for Richmond Park said, a key plank of the coalition agreement. The result of the Government’s behaviour is that we are left with a new clause that is, by the admission of the hon. Member for Cambridge, not in a fit and proper state. I appreciate that its promoters have tried as hard as they can to get these principles into a workable state, but despite their best efforts the amendments are simply not there.

[Dr Huppert]

Let me be clear that I have never said that I do not think the new clause is in a fit and proper state. There were some problems with the previous version, but I think that it is now in a good state. I dare say, however, that their lordships could tweak it.

[Thomas Docherty]

I therefore refer the hon. Gentleman to new clause 3, which places the burden of proof on the Member of Parliament. Again, let me quote what he has said. Although I accept what he has said about no longer seeing that quotation as accurate in terms of what he was trying to achieve, it reflects what new clause 3 says. He said:

“This test of “reasonable to believe” puts the burden clearly on the MP to disprove beyond doubt the allegations against him or her in the first instance. It would mean a high chance of success for petitioners unless their evidence was very weak indeed.”

The hon. Gentleman has already clarified that he does not support that, so if he does not support the intent behind new clause 3 I would gently suggest that the best thing would be for the new clause to be rewritten.

[Dr Huppert]

The hon. Gentleman is absolutely right to point out the errors in what I wrote on Lib Dem Voice and he will be pleased to know that it has been corrected, but in such a way that one can still see the original. I am not trying to hide the fact that I made an error. The bit that was not fit and proper was that aspect of the article on Lib Dem Voice and the new clause is still quite clear. The “reasonable to believe” test is a fairly common and standard one.

[Thomas Docherty]

Perhaps I can return to that point in a moment or two.

Let me explain what we see as the problems with new clauses 2 and 3 and the associated amendments. The court process can be started comparatively easily as 500 signatures would not be difficult to obtain and a rich group or a rich individual who wanted to attack a Member of Parliament could pay for lawyers once those signatures had been obtained to mount a court application that would be both costly and distracting for the MP to fight. New clause 2 does not require the case to be proved, as the hon. Member for Cambridge has admitted, beyond reasonable doubt or even to some lower standard, only that the court has “reason to believe” the Member of Parliament is guilty of misconduct in public office. The clause requires only an arguable case and not a proved case, which makes an MP vulnerable to losing in court when the allegations have been proved, to be taken forward.

New clause 2 also sets the standard by reference to the language of the criminal offence of misconduct in public office, which, as the hon. Member for Cambridge admits, is a criminal offence in England but not in Scotland or, I think, in Northern Ireland. If the court concluded that there was reason to believe that a Member of Parliament was guilty of the offence of misconduct in a public office, in addition to the recall petition’s being opened the Member of Parliament would be incredibly vulnerable to prosecution for the criminal offence. A well-funded individual or group could achieve 500 signatures, tie a Member of Parliament down in difficult court proceedings, in which the attackers do not even have to prove their allegation, and, if they succeed in court, subject the Member of Parliament to not only a recall petition, but the possibility of criminal proceedings.

[Dr Huppert]

The hon. Gentleman makes an interesting point. He will be aware, of course, that there is an existing process whereby an individual or group—perhaps well funded—can bring a case to an election court. There is no appeal; there is judicial review. It has far more powers, because it may not only deny a Member their seat, after potentially expensive processes, but ban them from standing for public office, as happened to Phil Woolas, which is a much tougher sanction than that which is proposed here. Is he suggesting that that should also happen, because a large amount of money could be used to challenge an MP who had just been elected, which I think is what he is concerned about?

[Thomas Docherty]

The difference is that in the Woolas case in 2010 the complainant had to prove not just a level of expectation, but beyond reasonable doubt. There were full court proceedings and it was rightly determined—the hon. Gentleman has mentioned this—that Mr Woolas should be banned from holding office for a period of five years, I think.

[Dr Huppert]

Three.

[Thomas Docherty]

Apologies. Those were proper court proceedings that resulted in a verdict. New clause 2 and its associated amendments would simply require a reasonable expectation, which we believe would be an unsatisfactory mechanism at the moment.

