Thomas Docherty
Main Page: Thomas Docherty (Labour - Dunfermline and West Fife)Department Debates - View all Thomas Docherty's debates with the Cabinet Office
(10 years ago)
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Dr Huppert
We have put in provisions so that, in the event of criminal proceedings, they would take precedence and the recall process would be stayed while that was happening, so I think we have addressed that. As I will go on to say, there is a very similar model already in use in the US and that does not seem to have the same sorts of problems that the hon. Gentleman describes.
On other changes we have made, the hon. Members for Richmond Park (Zac Goldsmith) and for Liverpool, West Derby were concerned about a phrase we included relating to gross dereliction of duty as an MP perhaps being considered as misconduct in public office. They both highlighted the point that there is no definition of our duties as Members of this House. We accept that point and have removed it from the revised amendment. However, I think there is general agreement in the House that there should be some provision in the code of conduct to deal with that. The well-known case of the Member of Parliament who spent most of his time running a pub in Ireland is not one that I think any of us would consider acceptable or wish to see emulated. We should try to ensure that the code of conduct is updated so that, for example, an MP who chose not to attend the House for months or years on end with no good reason, could not continue in that way. Local councils have a rule that councillors have to attend a meeting within six months, with a provision for extensions when there is good reason, for example illness.
Thomas Docherty (Dunfermline and West Fife) (Lab)
The hon. Gentleman touches on non-attendance. Labour Members supported the House of Lords Reform Act 2014, which makes attendance compulsory at least once a Session. What does he say to those MPs from Northern Ireland who choose not to take their seats, but whose electorate understand fully that that is their principled position?
Dr Huppert
First, just because somebody can be recalled does not mean they would automatically be recalled. How to phrase that in the code would be an interesting question. Trying to have repeated recalls of those Members would be a somewhat futile and repetitive exercise, as it was with the case of Charles Bradlaugh, the Member for Northampton. He was elected three times as an atheist and refused to take a religious oath. The rules were eventually changed because it was made quite clear that his electorate wanted him. I think that, in the case of the Members the hon. Gentleman is referring to, there would have to be some sort of accommodation that there would not be recall elections for that process.
Dr Huppert
It still starts with 500 people and ends with 15% of the public making the decision. We have to strike a balance—we discussed this in Committee, and I do not want to give a blow-by-blow account of that very long debate—over whether there should be any constraints at all and whether there can be any trivial or vexatious cases. That is the difference.
In Minnesota, several cases have been deemed to be unreasonable. The two most recent cases involved State Representatives Ward and Radinovich, both of whom supported same-sex marriage against the wishes of their constituents, and in both cases, the court concluded that it did not constitute malfeasance, saying:
“Constituent disagreement with how their elected representative exercised discretion, through public statements made or votes taken, does not equate to malfeasance by the representative.”
That is surely a principle the House would want to stick to.
In 2001, the state attorney-general did not take steps to ensure that a ban on sodomy was not struck down—again there were complaints, but the court did not conclude that he had failed to do his job; and in 1999, Governor Jesse Ventura was accused of having done well out of his book by virtue of being governor, but again the court felt the accusation was unsubstantiated and struck it out.
Thomas Docherty
It has been brought to my attention that earlier today the hon. Gentleman published an article on Lib Dem Voice about his test stating:
“This test of “reasonable to believe” puts the burden clearly on the MP to disprove beyond doubt the allegations against him or her in the first instance.”
Now, he takes a clear and principled stance on terrorism legislation, so some of us are surprised he is reversing the burden here. Is he not contradicting himself by leaving it up to the MP to disprove the allegation, rather than the petitioners to prove it?
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.
Zac Goldsmith
Exactly right. This is not recall as it is understood anywhere in the world.
The shadow Minister went on to say that the Bill
“is simply not good enough. The public will, rightly, expect more.”—[Official Report, 21 October 2014; Vol. 586, c. 787.]
Even the Deputy Prime Minister, who wrote the Bill, has had to express difficulties with it.
But after all that huffing and puffing, here we are today with more or less exactly the same Bill—a Bill that no one likes. Yes, a few amendments have been proposed, but they are red herrings. They add nothing useful to the Bill. Labour’s main proposal, amendment 14, merely lowers the threshold so that hon. Members who are suspended from the House for 10 days or more automatically qualify for recall. The original proposal was 21 days. The only effect that will have is in the judgments made by a committee of parliamentarians. They will simply rejig the way they sentence MPs accordingly. The 10-day rule would have spelled the end for any number of hon. Members who have been sanctioned for engaging in protest.
Thomas Docherty
May I clarify the amendment? It specifically excludes those Members who have been named by the Speaker for parliamentary protest in the Chamber. It does not capture Members who have engaged in parliamentary protest.
