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.
is this different from his position as an MP being voided on the grounds of his lies and smears being illegal illegal practice against an opponent?
ReplyDeleteYes, two distinct issues.
DeleteNo illegal practice:
Delete(i) Nicola Sturgeon wasn't standing against Mr Carmichael in Orkney and Shetland, she wasn't even a candidate. So she is not "an opponent" within the meaning of the law.
(ii) The leaked document wasn't falsified, it was a genuine document and wasn't written by Mr Carmichael.
Au contraire, I think you will find that the Representation of the People Act 1983 doesn't mention "opponents."
DeleteThat cant be the only way he can be removed...surely not ??
ReplyDeleteHis constituents can do that by a protracted turning up of the heat. They are good at that in those parts.His metaphorical boat should be put to blazes publically and shoved out to sea on an outgoing tide.
DeleteThere are (rightly in my view) relatively few avenues for the law to deprive MPs of their seats. It is for the people to decide their fates -- and as kailyard rules observes, the most forceful mechanism to make the sitting MP uncomfortable is public disquiet.
DeleteIn practice, however, if we get to the stage where Carmichael would have been recalled if the legislation had come into force, his position will start to look untenable anyway. People are scarcely going to be slow to point out that he was part of the government that introduced the recall law, so he must think the principle is sound.
ReplyDeleteIn any case, I trust the SNP's finest minds are giving some serious consideration (before it's too late) to the other legal avenue for ousting Carmichael that you outlined the other day.
Before the SNP pursue this, they'd want to be sure they hadn't broken any election laws themselves. It is almost inevitable in such a passionate campaign that someone will have got carried away and done so.
DeleteI think 'almost inevitable' is pushing it slightly. Unless you are aware of any such breach, I don't see why the SNP shouldn't push ahead with a legal challenge, as long as they've been advised that it has a non-trivial chance of succeeding.
DeleteI don't want any dishonest politicians. So if an SNP politician has breached the rules, I'll be happy to see him/her done over too.
DeleteThat's the difference between "us" and "them"
I would also imagine there will be a certain amount of pressure for him to resign before the 2016 Scottish Parliament elections so that he doesn't become a big issue and cost the libdems MSPs.
ReplyDeleteNo he cannot be recalled but if the man had even a sense of shame or duty to his party he'd resign and leave. Yes it the Lib Dems would lose their last MP. But lets be honest, they have already lost the argument in Scotland. If he is meant to some bridge between themselves and the electorate, hen it will cost them dear.
ReplyDeleteIt would be better to ditch them, accept the verdict of the voter. They could then go away and have long and hard look at themselves. Be honest to themselves as to why they lost. Decide never to do it again, no matter how attractive a ministerial car looks and develop policies that will allow them to re-engage with Scotland. The best place to do that would be within Holyrood. It'll be long and slow but they need to do it if they are to decide.
Rennie and his endorsement of Carmichael was meant to show strength. It doesn't. What it is in effect is an endorsement of Carmichael and his behavior. To announce that it was acceptable for him to have done what he done, and that it would be a shame for him to go for such trivial reasons. The man committed a major act of professional misconduct. Lied about it. Got the tax payer to cough for the inquiry which he knew would find him out. He then had the brass neck to simply state had he still been in his post, he would have resigned. But he wasn't so thats that.
Carmichael is not an asset to the lib-dems. He is liability that simply wrecks the lib dems and their credibility. As long as he is in post, as long as Rennie covers for him. They are open to attack from all angles. He'll cost them dear in terms of MSPs, MEPs and Councillors. All that carnage for one dis-credited MP?
The voters paid for this document, why shouldn't they see it? Is the SNP opposed to the Freedom of Information Act as well? The document raised questions, which Nicola Sturgeon has very effectively addressed. The underlying premise of the argument remains strong - the SNP have made hay out of the Conservatives and will continue to do so. Similarly the Conservatives won the election off the back of the SNP. We saw the same in Northern Ireland wher the Unionists and SDLP did the right thing and were rewarded with sweeping victories for the DUP and Sinn Fein.
DeleteThat should have been Carmichael's defence at the time, then. Instead he lied about it, and that's why he has to go now.
