Unlock Democracy

Real Recall: A blueprint for recall in the UK

Pete Mills

1 Contents

Executive summary 3

A crisis of accountability 5

A role for recall in the UK? 9

Designing recall 15

Risks and safeguards 21

Recall for the UK 29 Executive summary

When we vote at a general election, we don’t just choose a candidate but a party and government as well. Voters are encouraged by the electoral system to ignore the personal qualities of the candidates and vote according to which party they want to form the government. Even if they want to express them, voters’ feelings about individual candidates are crowded out by other concerns. This means that elections deliver a verdict on the government, not the performance of the individual MP. MPs rise and fall on the basis of their party label, not their own decisions. The estimated 400 out of 650 MPs who represent safe seats have little to fear from a general election. Individual accountability is weak or non-existent.

Voters want the power to hold their MPs individually to account but the current system gives them no real opportunity to do so. The link between an MP and their constituents is supposed to be one of the strengths of the current system. When that link provides constituents with no effective means to hold their MP accountable, even in extreme cases like the expenses scandal, the system is broken. The flaw in the system runs far deeper than misconduct. The lack of individual accountability allows MPs who are failing their constituents to escape the judgment of the electorate. Recall

Recall is a mechanism which allows voters to remove an elected official from office by a vote between elections. Full recall is a recall mechanism which gives voters themselves the choice of when to recall and for what reason.

Recall plugs the gap in our current system by giving constituents the means to hold individual MPs to account. As well as giving voters a way to challenge wrongdoing on the part of their MP, it would also provide recourse in other situations where the MP has breached their mandate. Recall would act as a safety valve, giving constituents who have lost confidence in their MP the opportunity to vote them out between elections.

After the expenses scandal, all of the main political parties accepted the argument for recall. Recall enjoys widespread public support: as a recent YouGov poll indicated, 68% back recall. But as the scandal grew more distant, politicians’ enthusiasm for recall waned.

In 2011, the government announced plans for recall but their proposals hand a parliamentary committee, rather than ordinary people, the power to decide whether voters should be able to recall an MP. The public would play a minor role in the process, which would primarily empower politicians to sit in judgment of other politicians. This year they have resurrected those plans.

The government has rejected full recall, claiming it was incompatible with the UK political system. This report uses international examples to show how full recall could work in the party-based Westminster system, enhancing individual accountability without compromising the collective accountability of a government at the ballot box.

There are four key examples of situations in which full recall could strengthen the individual accountability of MPs:

● misconduct: full recall gives voters the power to determine whether an MP’s behaviour justifies a recall, rather than imposing rigid rules on what constitutes misconduct or allowing politicians to sit in judgment of other politicians

● failure to represent: voters should have the power to vote to remove an MP who fails to meet even the most basic expectations of their constituents, such as holding surgeries or responding to inquiries

3 ● crossing the floor: an MP who is elected on the basis of one party label and then switches to another should face the judgment of their constituents, who should be able to endorse or reject their decision

● breaking electoral promises: voters should be able to vote to remove an MP who breaks a policy promise made as part of their election campaign

Full recall is not without risks. If recall is too easy to trigger, it may be abused in order to divert MPs’ time and effort away from their duties; if it is too difficult to trigger, it offers no meaningful check on MPs’ behaviour. However, a properly designed system of recall, with appropriate safeguards, would minimise disruption while ensuring that it promotes accountability. Recall should be difficult, but not impossible. Recommendations

Our recommendations are based on one fundamental principle: recall should be a mechanism for political accountability, not a judicial or disciplinary process.

● A constituent who wants to recall their MP should be able to apply for a recall petition on demand. The threshold for a successful recall petition should be 20% of the number of registered voters. Recall campaigns should have 90 days to collect the required number of signatures.

● Constituents triggering a recall petition should not have to specify the reason for the recall on the petition.

● Signatures for the recall petition should only be collected by volunteer canvassers for recall campaigns who register with the electoral authorities.

● A valid recall petition should trigger a recall referendum, where a simple majority recalls the targeted politician. If the recall referendum is successful, the MP’s seat is vacated and a by-election is held.

● There should be a grace period of six months before and after a general election and six months after a recall referendum or by-election when no recall petition can be triggered.

● Organisations which spend more than £500 campaigning in support or opposition to the recall petition should register with the local returning officer. Spending limits should be set in proportion to existing constituency limits on candidate spending, with increased limits if the recall process proceeds to a referendum. Donations to recall campaigns should be regulated in line with existing rules on political donations.

● The government should investigate recall provisions for other roles, including directly elected mayors, police and crime commissioners and local councillors. A crisis of accountability

Recent proposals for recall in the UK have their genesis in the 2009 expenses scandal. Upwards of two-thirds of MPs were implicated in systematic abuse of parliamentary expenses. Although confidence in the political system was already low, the scandal served to underline the perceived lack of accountability of elected representatives, many of whom could rightly say that their behaviour was “within the rules”. Public frustration emerged not just at the behaviour of MPs but because the public had no power to act on expenses abuses.

After the scandal, politicians from all parties agreed that voters needed additional powers to hold MPs to account. Yet the government’s diagnosis of the problem with the system missed the mark. Their case for recall was that voters should not have to wait for the next general election, potentially five years away, to hold their MP to account.1 In other words, the only problem with the current system was one of timing. In fact, the expenses scandal revealed a much more serious problem with accountability in the UK. There are good reasons to believe that a general election, even were it to arrive at the right time, would not offer voters a meaningful opportunity to sanction their MP for misconduct. No consequences

The expenses scandal is the perfect illustration of how the UK’s system of political accountability fails voters. Despite the universal anger which followed, MPs who were implicated faced little or no punishment at the ballot box. Being implicated in the scandal cost the average MP a mere 1-1.5% of the vote2, perhaps enough to swing a marginal seat but not to worry most MPs. This is in line with previous estimates of the electoral consequences of scandals from the wave of sleaze allegations in the run-up to the 1997 election.3

The 2010 general election should have been the perfect opportunity for voters to sanction MPs involved in the expenses scandal. There were no shortage of targets; while some MPs were deselected or stood down voluntarily4, of the MPs who were most seriously implicated, more than 50% chose to stand for re-election.5 Knowledge of the scandal was widespread, as was public anger: the 2010 British Election Study survey found 93% of voters had heard of the scandal; more than 90% agreed that the scandal made them very angry; and 80% agreed that MPs implicated in the scandal should resign. Voters’ knowledge of the involvement of their own MP was less widespread but voters whose MP had in fact been implicated in the scandal were significantly more likely to believe they were involved. Lack of knowledge was not the limiting factor in the absence of electoral accountability.6 In a poll conducted just before the 2010 election, 38% of voters declared that they would vote against an MP from the party they supported if they were implicated in the scandal.7

Why did this anger not translate into punishment at the ballot box? At any election, voters face a trade-off between sanctioning politicians for involvement in a scandal and expressing their preferences on policy or choice of government. The electoral impact of a scandal is determined by

1 Recall of MPs Draft Bill, Cm 8241, p. 5 2 Pattie and Johnston, “The electoral impact of the UK 2009 MPs’ expenses scandal”,Political Studies, 2012, vol. 60, p. 744 3 Farrell et al, “Sex, money, and politics: Sleaze and the Conservative Party in the 1997 election”, British Elections and Parties Review, 8:1, pp. 80-94 4 Though Eggers & Fisher suggest that the decision to retire was not linked to implication in the scandal, but more likely down to the recognition that expenses would become less generous in the future, lowering MPs’ compensation packages (Eggers & Fisher, Electoral accountability and the UK parliamentary expenses scandal: Did voters punish corrupt MPs?, LSE Political Science and Political Economy Working Paper, No. 8/2011, p. 2) 5 Vivyan et al, “Representative misconduct, voter perceptions and accountability: Evidence from the 2009 House of Commons expenses scandal”, Electoral Studies, 31:2012, p. 751 6 Vivyan et al, pp. 751-2 7 www.ipsos-mori.com/researchpublications/researcharchive/2578/Impact-of-the-expenses-scandal-recedes.aspx 5 how much importance voters assign to the scandal compared to other issues, their knowledge of the scandal and the influence of political institutions. We should not expect that involvement in the expenses scandal should prove a decisive factor for every voter. However, the fact remains that voters were angry about expenses, knew enough to pick out who was implicated and yet still chose not to punish the culprits. The lack of electoral consequences for MPs implicated in the scandal is a surprising result that is not replicated in other political systems. In the 1992 US congressional election following the House banking scandal8, candidates implicated in the scandal lost an average of 5% of the vote – significantly higher than in the UK – despite many of the worst offenders retiring or suffering defeats in primary elections.9

What made the difference was the UK’s political system, which encourages voters to ignore the behaviour and characteristics of the candidate and to vote along party lines. While it is true that voters themselves chose not to punish expenses fiddlers, they do not make their choices in isolation. Rather, they respond to the incentives and cues that political institutions provide. Voters are well aware that at a general election, they are choosing the party that will form the government, as well as the individual candidate. Strong party discipline and a legislature which is dominated by the executive ensure that there are few incentives to take the individual candidate’s views and qualities into account when voting.

The electoral impact of the expenses scandal was much less significant than that of comparable scandals in countries like the US with political systems that encourage voting behaviour based on the behaviour of the candidate. Only in exceptional cases has the behaviour of the individual MP become a decisive factor in an election. In 1997, the journalist Martin Bell defeated the Conservative MP Neil Hamilton in Tatton on an anti-corruption ticket after the Labour and Liberal Democrat candidates stood aside. Hamilton was implicated in a cash-for-questions scandal involving Mohamed Al-Fayed, the owner of Harrods. After the local party declined to deselect Hamilton, Bell won the seat, overturning a 16,000 majority with a swing of nearly 50%.

