Recall of MPs Bill

Lord Lansley Excerpts

Monday 24th November 2014 Commons Chamber

[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.

--- Later in debate ---

[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 ---

[Mr Lansley]

I want to express my support for the Bill as it finishes its passage through this House. In particular, I want to repeat the point made by my hon. Friend the Parliamentary Secretary that the Bill was introduced on the basis that the principal parties in this House went into the last general election with manifesto commitments to a form of recall, and that is substantially reflected in the Bill.

Some Members have attempted to wear the cloak of democracy and say that we should have passed a completely different Bill that said something radically different and that would have rewritten, on the back of a day or two’s debate in the Chamber, the relationship between MPs and their constituents. The hon. Member for Dunfermline and West Fife (Thomas Docherty) was rightly critical of that proposal and made it clear that it would change us substantially from being a representative democracy to being a more direct democracy whereby the electorate, notwithstanding their decision at the general election, could reach into the Chamber of the House of Commons, pull out Members and try to eject them on whatever grounds they chose, and at a time of their choosing, between one general election and another.

For that reason, I do not think the Bill is friendless. The Bill has merit and the fact that it will be relatively sparingly used in practice will, I hope, reflect the changed climate of behaviour in this House. It is important to note that during this Parliament the Independent Parliamentary Standards Authority has not referred anybody to the Standards Committee to be sanctioned for breaching the expenses requirements of this House. The Standards Committee has been acting in relation to events that took place before this Parliament, not during it. We have changed since 2009-10. We have introduced proper independent scrutiny and we have a structure of sanctions.

Contrary to the points made on Report by my hon. Friend the Member for Richmond Park (Zac Goldsmith), I do not think that the Bill’s second trigger simply hands the issue to a committee of parliamentarians upstairs. I hope that when the House of Lords considers the Bill, we in this House will continue to consider how to make the work of the Standards Committee more independent and transparent. I know that the Standards Committee, and its Sub-Committee led by its lay members, is now looking at that matter.

I will not repeat all that I said on Second Reading, but it is important that the Committee does its job in the right way. When I was the Leader of the House, I put to the Committee my view that it should enhance the role of the lay members, and I made it clear not only that they should not bring forward a report without the support of the lay members, but that if they did, my successors as Leader of the House, whoever they were, would see it as their duty to ensure that the lay members’ views, including any contrary views, were put to the House for a decision. The truth of the matter is that, constitutionally, only the House itself can determine the sanctions applied in relation to membership of the House as a consequence of the actions of Members as Members of Parliament.

I hope that the House of Lords will recognise that the second trigger is not a cosy example of parliamentarians exercising judgment on parliamentarians. I hope that the Standards Committee, following its scrutiny, will propose in its report that the process should be led by lay people as much as by parliamentarians.

Parliamentarians and lay people should act on the basis of proven investigations. Much of what we have heard in the debate has concerned the idea that Members of Parliament should be subject to recall in relation to allegations, which they have to reply to, with no proper investigation and with no proven outcome from any investigation. That is where the Standards Committee, with the benefit of the Parliamentary Commissioner for Standards, should deliver a sound basis for deciding whether a Member of Parliament has been found guilty of any wrongdoing. That is a sound basis on which to proceed with recall.

It is a perfectly legitimate view of the nature of our democracy for people to want, as some clearly do, to have a much more open recall system, in which Members can be pulled out of the Chamber by their constituents at any time, but that view should be tested at a general election by being proposed in a party manifesto. I will not be standing at the next election, so it is not for me but for future MPs to make such a decision. For now, it is right and proper to deliver on the pledges we made to our constituents in our manifesto at the last election. We should not be in the least bit hesitant about saying that that is the right and proper step to take.