DeleteThe 2015 election was a win/win situation for the SNP. However, one outcome would have proved less traumatic for ordinary people and in particular disadvantaged people, while allowing the SNP to score by being seen to support progressive policies while withdrawing support for policies promoting austerity or war-mongering.
DeleteObviously, that was the alternative favoured by Sturgeon and the SNP. Nobody wants to see benefits slashed further and more people committing suicide. The SNP would prefer to advance by being seen to be constructive and statesmanlike, as opposed to "making hay".
However, given that the other alternative has actually transpired, Plan B comes into operation. Should Sturgeon never have had a plan B? Is it a crime that strategic ways to exploit a Conservative government actually exist? If there is a way to win with the less favoured scenario, the SNP will do it.
This all seems to boil down to some people observing that there are indeed ways in which a Conservative government can still be played to the advantage of the SNP's long-term goals, and concluding that Sturgeon must therefore have wanted this to happen, and that being so she would of course have confided this to the French ambassador.
No, really not.
2nd attempt at posting, excuse me if I have posted twice.
ReplyDelete"If there is no commencement order, the Act will come into force from midnight at the start of the day of the royal assent."
I can find no commencement order of this Act so I presume you are mistaken and the it has been law since the 27th of March.
Where is that a quotation from? Not the Act itself.
DeleteI am afraid you have misunderstood the rules here. Look at section 24 of the Act. It makes it crystal clear that some sections - but not the critical sections - come into force on the day the Act was passed. And it makes it crystal clear that the remaining provisions must be brought into force by order. If you cannot find such an order, it means the Act is not in force, as I suggested here.
I think that Mr Isserlis has misunderstood section 4(b) of the Interpretation Act 1978. It has the effect that where an Act makes no provision for its commencment, then it comes into force on the beginning of the day of royal assent. The 2015 Act, of course, does make such provision and so section 4(b) does not apply.
Deletehttp://www.legislation.gov.uk/ukpga/1978/30/section/4
You all seem to have overlooked the fact that the leaked document was written by a civil servant who thought that it was a fair description of what had been said and the inquiry considered that he was an honest person without any history of making things up. In this case it was not in the same class as the allegation by Alex Salmond that he had legal advice about the position of an independent Scotland in applying to be a member of the EU when no such advice had been given.
ReplyDeleteNo. That's simply mischievous.
DeleteAll three people who were actually present when the conversation took place confirm that no such words were uttered. Two of these have no reason at all to cover for the third. Not only that, it is a priori extremely unlikely that such words would be said, as noted right there in the memo.
The fact that the inquiry decided not to rap the knuckles of the civil servant who wrote the misleading memo does not in any way imply that two senior French diplomats are lying.
To go further than that, even if Sturgeon had said such a thing in the course of a private conversation with foreign dignitaries, in what conceivable way would it be "in the public interest" to breach protocol and confidentiality like that? As opposed to "in the electoral interests of those doing the breaching" of course.
And to point out the bleeding obvious once again, Carmichael lied about what he did in order to delay its becoming public knowledge until after the election. That is the reason his resignation is being called for. He stood for election under a false prospectus.
However, your gross misrepresentation of Salmond's position as regards legal advice and EU membership is so crass it marks you out as a unionist troll. Funny every single unionist troll over multiple newspapers and blog posts is banging this irrelevant and wildly spun drum. You'd almost think you were reading from a script. So I don't know why I'm bothering really.
I am not a Unionist and I thought trolls were a sort of Scandinavian pixie. It was generally thought by those interested in politics that the SNP would prefer a Conservative Government for the UK as this would enable them to make clear to Scottish people that unless they became independent they would not be able to rid themselves of Conservative rule which only a minority of Scots people vote for (although they often appear to be conservative in other ways). The biggest difference between what Alistair Carmichael did and what Alex Salmond said is that Salmond's statement was very important and vital to the debate on the EU and he never apologised when he was found out whereas Carmichael's statement was as you would say one of the bleeding obvious which most people with any sense ignored and he has not only apologised profusely but given up his severance pay. I do not think we would have heard much about this if the SNP candidate for Orkney and Shetland had lost by several thousand votes instead of several hundreds and quite understandably he is very upset when he sees those other 56 SNP members going off to Westmnster
Delete
ReplyDeleteCan he just not change his name to Michael Car?