New Clause 2 — Recall condition: method of petitioning an election court

Recall of MPs Bill – in the House of Commons at 3:36 pm on 24th November 2014.

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‘(1) This section applies when persons allege conduct by an MP which constitutes misconduct in the office of member of parliament.

(2) A petition under this section may be presented if signed by at least five hundred persons who are registered as electors in the constituency of the MP named in the petition.

(3) The petition shall be in the prescribed form, state the prescribed matters and be signed by all the petitioners, and shall be presented to the High Court, or to the Court of Session, or to the High Court of Northern Ireland, depending on whether the constituency to which it relates is in England and Wales, or Scotland or Northern Ireland.

(4) The petition shall be presented by delivering it to the prescribed officer or otherwise dealing with it in the prescribed manner; and the prescribed officer shall send a copy of it forthwith to The Speaker and to the MP therein named.

(5) The election court shall be constituted as if it were constituted under section c123 (constitution of election court and place of trial) of the Representation of the People Act 1983, and sections 124 and 126 of that Act shall apply as if were so constituted.

(6) “Prescribed” has the same meaning as in section 185 (Interpretation of Part III) of the Representation of the People Act 1983.’—(Dr Huppert.)

This new Clause establishes a further recall condition or trigger, independent of Parliament or criminal conviction, whereby five hundred or more constituents may petition an election court alleging improper behaviour on the part of their MP.

Brought up, and read the First time.

Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons

With this it will be convenient to discuss the following:

New clause 3—Recall condition: consideration by election court

‘(1) This section applies when a petition alleging conduct by an MP which constitutes misconduct in the office of member of parliament has been received by an election court as properly presented under section (The third recall condition: method of petitioning an election court).

(2) The court may consider such conduct wherever it is committed, and whether or not it is committed directly in carrying out the office of member of parliament.

(3) The court must examine evidence adduced of misconduct, and any evidence produced in rebuttal by the MP.

(4) The court must consider whether, on the basis of such evidence, it is reasonable to believe that the MP has misconducted himself or herself, to such a degree as to amount to an abuse of the public’s trust in the MP, without reasonable excuse or justification.

(5) If the court considers, on the basis of such evidence, that the allegation of misconduct is—

(a) not supported by the evidence; or

(b) trivial or vexatious in nature; or

(c) brought for party political purposes; then the court must dismiss the petition.

(6) If the decision of the court is that the alleged behaviour is such as to satisfy subsection (4), then it must notify The Speaker that it has so determined.

(7) Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.’

This new Clause establishes the process by which constituents’ allegations of improper behaviour by an MP may be considered and adjudged. It provides for fair and due process and seeks to avoid conflict with the provisions of the Bill of Rights.

New clause 4—MP’s pledge

‘(1) Each MP shall at the start of each Parliament subscribe to the Pledge set out in this section.

(2) An MP subscribing to the Pledge may do so—

(a) in writing; or

(b) in person at the same time as taking the Oath required by the Parliamentary Oaths Act 1866.

(3) The Pledge shall be—

“I solemnly undertake that, in the course of my duties as a Member of Parliament and service to my constituency, I shall act in adherence with the Code of Conduct for Members of Parliament and uphold the standards of public life with selflessness, integrity, objectivity, accountability, openness, honesty and leadership.”’

New clause 5—Complaint of breach of MP’s pledge

‘(1) This section applies when persons complain that an MP has acted in a way that represents a significant breach of the MP’s Pledge as set out in section (MP’s Pledge).

(2) A petition containing a complaint under subsection (1) may be presented to the electoral court if signed by at least five hundred persons on the electoral roll within the constituency of the MP named in the petition.

(3) The Secretary of State may by regulation prescribe—

(a) the form, content and process relating to the submission of such petitions; and

(b) the manner of constitution of an electoral court to adjudicate.

(4) The electoral court must examine evidence submitted of the alleged breach of the MP’s Pledge, and any evidence produced in rebuttal by the MP.

(5) The court must consider whether, on the balance of evidence, it is reasonable to believe that the MP has acted in a way that amounts to a significant breach of the MP’s Pledge, without reasonable excuse or justification.

(6) If the court finds in favour of the petitioners, then it must notify the Speaker, and the MP named in the petition, that it has so determined.

(7) Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.”’

Amendment 1, in clause 1, page 1, line 4, leave out “the first or second” and insert “a”.

This amendment provides for a further recall condition but is neutral if no such condition or conditions are agreed to.

Amendment 14, page 1, line 18, leave out subsection (4) and insert—

‘(4) The second recall condition is that, following on from a report from the Committee on Standards, the House of Commons order the suspension of the MP from the service of the House for a specified period of requisite length.

(4A) A specified period is of requisite length for the purposes of subsection (4) if—

(a) where the period is expressed as a number of sitting days, the period specified is of at least 10 sitting days, or

(b) in any other case, the period specified (however expressed) is a period of at least 14 days.’

Amendment 2, page 2, line 9, at end insert—

‘( ) A further recall condition (misconduct in the office of member of parliament) is that—

(a) an election court has considered a petition claiming that the MP has committed an act which constitutes misconduct in the office of member of parliament; and

(b) the court has determined, prima facie, that it is reasonable to believe such an act may have been committed; and

(c) the court has notified The Speaker of its decision under subsection (b).’

This amendment provides for a further recall condition.

Amendment 15, page 2, line 9, at end insert—

‘( ) A further recall condition (misconduct in public office) is that—

(a) the MP has, after becoming an MP, been convicted of the common law offence of misconduct in public office, and

(b) the appeal period expires without the conviction having been overturned on appeal.

Sections 2 to 4 contain more about this recall condition.’

This amendment provides for a further recall condition.

Amendment 24, page 2, line 9, at end insert—

‘( ) A further recall condition (section 10) is that—

(a) the MP has, after becoming an MP, been convicted of an offence under section 10 of the Parliamentary Standards Act 2009 (offence of providing false or misleading information for allowances claims);

(b) the appeal period expires without the conviction having been overturned on appeal.

Sections 2 to 4 contain more about this recall condition.’

This amendment provides for a further recall condition.

Amendment 34, page 2, line 9, at end insert—

‘( ) A further recall condition is that the MP has been adjudged by an election court (as set out in section (Complaint of breach of MP’s Pledge)) to have acted in a way that is contrary to the MP’s Pledge as set out in section (MP’s Pledge)’.

This amendment provides for a further recall condition.

Amendment 16, in clause 2, page 2, line 18, leave out “The reference in” and insert “In”.

This amendment and amendment 17 ensure that a recall petition may be triggered by an offence committed before the day Clause 1 comes into force where an MP is convicted of the offence on or after that day and after he or she last became an MP.

Amendment 25, page 2, line 18, leave out “(the first recall condition)” and insert

“and ( ) (the first and section 10 recall conditions)”.

This amendment ensures that the provision made in Clause 2 in relation to the first recall condition regarding offences committed before, and convictions on or after, the commencement of Clause 1 also applies to the section 10 recall condition.

Amendment 17, page 2, line 18, leave out from “to an offence” to the end of the subsection and insert—

‘(a) the reference to an offence includes an offence committed before the MP became an MP and an offence committed before the day on which section 1 comes into force, but

(b) the reference to an MP being convicted of an offence is only to an MP being convicted of an offence on or after that day.’

Amendment 26, page 2, line 21, at end insert—

‘( ) The reference in section 1(3) to an offence does not include an offence mentioned in section 1(5A).’

Amendment 27, in clause 3, page 2, line 43, leave out “(the first recall condition)” and insert “and (5A) (the first and section 10 recall conditions)”.

Amendment 28, page 3, line 3, leave out subsections (2) to (4) and insert—

‘( ) “Relevant appeal”, in relation to the first recall condition, means—

(a) an appeal that—

(i) is in respect of the conviction, sentence or order mentioned in section 1(3), and

(ii) is brought within the usual period, or

(b) an appeal that—

(i) is in respect of the determination of an appeal that was itself a relevant appeal, and

(ii) is brought within the usual period.

( ) “Relevant appeal”, in relation to the section 10 recall condition, means—

(a) an appeal that—

(i) is in respect of the conviction mentioned in section 1(5A) or of any sentence or order imposed in relation to that conviction, and

(ii) is brought within the usual period, or

(b) an appeal that—

(i) is in respect of the determination of an appeal that was itself a relevant appeal, and

(ii) is brought within the usual period.’

Amendment 29, in clause 4, page 3, line 34, after second “MP” insert—

‘(a) ‘.

Amendment 30, page 3, line 36, at end insert

‘, or

(b) is convicted of an offence mentioned in section 1( ) (relating to the section 10 recall condition) within the meaning of that provision (see section 2).’

Amendment 31, page 3, line 37, after “order”, insert “in relation to the conviction”.

Amendment 32, page 4, line 4, leave out paragraph (b) and insert—

‘(b) that—

(i) in a case within subsection (1)(a), the conviction, sentence or order has, or has not, been overturned on appeal;

(ii) in a case within subsection (1)(b), the conviction has, or has not, been overturned on appeal, and’.

Amendment 3, in clause 5, page 4, line 16, leave out “the first or second” and insert “a”.

This amendment provides for a further recall condition.

Amendment 18, page 4, line 16, leave out “or second” and insert “, second or section 10”.

This amendment is consequential to the agreement to the section 10 recall condition

.

Amendment 19, page 4, line 43, after “first”, insert “or section 10”.

Amendment 4, in clause 9, page 6, line 36, after “10 per cent.”, insert

‘in a case in which either the first or second recall conditions have been met, and 15 per cent. in a case in which the misconduct in the office of member of parliament recall condition has been met’.

Amendment 5, page 6, line 38, after “10 per cent.”, insert

‘in a case in which either the first or second recall conditions have been met, and 15 per cent. in a case in which the misconduct in the office of member of parliament recall condition has been met’.

This amendment increases the support required for a valid misconduct in the office of member of parliament recall petition, following the steps proposed in New Clauses (method of petitioning an election court) and (consideration by election court), due to the “reasonable to believe” test to be used by the election court.

Amendment 20, in clause 13, page 9, line 10, at end insert—

‘( ) The fourth condition is that, in a case in which the section 10 recall condition was met in relation to the MP, the conviction in question is overturned on appeal.’

Amendment 6, page 9, line 10, at end insert—

‘( ) The fourth condition is that, in a case in which a misconduct recall condition was met in relation to the MP, the MP is subsequently charged with an offence, the penalty for which may be imprisonment or an order to be imprisoned or detained, for the conduct, or any part of the conduct, stated in the petition to the electoral court.’

This amendment seeks to reduce the risk of double jeopardy.

Amendment 21, page 9, line 13, leave out “three”.

Amendment 7, in clause 14, page 9, line 41, leave out “at least 10 per cent of the number of eligible registered electors” and insert—

‘(a) in a case in which either the first or second recall condition is met, at least 10 per cent. of the number of eligible electors; and

(b) in a case in which the [misconduct in the office of Member of Parliament] recall condition is met, at least 15 per cent. of the number of eligible electors.’

This amendment increases the support required for a valid (misconduct in the office of Member of Parliament) recall petition, following the steps proposed in New Clauses (method of petitioning an election court) and (consideration by election court), due to the “reasonable to believe” test to be used by the election court.

Amendment 8, in clause 22, page 14, line 29, at end insert—

‘“misconduct in the office of Member of Parliament” means conduct by an MP, whether or not it is committed directly in carrying out the office of member of parliament, which is misconduct to such a degree as to amount to an abuse of the public’s trust in the MP, without reasonable excuse or justification.’

This amendment establishes an offence of improper behaviour on the part of an MP, using the definition of the English common law offence “misconduct in public office” as its starting point.

Amendment 22, page 14, line 33, after ‘appeal”’, insert

‘, in relation to the first recall condition,’.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

May I apologise to the House for the absence of my hon. Friend Mr Heath—not yet a right hon. Member, despite the praise that was heaped on him in Committee—who is currently acting as our trade envoy in Africa and is unable to be here? My apology is that Members will have to put up with me arguing the case, rather than him.

This is an important Bill. It delivers on the manifesto commitments of most of the parties in this House in some way or another. It means that it will be possible for MPs who are sent to prison to be recalled, no matter how long they are in prison, and that MPs who are suspended by this House for long enough may also be subject to recall.

However, the Bill has rightly been criticised for allowing MPs to mark their own homework, as it were. Unless there is a jail sentence—a threshold that was not mentioned in the manifesto commitments of any party in this House—it is ultimately us who will have to decide whether someone has behaved so badly that they should be subject to recall.

Zac Goldsmith —it is good to see him in his place—proposed one solution to that problem in Committee, but many of us felt that it would have caused more problems than it solved. There was a concern that it might lead to trivial or vexatious complaints, or complaints based on political or policy differences, rather than complaints about genuine misconduct. There was extensive debate about that in Committee.

My hon. Friend the Member for Somerton and Frome and I proposed another route, by which a court would assess whether there were grounds reasonably to believe that an MP could have committed a common law offence of misconduct in public office. If there were, that would lead to the same recall process as the Government have described for those who are suspended or sentenced to jail. That amendment was tricky to write. We were clear in Committee that there were technical challenges in writing it. We therefore did not press it to a vote at that time.