Zac Goldsmith
I am grateful to the hon. Gentleman for that clarification. It changes nothing at all. I am reassured by the point he makes, but all this does is create a different dynamic—a different impetus for the committee of parliamentarians. They will simply pass different judgments accordingly.
The main Lib Dem amendment, new clause 2, introduces a new trigger—misconduct in public office. It sounds great and some people might be reassured by it, but it adds nothing material to the Bill. I have looked into the matter and sought advice. I quote some of the advice that has been issued. The Crown Prosecution Service says that this should apply
“only where … the facts are so serious that the court’s sentencing powers would otherwise be inadequate”.
The House of Commons Library says:
“There are few prosecutions, suggesting that action is taken only when misconduct is particularly gross.”
The courts have said:
“The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice.”
If we are honest about it, the only reason why this amendment has been tabled is so that the mainstream parties can pretend that they have addressed one of the main concerns with the Bill, which is that it leaves MPs in charge.
Zac Goldsmith
I could not agree more strongly, and I welcome my hon. Friend’s intervention.
Change is inevitable, and we are moving in the right direction. I also believe that, with the new composition of the House after the election, we will be in a better position to bring in a genuine form of recall. I certainly hope that that will happen. In the meantime, however, let us not insult voters with this placebo that is being offered today. People who are interested in politics already know that this Bill is a sham and a stitch-up. The rest—those who are perhaps not paying attention today—will discover that fact for themselves at the very first scandal. Let us walk away from this disgraceful piece of legislation and wait until the House grows some collective proverbials and does the right thing.
Zac Goldsmith
I was about to finish, but I will give way to the hon. Gentleman.
Thomas Docherty
Notwithstanding the hon. Gentleman’s acceptance of the vote last time, will he clarify whether it is his intention to oppose amendment 24, which deals with MPs who fiddle their expenses, if there is a Division on it?
Zac Goldsmith
I am happy to answer that question. I do not want to sound self-important, but it is my intention not to vote one way or the other on the amendments or the Bill, because I do not want to give the Bill any credibility at all. It is a sham, a shambles, a farce, an insult and a disgrace and I do not want to have anything to do with it. When we come back to the House with a proper proposal, I will engage again, but for now I would advise all those Members who believe in democracy, in reform and in genuine recall to walk away and wait for another time.
Thomas Docherty
I want to set out Labour’s position on the principle of recall and the reasoning behind the amendments that have been tabled by me, my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) and others. I will then set out Labour’s views on the new clauses and amendments tabled by the hon. Member for Cambridge (Dr Huppert). Finally, I will deal with the new clause tabled by my hon. Friend the Member for Foyle (Mark Durkan).
I want to begin by again placing on record Labour’s support for the principle of recall when an elected representative’s conduct falls well below the standards that Parliament and their constituents expect. That is why our 2010 manifesto promised to introduce recall legislation and why we supported the Bill on Second Reading. We will support it again on Third Reading.
However, we continue to believe that the Bill could be strengthened. We have tabled a number of amendments to that end, and I am grateful that they have attracted cross-party support. We discussed the principles behind each of them in Committee, and the hon. Member for Cambridge has already mentioned them briefly, so I will not detain the House by rehearsing all the arguments or going into unnecessary detail.
Amendment 14 seeks significantly to lower the threshold for the period of suspension relating to the point at which a Member of Parliament may be subject to a recall petition. As it stands, the Bill states that the second recall condition is that a Member must be suspended from the House for 21 sitting days to reach the threshold. We believe that that sets the bar too high. For example, neither of the MPs who were suspended during the cash-for-questions scandal would have been subject to potential recall using that threshold. By reducing it to 10 days, as we propose, Members such as those and many others who have been suspended over the years would be captured by the revised mechanism.
However, we recognise the genuine concern that Ministers flagged up during the Bill’s previous stages, which has been echoed by the hon. Member for Richmond Park (Zac Goldsmith), that a Member who had twice been named by the Speaker for unparliamentary activity or protest could fall foul of the lower threshold. That is why we have inserted the provision that the suspension must be the result of a report into an MP’s behaviour by the Standards Committee, although it is for the House as a whole to determine the length of a suspension.
Our amendment 24 deals with Members who have been convicted of fiddling their Independent Parliamentary Standards Authority-funded parliamentary allowances. Some may be curious as to why we are proposing that the recall process should apply even where a non-custodial sentence is handed out. We believe that a flagrant misuse of public funds by MPs is simply unacceptable. Those of us who were not MPs in the previous Parliament fully understand the public’s anger at that whole sorry saga. As the Leader of the Opposition has highlighted, the public’s confidence in our political system has been severely strained by the events of the past few years. We hope that this amendment signals to the public that Parliament is listening and changing.