In Tatton, the election effectively became a recall election, decided on the single issue of Neil Hamilton’s conduct as an MP. Bell’s win was widely celebrated as a victory for people power, but what made it possible was the decision of the opposition parties to suspend normal party competition. Once the normal pressures of choosing a party and a government were removed, voters opted to remove Hamilton for his misconduct. Had Labour and the Liberal Democrats stood candidates, comparison to the Conservatives’ national performance suggests that he would have retained the seat.10

The reason examples like Tatton are rare under the current system is that they challenge the basis of the Westminster system: the collective accountability of a government at a general election. Voters in Tatton were presented only with the choice of Hamilton or not-Hamilton. Their knowledge of Bell’s position on the important issues of the day was necessarily limited. Voters were forced to swap their right to choose between governments in order to express their discontent with an individual MP.

8 The House banking scandal or ‘rubbergate’ broke in 1992. It was revealed that the United States House of Representatives Bank had established a clearinghouse which allowed members to overdraw their accounts, essentially providing them with interest- free credit. Over four hundred representatives had overdrawn their accounts at some point but the House Ethics Committee singled out 22 of them in particular for leaving their checking accounts overdrawn for at least eight months. The scandal is widely seen to have fed pre-existing perceptions that the House was corrupt. For further information see: Charles Stewart (1994), “Let’s Go Fly a Kite: Causes and Consequences of the House Bank Scandal”, Legislative Studies Quarterly, Vol.19, pp.521-35; Mark Grossman, Political Corruption in America: An Encyclopedia of Scandals, Power, and Greed (Grey House Publishing 2003) 9 Dimock and Jacobson, “Checks and choices: the house Bank Scandal’s impact on voters in 1992”, The Journal of Politics, 57 (4), 1995, p. 1157 10 Farrell et al, p. 88 More than misconduct

The Neil Hamilton case highlights the broader trade-off between individual and collective political accountability. The UK political system promotes strong parties over individual accountability. The logic is that strong parties which can mobilise their MPs to vote for a political programme can then be judged collectively on that programme at an election. This collective accountability requires MPs from the same party to act in concert so that voters can use the party label as a shortcut to judge individual MPs. If the party operates in a unified manner, voters know roughly what a candidate with a particular party label stands for without investigating their views more thoroughly.

In this system, individual accountability operates chiefly through internal party discipline rather than direct from the voters. Parties have an obvious electoral incentive to discipline MPs whose behaviour is unpopular or brings the party into disrepute. Individual accountability to voters becomes a threat to the collective accountability of parties when it encourages MPs to vote against the party line. In systems where representatives are individually accountable to voters, parties’ capacity to discipline their MPs is weakened. If MPs are more inclined to act against their party because their voters can hold them individually accountable for their actions, it becomes more difficult for voters to read off the views of their individual MP from their party label.

The UK political system operates through collective accountability, but does not eschew mechanisms of individual accountability. The expenses scandal saw the system failing on its own terms. The strong link between constituents and their MP is repeatedly singled out as one of the virtues of the British political system. The single member plurality electoral system establishes a direct electoral connection between individual MPs and their constituents which should in principle provide individual accountability. Ostensibly, MPs celebrate the fact that their constituents are their bosses and that they can hold them individually accountable for their behaviour and performance as a representative. Take this typical statement from an MP’s website:

MPs in effect write their own job descriptions and are accountable to their constituents, who can choose not to re-elect them at the next General Election if they do not believe their MP is doing a good enough job for them.11

The government’s Draft Recall Bill echoes this sentiment:

Politicians are held accountable at elections for the way in which they have voted or their record in office.12

Political accountability is presented as a process which operates at an individual level, not just at the level of government or party. MPs interpret re-election by their constituents as an endorsement of their behaviour and approach to the job. Yet, as the expenses scandal demonstrates, accountability of the kind described above simply does not exist, even in extreme cases of misconduct. In truth, most MPs have little to fear from their constituents.

Though the expenses scandal exposed the impotence of voters when it comes to holding MPs to account for misconduct, the absence of individual accountability means that MPs can disregard their obligations to their constituents with impunity. MPs have switched party, broken electoral promises and failed to carry out even the most basic functions of representation but as long as they hold a safe seat, they are practically invulnerable. At a general election, voters forego the prospect of kicking out MPs who they may feel are failing them in order to deliver a verdict on the government. The system leaves them with no space to express their views on their individual MP.

Recall offers the possibility of squaring this circle, of strengthening the individual accountability of MPs without compromising the collective accountability of a government at the ballot box.

11 http://www.daniel4shrewsbury.co.uk/daniels-job-description 12 Recall of MPs Draft Bill, Cm 8241, p. 5 7

A role for recall in the UK?

The problem in Westminster is a lack of individual accountability, which recall appears well- positioned to remedy. However, the debate on recall in the UK has so far been dominated by the government’s proposals for recall, which combine a narrow focus on misconduct with a strict interpretation of parliamentary sovereignty. Recall needs to enhance accountability, not simply provide a new way for MPs to discipline others for misconduct. This section examines how a system of recall that puts control in the hands of the voters could work in a UK context. The wrong remedy

Recall emerged naturally as the solution to MPs’ misconduct during the expenses scandal, promising to empower voters to kick out misbehaving MPs between elections. In 2010, the coalition agreement promised 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.”1

The Draft Bill which followed, published in 2011, proposed a two-stage recall process originating in Parliament and culminating with a petition signed by constituents. The government proposed two triggers for a recall petition: an MP convicted of an offence that carries a custodial sentence of less than 12 months would automatically face a petition; the House of Commons would also be able to pass a resolution stating that an MP was guilty of “serious wrongdoing”, which would open a recall petition against them. Constituents would then have eight weeks to sign a recall petition in approved places (akin to polling stations) in the MP’s constituency. If 10% of the registered voters in the constituency signed the petition, the MP would be recalled and a by-election would be held to replace them.2

The stated aim of the proposals was to “ensure MPs remain accountable to their constituents”.3 However, this form of recall was designed to augment the existing disciplinary procedures of the House of Commons rather than making MPs more accountable to voters. The government’s proposals operate on the assumption that existing UK political institutions provide an adequate framework for holding MPs to account, and all that needs to be solved is a problem of timing. As outlined in in the first section (‘A Crisis of Accountability’), this is not the case. The government’s plans treat recall as a judicial process, where an authority – in this case a committee of MPs – certifies that a recall is justified based on a set of criteria. Only then are voters allowed their say. The role of ordinary voters in initiating the process is limited to making a complaint about an MP’s behaviour. This version of recall shuts the public out of the process and limits the scope of recall to a tiny spectrum of behaviour.

The likely effect of restricting the grounds for recall is that no recall will ever take place. The US experience provides a natural experiment: 12 states allow recall of members of the state legislature for any reason, while 7 restrict recall to instances of misconduct or incompetence. The difference between these states is stark: in the states with full recall, 39 recall attempts have reached the election stage; in the restricted recall states, only 1 attempt has ever reached an election.4 Many of the states which restrict recall have broader conditions than those specified in the government’s proposals, including not just misconduct but also incompetence and neglect of duties. The misconduct which triggered the only recall attempt in restricted recall states – of Washington state senator Peter von Reichbauer in 1981 – was switching party, which would not be

1 The Coalition: Our Programme for Government, p. 27 2 HM Government, Recall of MPs Draft Bill(Cm 8241, 2011), London: Stationery Office, p. 18 3 HM Government, Recall of MPs Draft Bill(Cm 8241, 2011), London: Stationery Office, p. 5 4 While there are variations between states in terms of threshold, political system, and the length of the periods during which recall has been in effect, averaging 83 years in full recall states but just 53 years in restricted recall states, per year per state recalls occur around 15 times more regularly in full recall states than in restricted recall states. 9 sufficient grounds for recall under the UK government’s plans.5 In practical terms, restrictions on recall mean no recall at all.

The Political and Constitutional Reform Committee delivered a damning verdict: the proposals

were not genuinely participatory; secondly...they would rarely, if ever, be used; and thirdly, because, even if they were used, they would be unlikely to have a significant impact on the political landscape6 Full recall

The alternative is full recall, which allows voters to decide whether an MP should be recalled for any reason. This would address the problem of accountability at its root, making MPs more responsive to their constituents. Full recall represents a safety valve, which would come into play when the MP-constituent relationship has broken down and voters have lost confidence in their MP. There are a number of circumstances in which full recall would empower voters to hold MPs to account: not just misconduct, but failure to represent constituents, switching party and breaking election promises. Misconduct

Politicians convicted of a sentence of more than 12 months are automatically excluded from membership of the House of Commons yet instances of less serious wrongdoing are primarily dealt with using the House’s disciplinary procedures and internally through party discipline. The PCRC inquiry argued that the existing disciplinary mechanisms of the House of Commons were adequate to deal with MPs’ misconduct. Five years after the expenses crisis, there are still serious doubts over the idea that MPs should sit in judgment of MPs. The case of former cabinet minister Maria Miller has again called this principle into question. In February 2014, the independent Parliamentary Commissioner for Standards found that Miller had over-claimed mortgage interest payments and wrongly designated her primary residence as a “second home” in order to make expenses claims against it. Miller was also found to be uncooperative with the Commissioner’s inquiry, even threatening to refer the Commissioner to the Standards Committee of MPs for “overstepping her authority” in an attempt to forestall an investigation.7 Despite a recommendation that Miller should pay back £44,000 in over-claimed expenses, the eight MPs on the Standards Committee watered down the report, accepting many of Miller’s claims which had been rejected by the Commissioner and recommending repayment of only £5,800.8 The transparency campaigner Martin Bell commented that the weakening of the Commissioner’s recommendations showed that the Commons could not be “master of its own regulation”.9 In a poll after the Committee’s verdict, 68% of the public said they believed that Miller should lose her position as an MP.10 Ultimately public pressure forced her to stand down as a cabinet minister.

The doctrine of parliamentary sovereignty requires that MPs be allowed to decide on disciplinary matters within the House of Commons.

