Official Report 746KB pdf
Our second agenda item is our continued consideration of the Scottish Parliament (Recall and Removal of Members) Bill at stage 1. We are joined by our first panel, which consists of three witnesses. I say good morning to Dr Ben Stanford, a senior lecturer in law from Liverpool John Moores University, who joins us online; Dr Nick McKerrell, a senior lecturer in law at Glasgow Caledonian University; and Professor Alistair Clark, professor of political science at Newcastle University.
We will move straight to questions. Should any witness wish to come in, I ask you to catch my attention or type an R in the chat function.
Finally, I say good morning to Graham Simpson MSP, who has sponsored the bill. I will be more than happy to allow Graham to come in to ask questions and seek clarifications when he wishes.
I hope that everyone is content with that. I will kick off the evidence session by asking about the overarching purposes of the bill, and the circumstances in which an MSP can be removed from office during a parliamentary session, including whether what we have at present is too limited. Is the bill necessary, and does it fulfil those purposes?
Good morning. Thank you for inviting me and, especially, for allowing me to attend remotely.
I welcome and encourage such a bill, especially given the events of the past five or 10 years, particularly at Westminster, although the issue obviously spreads further than that. I suggest that returning some public confidence and accountability by allowing for recall in limited circumstances is certainly to be welcomed, and I guess that is why we are discussing the bill today.
Were the bill to be passed, in whatever form, it would be significant. It would be very important in addressing recall and removal. It is always important to consider matters of standards and conduct, and the bill has done us a service in bringing those issues to the fore again.
Whether it would act as a deterrent is a bit unclear, to my mind, as is the nature of the problem. The Parliament website tells us that, since 1999, there have been around 350 individual MSPs but apparently only around six of them, or fewer than 2 per cent, would have fallen foul of the bill’s requirements. Therefore, we are in danger of forgetting that most MSPs comply with conduct and standards requirements without any difficulty. That said, it is very clear that there are loopholes in those, which is one of the aspects that the bill helps us to consider.
I am not against the general purposes of the bill, but I wonder whether, as it stands, it might create more problems than it resolves and whether it would deal with public perceptions or make things worse.
I am sure that we will get into matters such as cost. There is a very real danger of voter confusion in relation to the bill and of the cost of a regional poll being used to discredit the political process.
That is very helpful. As always, it is the detail that causes the problem.
Quite.
Dr McKerrell, do you want to come in at this point?
Yes. I think that the bill is required because it would fill a gap in democracy, as it would mean that the people could intervene directly in the process. As colleagues have said, it also reflects what is going on at Westminster.
The problem is that it would introduce direct intervention into a system of representative democracy. In Scotland, and in Britain as a whole, there is not a big tradition of direct democracy whereby people can hold politicians to account as they do in a variety of ways around the world. That does not really occur in our constitutional tradition. Nevertheless, I think that it is good to have an element of that in our system.
The real struggle will be twofold. First, how do we combine that with a representative democracy system in which we give a lot of power to our elected representatives? Secondly, how do we do that within our proportional Parliament? Some of the details and the tensions that are reflected in the bill relate to those two phenomena: how we introduce direct democracy in a representative system and how we introduce it where we have two methods of election to the Scottish Parliament.
Do you have any concerns, or see any potential problems, with the conflict between the methodology in the bill, which is effectively direct, and the representative element? Should we be concerned enough to say that we should never let the two mix, or are you confident that there is scope for both in proportion?
The Westminster legislation has shown that there is potential scope for both, although that has its own problems.
The issue is reflected a little in the reasons for which one would endorse sanctions—for example, if misconduct in the parliamentary process or in chambers were combined with criminal actions. One could argue that the former is more an internal matter for Parliament. In some circumstances, the representatives—the MSPs—would be more inclined than the general public to take action on that, and would be aware of its severity. However, we are asking the general public, when somebody behaves very badly in Parliament, in the most extreme circumstances, to have a say in that. When it comes to more egregious and criminal behaviour, I think that it is quite a good thing to involve the people in that, but it is a wee bit different from a normal representative process.
So, there is a potential tension. Therefore, the committee should look closely at the triggering effects, because, if we do not, that conflict could potentially cause a bigger problem.
It is perhaps not so much a problem as an overlap of two different visions of democracy.
I have a follow-up question. I note that a number of other legislatures use recall. What are the highlights in that regard? What examples exist outwith Scotland and, indeed, outwith the United Kingdom, to which we should pay attention in order to learn about the more detailed aspects?
I am happy to go to Dr Stanford first, if he wants to contribute.
America is an obvious comparator in some respects. Some states really go to town with recall petitions. In many states, there is no legal trigger—it is simply a matter of voters objecting to a legislator and to their views and their general conduct. The threshold is quite low. I suggest that going down that route is definitely to be avoided. We do not want there to be weekly or monthly recall petitions here; that really would undermine confidence in and the stability of the legislature.
In the UK example, the Recall of MPs Act 2015 has been around for 10 years and it has resulted in only four by-elections, albeit that there have been six petitions: as members will know, one was stopped early and one did not lead to a by-election.
It is a matter of balance. It is not a numbers game—it is about quality rather than quantity—but I suggest that keeping the scope really limited, as the 2015 act does, should definitely be the starting point.
There is a big tradition of recall not only in the United States of America, but in the Americas. In Latin America, there is the concept of holding politicians to account through the right to recall on a variety of issues, mainly—as Ben Stanford outlined—on personal issues to do with political differences with a representative. In our submission, we highlight that Peru had 5,000 recall petitions in the course of a decade. You could argue that that is largely down to polarisation in that society, but it is also down to a flawed democratic process in which elections did not solve the problem and that polarisation is endless.
As another aside, given that we have had a number of polarising debates in Britain, it would be a problem if we did not have regulation and recall became a substitute for elections, as that could lead to paralysis. I do not think that we are anywhere near that with the bill that we are considering. The recall process in America gave us the phenomenon of Arnold Schwarzenegger as a governor in California, if you remember. The debate over the issue was so personality driven that the recall election that was held was a surrogate for political disagreement. This is not that. I think that there is room for that, but you would have to have a very different democratic structure than we have in Scotland or, indeed, in Britain.
Looking at the issue comparatively, what strikes me is how few recall systems there actually are. It is not a practice that most Parliaments have. You must remember that the Westminster context for the introduction of the 2015 act was, of course, the expenses scandal, and we have had nothing quite as bad as that here, by any manner of means.
Where recall seems to be more useful or, indeed, more often applied, is at the local level—for example, for local mayors. There are two key variations. The first is whether the process is focused on a particular individual who has erred in some way, or on an institution as a whole, which means that, if there is a recall, it is a case of saying, “Everybody out,” and “Start again.”
The second is on the threshold at which a petition leads to a recall, which then proceeds—10 per cent is comparatively quite low in that regard. One or two places have a threshold of around 10 per cent—Brandenburg, in Germany, for instance, has a 10 per cent threshold—but, normally, it tends to be higher than that. There are various things to factor in, but my main impression, from looking at the matter, is of just how rare a recall system is.
Thank you. I am sure that we will explore some of those points in detail later. I pass over to Sue Webber.
I know that we have covered a bit of this in some of the discussion already. You have spoken about how the recall process works in other countries. The bill that Graham Simpson is introducing broadly seeks to replicate the principles and design of the Recall of MPs Act 2015. Does the experience to date of how that act has worked in practice suggest that it is a good approach? Dr Stanford, you said that there had been only four by-elections and six petitions. I will come straight to you, if that is okay.
Sure. Thank you. There was definitely some early scepticism about the 2015 act—some people thought that the threshold would be too high and therefore ineffective, and some people thought that pressure groups would simply seek to oust MPs for spurious reasons.
We cannot really say that the first petition failed, because it was an expression of the will of the voters not to trigger the mechanism—not to reach the 10 per cent threshold. On that basis, we cannot say that it failed; it was simply what the people wanted to do. However, there were obviously practical failures with that first petition—not enough polling stations, issues with the opening hours and that sort of thing. The subsequent petitions addressed those to some extent.
