2 The "triggers" for recall |
Custodial sentence of 12 months
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
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."
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."
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."
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
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. 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
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;
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.
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 termssuch as
breaches of entitlements, acts of dishonesty, misuse of parliamentary
privilege, nepotism, making decisions that favour family members
or business associates, and the like.
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."
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.
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.
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."
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
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."
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."
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."
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
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."
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
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."
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
|Being caught claiming expenses that they are not entitled to
|Being caught lying in Parliament
|Making racist or offensive comments
|Not holding surgeries or responding to constituents' letters
|Committing a less serious crime, that does not receive a prison sentence
|Switching to a different political party
|Breaking a promise made in their election leaflets
|Having an affair/cheating on their spouse
|Supporting a policy with which you disagree
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
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
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 lifetheir
parliamentary and their public dutiesbut it does not apply
to what a Member does in their purely private and personal life."
He stated that, in his judgment, the code and rules "do
not seek to control a Member's freedom of expressiontheir
views, opinions or policy stancenor 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."
This would have meant, as he pointed out, that several areas
of conduct that the public might consider to be wrongdoingincluding
a situation in which a Member was given a custodial sentence by
a court outside the United Kingdomwould not fall under
the recall process at all.
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."
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."
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 countrywould 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."
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". 
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."
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
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
Recall of MPs, p 18 Back
Ev 78 Back
Ev 58 Back
See Ev 58 for full details. Back
Ev 58 Back
Ev 102 Back
Recall of MPs, p 20 Back
Recall of MPs, p 21 Back
Q 184 Back
Q 15 [Dr Renwick] Back
Ev 89 Back
Ev 105 Back
Ev 79 Back
Ev 79 Back
Ev 88 Back
Q 65 Back
Q 56 Back
Recall of MPs, p 17 Back
Ev 60 Back
Q 55 Back
House of Commons, The Code of Conduct, paragraph 16 Back
HC Deb, 12 March 2012, cols 85-102 Back
Q 55 Back
Q184 [Mark Harper] Back