It is a fundamental part of the United Kingdom’s constitutional arrangements that each House of Parliament must be free from interference from the executive and the courts in arranging their own internal affairs. This is known as the doctrine of exclusive cognisance.11

5 http://www.ncsl.org/research/elections-and-campaigns/recall-of-state-officials.aspx 6 Political and Constitutional Reform Committee, Recall of MPs, 21 June 2012, HC 373 2012-13, para 68 7 http://www.theguardian.com/politics/2014/apr/04/maria-miller-threatened-watchdog-in-attempt-to-limit-investigation 8 Though the committee were prepared to agree an even lower figure for repayment, they accepted Miller’s calculation of how much she should repay. http://www.publications.parliament.uk/pa/cm201314/cmselect/cmstandards/1179/117903.htm#a5 9 http://www.telegraph.co.uk/news/newstopics/mps-expenses/conservative-mps-expenses/10746022/Maria-Miller- expenses-report-rights-and-wrongs-of-ministers-claims.html 10 http://www.theguardian.com/politics/2014/apr/06/maria-miller-cabinet-job-poll 11 HM Government, Recall of MPs Draft Bill(Cm 8241, 2011), London: Stationery Office, p. 21 This is based on article 9 of the 1688 Bill of Rights, which states that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament”. If recall is a disciplinary process, parliamentary sovereignty maintains that MPs should decide and therefore the decision of whether an MP should face recall must be left to MPs. This appears to rule out recall mechanisms where an independent body – such as the courts, or perhaps the Parliamentary Commissioner for Standards – certifies that the conditions for recall have been met. This leaves responsibility for dealing with misconduct firmly in the hands of politicians. As was seen in the expenses scandal, politicians and the public can have wildly diverging ideas of what constitutes misconduct, and developments since the scandal have done little to reassure the public that things have changed.

Full recall is a political rather than a disciplinary process that leaves it to the public to make the decision whether an elected official’s conduct should make them subject to recall. This allows for greater flexibility than a system which automatically triggers a recall when certain conditions are met, such as a term of imprisonment. Behaviour which does not attract a prison sentence or stops short of MPs’ judgment of “serious wrongdoing” can easily cause constituents to lose confidence in their MP; conversely, behaviour which does meet these conditions does not mean that a recall is necessarily warranted. MPs have received prison sentences for crimes motivated for political reasons, such as Liverpool MP Terry Fields, who was imprisoned for three months in 1991 for refusing to pay the poll tax. Fields would have automatically faced recall under the government’s plans. The low 10% threshold and the absence of a further recall election stage in the proposals would mean that a minority of constituents could recall an MP imprisoned for political reasons, even if the majority of their constituents support them. Full recall typically includes additional stages which involve both supporters and opponents of recall, ensuring that a majority supports the recall, as will be outlined in the third section (‘Designing recall’). It is therefore both fairer on MPs and hands more power to constituents, who will be able to judge individual cases of MPs’ misconduct rather than relying on politicians’ own collective judgment or sticking to rigid criteria for recall. Only full recall can empower constituents to remove MPs whose behaviour has fallen below the standards they expect. Failure to represent

There is no clearly defined set of duties that MPs must carry out. In 2001, the Senior Salaries Review Board published a draft “job description” which broadly outlined the different roles that an MP inhabits, which include defending the national interest, representing local interests, supporting the party to which they belong, passing legislation, holding the government to account, and assisting individual constituents.12 These roles will often cause conflict: local interests may run counter to national; if an MP is a member of the government this is likely to affect their ability to hold it to account; and an MP’s duties in Westminster and their constituency represent competing demands on their time. However, there is no agreement on what priority MPs should give each of these tasks, and which should take precedence when two duties conflict. Each individual MP follows their own path based on their own theory of what it means to represent. As a result there are as many theories of representation as there are MPs.

The ambivalence of representation does not mean that MPs should ignore what their electors expect of them – constituents have theories of representation as well. Even though they do not – and should not – provide a guide for an MP’s every action, there are situations in which an MP can fail to meet even the most basic of expectations held by constituents. If an MP’s understanding of their role and that of their constituents are completely at odds, the system of representation has broken down. When constituents believe that an MP is seriously failing in their duty of representation, recall can enhance representative democracy by acting as a safety valve.

Some MPs fail to carry out the basic activities expected of them, even accounting for the multi- dimensional nature of their role. For the majority of MPs who represent safe seats, the current system offers no meaningful check to this kind of behaviour. One MP failed to hold a constituency

12 http://www.publications.parliament.uk/pa/cm200607/cmselect/cmcomm/685/68520.htm 11 surgery for 14 years.13 Another was nicknamed “the Invisible Man” after failing to speak in a single parliamentary debate for more than three years.14 Two more decided to appear on reality TV shows, arguing that they could better represent their constituents on national television than in their constituency or the House of Commons.15 Their constituents, including many of their supporters, objected but had no recourse except to wait until the next general election. Supporters of the MP’s party then faced an unpalatable choice: to remove their MP and replace them with another from a party they do not support, or continue to support an MP from their chosen party despite their individual failings. The YouGov poll commissioned by the PCRC’s inquiry into recall found that 60% believed that an MP should be subject to recall for not holding surgeries or responding to constituents’ letters.16

The government’s plans do not propose to deal with situations where constituents believe MPs are failing to represent them, which can be just as corrosive to public trust as instances of misconduct. The minister responsible, Mark Harper, argued that “those things are a matter of judgment for constituents to exercise at an election”.17 But the re-election of MPs like “the Invisible Man” can hardly be taken as an endorsement of their approach to representation. A general election provides little opportunity for voters to deliver a verdict on the record of their individual MP. The existing system allows this behaviour to go unchallenged. These are not examples of minor disagreements on an MP’s priorities, which are unlikely to motivate a majority of constituents to call for a recall. They are simply failures of representation.

Recall corrects extreme mismatches between constituent and MP on how they should go about the task of representation. Full recall takes account of the ambiguities of representation: behaviour which justifies a recall for one MP’s electorate could be the very model of how to go about representation for another’s. If enough voters believe their MP is failing to carry out their duties, they can recall the MP. If voters do in fact believe that, for example, reality TV is a worthwhile use of their MP’s time, the absence or failure of a recall empowers that MP to pursue that approach in the future. Unlike the government’s plans, where there are automatic triggers for recall which may not reflect the way constituents feel about their MP, full recall allows voters to decide when representation isn’t working, and fix it.

Crossing the floor

There have been many instances of MPs changing party between elections – “crossing the floor” – but MPs rarely resign to face a by-election upon their change of party label.18 At a general election, most voters make their decision based on which party they want to form the government, rather than the characteristics of the individual MP. While deviations from that party-based mandate can be legitimated on the basis of the other roles an MP must play, changing party altogether is more difficult to justify to constituents. If constituents elect an MP as a member of one party, it is unlikely, though not impossible, that they would have chosen to elect that MP had they been standing for a different party. The PCRC poll found that 52% of voters believed that an MP should be subject to recall for changing party between elections. Crossing the floor is rarely a decision that is taken in consultation with constituents, as the nature of party competition in Westminster necessitates the secrecy of the back-room deal. After the fact, the MP who crosses the floor may argue that their change in party is consistent with their mandate as an MP, yet the fact that few MPs who switch party remain to face re-election in the same constituency suggests that they are unwilling to test this argument. In the last 25 years, only one MP who switched party

13 http://www.independent.co.uk/news/uk/politics/no-surgeries-for-14-years--is-sir-stuart-bell-britains-laziest-mp-2350953. html 14 http://www.thesun.co.uk/sol/homepage/news/85090/Tory-MP-is-Mr-Invisible.html 15 http://news.bbc.co.uk/1/hi/uk_politics/4587448.stm; http://www.bbc.co.uk/news/uk-politics-20217901 16 Political and Constitutional Reform Committee, Recall of MPs, 21 June 2012, HC 373 2012-13, p. 34 17 Mark Harper, Political and Constitutional Reform Committee, Recall of MPs, 21 June 2012, HC 373 2012-13, Ev 48 18 Since 1832, only five MPs have triggered a by-election on crossing the floor - two in the past year. The most recent were Douglas Carswell and Mark Reckless, both supporters of recall for MPs, who switched from the Conservative Party to UKIP in 2014. and did not trigger a by-election remained to face re-election in the same constituency: Jeffrey Donaldson, a former Ulster Unionist Party MP who was re-elected as a Democratic Unionist in Lagan Valley, Northern Ireland, in 2005.

Instances of crossing the floor is an example of how the individual accountability of recall can supplement the collective accountability provided by strong parties. In the US, there have been a number of recalls motivated by changes in party, which have delivered contrasting verdicts.19 In the UK, changing party has historically been a decision characterised more by the individual ambitions of the MP than a reflection of the views of their constituents. Recall provides a litmus test: if there are enough voters who are dissatisfied with an MP crossing the floor, they can force a vote and recall the MP; on the other hand, if constituents accept the MP’s argument, the absence of a successful recall offers a positive reinforcement of the MP’s decision. Broken promises

Voters are aware that a government will not always be able to fulfil the promises they make at election time. If a government fails to keep election pledges, voters have the opportunity to remove them at the ballot box. However, there are instances where voters may want to hold MPs individually to account if their party goes back on an important promise, particularly if the individual MP made it a key plank of their election campaign. The PCRC poll found that 50% of voters believed that MPs should be subject to recall if they break an electoral promise. The most prominent of these in recent years has been the “Right to Recall” campaign launched by the National Union of Students in 2010 following Liberal Democrat MPs’ decision to back an increase in university tuition fees, a policy they had pledged to oppose in the run-up to the 2010 election.20 MPs also make individual promises to their electorate, which may be on local issues. In a YouGov poll in 2012, 72% of respondents believed that MPs should pay a great deal of attention to keeping electoral promises, while only 2% believed that MPs did pay attention to keeping promises.21

The evidence shows that voters do want to hold MPs individually to account for their voting record but are provided little opportunity to do so by the current system. If voters were happy to use an MP’s party label as shorthand to judge their voting record, MPs who rebel against their party line when their constituents are opposed should see no benefit at the ballot box. However, research into the electoral performance of Labour MPs who rebelled against the Blair government in the 2001-5 parliament showed that voters who regarded the government unfavourably were more likely to vote for rebellious MPs. According to the study, although “there is no strong MP- constituent legislative accountability link under the UK’s [first past the post] system...voters do behave in a manner consistent with an effort to hold their MPs to account for their legislative actions.”22

