Recall of MPs Bill

Lord Norton of Louth Excerpts

Wednesday 17th December 2014 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, a provision for a recall of elected representatives is used by a number of nations but it is an exceptional procedure. It is exceptional in that the nations employing it are in a minority and within those nations the use of the procedure is rare.

The Bill seeks to put the United Kingdom in that exceptional category. It does not replicate recall as understood in some systems; that is, by removing a person from office through a local referendum, asking should the person be recalled or not, and followed, in the event of a yes vote, by a new election. We have no experience of recall, although we do have experience of a mechanism for triggering by-elections: when MPs were appointed Ministers, they were subject to re-election in a by-election. That remained the case until 1926.

There is clearly a debate to be had as to whether such an exceptional procedure as recall should be introduced in the United Kingdom. That debate, though, has already been had in the other place. I do not believe we should be challenging the ends of the measure, as decided already by the Commons. Our task is to focus on the means. Given that it is clearly a measure of constitutional significance, it merits enhanced scrutiny.

My starting point, therefore, is the question: what is the Bill designed to achieve? Once we know that, we can see whether the provisions are adequate to the task. As we have heard, the Bill is essentially the product of the expenses scandal of 2009. In the wake of that, the three main parties brought forward proposals for recall. The intention is to restore trust in politics through allowing electors to remove an MP other than at a general election when the Member falls below expected standards. According to the Deputy Prime Minister in the other place:

“It strikes a fair balance between holding to account those who do not maintain certain standards of conduct, while giving MPs the freedom to do their job and make difficult decisions where necessary”.—[Official Report, Commons, 11/9/14; col. 41WS.]

My concern is more with the first part of that balance than the second. If one wanted to ring-fence the independence of MPs, one would not have the measure at all. Given that the other place has agreed the Bill, the focus must be on having some safeguards. There is a need to ensure that the provisions do not work against Members who express independent views, though I am not sure that electors do have a desire to move against MPs who are independent in approach—rather the reverse. MPs who challenge their own party and are working hard in the constituency generally have no reason to worry. When Enoch Powell regularly voted against his own party in the 1970-74 Parliament—which he did 115 times—consideration was given to withdrawing the whip. It was decided not to pursue that because the Whips recognised that he was too well entrenched in his constituency.

In any event, provision for a form of advance recall already exists through local parties. They can deselect sitting Members. They are not removed immediately, but in effect are sacked, the sacking taking effect at the next election. That is likely to continue to be a more potent constraint on the actions of MPs than the provisions of the Bill.

My principal concern, therefore, is whether the Bill will do much to restore trust in politics. As it stands, I am not sure that it will. It is designed to hold to account those who, in the words of the Deputy Prime Minister,

“do not maintain certain standards of conduct”.

The problem, as we have already heard, is that these standards are determined by Parliament and not by electors. By-elections can be triggered only if an MP breaks the law and is sentenced to a custodial sentence, is convicted under Section 10 of the Parliamentary Standards Act 2009 or is suspended for at least 10 sitting days by the House of Commons. In other words, it is a matter either for the courts or for the House of Commons as to whether a recall petition can be started, and judges and MPs will be aware of the potential consequences in passing sentence or voting for suspension. Electors can engage in a recall petition only when given the green light by a body external to the constituency.

The provisions leave out electors and they omit conditions that electors may well believe fall below their expected standards. One is where an MP switches party without triggering a by-election. Douglas Carswell made the point in the Commons that:

“I feel so strongly about recall that I recalled myself”.—[Official Report, Commons, 21/10/14; col. 804.]

The conduct of Messrs Carswell and Reckless in triggering by-elections may have set a precedent, but what if future defectors ignore it? I am aware of the argument that they should not have to submit themselves for re-election. It is a powerful argument, but it has to be seen now in the context of the Bill and what it seeks to achieve. Will not electors in a constituency who have elected a Member on one political programme have cause to feel aggrieved if that Member then switches to another without them having a say in the matter? That Member will have fallen below the standards they expect. That grievance will be all the greater now given the combination of the precedent set and the provisions of the Bill.

