Recall of MPs Bill

Greg Clark Excerpts

Monday 24th November 2014 Commons Chamber

[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to vote for new clause 2 and amendment 15 and their associated amendments, because it would be better if they were withdrawn and a fresh look at the whole issue was taken by the other place.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.

[Douglas Carswell]

Does my right hon. Friend think it is somewhat regrettable that the recall proposal does not actually have a recall mechanism in it? There is nothing in it that actually allows voters to have that binary referendum in their constituencies to decide whether or not to recall their MP.

[Greg Clark]

The recall measure contained in the Bill is precisely that envisaged by the parties’ manifestos.

Throughout the passage of the Bill, the Government have made it clear that—beyond implementing our manifesto pledges—it is open to the House to make further amendments, and that, on the Government side of the House, they would be subject to a free vote, including by Ministers. Given that, all I want to do now is make some observations on the part of the Government about some of the advantages and disadvantages of the amendments in question. I repeat that it will be for the House to decide whether to adopt them.

I will first turn to the amendments tabled by the hon. Member for Dunfermline and West Fife (Thomas Docherty). As he has said, amendments 16 and 17 would alter clause 2 to ensure that historical offences would be liable to trigger recall, which reflects a similar amendment tabled in Committee. As I said when I last stood at the Dispatch Box, there is a case that if an MP were elected and his or her constituents were unaware of the fact that he or she had committed a crime because it had not come to court, that MP might be said to have been elected on a false prospectus. Against that, as my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has pointed out, it remains novel for legislation in this House to have what could be argued is a retrospective effect, and for a criminal act to have consequences—in this case, triggering recall as an MP—that were not the case when the act was committed.

Amendment 14, tabled by the hon. Member for Dunfermline and West Fife, would alter clause 1 to reduce the number of sitting days from 21 to 10, and the number of days if not expressed in sitting days from 28 to 14. It would also introduce a requirement that for a suspension to trigger recall it must follow on from a recommendation by the Standards Committee. Nevertheless, the length of time for which the MP would be suspended by the House may be different or the same as that recommended by the Standards Committee. That would ensure, as the hon. Gentleman has said, that an MP named by the Speaker for a second offence and suspended for 20 days would not be subject to a recall petition.

The argument in favour of the amendment is that more MPs would be caught by the provision who previously would have withstood the effect of recall. If the recall petition process had been in force with the threshold set at 10 sitting days, then of the 11 MPs suspended since 2000 seven would have met the condition for opening the process. Under a threshold of 21 sitting days, two MPs would have been caught. A further two MPs resigned before the suspension came into effect.

The argument against the proposed change is that the House may wish to impose its own suspensions—sometimes quite long ones—without the consequence of a recall process necessarily being triggered. In other words, the proposal would reduce the scope that the Standards Committee might have to issue sanctions without triggering the recall process.

Amendment 15, tabled in the name of my hon. Friend the Member for Cambridge (Dr Huppert), would mean that a Member of Parliament convicted of the common law offence of misconduct in public office would be subject to a recall petition process regardless of the sentence imposed. Misconduct in public office is a common law offence in England and Wales, punishable by a maximum sentence of life imprisonment. There is, however, no clear, exhaustive definition of what misconduct in public office covers. Action that amounts to misconduct is likely also to be contrary to other laws. The boundaries of the offence are not clearly defined, so they are uncertain. Despite there being relatively few prosecutions each year, a disproportionately high number of those cases are appealed against.

The common law offence of misconduct in public office does not exist in Scotland, so there is a risk that an MP from Scotland could commit the offence of misconduct in public office while working in Westminster given that the offence applies in England, but not if the offence took place while working in their constituency.

[Dr Huppert]

The Minister is making an interesting point, but is it not the case that an MP taking any other action that was not a criminal offence under Scots law but was such an offence in Westminster could be punished for committing it in England but not for doing it in Scotland?

[Greg Clark]

Indeed. From reading the minds of Members who are interested in, and sympathetic to, a provision of this kind, it is not clear to me that they intended to have different regimes in different parts of the United Kingdom, given that all of us have the common characteristic of being returned to serve in the United Kingdom Parliament after election by our constituents.

I want to address Opposition amendment 24 on the Parliamentary Standards Act 2009. The legislation was brought forward following the expenses scandal, and it deals directly with dishonest claims for MPs’ expenses. It is fair to say that that issue obviously provided some of the impetus behind the recall proposals in the first place. The offence in section 10 of providing false or misleading information in claims for allowances is intended to deal with the situation in which an MP provides information that he or she knows to be false or misleading. It does not cover innocent mistakes; we are talking about deliberately providing false information. So far, no prosecutions have been brought under the Act. I remind the House that the former MPs and peers who were convicted of fraudulent expenses claims were all sentenced to terms of imprisonment.

