Recall of MPs Bill

Lord Gardiner of Kimble Excerpts

Monday 19th January 2015 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I found the travels of the noble Lord, Lord Hamilton, around the highways and byways of Richmond Park interesting. When this Bill was first thought of, we were thinking it was going to be a Sheffield Hallam one with the NUS bussing in its students. So we have come further south from that early discussion.

Amendment 51 is interesting. As I said earlier, although I think the noble Lord, Lord Hamilton, was not in his place at the time, the amendment could answer the queries that I had raised about whether the process is secret or effectively open. It is another way of dealing with that by allowing people to vote against and not just in favour of a recall by-election. It would certainly be a clearer option for electors who know that they have a choice. They can express that choice, having thought about the issue.

It is not, of course, what the Bill proposes so I am not able to offer support for it, particularly as it would negate a by-election simply if 10% voted against. You could have 30% wanting a by-election and 10% against. Under the amendment as drafted, the 10% would trump the 30%, which I am sure would not be a desirable outcome.

With regard to the increase to 20%, what the right reverend Prelate the Bishop of Chester was saying was interesting. From that, I might take the other view; if you get the 20% you have lost a fifth of your electorate. Effectively there will be no by-election. After having 20% against them, no one will possibly contest the by-election; so there would be a by-election, but not with the MP there. The purpose of the Bill, as it has been drafted, was that there should be the possibility of a by-election at which the MP refights that seat and tests the issue as to whether, despite whatever they have been found guilty of, they are nevertheless able to represent their constituents. My concern about the 20% is that it undermines the difference between a by-election and a recall petition.

I acknowledge that the Political and Constitutional Reform Committee recommended 20% but I do not think that we should pray that in aid given that it wanted no sight of this Bill whatever. I look forward to the Minister’s comments. The interesting thing is why on earth 10% was chosen and not 5% or 15%. The problem of 20% is that it effectively gets rid of the idea of having a by-election that the MP would fight. In that sense, it goes against the spirit of the Bill.

[Lord Gardiner of Kimble (Con)]

My Lords, this has been an interesting debate and I have listened carefully and seriously to all the points that have been made. I know I am repeating this point, but it should not be forgotten that for a recall petition to be opened in the first place a Member of Parliament would have had to have committed serious wrongdoing and to have met one of the three conditions in the Bill. All of your Lordships know very well what those three triggers are.

The noble Lord, Lord Howarth of Newport, raised the concern that a future Parliament might do this or that with other triggers. We obviously cannot bind what another Parliament might wish to do. This Bill before us is about three triggers which involve serious wrongdoing. That is the right balance. That is the point which the other place had come to as well. We believe that reaching the figure of 10% of constituents signing the petition would show a significant level of support for a recall and would trigger a by-election in which the sitting MP could stand.

[Lord Howarth of Newport]

The noble Lord is invariably fair-minded. Is he really relaxed about and content with arrangements whereby someone could be subject to a petition by 10% of their electors precipitating this trial by ordeal, which would then take the process beyond the eight week period through to a by-election, while it is entirely possible that 90% of their constituents thought that there should not be a by-election and that recall was the wrong thing to do but have no opportunity under the Government’s proposals to express that view?

[Lord Gardiner of Kimble]

I understand that, of course, but the whole purpose of the legislation is for the three triggers to be for serious wrongdoing. If a Member of Parliament has been found guilty, convicted or suspended up to the level, it is a view that there should be an opportunity for constituents to decide whether there should be a recall and then, if a certain threshold is reached—noble Lords have made different points about the level of that threshold—there will be a by-election. It will then be for 100% of the electorate to come to a view about what they want to do for their future representation.

[Lord Howarth of Newport]

Does the Minister accept the very powerful point made by the right reverend Prelate the Bishop of Chester that in reality it is hardly likely that an MP who had been subject to everything that will have occurred in the run-up to the result of the petition would actually want to contest a by-election? Is he not actually being drummed out of Parliament through this process in a way that must leave the Minister deeply uneasy?

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[The Lord Bishop of Chester]

My Lords, perhaps I may just add to my point. I take what the noble Baroness, Lady Hayter, said, and I can see the argument both ways. I do not think that any political party would support a candidate in those circumstances. Maybe I am misreading this but, given the dynamics of the media, I simply cannot see the reality of a political party supporting the MP in those circumstances.

[Lord Gardiner of Kimble]

My Lords, I think this goes to the heart of the issue. If one believes that the three serious triggers for serious wrongdoing that have been set and agreed in the other place are to be adhered to, there would be this opportunity for the electorate in that constituency to have another opportunity. We are obviously at the heart of whether or not there should be legislation. The Government believe, as I think do the opposition Front Bench, that for certain conduct there should be an opportunity for the electorate of that constituency to have their say again on who represents them.