Holding MPs accountable on policy issues is likely to be the most controversial application of recall, because it pulls in a different direction to the collective accountability of strong parties. The possibility of being recalled individually for support of a policy decided collectively would force MPs to take individual responsibility for their decisions on key votes where their constituents strongly disagree with their party. This would strengthen individual MPs in their dealings with their party leadership, empowering them to act against the party line if their constituents are strongly opposed. This leverage would only be available when there was a realistic chance of recall. Voters’ appetites for recall appear to be largely confined to the types of situation described above: in the PCRC poll, 77% of voters said that simply disagreeing with an MP on a policy issue would not justify a recall.23

19 In 1995, California Assembly Republicans Paul Horcher and Doris Allen were recalled after voting for a Democratic speaker; Washington state senator Peter von Reichbauer survived a recall vote after switching to the Republican party in 1981. 20 http://www.bbc.co.uk/news/uk-politics-11764131 21 http://cdn.yougov.com/cumulus_uploads/document/ww4o7wko1q/WebVersion_Democracy%20in%20Britain%20A5.pdf 22 Nick Vivyan & Markus Wagner, Do Voters Reward Rebellion? The Legislative Accountability of MPs in Britain, p. 25 (http:// www.lse.ac.uk/government/research/resgroups/PSPE/pdf/2010conference_papers/Vivyan.pdf) 23 Political and Constitutional Reform Committee, Recall of MPs, 21 June 2012, HC 373 2012-13, p. 35 13 Would recall mean the end of strong parties? In fact, parties are less brittle in the face of dissent than the doctrine of collective accountability would suggest. In the 1950s and 60s, party cohesion was much stronger: two parliamentary sessions in the 1950s passed without even a single rebellion and between 1945 and 1970 there was not a single government defeat as a result of backbench dissent. The party whips of that era would regard today’s parliamentary parties as an undisciplined rabble and yet parties have survived. Recall would be much less disruptive than other reforms which challenge the party basis of accountability. Parties would retain control over candidate selection and the first past the post electoral system means that governments would retain the power to deliver the programme they set out at the general election.

Recall would act as a counterpart to the collective, party-based accountability of the general election by giving voters the opportunity to hold MPs individually to account for the promises they make as members of their party or as individual MPs. This would strengthen the link between MP and constituent, which is regarded as the jewel in the crown of the UK’s electoral system. If voters have lost confidence in their MP as a result of them breaking an election promise, they should be able to recall them. Would recall be used?

How often recall would be used is unclear, and international experience may not provide an accurate guide. In the US and British Columbia, recall is situated in political institutions which give voters a participatory role in policy and the selection of candidates for election, such as ballot initiatives, referendums, and primary elections. As a result, recalls are comparatively rare: in the US, there have been 22 successful and 18 unsuccessful recall elections; in British Columbia, there has never been a successful recall petition, although one politician who was the target of a recall resigned when it became clear that the recall would likely be successful. As pointed out in evidence to the PCRC, “if policy disjunction between representative and represented is the source of contention then an initiative or a referendum on a particular policy may be more efficacious and efficient (with lower trigger thresholds) in addressing the issue than recall.”24 In the UK, where none of these options are available to voters, recall may be more widely used than in the US.

Even if actual recalls are rare, knowing that they are subject to recall could still influence politicians’ behaviour, deterring misconduct and enhancing individual accountability. The cultural effect of recall is more difficult to measure than its effectiveness at removing representatives, partly due to many recall mechanisms being too restrictive to provide an effective check on behaviour, as well as the difficulty in distinguishing their effect from other channels of individual accountability. In the UK, however, recall appears more likely to alter the behaviour of MPs in safe seats, who are currently only very weakly accountable to their constituents.

24 David Judge, Political and Constitutional Reform Committee, Recall of MPs, 21 June 2012, HC 373 2012-13, Ev 95 Designing recall

The international experience of recall can provide valuable lessons in designing a recall mechanism that works in the UK political context. Recall is a new feature in many democracies and there is only a modest amount of evidence on how it works in practice.1 However, there are some relatively mature examples of recall which operate in political systems that are relevantly similar to the UK. The US has over a century’s experience of recall, with a total of nineteen states now operating recall provisions at a state level. The Canadian province of British Columbia, which introduced recall in 1991, completed a review of recall in 2003 which recommended significant changes to the way recall worked in light of the first decade of its operation.This section does not aim to be an exhaustive account of all the features of the recall process, but rather an examination of the key issues at stake when designing a system of recall, presenting the different options available to legislators. Three stages

Not all recall mechanisms operate in the same way but most share certain key features. There are three distinct stages: the first is the trigger, the event that kicks off a recall attempt. In a “mixed recall”, the trigger is a decision by an institution – for example, a vote by the parliament, a report by a parliamentary committee, or a judgment by the courts – that indicates recall is appropriate. The government’s plans represent a form of mixed recall. This differs from “full recall”, which allows voters themselves to trigger a recall.

The second stage is the petition stage. In order to demonstrate that there is demand for a recall election, a given number of signatures from eligible voters endorsing the recall must be collected in a given time. If a petition obtains the required number of signatures, a recall election is called.

The third stage is the recall itself. This can include a recall referendum, where if a majority of voters support the recall, the targeted politician is recalled. An election will then be held to choose a new representative. Some jurisdictions proceed straight from the petition to the election. The anatomy of recall

There are a number of features of the recall process which vary to create recall mechanisms with distinct logics. Signature thresholds

Recall sometimes encounters two contradictory arguments: first, that it is used too often and therefore stops politicians doing their jobs; secondly, that it is used too little and is therefore not worth the effort to introduce. Both of these arguments were presented in evidence to the PCRC inquiry on recall.2 and both may be valid – for certain examples of recall. The difficulty of recall attempts varies wildly by jurisdiction; most of this variation comes from the number of signatures required on the petition to trigger a recall election. This threshold interacts with the time allowed to collect petitions to determine how difficult it is to trigger an election. Smaller thresholds and longer timescales make recall easier, whereas higher thresholds and shorter timescales make it harder.

1 See Recall of MPs Draft Bill(Cm 8241, 2011) for a summary of international examples and http://www.ncsl.org/research/ elections-and-campaigns/recall-of-state-officials.aspx for a summary of US recall provisions 2 Political and Constitutional Reform Committee, Recall of MPs, 21 June 2012, HC 373 2012-13, p. 24-5, 27 15 Thresholds in different countries are calculated as a proportion of one of three factors. In descending order of size:

● the number of registered voters in the constituency ● the number of voters in the constituency who voted in the last election ● the number of voters who voted for the politician targeted by the recall

Linking the threshold for recall to the number of registered voters ensures that the recall attempt is supported by a given proportion of those eligible to vote. This would make certain that roughly the same level of support is required to recall each MP. The other two threshold criteria link the threshold to the strength of the mandate enjoyed by the politician who is targeted. This would make it easier to remove politicians who only received a weak endorsement from voters in the first place if their elections suffered from low turnout or they have small majorities. In the US, the average threshold for states with thresholds based on eligible voters is around 20%; the average for states with turnout-based thresholds is roughly 25%.3 In practice, the turnout-based thresholds are lower and these states have seen an increase in recall attempts as turnouts have fallen.

Though there is some logic to making the effort needed to overturn a mandate proportional to the strength of the original mandate, linking recall thresholds to the number of people who voted in the last election might discourage people from voting if they hope to later recall the politician elected. This could further depress turnout in safe seats from voters supporting the losing party. Linking recall to the number of votes cast for a candidate would be a more radical departure from the logic of the UK electoral system, which requires only a plurality to determine a winner. MPs sitting in safe seats with low turnouts who normally have little to fear from an election could become more vulnerable to recall than MPs in marginal constituencies where the election is fiercely competitive.

The level of the threshold depends on the nature of the successive stages. If the recall proceeds straight from petition to a by-election, as it does in British Columbia, which requires a petition to be signed by 40% of eligible voters, it should be towards the higher end of the spectrum. If, however, the petition only triggers a referendum, which requires a majority of voters to endorse the recall, then it can be correspondingly lower without creating unfairness.

The evidence shows that recall elections are uncommon even in jurisdictions with low signature thresholds. California, for example, has one of the lowest thresholds for recall worldwide, requiring proponents to gather signatures equalling 12% of the total number of voters who voted in the last election. Yet recall attempts are still relatively rare in California: in the 103 years since the state introduced recall, there have been 156 recall petitions filed against state-level officials and nine recall elections. Far more common are provisions for recall lying unused on the statute book with a threshold which makes the chances of a successful recall vanishingly small. Louisiana, which requires recall petitions to be signed by a third of registered voters, has never seen a recall election. Elsewhere in the world, there are even more stringent requirements. In Nigeria, recall petitions against members of the Senate or House of Representatives require signatures from a majority of registered voters in the relevant district in order to trigger a recall election. Time limits on petitions

The time allocated for collecting signatures should not contribute significantly to the difficulty of obtaining enough signatures to trigger a recall. The logic of the recall petition is to ensure there is enough demand for a recall; it therefore makes sense that the level of difficulty should primarily be set by the signature threshold, rather than an arbitrary time limit. The time limit is there to ensure that the process does not drag on.

3 Eligible voter thresholds in five states vary from 15% in Georgia to 33.3% in Louisiana; turnout thresholds in the remaining 14 vary from 12% in California to 40% in Kansas. The government’s plans envisage an eight week process for collecting signatures. With a higher signature threshold, this could be extended without making the process significantly easier. Time limits for collecting signatures in the US vary from 60 to 320 days. Signature collection

There are a number of interests to balance in the signature-gathering process. The process should be as open as possible to allow maximum participation, but equally the method of gathering signature must be secure in order to maintain confidence in the process.

