27 July 2010

Clegg continues to be obscure on right to recall MPs

With thanks to Caron for drawing my attention to the exchange, during today's questions to the Deputy Prime Minister in the House of Commons, Nick Clegg was asked about the right or power to recall Members of Parliament. Liberal Democrat MP for East Dunbartonshire, Jo Swinson, referred to it as the ability to "call a by-election, if their MP has been guilty of wrongdoing" and wondered when the Government intends to "bring forward legislation to implement it"? You may recall that the coalition's Programme for Government outlined that:

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.

Previously, I've argued that crucial details haven't yet been accounted for by the Government concerning the extent of proposed recall powers. Indeed, the plausibility of the whole wheeze and its status as a significant democratic reform or a largely unwieldy technical power which will moulder in the vaults precisely relies on the answers to certain key questions.  Centrally, what, if any, will be the mechanism for assessing - or determining - whether an MP has committed serious wrongdoing? Will such iffy conduct need to be proved criminality, with conviction of the wretched parliamentarian proving a necessary prerequisite to institute recall proceedings? MPs like Swinson and Clegg purport to know what they're talking about when they refer to the policy, as if they'd already proposed something concrete.  In actuality, the loose and open textured language of the proposal - wrongdoing, guilt, found to be - admit any number of interpretations. The detail is crucial. And the detail can only be neglected if we assume knowledge, without any foundation, about the final legislative shape of the proposal. Today, Clegg offered no further clarification, but extended the bemusing and confusing legalistic language used in reference to the mysterious definition of "serious wrongdoing". Here is what the Deputy Prime Minister had to say:

"If a member of this House is shown and proved to have committed serious wrongdoing, that their constituents would not have to wait to cast their own judgement on the fitness of that individual to continue representing them to parliament until the next general election, but they would be able to trigger a process of recall by a petition, set at a threshold of 10% of people in the local constituency. We do intend to bring forward that proposal which will enjoy cross-party support, in legislation next year."

I've no specific complaints about the 10% hurdle, per se. That said, no doubt there are some technical questions on eligibility to vote. In particular, I would assume Clegg means to denote 10% of those on the electoral roll at the time of petition and generally entitled to vote in Westminster elections. After all, popping in to your local primary school could be an admirable way of picking up a few hundred votes. It would not, I imagine, strike many as a terrifically fair way of ruining an unloved local politician's political career. That aside, my questions for Clegg and his fellow ministers are these  -

(1) Wrongdoing proved to whose satisfaction?

(2) Some references to the power seem to imply a technical definition of wrongdoing, presumably referring to a charge proved in a criminal court. Is this the case? Would any crime do? Serious seems to put some qualification on wrongdoing. If so, what is the nature of that qualification?

(3) Alternatively, if serious wrongdoing will not require proof and conviction to the strict standard of general criminal law, who pray will adjudicate on the serious wrongfulness of MPs conduct?

(4) Alternatively, if there is no standard or no authoritative adjudicator of proved serious wrongfulness, wouldn't it be more accurate to say that the government proposes to allow a recall election simply if 10% of the relevant population sign a petition?
    I'm not asking these questions to be wilfully obtuse. Given the broadness of the language being used by Ministers thus far, any one of these proposals might well be intended by the Conservative-Liberal Coalition. For example, on one hand, Clegg  uses juridical-type language in his response. On the other, he invokes swiftness as one of the charms of the proposal, allowing the sans-cullottes to drag their degenerate parliamentary seigners from office and deprive them of public funds whippity-quick. Yet prosecutions are hardly known from their swiftness. Merely reflect that the former tribunes awaiting trial for alleged offences uncovered during the late Westminster expenses scandal - Eliot Morley, David Chaytor, Jim Devine, and Lord Hanningfield - haven't yet preceded beyond a preliminary hearing.

    And if he and his colleagues intend to empower some Westminster figure or Court or the like to declare it "proved" that an MP has "committed serious wrongdoing" - which reads as a potential defamation - in what sense is this really empowering the people? After all, as I outlined in a previous post, different people might entertain very different conceptions of what makes for a bad, incompetent or otherwise negligent MP. How is it devolving power to the public to empower some tribunal to qualify the people's rights? And don't let's forget the general standards of administrative law and the power of judicial review. If the Government is proposing a Parliamentary Panel on Serious Wrongdoing, could impugned MPs appeal against their disposal? Hardly swift, unbending and absolute popular justice, that.

    All of this seems to me to be potentially planned by the qualification implied by Clegg's phrase "proved to have committed serious wrongdoing". It would be perfectly possible to institute a public right or power of recall without any juridically phrased qualifications about MPs' wrongful conduct. Yet representatives and politicians keep returning to this formulation and this language from the programme for government and coalition agreement. I've not yet heard a satisfactory account of who the devil or what the devil they're referring to. Its about time someone asked them to clarify the exact extent of their proposals. It is all very well saying we'll introduce legislation next year. Jo Swinson might have been better asking about what precisely the Government will propose. While the present, textureless plans seem superficially to represent an easy achievement for the Coalition, given putative levels of parliamentary support  for the idea - the questions I'm asking will be asked more generally eventually. They have lots of potential to be divisive and furnish ambitious opposition politicians with ways of embarrassing the coalition, with its gusty talk of devolving power to the people.  Strategically speaking, much better to have intelligible debates now, rather than disappoint, or be seen to disappoint, later.


    1. You're right to say that we need to see the full details of the proposals. I would imagine that the wrongdoing involved would be some sort of fraud on the public purse or other serious criminal behaviour, not just a tabloid expose based on tabloid prejudices.

      It has to be a given that the 10% must be on the electoral roll.

      Yesterday was an affirmation of the commitment to bring forward legislation, which I think is a good thing. The detail of the legislation will be subject to scrutiny at a later date.

      One of the things about this Government that I find quite refreshing is that they do seem to be prepared to listen when people have serious issues to raise, as on the 55% dissolution rule or the anonymity for those charged with rape proposed for south of the border. If there are issues with the detailed proposals, they may be able to be changed before becoming law.

    2. To take your last point first, Caron - I agree that fostering a positive attitude towards the "argument" of reform is important. The press are tedious, with their baying of "u-turns" where any change is depicted as weakness. Those aren't the values of interactive reform. That said, I do believe in some circumstances that there are proposals which shame the proposer, even if they are finally persuaded to back away from their first scheme. My objection is that the media and opposition politicians seem to regard every case as an instance of this. Life's complexity and its uncertainy is run roughshod over by a high-handed, ignorant and self-righteous band of professional jobgobbers. Such a discourse can only be accusatory and childish, and is impoverished as a result.

      On the reference to 10%, I was mostly just being impish.

      Finally, my own feeling on any power of recall is that I'd rather have no "wrongdoing" clause and instead regulate the practice by the threshold number of signatures. That seems to me the democratic way of approaching it, where the voters get to decide what is serious wrongdoing, rather than some increasingly complicated rule - or worse - some sort of Westminster tribunal after the long delays which might attend any prosecution. Other problems might be thought up too, if you decidedly to let prosecution and a process of recall run in tandem. For example, would a subsequent criminal trial not be rather tainted by the guilt an earlier successful recall would impute? But, if we have to wait, few recalls will be practicable at all, given the constraints of time and law's delays.