My Lords, with my Anglican ancestry and upbringing, I like to start with a text. Perhaps I should say in parenthesis that I am the black sheep of the family. The text is as follows. It says that,
“the provision that an MP should be subject to recall where he or she is suspended from the House for ten sittings days or more means that it will be MPs themselves, rather than voters, who under this scenario determine whether the recall process can be triggered. The constitutional purpose of recall is to increase MPs’ direct accountability to their electorates: it is questionable whether that purpose is achieved when the trigger is put in the hands of MPs rather than constituents”—
amen to that.
That is a quotation from the summary of the analysis by the Constitution Committee of this part of the Bill, and I think that it is exactly spot-on. I am especially pleased to have the support of my noble friend Lord Lexden, who is a member of the committee, for the group of probing amendments that we are putting before your Lordships’ House this afternoon. Our overall purpose is to respond in detail to that challenge from the Constitution Committee, which was echoed at Second Reading by the noble Lord, Lord Norton of Louth, who I am delighted to see here, because I know that he has been on public duty elsewhere.
In short, the Bill is defective in that it does not do what it says on the tin. It creates no greater independent accountability of MPs to voters. To emphasise that weakness and to respond to the widespread concern expressed at Second Reading, Amendment 2 simply calls into question the current priorities of the Bill. It is no more than a marker put down to enable the full package—probing Amendments 25 to 32—to be considered as a further and better route to the recall process.
I am extremely grateful to the noble Lord, Lord Alton, and my noble friend Lord Lexden for all the help that they have given me and for their support in putting together this package. Indeed, we have had most welcome encouragement and practical advice from all parts of the House and beyond, not least as result of the offer from the Minister in charge of the Bill, Mr Greg Clark, who said in the final stages of Committee consideration that,
“we are open to ways to improve the Bill and we stand by that commitment”.—[Official Report, Commons, 24/11/14; col. 681.]
He was as good as his word. We three signatories—and those who assisted us—are in no way committed to every detail of this package of proposals to solve the core problem identified by the Constitution Committee. We are committed to demonstrate the severity of that problem and to persuade Ministers that it cannot be allowed to survive in the Bill.
Before I set out the specific proposals contained in Amendments 25 to 32, I should reassure your Lordships about what they do not do. I suspect that few colleagues in this House would want to revive the very wide-ranging recall propositions that were so soundly defeated on a free vote in the Commons. As a former Member of Parliament, and one who has always cherished the right and duty of the elected representative to use his or her judgment, to exercise his or her conscience and to apply his or her principles with integrity in the interests of both the country at large and/or their constituents, the notion that that role could or should be subjected to vexatious, trivial or bullying challenge by wealthy special interest campaigns is anathema—as I know it is to many other Members who have contributed this afternoon. In short, the very fact that someone disagrees with an MP should never be grounds for recall. That echoes what many Members have said this afternoon.
I know all too well how invidious that would be. I was once elected with a minuscule majority. On that occasion, there were at least 20,274 voters who would happily have evicted me at the first opportunity. The recall process should not be able to be used to undermine the legitimacy of the electoral process and an election result.
We have sought to devise a process which retains a filtering stage but which puts that filter into independent territory. This avoids the MPs themselves being given, as a regular responsibility, the invidious task of determining whether a colleague—or a political opponent—is to be subjected to the next stage of the recall challenge. It therefore avoids the regrettable but inevitable politicisation of the Standards Committee that is, at present, implicit in this part of the Bill. This was so effectively demonstrated at Second Reading by the noble Lord, Lord Campbell-Savours, and others. I must say again that I am so sad that the noble Lord is not in his place today. I have had many conversations with him but he is simply not well enough to be with us. He may not agree precisely with my resolution of this problem but he was very effective at demonstrating its very serious nature.
5.15 pm
The drafting of this package of amendments is based firmly on the provisions of the Representation of the People Act 1983, which make arrangements for election courts. My colleagues, David Heath and Julian Huppert, moved amendments in the other place which placed these misconduct petitions actually in an election court. As noble Lords who have read Hansard for those debates will know, there was considerable cross-party sympathy, encouragement and support for that approach.
However, having listened to their debate, and to our debate at Second Reading, my colleagues and I are convinced that it is important to set up a quite different,
distinct process, recognising that the election court can actually convict people of election offences, directly remove MPs from their seats and disbar them from standing again. That is not appropriate here and I hope all Members of your Lordships’ House recognise that that is not what the recall process is about, not least because it means that the Member of Parliament can stand in any subsequent by-election if one is eventually triggered. Of course, that is not the case in an election court process if that goes to its full extent.
This process needs to be different. It is not about committing an election offence, nor necessarily any other criminal offence. After all, as a number of noble Lords have said, demands for a recall process sprung up largely because of the expenses scandal in 2009. That scandal was all about those who were plainly misconducting themselves, betraying the public’s trust or confidence in some way, but not actually breaking the law. Some of those who did break the law were, of course, sent to prison. In that context, the Bill is largely irrelevant. This package of amendments addresses the cases that fall into the gap between proper conduct on the one hand and criminal activity on the other.