Four by-elections and six petitions are healthy numbers that show that the process works. Obviously, many other MPs very narrowly avoided being subject to a petition—they resigned just before a suspension would have been recommended and so on. Overall, the 2015 act has been successful.
There have been some problems, which have been addressed to some extent but which the bill might have to consider, such as an appeals mechanism. That is the criminal route for triggering a recall petition—there are appeals in the courts—but some appeals mechanisms might need to be considered in relation to other ways of activating the recall petition.
09:15
You said that there were a number of resignations before by-elections were triggered. Do you think that the process acts as a deterrent? You know what I mean when I say “deterrent”. It is almost a cost containment mechanism—the member knows that the game is up, to be blunt.
I suppose that every MP who has experienced that will have their own answer to that question, but I would suggest that it is perhaps a case of their jumping before they are pushed.
I would agree with all of that. There is a need for such a process in the sense that we are in an era when politicians in general are viewed sceptically. To involve the people in any way is a good thing to speak about and do, but the problem is how to engage in a practical way. That has happened at Westminster, to a degree, but the results have been varied. If you ask the general populace to intervene on the issue, how bought-in are they?
Alistair Clark mentioned the MP expenses scandal and the outrage that the general public felt. A number of jail sentences for MPs ensued from that. Other issues might be more esoteric, even if they are serious matters within the Parliament, and they might not gain the same momentum for the public to have their say on them.
There are two stages, so there has to be some sort of sanction beforehand, and I think that MSPs would consider that before they sanctioned politicians in that way.
What about lessons learned from the Westminster process, Professor Clark?
There have certainly been issues in the implementation of the Westminster process, although it makes sense to use that as the basis for going forward. It is obviously a model that has been deployed.
It is also obvious to use it for the first-past-the-post element of the additional member system. As I am sure we will get into, it is more problematic for the regional list aspect of the system.
I will say a few things about the operation of the Westminster system. You have heard about issues around when the petition is closed, how long it should be open for and so on. The committee has been talking about those sorts of issues.
There has been an issue with the level of sanction that potentially causes a recall petition. There was a debate regarding the Ferrier case, I think, as to whether the sanction awarded would be more or less than 10 days. That has the potential to affect members’ decisions on those parliamentary sanctions.
I would point to a couple of other things. It is easier to achieve 10 per cent in a fairly small electorate than it is in a big electorate, if that makes sense. The nature of the constituency matters. There have been six petitions, and I think that the by-elections, when they have come, have had relatively low turnouts. I calculated them to be 45 per cent on average. The only comparator from Scotland that we have is Rutherglen and Hamilton West, in the case of Margaret Ferrier, which I think had a 37 per cent turnout. I am not sure that the idea that such processes engage the public really stands up, unfortunately.
That is okay—I get that.
Dr Stanford, you said in your written submission that triggering the recall process could be
“open to abuse by what can be considered a ‘good reason’ for an absence. Such a move would need considerable safeguards to protect against highly concentrated pressure groups with vested interests”.
We all feel that on a regular basis; it seems to be how the world is working right now.
Dr Clark has already said a wee bit about the thresholds, but are the proposed criteria for triggering the recall process appropriate? Should other criteria be set to balance it all out?
I put that to you first, Dr Stanford.
Why does non-attendance, which is included in the bill, trigger automatic disqualification rather than activate a recall petition? That question came to mind initially because, as far as I know, a similar provision is in place already at the local council level, but, in the national legislatures—certainly at Westminster—equivalence is hard to find. Was that a policy decision?
That is helpful. When the member in charge of the bill answers questions, we can ask him that, but that is not a question for today.
Does either of the other witnesses want to comment on other criteria that could be added and/or thresholds that need to be considered?
On pressure groups, if you gave a power to the public generally to recall their representatives, which is not the route that Westminster has gone down or that this bill goes down, that would come to the fore much more in relation to organised groups, as has happened in many states in America that have this process. As recently as 2021, there was a recall petition in America on the issue of trade union negotiating rights. The trade union movement co-ordinated a recall petition for the governor in Wisconsin, because it could do that on a policy issue. That approach is not promoted here, but the issue might be that the attendance issue could lead to that because of a political dispute with the representative.
I do not have any real issues with the triggers. I mentioned the 10-day trigger because that has been seen to potentially affect behaviour at Westminster. However, if you set it at 15 days, you would have the same problem—to some degree, it is a bit of an arbitrary decision. It is worth being aware of the potential consequences of setting a threshold at a particular point, but I am not clear about what you can do about that, because, at some point, there will be a need to decide.
I accept that. I am happy with those answers, convener.
That is excellent. I will explore the 10 per cent level, which has been mentioned in a couple of answers. Westminster chose that level, and there would be parity with it in a first-past-the-post constituency. Given the different electoral methodologies to elect people to the Scottish Parliament, is it worth our looking at the idea that 10 per cent might not be the correct level? What should we consider in deciding the correct level?
That is a very good question. What comes to mind is that you might need to look at population size and at the nature of islands as constituencies. It gets harder when you think about regions, and we will talk about the balance within the regions. Ultimately, however, whether it is set at 10 per cent, 15 per cent or whatever will be a policy decision. It strikes me that 10 per cent is comparatively low, and it is unclear whether raising the level would prevent petitions from being successful.
You have raised the issue of turnout at by-elections, which is somewhere between 32 and 45 per cent, depending on the circumstances. They are very small turnouts, compared to full elections, and yet the level of 10 per cent triggers a by-election. Is there merit in looking at the connection between the figures, or should we look separately at the policy decision on the level of 10 per cent and the reality of the enthusiasm or otherwise for by-elections?
I think that it is a different issue. You are asking the elector a different thing. Some form of public education about the nature of recalls would also be required, because they are relatively rare and they have been in our constitutional system for only a decade. As a result, people’s knowledge of the recall process is limited. Even the fact that the process for registering a vote, or a position, is open for several weeks is unique in our democratic system.
I see the logic behind setting the threshold at 10 per cent, but I do not think that it can really be measured alongside electoral interventions.
So, from a policy discussion point of view, we should keep the election period for the by-election separate from the period of electoral activity, which would be the petition.
Well, yes, although there are broader issues around the regional list—
We will come to that. I am looking at the constituency situation and the 10 per cent threshold.
Ben, do you want to add anything to that?
I have a couple of quick points. There has been a very gradual decline in turnout in UK general elections over the past few decades, so setting a high threshold is not a good option. With regard to whether 10 per cent is too low, I would say that perhaps it is.
Turnout for by-elections is always pretty poor, as has been discussed already. In addition, we should remember that the threshold of 10 per cent is not to oust the MSP or MP—it is merely to activate the petition and potentially pave the way for a by-election. I do not think that it should be any lower—definitely not. It should possibly be a little bit higher, but there is no easy answer. That is a policy decision.
Yes, it is a policy decision. That is helpful.
Another issue that I have picked up concerns the indicators that could prompt the recall process. Do we need to be careful in that regard, and to recognise the difference between what are potentially political decisions to seek to oust an MSP and a more moral agreed understanding? For example, removal following imprisonment for the period of a year already exists; there are measures to identify that.
What is the tension between the internal Scottish Parliament consequences that could lead to the process being activated and the external ones? What level of care do we need to put in place if we are going to pull our internal behaviour into an external result?
I think that Alistair Clark has made the point. It would probably temper what punishment you gave politicians for breaking the rules of Parliament. If you believed that the consequences of the punishment that you issued to an MSP could result in their being recalled, that would be something to bear in mind.
Relatively early on in the Parliament’s history, the Scottish Socialist Party had a group of MSPs who disrupted the Parliament over the issue of the G8 protests. They were suspended by the Parliament and by the Standards and Public Appointments Committee for a month—it was the longest-ever suspension at that time and one of the longest suspensions in the history of the Parliament. Under the bill as it stands, that could have resulted in those MSPs all facing recall petitions. Their crime was to propose to disrupt Parliament.
