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

Recall of MPs - Political and Constitutional Reform Contents

3 Conduct of the recall petition

39. Once one of the two triggers had been met, the recall petition process itself would begin. In the White Paper, the Government states: "Our general approach is that the provisions for the conduct of the recall petition should mirror, as far as possible, those in place for the conduct of parliamentary elections."[43] Under the Government's proposals, the formal start of the recall process would be when the Speaker gave notice of the petition to the relevant returning officer, who would then be responsible for conducting the process. The petition would be opened two weeks after receipt of the notice and would remain open for eight weeks. Constituents would be eligible to sign the petition if they were on the electoral register for the constituency. They could sign by post, or in person or by proxy by visiting a single specified location in the constituency. There would be individual signature sheets in an attempt to preserve anonymity. If 10% of those on the electoral register for the constituency signed the petition, the MP's seat would be vacated and there would be a by-election.

40. Democratic Audit told us: "The procedure proposed by the Government for administering the petition process seems to be a reasonable one."[44] Other witnesses, however, were critical of the Government's proposals. Peter Facey, Director of Unlock Democracy, commented: "It is one of the most restrictive forms of recall I have seen, not only in terms of the issues you can be recalled for...but in the way in which you can sign the petition."[45] Nick Cowen, a policy researcher, stated: "I can think of few other processes that would make a petition less likely to be signed than the one proposed in the consultation document."[46] We discuss the main issues raised by witnesses who were critical of the process in more detail below.

SINGLE DESIGNATED LOCATION

41. The Government proposes that returning officers must provide a single designated location within the constituency at which people eligible to sign the petition may do so. Professor Zimmerman, of the University at Albany, State University of New York, commented: "The designation of a single location for signing the petition contained in the Government's proposals for the conduct of the recall petition process will inhibit to a degree voter participation in a geographically large constituency."[47] The Association of Electoral Administrators stated: "A single location would be more straightforward to administer but would not be convenient or accessible for all electors particularly in large rural constituencies."[48]

42. The Association proposed an alternative whereby there would be multiple designated locations and "each of the returning officers with responsibility for the parts of the constituency within their respective local authority areas would take responsibility for the administration of the process in those areas under the general direction and control of the lead returning officer."[49] Even a small increase in the number of designated locations would be likely to increase participation. The Government should replace the requirement for a single designated location for signing the petition with a requirement for at least two and no more than four designated locations. The locations should be selected with regard to making signing the petition in person as convenient as possible for everyone in the constituency. Provision must be made to ensure that duplicate signatures are discounted.

43. Scope raised the issue of the accessibility of the designated location for disabled people. They commented: "We recognise that the White Paper sets an expectation that Returning Officers will be required to take accessibility into account when deciding which location to choose. However, this expectation is not reflected in the draft legislation."[50] They suggested that the final Bill contain wording similar to that used in section 16 of the Electoral Administration Act 2006, which puts a duty on local authorities to "ensure that so far as is reasonable and practicable every polling place for which it is responsible is accessible to electors who are disabled." In the case of recall, the duty would be on returning officers, rather than local authorities. The Government should include in the final Bill a specific duty on returning officers to ensure, as far as is reasonable and practicable, the designated locations for signing the petition are accessible to constituents who are disabled.

POSTAL VOTING

44. As an alternative to signing the petition in person, constituents may choose to sign by post. The Government comments: "This will ensure that those who are unable, or would prefer not, to attend and sign the petition in person will still be able to participate." It adds: "Absent signing will also allow electors who wish to sign the petition a means to do so privately, without the concern that they may be observed."[51] The Association of Electoral Administrators were concerned about the arrangement for distributing postal votes. In the White Paper, the Government states: "In contrast to the position at elections, it is envisaged that constituents who have an extant postal vote will not be sent a postal signature sheet automatically but will be sent one only upon request."[52] The Association of Electoral Administrators said that they were "unclear as to the reasons for this policy decision" and commented that "it could have significant practical implications."[53] They stated that the arrangement could be "confusing" to people who were used to receiving their ballot papers automatically and added: "It will be necessary to widely disseminate public information to explain this key difference."[54]

45. When we asked the Minister why the arrangements for signing a recall petition by post were different from those for voting by post, he replied:

The recall process must maintain political impartiality at all times. Automatically sending out a petition signature sheet to registered postal voters could be seen as soliciting petition signatures. There is also a risk that some constituents may feel compelled to sign something without the full understanding of what it is they are signing due to its authoritative appearance.[55]

46. We believe that constituents who have an existing postal vote should be sent a postal signature sheet automatically if there is a recall petition. The risk of being seen to solicit signatures, or of constituents feeling compelled to sign, should be minimised by clear accompanying instructions and information about the purpose of the petition.