We were encouraged by the cross-party support for our proposal. For example, the Opposition spokesman, Stephen Twigg, said that he was drawn to our ideas and that:

“In principle, giving the power to the people to bring a case against their MP before the election court is a good idea.”—[Hansard, 27 October 2014; Vol. 587, c. 134.]

Thomas Docherty said that our proposals

“have appeal because they enable a public trigger that is still based around wrongdoing.”—[Hansard, 27 October 2014; Vol. 587, c. 77.]

It is good to see both Opposition spokesmen here.

We also had support from the Government. The Minister of State, Cabinet Office, Greg Clark, said that he had

“a great deal of sympathy with the thinking behind the amendments”. —[Hansard, 27 October 2014; Vol. 587, c. 98.]

The Parliamentary Secretary, Cabinet Office, Mr Gyimah, praised it as an “interesting idea” that should be returned to on Report. That is what we are doing now.

I had hoped that the Government would take over the work of doing the drafting and that we would now be looking at Government amendments that had all the benefit of parliamentary counsel’s detailed advice. Sadly, that is not the case. Indeed, it is striking that not a single Government amendment has been tabled for debate today—not even those of a technical nature to fix the errors that were highlighted in Committee.

Photo of Richard Fuller Richard Fuller Conservative, Bedford

My hon. Friend has managed to shower his proposal with praise from a number of people. May I demur from that and ask, at this time when the public rightly have a lot of frustration with the establishment—be it the political elite or other elites—what is the benefit of including the judicial elite in determining issues that should rightfully belong to the people?

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I am wary of straying into the debate we had in Committee because there was a huge amount of discussion about that and the House reached a decision. It is about finding a balance and ensuring that we avoid trivial or vexatious cases, while capturing the power for the public. The other deficiency in the proposals by the hon. Member for Richmond Park was that it was a complex, multi-stage process—possibly too complex to be workable. I respect his views and those of many Members who supported him, but that amendment was defeated by the House and we are trying an alternative approach.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

The hon. Gentleman is speaking about extending the scope of recall. I declare an interest as a lawyer, but would not new clauses 2 and 3 be a charter particularly for lawyers, meaning that the system becomes unduly litigious? That will detract from the original intention of recall, which is to give real power to the people.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I am not a lawyer; I dropped out of studying law after my first year because my exams coincided with the general election, so I bow to the hon. Gentleman’s expertise in how litigious lawyers can be and how they will seek to make money out of whatever proposals there may be. I do not agree, however, that the new clauses will lead to a huge amount of litigation, so allow me to outline how I think they would work. If the hon. Gentleman has proposals for improving the Bill, I would be happy to hear them.

No Government amendment contains all the required measures, so my hon. Friend the Member for Somerton and Frome and I worked on the amendments and adjusted them in the light of criticisms from right hon. and hon. Members across the House. Although we do not have the Government’s seal of approval, we believe this is a workable approach that can, if necessary, be tweaked in another place, which has more specialist constitutional lawyers than this House. We feel that we should not simply hand the Bill over to the Lords unamended and say, “Try to sort the whole thing out”, without giving them a strong steer. Recall applies to Members of this House; the other place can consider the detail, but it should not be considering the principles.

Our proposed option would be in addition to triggers already in the Bill and would mean that 500 electors could sign a petition alleging misconduct by an MP. An election court would hear evidence of that misconduct and any rebuttal by the MP, and decide

“whether, on the basis of the evidence, it is reasonable to believe that the MP has misconducted himself or herself, to such a degree as to amount to an abuse of the public’s trust in the MP, without reasonable excuse or justification.”

If the court upheld the allegation, that would act as another trigger for a recall petition in the same way as a suspension by the standards Committee of this House would do. However, because there would have been no proof of misconduct, only evidence of reasonable belief, we would require a slightly higher hurdle for the petition—15% rather than 10% of the electorate. That change is one of a number that we introduced, and we hope that the new clauses answer the criticisms that were made.

Let me highlight our other changes. The hon. Member for Liverpool, West Derby and Mr Davis both felt that 100 petitioners, as in the original proposal, was too low a number and too easy to achieve, so we increased that to 500. We are not keen to go higher because the court’s role in ruling out unsubstantiated trivial or vexatious cases is best before the complaint has built up a large head of steam. Otherwise, it rather obviates the point of the later petition phase, which needs 15% of the electorate. The provision also simplifies the rules on expenses. Five hundred is a substantial barrier to a small or trivial claim—one annoyed individual, for example—but not if there is a real sense among the public that an MP has done something wrong.

The hon. Members for North Down (Lady Hermon) and for Liverpool, West Derby pointed out one serious flaw in our previous drafting—my hon. Friend the Member for Somerton and Frome was explicit about this. We were trying to apply the common law offence of misconduct in public office to Members representing Scotland and Northern Ireland, where that common law offence does not apply. We sought to get around that by stipulating that courts would act as though the offence were in England and Wales, on the basis that the House is in England, but that was inelegant and we accept that it was flawed. We solved the problem by specifying in the Bill the definition to be used, which is taken from the Attorney-General’s advice on common law in England and Wales. We are therefore no longer asking a court to determine anything based on a jurisdiction that is not its own, and we can still benefit from existing case law for that wording.

Photo of Andrew Lansley Andrew Lansley Conservative, South Cambridgeshire

I am sure that my hon. Friend knows that the House, when in Committee, was sympathetic to the view that there should be a mechanism by which members of the public in a constituency are able to initiate a recall process, but it has to be one that we understand will work. Is the test, which the new clause intends to apply, analogous to the offence of misconduct in public office, or is it something less than that? If it is that, why will it not, if a court determines there is prima facie evidence, trigger a prosecution?

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

The wording is exactly the wording there would be for misconduct. First, that offence does not exist in Scotland or Northern Ireland. I will come on to that later with an example, but there are some issues. We would want Members to be equal, broadly speaking, regardless of where they have been elected from. The other issue is that although the offence of misconduct in public office is used quite regularly against police officers—there are a number of other cases—it has never actually been used against a Member of Parliament. There is a question of whether we trust the Crown Prosecution Service to be the deciding factor, particularly when there could be questions about how it would interact with various Members and Ministers.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

Drawing on the previous intervention and my point about litigation, does this not then become a shadow trial in a line to what perhaps should be a criminal trial in relation to the common law offence? That is the danger, because we are raising not only a civil but criminal liability that may become very protracted and not lead to the end result of a proper recall process.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

We have put in provisions so that, in the event of criminal proceedings, they would take precedence and the recall process would be stayed while that was happening, so I think we have addressed that. As I will go on to say, there is a very similar model already in use in the US and that does not seem to have the same sorts of problems that the hon. Gentleman describes.

On other changes we have made, the hon. Members for Richmond Park (Zac Goldsmith) and for Liverpool, West Derby were concerned about a phrase we included relating to gross dereliction of duty as an MP perhaps being considered as misconduct in public office. They both highlighted the point that there is no definition of our duties as Members of this House. We accept that point and have removed it from the revised amendment. However, I think there is general agreement in the House that there should be some provision in the code of conduct to deal with that. The well-known case of the Member of Parliament who spent most of his time running a pub in Ireland is not one that I think any of us would consider acceptable or wish to see emulated. We should try to ensure that the code of conduct is updated so that, for example, an MP who chose not to attend the House for months or years on end with no good reason, could not continue in that way. Local councils have a rule that councillors have to attend a meeting within six months, with a provision for extensions when there is good reason, for example illness.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

The hon. Gentleman touches on non-attendance. Labour Members supported the House of Lords Reform Act 2014, which makes attendance compulsory at least once a Session. What does he say to those MPs from Northern Ireland who choose not to take their seats, but whose electorate understand fully that that is their principled position?

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

First, just because somebody can be recalled does not mean they would automatically be recalled. How to phrase that in the code would be an interesting question. Trying to have repeated recalls of those Members would be a somewhat futile and repetitive exercise, as it was with the case of Charles Bradlaugh, the Member for Northampton. He was elected three times as an atheist and refused to take a religious oath. The rules were eventually changed because it was made quite clear that his electorate wanted him. I think that, in the case of the Members the hon. Gentleman is referring to, there would have to be some sort of accommodation that there would not be recall elections for that process.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

That may be addressed by the proposals from Mark Durkan, who I suspect is about to say that.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I would certainly give no guarantee of that kind. It is important to say that the proposals we are making at the moment do not deal with this issue. I am suggesting that the code of conduct should be updated. I am very happy to have a discussion on the details of that, but it is not germane in detail to this amendment—they are separate processes.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset 4:00 pm, 24th November 2014

New clause 3(7) reads:

“Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.”

However, if the House of Commons were to introduce a new code of conduct and that were to be interpreted by—effectively—an election court, would it not risk contravening the Bill of Rights?

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

As ever, the hon. Gentleman makes a very interesting point, but the new clause does not suggest changes to the code of conduct or making it subject to court proceedings, so his point does not apply to this new clause.

I think that new clause 2 has been substantially improved to address the criticisms levelled in Committee —we can have the discussion about the code of conduct at another appropriate time. Furthermore, as I said earlier, it is not a unique proposal. The state of Minnesota has a similar scheme under which 25 petitioners submit a proposed recall petition stating the grounds for the recall, whether it be malfeasance, non-feasance or serious crime; and a public hearing is held by a judge within 21 days who then reports to the Supreme Court on the test of

“whether the persons proposing the petition have shown by a preponderance of the evidence that the factual allegations supporting the petition are true; and…if so, whether the persons proposing the petition have shown that the facts found to be true are sufficient grounds for issuing a recall petition.”

This then leads to the recall petition, in which case the system requires the signatures of voters equalling 25% of the most recent turnout, which is roughly the same as the 15% we are proposing. This system exists, therefore, and it seems to work, as shown by its operation since it was introduced in 1996.

Photo of John Redwood John Redwood Conservative, Wokingham

How does the hon. Gentleman answer the criticism that the whole point of recall is to give power to the people but that his system gives power to judges?

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

It still starts with 500 people and ends with 15% of the public making the decision. We have to strike a balance—we discussed this in Committee, and I do not want to give a blow-by-blow account of that very long debate—over whether there should be any constraints at all and whether there can be any trivial or vexatious cases. That is the difference.

In Minnesota, several cases have been deemed to be unreasonable. The two most recent cases involved State Representatives Ward and Radinovich, both of whom supported same-sex marriage against the wishes of their constituents, and in both cases, the court concluded that it did not constitute malfeasance, saying:

“Constituent disagreement with how their elected representative exercised discretion, through public statements made or votes taken, does not equate to malfeasance by the representative.”

That is surely a principle the House would want to stick to.

In 2001, the state attorney-general did not take steps to ensure that a ban on sodomy was not struck down—again there were complaints, but the court did not conclude that he had failed to do his job; and in 1999, Governor Jesse Ventura was accused of having done well out of his book by virtue of being governor, but again the court felt the accusation was unsubstantiated and struck it out.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

It has been brought to my attention that earlier today the hon. Gentleman published an article on Lib Dem Voice about his test stating:

“This test of “reasonable to believe” puts the burden clearly on the MP to disprove beyond doubt the allegations against him or her in the first instance.”

Now, he takes a clear and principled stance on terrorism legislation, so some of us are surprised he is reversing the burden here. Is he not contradicting himself by leaving it up to the MP to disprove the allegation, rather than the petitioners to prove it?

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I will have to check the wording of the article—[Interruption.] Sorry, I am not challenging the hon. Gentleman; it is possible, in writing it so speedily, that I miswrote it, because that is certainly not what it ought to say. That is not how it ought to work, and if I wrote that, it was my mistake and I apologise to him and anyone else who read it. I will check it as soon as I have a chance.

The system in Minnesota, which is similar to what we are suggesting, seems to work. Our proposal would protect MPs from trivial recall petitions, but allow the public a route, not mediated by the House, to recall MPs who have committed misconduct. I hope, therefore, that the House will support new clauses 2 and 3, along with the consequential amendments, when I put them later today.

I wish to turn briefly to the other amendments in the group, many of which are in my name and that of Thomas Docherty and others.

Photo of Andrew Lansley Andrew Lansley Conservative, South Cambridgeshire

Before my hon. Friend moves on to other amendments, I would find it helpful if he explained whether new clause 3(1), which says that the conduct that has to be alleged by the petitioners to a court must constitute

“misconduct in the office of member of parliament”, is consistent with subsection (2), which says:

“The court may consider…conduct…whether or not it is committed directly in carrying out the office of member of parliament.”

We would be in the curious position where conduct unrelated to the office of a Member of Parliament and duties consequent on that office might be used to allege misconduct in that office. Is that not contradictory?

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I think the right hon. Gentleman’s point is answered by amendment 8, which has a fuller definition of misconduct. I hope he will have a chance to take a look at that precise point.