Dr Huppert
The other point the hon. Gentleman could make is that his party’s manifesto specified that recall would be only for MPs found responsible for financial misconduct. So his proposal is entirely in keeping with his manifesto, as our proposal is with our manifesto commitment. Indeed, the surprise is that none of the major parties had something analogous to that which seems to be pushed by so many.
Thomas Docherty
I am grateful to the hon. Gentleman for his support for our amendment. I would not say it was only about that condition, but we did specifically state that it was grounds for recall, which is why we supported the Bill on Second Reading and will do so on Third Reading.
Richard Fuller
The hon. Gentleman just said that the changes in his amendment arise because of past failings in MPs’ behaviour and how such failings have strained the public’s credulity. That may be one explanation, but another may be that the public realise that they want control over a much greater proportion of what Members of Parliament do, and that direct democracy has a much greater role to play and arouses much greater passion in the community. Does he think that is a push for the Bill and his amendments to have gone further?
Thomas Docherty
The hon. Gentleman tempts me to restart a debate we had on Second Reading or in Committee. The Opposition are clear that we are representatives, not delegates; and that the basis for recall must be wrongdoing and misconduct, not because an individual constituent or a well-funded vested interest group disagrees with how a Member has voted. That is an important difference.
Richard Fuller
If that is the basis for the hon. Gentleman’s position, does he think that those in America’s House of Representatives, some of whom are subject to recall, are delegates, not representatives?
Thomas Docherty
With your indulgence, Mr Deputy Speaker, may I just clarify the point for the hon. Gentleman? Members of the two Houses of Congress, and the President and vice-president of the United States, are not subject to the recall provisions. Those apply only at state level, because the courts have ruled that there is no constitutional provision in the United States at federal level for the recall petition. So, ironically, the one group of US citizens who are exempt are those in Congress; many who observe their proceedings might wonder from time to time whether they should be recalled.
Amendment 16, our third substantive amendment, deals with the quirk that under the Bill as it stands only offences committed after the date of Royal Assent are covered. We have previously highlighted our belief that this should apply to all new convictions, regardless of when the offence was committed. I do not intend to rehash previous examples, but where an offence comes to light only after a Member of Parliament is elected, surely it would be wrong to deny his or her constituents justice. Of course this should not apply where a conviction occurred before a Member was elected, because it is a reasonable assumption that the electorate have already taken that into account when choosing to vote for them, and there is precedent within the UK for that. However, how can a constituent know about an offence where no conviction has occurred? We hope that the Government will accept those arguments.
Jacob Rees-Mogg
I am sympathetic to most of the hon. Gentleman’s amendments, but I do have a query about this one. Is it not, as a general principle, unfair to apply a punishment to people that they did not know might be a punishment at the point at which they did the wrongdoing?
Thomas Docherty
I am grateful to the hon. Gentleman for his argument, but of course that person was not a Member of Parliament when they committed the offence, so would not expect to be denied something going forward. Let me take his argument and reverse it. This place abolished capital punishment some 40-odd years ago. If somebody were today convicted of a crime that previously had capital punishment as a tariff, we would not retrospectively apply a punishment that no longer exists.
Jacob Rees-Mogg
I thank the hon. Gentleman for being so generous in allowing interventions, but his argument also applies the other way around. If somebody were found guilty of an offence committed 40 years ago, for which the punishment was a maximum fine of 2 shillings and 6 pence, they could still only be fined that amount. It is a very important legal principle that the penalty may not be increased, but it may be reduced.
Thomas Docherty
I suspect the hon. Gentleman needs no reminding that this Bill is about providing rights to our constituents. I am talking about a right to recall where serious wrongdoing has occurred. Yet again, he tempts me to remind the House that, after being elected, my local Scottish National party MSP was found to have committed a string of domestic violence offences over a 30-year period. He was charged and convicted only after he became a Member of the Scottish Parliament, and there was no mechanism for recall, despite the fact that he had broken a frying pan over his step-daughter’s head. I believe the House will agree that it is absolutely right that, where offences have come to light and there is a new conviction, we provide justice to those constituents.
Michael Ellis (Northampton North) (Con)
I support what my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has said. It is an ancient principle of English justice not to impose retrospective penalties or an ex post facto view on things. Is the Labour amendment designed to impose on individuals a penalty that would not have applied previously? I think it is, in which case it is against the principle of natural justice.
Thomas Docherty
May I say gently to the hon. Gentleman that he may be confusing sentence with offence? There is no attempt to make a retrospective offence. What we are saying is that one of the tariffs to which an hon. Member would be subject is recall. It is about balancing the rights to justice with the rights of our constituents. If he is saying that he will oppose us on this measure, I do not think he will find many colleagues with him in the Lobby.
