Recall of MPs Bill

Lord Campbell-Savours Excerpts

Wednesday 17th December 2014 Lords Chamber

[Lord Gardiner of Kimble (Con)]

My Lords, the Bill fulfils a coalition commitment to deliver a practical recall mechanism to hold MPs to account where they have been found guilty of wrongdoing. The three main parties in their 2010 manifestos committed to establishing such a recall mechanism, and this commitment was again made in the coalition programme for government. Where an MP has been found guilty of serious wrongdoing, the Bill will give constituents their say on whether their MP should remain in office.

The Government have sought to steer a sensible middle course in developing proposals to deliver those intentions. The other place was clear that the Bill should not change the position where MPs act as representatives of their constituents and not as delegates. In this regard, the Bill preserves the ability of MPs to take decisions on difficult policy issues without the fear of losing their seat as a result.

I will remind your Lordships of the progress of the Bill to date. The Government published their White Paper and draft Recall of MPs Bill in 2011, and pre-legislative scrutiny was conducted by the Political and Constitutional Reform Committee on those proposals. The committee made some valuable recommendations, the majority of which were accepted and incorporated into the Bill for its introduction. The Government believe that there is a gap in the current disciplinary measures affecting MPs which needs to be filled, which will provide assurance that where an MP has been found guilty of serious wrongdoing they will be held to account.

The Bill has been considered in detail in the other place. That scrutiny included full consideration of the Bill in a Committee of the whole House. It was open to Members to listen to the arguments presented on a range of proposals to modify the Bill. The Government felt it was important that MPs could vote freely on these proposals, as they concern their own conduct and disciplinary arrangements. MPs agreed a number of amendments, and the Bill before this House reflects these changes.

The central tenet of the Bill is that recall petitions must be based on wrongdoing, and that parliamentarians must, in the absence of wrongdoing, be free to express their views on matters of policy without fear of losing their seat. The heart of the Bill relates to the three conditions under which a petition would be opened. On those conditions, the first “trigger” for a recall petition is that an MP is convicted in the UK of an offence and receives a custodial sentence. MPs imprisoned for more than a year are already automatically disqualified from Parliament, but there is no such measure for those who receive a sentence of 12 months or less or a suspended sentence. Therefore, this trigger will fill that gap. As noble Lords will be aware, the imprisonment of an MP is likely to cause constituents to question their faith in that Member of Parliament. Under those circumstances, therefore, it will be up to constituents to sign a petition to decide whether there should be a by-election. As is the case under all three triggers in the Bill, a by-election will be held where at least 10% of constituents sign that petition.

The Bill as introduced to Parliament provided that only those offences committed after the Act came into force would be caught. However, Members of Parliament in the other place voted on a change to allow offences that were committed before the Act came into force to be caught as long as the conviction took place after this time. For the purposes of the Bill, it does not matter whether the offender became a Member of Parliament before or after the offence, only that he or she did so before the relevant conviction.

The second trigger for a recall petition requires that an MP is suspended from the House, following a report from the Standards Committee, for a length of 10 sitting days or more. The length of such a suspension, which is deemed to follow wrongdoing serious enough to warrant a recall petition, was reduced from 21 sitting days following an amendment accepted on Report in the other place. The second trigger has been designed to work alongside the House’s existing disciplinary processes. For this reason, there is no specification of the grounds on which the committee, or the House, should consider a suspension of this length.

The third trigger for a recall petition is a new trigger, the result of an amendment made on Report in the other place. Under this trigger, a recall petition will be opened when an MP is convicted of an offence under Section 10 of the Parliamentary Standards Act 2009, where an MP knowingly provides information in relation to parliamentary expenses that is false or misleading. This trigger is similar to the first in that it involves a court finding an MP guilty of an offence. However, in adopting this additional trigger MPs clearly felt that expenses fraud should be treated particularly seriously. Therefore, any conviction under this offence will trigger a recall petition, regardless of whether the sentence imposed involves detention in custody or the issuing of a fine. All three triggers have been developed to work alongside existing arrangements. The Bill as drafted steers a course between the accountability of Members of Parliament and the sovereignty of Parliament in regulating its own affairs.

