On this day in 2015, the Recall of MPs Act received Royal Assent. In this blog, Matthew Hanney reflects on his work on the Bill during his time advising Sir Nick Clegg and what those in favour of electoral reform today can learn from Recall.
Recall was never meant to be the most enduring constitutional reform delivered by the Liberal Democrats in their first stint in government in the best part of a century. In the minds of generations of Liberal thinkers that mantle should have been claimed by either electoral reform for the House of Commons or finishing the job of reforming the House of Lords. However, a decade after the Recall of MPs Act received Royal Assent, it is a claim that can be reasonably made. This article looks at how the Act came to pass, the decisions taken in bringing it into being and the lessons that might be learnt from its apparent relative success.
It was the MPs expenses scandal that triggered widespread support for the idea of some version of Recall in the UK. In particular, there was widespread concern that disgraced, and often whip-less, MPs were able to in effect squat in parliament until the next General Election without their electorate being able to hold them to account. This led to it being one of the relatively rare policies to make it into all three major parties’ manifestos in the 2010 General Election and in turn to form part of the 2010 Coalition Agreement between the Liberal Democrats and the Conservative Party. This committed the Coalition Government to “bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP is found to have engaged in serious wrongdoing and having had a petition calling for a by-election signed by 10% of his or her constituents.”
The central challenge those of us charged with turning this commitment into legislation faced was in how to define “serious wrongdoing,” and it was on this point that much of the debate during the passage of the bill focussed. On one side, the Recall “purists” - who wanted a Recall mechanism more akin to that in California - proposed that the electorate themselves be able to initiate the process through petition. On the other side, some MPs argued that any Recall process would be open to partisan or ideological abuse which could hamper the free will of MPs, and that General Elections give the electorate sufficient opportunity to pass judgement on MPs.
The three triggers that Ministers decided upon was:
The first two of these were largely uncontroversial during the bill’s passage[1]; however, the length of suspension period in the third triggered significant debate. Ministers originally proposed the trigger be 30 days, but after parliamentary and public debate, Ministers judged that the balance of argument and opinion was that the Government’s initial Bill could be made more rigorous, and as such reduced the trigger from 30 days to 10 days. However, it is precisely this point that has more recently provoked criticism from some MPs.
In recent evidence to the House of Commons Committee on Standards, Leader of the House Penny Mordaunt and Cabinet Office Minister Alex Burghart both expressed concerns around the 10-day suspension trigger. As Mordaunt put it: “by the original legislation having gone from 30 to 10 days, it does not give you a lot of options. That is the chief concern.”[2] This commentary and criticism is also a reflection of the success, or at least relevance, the Act is now regarded as having on British politics. The Economist, amongst others, have now noticed Recall is now starting to have a material impact on British politics and the British constitution.
As the House of Commons Library records, there have been now more than ten occurrences of Recall petitions being initiated or MPs resigning on the basis they were expected, mostly notably in the case of the former Prime Minister, Boris Johnson. So, the suggestion from Zac Goldsmith that the Recall Bill was drafted such that “the criteria are so narrow as to render it highly unlikely any MP could be recalled” have been proven inaccurate. Indeed, it seems reasonable to argue that some of those MPs – such as David Warbuton – who had their party whip removed and seemed certain to not stand again at the next General Election, stood down because of the prospect of a Recall petition; whereas in previous parliaments they may have decided to limp on until the election.
Given the relatively large government majority in the current parliament, the losses in by-elections triggered by Recall have not meaningfully altered parliamentary arithmetic or the overall balance of power. However, the Brecon and Radnorshire Recall and then by-election in 2019 – which saw a Liberal Democrat gain from the Conservatives – showed how in a parliament with a narrow (or no) government majority, Recall triggered by-elections could have important consequences for House of Commons votes. While we can never be certain how such power might have hypothetically be used in previous parliaments, it seems likely that at least some of the “Back to Basics” scandals of the 1992-97 parliament – perhaps most obviously “cash for questions”, given Scott Benton's resignation yesterday ahead of a Recall petition after he told undercover reporters that he could lobby ministers on behalf of the gambling industry – would have led to further by-election defeats for Major’s fragile administration.
While it is still fairly early days for Recall, in terms of British constitutional change at least, it is also worth noting that, thus far, concerns about the abuse of the Recall mechanism have not manifested themselves. With the possible, much debated exception of the Boris Johnson case, there has been no suggestion that any of the Recall petitions have had any inappropriate ideological motivation. And there is no evidence that minority opinions in Parliament have been suppressed through the use and abuse of Recall. Indeed, as the case the of Ian Paisley demonstrated, if an MP is able to keep the confidence of their electorate then simply being eligible for a Recall petition is no guarantee that an MP will be recalled. The option for recalled MPs to choose to defend their seats – a choice Ministers made which differs from some Recall systems – remains an additional backstop.
I do not claim to be an impartial observer, but the limited yet meaningful use of Recall over the last nine years to give the electorate the chance to remove disgraced MPs without needing to wait for a General Election appears to have strengthened to the working of the UK’s parliamentary democracy without upsetting its fundamental architecture. Furthermore, I think some lessons can be drawn for those who wish to deliver other possible future constitutional reforms. Of course, the cross-party support that Recall, at least in theory, enjoyed is an obvious point in its favour. However, as the Coalition’s failure to deliver reform of the House of Lords shows, that is not necessarily a guarantee of success.
Instead, here are four criteria that I believe were important to the success of Recall:
So, what possible constitutional reform meet these criteria? It may seem something of a stretch, but Proportional Representation (PR), and more specifically Single-Transferable-Vote (STV), for English local government is a surprisingly credible candidate on these criteria. The immediate crisis issue is that many local councils have gone, or may do soon, effectively bankrupt. The proximate causes of these vary but poor governance is likely to be a major reason in many (criteria 1 above). Simply put, there may soon be quite compelling evidence that English local government structures are broken, and so do require fixing.
A move to STV would be unlikely to change the leadership of many Councils (criteria 2), instead it would likely mean that more were Coalition administrations than currently – but this would be evolution and not revolution. Most local government wards are already multi-member wards so the move to STV could be done very easily and without any material additional cost (criteria 3) and, of course, Scotland and Northern Ireland already have this system at local government level.[4] The partisan benefit test of criteria 4 is perhaps the most problematic; however, all the three main parties of English local government are clearly over-represented in some councils and under-represented in others so none would clearly benefit or lose significantly from this in the long-term, though the Green, and possibly Reform would be likely winners.[5]
STV for English local government might seem far-fetched currently; but so was Recall in 2008…
Matthew Hanney was a Special Adviser to Nick Clegg during the 2010-15 Coalition Government.
References:
[1] That said, the Claudia Webbe case has shown what is potentially a loophole between the triggers whereby a non-custodial sentence doesn’t trigger Recall.
[2] Interestingly in the same evidence session, Mike Clancy (General Secretary at Prospect) and Dave Pennan (General Secretary at FDA) both endorsed Recall as an effective mechanism for helping to uphold standards of MPs' behaviour.
[3] The evidence base is obviously too small to draw any detailed conclusions on this point, but it may be that parties that have been in government for multiple terms see more MPs recalled due to the lack of discipline and ennui that can take hold on government backbenches in such circumstances.
[4] Welsh councils can now choose themselves to introduce it too.
[5] Make Votes Matter - What If? London's local elections under STV does a good job of demonstrating this in recent London local elections.