Mark Field (Cities of London and Westminster) (Con)
My hon. Friend the Member for Northampton North (Michael Ellis) might find me as a supporter. Does the hon. Gentleman not recognise that the Government’s reasoning in this regard may be to draw a line under the past? In fact, they said as much earlier on. We all know that the public were appalled by the expenses scandals of the past. That is why IPSA was set up. It was designed to draw a line under the past and make sure that everything was independently audited. I hope we will continue to do that as far as future independent salary reviews are concerned, but the principle applies here as well. We need to draw a line under the past, and keep the future in mind.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Let me help to draw a line. Members must make short interventions, not speeches. If we can make future interventions shorter, it will help.
Thomas Docherty
We absolutely agree on the point about IPSA expenses. To provide justice to our constituents, it is a relatively uncontentious tweak to the Bill to say that if a Member of Parliament were convicted of serious wrongdoing they should not be able to evade natural justice just because their offence was carried out before Royal Assent. Let me now make a little more progress.
We see these three amendments as sensible steps towards improving the Bill and significantly strengthening the rights of constituents to hold their Members of Parliament to account. I am grateful to Members from the other parties and to those on the Government Benches who have signed our amendments or who have indicated that they will support them tonight. I hope that when the Minister responds he will confirm that he, too, supports our proposals and that he will encourage all his colleagues to endorse them so that they can be carried without a Division.
I now turn to the new clauses and amendments tabled by the hon. Members for Cambridge and for Somerton and Frome (Mr Heath). I want to deal first with new clause 2 and the amendments relating to it. As I said in Committee, we support the principles behind the idea. We agree with the hon. Gentlemen on the idea of an independent mechanism when it can be demonstrated that wrongdoing has occurred. Like the hon. Gentlemen, we entered into talks with Ministers in good faith to make it work. However, as has already been mentioned by the hon. Member for Cambridge, despite lots of warm words from Ministers the Government have walked away without fully engaging. At no point did Ministers proffer alternative wording, which will of course leave many wondering whether parliamentary counsel were ever engaged properly. The Government Chief Whip who, yet again, is nowhere to be seen, seems to have decided that this is all too much effort.
That is no way for the Government to behave, not only after giving clear assurances in Committee but on a Bill that was, as the hon. Member for Richmond Park said, a key plank of the coalition agreement. The result of the Government’s behaviour is that we are left with a new clause that is, by the admission of the hon. Member for Cambridge, not in a fit and proper state. I appreciate that its promoters have tried as hard as they can to get these principles into a workable state, but despite their best efforts the amendments are simply not there.
Dr Huppert
Let me be clear that I have never said that I do not think the new clause is in a fit and proper state. There were some problems with the previous version, but I think that it is now in a good state. I dare say, however, that their lordships could tweak it.
Thomas Docherty
I therefore refer the hon. Gentleman to new clause 3, which places the burden of proof on the Member of Parliament. Again, let me quote what he has said. Although I accept what he has said about no longer seeing that quotation as accurate in terms of what he was trying to achieve, it reflects what new clause 3 says. He said:
“This test of “reasonable to believe” puts the burden clearly on the MP to disprove beyond doubt the allegations against him or her in the first instance. It would mean a high chance of success for petitioners unless their evidence was very weak indeed.”
The hon. Gentleman has already clarified that he does not support that, so if he does not support the intent behind new clause 3 I would gently suggest that the best thing would be for the new clause to be rewritten.
Dr Huppert
The hon. Gentleman is absolutely right to point out the errors in what I wrote on Lib Dem Voice and he will be pleased to know that it has been corrected, but in such a way that one can still see the original. I am not trying to hide the fact that I made an error. The bit that was not fit and proper was that aspect of the article on Lib Dem Voice and the new clause is still quite clear. The “reasonable to believe” test is a fairly common and standard one.
Thomas Docherty
Perhaps I can return to that point in a moment or two.
Let me explain what we see as the problems with new clauses 2 and 3 and the associated amendments. The court process can be started comparatively easily as 500 signatures would not be difficult to obtain and a rich group or a rich individual who wanted to attack a Member of Parliament could pay for lawyers once those signatures had been obtained to mount a court application that would be both costly and distracting for the MP to fight. New clause 2 does not require the case to be proved, as the hon. Member for Cambridge has admitted, beyond reasonable doubt or even to some lower standard, only that the court has “reason to believe” the Member of Parliament is guilty of misconduct in public office. The clause requires only an arguable case and not a proved case, which makes an MP vulnerable to losing in court when the allegations have been proved, to be taken forward.
New clause 2 also sets the standard by reference to the language of the criminal offence of misconduct in public office, which, as the hon. Member for Cambridge admits, is a criminal offence in England but not in Scotland or, I think, in Northern Ireland. If the court concluded that there was reason to believe that a Member of Parliament was guilty of the offence of misconduct in a public office, in addition to the recall petition’s being opened the Member of Parliament would be incredibly vulnerable to prosecution for the criminal offence. A well-funded individual or group could achieve 500 signatures, tie a Member of Parliament down in difficult court proceedings, in which the attackers do not even have to prove their allegation, and, if they succeed in court, subject the Member of Parliament to not only a recall petition, but the possibility of criminal proceedings.