The vast majority of international examples of recall allow campaigners to collect signatures for recall petitions. The collected signatures are then submitted to the electoral authorities for verification, which is typically accomplished by verifying that all signatories are eligible to sign and contacting a statistically significant sample of signatories to determine whether they did in fact sign the petition.

In contrast, the government’s plans mandate a signature collection process akin to an election, where voters must go to a polling station to sign the petition under official supervision. otersV would also be able to apply individually for a postal signature form, though these would not be automatically sent to those registered for a postal ballot. In this system, the signatures are verified during the process.4 This arrangement is rare: only the Austrian system for legislative initiatives requires voters to physically sign in state offices.5

The government has come down firmly on the side of security. The general principle of the draft recall bill is that the recall petition should be as far as possible like a parliamentary election. This results in a relatively closed process which is unlikely to encourage participation. The process imposes a number of barriers on supporters of a recall campaign. They must effectively make their choice public, since going to sign the recall petition at the assigned place indicates their support for the petition. While the water-tight security of the ballot may satisfy the targeted politician, a closed process is unlikely to empower voters. It may also prove inappropriate for full recall on cost grounds; if voters were allowed to initiate recall petitions, administering the larger volume of recall attempts, not all of which would succeed, through a supervised petition process would incur significant costs at the early stages of the process.

The proposals require the recall petition to be as secure an an election because the petition is an electoral process: a successful petition constitutes a recall, without a further vote. The only other example of a petition triggering a recall without an intervening stage is British Columbia. In BC’s review of the recall mechanism in 2003, this was deemed unsatisfactory: “treating a petition as an electoral process poses considerable administrative challenges and also raises questions as to the integrity of the recall process.”6 If the function of the recall petition is instead to indicate the demand for a recall vote, in the form of a special election or referendum, other methods of collection could be considered providing the integrity of the process is maintained.

Allowing campaigners to collect signatures that are verified by the electoral authorities at the end of the process has its own difficulties. In the US, legal challenges to the validity of recall petitions are widespread. Opponents of the petition may challenge the validity of individual signatures7 or other technical aspects of the petition.8 The effect of these legal challenges are to undermine confidence in the process and make the effective threshold for the recall petition significantly higher to avoid challenge: in Wisconsin, the recall petition to recall state governor Scott Walker

4 HM Government, Recall of MPs Draft Bill(Cm 8241, 2011), London: Stationery Office, p. 27 5 100,000 signatures (roughly 1.25% of the electorate) must be collected in eight days in state offices to endorse a legislative initiative. This is a non-binding recommendation to parliament on a policy issue. http://www.idea.int/publications/direct_democ- racy/upload/direct_democracy_handbook_chapter4.pdf, p. 87 6 Elections BC, Report of the Chief Electoral Officer on the Recall Process in British Columbia, November 2003, p. 15 7 http://www.denverpost.com/ci_23700398/group-challenge-suspicious-petition-signatures-morse-recall 8 http://www.foxnews.com/politics/2013/07/04/recall-efforts-against-pro-gun-control-colorado-dems-survive-challenge/ 17 included more than a million signatures, almost double the 540,000 threshold required.9 Allowing recall campaigns to shoulder the cost of collecting signatures reduces costs but processes for verifying signatures and the lengthy legal challenges which accompany them have costs of their own.

The UK government is particularly concerned with preventing double signatures on the petition. This fear is understandable but appears overblown. In British Columbia, where recall petitions are on the same scale as envisaged in the UK, double signatures are extremely rare: the 2003 review examining submitted recall petitions found “there was no evidence of obviously fictitious names, nor was there evidence of any deliberate attempts to subvert the process by falsifying signatures or multiple signing”.10 The majority of invalid signatures were from ineligible voters, which appeared to be a result of failures on the part of canvassers and complex criteria for qualifying signatures.11

British Columbia offers a middle way between the open but less secure petition processes typical in the US and the secure but closed process proposed by the government. Signatures on a recall petition may only be collected by volunteer canvassers who are registered with Elections BC. They must personally witness each signature and carry other responsibilities to ensure the integrity of the process.12 This combines a relatively open process – signatures can be gathered anywhere provided they are witnessed – with more robust security. If each signature is traceable to a registered volunteer who has legal responsibilities, the conduct of recall campaigns can be monitored much more effectively. The mechanics of registration would themselves incur running costs, whether a recall election is in progress or not. However, they are likely to be significantly less than the costs associated with running a supervised process or the lengthy legal disputes that come with a collection process left completely in the hands of campaigns. After the petition

What happens when a petition obtains the required number of signatures differs by jurisdiction. There are three options, which in order of complexity are:

● the successful petition recalls the targeted politician; their seat becomes vacant and a by-election is held ● the successful petition triggers a special election, where the incumbent retains their seat until the date of the election ● the successful petition triggers a recall referendum, where every voter can approve or oppose the recall; a simple majority recalls the targeted politician and a by-election is held

The UK government’s plans for recall proceed straight from the petition to a by-election, as does the system of recall in British Columbia. This is the simplest approach, but it denies supporters of the politician targeted by the recall the opportunity to express their opposition to the recall, since only supporters of the recall can sign the petition. The British Columbia recall review was unsatisfied with this system, recommending that

If a petition process is used, the outcome should be a vote on recall, by way of a special election or referendum vote. All voters would then have the opportunity to participate in the process that determines the recall of their duly elected Member.13

9 http://www.nytimes.com/2012/01/18/us/organizers-say-1-million-signed-petition-to-recall-gov-walker-in-wisconsin.html 10 Elections BC, p. 10 11 In British Columbia, signatories must both currently be registered voters in the relevant constituency and also have been registered in the same constituency at the election at which the targeted politician was elected. 12 http://www.elections.bc.ca/index.php/referenda-recall-initiative/recall/faqs/ 13 Elections BC, p. 16 The special election, which is employed in four US states, leaves the targeted politician in place until voters decide whether to recall them and replace them with another candidate. In all other respects, a special election is like a normal by-election.

In the US, the recall referendum is the most common stage that follows a successful petition. A recall referendum decides the question of whether the sitting representative should be recalled: voters choose “yes” or “no” and a simple majority is sufficient to eject the targeted politician.This distinguishes the decision to recall the incumbent from the election of a successor. If the recall is approved, a by-election is held.

The referendum distances the process of recall from the normal process of party political competition, giving voters the opportunity to deliver a verdict on the individual MP. A referendum also introduces a further check on the process by requiring that a majority of voters support the recall. This ensures that opponents of the recall process are allowed to register their opinion before the recall is carried out.

In California and Colorado, in an attempt to reduce costs and increase turnout, the recall referendum is held on the same day and on the same ballot paper as the subsequent election. However, these combined elections have posed problems for voters. Voters are first asked to indicate “yes” or “no” to the question of whether to recall the targeted representative, and then choose their preferred replacement should the recall be successful. This means that voters who oppose the recall are asked to choose a preferred successor even though they hope that the recall will not succeed and that this preference will not be needed. This hypothetical element of the ballot paper caused confusion during the 2003 California recall campaign against Gray Davis, resulting in the election of Arnold Schwarzenegger; voters who opposed the recall but preferred a Democrat be returned if the recall took place had to vote “no” to the recall but “yes” to a Democrat successor, a factor which contributed towards Schwarzenegger’s victory. Recalled politicians

If a politician is successfully recalled in a recall referendum, should the recalled politician be allowed to stand in the subsequent by-election? Disqualifying the recalled politician from standing in the subsequent by-election would ensure that a successful recall would stick. In the US, seven states disqualify the recalled representative in order to prevent them from being re-elected by a plurality after being rejected by a majority in a recall referendum.14

This empowers voters who have lost confidence in their MP but still support their MP’s party, as it guarantees that if the recall is successful they will have the choice of a different candidate. It could also reduce the potential for abuse of recall by opposition parties. If opposition parties know that a recall election may result in the replacement of an unpopular MP with a different, potentially more popular MP from the same party, using recall to unseat an MP is likely to be less attractive.

If the recalled representative is not excluded, much of the efficacy of recall depends on the decisions of the constituency party of the recalled MP, who may decide to choose a different candidate in the subsequent election. However, this is by no means guaranteed. Constituency parties may be inclined to ditch recalled MPs as a proven electoral liability, but in a safe seat even a recalled MP stands a good chance of being re-elected. To return to an earlier example, the local Conservative association in the Tatton “recall” election resisted pressure to deselect Neil Hamilton despite substantial evidence of wrongdoing.

Disqualification, however, would mark a significant departure from current UK electoral law. Under the existing system, disqualification is applied to certain categories of individual, including peers, civil servants and judges, and some prisoners. Disqualification from standing for a certain period can also be part of the sentence for corrupt or illegal practices during an election campaign.15

14 In California and Colorado, where the recall election and the election of a replacement are held simultaneously, this has the same effect as excluding the recalled politician from the subsequent by-election. 15 Representation of the People Act 1983 19 Rejection by the electorate in a recall referendum may indicate wrongdoing, but not necessarily on the same scale as the offences which currently justify disqualification. So while disqualification would only cover the by-election and not subsequent elections, this would still be a stretch from the current system. Constituency parties would also be unlikely to welcome restrictions on their freedom to choose their desired candidate. Restrictions on recall

In most jurisdictions. there are restrictions on the number of times or the periods in which a recall can proceed during a given parliamentary term. “Grace periods” before and after an election have a dual purpose: they avoid recall elections which would result in the removal of an elected official when a regularly-scheduled election already provides an opportunity to exercise accountability, and limit “sore loser” recalls immediately after an election. Grace periods vary in the US from 60 to 320 days.16

Some states also restrict the number of recall elections that can be held to once per legislative term, both to prevent repeated recall attempts intended to harass the targeted politician and to restrict the costs of holding repeated elections.17 At five years, the UK’s parliamentary term is longer than most of the legislatures in jurisdictions with recall, which would make limiting the number of recalls a more stringent restriction. Stating reasons

Full recall does not prescribe the reasons on which a recall can be initiated. However, some jurisdictions still require the petition’s proponent to set out the reasons for the recall, although they are not subject to review.18 This typically takes the form of a 200 word statement which appears on the petition. The elected official subject to recall usually has the option to file a similar response. This is intended to inform signatories to the petition of the issues at stake in the recall campaign, and to make sure that the targeted official has an opportunity to reply to the charges levelled against them.