The other condition would be where a Member neglected a constituency, failing to perform constituency duties but not in a way that fell foul of the Code of Conduct and triggered action by the House resulting in suspension. The neglect may be such as to result in deselection, but what if electors wish to take action to ensure that the neglect does not persist for the rest of the Parliament? My argument is that the Bill as drafted is in danger of raising expectations that cannot be met. Electors are led to believe that they can recall errant MPs, but they have no direct say in whether a recall petition can be triggered, and the triggering provisions in the Bill exclude conditions that to electors may constitute especially egregious failures to meet the standards they expect of their Member of Parliament.

What can be done to address these problems? The obvious answer is to provide for electors to have the capacity to trigger a recall petition. This need not be in place of the existing three triggers in the Bill, but rather in addition to them. In the Commons, Zac Goldsmith moved an amendment to provide that if 5% of voters in a constituency signed a “notice of intent to recall”, and 20% then signed a recall petition, a recall ballot would take place. That was rejected, and there may be little merit in pursuing it in that precise form. However, it may point us in a direction that is worth pursuing.

There is a case for pursuing a true recall provision, as utilised elsewhere. This would also have the advantage of building in a powerful protective element against misuse by political opponents or a minority of aggrieved constituents. One could have a recall petition which, if signed by 15% or 20% of registered electors, would trigger a true recall election—that is, a clear binary election in which voters say yes or no to the Member remaining in office. If a majority in the ballot vote against them, the Member is out. There is then a by-election to elect a successor.

I appreciate that such a mechanism would incur costs—elections are not cheap—but the likelihood of its frequent use is remote. The cost would be offset by the achievement of direct involvement by electors, and by the need to achieve a significant number of signatures for a recall petition and a majority in the recall election. I see no problem with setting a fairly high bar for the percentage of signatures necessary for a recall petition. For a recall election to be held, there needs to be both breadth and depth of feeling among electors that an MP has transgressed standards.

The Fixed-term Parliaments Act 2011 provides for five-year fixed—or, rather, semi-fixed—terms. As we have heard, that is relevant in the context of this Bill. As a result of that Act, as the noble Lord, Lord Grocott, has said, electors are likely to have the opportunity to elect their MPs at less frequent intervals than was previously the case. That has the potential to undermine, rather than enhance, trust in politics—and this Bill will do little or nothing to counter that effect. My view is that if we are to restore trust in politics, we need something more imaginative than this Bill. However, given that we have the Bill, we must do our best to ensure that it at least goes some way to achieving its intended purpose.

[Lord Dubs (Lab)]

My Lords, before I come to the substance of what I want to say, I will comment briefly on what the noble Lord, Lord Norton, just said. I found myself agreeing with quite a lot of it, until he came to his idea of recall petitions. I cannot think of anything that would undermine democracy more than to have an open door for any group of people in a constituency, particularly those who are well financed, to have a go at an MP. How can an MP vote according to their conscience, how can an MP do their job, if they are always watching their back to see whether there is a group of people trying to undermine them? It would destabilise the position of MPs, and I do not think it would be a good idea.

[Lord Norton of Louth]

My whole point is that such a provision would raise the bar that would have to be overcome before there could be a recall petition. It would actually protect the Member far more than if there were a lower threshold. The chances of its being used are extremely slim, to put it mildly—but the fact that it was there would be a protection for constituents, a majority of whom in a ballot would have to vote for a recall.

[Lord Dubs]

I am afraid that if it is simply a matter of collecting signatures, I am not sure whether that provides the protection that the noble Lord claims. All I know is that I would have been miserably unhappy in my time as an MP if I had had always to watch my back—not on issues of principle, not where there were clear arguments at stake, but because some group of people who did not agree with my views on abortion, or whatever, might seek to undermine me. And they would have done—of course they would have done. I just do not think that representative democracy can work on that basis. I have to differ from the noble Lord; I think that if he talked to most people who have been elected to the House of Commons, they would agree with me and not with him.

I watch “Question Time” quite often, and I watched it last Thursday night. One of the things that happened also happens at other times on that programme. Whenever an adverse comment about the integrity of MPs is made, either by somebody on the platform or by somebody in the audience, there are enormous cheers from the audience. I find it rather depressing and sad that so many of our fellow countrymen and countrywomen—or at least, those who get selected as a “Question Time” audience—think that jeering and shouting abuse at the people who are elected is somehow helpful to democracy. I think that we have gone far too far in denigrating those whom we elect; I shall say more about that in a minute.

