Recall of MPs Bill

Lord Tyler Excerpts

Wednesday 14th January 2015 Lords Chamber

We are on a slippery slope with the Bill. I do not intend to delay the House on subsequent amendments but just want to put my views on record. I do not intend to call votes because the House of Commons—in its wisdom or, on this occasion, lack of it—has decided that this measure should come to us. Where Divisions took place the majorities were fairly large. However, this is a slippery slope and it is deeply unfortunate that it is happening. None of the amendments that the Government are tabling makes it any better.

[Lord Tyler (LD)]

Would my noble friend indicate to the Committee where in the Bill, let alone in the amendments before the Committee, the circumstances to which he refers would apply? Where could it possibly be relevant? There is no possibility in which this Bill could in any way call that MEP to account with a recall petition. It just is not there. I hope that my noble friend, who is assiduous in reading Bills of this sort, will look very carefully at it because he is chasing a will-o’-the-wisp.

[Lord Cormack]

I do not think so, with great respect to my noble friend, because I talked about the Bill—as did my noble friend opposite—as a slippery slope; and it is. While there may not be anything in this particular Bill, it creates a precedent that is inhibiting to the freedom of a Member of Parliament. An MP, unless he commits an offence that is so heinous that he is out—which happens from time to time, sadly, as we know from recent years—should be answerable to one group, and one group alone, which is those in the whole of his constituency voting at the next general election. That is a fundamental principle of our British constitution and that principle is partially eroded by this Bill. Although I do not intend to play a great part in this, I deeply regret it and it is an issue that a future Parliament should look at again.

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Moved by

[Lord Tyler]

2: Clause 1, page 1, line 11, leave out subsections (3) to (6)

[Lord Tyler]

My Lords, with my Anglican ancestry and upbringing, I like to start with a text. Perhaps I should say in parenthesis that I am the black sheep of the family. The text is as follows. It says that,

“the provision that an MP should be subject to recall where he or she is suspended from the House for ten sittings days or more means that it will be MPs themselves, rather than voters, who under this scenario determine whether the recall process can be triggered. The constitutional purpose of recall is to increase MPs’ direct accountability to their electorates: it is questionable whether that purpose is achieved when the trigger is put in the hands of MPs rather than constituents”—

amen to that.

That is a quotation from the summary of the analysis by the Constitution Committee of this part of the Bill, and I think that it is exactly spot-on. I am especially pleased to have the support of my noble friend Lord Lexden, who is a member of the committee, for the group of probing amendments that we are putting before your Lordships’ House this afternoon. Our overall purpose is to respond in detail to that challenge from the Constitution Committee, which was echoed at Second Reading by the noble Lord, Lord Norton of Louth, who I am delighted to see here, because I know that he has been on public duty elsewhere.

In short, the Bill is defective in that it does not do what it says on the tin. It creates no greater independent accountability of MPs to voters. To emphasise that weakness and to respond to the widespread concern expressed at Second Reading, Amendment 2 simply calls into question the current priorities of the Bill. It is no more than a marker put down to enable the full package—probing Amendments 25 to 32—to be considered as a further and better route to the recall process.

I am extremely grateful to the noble Lord, Lord Alton, and my noble friend Lord Lexden for all the help that they have given me and for their support in putting together this package. Indeed, we have had most welcome encouragement and practical advice from all parts of the House and beyond, not least as result of the offer from the Minister in charge of the Bill, Mr Greg Clark, who said in the final stages of Committee consideration that,

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

He was as good as his word. We three signatories—and those who assisted us—are in no way committed to every detail of this package of proposals to solve the core problem identified by the Constitution Committee. We are committed to demonstrate the severity of that problem and to persuade Ministers that it cannot be allowed to survive in the Bill.

Before I set out the specific proposals contained in Amendments 25 to 32, I should reassure your Lordships about what they do not do. I suspect that few colleagues in this House would want to revive the very wide-ranging recall propositions that were so soundly defeated on a free vote in the Commons. As a former Member of Parliament, and one who has always cherished the right and duty of the elected representative to use his or her judgment, to exercise his or her conscience and to apply his or her principles with integrity in the interests of both the country at large and/or their constituents, the notion that that role could or should be subjected to vexatious, trivial or bullying challenge by wealthy special interest campaigns is anathema—as I know it is to many other Members who have contributed this afternoon. In short, the very fact that someone disagrees with an MP should never be grounds for recall. That echoes what many Members have said this afternoon.