Amendment 25 sets up the concept of a “parliamentary misconduct petition”. I should make it clear that this is not in itself a recall petition. However many signatures are collected on it, recall would not be automatic. A parliamentary misconduct petition is simply an application for a special hearing, operated by two judges, alleging misconduct. We call this a “parliamentary misconduct hearing”.
Amendment 26 specifies that, for the hearing to take place, 500 or more registered electors in the constituency must present a parliamentary misconduct petition. There is nothing magic in the figure of 500; certainly it could be revised in the light of contributions to today’s debate. Because this first stage does not in itself trigger a by-election, the number of signatures does not need to be unreasonably high. The amendment then also makes it clear that these petitions could not be brought in the final six months of a Parliament. This is partly since the process would take some time and partly to avoid a glut of fallacious petitions being brought forward by political opponents simply in the hope of creating a media storm.
Amendment 27 sets out who should sit on the hearing. Along with Amendments 28 and 29, it follows the precedent of the election court model. Two High Court judges and the capacity to hear witnesses, all recorded by a House of Commons shorthand writer, seems as good a model as any for an independent, non-parliamentary filter for this process. If an alternative composition emerges out of the debate in your Lordships’ House, or further discussions thereafter, we would of course be open to that.
Amendment 30 is where the real substance comes. It would govern how a parliamentary misconduct petition would be heard. Subsections (1) and (2) reflect the practice of the election court. Crucially, subsection (3) sets out the relevant evidence for the hearing to consider. It is quite a challenge to include enough in this list without including too much. This is just our first attempt. The first four issues are relatively simple: first, contraventions of the MPs’ code of conduct;
secondly, paid advocacy—the words in paragraphs (b) and (c) come straight from the Parliamentary Standards Act 2009 and, obviously, have previously been signed off by parliamentary counsel; thirdly, abuse of the expenses scheme set out by IPSA under the instruction of the legislation passed by Parliament; and fourthly, failing to attend the House without reasonable excuse or justification for six months. In paragraph (e) we have applied this provision only to those who take the oath or affirmation of office so as not to trespass on the somewhat rockier ground about the position of those MPs from Northern Ireland who on principle do not take the oath.
The fifth area set out in subsection (4)(f) is deliberately there to catch what you might call the “you know it when you see it” misconduct. We know that you cannot capture in legislative terms every single eventuality, so there has to be something of this kind for the provisions to command public confidence. The difficulty is in making sure that it is neither so wide as to invite vexatious claims nor so narrow as to exclude legitimate complaints. We might call this the Goldilocks problem. We will assess in the light of debate whether our drafting here is just about right or needs to be left to cool somewhat.
Subsection (5) gives MPs the right to refute evidence given to the hearing. It may be that we should make provision here in a little more detail on how MPs would have access to the evidence against them in advance. Again, I am sure we will want to listen to views from all sides of the House.
Colleagues have expressed concern that a hearing of this kind would not have investigatory powers of its own. I am not certain that this needs to be a problem if its job is simply to consider evidence presented to it, but we have included specific reference to the possibility of evidence from the parliamentary commissioner. Indeed, if the Government were to agree that the existing Standards Committee provisions in the Bill and the trigger that is left to them are too problematic, it would be reasonable to commute the commissioner’s role into the additional or alternative trigger that we are now proposing.
Subsection (9) tries expressly to exclude from the ambit of misconduct political decisions made in ministerial office. We believe that the amendment does not invite petitions on political grounds—that is the belt—but subsection (8) is the set of braces. Subsection (7) is crucial. It asks the hearing to determine whether on the balance of probabilities misconduct has taken place. We believe that this tries to strike a balance between a provision involving mere prima facie evidence, which is what was debated in the other place, and setting up the full test for a criminal conviction, which has to be beyond reasonable doubt. That high test would be inappropriate because these hearings will not convict anyone of anything. They merely decide whether the evidence supports moving to the next stage.
Subsections (9) and (10) deal with what would happen if a case were before a misconduct hearing and the criminal courts. In short, the latter has of course to take precedence, as your Lordships would expect.
Finally, subsection (11) provides for the hearing to notify the Speaker if it has determined that on the balance of probabilities misconduct has taken place. Only then would a recall petition be opened, and the provisions about whether it succeeded or failed would be as in the rest of the Bill: that is, 10% of electors would have to sign—usually about 7,000 or 8,000—and they would have to do so not door-to-door but at four specific locations in the relevant constituency. None of that changes with our amendments, but the trigger to start the process would change. It would take whether a recall petition opens at all firmly out of the hands of MPs and place it in the stewardship of the special misconduct hearings that we propose. That, as a model, deals with the problem that I identified at the beginning of my remarks but, most importantly, it meets precisely the problem identified and so well expressed by your Lordships’ Constitution Committee.
We acknowledge that not every dot and comma may be perfect but we present this package as a genuine attempt to resolve a problem which everyone seems to agree exists. Our objective is to strengthen representative democracy, which has been referred to by many of your Lordships already this afternoon, not to weaken it. I hope that the Minister and the whole House will be able to respond positively and constructively to this package and that discussions can continue on how best to incorporate something of this kind in the Bill. I beg to move.