House of Commons - Recall of MPs - Political and Constitutional Reform

Recall of MPs - Political and Constitutional Reform Contents

2 The "triggers" for recall

Custodial sentence of 12 months or less

14. The first trigger proposed by the Government is a custodial sentence of 12 months or less. MPs who receive custodial sentences of more than 12 months are already disqualified under the Representation of the People Act 1981. Those who took part in the YouGov survey on recall were strongly in favour of the idea that MPs who had committed a crime serious enough to receive a prison sentence should face a recall petition: 91% agreed with this proposition. Nick Cowen, a policy researcher, argued that this trigger should be extended to apply if an MP was convicted of any indictable offence. An indictable offence is an offence which can be tried in a Crown Court. He commented: "Indictable offences tend to be serious breaches of the law, and they are an objective measure that can establish an MP's eligibility for recall."[12] The Government's White Paper comments: "Whilst it is possible that an MP may receive a non-custodial sentence for behaviour which brings the House of Commons into disrepute, the Government believes that it would be a disproportionate response to commence a recall petition in all such cases."[13]

15. Others were concerned that the first trigger was already too broad. Several witnesses raised the issue of the MP's motivation in committing the offence. The Government's White Paper acknowledges that "an MP may commit a crime for the purpose of making a wider political point", but states that the draft Bill does not take any account of motivation because: "If an MP were convicted of an offence and received a custodial sentence in those circumstances, it would be up to their constituents to judge in the recall petition process whether the MP should retain their seat."[14]

16. Democratic Audit commented: "We are wary of the automatic opening of the recall process in cases of any sentence involving imprisonment. Imprisonment can occur for other reasons, including those with a political dimension."[15] They were particularly concerned about imprisonment resulting from "acts of protest without any element of violence or dishonesty", such as the imprisonment of several Unionist MPs in the 1980s for failure to pay car tax as a protest against the 1985 Anglo-Irish agreement. They were also concerned about imprisonment resulting from "conduct like non-payment of fines and charges which are sometimes part of civil disobedience, and as a result of contempt of court where imprisonment can be decided summarily."[16] They commented: "The law as proposed could lead to a ridiculous situation where an MP could say something in the House under parliamentary privilege which would expose him or her to imprisonment for contempt of court (and therefore recall) if the statement were repeated outside the House."[17]

17. The Clerk of the House of Commons, Robert Rogers, commented: "The issue of civil disobedience is, I think, likely to attract interest if the Bill is brought before Parliament."[18] He noted that most recent cases involving the imprisonment of MPs for criminal offences have been linked to civil disobedience, citing the examples of the Unionist MPs mentioned, above;[19] Bernadette Devlin and Frank McManus, Nationalist MPs who were imprisoned for offences of organising and taking part in processions contrary to law in Northern Ireland; and Terry Fields, a Labour MP who was imprisoned for refusing to pay a poll tax bill. The Clerk of the House stated:

While one might speculate that their electorates would have stood by the imprisoned Members (and there is good evidence for this in the case of the Unionists in Northern Ireland), the success threshold in a recall petition of only 10 per cent might be regarded as readily achievable; no successful candidate, after all, ever secures as much as 90% of the vote.[20]

18. One way of addressing this problem might be to raise the threshold for the number of signatures required to make the petition successful. However, this would have the effect of making recall more difficult regardless of the nature of the offence the MP had committed. We recognise the difficulty of defining what constitutes a political crime or a crime of conscience. However, we recommend that, for the purposes of the first trigger of a custodial sentence of 12 months or less, the Government change its decision not to take account of the motivation of the MP in committing the offence. One possibility would be to enable the House itself to decide whether there should be an exemption from a recall petition in a particular instance because of the political nature of the crime.

A resolution of the House of Commons

19. The first trigger would not cover everything for which, arguably, an MP should face recall. An MP may not have received a prison sentence, but still be guilty of what the Government describes in its White Paper as "serious wrongdoing". Professor Anne Twomey, of the University of Sydney, commented:

It is arguable, however, that the primary types of actions for which voters would like the opportunity to recall Members are those that involve the misuse or abuse of a Member's position and do not usually involve prison terms—such as breaches of entitlements, acts of dishonesty, misuse of parliamentary privilege, nepotism, making decisions that favour family members or business associates, and the like.[21]

20. This is where the Government's second trigger comes in. The White Paper states that the Government believes that "the House should have the power to initiate a recall petition where it is found that an MP has engaged in serious wrongdoing which does not warrant immediate expulsion but may lead constituents to lose faith in their MP."[22] The mention of "immediate expulsion" is a reference to one of the existing sanctions that are open to the House of Commons when an MP has been guilty of misconduct. We consider these sanctions in more detail in Chapter 4.

21. The Government notes that it expects that the Committee on Standards and Privileges "will inevitably play an important role" in the process of initiating a recall petition in the event of serious wrongdoing.[23] The Committee on Standards and Privileges is a parliamentary committee of MPs that considers reports from the independent Parliamentary Commissioner for Standards, makes recommendations to the House about appropriate sanctions for MPs who have broken the code of conduct, or the associated rules, and recommends any changes to the code or rules.