SECRECY AND INTIMIDATION

47. The Government acknowledges in the White Paper that, whereas anyone voting in an election is protected not only by the secrecy of the polling booth, but by the fact that there are multiple options on the ballot paper, the level of secrecy that can be guaranteed is different in the case of a recall petition:

in a recall petition a constituent can only sign the petition to say that they would like their MP to lose their seat; therefore any observer seeing constituents sign the petition, seeing returned petition sheets, or even the issue of incomplete petition sheets to constituents can deduce their views.[56]

48. Keith Archer, the Chief Electoral Officer in British Columbia, commented: "When asked by stakeholders about how the privacy of individuals who sign a recall petition is protected, Elections British Columbia advises that due to the nature of the recall model established in the legislation, signing a petition is a public act."[57]

49. Professor Zimmerman, of the University at Albany, State University of New York, argued: "To protect the secrecy of signers, the petition form should contain two options: (1) 'Retain the Member in Office" and (2) "Initiate a Recall Election of the Member.'"[58] When we asked the Minister for his response to this argument, he replied: "Under the proposals, those who disagreed with the petition would have a chance to express that view at any resulting by-election where they have the option of re-electing their Member should they stand."[59] We agree that offering people the chance to vote for or against recalling their MP would effectively anticipate the process that would take place anyway if the recall petition were to be successful.

50. The UK Government proposes a number of measures to maintain secrecy, including "secondary legislation...[to] strictly limit access to documents relating to a recall petition after its conclusion."[60] The Electoral Commission asked Government and Parliament to consider "whether it is appropriate that the levels of privacy and secrecy found currently in polling stations should be applied to petitions which are, by their nature, public statements which require transparency and verification to support trust in the process and the result."[61] We share the unease of the Electoral Commission about the measures proposed in the White Paper to maintain secrecy. A petition is a public document and, given that the Government itself admits that it would be possible to observe people signing it or taking steps to sign it, it may be more likely to inspire public confidence in the long run if the Government were to acknowledge that it is not possible to protect the privacy of people who sign the petition and to be open about its public nature.

NORTHERN IRELAND

51. In the case of Northern Ireland, the Government has gone one step further in an attempt to avoid the intimidation of constituents who want to sign a recall petition. Here, the petition could be signed only by post. The Alliance Party of Northern Ireland expressed "very strong reservations" about this proposal.[62] Naomi Long MP, writing on behalf of the party, outlined three main objections. First, she noted that "the reason for the restriction on absent voting in Northern Ireland elections, namely the risk of voter intimidation and fraud, would equally apply in this case." She commented: "The risk that people could fraudulently either apply for or use the postal vote of another individual or apply coercion to an individual to sign the petition against their will is of serious concern and the use of postal voting provides no protection whatsoever against this."[63] Secondly, she stated: "the difference in the method of collecting the petition in different parts of the UK could lead to differential turnouts in different regions, a fact which is not reflected in threshold set for triggering a by-election."[64] Thirdly, she commented: "whilst the particular circumstances in Northern Ireland give rise to specific concerns regarding the issue of intimidation, it is perfectly conceivable that intimidation of voters could also take place in other parts of the UK".[65]

52. The Electoral Commission also expressed concerns about the different arrangements for signing the petition in Northern Ireland:

We do not believe it is appropriate to provide significantly different arrangements for electors in Northern Ireland to sign a recall petition than those in Great Britain, given the drive towards greater alignment in electoral law and practice between Northern Ireland and Great Britain.[66]

53. Naomi Long MP suggested that one solution would be to have "a recall plebiscite/referendum" instead of a petition.[67] As we noted above, enabling people to vote for or against recall would indeed increase the secrecy of the process, but it would in effect be duplicating the by-election process itself. We are not convinced that this is a satisfactory solution. However, we are uncomfortable with a different process applying in Northern Ireland to the rest of the United Kingdom. The Government's proposal to restrict the methods of signing the petition in Northern Ireland to postal signing is not a proportionate response to concerns about intimidation. Everyone who is eligible to sign will be able to do so by post if they wish, so nobody in Northern Ireland would have to sign the petition in person unless they actively chose to do so. We recommend that constituents in Northern Ireland should be able to sign the petition in person if that is what they wish to do.

SIGNATURES

54. Scope raised concerns about the requirement to provide a signature in order to support the petition: "This would create considerable difficulties for disabled people who may be unable to sign as a result of the nature of their impairment." Scope added: "We would be concerned if the expectation is for Returning Officers to assist in such cases by signing on behalf of the disabled person, as this would both undermine the secrecy of the process, and potentially lead to allegations of multiple signing and undermine the legitimacy of the process."[68]

55. The requirement for eligible constituents to sign the petition in order to show they support it seems to us reasonable. However, the Government must ensure that suitable alternative arrangements are made for disabled people who are unable to sign the petition.