Dr Huppert
The hon. Gentleman makes an interesting point. He will be aware, of course, that there is an existing process whereby an individual or group—perhaps well funded—can bring a case to an election court. There is no appeal; there is judicial review. It has far more powers, because it may not only deny a Member their seat, after potentially expensive processes, but ban them from standing for public office, as happened to Phil Woolas, which is a much tougher sanction than that which is proposed here. Is he suggesting that that should also happen, because a large amount of money could be used to challenge an MP who had just been elected, which I think is what he is concerned about?
Thomas Docherty
The difference is that in the Woolas case in 2010 the complainant had to prove not just a level of expectation, but beyond reasonable doubt. There were full court proceedings and it was rightly determined—the hon. Gentleman has mentioned this—that Mr Woolas should be banned from holding office for a period of five years, I think.
Thomas Docherty
Apologies. Those were proper court proceedings that resulted in a verdict. New clause 2 and its associated amendments would simply require a reasonable expectation, which we believe would be an unsatisfactory mechanism at the moment.
The other group of amendments, which centre on amendment 15, would add a further mechanism for the opening of a recall petition: when a Member of Parliament has been convicted of the criminal offence of misconduct in public office. The difference between that gateway and the first gateway—conviction of a criminal offence—is that it is open even if the Member in question is not sent to jail. Although a conviction for that offence would normally follow a prosecution by the Crown Prosecution Service, it could follow an incredibly expensive private prosecution, which again would place a Member of Parliament at the mercy of well-funded vested interest groups. There are those who genuinely believe that we should endorse that process, but the Opposition do not wish to see that US-style pact, with well-funded vested interest groups able to recall, tie up and bog down a Member of Parliament for four and a half years of a five-year Parliament.
We are also concerned that that route could be used not only as an alternative to the new clause 2 mechanism, but as a de facto appeal. That is to say, if the Member of Parliament’s opponents do not win on the first attack, they could simply regroup and come back with a private prosecution. Furthermore, that route has no minimum threshold, as it does not require even the 500 signatures that the hon. Gentleman has advocated for new clause 2.
Dr Huppert
I am following carefully what the hon. Gentleman is saying. Could not exactly the same be said of his point about expenses for parliamentarians? There is a similar issue with very specific offences that relate to fundamental aspects of the role, where conviction, even if not imprisonment, has to be taken seriously.
Thomas Docherty
The hon. Gentleman leads me perfectly to my final point. Our amendment 24 proposes that a further recall condition should be when a Member of Parliament has been convicted of the offence, as clearly set out in the Parliamentary Standards Act 2009, of the misuse of public funds, committing fraud against the public purse, which we believe—I hope that the whole House agrees—is completely incompatible with the role of a Member of Parliament. Some will recall a case in the last Parliament in which a right hon. Member—a shadow Minister—was investigated by the police for having been involved in the leaking of documents from the civil service to the Opposition. If that case had been taken up by the police and resulted in a prosecution, I do not believe, and my colleagues would agree, that the leaking of documents, which we would argue can be seen in the public interest, should have left that Member of Parliament open to recall. As the offence of misuse of public office is so vague, it does not involve the same prescriptive reasoning as the 2009 Act, and it is open to vexatious challenge.
Lady Hermon
Will the hon. Gentleman add to the criticisms that he has kindly and very well articulated the point that new clause 2 and amendment 15 would leave independent Members and Members who belong to small political parties extremely vulnerable because they could not afford to fend off multiple applications made under those provisions?
Thomas Docherty
The hon. Lady is entirely right. There is significant concern, not only in Northern Ireland but in other parts of the United Kingdom, that repeated, harassing private prosecutions could be brought by well-funded groups.
By the admission of all concerned, more work still needs to be done on these two processes. It is less than satisfactory to be sending to the other place something that, by any standard, is not in a fit condition. To be clear, this House is being asked to delegate to the House of Lords responsibility for producing workable recall mechanisms. I regret to have to inform the hon. Member for Cambridge that I cannot, in good conscience, encourage colleagues to vote for new clause 2 and amendment 15 and their associated amendments, because it would be better if they were withdrawn and a fresh look at the whole issue was taken by the other place. May I make him an offer? If he withdraws his new clause and amendment, Labour peers will work with him and his Lib Dem colleagues to draft workable, robust and watertight proposals. We are clear that we are not giving up on the principle behind the new clause and amendment, and we urge him to take the same approach.