I turn to the conduct of petitions which will be held when a trigger is activated. The procedures that have been laid out in the Bill have been designed to fit with the high standard rightly expected by the public of an official democratic election in this country. They will be run by the petition officer, the same person who fills the role of returning officer at UK parliamentary elections in the constituency. The signing period will last for eight weeks. If at the end of this period the 10% threshold is met, the MP will lose his or her seat and a by-election will be held. There will be no legal barrier to the Member of Parliament standing in this by-election. I will not set out the process in detail here, but I assure noble Lords that the necessary safeguards have been put in place to ensure that the process is robust, fair and open.

The Government believe that the Bill strikes the right balance in delivering a sensible and robust recall mechanism that meets the commitment made by the coalition Government at the beginning of this Parliament. As I have described, it has been shaped through pre-legislative scrutiny and by consideration in the other place. The Bill is about the conduct of Members of the other place, and those Members have examined this in detail. We should therefore approach its consideration in this House with sympathy to the debates that have already been had and the conclusions that have been reached.

The Government intend to table largely technical amendments to the Bill in Committee which will give effect to the amendments made in the other place, as tabled by the Opposition. These amendments are necessary to ensure that the changes endorsed in the other place can work effectively. These amendments will be tabled early, which I hope will be of benefit to your Lordships’ consideration of the Bill in Committee. I look forward to the debate, to the maiden speech of my noble friend Lord Cooper of Windrush and to the further stages of the Bill in this House.

[Lord Campbell-Savours (Lab)]

I am sorry to interrupt, but does the noble Lord mean that the Government will be tabling amendments relating to the 10 days under the second trigger? Will the amendments deal with the 10-day question?

[Lord Gardiner of Kimble]

My Lords, my noble friend may be helpful in his concluding remarks, but I think that these are technical amendments which give effect to the amendments agreed in the other place, rather than amendments addressing the noble Lord’s point. Perhaps, by the time of winding up, the precise point that he raises will have been considered.

We should be mindful of the conclusions of the other place in relation to the discipline of its Members. For these reasons, I commend the Bill to the House and I beg to move.

--- Later in debate ---

[Lord Tyler (LD)]

My Lords, as the noble Baroness knows, I share a large number of her concerns, not least on some of the detail to which she has given attention. We will, of course, come back to that in Committee. However, I do not share her view in one respect: the fact that the Bill has been a long time a-coming is indicative of the considerable interest that there has been at the other end of the building—for obvious reasons. I note that I am the first of some 10 former Members of Parliament contributing to this debate, and I suspect that we will hear some interesting observations in that respect.

In this House, I first proposed a recall power for MPs back in June 2009, in the immediate aftermath of the expenses scandal, to enable constituents rather than party leaders to instigate an appropriate review of the behaviour of their representatives. The proposal was defeated then but by the general election, just a few months later, all three parties committed to a recall power of the kind that I had proposed—one that covers “misconduct” and “serious wrongdoing”. At the last general election, that was how the proposals were expressed in a number of manifestos and it was, as the noble Baroness said, repeated in the coalition agreement. Now the Bill gives us the opportunity to make good on those promises. However, as the noble Baroness said, in its present form it is by no means perfect, and that is acknowledged by the work that has been done in the other place and the reference to our work on it there. There is important job of work for us to do.

There are technical issues to address in respect of ensuring that donors to recall campaigns are permissible and eligible, and to ensure that campaigns for and against recall are placed on an equal footing. On these Benches, we also note the reports of the Constitution Committee and the Delegated Powers Committee in respect of the order-making powers of the Bill. It will be for the Minister to demonstrate why these are the right powers.

