27 May 2010

Legislators' bad habits & the power of recall

Once upon time, there was a jolly old gent called Sir Reginald Sittish-Standish, who sat as Member of Parliament for Buxomdame North, Bladderpole and Widdle-on-the-Mead. His dearest wish was to become a Peer of the Realm. Being a cunning but indecisive old grandee, Sittish-Standish was convinced that the best way to  catch the PM's eye and demonstrate his elder statesman credentials was to sponsor a spiffing new Act of Parliament. His wife, the suety Hon. Phyllida Cumberbottom, having repaired to her country seat on the north point of Bladderpole, Sir Reginald sat in company in town. Supping on a beaker of after-dinner port with his grog-blossomed Tory cronies, he was primed to announce his latest cunning legislative wheeze. "Do tell!" they goaded toadily. 

Handily, Sir answered them thus. "I'm fed up of those monstrous young jackanapes with their "skateboards", clogging up the traffic and generally making a damned nuisance of themselves. Better to secure the public safety on her Majesty's highways and byways, I propose that Parliament enact at the earliest opportunity my Skateboarding (Abolition) Bill!" With a dandy flourish, Sittish-Standish produced his text: s1(1)(a) It shall be an offence to employ wheeled conveyance technologies on the roads. His boozing auxiliaries cheered this spot of splendid public policy. The Con-Dem Government included the new section in their Great Repeal Bill. Lords and Commons hastily acted to enact the full abolition of egregious skateboards on British roads. The Queen gave her frabjous consent. Lord Sittish-Standish of Buxomdame finally earned his peerly ermine overcoat.  The roads were emptied, not a skateboard (or a car) to be seen. Standstill safety reigned, and they all lived happily and locally ever after.

Obviously, this is a totally absurd example. But this tendency is merely an exaggerated form of a familiar and more ubiquitous legislator's sin. Sir Reginald's Act obviously does do what he claims it does. He hasn't wholly misnamed his project. Equally, however, his operative section covers a ludicrous gamut of concerns merely including the one he mentions. The fairytale makes brutally clear the gap which can exist between the represented purpose and goal of legislation and the actual powers and laws enacted. Legislators too readily get stuck to private gluey accounts of their business, bald guesswork and claims about the future implementation of policy which are too wedded to their legislative intention and insufficiently attentive to the full implications of the sections they're enacting. This familiar problem popped back into my head last week as I read this section of the Conservative-Liberal Democrat Programme for Government. On "a power of recall":

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.

So sayeth the Coalition's Programme for Government. Which set me thinking, how might they actually do this in practice? The 10% seems reasonably clear. In my own constituency of Glasgow Central, for example, prompting such a recall would require a petition to be signed by 7,038 constituents. That isn't the bit which caused me to summon up the spectre of Sir Reginald Sittish-Standish, however. It is the phrase referring to Members "found to have engaged in serious wrongdoing".  You can see what the drafters have in mind in the context of the Westminster expenses scandals. Tribunes getting caught with their hand in the till, perhaps a conviction for some sort of offence are probably instances of the serious. But what about wrongdoing which offends the consciences of constituents, which they take to be serious?

For example, what about representing and serving them systematically poorly, incompetently and with irregular effort, entirely without distinction? What about crossing the floor? I imagine Quentin Davies' Conservative constituents were rather put out when he joined Labour in 2007. To them, such heinous disloyalty to the blues may well have constituted "serious wrongdoing". Or what about an MP sponsoring or supporting a particularly monstrous bit of legislation - or at least, legislation which offends the sensibilities of 10% of their electorate? Would that be serious wrong doing? To mention a hypothetical situation, if legislation governing abortion was reconsidered in this Parliament, surely we can imagine campaigns originating in religious districts trying to displace an MP supporting the practice. Recall elections, on this legal prospectus, have all the capacity to be a campaigner's dream and a means of securing significant publicity for an issue.

Crucial here is the question who decides? The phrases found and serious wrongdoing seems to imply some sort of articulated standard which will constrain the electorate's capacity to force an election. It smells of secretive frauds, uncovered peccadilloes made notorious. Alternatively, it might suggest a procedure where individual MPs are certified to be odious scoundrels by some body so empowered for the task. If the right of recall is bounded by technical definitions of wrongdoing - then it really will be an anaemic standard. In particular, if it is tied up with criminal convictions, chances are that recall elections will remain instruments of potential resort, but practically exceedingly difficult to bring about. Merely reflect how few MPs are actually being dragged before the courts. However, the phrase engaged in wrongdoing seems to suggest a looser standard, which isn't bound up with the criminal vocabulary of guilt and conviction. Accusations of wrongdoing, rightly, are not exhausted by legislative standards of minimal rule-following. But how could such a less-technical standard work in practice? Who gets the final word and why should they have it? A vote of parliament on each individual petition?

As you can see, the Government will have to be very nimble and subtle legal draftsmen, if they are going to produce a text remotely capable of the empowerment and constraint implied by the Programme's present language. So nimble and so flexible, in fact, that I have my doubts about the sturdiness of any legal document trying to reconcile these two commitments, limiting MPs who are at risk of extraordinary election on one hand - and claiming that this is a policy of popular empowerment on the other.

Alternatively, if there is no statutory definition of serious wrongdoing, ruling some petitions in and others out, then the section of the Programme for Government is misleading. What will then have been constructed is not a situation where a recall election can be forced in specific circumstances of serious wrongdoing but where a petition of 10% of the electorate can bring about an election simpliciter. This second approach seems to me preferable, leaving the least room for institutional special pleading and the most room for the electorate themselves to determine what is good or bad representation, what is faithful service and what is unacceptable voting behaviour, having to be justified before the full constituency. Limiting such a power seems to me most happily achieved in terms of the threshold of signatures which a petition would have to marshal, if an election is to be forced. We should expect, however, campaigning groups to use such a power creatively - in ways that aren't I think anticipated at the moment. Equally, in order to reach such thresholds, the formation of strange and poised coalitions of interest is a distinct possibility.

Either way, the Con-Dem coalition have two options. Create a limp mechanism, of use only in the most extreme circumstances of criminality and technical blameworthiness - or alternatively, launch a wholly new, unstable experiment in Westminster democracy. Fingers crossed for the latter.


  1. That's precisely the nagging doubt I had about it. Thanks for telling me what I think so clearly.

  2. Its what I'm here for, James!

    Although at this stage, I think that a measure of uncertainty and generality is justified in presenting outline schemes for action - we ought to brace ourselves now for instances of this cardinal Legislative Sin. Indeed, a great quantity of the Con-Dem programme for government could be subjected to the same doubts, the same speculative concerns.

    Forewarned is forearmed, that's my motto.