I want briefly to respond to the new clause and associated amendments tabled by my hon. Friend the Member for Foyle and others. We fully understand the rationale behind his new clause. The requirement that a Member of Parliament must take the oath before being allowed to represent the people who have elected them has placed not just his party—the Social Democratic and Labour party—but many others in an invidious position. The SDLP, in particular, has wrestled with this problem for many years, and I suspect that we are not going to solve it in one afternoon. He has raised a broader, quite interesting idea about whether the oath or pledge we undertake to fulfil is to our country as a whole or just to the constituents who may or may not have voted for us. I therefore suggest that the both the narrow question of whether the oath should be supplemented, or even replaced, by a pledge and the wider question of its purpose should be considered more fully.
The House will already be aware that the Labour party has proposed a constitutional convention that would meet after the general election to consider how we are governed, including the future shape, size and accountability of the second Chamber, and to examine codifying our constitution and reforming our political system. I urge my hon. Friend to seize that opportunity to make his case, as I am sure he will receive a sympathetic hearing. In that spirit, I urge him not to press his new clause to a vote but to ensure that his party plays a full part in the convention next year.
The Minister of State, Cabinet Office (Greg Clark)
Thank you, Mr Speaker, for allowing me to speak at this stage of the debate to set out the Government’s views on the amendments and new clauses. It will not have escaped anyone’s notice, as hon. Members have said, that the Government have tabled no amendments on Report. That reflects our continuing view that the Bill, as drafted, meets fully and faithfully the commitment that our parties made in their 2010 election manifestos.
My party’s manifesto committed to
“introduce a power of ‘recall’ to allow electors to kick out MPs, a power that will be triggered by proven serious wrongdoing.”
The Liberal Democrats’ commitment was to
“introduce a recall system so that constituents could force a by-election for any MP found responsible for serious wrongdoing.”
The Labour party made a similar pledge.
Thomas Docherty
Does the Minister however accept that that can happen in other professions? For example, a lorry or taxi driver who receives a driving-related conviction can lose their job, even though they are not disqualified from driving, because committing a driving offence is incompatible with being a professional driver. I am sure that the whole House would agree that the misuse of public funds—stealing from the taxpayer—is incompatible with being a Member of Parliament.
Greg Clark
I accept that. As I have said, the Government’s view is that we should have a free vote on the amendments. I have pointed out the advantages of amendment 24, of which that is one, but it is fair to delineate the consequences. It would, for the very good reasons that the hon. Gentleman gave, put a particular type of criminal offence into the different category of being particularly worthy of sanction, but it carries the implication that some equally egregious and offensive action—clearly, any criminal conviction should be so regarded—would attract a lesser sanction. To put it bluntly, in many people’s minds, theft from a constituent may not be seen as lighter than theft from the parliamentary expenses system; they would both be equally worthy of condemnation. I make that point to clarify the choice facing the House.
I want to address the new clauses and the amendment tabled by the hon. Member for Foyle (Mark Durkan), which would introduce a new recall condition. New clause 4 would provide that, at the start of each Parliament, an MP had to subscribe to a pledge to act in accordance with the MPs’ code of conduct, and to uphold the standards of public life. Under new clause 5, if 500 of the MP’s constituents signed a petition complaining that the MP had breached the pledge, the election court could consider the matter and trigger the opening of a petition.
It came out in the debate, as the hon. Gentleman acknowledged, that his proposed system would overlap with the disciplinary system set up by the House, because nothing would prevent the election court from considering a matter that the Standards Committee had considered and come to a view on—perhaps a different view from that of the election court. It is not clear whether his proposal envisages public scrutiny of MPs’ compliance with the code of conduct superseding the role of the Standards Committee in recommending sanctions. In addition, it could be seen as setting the code of conduct on a statutory footing.
Thomas Docherty
As ever, I am enjoying the hon. Gentleman’s fascinating yet “in order” tour de force, but let me gently remind him that our proposals would exempt Members who fell below the standards that the Chair expected. Mr Brown, whatever else his flaws may have been, would not have been covered by recall.
Jacob Rees-Mogg
Does the hon. Gentleman wish to say something? He is wavering about whether to intervene. I may be persuading him; he may wish to withdraw his amendment on the strength of what I am saying.
There is a further protection, which has been overlooked throughout this whole debate on the issue of recall, and that is that if the behaviour is so egregious—so shocking to all good common sense—then this House of Commons has the right to expel that Member anyway. We should not forget that, or allow it to wither on the vine.
Thomas Docherty
Given that this Act will, assuming it clears the Lords, come into force at the start of the next Parliament, does the hon. Gentleman not recognise that anyone who chooses to stand for election at the general election on 7 May would know that, if they had committed an offence for which they were then prosecuted and found guilty, they would be subject to recall?