Amendment 24 adds another recall trigger: if a Member has been convicted of an offence under the Parliamentary Standards Act 2009—providing false or misleading information for allowances claims—whether or not it has led to a prison sentence. The amendment was proposed in Committee by the Opposition and, given the particular sensitivities of the issue, we fully support the proposal. It is a good idea. Similarly, amendment 15 provides another trigger: if any Member is convicted of misconduct in public office, whether or not they are imprisoned—something that has never happened to a Member before, but which does happen on a semi-regular basis, sadly, to police officers in particular. It seems inconceivable that an MP convicted of such an offence could be immune from recall, so I hope the House will support that amendment too.

Amendment 14 tackles the time frame for suspensions from the House to count and ensures that only suspensions after the Committee on Standards has produced a report are involved, thus excluding those from the Speaker alone. Again, this was an idea proposed by the Opposition in Committee and it is sensible. The other amendments that my hon. Friend Mr Heath and I have supported deal with a range of technical details—not least the need to add words such as “third”, “fourth” and “fifth” to legislation that frequently enumerates conditions—as well as more substantial matters, such as historical offences, which I will leave to the hon. Member for Dunfermline and West Fife to explain.

Lastly, there are the amendments tabled by Mark Durkan and the amendment to his new clause 4, from Ms Ritchie. I have particular sympathy for the amendment to the new clause, which follows on from the work of Charles Bradlaugh to expand the oath to allow more Members to honestly take it. I am therefore supportive of the ideas of the amended new clause 4. However, I am concerned by the proposal in new clause 5, even though I recognise much of the wording has been taken from my new clauses. It is reasonable to ask a court to consider misconduct offences, but it is much harder to ask it to judge abstract conceptions such as leadership. Do we have any idea how a court could judge whether we in this House had displayed adequate leadership?

I look forward to hearing comments from across the House on the amendments, but I intend to test the will of the House on all amendments, in particular new clauses 2 and 6, as well as the consequential amendments, and, if they are not accepted, I shall support those proposed by the hon. Members for Dunfermline and West Fife and for Liverpool, West Derby (Stephen Twigg), rather than passing the buck to the other, unelected House.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (International Development), Shadow SDLP Spokesperson (Work and Pensions), Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

Dr Huppert has already touched on new clauses 4 and 5, which stand in my name, and amendment (a) to new clause 4, which has not been selected, in the name of my hon. Friend Ms Ritchie.

I should clarify that the purpose of new clause 4 is to answer a question that I and other hon. Members posed when we discussed the Bill in Committee and on Second Reading. There is no job description for MPs, so if we are creating the principle of recall—a principle I fully endorse: I believe recall should be possible at the initiative of constituents and the electorate—it is important to have a yardstick. If we are affirming that MPs have and owe that degree of accountability to their constituents, there should be a clear basis on which constituents can rightfully wrest the exercise of that right. We had all sorts of circular arguments about whether having an open petition system could lead to all sorts of specious and spurious grounds that were motivated by partisan or other interests. I believe it was important to create a basis on which MPs could subscribe to the possibility of recall by acknowledging from day one when they take their seats here that they are subject to that degree of accountability and owe service to their constituents. That is why I support the concept of MPs taking a new pledge.

It is rather strange that we are pursuing a Bill that is creating the idea that a strong rule of accountability is to be translated into a recall, yet whenever MPs come here to assume their seats, all they do is issue words in the form of an oath or an affirmation about allegiance to the Crown, which many of them do not actually believe. I am not sure that that does anything for the credibility or reputation of politics when the first thing that politicians do in taking their seats is to recite words that they might not believe. Those who believe in those words should absolutely be able to recite them, but it is important that, regardless of whether Members believe in the affirmation or the oath, we should utter a pledge in respect of our parliamentary standards.

Given that hon. Members proposed amendments in Committee that made reference to the MPs’ code of conduct and given the importance of expenses and other relevant issues that could motivate a recall, we need to recognise the significance of the seven standards of public life, which appeared in the Parliamentary Standards Act 2009, for this Bill. Hence the pledge I propose in new clause 4 has MPs, on taking their seats, affirming that they will abide by the MPs’ code of conduct and honour the seven standards of public life as they are now. Those standards could, of course, be revised and extended in future. The new clause would leave the phrasing of the pledge open.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

I apologise for not being in my place at the start of the debate, but I am very interested in this Bill. The hon. Gentleman knows perfectly well that there are five absentee Sinn Fein Members who are obviously not going to turn up and take any pledge in this House or assume their seat any time soon, if ever. What would be the sanction for such Sinn Fein MPs who refused to sign any pledge?

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (International Development), Shadow SDLP Spokesperson (Work and Pensions), Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

I take the hon. Lady’s point, but if she looks at the new clause, she will see that an MP subscribing to the pledge may do so

“(a) in writing; or (b) in person at the same time as taking the Oath required by the Parliamentary Oaths Act 1866.”

So anybody elected to this House on the basis of serving their constituents in the way that Sinn Fein Members pledge they will serve their constituents could not take their seats or sign on to take their seats. Sinn Fein Members could fulfil the requirement by signing the pledge “in writing”. That is entirely feasible, so my new clause would not create any barrier or impediment for Sinn Fein Members—or, indeed, for any other Member elected on the basis that they will not take up their seats in this House, but will use their seats in whichever way they won their mandate for.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

I am most grateful to the hon. Member for allowing me to intervene a second time. I understood that there were the alternatives of saying the words of the pledge when Members take up their seats here or of making the pledge in writing. My question, however, was what the sanction is for MPs, including Sinn Fein Members, who do not take the pledge either in writing or orally.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (International Development), Shadow SDLP Spokesperson (Work and Pensions), Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

I have not gone as far as that; it could mean a further sanction that if people do not take the pledge, they will be deemed not to have taken up their seats. That could be one way of doing it. We could say that expenses and other things would be paid only in circumstances where the MP has signed the pledge.

The standards required by the pledge would include due observance of all rules and principles involving such matters as expenses which relate to the code of conduct or to the “standards of public life”. All the requirements are parliamentary standards. It is possible that a Member’s status in respect of allowances and facilities would kick in only when the pledge was signed, but that is a detail.

I have no reason to believe that the pledge, as currently drafted, would cause any problems for Sinn Fein or anyone else. That is not the point of the pledge. The point of the pledge is to establish the working principle that from day one of a person’s life as an MP, that person is here to observe certain standards. MPs will be free to exercise and voice their own views in many ways and on many of the issues that arise in the House, and they will be able to do that in terms that fully respect their conscience. After all, the “standards of public life” that an MP will pledge to uphold include

“integrity… accountability, openness, honesty and leadership.”

Those who hold a clear and conscientious view on a matter and wish to reflect that in a vote in the House—whether on a Bill or on some other measure—will be able to defend themselves against any charge of inappropriate behaviour on the basis that that is their clear, conscientious view, and that they have voted in a spirit of integrity, honesty and openness. Some have expressed a fear that the more open form of recall mechanism that could be initiated by constituents—the rolling petition model— would lead to Members’ being challenged on the basis of votes that they had cast or not cast, or views that they had voiced, but the terms of the pledge would protect them from the mounting of specious tactical challenges.

I thought that providing for the pledge to be taken either at the same time as, or in place of, the oath under the Parliamentary Oaths Act 1866 might be outside the scope of the Bill. That is why I limited new clause 4 to the terms in which it appears, but it is also the understandable reason for the tabling by my hon. Friend Ms Ritchie and two other Members of amendment (a). The amendment would have allowed the pledge to be taken in place of the oath, and failure to take the oath would not have left any Member in peril under the 1866 Act. I think that that is fair and sensible, and had the amendment been selected I should have liked it to be passed, because it would have made it clear that the primacy of membership of the House relates to Members’ accountability to their constituents and the standards and service that they pledge to them, and to the broader public interest, according to good parliamentary standards.

New clause 5 adopts the suggestion, made during our earlier discussions, that a public petition based on evidence that a Member had failed the pledge of office could find its way to an electoral court. Let me level with Members: that is not a method, or approach, that I particularly favour. I still support the rolling petition mechanism that was proposed by Zac Goldsmith in Committee. I believe in the idea of there being essentially a premise-petition first. The previous proposals were for 5%, and some expressed the thought in the previous debate that it should be 10%. I still favour that option of either 5% or 10% and a threshold petition initiated at 20%—I understand that some people have said that that might be 25%. That is my view. I know that some people have looked at these amendments and said, “These amendments mean that there is a complete stitch-up by all the parties here, big and small, to have no meaningful recall.”. I am not part of a stitch-up. Also, it is not a give-up on the part of those of us who believed in that and advocated those amendments at the previous stage. However, I understand from talking to colleagues who supported those amendments in Committee that they had no wish to necessarily see that whole argument rerun here, which is why when we are talking about making the case for a new MPs’ pledge providing the basis or working reference point for any future recall petition, I have gone for the lower-case model of a smaller petition going to the electoral court.

I understand fully what other Members have said, even in their interventions on the hon. Member for Cambridge, about people being reluctant to see this as a matter that goes straight to the courts—the idea that even where there are 500 or 1,000 constituents, the recall would go straight to the courts and the decision would be taken there. I accept that that is not desirable, but I have tried to reflect on the arguments made by other hon. Members and to understand the will of the House, and this is the model I have offered. I certainly believe that it could be better, but I felt I needed to offer some measure alongside the concept of the pledge to show how the pledge might be used and how it might be the central reference point in any recall move.

If we are serious about the principle of recall, it has to be something that goes back to the constituents. Whatever the issues about decisions that might be taken by bodies within this House in relation to standards or breaches—I know that there are proposals in some of the other new clauses and amendments but I will not speak to them now—I still believe that the public will treat the idea of recall as serious when recall is in their ownership and can be at their initiative. I understand, however, that hon. Members feel that if we leave it just to the public initiative, it will be abused. They feel that there will be no bottom line, no standards and no protection. I believe that the idea of the pledge provides that sort of protection. It is the clear reference or standard point to which the public can look and hold MPs to account, and it is also the defence line for MPs.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset 4:15 pm, 24th November 2014

I agree that it would be better for the decision to be made by the electorate—by the court—but is not the problem with the pledge being determined by the court that the pledge is fundamentally political rather than legal?

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (International Development), Shadow SDLP Spokesperson (Work and Pensions), Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

I accept the hon. Gentleman’s point, but it can be legal up to a point; there could be some matters on which a clear-cut judgment could be made. I have chosen to offer the route through the court simply because it seemed to me that there was a will or a mood in Committee saying, “Well, if we’re going to allow any element of public petition to recall, then going to an election court could be the way that could be done.” I have simply taken that point and offered this new clause to try to test Members on whether they will follow through on the logic of the argument they made in Committee.

I do not commend the model in new clause 5 above all others. I still prefer the open rolling petition around a clear issue, but, again, I think that the open rolling petition should be on the basis of a pledge. I think the pledge as the basis for those petitions would create a much clearer standard for the public. It would also create a clearer standard for MPs, who would know, if they had committed to the pledge, whether they had abided by the code of conduct and could show whether they had upheld the standards of public life. That should not be too much to ask. MPs should not feel, “Oh, it’s hard to prove that we have upheld the standards of public life or lived up to the code of conduct.” It would send a very dangerous signal if Members felt that a pledge about the MPs code of conduct and the standards of public life would be difficult to uphold or could be abused in some untoward way. Then we would be seen to be trying to find ourselves some highly privileged protection where we decide that we always know best, even about the worst that we have done.

That is the simple point of new clause 5, which I do not intend to press to a Division. Its purpose is to ensure that if we are to improve the Bill, we take into account the absence from the Bill of a clear tool available to the public. Also, we need to make good the serious omission that we have all acknowledged—in circumstances where there is no serious job description for MPs, where is the bottom line? The new clause offers a bottom line.

Photo of Zac Goldsmith Zac Goldsmith Conservative, Richmond Park

It is worth taking stock of where we are. The Government’s Bill still has no friends in its current form. It still proposes a system of recall that is possible only in the narrowest of circumstances and, in most cases, still only by permission of MPs. It will do nothing to empower voters. For that reason it has been savagely criticised by every pressure group campaigning for improved democracy—everyone from 38 Degrees and Unlock Democracy all the way to the TaxPayers Alliance. It has been trashed by everyone from the Morning Star to The Daily Telegraph, which described it a few weeks ago as an “insult to voters”.

As a consequence, the Prime Minister felt obliged to describe the Bill as “the minimum acceptable”. Labour’s shadow Minister, Stephen Twigg, said that

“the Bill needs to be strengthened considerably from its current state in order for it to have meaning.”

Photo of Douglas Carswell Douglas Carswell UKIP, Clacton

Does my hon. Friend agree that the fundamental flaw in the Recall of MPs Bill is that it does not contain a recall mechanism?

Photo of Zac Goldsmith Zac Goldsmith Conservative, Richmond Park

Exactly right. This is not recall as it is understood anywhere in the world.

The shadow Minister went on to say that the Bill

“is simply not good enough. The public will, rightly, expect more.”—[Hansard, 21 October 2014; Vol. 586, c. 787.]

Even the Deputy Prime Minister, who wrote the Bill, has had to express difficulties with it.