However, requiring petitioners to state their reasons for the petition may have the opposite effect, encouraging them to frame their reasons as widely as possible in order to maximise the number of signatories. This is borne out in the experience of petitions in British Columbia, where the majority of reasons were generic “failure to represent”.19 Recall campaigns are unlikely to be successful unless they articulate reasons for the recall; the petition gathering process and, if it follows, the election stage offer ample opportunity for both proponents and the targeted official to make their case. In the UK, the Electoral Commission has followed the rule that ballot papers for elections and referendums should be as simple as possible, only containing factual information about the decision being made. Allowing competing statements from recall supporters and opponents to appear on official materials would mark a sharp break with previous practice.

16 http://www.ncsl.org/research/elections-and-campaigns/recall-of-state-officials.aspx 17 http://www.ncsl.org/research/elections-and-campaigns/recall-of-state-officials.aspx 18 HM Government, Recall of MPs Draft Bill(Cm 8241, 2011), London: Stationery Office, p. 44 19 Elections BC, p. 37-41 Risks and safeguards

Recall hands power from politicians to voters. This process is not without risk. Extending direct democracy, even in a mild form such as recall, has the potential to interact with existing institutions in unpredictable ways. Paradoxically, extending individual accountability could have damaging and potentially undemocratic effects. The gains in accountability that recall brings may not be worth it if it hampers good decision-making and leaves politicians vulnerable to attack. Here some of these claims are tested against the evidence, and safeguards outlined which could curb the potential for disruption. Recall campaigns would be dominated by big money

The US has the longest and most extensive history with recall and so naturally its experience tends to dominate the perception of recall in the UK. However, there are important features of the US system that would not be replicated in the UK. The most obvious is the system of campaign finance, which in the US is largely unregulated following a series of Supreme Court decisions to strike down campaign finance rules.1 Spending in recall campaigns in the US often exceeds spending at regular elections, which itself dwarfs spending levels in the UK.

Looking at recalls targeting politicians who are roughly equivalent to MPs, the discrepancy in spending is stark. In 2013, two Colorado state senators were recalled following their support for gun control legislation. The senators represented districts each with approximately twice the number of constituents as British MPs (140,000), though lower voter turnout meant that the actual number of voters in elections to the state senate were comparable to those in UK constituencies. The number of signatures required to trigger the recall was also comparable to proposed threshold levels for recall of MPs. Yet spending during the recall campaign was on a completely different scale: the recall campaigners spent $600,000, while supporters of the targeted senators spent $4m.2 Though campaign spending was not decisive – the senators were recalled successfully despite spending several times more than recall proponents – it illustrates the potential for recall to become a focus for powerful interest groups.

The prospect of recall campaigns paying commercial organisations to drum up signatures is a specific example of how money can pervert the recall process. During the 2003 California gubernatorial recall campaign, millionaire businessman Darrell Issa contributed $2m to pay for the collection of signatures for the recall petition, which had a decisive impact on the campaign. Without paid canvassers, there would have likely been no recall: they collected 1.3m of the 2.1m signatures on the recall petition.3 This would simply not be tolerated in the UK political system, where paying political canvassers is a criminal offence.4

This scale of spending would seriously undermine trust in the outcome of any recall vote. Recall must not be an outlet for money on a scale that would not be permissible at other electoral contests. Spending on promoting or opposing recall campaigns must be regulated in line with spending limits for other forms of election. Spending limits for recall should take into account the unique nature of the recall mechanism: a lengthy petition-gathering process, potentially followed by a recall referendum. Recall campaigns will need to be able to sustain a publicity drive and a signature-gathering operation in order to have a realistic prospect of success.

In setting spending limits for recall campaigns, a number of existing models may be relevant. The government’s proposals for regulating spending during recall campaigns in the Draft Bill provide

1 Citizens United v. Federal Election Commission (2010), McCutcheon v. Federal Election Commission (2014) 2 http://sunlightfoundation.com/blog/2013/12/10/did-guns-beat-money-in-colorado-recalls/ 3 http://niemanreports.org/articles/tracking-money-in-the-california-recall-election/ 4 Representation of the People Act 1983, Section 111 21 for registered organisations to spend up to £10,000.5 However, this is unlikely to be enough to cover the additional signature-gathering costs that campaigns would assume if signatures were collected by campaigns themselves rather than in designated places under supervision from the electoral authorities. The spending limit for by-elections (£100,000)6 is significantly higher than constituency spending limits for general elections7, which reflects the high-profile, high-intensity nature of campaigning at by-elections. This indicates that existing UK electoral law is sensitive to the need for higher limits in one-off electoral contests. The Electoral Commission’s principles on spending limits for referendums are a useful guide to what the regulation might look like for recall:

limits should be set at a level which allows effective campaigning for all outcomes of a referendum, deters excessive spending, and is not so low as to distort reasonable campaigning behaviour and affect transparency, for instance by giving campaigners an artificial incentive to split their spending between multiple campaigning bodies.8

During referendum campaigns, registered organisations can apply to the Electoral Commission to become the lead campaigner for their side of the referendum, which confers benefits such as higher spending limits. A similar arrangement could be considered for recall campaigns, with the targeted MP leading the campaign against the recall and the initiator of the recall petition (or a nominated organisation) assuming the same role on the other side. The Lobbying Act’s rules on non-party campaigning, which requires third party organisations campaigning for a party or candidate in coalition to jointly account for spending, may more reasonably be applied in the context of recall campaigns.

The image of recall as the tool of rich donors may hold true in the US, though perhaps no more so than US politics as a whole. However, there is no prospect that recall in the UK would result in importing US spending levels. Proper regulation of spending would ensure that recall is not dominated by big donors. Recall would encourage political parties to re-run the general election

Recall must be more than a way of trying to rerun the election to get a different result.9

The principle behind recall is that voters should be allowed to revoke their representative’s mandate if they have lost confidence in them. Typically, this will involve some failure to live up to expectations set during an election: misconduct, changing party, failing to represent, or breaking an electoral promise. However, since full recall leaves the decision up to voters, it opens up the possibility that “sore losers” – voters and political parties whose candidate lost the election – simply use recall as an opportunity to re-run the election before the term is up. In the past decade, a pattern of “sore loser” recalls has developed in the US. Would this happen in the UK?

5 HM Government, Recall of MPs Draft Bill(Cm 8241, 2011), London: Stationery Office, p. 40 6 http://www.parliament.uk/business/publications/research/briefing-papers/SN04611/election-expenditure-controls 7 Candidate spending limits are based on the number of electors in the constituency: £7,150 for both borough and county constituencies, plus 5p and 7p respectively for each elector on the electoral register. This implies an average spending limit of £11,550 in the ‘short’ election period (after the dissolution of parliament) and £29,350 for the ‘long’ period. http://www.elector( - alcommission.org.uk/__data/assets/pdf_file/0008/166355/2013-Candidate-spending-limit-review-UKPGE-and-LGEW-Final- Recommendations.pdf) There are no constituency spending limits for parties; rather, the national spending limit is calculated by multiplying £30,000 by the number of constituencies being contested. There are however spending limits for England, Scotland, Wales and Northern Ireland. (www.parliament.uk/briefing-papers/SN04611.pdf) 8 http://www.electoralcommission.org.uk/__data/assets/pdf_file/0004/87412/Referendum-Principles-Paper-2010-06-02- FINAL.pdf 9 HM Government, Recall of MPs Draft Bill(Cm 8241, 2011), London: Stationery Office, p. 47 Case Study: Wisconsin — when recalls attack

The wave of recall elections in Wisconsin in 2011-12 provide a textbook example of how recall can provide a flashpoint for partisan tensions. The 2010 general election saw the Republican Party take control of both houses of the state legislature; Republican Scott Walker was also elected governor. Less than a year later, Walker’s 2011 budget included large spending cuts which generated uproar amongst voters. There were extensive protests against the cuts and Walker’s moves to restrict the collective bargaining rights of public sector workers. Opponents of the budget quickly turned to the idea of recall. A gubernatorial recall petition was initiated at the earliest possible date, 15th November 2011.10 Petitions to recall Republican state legislators who supported the budget were also initiated, as were petitions to recall a number of Democratic senators who had left the state in order to prevent the budget vote from reaching a quorum. Money poured into both sides of the campaign: an estimated $125-130m was spent in total on the wave of recalls.11 Wisconsin state law does not place limits on the maximum individual donation that can be made to pro- and anti-recall campaigns.

In total, 16 petitions split evenly between Republicans and Democrats were initiated. 6 of the 8 Republican petitions and 3 of the 8 Democratic petitions gathered enough signatures for recall elections to take place in 2011. A further four recall elections would take place in 2012 including an attempt to recall Walker himself. The gubernatorial recall election was a straightforward re-run of the 2010 election, with the same candidate returning to oppose Walker. The results of this wave of recalls were that three state senators were recalled whilst Walker survived with a slightly increased share of the vote.

The US context may not be the most relevant guide to how recall might work in the UK. The two-party system in the US incentivises parties to seek out every opportunity to unseat elected officials, as one party’s loss is almost invariably the other party’s gain. Successful recall attempts in the UK’s multi-party system would likely involve a level of collaboration between supporters of multiple parties to gain the necessary level of support to unseat a sitting MP. If a recall campaign is transparently intended for one party’s political gain, it is unlikely to mobilise the required level of support. The example of the 1997 Winchester by-election suggests that the public have a low tolerance for attempts to re-run the election. Mark Oaten was elected MP for Winchester in the 1997 general election by a majority of just two votes. The defeated Conservatives challenged the election on technical grounds, which resulted in a by-election in October 1997. This election returned Oaten as MP with a majority of 21,556, with the “sore loser” effect becoming part of the campaign; the unofficial campaign slogan was “when the umpire gives you out, you should walk”.12

The “sore loser” pattern of recall tends to occur in already highly polarised political systems, such as the US or Venezuela. Recall campaigns elsewhere, even when initiated on policy issues rather than misconduct, have generally dealt with instances where a politician has reneged on election promises. For example, in 2010, several members of the British Columbia legislature were the subject of recall campaigns for their support of the Harmonised Sales Tax. The BC government had denied they supported the HST before the election but had signed up to it immediately after being re-elected. Ultimately, the recalls proved unnecessary as a province-wide referendum resulted in the abolition of the tax.13 The UK appears more in line with these examples than with the US. The biggest policy-based campaign for recall in the UK has been the NUS call for Liberal Democrat MPs to be recalled following their support for increased tuition fees, which was the subject of a policy pledge before the election.