One could argue—as a lot of the rhetoric of the time argued—that Parliament is a democratic institution and those were politicians, so they should not have been disrupting it and they needed a punishment. Should their punishment have been to face a recall petition or a by-election? That is a political question as well.
If an MSP disrupted Parliament and was suspended—I think that a Labour MSP was suspended for a day for shouting at the Presiding Officer—the consequences would not be as great, but it is still a punishment.
The bill would have an effect on the way in which MSPs are punished for their behaviour in Parliament—or, for example, their behaviour in acting as a paid lobbyist if they ask questions about something. Do you think that that goes beyond the idea that they have breached the rules as a parliamentarian and is a broader issue on which the public should have a say, or is it an internal matter? That is the tension.
Should we consider that aspect as part of the bill or, if the bill becomes law, should it be considered internally by the Parliament with regard to its procedures?
It would probably link in. If you set a threshold of 10 days—if an MSP was suspended for more than 10 days—you would know, when you were punishing an MSP, that recall was a potential consequence. That might lead you to think, “Well, we won’t go that far, but we think that there should be this sanction.”
My answer is reasonably simple. Internal standards processes always have the potential to be politicised. There are established procedures in the Scottish Parliament for how such things are dealt with, and that is the way to be dealing with them. It is really a matter for internal procedures, standing orders and so on.
So, make it a separation at that point.
Yes.
09:30
The Westminster experience suggests that the suspension route—the parliamentary sanction route—is the most political and the most problematic. The two examples that come to mind are those of Boris Johnson and Owen Paterson, who really objected to the process. I think that Boris Johnson called the committee that made the decision a “kangaroo court”.
There were a lot of questions about natural justice in a political decision-making body. In some ways, that has been addressed through the creation of the independent expert panel, which allows appeals. I would just ask whether that should be possible under the bill, essentially as a route of appeal.
On that point, do you think that, if this is the committee that deals with such issues, it should have lay members, as is the case at Westminster and, I think, in Wales?
Is that a comment about your bill or about this committee? In any case, I am more than happy to take the flavour of the witnesses’ views.
I will take that question, having looked into standards at Westminster, where there are lay members on the standards committee of each house. They are also on the Speaker’s Committee for the Independent Parliamentary Standards Authority and so on. There is experience of how they work in standards regimes. My feeling is that they have improved some of the debate around such things, and they have brought different voices to standards issues.
Let us put it this way: the system has probably taken time to bed down in how it operates, but that is inevitable with any new procedure. My gut feeling is that lay members have improved the standards process. Importantly, they avoid the issue of MSPs, MPs or whoever marking their own homework.
Are there any other comments?
Just that that would be an interesting development.
But it is possibly a discussion for another time.
Yes.
The primary objective of a recall process must be to improve accountability between elected representatives and the voters. Do you think that the bill places enough emphasis on that?
In the sense of—
In considering the different systems that are proposed. Do they provide a strong enough link?
One issue about that link, which we have not discussed yet, is the distinction between constituency representatives at the local and regional levels. The link between regional identity and voters involves much bigger areas and a different sort of electoral system. There is a problem in the bill with trying to replicate a form of recall using that system.
It is not unsalvageable—we could do it—but I think that the proposal in the bill to have a vote, essentially, on whether to support the right to recall a regional member and then to remove them does not get the balance right in terms of democracy, as far as we have put it in our paper. We think that it is better to go directly to an electoral input at a regional level, because that is the only way to have input in a meaningful way in that size of constituency.
You have touched on the point that it then becomes difficult, and it is ostensibly much more a political action than being about the right of recall. That might be the compromise that you have to make, however, given the size of the area and the form of electoral system that we have for the Scottish Parliament.
That sacrifices the proportionality that the voting system encourages.
Yes, exactly. And, as we touch on in our paper, the problem is broader than the bill—it is about the nature of proportional systems combined with the first-past-the-post system.
You will all know of the experiences of your colleagues in councils. They have a single transferable vote system, but by-elections occur regularly and really have a first-past-the-post outcome, albeit that that is achieved by a transferable vote. It would be interesting—again, it is probably beyond the scope of the bill—to try to combine something like that in a regional vote. That is the detail, but your question was more about the fundamental principle of the balance of proportionality, the involvement of the public and election versus recall. All of those issues have to be looked at in relation to the regional vote.
I found your written evidence interesting, because you suggest holding a full election in a region to replace a recalled regional member. My reflection on that was that it was a case of looking at the first-past-the-post element and trying to transpose it on to the regional element.
Yes.
Have you given any consideration to doing it the other way round and maintaining proportionality by moving the regional element on to the constituency, given that the winner of a constituency puts the same amount on to the divisor for a party as a previous list seat does?
You mean that, at the constituency level, you would have an electoral impact rather than—
They would be replaced on the basis of proportionality. Currently, under the bill, the recalled regional member would be replaced proportionally.
The point that we are making is that proportionality is a vital part of the Scottish Parliament but it is a snapshot. The proportionality that we had in the election in 2016 reflected the political view at that time. In a by-election, that could shift, as there might be a different political mood at the time. However, we think that that is a clearer way to do it at a regional level, because of the lack of the kind of local identity that you have in a constituency vote.
I want to be clear that there is no way of having proportionality in a regional reinstatement poll. It would, quite simply, be a yes/no vote. In effect, it is about how 50 per cent of the electorate who happen to vote that day vote, so you cannot have proportionality. If you were having a regional by-election, even if you were running that under some form of single transferable vote, as we do in local government elections—I have seen that proposed—the member would still need to be elected on a majoritarian basis, for the simple reason that you would be electing only one member. You cannot have proportionality if you are electing only one member, but you can if you are electing more.
Yes, absolutely, but if you are—
I am sorry, Emma, but Ben Stanford also wants to contribute.
I have a quick point to make. The discussion has raised the issue of recall in general. Is this about punishing the individual or punishing the party, or is it a bit of both? The Westminster experience has been that three out of four by-elections following recall have led to a change in the party holding the seat, and pretty big majorities have sometimes been overturned. Applying that knowledge to the regional MSPs situation here, if you were replacing an MSP with the next person on the list from the same party, that would risk undermining public confidence if they really wanted to oust the MSP and the party that held the seat. In that case, they would not have a choice, as far as I am aware, because the seat would simply go to the next person on the list. That would merely punish the individual. If the party was responsible in any way, it would be off the hook, as it were.
Yes. That was my point about proportionality. Even if a recalled regional member fails the yes/no vote, their party—if there is still a representative left on the list—retains the seat through proportionality.
That is the standard way to deal with casual vacancies under the proportional system. I do not see any problem whatsoever with doing that.
However, we are looking to create parity between the two systems, and the constituency elections decide who wins seats on the list to the same degree as the regional elections do. Therefore, should we be looking to retain proportionality across the board?
You should, but that would be done if the next member for that party came forward. I am not sure that I really understand the question. Broad proportionality would, in effect, be maintained. It is one member, after all. If you are just replacing the member with the next member from that party, proportionality is maintained.
However, on the constituency side, a different party might win the by-election.
Yes, undoubtedly, but that has not always been the outcome of the recall process. In one case, the seat was held by the original party, so that is not an inevitable outcome.
Another problem with having a regional vote that is, in essence, a yes/no vote is that the public can be quite confused about what they are being asked to do. That goes back to the broader issue of public education about the process, which is much more difficult to do in a big constituency, particularly in the islands and in rural areas of Scotland. There is also the issue of people’s ability to get to polling stations to register their vote.
It would also be very expensive. Obviously, democracy versus expense is not something that we should generally consider, because we believe in democracy, but it would be a lot of expense for a one-off vote that could be quite difficult to comprehend for lots of people. One way around that would be to go directly down the electoral route, because people would at least understand that, and there is machinery around it. You would lose the proportionality in the moment of the election, but you would have the democracy element. However, you would be juggling about three or four different things in a regional vote, and the right to recall is clearer in a first-past-the-post system.