But after all that huffing and puffing, here we are today with more or less exactly the same Bill—a Bill that no one likes. Yes, a few amendments have been proposed, but they are red herrings. They add nothing useful to the Bill. Labour’s main proposal, amendment 14, merely lowers the threshold so that hon. Members who are suspended from the House for 10 days or more automatically qualify for recall. The original proposal was 21 days. The only effect that will have is in the judgments made by a committee of parliamentarians. They will simply rejig the way they sentence MPs accordingly. The 10-day rule would have spelled the end for any number of hon. Members who have been sanctioned for engaging in protest.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

May I clarify the amendment? It specifically excludes those Members who have been named by the Speaker for parliamentary protest in the Chamber. It does not capture Members who have engaged in parliamentary protest.

Photo of Zac Goldsmith Zac Goldsmith Conservative, Richmond Park

I am grateful to the hon. Gentleman for that clarification. It changes nothing at all. I am reassured by the point he makes, but all this does is create a different dynamic—a different impetus for the committee of parliamentarians. They will simply pass different judgments accordingly.

The main Lib Dem amendment, new clause 2, introduces a new trigger—misconduct in public office. It sounds great and some people might be reassured by it, but it adds nothing material to the Bill. I have looked into the matter and sought advice. I quote some of the advice that has been issued. The Crown Prosecution Service says that this should apply

“only where … the facts are so serious that the court’s sentencing powers would otherwise be inadequate”.

The House of Commons Library says:

“There are few prosecutions, suggesting that action is taken only when misconduct is particularly gross.”

The courts have said:

“The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice.”

If we are honest about it, the only reason why this amendment has been tabled is so that the mainstream parties can pretend that they have addressed one of the main concerns with the Bill, which is that it leaves MPs in charge.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge 4:30 pm, 24th November 2014

The hon. Gentleman said that a mistake, even an honest one, will not suffice. Does he actually think that MPs should be subject to recall just because they have made an honest mistake?

Photo of Zac Goldsmith Zac Goldsmith Conservative, Richmond Park

The hon. Gentleman knows my arguments concerning recall. I am deliberately trying not to rehearse the arguments that were made in Committee because I lost them by a ratio of 2:1, but I fundamentally disagree with his view on how recall should be used. I was elected largely on the basis that I would put up a fight against Heathrow expansion. Had I, immediately after the election, taken a non-executive role within BAA—even an unpaid role of some sort—and flipped my position entirely, that would have amounted to a fraud on my voters. Had I performed such a U-turn, I believe they should have had the right at that point to recall me. The hon. Gentleman disagrees and that is a fundamental philosophical difference, but I will not rehearse the arguments because, as I said, I accept that I lost them a few weeks ago, sadly.

So, we have the same Bill, more or less, with a few synthetic changes if they are passed later today, and we are supposed to believe that the three main parties are all of a sudden happy with it. Perhaps they are, but if so it is only because they were not really, genuinely, authentically unhappy with the old version that we debated. Either way, it is an embarrassing, insulting nonsense. They have tied themselves up in knots to avoid letting voters hold them to account, all the time pretending that they are doing the opposite.

As if to prove how seedy this affair has become, the most extraordinary letters have been sent by MPs to their constituents, explaining why they blocked real recall. I will not rattle them all off, but let me give one example. Mr Sanders told his constituents that he opposed real recall because

“I could have faced…recall…for voting in favour of an in out referendum”.

He added:

“I could have faced a recall campaign for having voted to close corporation tax loopholes.”

Does he honestly, truly believe that his constituents would have wanted to recall him for doing either of those things? Is it possible to have greater contempt for one’s voters than he expresses in that article in his local newspaper? I have seen countless letters explaining that pure recall would undermine the independence of MPs—letters, incidentally, sent by MPs so dependent that they have never once strayed from the party Whip, never once been disobedient to the parties they serve.

And then, we have the Deputy Prime Minister, who robustly opposed real recall six times in this Chamber that I am aware of. Six times he was on the record opposing California-style recall—

Photo of Tom Brake Tom Brake Assistant Whip (HM Treasury), The Deputy Leader of the House of Commons

Did the hon. Gentleman notify my hon. Friend Mr Sanders that he would mention his name in this debate?

Photo of Zac Goldsmith Zac Goldsmith Conservative, Richmond Park

No, I did not. I was not aware that I was supposed to. Perhaps I will be recalled under the new mechanism that the right hon. Gentleman is proposing.

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Deputy Speaker and Chairman of Ways and Means, Chairman of Ways and Means

The point has been made. Normally, it is good practice to let people know if you are going to name them. I am sure that it was not done intentionally.

Photo of Zac Goldsmith Zac Goldsmith Conservative, Richmond Park

I do apologise, Mr Deputy Speaker; it is not a convention that I was aware of, and it certainly was not intentional.

The Deputy Prime Minister has formally opposed, on the record, real recall six times in this House. Then, as the pressure for proper recall began to rise earlier this year, he clearly felt it. He told his LBC listeners:

“Zac and I are completely at one. I actually have no objection at all to the kind of radical California style recall that he likes.”

The real problem, he added, is that

“It has absolutely no hope…of being passed into law because of profound objections from conservative colleagues.”

Of course, when it came to a vote—a free vote for the coalition, if not for the Labour party—his party trooped as one through the No Lobby, against real recall.

In the last debate on recall, Members were asked to trust voters to hold them to account, and a majority declined, sadly. I genuinely believe that the establishment’s refusal to share power means that ultimately, it will lose that power. However, the result was clear and for that reason I have not tabled any new amendments. It was clear that the House as it is today is not ready for proper recall, and I would be wasting the House’s time if I rehearsed all those arguments and re-tabled those amendments.

However, there is some good news. In an impassioned speech, a Scottish National party MP—the name of his constituency is so complicated that it is a disincentive to quote him, so I will not. [Hon. Members: “Western Isles.”] Is that right? So that is what we call it in English. I was not aware of that. I was going to attempt the native version, and I am afraid that I would have got it wrong. Nevertheless, in an impassioned speech, the hon. Gentleman said that even if reform were rejected by the House, it was inevitable, and he was right. Prospective parliamentary candidates up and down the country from all the parties—Labour, Lib Dem, Conservative and the rest—are positioning themselves against the incumbents on the basis of where they stand on recall.

Photo of Richard Fuller Richard Fuller Conservative, Bedford

Does my hon. Friend agree that recent news has highlighted the public’s distaste for a political elite keeping themselves to themselves and ruling over the people? Is not that another reason for the public being frustrated that the Bill does not include the real recall provisions that he proposed on Second Reading?

Photo of Zac Goldsmith Zac Goldsmith Conservative, Richmond Park

I could not agree more strongly, and I welcome my hon. Friend’s intervention.

Change is inevitable, and we are moving in the right direction. I also believe that, with the new composition of the House after the election, we will be in a better position to bring in a genuine form of recall. I certainly hope that that will happen. In the meantime, however, let us not insult voters with this placebo that is being offered today. People who are interested in politics already know that this Bill is a sham and a stitch-up. The rest—those who are perhaps not paying attention today—will discover that fact for themselves at the very first scandal. Let us walk away from this disgraceful piece of legislation and wait until the House grows some collective proverbials and does the right thing.

Photo of Zac Goldsmith Zac Goldsmith Conservative, Richmond Park

I was about to finish, but I will give way to the hon. Gentleman.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

Notwithstanding the hon. Gentleman’s acceptance of the vote last time, will he clarify whether it is his intention to oppose amendment 24, which deals with MPs who fiddle their expenses, if there is a Division on it?

Photo of Zac Goldsmith Zac Goldsmith Conservative, Richmond Park

I am happy to answer that question. I do not want to sound self-important, but it is my intention not to vote one way or the other on the amendments or the Bill, because I do not want to give the Bill any credibility at all. It is a sham, a shambles, a farce, an insult and a disgrace and I do not want to have anything to do with it. When we come back to the House with a proper proposal, I will engage again, but for now I would advise all those Members who believe in democracy, in reform and in genuine recall to walk away and wait for another time.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

I want to set out Labour’s position on the principle of recall and the reasoning behind the amendments that have been tabled by me, my hon. Friend Stephen Twigg and others. I will then set out Labour’s views on the new clauses and amendments tabled by Dr Huppert. Finally, I will deal with the new clause tabled by my hon. Friend Mark Durkan.

I want to begin by again placing on record Labour’s support for the principle of recall when an elected representative’s conduct falls well below the standards that Parliament and their constituents expect. That is why our 2010 manifesto promised to introduce recall legislation and why we supported the Bill on Second Reading. We will support it again on Third Reading.

However, we continue to believe that the Bill could be strengthened. We have tabled a number of amendments to that end, and I am grateful that they have attracted cross-party support. We discussed the principles behind each of them in Committee, and the hon. Member for Cambridge has already mentioned them briefly, so I will not detain the House by rehearsing all the arguments or going into unnecessary detail.

Amendment 14 seeks significantly to lower the threshold for the period of suspension relating to the point at which a Member of Parliament may be subject to a recall petition. As it stands, the Bill states that the second recall condition is that a Member must be suspended from the House for 21 sitting days to reach the threshold. We believe that that sets the bar too high. For example, neither of the MPs who were suspended during the cash-for-questions scandal would have been subject to potential recall using that threshold. By reducing it to 10 days, as we propose, Members such as those and many others who have been suspended over the years would be captured by the revised mechanism.

However, we recognise the genuine concern that Ministers flagged up during the Bill’s previous stages, which has been echoed by Zac Goldsmith, that a Member who had twice been named by the Speaker for unparliamentary activity or protest could fall foul of the lower threshold. That is why we have inserted the provision that the suspension must be the result of a report into an MP’s behaviour by the Standards Committee, although it is for the House as a whole to determine the length of a suspension.

Our amendment 24 deals with Members who have been convicted of fiddling their Independent Parliamentary Standards Authority-funded parliamentary allowances. Some may be curious as to why we are proposing that the recall process should apply even where a non-custodial sentence is handed out. We believe that a flagrant misuse of public funds by MPs is simply unacceptable. Those of us who were not MPs in the previous Parliament fully understand the public’s anger at that whole sorry saga. As the Leader of the Opposition has highlighted, the public’s confidence in our political system has been severely strained by the events of the past few years. We hope that this amendment signals to the public that Parliament is listening and changing.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

The other point the hon. Gentleman could make is that his party’s manifesto specified that recall would be only for MPs found responsible for financial misconduct. So his proposal is entirely in keeping with his manifesto, as our proposal is with our manifesto commitment. Indeed, the surprise is that none of the major parties had something analogous to that which seems to be pushed by so many.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

I am grateful to the hon. Gentleman for his support for our amendment. I would not say it was only about that condition, but we did specifically state that it was grounds for recall, which is why we supported the Bill on Second Reading and will do so on Third Reading.

Photo of Richard Fuller Richard Fuller Conservative, Bedford

The hon. Gentleman just said that the changes in his amendment arise because of past failings in MPs’ behaviour and how such failings have strained the public’s credulity. That may be one explanation, but another may be that the public realise that they want control over a much greater proportion of what Members of Parliament do, and that direct democracy has a much greater role to play and arouses much greater passion in the community. Does he think that is a push for the Bill and his amendments to have gone further?

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

The hon. Gentleman tempts me to restart a debate we had on Second Reading or in Committee. The Opposition are clear that we are representatives, not delegates; and that the basis for recall must be wrongdoing and misconduct, not because an individual constituent or a well-funded vested interest group disagrees with how a Member has voted. That is an important difference.

Photo of Richard Fuller Richard Fuller Conservative, Bedford

If that is the basis for the hon. Gentleman’s position, does he think that those in America’s House of Representatives, some of whom are subject to recall, are delegates, not representatives?

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

With your indulgence, Mr Deputy Speaker, may I just clarify the point for the hon. Gentleman? Members of the two Houses of Congress, and the President and vice-president of the United States, are not subject to the recall provisions. Those apply only at state level, because the courts have ruled that there is no constitutional provision in the United States at federal level for the recall petition. So, ironically, the one group of US citizens who are exempt are those in Congress; many who observe their proceedings might wonder from time to time whether they should be recalled.

Amendment 16, our third substantive amendment, deals with the quirk that under the Bill as it stands only offences committed after the date of Royal Assent are covered. We have previously highlighted our belief that this should apply to all new convictions, regardless of when the offence was committed. I do not intend to rehash previous examples, but where an offence comes to light only after a Member of Parliament is elected, surely it would be wrong to deny his or her constituents justice. Of course this should not apply where a conviction occurred before a Member was elected, because it is a reasonable assumption that the electorate have already taken that into account when choosing to vote for them, and there is precedent within the UK for that. However, how can a constituent know about an offence where no conviction has occurred? We hope that the Government will accept those arguments.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I am sympathetic to most of the hon. Gentleman’s amendments, but I do have a query about this one. Is it not, as a general principle, unfair to apply a punishment to people that they did not know might be a punishment at the point at which they did the wrongdoing?