10 Wisconsin has a grace period of one year after an election when an elected official cannot be recalled. 11 http://www.jsonline.com/news/statepolitics/spending-on-state-recalls-exceeds-125-million-group-says- hb5mriv-157906265.html 12 http://www.independent.co.uk/news/tory-tries-the-woolly-pully-way-to-power-1294333.html 13 http://www.cbc.ca/news/canada/british-columbia/hst-recall-campaign-takes-aim-at-5-mlas-1.869346 ; http://www.cbc. ca/news/canada/british-columbia/b-c-returns-to-old-sales-tax-after-hst-rejection-1.1357314 23 Recall becomes more attractive to political parties where unseating individual candidates would result in gaining control of the executive or a change of control in the legislature. This has prompted campaigners to seek multiple recalls to shift political control: the prospect of gaining control over the state legislature was a motivating factor for both the Wisconsin and the Colorado recalls. In the UK, the size of the chamber and the first past the post electoral system ensures that it is rare that governments have so small a majority that it would be practical to overturn with co-ordinated recalls. After the 2010 general election, the effective coalition government majority was 83; overturning that majority would therefore require 42 successful recalls – more than the number of recall elections held in the entire history of recall in the US.14 A recall election for an individual MP would likely have a very different focus to the general election campaign in the same constituency.

Money has played a key role in the recent proliferation of recall attempts at the state level in the US in the past decade. Weakening of campaign finance rules means that there is a practically unlimited supply of money to flow into election campaigns. In states like Wisconsin which have less stringent rules regarding donations to recall campaigns, recall attempts may provide more attractive opportunities to channel money to unseat an elected official. UK political parties are in a much more precarious financial position.15 The challenge for UK political parties is finding enough income to keep up in existing electoral contests, not finding more opportunities to channel money into election outcomes. Recall campaigns may generate additional donations as donors respond to the urgency of a campaign to unseat an MP. However, if recall spending is regulated in a similar way to other electoral contests, donations to a recall campaign are likely to cannibalize regular donations which fund general election campaigns. In the UK context, parties would have to think very carefully before supporting a recall campaign which may exhaust the funds needed for an election campaign.

In certain contexts, recall has the potential to inflame existing political antagonisms. However, there are good reasons to think that this effect would be limited if recall were introduced in the UK. Voters have little appetite to recall an MP just because they disagree with them and stricter spending limits and UK political institutions provide little incentive for political parties to pursue recall strategies used in the US. Recall attempts would be used to disrupt the work of MPs

Fighting a recall election is a considerable investment of time and resources that could be devoted to the business of representation. A recall campaign would force an MP to divert attention from representing constituents and making laws to defending their seat. This disruption must be justified by the gains in accountability. Allowing voters to initiate recall on demand potentially opens up the door to abuse: recalls on frivolous grounds, personal issues or baseless accusations. However, the evidence is that even in jurisdictions where low signature thresholds make recalls relatively easy, such as California, this happens rarely if at all. Once a recall meets the election threshold, it stands a good chance of success: over 50% of state-level recall elections result in the recall of the targeted politician.

Although recall in theory provides the opportunity to disrupt the work of elected representatives by repeated recall attempts and spurious accusations, this threat simply has not materialised. There is no significant evidence of frivolous recall attempts in the US, British Columbia, or elsewhere, and none at all have reached the election stage. A recent comparative study of recall found that “there is little evidence that provisions for revoking the mandates of elected representatives have disrupted politics.”16

14 The last government that would have been vulnerable to recall campaigns was the 1974-79 Labour government, which ultimately lost its majority of 3 following a series of defections and by-election defeats. 15 Both Labour and the Conservatives have reduced election spending in recent years in order to pay down debts incurred during the 2005 election campaign. 16 Matt Qvortrup, “Hasta La Vista: A Comparative Institutionalist Analysis of the Recall”, Representation, 47(2) (2011), pp. 161-170, p. 168 Recall would stop MPs from making unpopular decisions or speaking out on controversial issues

One of the government’s main reasons for rejecting full recall was that recall would prevent MPs from making difficult decisions:

If a model was adopted...which allow[ed] for a person to be recalled for political reasons, this may only serve to prevent MPs from tackling controversial issues or taking on vested interests.17

The fear is that making MPs individually accountable to a public which is easily manipulated by media or corporate interests will make backbenchers more timid and ministers more craven. The threat of recall would have a chilling effect on MPs pursuing unpopular causes or challenging powerful vested interests. Witnesses to the PCRC cited Tam Dalyell’s opposition to the Falklands War, Conservative MPs supporting gay rights, or Tom Watson’s campaigning on phone hacking as examples which would have been subject to recall campaigns.18 Variations on this argument claim that the inevitably parochial views of constituents would privilege the short term over the long term and the local over the national interest.19 In short, recall would subordinate good governance to the caprice of the voter.

Full recall leaves the decision to recall in the hands of ordinary voters. The prospect of a recall campaign is indeed intended to influence politicians’ behaviour, deterring misconduct and enhancing individual accountability. Would it also clip the wings of maverick MPs? The evidence of voters’ actual opinions on the role of an MP and on justifications for recall is promising. In a poll commissioned by the PCRC’s recall inquiry, 77% responded that simply disagreeing with an MP on a policy issue would not be sufficient grounds for a recall.

There is no significant evidence that recall is employed in this way. Despite the polarised political culture of the US, which would seem to provide ample opportunity for recall based on controversial views, there are very few examples of this kind of recall. There have been two successful recalls and one unsuccessful recall election on the subject of specific gun control legislation.20 The only other example that fits this mould is that of Edwin Grant, a California state senator recalled in 1914 over his votes in favour of prohibition and legislation restricting prostitution. MPs are unlikely to be put in the same position. Government control of the legislative timetable means that individual MPs are unlikely to have a decisive impact on controversial legislation and are therefore less likely to attract this kind of recall attempt. In Westminster, the free vote system is well-understood and respected by MPs and constituents alike. Voters regularly express a preference for MPs using their own judgment rather than simply following the party line. Internationally, there is not a single example where simply “speaking out” has triggered a recall.

There already exists a mechanism used to remove MPs with controversial views: deselection. Constituency parties can vote to deselect their MP as a candidate for the next general election. This has indeed been used in the manner described. MPs have faced deselection for a variety of controversial opinions, from pro-European to anti-immigration views. Homosexuality or support for gay rights has been a popular justification for deselection for the past sixty years.21

17 HM Government, Recall of MPs Draft Bill(Cm 8241, 2011), London: Stationery Office, p. 47 18 Mark Harper, Political and Constitutional Reform Committee, Recall of MPs, 21 June 2012, HC 373 2012-13, Ev 34 19 Political and Constitutional Reform Committee, Recall of MPs, 21 June 2012, HC 373 2012-13, p. 27-8 20 Two of these are the Colorado state senators previously mentioned, who voted for compulsory backgrounds checks on gun purchasers and restrictions on high-capacity magazines; the other is David Roberti, a California state senator who survived a recall based on his support for a ban on assault weapons. 21 H Montgomery Hyde (Unionist) was the first of several MPs to be deselected in the run-up to the 1959 election over their support for the Wolfenden Report recommending the decriminalisation of homosexual acts; Maureen Colquhoun (Labour) was deselected in 1977, partly in reaction to her being “outed” as a lesbian by the tabloid press; the same factors were allegedly at play in the unsuccessful deselection attempt of Crispin Blunt (Conservative) in 2013. 25 However, deselection is not especially democratic. Typically the electorate of local constituency party members numbers in the hundreds, rather than the minimum of over 14,000 who would be involved in a recall process. Even if MPs were subject to recall for controversial opinions, opening up this kind of process to the whole electorate is likely to make it less rather than more vulnerable to manipulation. It is hardly democratic for there to be two classes of MPs: those in marginal seats who are accountable to their electorate, and those in safe seats who are accountable to an unrepresentative minority.

Recall is a mechanism of positive as well as negative feedback. As one study of recall in the US noted, “one of the outcomes of [unsuccessful] recall elections has often been the paradoxical one that the incumbent has been strengthened.”22 Ronald Reagan faced three recall attempts as governor of California, but was able to leverage the failure of the recall petitions to build support and vindicate his record in office. Unsuccessful recall attempts, whether they fail at the petition or election stage, can empower the targeted politician by gauging the level of discontent at their approach. A recall defeated by a close margin could give an MP the chance to change their approach before the next general election. Equally, a recall attempt which peters out at the petition stage could encourage an MP to pursue their approach with renewed vigour. This could provide feedback that MPs cannot derive from a general election result determined by the government’s record rather than that of the individual MP.

Recall promises to extend individual accountability, but if it forces politicians to make bad decisions for fear of ouster, it may paradoxically undermine confidence in good government. There is some evidence that recall could promote short-termism and unrealistic expectations of politicians. In 1993, five members of the city council of Covina, Los Angeles County were recalled over the introduction of a 6% utility tax. As a result of lost revenue from the utility tax, the library and fire station came under threat of closure and 42 city employees faced redundancy. The councillors who were elected as replacements then introduced an 8.25% tax.23 However, there are just as many instances where the accountability recall provides has contributed to more measured decision-making. In Arizona, Republican state senator Russell Pearce was recalled and replaced by another conservative Republican in 2011 after pursuing draconian anti-immigration legislation which “made Arizona a national pariah” and was repeatedly declared unconstitutional by federal courts.24

How would this work in the UK? As previously discussed, MPs have a multiple role, both representing their local constituency and acting as national legislators. This multiple role raises the possibility that making MPs individually accountable to their voters through recall would shift their focus away from national issues towards the sectional interests of their constituents. This is not inevitable. Voters have more complex views on the role of an MP than any caricature presented of them as short-sighted nimbys.