I know all too well how invidious that would be. I was once elected with a minuscule majority. On that occasion, there were at least 20,274 voters who would happily have evicted me at the first opportunity. The recall process should not be able to be used to undermine the legitimacy of the electoral process and an election result.

We have sought to devise a process which retains a filtering stage but which puts that filter into independent territory. This avoids the MPs themselves being given, as a regular responsibility, the invidious task of determining whether a colleague—or a political opponent—is to be subjected to the next stage of the recall challenge. It therefore avoids the regrettable but inevitable politicisation of the Standards Committee that is, at present, implicit in this part of the Bill. This was so effectively demonstrated at Second Reading by the noble Lord, Lord Campbell-Savours, and others. I must say again that I am so sad that the noble Lord is not in his place today. I have had many conversations with him but he is simply not well enough to be with us. He may not agree precisely with my resolution of this problem but he was very effective at demonstrating its very serious nature.

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[Lord Gardiner of Kimble]

My Lords, yet again we have had a thought-provoking and thorough debate. I acknowledge the work that my noble friend has devoted to this matter. As your Lordships know, the amendments are a modified version of those brought forward in Committee and on Report in the other place. The underlying principle behind involving the public in initiating the recall process for reasons of misconduct did indeed attract some support in the other place. Although I know that I shall not receive the approval of the noble Lord, Lord Grocott, it is interesting to see that these amendments were rejected in the other place by 271 votes to 64.

My noble friend’s Amendment 2 would remove the first and second recall conditions yet retain the third. The proposed new clauses create the concept of a parliamentary misconduct hearing, which would involve two judges examining the behaviour of an MP if the hearing received a petition alleging certain forms of misconduct that had been signed by 500 constituents. The parliamentary misconduct hearing would not be required to determine guilt to a criminal standard but rather whether parliamentary misconduct had on the balance of probabilities taken place. The noble Lord, Lord Howarth of Newport, highlighted this.

Turning to some of the detail of the amendments, the number of petitioners necessary for the parliamentary misconduct hearing to consider the allegation has been proposed at 500. The aim is to give the public some involvement in initiating the process. Of course, if it is alleged that a criminal offence has been committed, it takes only one person to make a complaint for that to be investigated by the police, for instance. Arguably, if the complaint is valid it should be taken forward regardless of the number of complainants. On the other hand, as a test of public will, is the number of 500 constituents perhaps too low? My noble friend has explained in detail the behaviour that the parliamentary misconduct hearing is being asked to judge. I am not going to outline that further, given the time.

Criminal matters, which could include bribery and misconduct in public office, as well as offences relating to parliamentary expenses, would be investigated by the police and adjudicated by the courts. However, my noble friend proposes that criminal convictions and prison sentences should not be a trigger for recall, except for offences regarding parliamentary expenses. The trigger my noble friend proposes is a finding by the hearing that on the balance of probabilities the misconduct took place—a lower standard of proof than that used in criminal cases.

Matters that fall under the Code of Conduct can be examined by the Parliamentary Standards Commissioner, the Standards Committee and the House of Commons, which can order suspension. The proposals in the Bill are that a suspension of more than 10 sitting days could trigger recall. My noble friend’s amendments would not prevent investigation by the Parliamentary Standards Commissioner or the Standards Committee or suspension from the House taking place; they would simply decouple it from recall. So there could be a parallel process of investigation by the commissioner, the committee or the House, and a parliamentary misconduct hearing—all of which, of course, could reach different views.

I turn to parliamentary privilege, which was first raised by the noble Lord, Lord Howarth of Newport. In addition to the proposed parliamentary misconduct hearing set out in these amendments, there are the serious concerns that noble Lords have quite widely expressed vis-à-vis the interaction with parliamentary privilege. For the parliamentary misconduct hearing to have any real effect, it is likely that the judges appointed to determine misconduct would need to question proceedings in Parliament and would need to examine issues that are covered by exclusive cognisance; that is, that Parliament has sole jurisdiction over its own affairs, including standards and discipline. As the noble Lord, Lord Howarth of Newport, identified, that would be contrary to the protection afforded by the Bill of Rights; for example, the provisions in the amendments would give a role to the hearing to examine breaches of MPs’ conduct, which would impinge on exclusive cognisance.

It is also proposed that the parliamentary misconduct hearing would be able to look at issues such as cash for questions, attendance in the House and abusing or bringing into disrepute the office of a Member of Parliament—all matters which are to some extent likely to be covered by privilege. The provisions also set out standards for Members of Parliament by defining parliamentary misconduct as non-attendance in a six-month period. However, the amendments are silent on the interaction with parliamentary privilege.