It seems to me that the question before the House on amendment 24, and indeed on the territorial aspects of amendment 15, is whether certain criminal convictions should be singled out as requiring treatment that is different from the treatment of other convictions. The trigger relates to imprisonment for other offences, many of which—including the Theft Act 1968—have been used to prosecute Members of Parliament. In considering this matter, the question in colleagues’ minds should be, to put it crudely, whether theft from a member of the public is less worthy of automatic sanction than theft through the IPSA expenses system. Treating those offences differently introduces a distinction that currently does not exist.

[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.

--- Later in debate ---

[Mark Durkan]

My preference is for the code to be policed by the public, using the mechanism of accountability in a proper, open recall system. That is what I want to see, alongside a newly framed pledge.

[Greg Clark]

The hon. Gentleman made that point clear in his speech.

The amendments and new clauses tabled by my hon. Friend the Member for Cambridge are a modified version of those tabled by my hon. Friend the Member for Somerton and Frome (Mr Heath) in Committee. The intentions of involving the public and taking the responsibility for judging other MPs’ behaviour away from MPs attracted support in Committee. The hon. Member for Dunfermline and West Fife expressed disappointment that those intentions had not been reflected in a Government amendment, as did my hon. Friend the Member for Cambridge in his blog. However, these issues are not easily captured in legislation in a way that avoids the pitfalls that have been mentioned in this debate. It is not for the want of trying, if I may put it in that way. It is for the House to take a view on the proposal if it is pressed to a vote.

[Dr Huppert]

We will see what happens in the Division, but will the Minister assure us that the Government, with all their advice and lawyers, will seek to come up with a more workable proposal in the other place if we cannot get our proposal through in this place?

[Greg Clark]

The Government’s demeanour throughout the debates on the Bill, if I may put it in this way, has been that we are open to facilitating the development of amendments and proposals that either House can debate. In conversations, I have been open to allowing officials to advise on the kinds of proposals that may or may not work legally. I see no reason why that should not continue. It is important to be clear that such proposals cannot carry the guarantee of a Government amendment, but I am happy to use my offices and those of my ministerial colleagues to have those conversations.

[Chris Bryant (Rhondda) (Lab)]

I urge the Minister not to listen too much to the hon. Member for Cambridge (Dr Huppert) for the simple reason that there is a fundamental flaw in his proposals: we would be asking a court to make a judgment on whether such a petition should go forward on remarkably subjective terms. Each of the terms in his proposals—“trivial”, “vexatious”, “brought for party political purposes”, “misconduct”, “trust”—is entirely subjective and is surely not good enough for a court to be able to assess.

[Greg Clark]

I said a few moments ago that it had not been possible, in good faith, for the Government to recommend an amendment that the House could responsibly be invited to support. Since further amendments or developments of the Bill are a matter for the House I will ensure that advice and help is provided, but these matters must be considered and there is no guarantee that a form can be found that avoids the practical difficulties. The hon. Gentleman’s more fundamental point is a matter for this House and the other place, and any amendments would return to this House to be determined.

Let me set out some of the challenges in the new clauses, although some have been expressed already. The definition of misconduct is based on the common law offence in England and Wales, but its test is not just the criminal offence. As drafted, it could capture behaviour that would not be a criminal offence, including in an MP’s private affairs, and it would be for the court to judge whether certain behaviour in a Member’s private life amounted to misconduct. The election court would have to apply the test of whether the MP had committed

“misconduct to such a degree as to amount to an abuse of the public’s trust”.

I understand and appreciate the aim of linking misconduct to an MP’s standing in the eyes of the public, but as drafted it is a rather subjective test. The House will want to take a view on the kinds of evidence and analysis that a court might draw on to judge whether the public at large felt there had been a betrayal of trust, including where no criminal offence was alleged to have been committed.

[Sir Paul Beresford (Mole Valley) (Con)]

My right hon. Friend will be aware that that position has been discussed by the House as it relates to the Committee on Standards, and it was rejected.

[Greg Clark]

I am grateful for that intervention. It is now clearly on the record and Members can reflect on the view taken by the Committee.

Let us consider the body that would make the judgment about alleged misconduct. Election courts are convened to consider cases that question the outcome of an election, and they do not meet unless a petition has been brought. At the end of the hearings, the court determines whether the election was valid or void, which can take several months to a year. The court has no investigative capacity but hears views from relevant parties. Giving this new role to an election court would mark a significant departure from current practice, and as I said, it lacks the capacity to launch an investigatory process. Furthermore, no appeal is provided for in the new clauses; indeed, the election court is not currently subject to appeal but only to limited judicial review. That raises the question of whether the election court model is the right basis for the proposal. If it is, I suspect that a number of questions could usefully be asked when fleshing out the detail, including whether there should be an appeals mechanism.

