24 February 2012

Westminster: Beyond recall?

Cast your mind back, if you can, 652 days, to the 12th of May 2010.  After febrile negotiations, the Tories and the Liberal Democrats came to an initial coalition accord, followed up shortly after by a more elaborated programme for government. Both documents made explicit reference to the coalition's intended programme for political reform.  Still under the fug of the expenses scandal which engulfed Westminster in 2009, and the subsequent humiliation and prosecution of Members of Parliament, the new government agreed that instituting a mechanism to recall transgressive MPs constituted one key aspect of their envisioned reforms.

2010's post-election stramash seems far away now, and I'd half-forgotten this coalition commitment, until I fell into discussion with a Wisconsinite colleague this week.  The US state, whose population is very similar to Scotland, has a bicameral state legislature, and in 2011 a whacking nine of thirty three state senators were subject to recall elections. If a similar percentage of the House of Commons were put to the touch, 175 MPs would be refighting their seats.  The coalition's initial agreement read:

"The parties 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 wrongdoing and having had a petition calling for a by-election signed by 10% of his or her constituents."

How early? On the 27th of July 2010 in the House of Commons, Jo Swinson put the following to Nick Clegg, now deputy PM :

Jo Swinson (East Dunbartonshire) (LD): A vital part of rebuilding trust in our political system is giving constituents the power to call a by-election if their MP has been found guilty of wrongdoing. I am delighted that the right of recall is in the coalition agreement, but can my right honourable friend tell us when he will bring forward legislation to implement this?

Quoth Nick, in response:

The Deputy Prime Minister: My hon. Friend is right. By the time the election was called, I think that all parties had a manifesto commitment to introduce a power of recall, whereby if it were proved that a Member of Parliament was guilty of serious wrongdoing, his or her constituents would not have to wait until the next general election to cast judgment on the fitness of that individual to continue to represent them, but would be able to trigger a process of recall by a petition from 10% of constituents. We intend to bring forward that proposal in legislation next year, and I hope that it will enjoy cross-party support.  (my emphasis)

So how's it going? Cynic that I am, sans public discussion on the topic, I had wondered if the scheme would be quietly shelved, after a calculated dither. Not so, it transpires. While Clegg's overtones about expeditious legislation have been squelched, and a statelier pace instituted, detailed proposals have now emanated from the UK government.  Although somehow the development managed entirely to pass me by - which speaks volumes about the coalition's communication skills - the Cabinet Office produced this power of recall White Paper and Draft Bill in December 2011

Is it a radical, fundamentally democratising proposal, empowering the people to decide what matters to them and when their representative is failing to serve them well? Not a bit of it. Instead, the proposals are cautious, self-serving, unambitious, almost certainly ineffective and continue to privilege the interests of parliamentarians. 

One of the profoundly unclear elements of the coalition initial agreement on recall was: what would the permissible triggers for recalling an MP? Would it - should it - not be for the people to decide what constituted misconduct worthy of recall? The text initially adopted by the Liberals and Tories includes the legalistic phrase "serious wrongdoing", which at least implied something in the way of criminal sanctions being imposed on a member, relieving the no doubt anxious Liberal Democrat representing a university constituency of the fear that student groups may go after them and force a by-election on the basis of their voter record on university fees, for example. Alternatively, might some cosy establishment figure or body be empowered to determine which MPs get flung to the lions, whatever their constituents think, based on the conduct they regarded as "serious wrongdoing" warranting public participation?

Predictably enough, seriously at risk of recall elections themselves if criminal or establishment conditions weren't attached, the coalition have opted for the least democratic option. In summary, they propose that a recall elections may take place where:

• An MP is convicted in the United Kingdom of an offence and receives a custodial sentence of 12 months or less (the Representation of the People Act 1981 only disqualifies MPs who receive custodial sentences of more than 12 months); or,
• The House of Commons resolves that an MP should face recall (this would be an additional disciplinary power for the House).

However, these two conditions will only trigger the proposed process: thereafter, it is proposed that the petition will be open for eight weeks, and 10% of the electorate in a constituency would have to sign the petition for a recall election to follow. The foreword glibly suggests, that...

"It is crucial we do all we can to ensure that MPs remain accountable to their constituents. At the same time MPs must not be left vulnerable to attack from those who simply disagree with them or think that they should have voted a different way on a particular measure. We believe that the proposals outlined here address this issue in the right way".