Jacob Rees-Mogg
The hon. Gentleman puts as good a gloss on it as he can, but I do not think it changes the fundamental principle. We could equally say that a Member of Parliament who had committed an offence should be subject to double the time in prison, regardless of when the offence was committed. That would be fundamentally unjust. If we were to say that from tomorrow Members of Parliament who commit an offence should have double the time in prison, that would not be unjust. That would be simply saying that Members of Parliament should be held to a higher standard, and that is perfectly arguable, but to say for an offence committed previously that the punishment can be increased is to act against justice and that is something it is important not to do.
Jacob Rees-Mogg
I always give way to the hon. Lady and she always then serves up the most impossible and difficult interventions. I think she is the Michael Holding of interventions, with these very fast balls being bowled at me. My stumps have disappeared behind me, but what I would say is that I would apply exactly the same rules to those people as to anybody else.
Thomas Docherty
If someone commits an offence currently for which the sentence tariff is less than one year, it is quite reasonable that in future the House of Commons may change the disqualification Act to bring that disqualification down to less than one year. That would equally apply to them. Why does the hon. Gentleman not think that this House has the right to recall somebody who has committed offences prior to this date?
Jacob Rees-Mogg
I am not sure the hon. Gentleman is right about that because, interestingly, the ability to expel peers very carefully ensured it was not retrospective to the crime or to the sentence. It was right to adopt the principle that it is fundamentally unjust to punish people when they did not know that was the punishment at the time when they committed the offence, so I must oppose his amendment.
Michael Ellis
As usual, it is a great honour to follow my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). May I start by agreeing very much with him about the issue of retrospective penalty? It is more than guidelines; it is a fundamental principle of the law of England and Wales that penalties do not apply retrospectively. I have prosecuted and, for that matter, defended cases in court which are often historical offences—this relates particularly to sexual offences, but it can relate to other types of offence as well—where the penalties have moved on and often been increased in the intervening years. The historical sex offence with which the individual defendant is charged carries a maximum that no longer applies, but the court is bound by the maximum sentence that was in place at the time of the offence.
Thomas Docherty
I accept the hon. Gentleman’s point that the sentence must reflect the crime, but the 1981 Act applied to cases prior to 1981. If an offence came to light now that was committed prior to 1981 and a sentence of a year and a day was handed down, the person would be disqualified.
Michael Ellis
There is nothing objectionable about a disqualification provision for those persons who have previous convictions, so the point that was made earlier about police and crime commissioners is not the point that I am addressing. The point in respect of retrospective penalty is the one that I have made—that to pass a penalty that did not apply when the offence was committed is contrary to natural justice and the provisions of English law as it has always existed.
I voted for real recall, as it is called, proposed by my hon. Friend the Member for Richmond Park (Zac Goldsmith). I very much support the provision that would allow the electorate to have their say in this matter, but the amendments are unconvincing. Misconduct in public office is another offence that I have prosecuted. Those prosecutions often related to police officers who had misconducted themselves, for example, through the misuse of the police national computer for their own personal reasons. Intervening courts are not the right way of processing the issues that we are addressing here. It should be a matter for the electorate.
I am unconvinced by new clause 4 and the pledge, as was my hon. Friend the Member for North East Somerset. The oath that we already take covers the circumstance. When we as Members of Parliament take an oath to be faithful and bear true allegiance, that encompasses a duty on us to uphold standards in public life. Therefore I am not convinced by the assertion by the hon. Member for Foyle (Mark Durkan) that another oath is necessary.
An election court is unnecessary and would be a departure from our practice. The election courts that we currently have do not exist 365 days a year. They are brought into existence only on a petition, in very exceptional circumstances. They are rarely established. They are not investigative, so they cannot investigate matters as we would envisage them wanting to do. There is no process of appeal, so an election court would not be the right basis. It would also be bureaucratic and expensive.
The amendments attempt to bring the electorate out of the equation and to put the matter in the hands of third-party expensive and bureaucratic interests, which I do not support. I have doubts about the reduction to 10 days because those persons who are found to have been rude, who have not apologised to the House, or who have done something that falls below the standards expected should not be open to such a provision.
I support real recall. The amendments are in many cases a device to avoid public scrutiny. The electorate should have a say in the matter. Those are my views.
Dr Huppert
Thank you, Madam Deputy Speaker, and I thank all the Members in the Chamber.
Clause 19 deals with the performance of the Speaker’s functions by others. The Speaker has a critical role in the recall process. The Bill, as currently drafted, states that the Speaker can appoint somebody to perform those functions. That seems very strange for a number of reasons, so amendment 11 proposes that, rather then the Speaker being able to appoint somebody, the Chairman of Ways and Means or a Deputy Chairman of Ways and Means, such as you, Madam Deputy Speaker, would be the obvious person to take on those responsibilities.
Amendment 12 picks up on the point, made in Committee, that one of the exceptions would be if the Speaker was subject to a recall. In such circumstances it would be odd to expect the Speaker to set in train the process of recalling him or herself, and that raises the question of what would happen if they refused to do so. Would another recall petition be sought against them for failing to fulfil the first?