How would you propose that we replace the winner of a region-wide by-election if they were to resign during the parliamentary session?
Do you mean when there had been a recall and the person who had won the election then stood down?
Yes—if they did not hold the seat on the basis of a list.
I assume that there would have to be another by-election.
On that point, regional representatives, which many of us are, are elected in quite a different way, and we accept that—well, we should accept it, frankly. In that case, is it fair enough to have different mechanisms for recall for regional and first-past-the-post seats?
Simply, yes. You are elected under different rules—constituency or regional list rules. Although I understand the desire to have some degree of parity and so on, you are not elected under parity rules, I am afraid—
There is no need to apologise—I accept it. [Laughter.]
It follows that there should be no need for that to be part of the recall process. The difficulty is that we would be trying to shoehorn a first-past-the-post system into a regional list process. I am sure that we will go into more detail on that, but, at best, that is problematic. There is an established way to deal with casual vacancies in relation to regional list MSPs if someone decides to resign. Reinventing the wheel, potentially at great cost, is perhaps best avoided.
I like the term “casual vacancies”—I am enjoying that.
In principle, there is nothing wrong with treating the regional list differently. The problem is in what you want the right to a recall for. Is it just different for different politicians, or is it about something more fundamental in terms of democracy—holding politicians to account or, as Ben Stanford said, potentially holding parties to account—which would not be resolved if the seat went to somebody who was further down the list? What is the purpose of the right to recall? We have concluded that, if the purpose is democracy and ensuring that people have a say on something, on balance, it is probably better to deal with the regional seat in a direct electoral way, as you would a constituency seat, rather than having a yes/no vote on whether the next person on the list should get the seat, because that would cause its own problems.
09:45
I would just emphasise what I said before: not giving voters the opportunity to replace a regional MSP is really problematic. The simplest thing that voters will understand is having an election—having a choice—whereas an MSP being replaced by the next person on the list might appear to be a deal that was done in a smoky boardroom, behind the scenes. Even though that person was on the list at the previous election—so voters will know roughly who they are—it will still give the impression of the public being disengaged and apart from the process.
That is a warning for us, then.
It seems that there is disagreement on that point.
Professor Clark, I want to return to your previous answer, because I want to clarify whether you are saying that the vacancy should just be triggered and that there should not be another step involved when a regional member is recalled.
The bill foresees a two-step model, but you could have a one-step model whereby there is a recall petition and it is assumed that, if the threshold for signing the petition is reached, the person will be replaced. However, my gut feeling is that all of that is unnecessary, because there is a procedure for dealing with vacancies. The standards process would probably need to adapt to cope with anything that came through, but I do not think that it is necessary to have a process of going back to the electorate.
I disagree strongly on the point about voter confusion. I would point out again that casual vacancies are already replaced by the next member on the list, which is an established procedure that does not seem to have caused any difficulties until now.
I suppose that people are not used to having a role in that process as it stands. If there was a yes/no vote, it might not be appreciated that they would not be saying no to that party.
Yes, definitely. There is a very important point in that regard, because, if we went down the two-stage route, voters would potentially be asked to do different things. At the first stage, they would be asked to sign a petition to recall a particular MSP, which they might sign. Then, as the bill stands, voters would be asked to come back again to vote yes or no, and there would be the potential for voter confusion. Let us remember that we had difficulties with voter confusion in Scotland in 2007, when we redesigned the ballot papers, which led to large numbers of rejected ballot papers. We want to do what we can to minimise voter confusion, rather than increase it.
An idea that has been raised with the committee is the potential for the initial signing of a recall petition being a yes/no question, which could perhaps be a single-stage process for a regional member. You could then prove not only that the 10 per cent threshold had been reached but that a majority of those who voted wanted that person to be voted out. In that case, you might not have to go back to the electorate.
That is a reasonable suggestion in the sense that it would involve a one-stage process, thereby minimising difficulties.
I can see difficulties in how the 10 per cent is calculated. There are potentially also ballot secrecy issues involved, which some earlier witnesses raised. As things stand, if you went to a signing station, you would very obviously be going to sign to remove the particular member. If it were a yes/no petition, that issue would be removed, because you would maintain secrecy in that nobody would know what you were going to do in the signing station.
Again, you would need to be careful about deciding how to add or subtract those yeses and nos, and so on. I would guess that those details would need to be worked out in secondary legislation. Nevertheless, I think that that idea has potential.
It is an interesting point about the yes/no vote. With recall, as it stands, there is quite a lot of secrecy around media reporting and coverage of the whole process, because of the issue that Alistair Clark highlighted. If you recorded what was going on and where, it would look like you were promoting it. A yes/no would perhaps be one form of resolving that issue.
That has covered everything for me, convener.
I want to pick up Ben Stanford’s comment about whether the electorate would be concerned about not having a choice. That goes back to the question of who is being punished and what the role of recall is. Is it about an individual MSP—irrespective of how they came to the Parliament—behaving in a way that is unacceptable, or is it about punishing a political party?
Do you have any confidence that, if the process was specifically and openly about dealing with an MSP whose behavioural choices are such that they should not represent people, the challenge in respect of an electorate just wanting to punish a political party would be less of a concern? Alternatively, are those two issues just so intertwined that we cannot differentiate between them?
In a representative democracy it is very difficult to separate the two, particularly if an MP is from the party in government. As we know, in by-elections, MPs who represent a party in government get quite heavily punished quite often. Recent experience has shown that.
However, there is no easy way to separate those things, and we perhaps just have to accept that voters will use the recall process as an opportunity to punish the party. Unless the behaviour of the individual in question is so egregious and terrible that voters will punish that person, I do not think that we can separate persons and parties easily. There is no easy way to do that.
I will bring in Annie Wells.
Good morning. It has been very interesting to listen to all the evidence, and we have heard quite a bit from other panels, too. My questions are about the practicalities of signing a recall petition. How do we know that we will have the right amount of places—and the right amount of time—in which to do so? How do we ensure that electoral fraud is not committed?
Given that he said at the beginning of the session that there are not enough places to sign a petition, especially in the islands, I ask Dr Stanford first to talk about the practicalities.
As far as the UK experience is concerned, the first recall petition was in North Antrim, in Northern Ireland. I believe that it was quite problematic, because there were not enough polling stations in which to sign the petition, and the opening hours were problematic, too. With the subsequent processes, however, an increase in the number of polling stations addressed the issues to some extent.
I believe that the bill specifies that a maximum of 10 polling stations be open in a constituency. Is that a typical number in comparison with parliamentary elections or by-elections, or is it fewer than normal? I am not entirely sure, to be honest.
It is fewer in number, and, having inquired about this, we have heard evidence that the locations for petition signing are frequently different from the locations of the polling stations. It would appear that people have a very strong connection with their polling station; they know where it is, even between elections. One of the challenges is people knowing where a petition can be signed—at least, that is what we have heard so far.
I suppose that the point is that a recall petition is different from an election, so even at a psychological level, if people are going somewhere different, they will be thinking, “Well, I’m doing something different from participating in an election.” That might be useful.
However, given the geography of Scotland, particularly in the Highlands and Islands and in rural areas, there are issues with accessibility. We can deal with those issues in electoral terms, but if we wanted to minimise them for a recall, that would be problematic. Having a set number of polling stations in the bill might be a problem, as more might be needed in a more rural area. That need for flexibility could perhaps be reflected in the bill.
Even in normal elections, there are problems with recruiting staff to man polling stations and those kinds of things. If people need to be recruited for recalls, that will add another logistical difficulty.
