Robert Hazell discusses the challenges around developing legislation that will permit MPs to be recalled.
It was not a complete surprise to see the right of recall in the Queen’s Speech. The coalition government had kept open the option of legislating in a series of exchanges with the Political and Constitutional Reform Committee over the last two years. The proposals stem originally from the MPs’ expenses scandal in 2009, which led all three major parties to include almost identical proposals for a right of recall in their election manifestos in 2010. The precise commitment of the coalition parties in the May 2010 Programme for Government was framed as follows:
‘We will bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP was found to have engaged in serious wrong doing and having had a petition for a by-election signed by 10 per cent of his or her constituents’.
True to its word, in December 2011 the government published a draft bill and White Paper. But in 2012 the Commons Political and Constitutional Reform Committee (PCRC) produced a very critical report, which led the government to pause. The committee feared that the restricted form of recall proposed could reduce public confidence in politics by creating expectations that were not fulfilled. The government’s long pause suggests that it may have shared the committee’s doubts. But the rise of UKIP in the 2014 elections and continuing resentment against ‘establishment’ politicians tipped the balance: the government felt obliged to be seen to be doing something.
The government faces two levels of difficulty: political and technical. The political difficulty is that campaigning groups like Unlock Democracy want an unfettered power of recall, entirely in the hands of voters. But experience in the US and in British Columbia (the only Westminster system to have a right of recall) shows that this can leave elected politicians at the mercy of single issue pressure groups, from anti-abortion to anti-immigration, animal rights protesters to anti-wind farms, who exploit the right of recall to harass elected politicians from office. So the government is quite right to propose a threshold (‘serious wrongdoing’) to trigger a recall petition.
The technical difficulty lies in defining the threshold. In the government’s second response to PCRC in July 2013 they proposed two possible triggers. First, where an MP receives a custodial sentence of 12 months or less, a recall petition will automatically be opened (where an MP receives a custodial sentence of more than 12 months, they are disqualified automatically). If 10 per cent of constituents sign the petition, a by-election will be called (in which the MP could again stand). The second trigger would be where the Commons resolves that an MP should face recall, following a recommendation from the Standards and Privileges Committee. This could ensure that an MP could also face recall where they had committed serious wrongdoing which did not result in a custodial sentence (for example, a serious breach of the House of Commons ouHouseCode of Conduct).
In briefing for the Queen’s Speech, the government have said the bill will incorporate these two triggers. It will then face the political difficulty identified by PCRC, that it is creating expectations that cannot be met. Voters will think they have a right of recall, but in reality that right will be restricted (for good reasons, explained above). Douglas Carswell and Zac Goldsmith MP have already been vocal in calling for unfettered recall. Nick Clegg has the unenviable task of steering this measure through Parliament and persuading his colleagues that a limited right of recall is better than none. He still bears the scars of the Conservative rebellion over his House of Lords Reform Bill. In what promises to be a fractious final session, Tory backbenchers fearful of the UKIP threat may be sharpening their knives again.