I support the principle of recall, as does everybody else who has spoken—but we must be careful that, in putting this Bill forward, we do not seem to overpromise to the voters about what will happen. I suspect that some of them will believe what the noble Lord, Lord Norton, has just said—that that is what they are in for. We must be careful, because the Bill is, in some ways, rather limited.

Comments have been made about whether, when an MP switches parties, there should be a by-election. To the best of my knowledge of this—I have not done a survey—MPs who switch parties have a by-election only if they think they are going to win. If they do not think that they are going to win, they jolly well hang on in there until the next general election. Looking back at this over the years, it seems to be the case. I am not arguing that this is not a matter of integrity, and that if an MP switches party they should not call a by-election. It may be a good thing—but I am talking about what happens in practice.

All parties, in their last election manifestos, made some reference to the desirability of recall. I am conscious that when the House of Commons passes a measure that affects that House rather than what we do here, we must be very careful before we take issue with what its Members have decided to do—because it is very much their responsibility. Nevertheless, I think we are right to be critical: there is no point in having a second Chamber unless we can be critical of anything that the other House does.

I particularly want to comment favourably on the speech made by my noble friend Lord Campbell-Savours. He put his finger on something absolutely crucial. He speaks with a great deal of experience, and he has driven a coach and horses through that provision in the Bill—because it is obvious that behaviour on the Standards Committee will be precisely as he said it would be. We must look hard at that provision.

Of course it is right—this is where I differ from the suggestion of open recall—that elected politicians should not be subject, between elections, to recall for their views, even if some of their views might not be too popular among their constituents. The time to deal with that is at the following general election. Otherwise we would belittle the principle that matters of conscience are important, and belittle the ability of Members of Parliament to exercise their conscience without being under pressure from one moment to the next.

I looked up what the excellent Library Note says about other recall measures in different countries. In the United States they seem to have a variety of models of recall. Some of them are open, as the noble Lord, Lord Norton, suggested; some are more limited. I am not sure that there is anything very useful we can learn from them. In Switzerland, although there is no right of recall for federal elections, six of the 26 cantons do have the right of recall—but that right applies to the whole of the canton, not just to individual elected politicians. I am not suggesting that we should do that, although I suspect that if we had that sort of right of recall, the coalition would have been thrown out several years ago—I just mention that in passing.

One matter that bothers me is not included in the Bill. That is the question of the election court. I think it was in 2010 that Phil Woolas, a Labour MP, appeared before the election court, lost his seat and was not allowed to stand again in the following by-election. Whatever he did, some other potential wrongdoings by Members of Parliament may appear more significant. I am not saying that he did nothing wrong, but if we are to have a system of recall as envisaged in the Bill, we should include what the election court does, because I see no reason why Phil Woolas should not have been allowed to stand in the following by-election, his voters having heard what the election court said. The penalty on him was out of all proportion to what he did.

Perhaps I may say a little about respect for elected politicians, which I mentioned at the beginning. We now have a culture in which it is standard to abuse elected politicians. They would do it to us if we were elected. That does not mean that I do not support elections here, but that is a different argument. The way in which MPs are denigrated, abused and vilified, as my noble friend Lady Corston described, devalues democracy. One cannot run a democracy effectively unless there is some respect for the people who are elected through that system. We are weakening our democracy by allowing that to continue, and it is important that we speak up.

It may be that the Bill is intended to be a small step along that path—if so, fine, although we have reservations about the detail. It is time that we as a country stood up and said, “We elect these people. They face the electorate every few years. They can be thrown out, but in the mean time, we should not denigrate and abuse them and imply that they have the basest of motives”. From my knowledge of MPs—I have known quite a few over the years—whatever party they are from, they are all there to perform an act of public service. They are not doing it for the money—or if they are, they are jolly mistaken if they think that that is the way to get money—but for principles. I may not agree with some of their principles—that is why we have a party political system—but they are there because they want to serve their fellow citizens, and it is time that we all stood up and said that.