Although it is unclear on this point, the policy memorandum seems to suggest that places such as polling stations and schools might be used as signing stations. My gut feeling, though, is that that will probably not be the case, and thought needs to be given to the use of other locations. As the convener has rightly mentioned, people get very attached to their polling station because they know where to go and so on. I think that there is a danger that, if these things are not held at people’s usual polling stations and they have to go to an ex-council building between such and such a time, it will start to get confusing for them, and it could put them off.
There is also a broader question about the electoral register. In normal elections, each polling station has its own register. Is the thinking here that people will be allocated to one particular signing station or that they will be able to go to any of the 10 signing stations in the constituency? If it is the latter, the electoral registration officers will have a job to do to make a bigger register available to the people manning the stations, and that problem will be magnified if regions are involved.
Therefore, there is a knock-on problem in relation to not just the locations but the registers. Wherever, as well as however, you choose to do this will have implications for electoral registration and implications for the issue of fraud that you have raised. Location, therefore, is very much a crucial decision.
That is really interesting. Thank you.
Following on from that, I would say that another aspect of this is the money that is spent. With some of the petitions that make it to Westminster, parties have put enormous resource into ensuring that the 10 per cent threshold is reached. Do we need to take that issue into account? Obviously, that might not be dealt with in primary legislation, but there is a question about how much money is thrown at recalls. In some of the examples that you have shared from the US, those who backed petitions with a high level of resource achieved changes that might not otherwise have occurred. What level of credit, credence and thought should we give to that issue at this stage?
I think that cost is a big issue when it comes to how political parties intervene. There is also the general cost of the process. Keeping places open for signatures for four weeks is a significant expense with regard to staffing and so on.
This is not an election but a recall petition that we are talking about, and that will be reflected in the reporting restrictions, so we will probably need specific rules about costs and expenditure. We have such rules for elections, and, even then, it is difficult to regulate such things. It might be more straightforward to regulate for recall petitions than for elections, because recalls are about one specific geographical area and we can keep closer tabs on them. However, it is problematic, because if a seat comes up, groups will focus resources on it; indeed, that is inevitable, given that they will be able to focus on a straightforward area.
Another challenge is that, with a petition, it might be difficult to identify who is doing the advertising and the leafleting to urge people to sign it.
I agree entirely. The assumption in the policy memorandum is that that will not be an issue, and I disagree strongly with that. If you give political parties a contest to fight, they will fight it, in both a positive and a negative sense. In some cases, parties will fight to keep their representative, while in other cases, they will fight to unseat them. That important dynamic is not recognised in the assumptions behind the bill.
10:00
It is not a dynamic that we are used to in our democracy.
Absolutely not, but it is one that we need to think about. I also share Nick McKerrell’s concern about the potential targeting of resources, because recalls would be one-off processes, which, as we know, can attract those sorts of campaigns.
I have just one point to add. I believe that the 2015 act has spending limits of some kind in it, so that is definitely worth considering. Apart from that, I do not have much else to say on that aspect.
That is fine. I will pass over to Rona Mackay.
Good morning. I have questions about non-attendance and the criteria for disqualification. There is clearly a big difference between being disqualified for misconduct and receiving a custodial sentence.
Professor Clark, in your submission, you say:
“Physical non-attendance at least once in 180 days seems like a low bar for an MSP to meet”.
and that
“Consideration of changing and updating the Code of Conduct to deal with”
that
“would seem to avoid the need for ... legislation”.
Is the bill too open about what criteria are needed in that regard? I am thinking about a situation involving someone’s physical or mental health, which is very different from somebody having committed an offence or misconduct. Should the bill set out exactly what the criteria for non-attendance should be?
No. Let me will be clear: I do not think that this provision should be in the bill—full stop. Basically, it is all about how MSPs do their work, and I am sure that there will be 129 different ways in which all of you execute your various roles.
One of the difficulties is that there is no clear job description for MSPs, and that makes it difficult to hold anyone to a particular standard. Should someone’s job description be set out in primary legislation? I am less clear that it should be, for the simple reason that it would open the door to other aspects of MSPs’ roles being dragged into primary legislation, and I am not sure that we need to be doing that.
As the Standards, Procedures and Public Appointments Committee, you might disagree, but to my mind it would be preferable for the code of conduct to be amended somehow to deal with the issue, however you decide that attendance should be dealt with. I would note that physical attendance is now not the only way in which people can do jobs; as a result of the pandemic, we have seen remote attendance and remote ways of doing jobs.
The policy memorandum does discuss the question of how to measure meaningful participation in parliamentary proceedings. The committee might at least consider that type of thing, but I would strongly suggest, for the reasons that I have given, that it not be put in primary legislation.
Thank you for that.
Dr Stanford, I think that you are of a similar mind to Professor Clark. In your submission, you say:
“Such a move would need considerable safeguards to protect against ... pressure groups with vested interests”
and would involve
“requiring clear evidence of an MSP’s protracted absence without reasonable cause from Parliament.”
I am a bit confused as to where the lines are between being off on sick leave for physical or mental health issues and not physically coming to Parliament for 180 days. I wonder whether the bill does not set that out clearly enough.
First, I would say that expecting an MSP to attend just once in 180 days is not a big ask. Obviously, once recess days are factored in, the period will be much longer; it will be more than 200 days, I imagine, in which an MSP will be expected to attend once.
There need to be considerable safeguards here. The bill provides for Parliament itself to be given an opportunity to vote and for the MSP to make representations, so some safeguards are definitely in place, but I would say that they are absolutely necessary. I cannot add much more than that.
Thank you. Do you wish to add anything, Dr McKerrell?
The question is whether you think that the bill should go there at all. In that respect, my views are probably in line with those of Alistair Clark in that I am not sure that it should, because you are, indirectly, getting into a whole debate about the modern workplace and virtual versus actual attendance. There is a big debate about that in my own workplace—that is, my university. Lecturers, as a group, are required to be present in person, and we were told that we must do all our classes face to face while people in other jobs were not. That is another debate, though, and it is not really what the bill is looking at.
The problem is, if somebody is really at it and there is a minimum standard, they will just meet the minimum standard—they will come in for two days and not be there for the next month. For somebody who falls into that category, that is what can happen when you set a standard. However, I understand why the provision is there; it puts in place a very basic recall procedure for representatives who are not doing the job—that is, they are not there. However, I think that there might be better routes—ironically, given the right of recall—for somebody who is not attending. I think that other methods are available.
Councillors are subject to that rule, are they not? I cannot remember how many times they must attend in the year.
Yes, and I think that the same thing occurs. They just clock in for those times.
The other issue is whether the bill provides enough safeguards when it comes to confidentiality and the privacy of MSPs who might have complex reasons for not being there, which perhaps brings us back to the question whether those provisions should be in the bill at all. I sense that you are all of a similar mind about who judges that, but what are the criteria and who judges whether that person should be disqualified?
Obviously, it is clear cut in other situations that involve misconduct, custodial sentences and so on. However, when somebody is absent, who judges whether they are at it? That is problematic. I do not think that there is a clear answer to that, but it should perhaps be looked at and defined a little more clearly in the bill.
I am sensing that none of you has a clear answer to that.
I do not.
I will leave it there, then. Thank you.
Following on from that, I would suggest that absence is an example of a potentially political, internal or behavioural choice by an MSP. I do not sense strong disagreement to that view, but there is a range of views from the witnesses as to whether it should be included in the bill as a trigger for a recall process. Someone is bound to suggest that to me, so I will seek your views independently of this place.
It goes back, in part, to Emma Roddick’s point about proportionality. Should the bill consider what happens if an MSP chooses to change or leave their political party—or, to give an entire view of the matter, if they are expelled—or, again, should the internal mechanics of this place deal with that?
My colleagues and I had a discussion about this issue on the train through. It is a gap, because politicians often say that there should be an automatic by-election if you go to another party and so on. However, every political party has both benefited and suffered from that sort of thing, so the rhetoric will change depending on their position. It does touch on Emma Roddick’s point about proportionality, because somebody’s decision to choose another party shifts the proportionality of a Parliament, and there is no recall for that.
