Senedd Cymru | Welsh Parliament
Pwyllgor y Bil Atebolrwydd Aelodau | Member Accountability Bill Committee
Bil Senedd Cymru (Atebolrwydd Aelodau ac Etholiadau) | Senedd Cymru (Member Accountability and Elections) Bill
Ymateb gan Paul Evans a Syr Paul Silk| Evidence from Paul Evans and Sir Paul Silk
1. We jointly submit this Memorandum to the Committee in its inquiry into the Senedd Cymru (Member Accountability and Elections) Bill (“the Bill”). We are former senior parliamentary officials. We each have experience of the House of Commons and Paul Silk additionally of Cardiff Bay. We also both share the experience of having been electors in the then Brecon and Radnorshire Westminster parliamentary constituency where a recall petition was upheld in 2019.
2. There was much scepticism about the Recall of MPs Act 2015 at the time it was proposed. However, in the ten years since it was passed it has proved to be effective in delivering the outcomes which the framers of the Act seem to have intended – to give electors some say in whether their representative should continue in office after having breached certain ethical standards. There have been five recall petitions under its provisions, four of which have reached the threshold for triggering a vacancy. In a fifth case the MP resigned while the petitioning process was still under way. But in several more cases the fact that the condition for triggering a petition had been met (or was clearly about to be met) has fairly clearly precipitated the resignation of the affected MPs. We therefore believe that creating a mechanism for the recall of Senedd members is a useful and sensible democratic development.
3. We note, however, that there are some key differences between the mechanism proposed for the Senedd and that in place for Westminster. Under the 2015 Act the electors are voting on whether to trigger a by-election, and only those supporting a by-election vote, and if those signing the petition represent at least 10% of the relevant election a by-election will happen. Since the Senedd’s electoral system does not provide for the possibility of by-elections between general elections, the mechanism of a recall poll in which electors can vote either for or against the recall, and where the decision in that poll is final, is both necessary and sensible. It also has the advantage of involving a more readily understandable voting system. We are also glad to see that the term “recall poll” is proposed to be used rather than the confusing Westminster term of a “recall petition”.
4. There are other important differences between the proposals in the Bill and the system of recall petitions at Westminster. Perhaps the most significant is that the House of Commons has the power to expel an MP without recourse to the mechanism of a recall petition whereas the Senedd has no such power in respect of an MS: this new sanction for the Senedd helps to fill that gap. Furthermore, the decision under the Bill will be whether a particular individual should remain an MS, not (as in effect the recall petition process offers) whether the constituency should also have an opportunity to change the party from which the MS is drawn. This makes the decision much more precisely about an individual’s conduct, though it also lowers to an extent the political jeopardy of the whole process. That distinction between the two systems may be beneficial in reducing the risk of attempts to use the mechanism for party political purposes (or, more probably, attempts to paint the process as driven by party rivalry). Of course, there still could be a sort of beauty contest in a recall poll (“I like A (the sitting MS) much better than B (the next person on the list), so I’m going to vote against recall”).
5. Turning to the criteria for initiating the recall process in the Senedd Bill, Trigger A has the effect of lowering the period of imprisonment that may result in an MS losing their seat (separate legislation already disqualifies MSs sentenced to a year or more in prison). The difference is that it is voters, not the courts, who would decide whether a lesser period of imprisonment should disqualify someone from Senedd membership. This does mean that, in some cases, the courts will be making a decision whether to impose a sentence that automatically disqualifies, or a sentence that allows the voters to decide by recall poll, which may place the court in an undesirable dilemma. For example, it is possible that a court will have to decide whether an MS who commits criminal damage for political reasons, perhaps by painting a slogan on a building, should be sentenced to a year in prison, so automatically disqualifying them, or to a shorter sentence of imprisonment, so putting the disqualification decision in electors’ hands. There is a risk that this may be represented as the courts acting politically – or even result in the courts actually behaving politically.
6. It is also worth noting that imprisonment over 12 months anywhere in the world disqualifies an MS (so long as s/he is imprisoned in the UK or EU). Trigger A has a much narrower application.
7. Clause 3 could also be clearer about what happens when an MS appeals against a sentence which might activate Trigger A. As drafted, it seems the Llywydd would announce that Trigger A had been pulled once the MS is convicted and before the appeals process is concluded, but that the recall would be cancelled if there were a successful appeal under Clause 8. The 2015 Act is clear that the First and Third Conditions have only been met once any appeals process, if permitted, has been exhausted. (See, for example, the 2019 case of Claudia Webbe, MP for Leicester East.)