The other group of amendments, which centre on amendment 15, would add a further mechanism for the opening of a recall petition: when a Member of Parliament has been convicted of the criminal offence of misconduct in public office. The difference between that gateway and the first gateway—conviction of a criminal offence—is that it is open even if the Member in question is not sent to jail. Although a conviction for that offence would normally follow a prosecution by the Crown Prosecution Service, it could follow an incredibly expensive private prosecution, which again would place a Member of Parliament at the mercy of well-funded vested interest groups. There are those who genuinely believe that we should endorse that process, but the Opposition do not wish to see that US-style pact, with well-funded vested interest groups able to recall, tie up and bog down a Member of Parliament for four and a half years of a five-year Parliament.

We are also concerned that that route could be used not only as an alternative to the new clause 2 mechanism, but as a de facto appeal. That is to say, if the Member of Parliament’s opponents do not win on the first attack, they could simply regroup and come back with a private prosecution. Furthermore, that route has no minimum threshold, as it does not require even the 500 signatures that the hon. Gentleman has advocated for new clause 2.

[Dr Huppert]

I am following carefully what the hon. Gentleman is saying. Could not exactly the same be said of his point about expenses for parliamentarians? There is a similar issue with very specific offences that relate to fundamental aspects of the role, where conviction, even if not imprisonment, has to be taken seriously.

[Thomas Docherty]

The hon. Gentleman leads me perfectly to my final point. Our amendment 24 proposes that a further recall condition should be when a Member of Parliament has been convicted of the offence, as clearly set out in the Parliamentary Standards Act 2009, of the misuse of public funds, committing fraud against the public purse, which we believe—I hope that the whole House agrees—is completely incompatible with the role of a Member of Parliament. Some will recall a case in the last Parliament in which a right hon. Member—a shadow Minister—was investigated by the police for having been involved in the leaking of documents from the civil service to the Opposition. If that case had been taken up by the police and resulted in a prosecution, I do not believe, and my colleagues would agree, that the leaking of documents, which we would argue can be seen in the public interest, should have left that Member of Parliament open to recall. As the offence of misuse of public office is so vague, it does not involve the same prescriptive reasoning as the 2009 Act, and it is open to vexatious challenge.

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[Greg Clark]

The recall measure contained in the Bill is precisely that envisaged by the parties’ manifestos.

Throughout the passage of the Bill, the Government have made it clear that—beyond implementing our manifesto pledges—it is open to the House to make further amendments, and that, on the Government side of the House, they would be subject to a free vote, including by Ministers. Given that, all I want to do now is make some observations on the part of the Government about some of the advantages and disadvantages of the amendments in question. I repeat that it will be for the House to decide whether to adopt them.

I will first turn to the amendments tabled by the hon. Member for Dunfermline and West Fife (Thomas Docherty). As he has said, amendments 16 and 17 would alter clause 2 to ensure that historical offences would be liable to trigger recall, which reflects a similar amendment tabled in Committee. As I said when I last stood at the Dispatch Box, there is a case that if an MP were elected and his or her constituents were unaware of the fact that he or she had committed a crime because it had not come to court, that MP might be said to have been elected on a false prospectus. Against that, as my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has pointed out, it remains novel for legislation in this House to have what could be argued is a retrospective effect, and for a criminal act to have consequences—in this case, triggering recall as an MP—that were not the case when the act was committed.

Amendment 14, tabled by the hon. Member for Dunfermline and West Fife, would alter clause 1 to reduce the number of sitting days from 21 to 10, and the number of days if not expressed in sitting days from 28 to 14. It would also introduce a requirement that for a suspension to trigger recall it must follow on from a recommendation by the Standards Committee. Nevertheless, the length of time for which the MP would be suspended by the House may be different or the same as that recommended by the Standards Committee. That would ensure, as the hon. Gentleman has said, that an MP named by the Speaker for a second offence and suspended for 20 days would not be subject to a recall petition.