At one level, it can be seen as an area that the bill should go into. However, I understand why it is not there—it would raise a lot of other issues. If it is about the political representation of and relationship with the people, somebody changing their political allegiance after being voted in should, according to the theory, be one of the reasons for a recall. However, it would raise lots of other issues that I am not sure how you would touch on in law.
It has always been thus, basically—there have always been people who have changed parties. It is something for the Parliament to deal with internally.
I do not have much to say, apart from highlighting that, in 2020, an MP at Westminster tried to introduce a private member’s bill that sought to add such a provision to the Recall of MPs Act 2015 but it did not go anywhere. I have nothing to add apart from that.
That is very kind of you.
Graham Simpson, do you want to raise anything else before I let these good people go?
Convener, it has been a superb session. The questions have been great; we have covered a lot of ground, and I have been fascinated to hear the views of the academics. I have just been reflecting on all of this, so if you do not mind, convener, I will give a small anecdote.
If it is short.
I have been working on this for a long time now. At the start of the process, I attempted to reach out to Arnold Schwarzenegger through his office.
He’ll be back.
Unfortunately he was not—I could not get him to contribute. I think that there were issues at that time with the recall process in California, so Arnie was keeping schtum.
Convener, if I may, I just want to ask Nick McKerrell and Alistair Clark a question about non-attendance, given their strong views on the matter. Are you also suggesting that we scrap the law—because it is a matter of law—for councillors who do not attend for six months? Under the law, if they do not attend for six months, the matter can go to a vote of the council, which has happened several times in Scotland. Are you suggesting that we scrap that law, too?
I am not sure about the wording of it. Perhaps this has been raised in debate already, but I think that it is about the nature of a councillor’s work and measuring how they do it. It comes down attendance at full council meetings, I think, not commitment.
That is right.
It is very specific. An equivalent, in a way, would be MSPs having to attend First Minister’s questions every week. There would have to be some plenary that somebody is never attending, and there could be a slightly different measurement of that in Parliament and in councils. I think that that is the logic behind councils having such a requirement—they have those big event council meetings every month, do they not?
It is a very good question, but no, I am not suggesting that in the slightest. Councillors have always been treated differently to MPs, MSPs and so on, and whether that is right or wrong is a much bigger debate.
I would just note a contradiction in how some councillors are treated. That stipulation might apply, yet some are also being allowed to contribute remotely and that kind of thing. There is a contradiction in how they are being dealt with.
What representatives do at all levels is worthy of debate more generally, but that is probably not for this moment.
It is certainly not a matter on which we are taking evidence for the bill.
I thank Ben Stanford, Alistair Clark and Nick McKerrell for their attendance today. If any thoughts come to you after the meeting, please feel free to reach out and write to us. Similarly, I hope that, if we have any questions for you, you will reciprocate with a response—unlike Mr Schwarzenegger, who is not on the witness list for the bill, perhaps unfortunately from Graham Simpson’s point of view.
I suspend the meeting for a changeover of witnesses.
10:14 Meeting suspended.
I welcome everyone to our second evidence session. Annabel Mullin, director of communications, Elect Her, joins us online. In the room, we have Juliet Swann, nations and regions programme manager, Transparency International UK, and Willie Sullivan, director, Electoral Reform Society in Scotland. Good morning and welcome to you all. If you wish to answer a question—as I always say, there is no necessity to do so—type R in the chat if you are online, or indicate to me if you are in the room, and I will bring you in. We continue to be joined by Graham Simpson, who is the member in charge of the bill.
We will kick straight off with questions. I will start with an overarching question: do you support a recall mechanism for MSPs?
I do not know how much you all know about the work of Elect Her, so I would like to provide a bit of context and to introduce our organisation, to give you a sense of why we speak as we do. I have been with Elect Her for about nine months, but I have worked with the organisation for about five years. Our work is about women, and the core of our work is about equipping women to stand for election and then, once in office, to thrive. We manage and deal with a lot of the barriers that women and minorities face in anything that they do in reaching out to elected office. We have listened to women for many years—for nearly a decade now, so thousands of women—and we are very informed by that. We offer the lived experience of women in politics; that is our angle and our contribution to this work.
Broadly speaking, recalls are and can be a positive. There are enormous caveats to that, which I would like to speak about during the evidence session. However, recalls can provide accountability and transparency, on which we are very keen. Women can take part actively in the recall process, and the process can empower democratic participation and encourage improvement in ethical standards, which reaches towards improving the treatment of women in the system itself. However—there are quite a lot of howevers—recalls can expose women to disproportionate political risk, which I would like to speak about during the evidence session.
We will come to that specific point later. It is right to say that you are not party political with regard to your support for women who are seeking election and support.
Yes, we are absolutely non-partisan. We train and work with women of all parties and no party, and we support independent candidates. There is a piece of work around this discussion that speaks to that in particular.
Good morning. I am happy to be here. TI UK is concerned that trust in politics and politicians is declining, so we are interested in the ways that trust can be restored. We see recalls as part of a package of measures that can improve transparency and restore trust. The recall process cannot necessarily do that on its own, but it provides public accountability for members whose behaviour undermines the integrity of the role of an MSP and the Parliament outside general elections. Polling tells us that politicians are not meeting the standards of behaviour that the public expect and that the public do not think that politicians are held to account for failures of integrity. The recall process can act as a reminder to members of the need to respect codes of conduct and standards of integrity, and they can serve as a deterrent to failures of integrity. However, recalls can also be a way for the public to feel that they can hold politicians to account in transparent and effective ways that are not rigged.
Although we support recall, the system needs to work in an understandable and effective way, and to really deliver on what the public perceive to be a fair process that provides sufficient sanction for proven failures.
My overwhelming message is that it is about what you are trying to achieve and on whose behalf, and, if it is a public perception issue, it has to meet the high standards of what the public would expect from a fair and accountable process.
Thank you, convener, for asking us to come and speak to you today.
The Electoral Reform Society supports recall in principle. Again, it is about the detail of how those principles are met. We believe that such standards, regulations and sanctions should be considered to be guardrails to help elected representatives to be the best versions of themselves as often as possible—we are all human.
The primary principle of recall must be to address the distrust and delegitimisation of the democratic system that are caused when representatives—who are not the only causes, of course—sometimes act in ways that make voters believe that they are not being held to a particularly high standard. That primary principle is a useful test when you are looking at other, more imbalanced questions, such as how to address those issues in relation to the regional list in the Scottish system. The first principle is the best one to test that against.
We need to maintain that first principle, which is about having an agreed standard of behaviour. If you fall below it, one of the consequences could be recall and the loss of your ability to represent the people who sent you here, which is the bit that underpins this.
Sure, and people see that your behaviour leads to you no longer being in a position to represent them.
Excellent. That takes me to what you were hinting at, Annabel, so I will come to you first. Do you think that there is a risk with the bill that some MSPs will be disproportionately targeted? That might not be the deliberate intent of the bill, but what is the level of risk of that disproportionate targeting, particularly to women and people from underrepresented backgrounds when compared with others? What are the concerns of Elect Her?
One of the things that strikes us—it is a thread throughout our work—is that women politicians are more likely to face politically motivated action, and we suggest that an extreme version of that could end up being a recall or a removal attempt. We do not have any examples of that specifically in our national experience. However, a senator in Colorado was recalled over a specific political position that she took, and that recall campaign used gendered rhetoric and tactics. There are international examples where that becomes a piece of the issue, and that is obviously a concern. There are ways in which that can be mitigated in the bill, but it is certainly something that concerns us.
There is also the suggestion that there might be some undermining of the impressive affirmative action work that Scotland has been at the forefront of in our country. There is concern that recalls might be misused, which would undermine a lot of that good work. I suppose that it comes down to disproportionate targeting of female politicians and potential political weaponisation.
I also think that, broadly, there is concern that the public scrutiny that is linked to recalls might lead to more overwhelming discouragement of women from actually seeking public office. Establishing a basis of trust and demonstrating thought and care about that issue would be one way of ensuring that that is not a big problem.