8. The Bill also makes no provision for notification of convictions or appeals in Scotland or Northern Ireland because the Senedd cannot make law affecting those territories, but the Bill might say something on its face about what would happen in the case of conviction or appeal in those jurisdictions.
9. Trigger B is distinct from the Second Condition of the 2015 Act in one important way. That Condition depends on a specified period (ten days or more) of suspension for an MP recommended by the Committee on Standards (or Privileges) and agreed to by a vote of the whole House of Commons. The choice not to set a very specific threshold in law for the period of suspension that will lead to the trigger being pulled may entail some risks. The advantage of the 2015 Act’s Condition is that the question facing the full House is “Does this punishment fit the crime?” rather than “Should this behaviour trigger a recall petition?”. However, the ten-day threshold has always hung over that decision. A specified period of suspension could, of course, come in guidance or standing order, but specifying it on the face of the Bill may be thought preferable. The case against this is that the threat of recall has become a major constraint on the flexibility of the Standards Committee’s discretion in recommending sanctions – in other words they cannot reach the conclusion that an MP deserves a period of suspension longer than nine days but has not met the criteria for facing recall. Whether it is decided to go for something more specific or leave the decision entirely to the discretion of the Standards Committee, there is always a risk of potential political manipulation, as cases at Westminster have demonstrated. In response to these attempts to “game” the system the Commons have essentially made the decision of the House on sanctions recommended by its Standards Committee a take-it-or-leave-it choice, rather than allowing for the manipulation of a recommendation of the Committee about a period of suspension to be adjusted upwards or downwards by amendment. The extent to which the Senedd in plenary can second guess its Standards Committee is a matter the Senedd will need to give some thought to in framing its standing orders in due course.
10. The Third Condition of the 2015 Act automatically triggers a recall petition if an MP is found guilty of an offence under section 10 of the Parliamentary Standards Act 2009 (making false or misleading parliamentary allowances claims). The Bill before the Senedd has no equivalent provision. We consider that there would be merit in including a similar provision in the Senedd legislation – so that an MS who commits an offence under the Government of Wales Acts (for example under section 36 of the 2006 Act), whether or not imprisoned, should be subject to a recall poll.
11. Clause 11 allows considerable discretion to the Welsh Ministers about the conduct of recall polls. Our experience in Brecon and Radnorshire (and more indirectly) suggests that some areas of discretion are undesirable, and that the Bill could be improved by making specific provisions: in particular; for shorter period for recall polls to be open, for less discretion about number of voting stations, for more convenient opening hours, and for consideration to people who have difficulty getting to polling stations. Giving discretionary powers to returning officers over the conduct of a political event is undesirable, and can even lead to accusations of bias, as in the North Antrim recall petition in 2018.
12. We also consider that it may be desirable for the ballot paper for a recall poll to include a statement by the Llywydd as to why the poll is being held, so that electors know why they are being asked to vote.
13. The 2015 Act provides for a recall petition to trigger a vacancy if 10% of the eligible electors call for one. As we noted above, the Senedd electoral system does not allow for the triggering of a by-election in which the wider opinion in a constituency can be tested. Nonetheless, the Committee may want to consider whether a minimum threshold of participation in the poll should be inserted into the Bill. A poll with a very low turn-out which results in a recall could appear undemocratic.
14. We welcome the proposal in the Bill to place the Standards Committee on a statutory footing. On lay members, we would recommend that the consideration be given to going one stage further and making them obligatory, rather than optional as they are currently proposed to be. Their participation in the Westminster Standards Committee, significantly enlarged and entrenched by the Commons after an initial experimental period, has proved a strong reinforcement to the perceived independence and impartiality of that Committee. The Committee may also consider asking a former Chair of Commons Committee on Standards for advice on the experience of lay members.
15. We also welcome the new proposed power of the Standards Commissioner to initiate inquiries.
16. Clause 22 of the Bill is obviously an attempt to do something more up to date than s106 of the 1983 Representation of the People Act, but the interaction between the new provisions and the 1983 Act is something we believe the Committee should look at carefully. Presumably the decision on any wrongdoing under any provision made by the Welsh Ministers under Clause 22 will be made by an ordinary criminal court. Clause 22 also appears to give power to the Welsh Ministers to establish by Statutory Instrument what is fact and what is not fact. It would be worth asking Ministers how they propose to use this power.
17. With those reservations and suggestions for amendment, we consider this Bill to be a welcome development of democratic accountability and likely to help in some degree to reinforce the confidence of the electorate in the Senedd.