22. The Minister for Political and Constitutional Reform, Mark Harper MP, told us that the second trigger was "more complex" than the first.[24] Witnesses raised two main objections to this trigger.

THE ROLE OF MPS IN THE PROCESS

23. First, some witnesses thought that it was inappropriate for MPs to have a role in deciding whether their colleagues should face a recall petition. Dr Alan Renwick, of the University of Reading, argued: "The notion of giving a committee of MPs the power to decide when a recall should happen is unacceptable. That would not carry public confidence."[25] Nick Cowen commented that it was not appropriate for MPs to be involved in deciding whether an individual colleague should face a recall petition. He stated:

There is a risk that a recall petition will be wielded (or avoided) on the basis of political considerations rather than individual MP behaviour...This is in a context where the agents responsible for the decision will feel significant, perhaps overwhelming, pressure to be partial to allies or potential allies in Parliament, especially those who might be able to help or harm their career progression.[26]

24. Some witnesses, however, argued that it was important that the House of Commons had a role in disciplining its own Members. Professor Joseph Zimmerman, of the University at Albany, State University of New York, commented: "It is most important that Members of the House of Commons be involved in deciding whether an individual Member should face a recall petition as Members have an institutional responsibility to police the behaviour of colleagues."[27] Democratic Audit stated: "we do not believe that the interests of restoring public faith in the political process would be well served by Parliament abdicating ever more responsibility for making important decisions and keeping its own house in order."[28]

25. There is also the fact that the members of the Committee on Standards and Privileges already make recommendations about the conduct of their colleagues and would continue to have such a role in relation to the House's internal disciplinary procedures regardless of whether they had a role in the recall process. Democratic Audit noted the inconsistency of allowing the House to play a role in deciding on the appropriate sanctions in some cases of wrongdoing, but not in others: "It would be excessive to prevent MPs from being involved in the investigation and punishment of lesser transgressions, and inconsistent to bar them from involvement in the more severe cases."[29]

26. On 12 March 2012, the House of Commons decided that the Committee on Standards and Privileges would in future be split into two Committees: the Committee on Standards, which would deal with all matters relating to the conduct of MPs, and the Committee on Privileges. Following a recommendation made by the independent advisory Committee on Standards in Public Life, the membership of the new Standards Committee will comprise 10 MPs and at least two, and no more than three, lay members. Lay members will not have the same voting rights as the MPs, but will have the right to have their opinion recorded in the final report. The Committee on Standards in Public Life commented that the inclusion of lay members would "both...demonstrate that MPs are accountable to the people they serve and ...enhance public acceptance of the robustness of the process, whether in the consideration of recall, expulsion or the range of less serious sanctions available to the House."[30] We welcome the inclusion of lay members on the new Standards Committee and consider that this change strengthens it, and arguably further legitimises it, as an arbiter of MPs' conduct.

27. The Chair of the Committee on Standards and Privileges, Rt Hon Kevin Barron MP, explained how his Committee operates: "The art of it all...is to effectively leave your party politics at the door on the way into the Committee room and pick them up on the way out. We adjudicate on that basis."[31] It is not easy objectively to judge the conduct of one's colleagues, but, overall, we consider that the Committee on Standards and Privileges has done so successfully. We are confident that it would continue to be able to do so were one of the sanctions that it could recommend a recall petition. This is particularly the case given that in future lay members will be included on the Committee.

WHAT IS SERIOUS WRONGDOING?

28. The second objection that witnesses raised in relation to the trigger of a resolution of the House was the difficulty of defining what constitutes serious wrongdoing. Among those who expressed concern about this difficulty was the Chair of the Committee on Standards and Privileges himself, who commented: "the Committee on Standards and Privileges has discussed this and we have some grave concerns about exactly what serious wrongdoing means, outwith the criminal code."[32]

29. The YouGov survey on the recall of MPs provides some indication of what the public might consider to be the type of behaviour that merits recall. Respondents were asked to say whether MPs should face recall in a number of different circumstances. The cases in the survey are listed in below in order, from the highest percentage of respondents who thought MPs should face recall to the lowest:

Percentage who think MPs should face recall in this situation

Committing a crime serious enough to receive a prison sentence 91

Taking bribes 91

Being caught claiming expenses that they are not entitled to 87

Being caught lying in Parliament 80

Making racist or offensive comments 70

Not holding surgeries or responding to constituents' letters 60

Committing a less serious crime, that does not receive a prison sentence 56

Switching to a different political party 52

Breaking a promise made in their election leaflets 50

Having an affair/cheating on their spouse 22

Supporting a policy with which you disagree 10

30. The Government has deliberately avoided defining how the House of Commons should come to a resolution that serious wrongdoing has taken place. The White Paper comments: "Any statutory definition of 'serious wrongdoing' would be limited in scope and open to interpretation by the courts. It is also likely that such a definition would need updating on a regular basis."[33] The Clerk of the House agreed that it was wise not to define serious wrongdoing in the Bill:

To make such provision on the face of the Bill might have the perverse effect of making the process less effective; and it would certainly open the way for the Courts to take a role in a way which I would expect the House to find unacceptable and which would in all probability breach Article IX of the Bill of Rights.[34]

We agree that it would be undesirable to define "serious wrongdoing" in the Bill. However, we are also conscious that there is a pressing need, not for a statutory definition, but for an indication of what constitutes serious wrongdoing, to facilitate the work of the Committee on Standards and Privileges.