The argument in favour of the amendment is that more MPs would be caught by the provision who previously would have withstood the effect of recall. If the recall petition process had been in force with the threshold set at 10 sitting days, then of the 11 MPs suspended since 2000 seven would have met the condition for opening the process. Under a threshold of 21 sitting days, two MPs would have been caught. A further two MPs resigned before the suspension came into effect.

The argument against the proposed change is that the House may wish to impose its own suspensions—sometimes quite long ones—without the consequence of a recall process necessarily being triggered. In other words, the proposal would reduce the scope that the Standards Committee might have to issue sanctions without triggering the recall process.

Amendment 15, tabled in the name of my hon. Friend the Member for Cambridge (Dr Huppert), would mean that a Member of Parliament convicted of the common law offence of misconduct in public office would be subject to a recall petition process regardless of the sentence imposed. Misconduct in public office is a common law offence in England and Wales, punishable by a maximum sentence of life imprisonment. There is, however, no clear, exhaustive definition of what misconduct in public office covers. Action that amounts to misconduct is likely also to be contrary to other laws. The boundaries of the offence are not clearly defined, so they are uncertain. Despite there being relatively few prosecutions each year, a disproportionately high number of those cases are appealed against.

The common law offence of misconduct in public office does not exist in Scotland, so there is a risk that an MP from Scotland could commit the offence of misconduct in public office while working in Westminster given that the offence applies in England, but not if the offence took place while working in their constituency.

[Dr Huppert]

The Minister is making an interesting point, but is it not the case that an MP taking any other action that was not a criminal offence under Scots law but was such an offence in Westminster could be punished for committing it in England but not for doing it in Scotland?

[Greg Clark]

Indeed. From reading the minds of Members who are interested in, and sympathetic to, a provision of this kind, it is not clear to me that they intended to have different regimes in different parts of the United Kingdom, given that all of us have the common characteristic of being returned to serve in the United Kingdom Parliament after election by our constituents.

I want to address Opposition amendment 24 on the Parliamentary Standards Act 2009. The legislation was brought forward following the expenses scandal, and it deals directly with dishonest claims for MPs’ expenses. It is fair to say that that issue obviously provided some of the impetus behind the recall proposals in the first place. The offence in section 10 of providing false or misleading information in claims for allowances is intended to deal with the situation in which an MP provides information that he or she knows to be false or misleading. It does not cover innocent mistakes; we are talking about deliberately providing false information. So far, no prosecutions have been brought under the Act. I remind the House that the former MPs and peers who were convicted of fraudulent expenses claims were all sentenced to terms of imprisonment.

It seems to me that the question before the House on amendment 24, and indeed on the territorial aspects of amendment 15, is whether certain criminal convictions should be singled out as requiring treatment that is different from the treatment of other convictions. The trigger relates to imprisonment for other offences, many of which—including the Theft Act 1968—have been used to prosecute Members of Parliament. In considering this matter, the question in colleagues’ minds should be, to put it crudely, whether theft from a member of the public is less worthy of automatic sanction than theft through the IPSA expenses system. Treating those offences differently introduces a distinction that currently does not exist.

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[Greg Clark]

The hon. Gentleman made that point clear in his speech.

The amendments and new clauses tabled by my hon. Friend the Member for Cambridge are a modified version of those tabled by my hon. Friend the Member for Somerton and Frome (Mr Heath) in Committee. The intentions of involving the public and taking the responsibility for judging other MPs’ behaviour away from MPs attracted support in Committee. The hon. Member for Dunfermline and West Fife expressed disappointment that those intentions had not been reflected in a Government amendment, as did my hon. Friend the Member for Cambridge in his blog. However, these issues are not easily captured in legislation in a way that avoids the pitfalls that have been mentioned in this debate. It is not for the want of trying, if I may put it in that way. It is for the House to take a view on the proposal if it is pressed to a vote.

