Recall of MPs Bill

Lord Soley Excerpts

Monday 19th January 2015 Lords Chamber

Moved by

[Lord Soley]

70A: After Clause 19, insert the following new Clause—
“Expiry
The provisions of this Act expire at the end of the period of 5 years beginning with the day on which this Act is passed.”

[Lord Soley (Lab)]

My Lords, this amendment would create a sunset clause; that is, it would bring the Bill to an end five years after the date when it became law. I came to the conclusion quite a few years ago that sunset clauses were useful in a couple of situations. That was originally drawn to my attention in the Prevention of Terrorism (Temporary Provisions) Act 1984, in which we had a sunset clause because the Government accepted that the powers in it were very serious and we needed to consider the idea of letting the Bill lapse if it did not need to be renewed. In fact those powers had to be renewed, and we did that. The other case in which it is useful, which is much more relevant to this one, is where the outcome in the Bill as regards becoming a law and its effect is very uncertain, and it contains constitutional implications. That is the case for reviewing it at the end of a certain period. The Minister may want to say that the Government do not like the idea of a sunset clause—I know some of the arguments against sunset clauses—but if they would like to consider just reviewing it at that stage, that might be another option.

I have two fears about the Bill. I will start with the simple one that does not keep me awake at night much: that it would be largely ineffective and might not even reach the statute book intact. There are so many uncertainties in the Bill, many of which we have heard about this evening, that it is quite hard to see how it would be in good enough shape to become a complete law before the general election. It will not surprise me if it does not quite achieve that. You could say, “Well, that could be the end of the matter”. The second and much more worrying fear, which causes me concern and which has come up a number of times on both days of Committee, is that there are possibly quite serious implications here. Indeed, the Constitution Committee picked out one of them, which we have referred to on a number of occasions. If the offence that a Member of Parliament commits is a political one, the committee indicates that the outcome of that is a very serious matter.

The noble Lord, Lord Hamilton, who has gone now, used the example of Zac Goldsmith and Heathrow Airport, of which I have some knowledge. I have no doubt that in due course the Conservative Party will change its position on the third runway and conclude that it was its idea to expand the airport all along and that I had nothing to do with it despite the last 20 years of campaigning. However, the important point about Zac Goldsmith is that, to his credit, he has indicated that he will resign from the Tory party if it changes its position. Let us assume that the party changes its position—which I think it will, whether it is in government or not—and Zac Goldsmith resigns from it. That would not trigger an election. However, he feels very strongly about this issue, and if he feels so strongly that he does some form of demonstration in the Chamber of the House of Commons and gets himself excluded from the House for more than 10 days, we will enter into this process. You have to ask, “Do you really want to create that sort of condition?”. The last few debates have been about how important it is to debate the issue of the MP’s wrongdoing. In this case, I suggest that if Zac Goldsmith behaved so badly—I am not saying that he would—that would be the effect, but the election would be all about the third runway at Heathrow, and all the campaigners on both sides would pour in on it. There are many examples of that; my noble friend Lord Hughes gave some, and I gave others. There is a danger of politicising elections.

The other thing that troubles me about this, and the other reason why some form of review or sunset clause is necessary, is because there are umpteen opportunities in the Bill for pulling in the judiciary. The last few amendments we have discussed are all replete with opportunities for legal challenges, which would go either to an electoral court or—which would be less likely, but is conceivable—to a conventional court. All that seems to be opening up an area where we pull the judiciary more and more into the political process, which I am very strongly against. The case of Phil Woolas that I quoted at Second Reading is a dramatic example of why we should not get the judiciary muddled up with political process, and of how right the 18th-century political philosopher was—his name escapes me—who said that the electorate are sovereign in the British political system. The electorate must decide. That is very real and we should stick to it, so keeping the judiciary out of politics is a good idea.

All that suggests to me that the case for having some review system at the end of the Bill would be useful. We need to remember that the sunset clause is an advantage. If the Bill is not used at all, which is quite possible, it will just die. It will come off the statute book and we will not have to bother about it again. On the other hand, if it requires reform, we can reform it at that stage. That was done with the prevention of terrorism Acts. The alternative is that it works fine and we can renew it. That is not a bad safety valve to have in a Bill of this nature, which has constitutional implications and, as I have indicated, certain serious provisions.