WORDING OF PETITION

56. The Electoral Commission asked whether "there should be any independent user testing of the wording for the proposed recall petitions, in the same way that the intelligibility of referendum questions are assessed by the Commission against published principles."[69] The Association of Electoral Administrators also suggested that the wording in clause 8 of the draft Bill, which is the text that would appear on the petition, should be tested for plain language.[70] The clarity of the wording of the petition, and of the accompanying information about the process, should be tested by the Electoral Commission before it is agreed.

HENRY VIII POWERS

57. The Clerk of the House of Commons, Robert Rogers, drew attention to "the sweeping 'Henry VIII' powers in Clause 19 of the draft Bill".[71] A Henry VIII clause confers on Ministers the power to amend primary legislation by means of secondary or delegated legislation. In the case of the draft Recall of MPs Bill, the Henry VIII powers are in clause 19(2), and the power to amend primary legislation includes the power to amend the Recall of MPs Act itself. When we asked the Minister why these powers had been included in the Bill, he commented:

In order to ensure that the regulations interact appropriately with the relevant primary legislation, the broad power to amend primary legislation has been included in clause 19. This is particularly necessary in view of the proposed introduction of a system of individual electoral registration.[72]

We are uncomfortable with sweeping powers to amend primary legislation by means of secondary legislation in a Bill of a constitutional nature and we recommend that the Government remove these powers from the final Bill.

CAMPAIGNING

58. Once a recall petition has been initiated, people will be able to campaign to have their MP recalled. The Government proposes that there will be two categories of campaigners: accredited campaigners, who must register with the returning officer and who will be able to spend up to £10,000 and non-accredited campaigners, who will be able to spend up to £500 campaigning without having to make any declaration concerning spending. Both the Association of Electoral Administrators and the Electoral Commission raised concerns about the role of the returning officer in this context. The Association commented:

Whilst it is usual for returning officers to receive and hold the returns and receipts relating to candidates' expenses, it is a significant departure for returning officers to be responsible for registering campaigners, and to have 'oversight' of campaign expenditure and donations as suggested in the White Paper.[73]

59. The Electoral Commission noted that "returning officers do not have experience of regulating campaigning, and are likely to need support in order to be able to carry out this role." They added: "The White Paper proposes that the Commission would have a power, but not a duty, to provide guidance to Returning Officers, but that guidance would not be binding and the Commission would have no role in policing compliance with the rules."[74] They also stated: "the Electoral Commission does not routinely produce guidance on the regulation of campaigning in respect of electoral events which we do not regulate, and ...taking on this role for a new regulatory regime, applying to a process which is not an election or referendum, would have potentially significant resource implications."[75]

60. We recommend that the Government reconsider whether returning officers are the best people to be responsible for the regulation of petition expenditure and donations, or whether the Electoral Commission might be better placed to undertake this role.

THE 10% THRESHOLD FOR SIGNATURES

61. The Government proposes that the threshold required to trigger a by-election would be 10% of those on the parliamentary electoral register for the constituency in question. Our witnesses differed on whether 10% was the appropriate threshold. Nick Cowen suggested lowering the threshold to "10% of total votes cast in the constituency at the previous general election, rather than the total number of voters on the parliamentary electoral register." He commented: "This would lower the bar to recall in areas of low turn-out, while making it a bit harder for MPs previously elected on a more popular mandate to be recalled."[76]

62. Other witnesses, however, thought that the threshold of 10% of the electoral register was already low. Naomi Long MP, writing on behalf of the Alliance Party of Northern Ireland, commented: "Ten percent of the registered electorate is a relatively low proportion of the electorate to trigger what is an expensive process of recall and by-election." She stated: "A more reasonable threshold may be between one fifth and one quarter of the registered electorate, which is achievable, would represent a significant level of discontent with the MP, and which would be less susceptible to abuse."[77] The Committee on Standards in Public Life noted: "The appropriate trigger level is clearly a matter of judgement, but the relatively low level required could leave the process open to abuse through manipulation of postal or proxy votes."[78]

63. If the Government takes the steps we have recommended to make signing the petition easier—having several designated locations and those who have an extant postal vote automatically being sent a postal signature sheet—it should raise the threshold from 10% to at least 20%. We believe this would represent a significant level of dissatisfaction with the sitting MP.

43 Recall of MPs, p 25 Back

44 Ev 79 Back

45 Q 4 Back

46 Ev 90 Back

47 Ev 105 Back

48 Ev 82 Back

49 Ev 82 Back

50 Ev 100 Back

51 Recall of MPs, p 28 Back

52 Ibid. Back

53 Ev 83 Back

54 Ibid. Back