[Dr Huppert]

We will see what happens in the Division, but will the Minister assure us that the Government, with all their advice and lawyers, will seek to come up with a more workable proposal in the other place if we cannot get our proposal through in this place?

[Greg Clark]

The Government’s demeanour throughout the debates on the Bill, if I may put it in this way, has been that we are open to facilitating the development of amendments and proposals that either House can debate. In conversations, I have been open to allowing officials to advise on the kinds of proposals that may or may not work legally. I see no reason why that should not continue. It is important to be clear that such proposals cannot carry the guarantee of a Government amendment, but I am happy to use my offices and those of my ministerial colleagues to have those conversations.

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[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.

[Dr Huppert]

Will the hon. Gentleman give way?

[Chris Bryant]

Oh, all right, but I am trying to be quick.

[Dr Huppert]

I do understand; it is a shame we could not have had these interactions earlier, during my speech. The wording is taken from the Attorney-General’s reference No. 3 of 2003, which says:

“The offence is committed when a public officer acting as such wilfully neglects to perform his duty and/or 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”.

The wording is already extant.

[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.

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[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—

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[Michael Ellis]

There is nothing objectionable about a disqualification provision for those persons who have previous convictions, so the point that was made earlier about police and crime commissioners is not the point that I am addressing. The point in respect of retrospective penalty is the one that I have made—that to pass a penalty that did not apply when the offence was committed is contrary to natural justice and the provisions of English law as it has always existed.

I voted for real recall, as it is called, proposed by my hon. Friend the Member for Richmond Park (Zac Goldsmith). I very much support the provision that would allow the electorate to have their say in this matter, but the amendments are unconvincing. Misconduct in public office is another offence that I have prosecuted. Those prosecutions often related to police officers who had misconducted themselves, for example, through the misuse of the police national computer for their own personal reasons. Intervening courts are not the right way of processing the issues that we are addressing here. It should be a matter for the electorate.

I am unconvinced by new clause 4 and the pledge, as was my hon. Friend the Member for North East Somerset. The oath that we already take covers the circumstance. When we as Members of Parliament take an oath to be faithful and bear true allegiance, that encompasses a duty on us to uphold standards in public life. Therefore I am not convinced by the assertion by the hon. Member for Foyle (Mark Durkan) that another oath is necessary.

An election court is unnecessary and would be a departure from our practice. The election courts that we currently have do not exist 365 days a year. They are brought into existence only on a petition, in very exceptional circumstances. They are rarely established. They are not investigative, so they cannot investigate matters as we would envisage them wanting to do. There is no process of appeal, so an election court would not be the right basis. It would also be bureaucratic and expensive.

The amendments attempt to bring the electorate out of the equation and to put the matter in the hands of third-party expensive and bureaucratic interests, which I do not support. I have doubts about the reduction to 10 days because those persons who are found to have been rude, who have not apologised to the House, or who have done something that falls below the standards expected should not be open to such a provision.

I support real recall. The amendments are in many cases a device to avoid public scrutiny. The electorate should have a say in the matter. Those are my views.

[Dr Huppert]

We have had an interesting and somewhat complex debate, and it is good to have more Members present at the end making arguments than there were at the beginning to hear the arguments made in the first place. It seems clear that there are those who agree with the principle of new clause 2 but not with the detail of it, there are those who oppose the principle of it, and there are those who oppose the principle of extending recall at all. It would not be appropriate for this House to delegate to the other place all our decisions about how we should be recalled. I therefore wish to test the opinion of the House on new clause 2 to see how many Members support that option in principle. I wish to press amendment 15 as well, because I believe the House would want to say that any MP who has been convicted of misconduct in a public office should be subject to recall.

Question put, That the clause be read a Second time.

--- Later in debate ---

Recall petition to be made available for signing

[Dr Huppert]

I beg to move amendment 9, page 6, line 30, leave out subsections (4) and (5) and insert—

‘( ) The Minister may, by regulations, having consulted the Electoral Commission, prescribe or amend the wording which must be included on a petition signing sheet.’.