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

I am grateful to the hon. Gentleman for his argument, but of course that person was not a Member of Parliament when they committed the offence, so would not expect to be denied something going forward. Let me take his argument and reverse it. This place abolished capital punishment some 40-odd years ago. If somebody were today convicted of a crime that previously had capital punishment as a tariff, we would not retrospectively apply a punishment that no longer exists.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset 4:45 pm, 24th November 2014

I thank the hon. Gentleman for being so generous in allowing interventions, but his argument also applies the other way around. If somebody were found guilty of an offence committed 40 years ago, for which the punishment was a maximum fine of 2 shillings and 6 pence, they could still only be fined that amount. It is a very important legal principle that the penalty may not be increased, but it may be reduced.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

I suspect the hon. Gentleman needs no reminding that this Bill is about providing rights to our constituents. I am talking about a right to recall where serious wrongdoing has occurred. Yet again, he tempts me to remind the House that, after being elected, my local Scottish National party MSP was found to have committed a string of domestic violence offences over a 30-year period. He was charged and convicted only after he became a Member of the Scottish Parliament, and there was no mechanism for recall, despite the fact that he had broken a frying pan over his step-daughter’s head. I believe the House will agree that it is absolutely right that, where offences have come to light and there is a new conviction, we provide justice to those constituents.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

I support what my hon. Friend Jacob Rees-Mogg has said. It is an ancient principle of English justice not to impose retrospective penalties or an ex post facto view on things. Is the Labour amendment designed to impose on individuals a penalty that would not have applied previously? I think it is, in which case it is against the principle of natural justice.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

May I say gently to the hon. Gentleman that he may be confusing sentence with offence? There is no attempt to make a retrospective offence. What we are saying is that one of the tariffs to which an hon. Member would be subject is recall. It is about balancing the rights to justice with the rights of our constituents. If he is saying that he will oppose us on this measure, I do not think he will find many colleagues with him in the Lobby.

Photo of Mark Field Mark Field Conservative, Cities of London and Westminster

My hon. Friend Michael Ellis might find me as a supporter. Does the hon. Gentleman not recognise that the Government’s reasoning in this regard may be to draw a line under the past? In fact, they said as much earlier on. We all know that the public were appalled by the expenses scandals of the past. That is why IPSA was set up. It was designed to draw a line under the past and make sure that everything was independently audited. I hope we will continue to do that as far as future independent salary reviews are concerned, but the principle applies here as well. We need to draw a line under the past, and keep the future in mind.

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Deputy Speaker and Chairman of Ways and Means, Chairman of Ways and Means

Let me help to draw a line. Members must make short interventions, not speeches. If we can make future interventions shorter, it will help.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

We absolutely agree on the point about IPSA expenses. To provide justice to our constituents, it is a relatively uncontentious tweak to the Bill to say that if a Member of Parliament were convicted of serious wrongdoing they should not be able to evade natural justice just because their offence was carried out before Royal Assent. Let me now make a little more progress.

We see these three amendments as sensible steps towards improving the Bill and significantly strengthening the rights of constituents to hold their Members of Parliament to account. I am grateful to Members from the other parties and to those on the Government Benches who have signed our amendments or who have indicated that they will support them tonight. I hope that when the Minister responds he will confirm that he, too, supports our proposals and that he will encourage all his colleagues to endorse them so that they can be carried without a Division.

I now turn to the new clauses and amendments tabled by the hon. Members for Cambridge and for Somerton and Frome (Mr Heath). I want to deal first with new clause 2 and the amendments relating to it. As I said in

Committee, we support the principles behind the idea. We agree with the hon. Gentlemen on the idea of an independent mechanism when it can be demonstrated that wrongdoing has occurred. Like the hon. Gentlemen, we entered into talks with Ministers in good faith to make it work. However, as has already been mentioned by the hon. Member for Cambridge, despite lots of warm words from Ministers the Government have walked away without fully engaging. At no point did Ministers proffer alternative wording, which will of course leave many wondering whether parliamentary counsel were ever engaged properly. The Government Chief Whip who, yet again, is nowhere to be seen, seems to have decided that this is all too much effort.

That is no way for the Government to behave, not only after giving clear assurances in Committee but on a Bill that was, as the hon. Member for Richmond Park said, a key plank of the coalition agreement. The result of the Government’s behaviour is that we are left with a new clause that is, by the admission of the hon. Member for Cambridge, not in a fit and proper state. I appreciate that its promoters have tried as hard as they can to get these principles into a workable state, but despite their best efforts the amendments are simply not there.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

Let me be clear that I have never said that I do not think the new clause is in a fit and proper state. There were some problems with the previous version, but I think that it is now in a good state. I dare say, however, that their lordships could tweak it.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

I therefore refer the hon. Gentleman to new clause 3, which places the burden of proof on the Member of Parliament. Again, let me quote what he has said. Although I accept what he has said about no longer seeing that quotation as accurate in terms of what he was trying to achieve, it reflects what new clause 3 says. He said:

“This test of “reasonable to believe” puts the burden clearly on the MP to disprove beyond doubt the allegations against him or her in the first instance. It would mean a high chance of success for petitioners unless their evidence was very weak indeed.”

The hon. Gentleman has already clarified that he does not support that, so if he does not support the intent behind new clause 3 I would gently suggest that the best thing would be for the new clause to be rewritten.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

The hon. Gentleman is absolutely right to point out the errors in what I wrote on Lib Dem Voice and he will be pleased to know that it has been corrected, but in such a way that one can still see the original. I am not trying to hide the fact that I made an error. The bit that was not fit and proper was that aspect of the article on Lib Dem Voice and the new clause is still quite clear. The “reasonable to believe” test is a fairly common and standard one.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

Perhaps I can return to that point in a moment or two.

Let me explain what we see as the problems with new clauses 2 and 3 and the associated amendments. The court process can be started comparatively easily as 500 signatures would not be difficult to obtain and a rich group or a rich individual who wanted to attack a Member of Parliament could pay for lawyers once those signatures had been obtained to mount a court application that would be both costly and distracting for the MP to fight. New clause 2 does not require the case to be proved, as the hon. Member for Cambridge has admitted, beyond reasonable doubt or even to some lower standard, only that the court has “reason to believe” the Member of Parliament is guilty of misconduct in public office. The clause requires only an arguable case and not a proved case, which makes an MP vulnerable to losing in court when the allegations have been proved, to be taken forward.

New clause 2 also sets the standard by reference to the language of the criminal offence of misconduct in public office, which, as the hon. Member for Cambridge admits, is a criminal offence in England but not in Scotland or, I think, in Northern Ireland. If the court concluded that there was reason to believe that a Member of Parliament was guilty of the offence of misconduct in a public office, in addition to the recall petition’s being opened the Member of Parliament would be incredibly vulnerable to prosecution for the criminal offence. A well-funded individual or group could achieve 500 signatures, tie a Member of Parliament down in difficult court proceedings, in which the attackers do not even have to prove their allegation, and, if they succeed in court, subject the Member of Parliament to not only a recall petition, but the possibility of criminal proceedings.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

The hon. Gentleman makes an interesting point. He will be aware, of course, that there is an existing process whereby an individual or group—perhaps well funded—can bring a case to an election court. There is no appeal; there is judicial review. It has far more powers, because it may not only deny a Member their seat, after potentially expensive processes, but ban them from standing for public office, as happened to Phil Woolas, which is a much tougher sanction than that which is proposed here. Is he suggesting that that should also happen, because a large amount of money could be used to challenge an MP who had just been elected, which I think is what he is concerned about?

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

The difference is that in the Woolas case in 2010 the complainant had to prove not just a level of expectation, but beyond reasonable doubt. There were full court proceedings and it was rightly determined—the hon. Gentleman has mentioned this—that Mr Woolas should be banned from holding office for a period of five years, I think.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

Apologies. Those were proper court proceedings that resulted in a verdict. New clause 2 and its associated amendments would simply require a reasonable expectation, which we believe would be an unsatisfactory mechanism at the moment.

The other group of amendments, which centre on amendment 15, would add a further mechanism for the opening of a recall petition: when a Member of Parliament has been convicted of the criminal offence of misconduct in public office. The difference between that gateway and the first gateway—conviction of a criminal offence—is that it is open even if the Member in question is not sent to jail. Although a conviction for that offence would normally follow a prosecution by the Crown Prosecution

Service, it could follow an incredibly expensive private prosecution, which again would place a Member of Parliament at the mercy of well-funded vested interest groups. There are those who genuinely believe that we should endorse that process, but the Opposition do not wish to see that US-style pact, with well-funded vested interest groups able to recall, tie up and bog down a Member of Parliament for four and a half years of a five-year Parliament.

We are also concerned that that route could be used not only as an alternative to the new clause 2 mechanism, but as a de facto appeal. That is to say, if the Member of Parliament’s opponents do not win on the first attack, they could simply regroup and come back with a private prosecution. Furthermore, that route has no minimum threshold, as it does not require even the 500 signatures that the hon. Gentleman has advocated for new clause 2.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I am following carefully what the hon. Gentleman is saying. Could not exactly the same be said of his point about expenses for parliamentarians? There is a similar issue with very specific offences that relate to fundamental aspects of the role, where conviction, even if not imprisonment, has to be taken seriously.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

The hon. Gentleman leads me perfectly to my final point. Our amendment 24 proposes that a further recall condition should be when a Member of Parliament has been convicted of the offence, as clearly set out in the Parliamentary Standards Act 2009, of the misuse of public funds, committing fraud against the public purse, which we believe—I hope that the whole House agrees—is completely incompatible with the role of a Member of Parliament. Some will recall a case in the last Parliament in which a right hon. Member—a shadow Minister—was investigated by the police for having been involved in the leaking of documents from the civil service to the Opposition. If that case had been taken up by the police and resulted in a prosecution, I do not believe, and my colleagues would agree, that the leaking of documents, which we would argue can be seen in the public interest, should have left that Member of Parliament open to recall. As the offence of misuse of public office is so vague, it does not involve the same prescriptive reasoning as the 2009 Act, and it is open to vexatious challenge.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down 5:00 pm, 24th November 2014

Will the hon. Gentleman add to the criticisms that he has kindly and very well articulated the point that new clause 2 and amendment 15 would leave Independent Members and Members who belong to small political parties extremely vulnerable because they could not afford to fend off multiple applications made under those provisions?

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

The hon. Lady is entirely right. There is significant concern, not only in Northern Ireland but in other parts of the United Kingdom, that repeated, harassing private prosecutions could be brought by well-funded groups.

By the admission of all concerned, more work still needs to be done on these two processes. It is less than satisfactory to be sending to the other place something that, by any standard, is not in a fit condition. To be clear, this House is being asked to delegate to the House of Lords responsibility for producing workable recall mechanisms. I regret to have to inform the hon. Member for Cambridge that I cannot, in good conscience, encourage colleagues to vote for new clause 2 and amendment 15 and their associated amendments, because it would be better if they were withdrawn and a fresh look at the whole issue was taken by the other place. May I make him an offer? If he withdraws his new clause and amendment, Labour peers will work with him and his Lib Dem colleagues to draft workable, robust and watertight proposals. We are clear that we are not giving up on the principle behind the new clause and amendment, and we urge him to take the same approach.

I want briefly to respond to the new clause and associated amendments tabled by my hon. Friend the Member for Foyle and others. We fully understand the rationale behind his new clause. The requirement that a Member of Parliament must take the oath before being allowed to represent the people who have elected them has placed not just his party—the Social Democratic and Labour party—but many others in an invidious position. The SDLP, in particular, has wrestled with this problem for many years, and I suspect that we are not going to solve it in one afternoon. He has raised a broader, quite interesting idea about whether the oath or pledge we undertake to fulfil is to our country as a whole or just to the constituents who may or may not have voted for us. I therefore suggest that the both the narrow question of whether the oath should be supplemented, or even replaced, by a pledge and the wider question of its purpose should be considered more fully.

The House will already be aware that the Labour party has proposed a constitutional convention that would meet after the general election to consider how we are governed, including the future shape, size and accountability of the second Chamber, and to examine codifying our constitution and reforming our political system. I urge my hon. Friend to seize that opportunity to make his case, as I am sure he will receive a sympathetic hearing. In that spirit, I urge him not to press his new clause to a vote but to ensure that his party plays a full part in the convention next year.

Photo of Greg Clark Greg Clark Minister of State (Universities and Science), Minister of State (Cabinet Office)

Thank you, Mr Speaker, for allowing me to speak at this stage of the debate to set out the Government’s views on the amendments and new clauses. It will not have escaped anyone’s notice, as hon. Members have said, that the Government have tabled no amendments on Report. That reflects our continuing view that the Bill, as drafted, meets fully and faithfully the commitment that our parties made in their 2010 election manifestos.

My party’s manifesto committed to

“introduce a power of ‘recall’ to allow electors to kick out MPs, a power that will be triggered by proven serious wrongdoing.”

The Liberal Democrats’ commitment was to

“introduce a recall system so that constituents could force a by-election for any MP found responsible for serious wrongdoing.”

The Labour party made a similar pledge.

Photo of Douglas Carswell Douglas Carswell UKIP, Clacton

Does my right hon. Friend think it is somewhat regrettable that the recall proposal does not actually have a recall mechanism in it? There is nothing in it that actually allows voters to have that binary referendum in their constituencies to decide whether or not to recall their MP.