Constituents understand that their MP is both a national and a local representative. An Ipsos-Mori poll in 2013 found that 56% of voters believed their MP should put the national interest first, while only 40% believed the interest of their constituents should be top priority.25 Nor are constituents opposed to MPs using their own judgment on political issues: 28% said that MPs should pay a great deal of attention to their own judgment in making decisions.26 MPs themselves differ on the extent to which they take the local interest into account when voting in the Commons. In matters which specifically affect an MP’s constituency, voting on the basis of the local interest is accepted as perfectly legitimate. To take one recent example, MPs whose constituencies would be affected by the High Speed 2 rail link generally voted against the HS2 Bill, acting as local as well as national representatives. What recall would do here is force MPs to be ready to justify

22 Qvortrup, p. 164 23 Felchner, M. E., “Recall Elections: Democracy in Action or Populism Run Amok”; Congressional Quarterly Inc, vol 25. no. 5, 2004 24 http://edition.cnn.com/2011/11/09/politics/arizona-recall-vote/ 25 http://www.ipsos-mori.com/researchpublications/researcharchive/3184/Trust-in-MPs-poll.aspx 26 http://cdn.yougov.com/cumulus_uploads/document/ww4o7wko1q/WebVersion_Democracy%20in%20Britain%20A5.pdf their decisions when they vote against a clear local interest. If an MP is out of step with their constituents on a issue of major local interest, they would have the chance to make their case during any resulting recall campaign. Under the existing system, in a safe seat the MP may never have to make that case.

Recall is not a bludgeon with which constituents beat politicians into submission. Looking at the actual practice of recall, it is clear that the claims that MPs would be cowed into silence are overblown. Indeed, recall would be fairer on maverick MPs who may face deselection for their controversial views. Equally, recall is unlikely to compromise good decision-making in government. Even if recall affects decisions on the margins, the gain in accountability clearly outweighs any limited impact it might have. Recall would give constituents of MPs with ministerial office undue power

The PCRC inquiry also pointed to the potential anomaly of constituents whose MP is a minister – or even the prime minister – having the power to recall their MP on policy matters. This appears to hand some constituents a power over national issues that is denied to those represented by mere backbench MPs.27 However, this is less of an anomaly than a reflection of the individual character of representation in the UK. Ministers and prime ministers are not elected by the country as a whole; indeed, they are selected by the prime minister and by their party, respectively. The same anomaly exists at a general election, where the results may be a return for the sitting government but would still require a change of prime minister if the incumbent were defeated in their constituency. A general election may involve the whole country, but it is more accurately described as 650 local elections.

Ministers are quite aware that taking a ministerial post means negotiating their multiple role as local representative, national legislator and member of a national executive. Take the fairly typical statement of Esther McVey on her recent appointment to the Cabinet: “I wanted a voice from Merseyside, a voice from Wirral, at the top table making decisions there.”28 This kind of statement makes little sense if the extension of the local role into the membership of the national executive is not matched by an extension of accountability. A ministerial post should not give an MP a free pass. Conclusion

For many MPs who sit in safe seats, the introduction of recall would make them individually – rather than collectively – accountable to their voters for the first time. MPs whose party label has ensured their survival, even when seriously out of step with their constituents, may be right to worry about recall. However, there is little evidence to back up many of the wilder claims about recall’s populist tendencies. Our understanding of recall is coloured by the experience of the US, which provides useful examples of how recall works in practice, but is not a wholly accurate guide to how it might work when adapted to the UK political context. The UK public is strongly in favour of recall but they have little appetite for its use as a nakedly partisan tool. UK political institutions also offer constraints which smooth the potential for disruption. Recall would significantly improve accountability without jeopardising good governance.

27 Alan Renwick, Political and Constitutional Reform Committee, Recall of MPs, 21 June 2012, HC 373 2012-13, Ev 7 28 http://www.theguardian.com/politics/2014/jul/16/nick-clegg-tweet-mocks-daily-mail-coverage-women-cabinet 27

Recall for the UK

Introducing the government’s proposals for recall, Nick Clegg wrote, “It is crucial we do all we can to ensure that MPs remain accountable to their constituents.”1 The proposals that followed failed to live up to this promise, maintaining the principle that only politicians are fit to sit in judgment over other politicians. Now that the government have resurrected those same proposals, it is vital to demonstrate that real recall is viable within the UK political system. Here we offer an alternative blueprint for recall, one which gives voters, not parliament or the courts, the power to decide when an MP should be recalled. This would create real accountability for individual MPs, strengthen the link between MPs and their constituents, and rebuild public confidence in the political system.

Our recommendations are based on one fundamental principle: recall should be a mechanism for political accountability, not a judicial or disciplinary process. A recall process which deals solely with misconduct fails to address the problem highlighted by the expenses scandal. There is a serious lack of individual accountability for MPs built into the UK political system that runs far deeper than misconduct, allowing MPs who lose the confidence of their constituents to avoid consequences at the ballot box. Recall would make the link between an MP and their constituents a meaningful accountability mechanism, enhancing the individual accountability of MPs without compromising the collective accountability of a government at a general election. Previous proposals for real recall

This recommendation is informed by previous proposals for real recall, including Private Members’ Bills from Zac Goldsmith, Douglas Carswell and 38 Degrees’ Draft Recall Bill, published in June 2014, after the Queen’s Speech announcement of the return of recall.

The 38 Degrees Draft Bill follows the government’s framework for recall closely in order to demonstrate that a proposal for real recall can accommodate as many of the government’s concerns as possible. The 38D Bill retains the supervised signature-gathering process of the government’s proposals, but introduces an initial stage where signatures are gathered by recall campaigners themselves in order to trigger the supervised petition stage. It also provides for a referendum before the recall is complete.

In detail, the 38D process is as follows:

● notice of intent to recall: recall supporters must gather the signatures of 5% of the registered voters in the constituency in 28 days ● recall petition: a successful notice of intent triggers a recall petition, where 20% of the registered voters in the constituency must sign the petition in approved places in the constituency in 56 days ● recall referendum: a successful petition triggers a recall referendum, where a simple majority recalls the target politician and a by-election follows2

However, 38 Degrees may have conceded too much ground to the government’s proposals. The introduction of a referendum stage makes the security requirements that the government mandated for the preceding petition stage unnecessarily restrictive. As the petition functions only to indicate the demand for a recall referendum and not an electoral process in itself, signatures can be collected by registered volunteers and verified by electoral authorities without compromising the integrity of the recall process.

1 HM Government, Recall of MPs Draft Bill(Cm 8241, 2011), London: Stationery Office, p. 5 2 38 Degrees Draft Bill 29 Summary of proposed recall process

● recall petition: recall supporters must gather the signatures of 20% of voters registered in the constituency in 90 days ● recall referendum: a successful petition triggers a referendum, where a simple majority recalls the MP ● by-election: a successful referendum vacates the MP’s seat and a by-election is held to replace them

Recommendations

A constituent who wants to recall their MP should be able to apply for a recall petition on demand. The threshold for a successful recall petition should be 20% of the number of registered voters. Recall campaigns should have 90 days to collect the required number of signatures. This threshold and time limit ensures that there is a significant level of demand for a recall referendum without imposing unrealistic requirements on recall supporters. Internationally, the risk that recall thresholds are set too high, undermining public confidence in the accountability of politicians, is far more evident than the potential disruption caused by frequent recall attempts. With the additional check of a recall referendum, this threshold would not expose MPs to recall on the whims of a minority.

Constituents triggering a recall petition should not have to specify the reason for the recall on the petition. This empowers voters, not campaigners, by leaving the individual reasons for the recall in the hands of the voter. The recall process provides ample opportunity for recall campaigners and supporters of the targeted politician to articulate their views, and it is extremely unlikely that a campaign would succeed without presenting reasons to the electorate.

Signatures for the recall petition should only be collected by volunteer canvassers for recall campaigns who register with the electoral authorities. Registered volunteers would be responsible for witnessing signatures, which would be collected on official petition materials. Volunteers should be able to collect signatures in any location. Where practical, electronic signatures should be permitted if they are obtained while the canvasser is present; however, remote electronic signatures should not be permitted. This would balance the openness of the petition process with the need for security. Registering volunteers would ensure that recall campaigns are accountable for the signatures they collect.

A valid recall petition should trigger a recall referendum, where a simple majority recalls the targeted politician. If the recall referendum is successful, the MP’s seat is vacated and a by-election is held. A recall referendum gives every voter a say in whether their MP is recalled and ensures a majority supports the recall. It would also focus the recall process on the actions of the individual MP, rather than the question of who will replace them.

There should be a grace period of six months before and after a general election and six months after a recall referendum or by-election when no recall petition can be triggered. This would help avoid “sore loser” recalls, where a recall is simply an attempt to re-run an election to get a different result. This would also minimise the potential disruption to an MP from repeated recall attempts. Organisations who spend more than £500 campaigning in support or opposition to the recall petition should register with the local returning officer. Spending limits should be set in proportion to existing constituency limits on candidate spending, with increased limits if the recall process proceeds to a referendum. Donations to recall campaigns should be regulated in line with existing rules on political donations. This follows the government’s proposals for regulation of campaign spending during the recall process. Spending limits should be adapted to take into account the different structure of the process and the fact that campaigners will shoulder many of the administrative costs of collecting signatures for the petition.

The government should investigate recall provisions for other roles, including directly elected mayors, police and crime commissioners and local councillors. The case for recall is even stronger where political power is concentrated in a single executive position. However, successive governments have expanded directly elected executive positions without giving voters the power to remove them.

31 About Unlock Democracy

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