This amendment allows for the Minister to bring forward detailed wording for the petition-signing sheet after having consulted the Electoral Commission.

[Madam Deputy Speaker (Mrs Eleanor Laing)]

With this it will be convenient to discuss the following:

Amendment 10, page 6, line 40, leave out

“a by-election will not be held, as a result of the petition”

and insert

“therefore no by-election will be held.”.

This amendment clarifies wording prescribed for the petition-signing sheet.

Amendment 11, in clause 19, page 13, line 7, leave out subsection (1) and insert—

‘( ) If a relevant circumstance arises, the functions of the Speaker under or by virtue of this Act (“the Speaker’s functions”) are to be performed by the Chairman of Ways and Means or a Deputy Chairman of Ways and Means’.

This amendment clarifies that only a post-holder elected by the House will be able to exercise The Speaker’s functions under this Act.

Amendment 12, page 13, line 12, leave out second “or” and insert—

‘( ) a recall condition has been met in relation to the Speaker, or’.

This amendment provides for circumstances where The Speaker meets a recall condition.

Amendment 13, page 13, line 14, leave out subsections (3) and (4).

This amendment is consequential on the clarification that only a post-holder elected by the House will be able to exercise The Speaker’s functions under this Act.

[Dr Huppert]

After all that excitement, I will try to be brief in presenting these minor and technical amendments. Amendment 9 seeks to deal with some of the awkward wording throughout the Bill on what is required for a recall petition. It simply states that the Minister should talk to the Electoral Commission and then come up with the wording. That would make for a much more flexible approach. I hope that the Government will agree that that is a cleaner and better way forward.

Amendment 10 deals with some particularly ugly wording. The current wording on the petition signing sheet states:

“If less than 10% of eligible registered electors in the constituency sign the petition, the MP will not lose [his/her] seat, and a by-election will not be held, as a result of the petition.”

Perhaps it should state

“and therefore no by-election will be held.”

The amendment seeks to turn what is on the petition signing sheet into something approaching the English language. Again, I hope that is not controversial.

Amendments 11, 12 and 13 deal with some errors that were pointed out in Committee—[Interruption.]

[Madam Deputy Speaker]

Order. Other Members should not be standing and speaking in the Chamber. The hon. Member for Cambridge (Dr Huppert) is making important points about important amendments and must be heard.

[Dr Huppert]

Thank you, Madam Deputy Speaker, and I thank all the Members in the Chamber.

Clause 19 deals with the performance of the Speaker’s functions by others. The Speaker has a critical role in the recall process. The Bill, as currently drafted, states that the Speaker can appoint somebody to perform those functions. That seems very strange for a number of reasons, so amendment 11 proposes that, rather then the Speaker being able to appoint somebody, the Chairman of Ways and Means or a Deputy Chairman of Ways and Means, such as you, Madam Deputy Speaker, would be the obvious person to take on those responsibilities.

Amendment 12 picks up on the point, made in Committee, that one of the exceptions would be if the Speaker was subject to a recall. In such circumstances it would be odd to expect the Speaker to set in train the process of recalling him or herself, and that raises the question of what would happen if they refused to do so. Would another recall petition be sought against them for failing to fulfil the first?

Amendment 13 is entirely consequential on the other two amendments. I hope that all five amendments will not prove controversial and that the House will support them unanimously. In the interests of time, I will not push any of them to a vote if there is dissent within the House. However, I hope that the House will agree to them so that they can be made to the Bill as minor, technical and corrective measures.

[Thomas Docherty]

I, too, will be relatively brief. Amendment 9 relates to an issue we discussed in Committee. The Government gave a clear indication to the Committee that they recognised that it would be inappropriate to place wording in primary legislation on which they had not consulted the Electoral Commission. I hope that the Minister will confirm when he responds whether the Government have now consulted the Electoral Commission, as they undertook to do in Committee.