We have almost got to a point where I know that there are noble Lords who are very unhappy about the Bill, but the point is that the Government and the other place feel that there should be triggers whereby recall should take place. It is perfectly respectable for noble Lords to oppose this, but I am afraid that I disagree with the view that there should be no opportunities for recall—hence this Bill.

[Lord Hughes of Woodside]

I am afraid that the Minister misunderstood what I said. The recall provision can be triggered only if one of the three things is invoked—there is no question about that. It then goes to the petitions commissioner—no question about that. However, the Minister and I, and indeed all noble Lords in this place, know that the discussion that takes place during the 20 days or however long it is will not be about the trigger at all. It will not be a discussion about how well or badly the MP has behaved; it will be entirely about political matters not connected in any way with the triggers. That is the dilemma that we are in. I am afraid that the 10% level makes it all too easy for that to take place. It is not a case of saying that there has not been wrongdoing, or that it has not been triggered. The question is: what will be discussed during the 20 days? If there are 20 days from the moment when the matter is referred to the petitions commissioner, the debate will take place entirely outside the Member’s individual behaviour.

[Lord Gardiner of Kimble]

I understand that. That is why I say that it comes to a different view and a different impression of whether there should not be a recall because of the issues that the noble Lord outlines. However, I think that there should be opportunities, where there has been serious wrongdoing, for there to be recall. That was in the manifesto pledges of the three main political parties and in the coalition programme. We are getting into a discussion—which I respect entirely—with noble Lords who do not like this Bill, but the point is that the other place, the Government and the Official Opposition are of the view that there should be certain opportunities, with safeguards so that representative democracy is not thwarted; of course we should defend that very strongly.

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[Lord Gardiner of Kimble]

My Lords, I will continue and I hope that it will then unfold. Obviously there can be moot discussion as to whether it should be 5%, 30% or 40%; all sorts of figures could be suggested. However, if I may outline a bit more, the by-election itself would determine who was the MP; the petition would simply trigger the by-election. So while it could be argued that 10% of constituents signing the petition could mean that 90% of them wanted to keep the MP, if that were indeed the case, they would have a chance to show that at the subsequent by-election.

On average—I think this goes to the point that the noble Lord, Lord Foulkes, was seeking to wrestle with me about why 10% was chosen and not 15%, 20% or 5%—a constituency has around 70,000 to 75,000 constituents. With a threshold of 10%, around 7,000 to 7,500 signatures would be required to trigger a by-election. That is one of the reasons why the Government came to the view that that was about the right number; it was a serious number of people. Increasing the threshold to 20% would obviously require between 14,000 and 15,000 constituents to sign in order to trigger a by-election. Again, this is a matter of balance, but there was a feeling that raising the level to 20% would make it more onerous for constituents worried about an MP after serious wrongdoing to hold that MP to account.

One can have all sorts of interesting discussions about what the right percentage would be. The Government set out 10% in the coalition programme for government, and that was the figure contained in the draft Bill and which the other place was content with as the correct level at which to set the threshold. The noble Lord, Lord Foulkes, asked me for a straight answer. Those are the sorts of considerations that came into it.

[Lord Forsyth of Drumlean]

My Lords, I apologise that I was not here for the earlier part of the debate; I was attending the Joint Committee on the National Security Strategy. I do not think my noble friend really understands the practical point being made, which is not about the merits of the Bill; it is that if someone finds themselves in a position where they are subject to a petition, they are already dead and their political party will no longer adopt them as a candidate. In those circumstances, they are not going to get elected. So, as was pointed out at an earlier stage in our proceedings, the sensible thing for any Member of Parliament in those circumstances to do, if they still have the support of their party, would be to create a by-election and stand as a by-election candidate.

By creating this procedure, if a Member of Parliament is subject to this procedure and they still have the support of their party, then if the threshold is set at the lower level of 10%, all the people who do not like the Member of Parliament because he is a Tory or whatever will be able to campaign and undermine him. So this does not actually deliver what the Government say they want, which is a procedure that allows the electorate to decide, rather than the party machine or the House of Commons, whether someone should be deprived of their seat in the Commons. It just does not work.

[Lord Gardiner of Kimble]

My noble friend is of course entitled to his opinion and has made the point a number of times about whether a party would reselect the candidate. I do not think that any of us can say, and it would depend on every circumstance that came forward. As I say, this is the Bill that is before us, and I think that the three triggers are reasonable. If they were not reasonable I would feel very uncomfortable, but serious wrongdoing is a point—

[Lord Martin of Springburn]

One point of clarification would help me. The noble Lord, Lord Hamilton, put the case that cars—and quite luxurious ones for that matter—could be used during the course of seeking petitioners. Can the Minister say whether there will be a financial limit on the amount spent for that petitioning purpose? In every other democratic system there is a limit, and a very strict one at that.