Photo of Greg Clark Greg Clark Minister of State (Universities and Science), Minister of State (Cabinet Office)

The recall measure contained in the Bill is precisely that envisaged by the parties’ manifestos.

Throughout the passage of the Bill, the Government have made it clear that—beyond implementing our manifesto pledges—it is open to the House to make further amendments, and that, on the Government side of the House, they would be subject to a free vote, including by Ministers. Given that, all I want to do now is make some observations on the part of the Government about some of the advantages and disadvantages of the amendments in question. I repeat that it will be for the House to decide whether to adopt them.

I will first turn to the amendments tabled by Thomas Docherty. As he has said, amendments 16 and 17 would alter clause 2 to ensure that historical offences would be liable to trigger recall, which reflects a similar amendment tabled in Committee. As I said when I last stood at the Dispatch Box, there is a case that if an MP were elected and his or her constituents were unaware of the fact that he or she had committed a crime because it had not come to court, that MP might be said to have been elected on a false prospectus. Against that, as my hon. Friend Jacob Rees-Mogg has pointed out, it remains novel for legislation in this House to have what could be argued is a retrospective effect, and for a criminal act to have consequences—in this case, triggering recall as an MP—that were not the case when the act was committed.

Amendment 14, tabled by the hon. Member for Dunfermline and West Fife, would alter clause 1 to reduce the number of sitting days from 21 to 10, and the number of days if not expressed in sitting days from 28 to 14. It would also introduce a requirement that for a suspension to trigger recall it must follow on from a recommendation by the Standards Committee. Nevertheless, the length of time for which the MP would be suspended by the House may be different or the same as that recommended by the Standards Committee. That would ensure, as the hon. Gentleman has said, that an MP named by the Speaker for a second offence and suspended for 20 days would not be subject to a recall petition.

The argument in favour of the amendment is that more MPs would be caught by the provision who previously would have withstood the effect of recall. If the recall petition process had been in force with the threshold set at 10 sitting days, then of the 11 MPs suspended since 2000 seven would have met the condition for opening the process. Under a threshold of 21 sitting days, two MPs would have been caught. A further two MPs resigned before the suspension came into effect.

The argument against the proposed change is that the House may wish to impose its own suspensions—sometimes quite long ones—without the consequence of a recall process necessarily being triggered. In other words, the proposal would reduce the scope that the Standards Committee might have to issue sanctions without triggering the recall process.

Amendment 15, tabled in the name of my hon. Friend Dr Huppert, would mean that a Member of Parliament convicted of the common law offence of misconduct in public office would be subject to a recall petition process regardless of the sentence imposed. Misconduct in public office is a common law offence in England and Wales, punishable by a maximum sentence of life imprisonment. There is, however, no clear, exhaustive definition of what misconduct in public office covers. Action that amounts to misconduct is likely also to be contrary to other laws. The boundaries of the offence are not clearly defined, so they are uncertain. Despite there being relatively few prosecutions each year, a disproportionately high number of those cases are appealed against.

The common law offence of misconduct in public office does not exist in Scotland, so there is a risk that an MP from Scotland could commit the offence of misconduct in public office while working in Westminster given that the offence applies in England, but not if the offence took place while working in their constituency.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

The Minister is making an interesting point, but is it not the case that an MP taking any other action that was not a criminal offence under Scots law but was such an offence in Westminster could be punished for committing it in England but not for doing it in Scotland?

Photo of Greg Clark Greg Clark Minister of State (Universities and Science), Minister of State (Cabinet Office)

Indeed. From reading the minds of Members who are interested in, and sympathetic to, a provision of this kind, it is not clear to me that they intended to have different regimes in different parts of the United Kingdom, given that all of us have the common characteristic of being returned to serve in the United Kingdom Parliament after election by our constituents.

I want to address Opposition amendment 24 on the Parliamentary Standards Act 2009. The legislation was brought forward following the expenses scandal, and it deals directly with dishonest claims for MPs’ expenses. It is fair to say that that issue obviously provided some of the impetus behind the recall proposals in the first place. The offence in section 10 of providing false or misleading information in claims for allowances is intended to deal with the situation in which an MP provides information that he or she knows to be false or misleading. It does not cover innocent mistakes; we are talking about deliberately providing false information. So far, no prosecutions have been brought under the Act. I remind the House that the former MPs and peers who were convicted of fraudulent expenses claims were all sentenced to terms of imprisonment.

It seems to me that the question before the House on amendment 24, and indeed on the territorial aspects of amendment 15, is whether certain criminal convictions should be singled out as requiring treatment that is different from the treatment of other convictions. The trigger relates to imprisonment for other offences, many of which—including the Theft Act 1968—have been used to prosecute Members of Parliament. In considering this matter, the question in colleagues’ minds should be, to put it crudely, whether theft from a member of the public is less worthy of automatic sanction than theft through the IPSA expenses system. Treating those offences differently introduces a distinction that currently does not exist.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

Does the Minister however accept that that can happen in other professions? For example, a lorry or taxi driver who receives a driving-related conviction can lose their job, even though they are not disqualified from driving, because committing a driving offence is incompatible with being a professional driver. I am sure that the whole House would agree that the misuse of public funds—stealing from the taxpayer—is incompatible with being a Member of Parliament.

Photo of Greg Clark Greg Clark Minister of State (Universities and Science), Minister of State (Cabinet Office)

I accept that. As I have said, the Government’s view is that we should have a free vote on the amendments. I have pointed out the advantages of amendment 24, of which that is one, but it is fair to delineate the consequences. It would, for the very good reasons that the hon. Gentleman gave, put a particular type of criminal offence into the different category of being particularly worthy of sanction, but it carries the implication that some equally egregious and offensive action—clearly, any criminal conviction should be so regarded—would attract a lesser sanction. To put it bluntly, in many people’s minds, theft from a constituent may not be seen as lighter than theft from the parliamentary expenses system; they would both be equally worthy of condemnation. I make that point to clarify the choice facing the House.

I want to address the new clauses and the amendment tabled by Mark Durkan, which would introduce a new recall condition. New clause 4 would provide that, at the start of each Parliament, an MP had to subscribe to a pledge to act in accordance with the MPs’ code of conduct, and to uphold the standards of public life. Under new clause 5, if 500 of the MP’s constituents signed a petition complaining that the MP had breached the pledge, the election court could consider the matter and trigger the opening of a petition.

It came out in the debate, as the hon. Gentleman acknowledged, that his proposed system would overlap with the disciplinary system set up by the House, because nothing would prevent the election court from considering a matter that the Standards Committee had considered and come to a view on—perhaps a different view from that of the election court. It is not clear whether his proposal envisages public scrutiny of MPs’ compliance with the code of conduct superseding the role of the Standards Committee in recommending sanctions. In addition, it could be seen as setting the code of conduct on a statutory footing.

The hon. Member for Foyle said that he would not press his new clauses to the vote, but that he wanted to explore the matter. There may be opportunities in the House of Lords for him to reflect on the matter. [Interruption.] Perhaps not personally, unless he is elevated. He would know more about that than I do. I dare say that he has friends and colleagues in the other place who will attend to what he has said in this House.

It should be noted that the code expressly excludes regulating Members’ private and personal lives,

“unless such conduct significantly damages the reputation and integrity of the House of Commons as a whole or of its Members generally.”

I appreciate the aims of the hon. Member for Foyle. He recognises that it is necessary to refer to a set of rules or principles if a court is to judge whether a breach has occurred. The question that he has raised is whether the House’s code of conduct should be policed both here and in the courts. The fact that he will not press his new clauses to a vote means that it is not necessary to come to a definitive view on that.

Photo of Greg Clark Greg Clark Minister of State (Universities and Science), Minister of State (Cabinet Office)

The hon. Gentleman made that point clear in his speech.

The amendments and new clauses tabled by my hon. Friend the Member for Cambridge are a modified version of those tabled by my hon. Friend Mr Heath in Committee. The intentions of involving the public and taking the responsibility for judging other MPs’ behaviour away from MPs attracted support in Committee. The hon. Member for Dunfermline and West Fife expressed disappointment that those intentions had not been reflected in a Government amendment, as did my hon. Friend the Member for Cambridge in his blog. However, these issues are not easily captured in legislation in a way that avoids the pitfalls that have been mentioned in this debate. It is not for the want of trying, if I may put it in that way. It is for the House to take a view on the proposal if it is pressed to a vote.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

We will see what happens in the Division, but will the Minister assure us that the Government, with all their advice and lawyers, will seek to come up with a more workable proposal in the other place if we cannot get our proposal through in this place?

Photo of Greg Clark Greg Clark Minister of State (Universities and Science), Minister of State (Cabinet Office)

The Government’s demeanour throughout the debates on the Bill, if I may put it in this way, has been that we are open to facilitating the development of amendments and proposals that either House can debate. In conversations, I have been open to allowing officials to advise on the kinds of proposals that may or may not work legally. I see no reason why that should not continue. It is important to be clear that such proposals cannot carry the guarantee of a Government amendment, but I am happy to use my offices and those of my ministerial colleagues to have those conversations.

Photo of Chris Bryant Chris Bryant Shadow Minister (Work and Pensions)

I urge the Minister not to listen too much to Dr Huppert for the simple reason that there is a fundamental flaw in his proposals: we would be asking a court to make a judgment on whether such a petition should go forward on remarkably subjective terms. Each of the terms in his proposals—“trivial”, “vexatious”, “brought for party political purposes”, “misconduct”, “trust”—is entirely subjective and is surely not good enough for a court to be able to assess.

Photo of Greg Clark Greg Clark Minister of State (Universities and Science), Minister of State (Cabinet Office)

I said a few moments ago that it had not been possible, in good faith, for the Government to recommend an amendment that the House could responsibly be invited to support. Since further amendments or developments of the Bill are a matter for the House I will ensure that advice and help is provided, but these matters must be considered and there is no guarantee that a form can be found that avoids the practical difficulties. The hon. Gentleman’s more fundamental point is a matter for this House and the other place, and any amendments would return to this House to be determined.

Let me set out some of the challenges in the new clauses, although some have been expressed already. The definition of misconduct is based on the common law offence in England and Wales, but its test is not just the criminal offence. As drafted, it could capture behaviour that would not be a criminal offence, including in an MP’s private affairs, and it would be for the court to judge whether certain behaviour in a Member’s private life amounted to misconduct. The election court would have to apply the test of whether the MP had committed

“misconduct to such a degree as to amount to an abuse of the public’s trust”.

I understand and appreciate the aim of linking misconduct to an MP’s standing in the eyes of the public, but as drafted it is a rather subjective test. The House will want to take a view on the kinds of evidence and analysis that a court might draw on to judge whether the public at large felt there had been a betrayal of trust, including where no criminal offence was alleged to have been committed.

Photo of Paul Beresford Paul Beresford Conservative, Mole Valley

My right hon. Friend will be aware that that position has been discussed by the House as it relates to the Committee on Standards, and it was rejected.

Photo of Greg Clark Greg Clark Minister of State (Universities and Science), Minister of State (Cabinet Office)

I am grateful for that intervention. It is now clearly on the record and Members can reflect on the view taken by the Committee.

Let us consider the body that would make the judgment about alleged misconduct. Election courts are convened to consider cases that question the outcome of an election, and they do not meet unless a petition has been brought. At the end of the hearings, the court determines whether the election was valid or void, which can take several months to a year. The court has no investigative capacity but hears views from relevant parties. Giving this new role to an election court would mark a significant departure from current practice, and as I said, it lacks the capacity to launch an investigatory process. Furthermore, no appeal is provided for in the new clauses; indeed, the election court is not currently subject to appeal but only to limited judicial review. That raises the question of whether the election court model is the right basis for the proposal. If it is, I suspect that a number of questions could usefully be asked when fleshing out the detail, including whether there should be an appeals mechanism.

My hon. Friend the Member for Cambridge proposes to set the number of petitioners necessary for the election court to consider an allegation of misconduct at 500. Of course, if it is alleged that a criminal offence has been committed it takes only one person to make a complaint and to have it investigated by the police. Arguably, if the complaint is valid, it should be taken forward regardless of the number of complainants. On the other hand, as a test of popular will the House will want to take a view on the right number of petitioners. The new clause increases to 15% the percentage of electors who need to sign the petition to trigger recall, which is higher than for the other conditions. However, 500 is a lower threshold for the initial trigger.

If there are to be such additional triggers in the Bill, the House must consider whether to set out the relationships, or hierarchy, between the different recall conditions. An election court could look at issues that could also be considered by the Committee on Standards, which operates on a trigger, or by the police as the gateway to a criminal conviction. If the defence was rehearsed before an election court, or if the court’s finding was considered prejudicial to an MP’s presumption of innocence, it may not be possible for them to have a fair trial. The fact that an MP had to answer allegations in an election court could prevent him or her from facing criminal prosecution for misconduct that amounts to a criminal offence.

