Second chamber reform: total recall? (16 July 2008)
Like Thomas Strathclyde, I am dismayed by the proposed Lords’ reforms, but it’s the issue of recall that is truly indefensible
There are many disappointing aspects to yesterday’s government white paper on the reform of the House of Lords, as well as some useful proposals. On this, at least, I am in agreement with Lord Strathclyde, although we identify different disappointments. He valiantly defends the indefensible proposition that a new second chamber would, by virtue of being elected by a system of first past the post, be dominated by the hand-picked candidates of the two largest political parties, almost regardless of how low their vote may fall, and tend to have a government majority. This would make for a poor revising, scrutinising chamber. Postponing any action until after the general election is also disappointing, not least because it minimises the chance of anything actually happening for another few decades, as is normal in the world of Lords’ reform. But the most surprising let-down in the small print of the white paper is the suggestion that members of the new Senate (or whatever it ends up being designated) might be subject to recall votes.
Recall is the procedure whereby an elected official can be subject to a special election, triggered by a petition signed by a proportion of the electorate demanding one. If the majority (or some specified proportion of the voters or the electorate) decide to give the incumbent the boot, then out he or she goes. Recall was originally part of the progressive government reform package in United States, in the early decades of the 20th century, along with primary elections and the direct election of senators. But in effect, recall is thoroughly reactionary rather than progressive. It gives well-organised and powerful interest groups the ability to knock out public figures who oppose their agenda, as shown by the most famous recall in recent years, the overthrow of governor Gray Davis of California in 2003.
Recall has other weird properties. It is perfectly possible, particularly if the bizarre suggestion of introducing first past the post becomes reality, for the replacement candidate to have fewer votes than the recalled incumbent.
Recall of members of the UK Senate would, according to the white paper, be only for serious dereliction of duty, corruption or misconduct, and perhaps only after five years in office. Recall is in the white paper for an understandable reason – that the members of the Senate would have long terms of office, of around 12 years, and that in extreme cases there should be some sanction to get rid of members who are not doing their duty. But there is a terrible dilemma. Too broad a definition of the grounds for recall will lead to politically motivated recalls. Too narrow, and it will either not be used or end up being an excuse for the Senate not to take action itself against errant members.
The white paper tentatively proposes a tighter set of rules about standards of conduct in the Senate than the current Lords’ rules, and an attendance requirement. Instead of recall, the new chamber should have a really rigorous set of rules, enforced by proper independent scrutiny bodies. It should also – as should the Commons – be subject to the criminal laws of fraud and corruption. Where serious cases arise, the legal process – with its standards of proof and definition of terms – is a more appropriate way of coping than a heated and potentially highly politicised recall vote. For lesser evils, recall seems excessive – although it should be made as hard as possible for the chamber to avoid effective sanctions against those who commit them.
Even if recall were hardly used in the Senate, and its inclusion motivated by concern about long terms of office, its enshrinement in British constitutional law would be a dangerous precedent. Recall is not a scalpel that cuts out only the moribund and corrupt from the body politic, it is a very blunt instrument. Even more than the referendum, it is vulnerable to exploitation by demagogues, anti-politics populism and the malice of bitter defeated candidates and special interests who are losing out in the policy process. Recall is purely negative – it is about accumulating discontents, not putting forward a positive agenda. There is too much of that already in political life.