My hon. Friend the Member for Cambridge proposes to set the number of petitioners necessary for the election court to consider an allegation of misconduct at 500. Of course, if it is alleged that a criminal offence has been committed it takes only one person to make a complaint and to have it investigated by the police. 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 popular will the House will want to take a view on the right number of petitioners. The new clause increases to 15% the percentage of electors who need to sign the petition to trigger recall, which is higher than for the other conditions. However, 500 is a lower threshold for the initial trigger.

If there are to be such additional triggers in the Bill, the House must consider whether to set out the relationships, or hierarchy, between the different recall conditions. An election court could look at issues that could also be considered by the Committee on Standards, which operates on a trigger, or by the police as the gateway to a criminal conviction. If the defence was rehearsed before an election court, or if the court’s finding was considered prejudicial to an MP’s presumption of innocence, it may not be possible for them to have a fair trial. The fact that an MP had to answer allegations in an election court could prevent him or her from facing criminal prosecution for misconduct that amounts to a criminal offence.

Finally, let me turn to the issue of parliamentary privilege. New clause 3 includes a provision stating that section 9 of the Bill of Rights will not be affected. I understand that this is intended to ensure that privileged matters are not the subject of judgment by the electoral court. However, the use of the word “affecting” could be read in one of two contradictory ways by a court: either as a statement that privilege matters are excluded; or as an admission that the Bill overrides the Bill of Rights, and therefore impacts on privilege but only for these limited purposes, thereby inviting an election court to consider privileged issues as part of a case. If an exclusion is desired, it could benefit from clarification.

In conclusion, the Government were clear on Second Reading that we are open to ways to improve the Bill and we stand by that commitment. My intention has been to summarise and highlight some of the points the current drafting raises. It is right that the House votes in full knowledge of the technical and policy challenges that remain, as well as the principles behind the amendments. I look forward to hearing the views expressed during the remaining part of this debate.

[Dame Angela Watkinson (Hornchurch and Upminster) (Con)]

I support the principle of the Bill: to enable the recall of MPs between general elections if they are considered to have conducted themselves in a grossly unacceptable or inappropriate manner that has led either to a custodial sentence or a suspension from the House of Commons for a period of at least 21 sitting days. Sentences of more than 12 months already lead to automatic disqualification under section 1 of the Representation of the People Act 1981. A third trigger has been proposed, in new clause 2, for a petition signed by 500 people to present allegations of improper behaviour. Presumably, this would not relate to illegal conduct, which would have already led to arrest and charge. I urge caution, because I think this opens up a whole debate on the interpretation of the word “improper”, which will mean different things to different people. An MP’s prolonged absence from the House of Commons without good reason would not be a criminal offence, but it would leave constituents effectively unrepresented and might justify a recall petition on the grounds of wholly improper conduct.

I did not support proposals in Committee for recall by 5% of the electorate for any reason. I predict that “any reason” could comprise such a wide spectrum as to invite frivolous petitions and could include, for example, disapproval of an MP’s political or religious views on controversial subjects such as: a Member’s sexual orientation, entering a same-sex marriage, capital punishment, euthanasia, abortion, smoking, hunting, alcohol, drugs, gambling and local planning matters. We could all think of any number of reasons that would give rise to frequent vexatious recall attempts of MPs with views that are unpopular with certain sections of their electorate. Recall could be generated easily by well-funded pressure groups or individuals, with all the associated costs to the taxpayer.

I am also concerned that 500 constituents would form a very small percentage of the electorate. In a constituency of 85,000, 500 would be way below 1%. I have not done the exact calculation, but it would be somewhere between 0.5% and 1%. I am sure somebody is scribbling away already to give me the exact figure. That threshold is far too low, and for that reason I will not support new clause 2, new clause 5 or the related amendment 34. Every Member of this House will know that an accusation against one of our number reflects on each and every one of us, and on Parliament as a whole. The blame falls collectively and the media rejoice in referring to MPs as though all 650 of us are guilty of something of which one or a very small number stand accused. We need to guard against a “guilty until proven innocent” culture, where an MP may be destroyed reputationally and financially, and then, when cleared, finds that the damage is irreparable.

New clause 4 proposes an MP’s pledge. This has some merit, although I have always assumed that its contents were implied when an MP is sworn into this House. The pledge would reinforce that, although I do not take comfort, as the hon. Member for Foyle (Mark Durkan) does, that its contents would reassure the general public or help to deter vexatious accusations.