However, there is one big issue of principle at stake that we must all in this House address. When and in what circumstances recalls should occur is, I think, agreed between the parties—that is, in cases of serious misconduct or wrongdoing. But where the collective forces of the two government parties and the Opposition have not yet secured a good solution is the key question of who should be involved in that process of determining whether misconduct has indeed taken place.

The Bill sets out only two bodies that may decide. One is straightforward: if the courts sentence an MP to a prison sentence, that immediately triggers a recall petition. The second is less straightforward. If the Commons Standards Committee suspends a Member for 14 calendar days or 10 sitting days, a recall petition is automatically triggered. The problem is that the voting membership of the Standards Committee is composed entirely of MPs. Even taking into account the lay members, that is plainly an internal parliamentary body. To the public outside, this—quite reasonably—smacks of being a group of people who seek to retain what we might call “exclusive cognisance” over their own affairs. I am sure that noble Lords have already seen that the public have been responding to that problem as if it were equivalent to MPs marking their own homework. That is a fundamental problem.

[Lord Campbell-Savours]

Has the noble Lord asked some of his colleagues on that committee in the Commons what actually happens? The independents have never dissented from the position taken by the majority of electives.

[Lord Tyler]

I totally understand the point made by the noble Lord but that does not mean, of course, that there could not be circumstances when the non-voting, lay members of that committee—one suggestion is that their number should increase, but that is a matter for the other place—should be the ones who take the decision and recommend it to the voting members. That is complicated and still raises important questions, to which I will return.

The Bill is intended to increase the public’s confidence in their ability to hold parliamentarians to account when they fall below the standard expected of us. Without some means being built in for some independent adjudication on those standards completely outside Parliament, the Bill will fail in that objective and will be criticised as such. My colleagues in the Commons, Julian Huppert and David Heath, attempted to deal with this problem during the Commons stages. It was acknowledged that their proposals were not technically perfect—what early attempt at amendment ever is, in either House?—but that the principle behind their ideas had considerable merit, namely, that an election court with appropriate safeguards, or something like it, ought to be able to consider petitions directly from the public alleging misconduct or wrongdoing, and to hear evidence to the contrary from the MP concerned. Where real misconduct had taken place, the process would trigger a full recall petition. A by-election would follow if 10% of the MPs’ constituents signed up within the eight weeks, under the terms elsewhere of the Bill.

The principle behind this process will ensure both that no MP could be ejected simply for doing his or her job, or for exercising his or her judgment in the terms that the noble Baroness just said, but also that the Commons, through its internal committees, cannot be thought to be closing ranks to protect one of its own where serious wrongdoing really has taken place. I believe that there will be a serious case for carefully phrased amendments in that vein in Committee. We will seek support from all sides of the House in improving drafting to present a workable proposal to this House.

If anyone is in any doubt that we have a duty in your Lordships’ House to attempt this, they need only consider the words of those who took leading parts in the debates on the Bill in the other place. On the day of the Commons Report and Third Reading, the Minister in charge of the Bill, Greg Clark, said that,

“the Government were clear on Second Reading that we are open to ways to improve the Bill and we stand by that commitment”.—[Official Report, Commons, 24/11/14; col. 681.]

That was on Report. Similarly, Stephen Twigg, Labour’s senior spokesman on these issues, said in Committee in the Commons:

“In principle, giving the power to the people to bring a case against their MP before the election court is a good idea. It treads the fine line between undermining an MP’s constitutional role and giving power to the people to hold their Member of Parliament to account for his or her conduct”.—[Official Report, Commons, 27/10/14; col. 134.]

On Report, his colleague Thomas Docherty, from the Labour Front Bench, reaffirmed that the Opposition,

“support the principles behind the idea. We agree … on the idea of an independent mechanism when it can be demonstrated that wrongdoing has occurred”.—[Official Report, Commons, 24/11/14; col. 672.]

I know that Mr Docherty would have preferred MPs not to vote on the proposals, leaving it entirely to your Lordships’ House. Nevertheless, he did presage the possibility that Labour Peers could,

“work with … Lib Dem colleagues to draft workable, robust and watertight proposals. We are clear that we are not giving up on the principle behind the new clause and amendment”—

on the third trigger—

“and we urge him to take the same approach”.—[Official Report, Commons, 24/11/14; col. 675.]