Finally, let me turn to the issue of parliamentary privilege. New clause 3 includes a provision stating that section 9 of the Bill of Rights will not be affected. I understand that this is intended to ensure that privileged matters are not the subject of judgment by the electoral court. However, the use of the word “affecting” could be read in one of two contradictory ways by a court: either as a statement that privilege matters are excluded; or as an admission that the Bill overrides the Bill of Rights, and therefore impacts on privilege but only for these limited purposes, thereby inviting an election court to consider privileged issues as part of a case. If an exclusion is desired, it could benefit from clarification.

In conclusion, the Government were clear on Second Reading that we are open to ways to improve the Bill and we stand by that commitment. My intention has been to summarise and highlight some of the points the current drafting raises. It is right that the House votes in full knowledge of the technical and policy challenges that remain, as well as the principles behind the amendments. I look forward to hearing the views expressed during the remaining part of this debate.

Photo of Angela Watkinson Angela Watkinson Conservative, Hornchurch and Upminster

I support the principle of the Bill: to enable the recall of MPs between general elections if they are considered to have conducted themselves in a grossly unacceptable or inappropriate manner that has led either to a custodial sentence or a suspension from the House of Commons for a period of at least 21 sitting days. Sentences of more than 12 months already lead to automatic disqualification under section 1 of the Representation of the People Act 1981. A third trigger has been proposed, in new clause 2, for a petition signed by 500 people to present allegations of improper behaviour. Presumably, this would not relate to illegal conduct, which would have already led to arrest and charge. I urge caution, because I think this opens up a whole debate on the interpretation of the word “improper”, which will mean different things to different people. An MP’s prolonged absence from the House of Commons without good reason would not be a criminal offence, but it would leave constituents effectively unrepresented and might justify a recall petition on the grounds of wholly improper conduct.

I did not support proposals in Committee for recall by 5% of the electorate for any reason. I predict that “any reason” could comprise such a wide spectrum as to invite frivolous petitions and could include, for example, disapproval of an MP’s political or religious views on controversial subjects such as: a Member’s sexual orientation, entering a same-sex marriage, capital punishment, euthanasia, abortion, smoking, hunting, alcohol, drugs, gambling and local planning matters. We could all think of any number of reasons that would give rise to frequent vexatious recall attempts of MPs with views that are unpopular with certain sections of their electorate. Recall could be generated easily by well-funded pressure groups or individuals, with all the associated costs to the taxpayer.

I am also concerned that 500 constituents would form a very small percentage of the electorate. In a constituency of 85,000, 500 would be way below 1%. I have not done the exact calculation, but it would be somewhere between 0.5% and 1%. I am sure somebody is scribbling away already to give me the exact figure. That threshold is far too low, and for that reason I will not support new clause 2, new clause 5 or the related amendment 34. Every Member of this House will know that an accusation against one of our number reflects on each and every one of us, and on Parliament as a whole. The blame falls collectively and the media rejoice in referring to MPs as though all 650 of us are guilty of something of which one or a very small number stand accused. We need to guard against a “guilty until proven innocent” culture, where an MP may be destroyed reputationally and financially, and then, when cleared, finds that the damage is irreparable.

New clause 4 proposes an MP’s pledge. This has some merit, although I have always assumed that its contents were implied when an MP is sworn into this House. The pledge would reinforce that, although I do not take comfort, as Mark Durkan does, that its contents would reassure the general public or help to deter vexatious accusations.

I wish to relate my comments to the work of the Committee on Standards in Public Life. For anyone unfamiliar with this body, it does exactly what it says on the tin: it looks into matters relating to standards in public services and to public servants, including, of course, MPs. Its membership comprises one person from each of the three main political parties: Labour is represented by Margaret Beckett, the Liberal Democrats by Lord Alderdice and the Conservatives by me. The other members do not declare their political affinity, and our deliberations are apolitical. Our investigations include wide research, public and professional consultation and seminars that interested parties may attend and to which they may contribute their views and proposals. It then analyses its findings and publishes a report. The common thread running through all the responses to our recent investigation into strengthening transparency around lobbying was the expectation of transparency. The slightest whiff of secrecy, deals done behind closed doors, collusion or corruption causes great concern.

The Chairman of the Committee, Lord Bew, has written about the importance of public perception and the complex ethical scenarios and possible conflicts of interest that need to be explored at the outset of an individual’s public service to avoid impropriety of any sort. To this end, the Committee recommended the establishment of an induction course for newly elected MPs to make them aware of the duties, responsibilities and expectations attached to the role of the MP in Parliament, in their constituency and in their personal conduct.

New Members are being attracted from an increasingly wide range of professional experience, which has been hugely beneficial to Parliament, because they bring with them additional areas of knowledge, expertise and experience, but coming to this place from a different professional environment can be a culture shock. Our procedures are complex and newly elected MPs need to know what is appropriate and acceptable, and—more importantly—what is not. The proposal for an induction course has received encouraging first reactions, and I hope that the parliamentary Committee on Standards will consider the recommendations in our lobbying report when forming its proposals for changes to the code of conduct and guide to the rules as part of the long-term review of the Common’s standards system.

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Deputy Speaker and Chairman of Ways and Means, Chairman of Ways and Means 5:30 pm, 24th November 2014

Order. We are dealing with the new clauses and amendments. The hon. Lady’s comments might relate to some of the amendments, but she will want to bring her remarks back within the scope of the discussion.

Photo of Angela Watkinson Angela Watkinson Conservative, Hornchurch and Upminster

Thank you, Mr Deputy Speaker.

To conclude, when he winds up the debate, I hope that the Minister will indicate that an induction course for new Members after the 2015 general election will be put in place.

Photo of Chris Bryant Chris Bryant Shadow Minister (Work and Pensions)

I will restrict my comments to new clause 3, tabled by Dr Huppert and others.

In the first round of these debates a few weeks ago, I supported the amendments tabled by Zac Goldsmith because I wanted a fuller system of recall that gave voters the opportunity to decide when a recall should be advanced, rather than keeping such decisions entirely within the House. At the time, I recognised the honest and honourable endeavour of the hon. Member for Cambridge and others in his party to find another way of opening up that gate, were the amendments tabled by the hon. Member for Richmond Park to fail.

I must say, however, that I have profound misgivings about the new clause. First, many of the terms are imprecise. I heard the hon. Gentleman say that they were all common- law terms. That is true, but we are putting common-law terms in statute law, and quite often that leads to a difficult situation for courts and judges to provide decisions around. It gets much more complicated in that kind of environment, because they are looking for a steer—what did Parliament really intend by putting a common-law term into statute law?

For instance, new clause 3(5) sets out the condition that

“the court considers, on the basis of such evidence, that the allegation of misconduct is—

(a) not supported by the evidence”.

I think that is a fairly readily understandable concept; however, subsection (5) continues:

“or…trivial or vexatious in nature”.

I would suggest that they are two different categories and have generally been treated differently in common-law decision making. Yes, there is case law that relates to that—sometimes the court has said to the Crown Prosecution Service, “I’m sorry, this should not be considered because it is inadequately serious.” However, it is difficult to import that into this kind of decision.

Then we have the phrase

“brought for party political purposes”.

I cannot conceive of a political argument that I have not advanced for a party political purpose. Maybe that makes me immensely partisan—[Interruption]—although I think that every Member who just said, “You said it,” or, “Hear, hear,” was being partisan in the very way they advanced that argument, or at least one could argue that. That is my central point: anybody could argue that any argument was being made for a party political or not for a party political purpose. Guessing what was in the minds of the 500 people who brought the case—500 minds, incidentally, that the court would have to consider in deciding whether something had been done for party political purposes, not one mind—makes a bit of a mockery of that phrase.

There is also a problem with what, precisely, it is that the court is deciding that the Member would have done. New clause 3(4) says:

“The court must consider whether, on the basis of such evidence, it is reasonable to believe that the MP has misconducted”—

I do not like that word for a start, which seems remarkably American in tone—

“himself or herself, to such a degree as to amount to an abuse of the public’s trust in the MP, without reasonable excuse or justification.”

It seems to me that it would be almost impossible ever to adjudicate on such a term. How does one know that the misconduct is of such a degree that the public’s trust in the MP could or should be abandoned? We might be able to determine whether it had been, but I cannot see how a court could determine that the misconduct was of such a degree that the public should have lost their trust in the Member of Parliament, even if they might not have done so, other than the 500 people before the court. And what is this “reasonable excuse”? The concept of “reasonable” is well used in the courts, but what about reasonable excuse? Normally, the reasons for appeal are presented in statute law; in this case it is just a “reasonable excuse,” and we cannot possibly arrive at a decision about what that might be.

Photo of Chris Bryant Chris Bryant Shadow Minister (Work and Pensions)

Oh, all right, but I am trying to be quick.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I do understand; it is a shame we could not have had these interactions earlier, during my speech. The wording is taken from the Attorney-General’s reference No. 3 of 2003, which says:

“The offence is committed when a public officer acting as such wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder without reasonable excuse or justification”.

The wording is already extant.

Photo of Chris Bryant Chris Bryant Shadow Minister (Work and Pensions)

Yes, and it is remarkably poorly used, for the simple reason that it is regularly taken to appeal—[Interruption.] If the hon. Gentleman wants to intervene again, I would be happy to give way to him, although I would probably be being generous with other people’s time rather than my own.

My argument is that these are imprecise terms. That is not a good way of legislating, not least because at the moment that a court decided that there had been misconduct such as that on which the hon. Gentleman wants it to decide and that none of the get-out clauses in new clause 3(5) applied, to all intents and purposes the court would have decided, in the public mind, that the Member of Parliament was guilty—end of story—and I cannot see how that would not affect whatever might happen in a subsequent recall.

I have one final problem with the drafting. I understand why the hon. Member for Cambridge has provided in subsection (7):

“Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.”

That appears because several Members have pointed out that there is a problem: if the Bill of Rights says that no proceeding in Parliament should be “impeached or questioned” in any court of law or any other place, it would be a bit rum for a court expressly to be told that it can go forward on the basis of whether or not an MP has “misconducted” themselves in a proceeding in Parliament. The new clause expressly says that one of the criteria that can be considered is “conduct”, whether it be as a Member of Parliament or not—completely and utterly irrelevantly.

I believe that there is a fundamental contradiction in the new clause. Under it, the court could decide that how somebody had spoken in Parliament or engaged in a proceeding in Parliament could be considered as relevant to a misconduct hearing. That would limit free speech, which we should guard jealously in this House, and, essentially, undo the Bill of Rights. It is a contradictory provision. For all those reasons, I could not support new clause 3, tabled by the hon. Member for Cambridge.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I am in a good deal of agreement with Chris Bryant. I came into this debate, most unusually, undecided as to how I was going to vote. No guidance was provided from the Whips about how I ought to vote, which I view as a great advance. It is to the great credit of my right hon. Friend Michael Gove that he is not trying to tell people how to vote. It shows a considerable wisdom to return to the traditional practice of having free votes on constitutional matters. I hope that this will be continued by other parties and in other Parliaments. [Interruption.] The hon. Member for Rhondda says that I do anyway, and he is probably broadly right, but I think this should be encouraged across the House.

I was interested in new clauses 2 and 3. There is a need and desire to widen the ability for recall and to make it easier for constituents to remove Members of Parliament who they think have behaved improperly. The main thrust of the Bill is too narrow, which is a lost opportunity but not a fatal one because it can be developed in future Parliaments. Constitutional development often happens at a slow pace, which is not something I am against.

I think we want constitutional reform to take place at a pace with which people are broadly comfortable and that carries the nation with it.

New clauses 2 and 3, however, fundamentally misfire. Instead of making this something that will be decided by the electorate, the provisions introduce a third party—the courts—to try to determine what the hon. Member for Rhondda rightly pointed out are fundamentally political issues. The restrictions to which he referred, particularly the third example where the misconduct case is “brought for party political” reasons, are a complete negation of what is being tried to be achieved. Any complaint must be brought for party political reasons, and any attempt to unseat a Member of Parliament is going to be carried out by somebody who has a party political affiliation of some kind, and it will be to the benefit of a political party to remove a Member of Parliament from another party. Even if the petition and process were started by some wonderfully high-minded figure, of which I am glad to say we have a very large number in North East Somerset, politicians would get involved in it because they would see the advantage, particularly if the Government had only a small majority, of removing a Member of Parliament or indeed of causing such inconvenience that would make it almost impossible for that Member of Parliament to continue in office.

Another issue involved is the legal costs. Are we to provide a fund to help Members of Parliament defend themselves in these circumstances, or do we find that the Member of Parliament could be bankrupted by the very process—to see whether he had committed misconduct in public office—and thus removed from Parliament anyway, even though the misconduct in public office could not, in the event, be proved?

We in this House have always sought to keep the courts out of our own proceedings. There seem to me to be two valid sets of people who can intervene in our proceedings: the general public who send us here, and who have an absolute right not to send us here but to send other people in our place; and our own systems, procedures and Committees, which are able to regulate internal goings-on in the House—a right that we declared long before we achieved it in the Bill of Rights.