A comparison of situations that took place before and after the introduction of recall suggests that the prospect of a recall petition can play a role in encouraging suspended MPs to resign pre-emptively, which can be good and bad. Our concern is that, if the process of understanding of what has occurred has not been gone through and women are under some duress or stress, they might fall under and resign pre-emptively when that is not necessary.
Those are some cautionary provisions. We can submit some recommendations on what I describe as gender-sensitive implementation. Those might be about monitoring the gendered use of the bill and understanding the data evaluation. Anti-discrimination provisions could potentially also be added. Those are some of the things that we think would be actionable outcomes that could improve and potentially protect and mitigate.
10:30
So, you have a concern, but you have a level of confidence that, with amendment and structure, that could be offset and protected against. Certainly, monitoring of the legislation would allow it to be revisited, if necessary.
Yes.
I will go to Juliet Swann.
For us, the point is that you do not want to have just the one blunt instrument of recall. As I said, the bill must be part of a package of accountability measures. It is about how the whole ecosystem works and how members perform their role within it, instead of just having this one sort of weapon. That could include things such as further improvements to lobbying transparency; further steps on transparency around potential conflicts of interest; and having better rules on, for example, gifts and hospitality to ensure that those meet the expectations of the public. You would then create an environment in which integrity was at the forefront, rather than relying on, as Annabel Mullin says, a step that can be weaponised, as we have seen in places such as Taiwan and California.
To try to depoliticise the process, it is important to consider adding lay members to the committee, because that would mean that you would not just be making party-political choices—you would be assisted in your choices and recommendations by members of the public, who would apply to stand, much as happens in Westminster. Indeed, the Senedd in Wales has recommended that that should happen on its Standards of Conduct Committee.
Another thing that we think would help, especially to deal with the almost chilling effect on whether people even decide to run, which Annabel talked about, is that the sanctions and how their imposition would work should be clear, so that people go into the role with their eyes open.
I have other thoughts, but I will leave it there for now.
I am sure that we will address those.
Willie, what are your concerns about the risk with regard to underrepresented groups, and women in particular? I suppose that it is about the politicisation of the process.
It is important to have that up there as a big question. I have spoken to quite a few women MSPs and other female politicians, and I know that we need to recognise the climate out there and the political culture. We need to ensure that any measures such as those proposed in the bill take account of that and put in place the checks and balances and other measures that Annabel Mullin spoke about.
My next question flows on from that one. Part of the issue is the public understanding of what the bill is about. What sort of public awareness measures do we need to have in place for the bill to work successfully? How do we ensure that people do not misunderstand the process and potentially apply a very personal, and maybe even personal political view towards someone, rather than seeing it as a step that is taken because behaviour choices have fallen below a level that we think is acceptable for an elected member?
It is interesting to look at what has occurred with the recalls at Westminster over the past few years. The general public have a good sense of what the process is and what it means, and the perception is that there is a transparency that they like and that appeals to them. The issue is that political parties have often misused the recall process.
With the previous panel, you spoke about finances and the piece around that. That is a huge part of the barriers to entry for women generally. Recall petitions are expensive and require a lot of resource. Broadly speaking, women, and particularly minoritised women, come up against that barrier. That has to come into consideration. It also means that they do not have capacity to then speak to the public.
A general knowledge campaign is needed. One of our levers of change to fix the system involves bringing more education on the issue into the curriculum in people’s younger years. If that could be part of the process, it would make all our lives easier, but we cannot necessarily get that.
In addition to introducing the recall process, time must be set aside and cost-effective communication developed to ensure that people understand the purpose and intent of the process, and protections must be put in place in the bill itself, because misuse would be grave and go against the core point.
To push back on that slightly, you are talking more about the requirement for an educated electorate. There are challenges in that area, particularly in circumstances that involve the views of disabled or ethnic minority candidates.
You also talked about schools. Is there anything in the recall system proposals that education should specifically target, or is it the case that, actually, unless everything else is put right, that would be blowing in the wind, so to speak?
The process might be one that seeps rather than one that involves clear and obvious comms. Clarity is needed in the induction process when someone becomes a MSP or councillor. Repeating that process and having refresher sessions on what it all means is really important. We want to stress a point that comes up repeatedly, which is that inductions are often light touch, and that not enough emphasis is given to induction as people continue through their career as an elected member, which means that they are not always entirely aware of all the caveats.
Providing more institutional support for general knowledge is a potential piece to consider, and there is perhaps an argument for women leaders to have some additional support if they are facing issues.
You are calling for clarity of message and expectation and for that to be revisited so that individual members can remember and test such knowledge when they are concerned about circumstances.
Yes, an annual refresher would be good.
Willie, can I come to you, both on public education and on education for individuals who are elected members?
The public will not really pay attention to the recall process until they find out about it, which will be when it happens. That will be when there is the opportunity to explain it.
One thing to consider is that the sanctions have to be as clear as possible. That is pretty straightforward if it involves a criminal conviction or, as is proposed, absenteeism—although the latter is a bit more messy. However, when it involves a suspension from the house, whatever the issue that caused it, the process is probably pretty opaque to the public. There must be an attempt to make that process as clear as possible, which is where it will also become a bit politicised—it probably always will be, but clarity is crucial.
As I said at the beginning, you need to, as far as possible, explain what standards are expected—possible sanctions always help people to stick to the standards—and get members up to speed on them through inductions and continual reminders. Those standards will be pretty well highlighted if anybody is ever recalled, which is when everybody will learn about them. Let us hope that that never has to happen, but in case it does, such explanations are necessary, because trust gets further eroded if nothing is done about it.
So, you support what Annabel Mullin said, which is that elected individuals must clearly understand the expectations and the consequences that flow from not meeting them. However, you are saying that, in reality, the opportunity will only exist to educate the public more about the recall process and the reason for it when it interfaces with the public.
Yes, I think so.
I definitely agree with the point about improving induction, especially on integrity, the code of conduct and the Nolan principles. That is really important. As Annabel Mullin said, that needs to be delivered again and again. When someone is newly elected, they are faced with a lot of information in one go, and it is important to make sure that they really understand it. We need to support MSPs to live up to those standards of integrity.
The processes have to be independent and clear to both the public and members, and they have to provide opportunities for appeal, so that it is harder to play party politics with them or indeed to allow financial interests to play a part.
I return to the point that, if you introduce new accountability tools, they have to be seen to be delivering, or the public will think, “You’re just trying to mess with us again.” The system has to be perceived as being effective and not rigged, so it must not be overcomplicated.
We say in our submission, and we said to the Senedd, that a consistent approach is helpful. The public are very good at understanding that there are different layers of elections that they take part in. However, when you bring in accountability mechanisms, it is really helpful if they can be consistent across the piece so that the public do not think that people are being held to different standards in different institutions.
If the MOT applies to all vehicles even through they are different, that gives confidence.
I cannot drive, so I do not know about that. [Laughter.]
Well, there we are. We will move on to questions from Sue Webber.
Would the recall process that is proposed in the bill do a good job of balancing different considerations around the equal treatment of regional and constituency MSPs, considering how they are initially elected.
It is obviously a consideration to try to balance that as much as possible, although I do not think that it is all that possible. That takes me back to the initial principle of how we maintain trust and legitimacy in the process, which might mean that regional members have to be treated slightly differently from constituency members. That is a shame and not ideal, but, if we go back to the first principle, that might be where we end up.
Annabel, you are nodding.
I agree with Willie’s point. There is a difference, so it is complex. However, as Juliet said, it is about fairness, and it is about being demonstrably fair and transparent about that fairness. I think that people would like to feel that as much as possible.
Juliet, the previous panel mentioned that it could be seen as a stitch-up if the seat just went to the next person on the regional list. Those are their words and not mine. You spoke at the outset about transparency for politicians in general. What are your thoughts about that?