We are very open to that offer. We have all been asked in this House to do this work. We should therefore, at the very least, give it our very best efforts. If we can secure good, robust amendments in this place, it will then be for the Commons to take them or leave them. As the Minister put it at the end, the more fundamental point,

“is a matter for this House”—

that is, the Commons—

“and the other place, and any amendments”,

from us,

“would return to this House to be determined”.—[Official Report, Commons, 24/11/14; col. 680.]

This is, of course, the Second Reading debate, so I do not intend to expand further on the details of the amendments that we will bring forward. The principle behind recall in the case of serious wrongdoing is relatively simple and clear, yet the practice of implementing that principle is neither simple nor clear. As ever in your Lordships’ House, we have work to do to bring the two together. I look forward to working with colleagues on all sides of the House to do just that.

[Lord Campbell-Savours]

My Lords, I would like to welcome the Bill, but I cannot. While I support much of what is in trigger 1 and trigger 3, subject to the caveats expressed by my noble friend on the Front Bench in his very interesting speech, I want to concentrate on the very narrow issue of trigger 2, in particular the impact of the Bill, now that it has been amended in the Commons, on the operation of the House of Commons Standards Committee. I do so having served as a member of the Select Committee on Members’ Interests in the Commons, which dealt with these matters between 1983 and 1991, and as a member of the Standards and Privileges Committee from 1995 to 2001. I have had on aggregate 14 years’ experience on this particular committee and its predecessor in the Commons. I gave evidence to the Nolan commission inquiry and saw some of my recommendations accepted, and I have sat through innumerable inquiries in the House of Commons dealing with these matters. It is in that light that I express my reservations today, which I would ask, in particular, former Members of the House of Commons to consider very seriously, and in particular the noble Lord, Lord Tyler, whom I wish to consult.

I support recall. I have supported it right through from the late 1980s, after the John Browne, Member for Winchester, inquiry, to which David Leigh, the Observer journalist, gave evidence. It was following that inquiry that I began to realise that there was a case for constituents to have the right to remove Members in certain conditions. But this Bill is fatally flawed.

In the original Bill, the trigger 2 recall condition was based on the House ordering suspension for 21 sitting days. On 24 November, my honourable friends on the Labour Benches in the House of Commons moved an amendment, Amendment 14, which I believe was a grave error of judgment. I think that there has to be a reconsideration of that amendment. What the amendment did was to reduce recall from 21 days to 10 days. The words in the amendment were,

“where the period is expressed as a number of sitting days, the period specified is a period of at least 10 sitting days”.

In doing that, in my view, they destroyed much of the Bill. What they did was to turn a quasi-judicial committee—which is what it always was when I sat on it—into a political committee.

I shall explain why; it is very simple. Let us say that I am a member of the committee and am sitting there when we are dealing with penalty and discussing a particular case. If I find nine days’ penalty, there is no problem. If I find 10 days’ penalty, I could effectively trigger a national by-election, with huge expenditure—hundreds of thousands of pounds; tens of thousands of pounds by the local authority—simply because I have decided on that additional day. The critical point is the difference between nine and 10 days.

What will happen in that committee is that instead of acting in a quasi-judicial way, it will become a political process; it will make political judgments. I have to confess that if I had been a member of the committee in those circumstances I would have had colleagues in the Tea Room saying to me, “Dale, hang on a minute. Before you decide on 10 days, just remember what is going to happen. It might be that we’re going to have to spend hundreds of thousands of pounds”—or whatever it is—“on a by-election”. You cannot proceed on that basis. You cannot turn a quasi-judicial committee of the House of Commons into a politicised committee where it makes political judgments. That is what Labour’s amendment in the House of Commons did, and that is why it has got to be stopped. I will be moving an amendment on Report to turn that amendment over and reverse this very grave error of judgment.

