17 November 2010

Recall delayed, recall denied?

Remember this?

"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."

Earlier in the year, I blogged about the ambivalent ways in which this commitment was being understood - and members of the Westminster government's signal and continuing failure to clarify their intentions. The specific questions I last posed in July have still not been answered and remain germane. In particular: 

(1) Wrongdoing found to whose satisfaction? Proved to what standard?

(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? Some Westminster panel?

(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?

Interestingly, the Liberal back-flip from promise to phase out tuition fees to ratcetting them up mercilessly along with our Tory cronies lends these crucial issues a particularly significant frisson. How might this hostile context impact on the detail and crucially the timing of the reform? Take the University of Edinburgh, which educated 28,394 students in 2009/10. A few reasonable caveats should be taken into account. Firstly, the population is dispersed across the city's constituencies, secondly, the electoral-roll total will be diminished by non-voting international students, thirdly, some may vote in home constituencies, finally others may support the introduction and  debt inflation of tuition fees or in the alternative, just not give a fig. My point is that the student population of the University of Edinburgh alone pushes us way over the proposed rule allowing 10% of the electoral roll to force a recall election in their constituency. In Edinburgh's case, of course, a number of higher education institutions overlap, so the potential student population is even higher. The same story can be told in different parts of the country. 

As we were discussing a few weeks ago, constituency sizes vary significantly, a phenomenon Cleggy is striving to end by equalising the population of constituency around 77,000 each. However, at present the UK average population is 69,500 - balanced out from 71,000 electors in your average English constituency, 66,000 for Scotland, 56,500 in Wales and just over 63,000 in Northern Ireland.  Alistair Carmichael must be chewing his bunnet at the thought. Only 3218 Shetlanders and Orcadians would need gather, crying "dance piggy dance!" to force him to gyrate for his representative's dinner. Given the combination of (a) Liberal representatives in university constituencies and (b) their volte facing on the marketisation of higher education, the definition or non-definition of "serious wrongdoing" becomes critical. Particularly for those nervous-looking liberal members of parliament, half-eyeing the jobs pages and haunted by the whip's stern countenance.

In the balmy days of summer, it was unclear which approach the government would seize. Would definitional and institutional problems around seriousness and wrongdoing force them to adopt a more freewheeling approach? Would they be concerned that any Westminster adjudication mechanism would sit uneasily beside a measure billed as empowering the people? With the Liberal decision to support and dramatically increase tuition fees, the issue becomes less academic. Note that the coalition agreement refers to "early" legislation on the issue. Remember also that Nick Clegg told Jo Swinson over the summer that:

"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."

With the Millbank protests focussing their minds, what the devil will the Conservative-Liberal coalition do? Either way, two substantive options are open to them.  The government could introduce, with some justification given the gist of their coalition agreement, a much caveated right of recall - achieving the conscious but unavowed goal of producing a definition of "serious wrongdoing" which would exclude fibbing to the National Union of Students. Consider that Eliot Morley et al. still have not faced trial on their alleged frauds, uncovered during the Westminster expenses scandal. The more formalistic the standard, the more paltry the radical reform of investing the electorate with power to recall their representative becomes and comes to appear. Alternatively, it may be beyond their ken and wit to appear liberating while practising control or claim they're empowering the public common while keeping power firmly within the House of Commons. If so, they may yet institute the looser standard. In the immediate wake of the government signalling its intention to act on this issue, I wrote:

Without such a definitive standard of wrongful conduct being outlined, or sans an adjudicative body charged to assess serious wrongfulness, 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. 

However, for the reasons outlined above, the Liberals must now be acutely conscious that this liberating legislative map includes the caution "tharr be dragons". The party is stalked by a number of predators with a particular taste for heavy-laden Liberal merchantmen, discreetly trying to cut an electoral profit. Harried by pyratical plunderers, fearing to veering over the jagged shoals of defeat, eyes nervously flickering at every eddy troubling the political waters, conscious that a devouring serpent could at any moment erupt from the depths and gulp down their jolly boat. La mer est si grande et ma barque est si petit.

If so, their only reasonable (for which read self-interested, sleekit, cunning) means of combining a more substantial reform with not seeing their representatives put to the question in recall elections is to defer, defer, defer. This despite the explicit timeous commitments of the Deputy Prime Minister and the coalition agreement. Such things are hardly unknown, after all. Justifying the slowness is perhaps more problematic. For example, nuanced more complex rules require much more assessment, drafting, and re-drafting efforts - which might more readily justify delay. If, by contrast, the government is minded to adopt a broader, simpler approach to the circumstances in which electors can force an extraordinary election - the argument of delaying complexity is less readily deployed. In that context, you might well think that it is not accidental that Ministers are leaving detailed questions on the proposal to stew at a certain level of generality, being at best evasively bland on the issues...

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