As I listened to the hon. Member for Rhondda, I remembered a gentleman whose name was, I believe, Ron Brown, a Labour Member of Parliament in the 1980s who, in the midst of proceedings in Parliament, picked up the Mace, waved it around, and—unlike my noble Friend Lord Heseltine—dropped it. As a result, the Mace was damaged, and it was sent off to Garrard, the then Crown jeweller, to be repaired. Ron Brown was faced with a bill and a suspension. However, he had acted because of his passionate belief about whatever the political topic of the day had been. That was a proceeding in Parliament, but it was certainly misconduct.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons 5:45 pm, 24th November 2014

As ever, I am enjoying the hon. Gentleman’s fascinating yet “in order” tour de force, but let me gently remind him that our proposals would exempt Members who fell below the standards that the Chair expected. Mr Brown, whatever else his flaws may have been, would not have been covered by recall.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I am grateful to the hon. Gentleman for his comment, but I am still discussing new clauses 2 and 3. I have not yet moved on to his amendments, towards many of which I am very sympathetic. What concerns me about the new clauses is that they would allow the courts to rule on what was going on in the House. It is very important to prevent that from happening, both from our point of view and from the point of view of the courts. The courts are rightly reluctant to rule on what they believe to be fundamentally political decisions, and it seems to me that new clauses 2 and 3 would give them authority in regard to fundamentally political decisions, such as whether someone’s standard had been that of a decent Member of Parliament who had committed no offence.

Photo of Chris Bryant Chris Bryant Shadow Minister (Work and Pensions)

The hon. Gentleman may be interested to know that so reluctant are the courts—and rightly so—to judge on any proceedings in Parliament that when the court was considering whether Rebekah Brooks had ever paid a police officer for information, it was not allowed even to consider the fact that when asked on 11 March 2003, during a proceeding in Parliament, whether she had paid a police officer, she had said “Yes.”

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I happen to think that that is absolutely right, both from our point of view and from the point of view of the courts. It is important that our proceedings allow people to be honest and to speak freely without incriminating themselves, and that must be a protection that we seek to maintain. I think that if we undermine it by bringing the courts into the details of the behaviour of Members of Parliament, we will fail. I would go in the opposite direction. Like my hon. Friend Zac Goldsmith, I would go the whole way and leave it to the British electorate. I would place my trust in them, and let them get on with it. But the worst of all solutions—worse even than a Committee of chums somewhere upstairs deciding that we have all behaved beautifully—is to involve the court system.

I also cannot agree with Mark Durkan, which is rare, because I often do agree with him. He has proposed a “pledge” in new clause 4. I do not like the pledge. I think that it reads as a sort of bureaucratic announcement that we are all going to do good things, in that awful “speak” that is so common in conferences, about how you should be a leader and grab hold of your management skills, and all that waffle.

I do not like that at all. It does not accord with my vision of myself as a Member of Parliament. I think that Members of Parliament are here at the service of their constituents, and that their constituents will judge whether they are doing their job properly, rather than someone’s saying that they have not shown leadership. What on earth does “showing leadership” mean? If you are the Prime Minister it is easy, but what is a Back-Bench MP meant to do? [Interruption.] The Prime Minister always shows wonderful, clear, decisive leadership. Thomas Docherty is cackling from his Front Bench. Many people think it is a pity that he did not show leadership by trying to become leader of the Scottish socialists, which would have been very welcome.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

Or even the Scottish Labour party, which is much the same thing.

I do not think this presents the right image of what a Member of Parliament is trying to be. A Member of Parliament is not trying to be some sort of second-tier bureaucrat. A Member of Parliament is someone who is there to represent his or her constituents, to take a view on the interests of the nation, both nationally and internationally, to stand up and be counted on the basis of what he or she says or does, and then to be held to account by the electorate, rather than making some waffly pledge.

I also think that in trying to get away from the oath we already take, it fundamentally misunderstands the purpose of the oath. The purpose of the oath is not to show we do not want to change the laws, and it is not to show even that we are necessarily monarchists—although, for the avoidance of doubt, I certainly am—but it is to show that we accept the norms and standards of the country as they currently exist and are willing to use those to change the law through Parliament, and subscribing to that is an indication that a Member of Parliament will behave properly in seeking change, rather than do it in a demagogic or potentially violent fashion. Therefore the oath as a statement of loyalty to the nation via the sovereign is a very important statement and does not preclude people from holding republican views. It merely requires them to express them and act upon them in a parliamentary and legal fashion. I think that is an important distinction and it is why I would oppose new clause 4 and it follows that I would oppose new clause 5. I also think, as I said in an intervention on the hon. Member for Foyle, that the two did not go together—that trying to give it to the people and then giving it to a court did not work.

I want to finish very briefly on the amendments from the hon. Member for Dunfermline and West Fife. By and large I think they are extremely well considered. I believe that the right of recall should be as wide as it can possibly be made. I would like it to be more generous, and therefore reducing the threshold is sensible. It is obviously sensible, in the atmosphere over the last few years and considering the sensitivity of expenses, to say that somebody who has committed an offence in claiming their expenses ought to face the risk of recall. That ought to be a basis of it because it shows that somebody in this House has behaved badly in their basic terms of membership of this House, so I completely support that, but I cannot support the final amendment on retrospection. I think this is unjust. I see the reasons for it and the case the hon. Gentleman made about the Member of the Scottish Parliament who had committed many serious crimes, but it indicates a problem with the establishment of the Scottish Parliament that it could not do anything about that.

I also accept that somebody at, let us say, 30 who goes out and robs a bank is not thinking, “Good heavens, if I get into the House of Commons in five years’ time, I may lose my membership because that may be part of the penalty.” I am sure they are thinking more immediately about the risk of a police officer being there and catching them in the act and hauling them off to chokey, but none the less it is unfair to penalise people in a way they did not know could apply to them before they committed the offence, and if this House does not stand up pedantically for the rule of law, nobody will.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

Does the hon. Gentleman wish to say something? He is wavering about whether to intervene. I may be persuading him; he may wish to withdraw his amendment on the strength of what I am saying.

There is a further protection, which has been overlooked throughout this whole debate on the issue of recall, and that is that if the behaviour is so egregious—so shocking to all good common sense—then this House of Commons has the right to expel that Member anyway. We should not forget that, or allow it to wither on the vine.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

Given that this Act will, assuming it clears the Lords, come into force at the start of the next Parliament, does the hon. Gentleman not recognise that anyone who chooses to stand for election at the general election on 7 May would know that, if they had committed an offence for which they were then prosecuted and found guilty, they would be subject to recall?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

The hon. Gentleman puts as good a gloss on it as he can, but I do not think it changes the fundamental principle. We could equally say that a Member of Parliament who had committed an offence should be subject to double the time in prison, regardless of when the offence was committed. That would be fundamentally unjust. If we were to say that from tomorrow Members of Parliament who commit an offence should have double the time in prison, that would not be unjust. That would be simply saying that Members of Parliament should be held to a higher standard, and that is perfectly arguable, but to say for an offence committed previously that the punishment can be increased is to act against justice and that is something it is important not to do.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

But that is exactly what happened with police and crime commissioners in legislation for which I presume the hon. Gentleman voted. If they have ever been convicted of an imprisonable offence, they are debarred from the office.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I think the PCCs are rather an irrelevance to what we are discussing and I want to remain in order. I believe it is important to be pedantic about upholding the rule of law, and therefore I will oppose that amendment from the hon. Member for Dunfermline and West Fife. I will support his other ones, but I must reject the proposal that we bring the courts—

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

I am grateful to the hon. Gentleman for allowing me to intervene. May I put a proposition to him which is a possibility? On 17 July Lady Justice Hallett’s report was published and a statement was made by the Secretary of State for Northern Ireland. In that report, it was identified that 14 terrorists of the republican movement had been granted the royal prerogative of mercy. They are unnamed, but it is believed they might include senior politicians representing Sinn Fein. If the names of those 14 recipients of the RPM whom we know to be republican terrorists were to be revealed and included a Member of this House, would the hon. Gentleman think differently?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I always give way to the hon. Lady and she always then serves up the most impossible and difficult interventions. I think she is the Michael Holding of interventions, with these very fast balls being bowled at me. My stumps have disappeared behind me, but what I would say is that I would apply exactly the same rules to those people as to anybody else.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

If someone commits an offence currently for which the sentence tariff is less than one year, it is quite reasonable that in future the House of Commons may change the disqualification Act to bring that disqualification down to less than one year. That would equally apply to them. Why does the hon. Gentleman not think that this House has the right to recall somebody who has committed offences prior to this date?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I am not sure the hon. Gentleman is right about that because, interestingly, the ability to expel peers very carefully ensured it was not retrospective to the crime or to the sentence. It was right to adopt the principle that it is fundamentally unjust to punish people when they did not know that was the punishment at the time when they committed the offence, so I must oppose his amendment.

Photo of Conor Burns Conor Burns Conservative, Bournemouth West

My hon. Friend will see that sometimes when the courts come to sentence someone who is brought before them for an offence committed many years previously, they are obliged to look at the sentencing guidelines that applied at the time of the offence. The case he is making is absolutely right: we cannot have retrospective cases such as this.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I entirely agree with my hon. Friend and we have seen this in some of the recent celebrity sex offending cases: people have been sentenced under the old rules. That is a good principle of law and this House ought to maintain good principles of law. That is why we should reject that amendment, and reject the amendments of my hon. Friend Dr Huppert, because they bring the courts into our proceedings, but I think we should accept the amendments of the hon. Member for Dunfermline and West Fife that allow more free-flowing recall, because ultimately we should trust the good sense of the British people, especially those in Somerset where most good sense is to be found.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

As usual, it is a great honour to follow my hon. Friend Jacob Rees-Mogg. May I start by agreeing very much with him about the issue of retrospective penalty? It is more than guidelines; it is a fundamental principle of the law of England and Wales that penalties do not apply retrospectively. I have prosecuted and, for that matter, defended cases in court which are often historical offences—this relates particularly to sexual offences, but it can relate to other types of offence as well—where the penalties have moved on and often been increased in the intervening years. The historical sex offence with which the individual defendant is charged carries a maximum that no longer applies, but the court is bound by the maximum sentence that was in place at the time of the offence.

Photo of Thomas Docherty Thomas Docherty Shadow Deputy Leader of the House of Commons

I accept the hon. Gentleman’s point that the sentence must reflect the crime, but the 1981 Act applied to cases prior to 1981. If an offence came to light now that was committed prior to 1981 and a sentence of a year and a day was handed down, the person would be disqualified.

Photo of Michael Ellis Michael Ellis Conservative, Northampton North

There is nothing objectionable about a disqualification provision for those persons who have previous convictions, so the point that was made earlier about police and crime commissioners is not the point that I am addressing. The point in respect of retrospective penalty is the one that I have made—that to pass a penalty that did not apply when the offence was committed is contrary to natural justice and the provisions of English law as it has always existed.

I voted for real recall, as it is called, proposed by my hon. Friend Zac Goldsmith. I very much support the provision that would allow the electorate to have their say in this matter, but the amendments are unconvincing. Misconduct in public office is another offence that I have prosecuted. Those prosecutions often related to police officers who had misconducted themselves, for example, through the misuse of the police national computer for their own personal reasons. Intervening courts are not the right way of processing the issues that we are addressing here. It should be a matter for the electorate.

I am unconvinced by new clause 4 and the pledge, as was my hon. Friend the Member for North East Somerset. The oath that we already take covers the circumstance. When we as Members of Parliament take an oath to be faithful and bear true allegiance, that encompasses a duty on us to uphold standards in public life. Therefore I am not convinced by the assertion by Mark Durkan that another oath is necessary.

An election court is unnecessary and would be a departure from our practice. The election courts that we currently have do not exist 365 days a year. They are brought into existence only on a petition, in very exceptional circumstances. They are rarely established. They are not investigative, so they cannot investigate matters as we would envisage them wanting to do. There is no process of appeal, so an election court would not be the right basis. It would also be bureaucratic and expensive.

The amendments attempt to bring the electorate out of the equation and to put the matter in the hands of third-party expensive and bureaucratic interests, which I do not support. I have doubts about the reduction to 10 days because those persons who are found to have been rude, who have not apologised to the House, or who have done something that falls below the standards expected should not be open to such a provision.

I support real recall. The amendments are in many cases a device to avoid public scrutiny. The electorate should have a say in the matter. Those are my views.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

We have had an interesting and somewhat complex debate, and it is good to have more Members present at the end making arguments than there were at the beginning to hear the arguments made in the first place. It seems clear that there are those who agree with the principle of new clause 2 but not with the detail of it, there are those who oppose the principle of it, and there are those who oppose the principle of extending recall at all. It would not be appropriate for this House to delegate to the other place all our decisions about how we should be recalled. I therefore wish to test the opinion of the House on new clause 2 to see how many Members support that option in principle. I wish to press amendment 15 as well, because I believe the House would want to say that any MP who has been convicted of misconduct in a public office should be subject to recall.

Question put, That the clause be read a Second time.

The House divided:

Ayes 64, Noes 271.

Division number 91

See full list of votes (From The Public Whip)

Aye

No

Question accordingly negatived.