Of course, Parliament does possess the ability to allow a hearing to deal with matters that fall under its exclusive cognisance, and to question proceedings in Parliament. However, if we are to take such a momentous decision, we should be fully aware of what we are doing, and there needs to be an overriding reason to do so. The problem the Government face is not being convinced that either of these conditions has been met. The type of wrongdoing covered by this alternative trigger already triggers a recall petition under the conditions in the Government’s Bill. The triggers in the Government’s Bill, whether noble Lords like the Bill or not, are intended to fit in with the disciplinary and constitutional arrangements of our Parliament.

I turn to the relationship with criminal prosecution. While the amendment contains a provision to allow for the suspension of a hearing in the case of a criminal investigation or criminal proceedings, it may be that these would be initiated only due to testimony in or judgment of the hearing. In the case of alleged criminal misconduct, if the defence had already been rehearsed before a parliamentary misconduct hearing, or the hearing’s finding was considered prejudicial to the MP’s presumption of innocence, it may not be possible for the MP to have a fair trial. The fact that an MP had to answer allegations in a parliamentary misconduct hearing could prevent him or her from facing criminal prosecution for misconduct that amounts to a criminal offence.

I am very conscious that my noble friend has devoted a lot of time and work to putting forward his amendments, given some of the background to why we are where we are. I hope your Lordships will understand that we feel there are very serious matters, which your Lordships and I have endeavoured to outline, that are of sufficient concern that I ask my noble friend to withdraw his amendment.

[Lord Tyler]

My Lords, I am very grateful to my noble friend the Minister for his careful response to our probing amendments. Perhaps I should put on record that, as I understand it, as far as both the circumstances to which the noble Lord, Lord Maxton, and my noble friend Lord Forsyth referred are concerned—in one case, the suspension of a Member in the House of Commons—absolutely nothing changes in the Bill as it stands, or in my amendments. It is as it was and would continue to be. In the case of any Member—Minister or not—misleading the House of Commons, there is a very clear process for what then happens. I do not think that is affected by the Bill. It certainly is not affected by my amendments.

There has quite properly been a discussion about the relationship of our set of probing amendments to the Bill of Rights—

[Lord Forsyth of Drumlean]

I apologise for interrupting. My noble friend says that the amendment does not affect that. The amendment states:

“In making a determination under subsection (7), a parliamentary misconduct hearing may not consider conduct specifically relating to the respondent’s official duties in a ministerial capacity”.

So if, as a Minister, he has misled the House, is that not a “get out of jail free” card?

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[Lord Tyler]

It certainly is not, because it is covered by quite different regulation and control: the code of ministerial conduct. It is the responsibility of the Member concerned, whether a Minister or not, if he or she misleads the House of Commons, it is still exactly the same position; it is not affected by the Bill. If it was necessary for avoidance of doubt to make that clear, we could obviously do so.

[Baroness Taylor of Bolton]

I understand what the noble Lord is saying about the Code of Conduct, but that would not trigger recall.

[Lord Tyler]

That is exactly what I am saying.

[Baroness Taylor of Bolton]

Therefore, Ministers are being treated in a different way from Back-Benchers.

[Lord Tyler]

As the noble Baroness will know from her ministerial experience, they are already under the Ministerial Code—properly so. I want to turn to the critical issue, which is of course the one raised by the noble Lord, Lord Howarth, about the Bill of Rights, parliamentary privilege and exclusive competence. I am not a lawyer but I experienced—or suffered, whichever way one wants to say it—two years, I think, sitting on the Joint Committee looking at the issue of parliamentary privilege. As a result of that experience, I contributed to the discussions in this House when we were looking, after the expenses scandal, at the whole issue of IPSA.

What is absolutely clear—my noble friend the Minister effectively made it clear again today—is that if Parliament decides that parliamentary privilege should be constrained in a particular respect, it is up to Parliament to make that decision. That is what the Bill is already doing, to some extent, without my amendments. The noble Lord is quite right that there are implications for parliamentary privilege, but it is not a yes/no or a black/white situation, it is up to Parliament to decide if and when it wants to constrain and restrict its own position in relation to parliamentary privilege.

[Lord Howarth of Newport]

I am not a constitutional lawyer either, but would the noble Lord agree that the House of Commons now bitterly regrets the passing of the legislation establishing IPSA?

[Lord Tyler]

I am not sure that the noble Lord was here during the debate on that Bill, but I was and took an extensive part in the debate. I was very concerned about a number of elements, including the way in which MPs seemed to be all too easily restricting their own responsibilities in terms of exclusive cognisance.