Amendment 13 is entirely consequential on the other two amendments. I hope that all five amendments will not prove controversial and that the House will support them unanimously. In the interests of time, I will not push any of them to a vote if there is dissent within the House. However, I hope that the House will agree to them so that they can be made to the Bill as minor, technical and corrective measures.
Thomas Docherty
I, too, will be relatively brief. Amendment 9 relates to an issue we discussed in Committee. The Government gave a clear indication to the Committee that they recognised that it would be inappropriate to place wording in primary legislation on which they had not consulted the Electoral Commission. I hope that the Minister will confirm when he responds whether the Government have now consulted the Electoral Commission, as they undertook to do in Committee.
I agree with the hon. Member for Cambridge (Dr Huppert) that, having had a hat trick of wins earlier this evening, we should not press our luck tonight. However, we are clear that we do not believe that it is appropriate to have wording in primary legislation that has not been agreed by the Electoral Commission. We will expect the other place to remove that wording if the Government are unable to satisfy this House that they have consulted the Electoral Commission.
Amendment 10 simply rewrites the wording set out in clause 9, as the hon. Member for Cambridge said, and I do not think that it requires further explanation. Amendments 11, 12 and 13 relate to a point that was made during our line-by-line consideration of the Bill. He is absolutely right that it is inappropriate to have ambiguity about what would happen if the Speaker was subject to a recall petition—not least for the benefit of the Speaker. We think that it is correct to state explicitly that the Chairman of Ways and Means or the Deputy Chairmen of Ways and Means are the appropriate post-holders in the unlikely event that a recall petition affects the Speaker.
That point was raised with the Government informally, so we hope that the Minister has had a chance to consider it. His previous answer was that the Chair would be vacant because the Speaker would be serving a custodial sentence. However, we have just agreed by an overwhelming majority to make an amendment that will apply this to non-custodial sentences, so that argument no longer holds water. Also, if an MP received a very short sentence, they could be out of custody by the time the recall procedure was initiated.
This is purely a tidying-up exercise and we do not see the point in detaining the House. We are sure that the Minister will have reflected on our previous discussions and will agree to make these minor but necessary changes to the Bill.
Tom Brake
I intend to make a satisfyingly and commendably brief contribution: these amendments are not controversial.
Amendment 9 would remove from the Bill the wording of the petition signing sheet and the ability to amend it by regulations. This would be replaced by a power enabling the wording to be prescribed or amended by regulations following consultation with the Electoral Commission. The wording of the petition signing sheet currently appears in the Bill and can be amended through regulations. This aligns with the power that exists in the Representation of the People Act 1983 that allows for the ballot paper for UK parliamentary elections to be amended through regulations, although the form of the ballot paper itself appears in the Act.
Amendment 10 seeks to amend the wording to appear on the petition signing sheet by making it easier for the elector to understand that the MP will not lose his or her seat and a by-election will not be held if fewer than 10% of the registered electors in the constituency sign the petition. I remind hon. Members that this wording has been developed in conjunction with the Electoral Commission to ensure that it is balanced and fits with the commission’s guidance on referendum questions.
I can see the intention behind the amendments. The first amendment addresses concerns expressed in Committee that if any user testing takes place—I can confirm that we do intend to user-test the wording of the signing sheet—it might be clearer to remove the wording from the Bill and accept that the final form of words will appear in regulations. It is important that the wording is approved by Parliament, whether on the Floor of the House or in a delegated powers Committee. I agree with my hon. Friend the Member for Cambridge (Dr Huppert) that proper consultation should be part of the process of developing the wording. That is why we have worked on it with the Electoral Commission and are now looking to test it further to ensure that it is right. Either the power in clause 9 or that proposed in amendment 9 would allow the wording to be adapted or set should changes flow from the user testing. Amendment 10 demonstrates that there is no single way to word the signing sheet, and that is why we are committed to undertaking user testing. The views of the public will provide us with a clearer picture on where improvements can be made not only to the signing sheet but to the notice of petition.
As for the wording of the petition signing sheet, there is a specific purpose behind the use of the words,
“as a result of the petition.”
If the petition is successful, it is right that a by-election will be held. However, if the petition is unsuccessful, it is not necessarily the case that a by-election will not be held. A by-election could be held because the MP decided to resign his or her seat, or otherwise lost his or her seat. The use of the words,
“as a result of the petition”,
seeks to ensure that the public understand that the effect of an unsuccessful petition is not necessarily to prevent a by-election. The question for the House is whether the wording should be retained in the Bill or be replaced with a power to prescribe the wording in regulations. If the wording is to be retained, the question then is whether we accept the proposed amendment to clarify that a by-election will not be held or leave this to user testing.