[Lord Gardiner of Kimble]

I thank the noble Lord for that point. We will come to amendments on precisely those sorts of matters, so I am grateful to him for raising that.

Those are the points on the 10%. I turn to the new clause proposed by my noble friend Lord Hamilton about the counter-recall petition, which would be available for signing alongside the recall petition. That would allow constituents to indicate that they did not want the MP to be recalled from the House of Commons, and for a by-election to be held. The proposed new clause provides that, if the counter-recall petition were to be signed by at least 10% of the constituents, regardless of how many people had signed the recall petition the MP would not be recalled and a by-election would not be held.

The noble Baroness, Lady Hayter, raised the figure of 30%, but I will take it further. If up to 90% of the constituents signed the petition calling for recall, yet only 10% signed the counter-recall petition, despite a much higher percentage and overwhelming public support for the MP’s recall in this case—and I use a hypothetical case to show our concern—a by-election could not be held.

The proposals in the Bill are not for recall on any grounds. Although it is fully understood what those triggers are, a number of noble Lords have brought forward concerns about whether it was on the case of any grounds. These provisions in the Bill are for recall in cases of proven serious wrongdoing; I emphasise that deliberately because those are the triggers that would have to be met. Such is the seriousness of them that all those three triggers—

[Lord Foulkes of Cumnock]

For the last hour or so, led by the noble Lord, Lord Finkelstein, everyone has gone on about serious wrongdoing. We are talking about any period of imprisonment. When one appears before a magistrate, they can decide either to say, “Seven days in prison” or “A fine of £500”. It is entirely in the magistrates’ gift to do that. Some magistrates have political views as well, by the way. Someone could be put in prison for seven days instead of being fined £500, and this trigger would take effect. Is that not correct?

[Lord Gardiner of Kimble]

The legislation is very clear that if a Member of Parliament were convicted and sent to prison for seven days, they would be deemed to be in breach of criminal law. The point of the legislation is to enable a constituency or the electorate of that constituency to decide by the recall trigger and then by the by-election. The noble Lord is absolutely right: whether the figure is seven days or 11 months, as one knows, after 12 months there would be a disqualification under the Representation of the People Act.

[Lord Foulkes of Cumnock]

That is an automatic disqualification—I understand and accept that. However, the situation is that the magistrate has discretion as to whether to fine someone or send them to prison. I do not know if the noble Lord, Lord Finkelstein, has been a magistrate; I have. That could be a political decision, which could decide whether to trigger the recall petition. Therefore if I was sitting in the court and a Conservative Member of Parliament appeared before me, I could say, “I’m not going to fine him £500—that would be pointless. I’m going to send him to prison for seven days and immediately trigger that recall petition”. Is that not correct?

[Lord Gardiner of Kimble]

My Lords, I would be surprised if any magistrate did that—I think of the requirements to be a magistrate. The noble Lord was a magistrate. I would be very troubled if a magistrate put themselves in a position where they could be accused of taking a political decision. That would be a very serious accusation of the magistracy to think that it would take a political decision of that sort. I am also concerned about the suggestions about the Standards Committee that we heard. Those are very serious matters.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Gardiner of Kimble]

I will finish this—I am sorry. It would be a very serious accusation to suggest that people in public office who have very serious responsibilities, or those in the courts, were taking political decisions. I would be extremely worried by that. The Bill deals with the situation in which someone is imprisoned for up to 12 months when there is a trigger if someone is convicted. That would be a trigger, but it would not remove the Member of Parliament. If such a case arose, it would be very interesting to think what the nation thought. If it was suggested that a political decision had been taken by a magistrate, that would be a very serious matter.

[Lord Foulkes of Cumnock]

I have great respect for the Minister, but I am afraid that he is exhibiting a little bit of naivety with regard to that. If he thinks back to some cases in the past, he will see that on occasions decisions have been challenged as being made for less than dispassionate and objective reasons, so that can arise. I am saying that it is very easy for that trigger to be pulled in that kind of instance: a seven-day sentence would initiate it. That is not—as other noble Lords, such as the noble Lord, Lord Finkelstein, have described it—a very serious wrongdoing. It could happen because of a series of parking or speeding offences, or some other matter. All sorts of things could trigger that—such as getting your wife to say that she was driving your car.

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[Lord Gardiner of Kimble]

My Lords, I am grateful to the noble Lord for that further contribution. The Bill is about these three triggers. The Government believe that they are the correct triggers for recall. Whether they are for serious wrongdoing or wrongdoing obviously is a matter of opinion; but the Government’s view is that these are three triggers that the other place viewed as being examples and the three triggers for recall.