Why did it happen? It happened, in my view, because the people behind the amendment lacked experience. What I call the boys in short trousers simply did not know what they were doing. There was not a proper consultation. Indeed, there was not a consultation of the Privileges Committee. If there had been, it might have produced some very interesting results.

When it came to the Division on 24 November—which I have here in Hansard—when 204 Members voted for the amendment and 125 voted against, which way did the members of the Standards and Privileges Committees in the House of Commons vote? There are 10 members, and I am going to go through the way that they voted. These are the people on the committee that will be responsible for implementing this particular arrangement. The chairman, a Labour Member, abstained. Dominic Grieve, a former Attorney-General, voted no. Sir Nick Harvey—a prominent Liberal Democrat, important in the Liberal Democrats—voted no; Sir Paul Beresford, no; Mr Geoffrey Cox, no; Christopher Chope, abstained; Dr Alan Whitehead, abstained; and Sir John Randall, abstained. Only two members of the committee voted for that amendment. In other words, the committee realised the danger of what was happening but, because there was insufficient debate, the amendment was carried by the House. I believe that their actions in voting and abstaining in the way that they did was a desperate attempt to preserve the integrity of the Standards Committee, and I hope that the House of Lords has the guts to reverse that stupid decision taken by the House of Commons.

--- Later in debate ---

[Lord Campbell-Savours]

There is another scenario in which the Committee decides on nine days, but a political majority in the House of Commons decides to overturn—that is what the provision requires—the decision and make it 10 days. In other words, the House of Commons itself can take a political decision and completely undermine the quasi-judicial nature of the decision.

[Lord Soley]

My noble friend has more experience of this than I have, but he is absolutely right, of course. In any event, the public pressure in a case such as this might be very high, so you have to bear in mind that this will politicise it like mad.

This brings me to my final point: the House of Commons may come to regret this. At best it will be irrelevant; at worst, we will have one or two disastrous cases of the type that I have just described. So, I think we are right. I am always a bit cautious about telling my ex-colleagues in the House of Commons that they have got it severely wrong, but we have a duty to advise and warn. At the end of the day, it is up to the House of Commons to overturn this House. It is a mistake if people say that this House legislates. We only legislate inasmuch as the House of Commons allows us to legislate. If they do not like it, they can always chuck it out.

I end on this note: because I think there will be regrets about this Bill—it will not be the first time that either House has regretted certain Bills or legislation—it may be no bad idea if we put in a sunset clause to send back to the other House. I am willing to do that, but I would quite like to hear whether the Government would consider a sunset clause. We would allow the legislation to run, maybe for five years, and then the Act would cease if we found it to be either unnecessary or very damaging. I end very strongly with the words of Edmund Burke. He was very wise when he said that we give the electorate the absolute power to decide who represents them. Every time we slice away at that, as the case of Phil Woolas did, we do ourselves and the democratic process great damage.

--- Later in debate ---

[Lord Wallace of Saltaire]

I think I hear the noble Lord considering an amendment in Committee on that question. Again, we are open to consideration on all of this.

The noble Lord, Lord Tyler, tells us that he will reintroduce into our Chamber a revised form of the amendment introduced by my honourable friends David Heath and Julian Huppert. I look forward to that with interest. I have already discussed this with him, although I have to say that, at the moment, neither I nor the Bill team is persuaded that it is a workable additional trigger in its current form.

The noble Lord, Lord Campbell-Savours, asked about the technical amendments that the Government are introducing and whether that changes the 10-day trigger. The answer is no, they do not change the 10-day trigger. These are purely technical amendments to ensure that the amendments put in in the Commons fit with the language of the Bill. If he wishes to raise the 10-day question in Committee, that is a matter for him.

[Lord Campbell-Savours]

In the light of a number of contributions today referring to the difficulties that will arise in the Standards Committee, will Ministers now consult, both privately with members of the committee and with the leadership of other political parties in the Commons, to see whether there may be a need to rethink the position that has been taken on this?