They must have sneaked the legislation through at a midnight sitting. Westminster passed the Recall of MPs Act 2015 at the scrag end of the last session, without hullabaloo and without much being made of the scheme in the media.
Under the new rules, MPs will be vulnerable to recall petitions if they (a) get banged up for a criminal offence (b) the Commons suspend the member for more than ten sitting days after a Committee on Standards report or (c) if the member is convicted of fiddling their expenses under the Parliamentary Standards Act of 2009. If any of these three conditions are met, the returning officer in the MPs constituency must open up a petition for six weeks, allowing electors to demand the MPs exclusion from the Commons. If at least 10% of the electoral roll put their names to the petition, the seat is vacated and a by-election follows.
In the Carmichael affair, nostrils in the press corps are twitching. Both the Observer and the Independent have gone in great guns this morning, writing of the Liberal Democrats' fears of a byelection in Orkney and Shetland under the recall legislation. The Indy suggest that:
"If the standards commissioner, Kathryn Hudson, conducts a follow-up investigation and finds Mr Carmichael guilty, and exercises a punishment of a lengthy suspension from the House of Commons, a by-election could be triggered under the Recall of MPs Act 2015. This was the brainchild of Mr Clegg: if an MP is suspended for just 10 sitting days, then only 10 per cent of an MP’s constituents would need to sign a petition demanding a by-election."
The Observer take the same line, concluding:
"If MPs were to vote to suspend Carmichael for 10 days or more, this would then automatically trigger a new process under the Recall of MPs Act (championed by Nick Clegg): if at least 10% of Carmichael’s constituents sign a petition calling for a byelection, then one must be held. Carmichael could stand again but would face a huge struggle to see off the rampant SNP."
The problem with this? It's guff. Guff predicated on a simple but absolutely fundamental error. What the Observer and Independent hacks failed to do is to check whether the Recall Act has come into force. And what do you know? It hasn't. Right at the bottom of legislation, all legislation, you will usually find the "commencement" section. Many and most Acts of Parliament do not come into force automatically as soon as the monarch grants royal assent -- as soon as the Bill is passed. Often, it is left to ministers to bring new offences and regulations and rules into effect by order.
There are sound reasons for this. Delaying commencement smooths bumpy transitions between new and old legal regimes. It gives public bodies opportunities to prepare for new obligations and new working practices. So what does the Recall Act say about all this? While bits and pieces of the recall legislation are scheduled to come into force automatically -- the meat of the recall rules will only "come into force on such day as the Minister may by regulations made by statutory instrument appoint."
And if you go searching for such a statutory instrument -- you won't find one. The key provisions of the Recall of MPs Act currently have no legal effect whatever. They categorically cannot be used to pry Alistair Carmichael loose from his seat, even if the Commons suspended him from parliament for ten days or twenty. Not unless and until the law is brought fully into force. The papers are peddling nonsense and would have realised they were peddling nonsense if they'd done their homework properly.
A slapdash day at the Observer and Independent offices.