I looked through the Constitution Committee’s report and it contains a number of important issues. I will not repeat them all now because we dealt with some of them earlier. It is not just a matter of politicisation. As has come up recently, if the Electoral Commission is not to be heavily involved in this—and clearly it is not, from what has been said in Committee this evening—then there are all sorts of opportunities for challenges for the proper running of a recall election. What will happen then? Are we going to have to have another recall election, just as we would if an MP or someone else challenged the validity of a conventional election for that MP? There is an opportunity here for all sorts of applications to court, particularly on the expenses issue. Incidentally, Edmund Burke was the philosopher that I was trying to remember at this late hour.

We really need some way of ensuring that we can review this Bill. My best guess is that it might not be used much if at all, in which case it could die after five years. If it is used, frankly there could be very real dangers in it. It is very important, as the Constitution Committee pointed out, that there are ways of removing MPs. The expenses scandal was a classic example of that: several MPs were removed. Indeed, one of the saddest things about the Bill is that every MP in the House of Commons now has been re-elected by the electorate, who are sovereign in our system. None of them has done anything wrong. However, this Bill is about flagellation. As I think I said before, flagellation is a bad idea at the best of times but do-it-yourself flagellation when you are not even guilty of anything is ridiculous. No MP need be sitting at the moment thinking, “I have done something wrong”.

As the Constitution Committee points out, if the Bill is designed just to reassure the electorate, it is unlikely to have any effect. The most we can hope for is some sort of publicity of this sort of event and the hope that people notice it. The chances of people taking much notice of what is happening on this right now are very limited. If an MP did something, they would almost certainly be disciplined by the procedures that operated effectively even in the last Parliament. As I say, at best this Bill is unlikely to be used and therefore should die after a five-year period; at worst, we could have situations where very heavily political cases had to be fought on that basis. That is bad news for democracy and I ask the Government to look at a way of reviewing the effectiveness of this Bill after a five-year period and then to let it lie, to amend it and bring it back, to get rid of it or, if I am wrong and it works, to just accept that it works.

[Lord Norton of Louth (Con)]

My Lords, the noble Lord, Lord Soley, made a persuasive case. However, I am particularly drawn to the alternative that he identified, which is to provide for a review of the Act after, say, five years. The precedent already exists in the Fixed-term Parliaments Act. We have already written into that Act that it will be subject to review.

The Minister may say that this Act will in any case be subject to post-legislative review by the relevant department three to five years after enactment, but I think there may be a case with such a significant constitutional measure for the review to be post-legislative scrutiny and for it to be included in the measure. I commend that review proposal as an alternative to what the noble Lord is putting forward. It is something to which we may wish to return on Report.

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, I shall reflect on that.

[Lord Soley]

I am grateful to the Minister. I said in my opening remarks that the alternative was a review system and I think that the Government ought to think about that. It was interesting that in his summing-up the Minister used the phrase “defined tests”. He was obviously referring to the three tests that are used to trigger this process. It is not the tests that worry me so much, with the exception of the third one, which could become highly political. What worries me are the processes, which are so ill thought out and ill spelled out in the Bill. Ministers have again and again today been standing up and saying, “We are not sure how this will work. We are going to look at election law and bring it in”. There are so many uncertainties there. I can tell noble Lords that it is going to be a gift to lawyers if we do not get that bit right. We have not done it in the House. The process of this House as a reviewing Chamber has led, time and again, to the Government Front Bench saying, “Well, we will look at this further down the line”, or, “We hope to get regulations about it” or, “We will think about it”. Such uncertainty with regard to a constitutional Bill is almost an invitation for the courts to get involved, sooner or later, in some way. Either that or the Bill will not work as it is meant to. Indeed, the fallacy in the Bill is the lack of a clearly-defined process at a number of stages, and that is why I think that the Government should think about a review or a sunset clause. However, in view of what the Minister said—perhaps he will go away and think about it—I beg leave to withdraw the amendment.

Amendment 70A withdrawn.