I want to go back to the whole rationale for trying to find a route in this particular direction. My noble friend Lord Forsyth, who was as generous as ever in recognising the contribution to the work of this House of his coalition colleagues, identified very precisely that there was a recognition throughout the House at Second Reading—as was made so clear by the Constitution Committee—that putting this new responsibility on the Standards Committee was a serious weakness in the Bill. That is where we are coming from.

My noble friend the Minister has been very generous in his response but there has not been any government reaction to that very serious weakness. Frankly, I do not think that this is a good Bill, but it is made even worse by the responsibilities and the danger of serious politicisation of what has previously not been a political process in the Standards Committee—again, I regret very much that the noble Lord, Lord Campbell-Savours, is not here.

[Lord Hamilton of Epsom (Con)]

I thought I remembered the noble Lord, Lord Campbell-Savours, saying quite distinctly that there was an awful lot of political interference in the Standards and Privileges Committee, which he was on for a long time.

[Lord Tyler]

He made it absolutely clear, as would other noble Lords who were there, that the way in which the Bill will now act—if it goes through in its present form—lays an additional and very dangerous responsibility on that committee, with all the potential damage there might be. I say simply to my noble friend the Minister that I have done my best, with my noble friends—I am very grateful for their help and that of other Members of the House—to try to find a solution to the problem that our Constitution Committee put its finger on. We cannot simply walk away from that. As so many Members have said, from all sides of the House, we have a responsibility, in this respect, to save the House of Commons from itself. This part of the Bill is a mess. I do not pretend that my solution is the final answer, but just ask my noble friend the Minister to think again between now and Report to see whether we can find a better way to deal with this particular problem. In the mean time, I am happy to withdraw the amendment.

Amendment 2 withdrawn.

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[Lord Foulkes of Cumnock]

My noble friend has put his finger on it precisely. That shows exactly the problems arising and why these provisions are not only cumbersome and expensive but complicated and very difficult to deal with. They also provide let-out mechanisms, as my noble friend has described.

I would like the Minister to address two further points which are not specifically included in the amendment but which arise. I was a magistrate for a few years in Edinburgh and I sent people to prison. I had the option of fining them or giving them a custodial sentence. I always made the judgment on the recommendations of the clerk or the social worker or on whatever advice I got on the basis of the circumstances and the facts presented before the court. I made that judgment because I knew that to look at it in a completely impartial way was the right thing to do. If, in addition, I had been dealing with, for example, a Member of Parliament appearing before me, and I had known that, if I had imposed a custodial sentence, this recall procedure would have happened, it would have affected the way in which I decided. Supposing I was doing it, and it was a Conservative Member of Parliament, there might have been some feeling that I should show how reasonable and sensible I was and give them a fine rather than a custodial sentence. It does seem strange that these kind of judgments might be affected because of this.

[Lord Tyler]

Does the noble Lord acknowledge the point he has just made is also material to members of the Standards Committee deciding how long or how short a suspension should be? This is precisely, if I might just point it out gently to him, why I raised the concerns I did in the previous debate.

[Lord Foulkes of Cumnock]

Indeed, and the noble Lord will realise it is coming up in subsequent amendments that I have tabled along with my noble friends Lord Campbell-Savours, Lady Taylor and Lord Hughes. Like the noble Lord, Lord Tyler, I am deeply sorry that the noble Lord, Lord Campbell-Savours, will not be here to move those amendments. One of us is going to have to move them on his behalf. He made these points at Second Reading, and he would have made them again, and we will make them on his behalf later. It is exactly the same point. It introduces a different factor, a complicating factor, to the decisions that are being made.

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[Lord Forsyth of Drumlean]

I am sorry to pursue this—perhaps I have just misunderstood the Bill, as the noble Lord suggests—but if someone finds themselves in circumstances where there is a recall and there is going to be a by-election, certainly in the Conservative Party you cannot stand as a Conservative candidate unless you have the signature of the leader of the party. That is how it operates. I do not know about other parties. The Liberal party is a bit looser in its arrangements—

[Lord Tyler]

Democratic.

[Lord Forsyth of Drumlean]

Democratic—that is the word I was searching for; of course it was. In the Conservative Party you would not be able to stand. If there is no Conservative candidate standing in the by-election—if the person subject to recall is not the Conservative candidate—there will be a Conservative candidate. Therefore, the opportunity for the Member to make his case before the electorate to continue as the Conservative MP will have been lost. Am I missing something here?