I agree with the hon. Member for Cambridge (Dr Huppert) that, having had a hat trick of wins earlier this evening, we should not press our luck tonight. However, we are clear that we do not believe that it is appropriate to have wording in primary legislation that has not been agreed by the Electoral Commission. We will expect the other place to remove that wording if the Government are unable to satisfy this House that they have consulted the Electoral Commission.

Amendment 10 simply rewrites the wording set out in clause 9, as the hon. Member for Cambridge said, and I do not think that it requires further explanation. Amendments 11, 12 and 13 relate to a point that was made during our line-by-line consideration of the Bill. He is absolutely right that it is inappropriate to have ambiguity about what would happen if the Speaker was subject to a recall petition—not least for the benefit of the Speaker. We think that it is correct to state explicitly that the Chairman of Ways and Means or the Deputy Chairmen of Ways and Means are the appropriate post-holders in the unlikely event that a recall petition affects the Speaker.

That point was raised with the Government informally, so we hope that the Minister has had a chance to consider it. His previous answer was that the Chair would be vacant because the Speaker would be serving a custodial sentence. However, we have just agreed by an overwhelming majority to make an amendment that will apply this to non-custodial sentences, so that argument no longer holds water. Also, if an MP received a very short sentence, they could be out of custody by the time the recall procedure was initiated.

This is purely a tidying-up exercise and we do not see the point in detaining the House. We are sure that the Minister will have reflected on our previous discussions and will agree to make these minor but necessary changes to the Bill.

--- Later in debate ---

[Tom Brake]

As I said, this has been discussed with the Electoral Commission, which has been very careful to ensure that the wording is as clear as possible. I will have to get back to the hon. Lady on whether there was a specific reason why the paragraphs were put in that order, but I suspect that it was felt that that was the clearest way of presenting the information, rather than the alternative she suggests.

Amendments 11, 12 and 13 would amend clause 19 regarding the role of the Speaker. Under the Bill, certain functions, such as giving notice to the petition officer in the relevant constituency when one of the recall conditions has been met, are performed by the Speaker. As currently drafted, clause 19 allows for the Speaker to appoint a person to perform the relevant administrative functions, including giving notice of the opening of the recall petition process, if the Speaker is unable to perform these functions or there is a vacancy in the office of the Speaker. If no such person is appointed by the Speaker, there is a provision that the Chairman of Ways and Means or a Deputy Chair of Ways and Means will perform the functions. The provisions in clause 19 as originally drafted replicated those found in other legislation such as the Recess Elections Act 1975.

During the debate in Committee, my hon. Friend the Member for Somerton and Frome (Mr Heath) pointed out that as the Chairman of Ways and Means and Deputy Chairs are now elected rather than being appointed by the Speaker, the functions of the Speaker should automatically be carried out by the Chairman of Ways and Means or a Deputy Chair of Ways and Means in the event that the Speaker cannot perform them. The amendment would ensure that if the Speaker was indisposed and unable to perform the relevant functions, the functions would be performed by the Chairman of Ways and Means or a Deputy Chairman of Ways and Means rather than giving the option to the Speaker to appoint someone else. In addition, the hon. Member for Dunfermline and West Fife (Thomas Docherty) expressed concern about who would perform the Speaker’s duties in the event that the Speaker was the person whose behaviour had triggered the recall conditions. The amendments put it beyond doubt that in such a situation the functions relating to the recall petition process would be carried out by the Chairman of Ways and Means or his deputies.

Some matters of detail will need to be addressed, but if my hon. Friend the Member for Cambridge is content not to press his amendments I am totally confident that those matters can and will be addressed in the House of Lords. I hope that the House will consider the full range of points made in the debate when considering these amendments.

[Dr Huppert]

This has been a brief and fairly agreeable debate. I hear what the Minister has said. I said that I would not press any proposal that was criticised in the House, and I will not do so. In particular, I should listen carefully to what the Electoral Commission has said, especially because my predecessor is one of the commissioners, so I would not challenge his wisdom. I accept the Minister’s commitment to address these matters in the House of Lords, although I do have a concern about the habit of this House to wait for the other place to fix things. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Third Reading