I ought to make some progress on this. The intention of establishing the recall petition is to allow constituents to hold their Member of Parliament to account. We believe that 10% of constituents is the correct figure. In most cases that would be over 7,000 constituents. Under this Bill, the level of popular support that the Member of Parliament has would be properly tested at the by-election, not through a counter-recall petition.

I am most grateful to noble Lords for this debate. The Government remain of the view that the 10% threshold is the appropriate level, and therefore I ask the noble Lord to withdraw his amendment.

[Lord Hamilton of Epsom]

I am very disappointed with my noble friend, because I think that we proved very conclusively how very easy it is to reach this threshold. My other worry is that I suspect that this Bill is just a start for more recall Bills, given that—let us face it—people who believe in the recall of MPs are not remotely satisfied by the Bill and will be coming back with additional ideas of circumstances in which Members of Parliament can be recalled. In the mean time, we will have the 10% threshold locked into the Bill, which will be virtually unchangeable and, as I hope we have proved pretty conclusively, very easy to reach. However, although I am very disappointed with my noble friend, I will of course withdraw the amendment.

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[Lord Kennedy of Southwark]

My Lords, the probing amendment proposed by my noble friend Lord Hughes of Woodside raises the important matter of what is said about an MP in a campaign in connection with a recall petition. Many noble Lords who have spoken in our debates on the Bill have expressed concern that MPs who take up causes that are unpopular and then find themselves subject to a recall petition could find that opponents use campaigns or issues that have nothing to do with the issue in question to try to take advantage of the situation. That raises a very important point for your Lordships’ Committee.

My noble friend Lord Hughes was for many years the chair of the Anti-Apartheid Movement, but not so long ago not everyone was so well disposed towards that organisation and its aims. My noble friend made a point by giving examples of issues in his constituency, and I noted his comments about our reputation in the world with regard to the state of our democracy. He went on to make the particular point that there needs to be fairness in the process so that MPs are not allowed to be judged or abused on the positions they take as part of their job of being an MP and which have nothing to do with the actual issue in question. They should be judged on the subject of the recall petition itself. I hope that the noble Lord will respond carefully to the issues that my noble friend raised.

[Lord Gardiner of Kimble]

My Lords, I am most grateful to the noble Lord, Lord Hughes, for his amendment, which intends that in the event of any material being written, spoken or broadcast that is unrelated to the wrongdoing which initiated the recall petition and which is detrimental to the MP, the petition will become null and void.

The Government believe that there are three significant concerns as to why this amendment presents difficulties. Indeed the noble Lord, Lord Hughes, referred to the first, which is the principle of free speech—an issue which of course all of us in this House prize very strongly. I do not think that we should, in effect, severely restrict what individuals, including MPs, constituents and the media, may say or write for a period of eight weeks.

My second concern is the appearance that this amendment gives of particular and special treatment for a Member of Parliament. The noble Lord’s amendment states that it is only material unrelated to the wrongdoing and which is detrimental to the MP that will cause the petition to become null and void. That leaves the clear interpretation that there will be no such consequences to publishing material unrelated to the wrongdoing that is beneficial to the Member of Parliament facing recall. Indeed, while I realise the view of my noble friend Lord Forsyth on the Bill, here he is absolutely right. The third concern is that the proposals would make recall unworkable. Indeed, who would determine whether something is detrimental—and is that even possible?

I say by way of example that it would be impossible to conceive of an eight-minute period, let alone an eight-week period, which could pass without even one example of detrimental material being put into the public domain. The noble Lord’s proposals would make it very difficult for any recall petition to reach its conclusion because it would be quite simple for the supporters of a Member of Parliament to put out negative comments just to secure that outcome. I hope that the noble Lord will accept that I entirely understand and accept his good intentions, but, for the reasons I have outlined, I hope he will feel able to withdraw the amendment.

[Lord Hughes of Woodside]

Someone once said that the road to hell was paved with good intentions. In my initial remarks, I referred to the fact that this might well be seen as an attack on free speech. I appreciate that point very much indeed. Of course, it has been pointed out that people who use beneficial comments might also be struck out. The difficulty I have is that the recall petition is a kind of trial. If you are on trial for a road traffic offence, for example, extraneous behaviour such as that you got drunk the night before or were drunk during the trial would not be allowed in court because it could influence the result of the trial. Therefore, I am deeply unhappy because that is what, in fact, will happen. However, I do understand the problems.

My noble friend Lord Howarth raised an intriguing point about opinion polls. I had thought of that and was not quite sure how to proceed, but I had in mind that an amendment along the lines of banning opinion polls during the eight-week period might well be an amendment for Report. I am glad he has reminded me of that, and I hope it will be taken up, if not necessarily by me, then by others.

We are in extremely difficult times with this Bill. We are torn between trying to see justice for MPs and giving constituents the opportunity to exercise their rights in relation to their MP. In all the circumstances, I believe that the best thing to do is to withdraw the amendment.