31. The Parliamentary Commissioner for Standards, John Lyon, was of the opinion that serious wrongdoing in the context of the Government's recall proposals related to breaches of the code of conduct for MPs and its associated rules. This is not explicitly stated in the draft Bill or White Paper. However, it is a reasonable assumption, given that the current internal disciplinary procedure in relation to standards is focused on breaches of the code of conduct. The Commissioner commented that, at present, when he receives an allegation of misconduct he has to decide whether there has been a breach of the code. Speaking in January 2012, he noted that "the current scope of the code encompasses all aspects of a Member's public life—their parliamentary and their public duties—but it does not apply to what a Member does in their purely private and personal life."[35] He stated that, in his judgment, the code and rules "do not seek to control a Member's freedom of expression—their views, opinions or policy stance—nor do they seek to regulate how a Member deals with or responds to his or her constituents." He added: "It follows that, as currently drafted, the disciplinary process that could lead to recall would be engaged only for conduct that comes within the code."[36] This would have meant, as he pointed out, that several areas of conduct that the public might consider to be wrongdoing—including a situation in which a Member was given a custodial sentence by a court outside the United Kingdom—would not fall under the recall process at all.[37]

32. The Commissioner suggested that one way of broadening the scope of the process would be to accept the recommendation made by the Committee on Standards in Public Life that the code of conduct for MPs should be extended to "allow the House to apply the code and its disciplinary processes where any conduct could be shown to have caused significant damage to the reputation and integrity of the House." He commented that this would capture wrongdoing such as committing a serious offence in another country, but "the focus would remain on conduct affecting the reputation of Parliament, and not on any other misdemeanour that did not have that effect."[38]

33. On 12 March 2012, the House of Commons agreed a revised code of conduct. Paragraph 16 of the revised code states: "Members shall never undertake any action which would cause significant damage to the reputation and integrity of the House of Commons as a whole, or of its Members generally."[39] The revisions mean that conduct that would previously not have fallen under the scope of the code— including the situation mentioned above in which a Member committed a serious offence in another country—would now do so. However, the House also agreed an amendment to insert a new paragraph into the code to state: "The Commissioner may not investigate a specific matter under paragraph 16 which relates only to the conduct of a Member in their private and personal lives."[40] This means that although the scope of the code has been extended, the Commissioner does not have the power to investigate breaches that relate only to Members' private and personal lives.

34. Finally, the Commissioner commented that he did not believe that "serious wrongdoing" was a description of "any particular conduct", but "a description of the gravity of any breach of that conduct". [41]

35. It is worth noting that even the extended code still does not cover all the behaviour that the members of the public who took part in the YouGov survey considered to be conduct meriting recall. For example, 60% of respondents thought that not holding surgeries or responding to constituents' letters merited recall. This would not be a breach of the code of conduct. When we asked the Minister whether he thought such conduct should fall under the definition of serious wrongdoing, he was clear that it should not, commenting: "those things are a matter of judgment for constituents to exercise at an election."[42]

36. We understand why the Government does not want to define "serious wrongdoing". However, it is not clear from the draft Bill and White Paper whether the Government intends serious wrongdoing to be restricted specifically to breaches of the code of conduct for MPs and its associated rules, as the Parliamentary Commissioner for Standards suggested to us.

37. Restricting wrongdoing to breaches of the code of conduct for MPs and its associated rules would certainly not cover everything that the public might consider to be conduct meriting recall. However, it would provide a rational and comprehensible basis for making a judgement about conduct. Members of the public who felt that their MP had behaved improperly, but who found that such behaviour did not fall within the scope of the code of conduct, would have the opportunity to express their views at the next general election. Recall should not be a substitute for elections.

38. We consider that wrongdoing in the context of recall constitutes a breach of the code of conduct for MPs, while "serious" implies a breach of sufficient gravity that the Committee on Standards and Privileges would currently consider it merited more than a period of suspension.

12 Ev 89 Back

13 Recall of MPs, p 18 Back

14 Ibid. Back

15 Ev 78 Back

16 Ibid. Back

17 Ibid. Back

18 Ev 58 Back

19 See Ev 58 for full details. Back

20 Ev 58 Back

21 Ev 102 Back

22 Recall of MPs, p 20 Back

23 Recall of MPs, p 21 Back