Try not to choke on your ironic laughter at this delightful little piety. Self-interested worry about the security of your political position is entirely understandable, but we shouldn't permit the coalition to don such farcical and disingenuous democratic costumes as they sacrifice idealism on the altar of expedience. I particularly appreciate the strategy of nicely minimising the significance of the parliamentarian voting in disappointing ways. However, can one not make a persuasive argument for the recall of any parliamentarian, who may not have committed a fraud in criminal law, but who has fundamentally mislead the public by acquiescing in a catalogue of policies that are anathema to those who voted for them, contrary to that parliamentarian's declared convictions during the election campaign and the clear pledges of their manifesto? Or because he or she turns out to be a crashing buffoon, a lazy beggar, or whatever? If I entirely neglected my constituency, cashed my salary, and spent my time pursuing private enterprises for my own enrichment, these laws would provide even the most outraged constituency no real recourse unless the lazy sod in question committed a felony or two, and ended up in chokey. Hardly accountability, effectively achieved.

One of the easiest objections to these proposals is generated by the scandal they are partly in response to.  Although Elliot Morley, Jim Devine and David Chaytor's transgressions came to light in the summer of 2009, Chaytor was not sentenced to serve a custodial sentence until January 2011, Morley in May 2011 and Devine at the very end of March 2011. Say, counterfactually, that the coalition recall provisions had been in the statute book between 2009 and the end of 2011.  Would they have been used? Arguably not. If criminal charges are in the offing against an MP, might not parliamentarians be rather chary about deciding effectively to expel a member from the House on the basis of wrongdoing which is liable to feature prominently in any indictment served upon them? What sort of fair trial could anyone receive, if the high court of parliament had already adjudged you guilty of "serious wrongdoing", and put in motion steps to deprive you of your seat? While the concepts of criminal liability and serious wrongdoing do not exactly align - one could conceivably do serious wrong without the conduct in question being criminal - isn't it easy to envisage that with court proceedings in the offing, MPs are unlikely to set the recall process in motion?

That being so, the more "expeditious" route towards a recall election against the sitting member's will is not, I fancy, going to be tremendously speedy or effective. In fact, I'd wager it'll be about as speedy and effective as a drunken slug negotiating its way across a puddle of molasses.

My own preference would be for unfettered rights to recall MPs and for the public to determine what conduct warrants recall, regulating the potential for nimous use of petitions by the number of valid signatures required to prompt a recall election, and an initial period of immunity from recall after any election.  In Wisconsin, for example, Article VIII §12 of the state constitution provides for qualified electors to petition for the recall of any incumbent elected officer. However, a petition can only be got together a) a year after the office has been occupied and secondly, in order to effective, the "recall petition shall be signed by electors equalling at least twenty−five percent of the vote cast for the office of governor at the last preceding election, in the state, county or district which the incumbent represents". No limits on the whys and wherefores of pressing for recall, a modest time-bar, no requirement for elite determination by fellow tribunes, no need for the law's delays to prevent insolence in office from being punished. 

If we substitute the government for the current incumbent MP, and apply these rules to my constituency in Glasgow in 2010 (turnout 50.9%), 30,572 voters participated in the poll that elected Anas Sarwar, so 7,643 signatures could generate a recall. By contrast, if we apply these modified Wisconsin rules to the highest turnout constituency (Renfrewshire East at 77.3%), unseating Jim Murphy would require 12,795 signatures.  Yet we needn't rely, like Wisconsin, on the weight of the franchise exercised in the preceding election. 10% of the current Glasgow Central constituency would require only 6,100 signatures. 25%, 15,250.  On balance, something like 15-20% of the current electorate (9,150-12,220) would seems a reasonable threshold to justify a recall election, if the self-serving conditionals Clegg has proposed were eliminated.

Indeed, one could be cynical and suggest that the coalition's early agreement on the 10% threshold for petitions - a curiously specific figure to settle pre-legislatively - was essentially designed to seem high enough not to be immediately objectionable to those scrutinising the coalition agreement, but also low enough to justify the inclusion of a range of other conditions and legislative controls and delays, effectively neutering the democratic potential - and potential political spice - of these proposals.  Predictable perhaps, but a bally pity.


  1. Interesting article. Did your friend from Wisconsin indicate how these recalls worked out? In other words how many suceeded in unseating the legislator. The higher threshold you suggest might stop a lot of vexatious petitions.

    I see no reason why this couldn't run in parallel with expulsion through the criminal law. I'd have thought that that ought to apply to the HoL as well.

    If it were seen as best practice, it should apply to all levels of government, shouldn't it?

  2. Douglas,

    According to the ever-authoritative wikilore (which is likely to be accurate on this point at least!):

    "Of the nine recall elections, Democrats held on to all three of their challenged seats; Republicans lost two of their six challenged seats..."

  3. LPW,

    Thanks for the info. I'm a tad astonished that more people aren't interested in what is a very topical article.

  4. Douglas,

    One thing that blogging has taught me is that you never can tell what'll interest folk more and less!

  5. If only there were the power of recall in the way they all promised, I'd venture Clegg, Alexander and Moore, would be toast.

    Of course, it doesn't exist, and so they won't.

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