At the end of the day, although the constituency and regional elections are different, once someone is here, they are here in their position as a member of the Scottish Parliament and as an individual. It is important to separate the two things—the processes are different, but once people are here, all members are equal.
At TI, we struggle a little bit with the recall and replace concept for the regional list. I understand why that process is attractive: it reflects what happens when someone resigns or passes away and the place goes to the next person on the list. However, when we have had recall by-elections at Westminster, there has frequently been a change of party as well as a change of individual. Sometimes there are party connotations that led to the member being in the position that they are in, or considerations to do with the way that the party has behaved in relation to the member being sanctioned. For example, Owen Paterson was sanctioned and the Conservatives tried to whip the vote so that it did not go against him in the House of Commons.
Allowing the public a full opportunity to express their feelings about a representative requires something more than just following the standard principle of how the regional list works. As Willie Sullivan said, that is complicated and it might mean that there would be slight differences in how recall would work, but I guess that that is the nature of a multimember system and we would have to accept that and try and work with it. I would not want to be the person making that work, by the way.
10:45
Is even considering taking the next person on the list perhaps a bit of a lazy way to find a solution? Lazy might not be the right word; it is the easiest way.
In Scotland, we use a single transferable vote in local government elections, and when there is a local government by-election we use the alternative vote to elect a replacement councillor. That is not perfect—Willie can probably talk a little bit more about that—but, again, it comes down to what the public would perceive to be a fair and transparent way of deciding who should be dismissed and who should replace them, or whether they should be re-elected or whatever.
Obviously, it is hard to tell because we have never seen a recall, but I think that the public would find taking the next person on the list to be slightly—well, a stitch up is a good way of putting it. The party would not suffer, although it might have had a role in what happened. There are loads of potential complications.
Willie, do you have any thoughts?
If the perception is that it is in some way dodgy if the seat goes to the next person on the list, we need to consider whether there should be an AV election for the whole of the region. That messes with proportionality, but it comes back to the fundamental principle about trust. You just said that other people say that using the list might be an issue. I can understand that, but if moving to the next person on the list does not impact on legitimacy in any significant way, I think that that is the easiest way to do it. That is different, however, from having a by-election in the constituency.
Does that not go back to the fundamental question of what a recall is for? The principle of a recall would appear to be to give the electorate the ability to remove an individual whose behaviour has fallen below whatever the acceptable level is. Now, however, we seem to be discussing whether the purpose of the recall is to allow a current snapshot of the electorate’s view of political parties and who governs the country. That is at the expense of the individual, but it is also at the expense of removing the process of holding an elected individual to account for their behaviour and instead providing more of what people would want by way of a general election.
The first step is whether the individual would be removed, which would be decided through the 10 per cent threshold. The question that I guess we should ask is whether that individual should be replaced, because we are lucky in that we have another six or seven members representing each area.
Yes, there are other representatives in an area.
You could conclude that we do not need to replace that person. The motivation to maintain trust is only for that person to go and they do not have to be replaced until the next election.
I will come in very quickly on question of not replacing the person at all, which is certainly something that TIUK has considered. They could just be removed and we could wait for the next election.
I was thinking through the possibilities. Let us say that a regional member is found to have breached the code of conduct and the Parliament votes for a sanction. That member is then subject to a recall in the region and it goes to the 10 per cent threshold. However, the party suspends the member, which means that they are now an independent MSP. Usually, if a list MSP is an independent and they die or resign, the position stays vacant. Perhaps not replacing a list member who is recalled is a possibility.
We will come to questions on vacancies. Annabel Mullin, do you want to come in? I cannot remember what my original question was.
This is not really our area of expertise, but there is that positioning around what happens when an independent candidate—[Inaudible]—within a regional list. As Juliet says, it is then an empty seat, and that is the expected way for that to be. I suspect that you could find some answers to that with focus groups and maybe some quantitative follow-up to understand people’s views and perceptions, because that would allow for understanding people’s trust of that particular aspect.
Leaving a constituency seat empty is different from leaving a regional list seat empty.
As our evidence has shown, we are all aware that we have to accept that there is quite a difference in how we are elected as regional and constituency MSPs and, therefore, accept that how we progress in those circumstances will also be different.
The committee has received a lot of evidence that the cost of running the recall process for a regional MSP could be about £2.5 million. Is that cost justifiable, based on the additional accountability that the recall process is intended to deliver? What is the cost benefit analysis? You have already mentioned that there are seven other elected representatives for those individuals. I will come to you first, Juliet, because I have caught your eye.
Democracy is not cheap, but is it worth the price? I think that that decision is above my pay grade. If you decide to introduce accountability mechanisms that start to bring the public into the process, there will be a cost associated with that. As I said at the outset, we definitely see the recall mechanism as part of a package of measures, so you might weigh things up and say, “Actually, those measures are more cost-effective and this measure is very expensive.” Then again, what will the public perceive to be an adequate way to hold people accountable when they fall below the standards that are expected of them?
That goes back to the convener’s point about the purpose of the bill.
Is the £2.5 million for just the recall petition?
I think that it is for the recall process—
So, it is for the election, too.
Yes, it is for both.
This would have to be tested, but I think that the public would perceive that as a lot of money. It might be interesting to see how much it would cost for the member to be removed, without the election. I think that the process might backfire, because people would think, “We want to get this person removed, but we are now spending £2.5 million of public money.”
Yes, and public perception is a big issue.
I do not have much to add. In Peterborough, they estimated the cost to be about £500,000, but running the recall petition there was obviously a different kettle of fish.
Willie Sullivan, I want to pick up on your suggestion of having an AV election to replace a regional vacancy. That would mean that we were in the situation of having three separate voting systems for one institution, and we can and do argue that two is too many. What are your thoughts on just rerunning a d’Hondt ballot and aligning that final seat with what most closely matches the picture?
Through this conversation, I am coming to the conclusion that it would probably be better not to have an election. [Laughter.] I threw in the idea of AV because, if you concluded that an election was necessary, that would probably be the way to do it. When you talk about rerunning d’Hondt, what do you mean?
I mean running the d’Hondt calculation as though you were doing the full list and then seeing how different the list is and what it makes most sense for the last party to be.
You could do that, and it would probably be cheaper.
It is probably the same price. It is easier to count.
If you were going to have an election—I am coming down on the side of it not being a good idea—clarity would be important. AV might be a better option in that case.
That is interesting. My next question, which is for Annabel Mullin, is about the idea of having a regional election to replace somebody who has been removed following a recall. When parties implement equalities mechanisms for their candidates, it is most often done through the regional list. Do you have concerns that getting rid of that part would result in a less representative Parliament?
It is certainly one of the things that we have on the cons side. Any associated measures on affirmative action or quotas will be particularly badly affected by that. Perhaps we could implement guidance or even requirements for there to be a gendered element if that was there for the original individual, because we would not want to remove the affirmative action frameworks that had been put in place. It is hard enough to get us to equality. We are definitely concerned about that.
I suspect that that is quite hard to do. We are struggling anyway to get parties to implement different measures, but if that was required by legislation, that would always focus minds somewhat, which is where we would like it to be.
I want to ask the question about disqualification for non-attendance that I put to the earlier witnesses. They seemed to suggest that that does not fit so well with the bill and that it should not be part of it. What is your view? Also, with regard to someone making one appearance in 180 days, is it fair to exclude hybrid participation from that?
With lots of caveats, I would say that, if MSPs do not come to do a big part of their job, which is to legislate, the public would have concerns about that. The public would know about it, because there would be politics and media around their attendance. If there are lots of steps that involve trying to find out what is going on with that person, and if they are given the right to explain why they are not able to come, and even a right of appeal, it might be useful to have a way of removing them in such circumstances.
There is a clear difference between ill health and misconduct, and I am just trying to tease out whether you think that the bill is explicit enough in the separation of those things. Juliet Swann, would you like to answer?
It goes back to the question of what problem we are seeking to solve. Purely from an anti-corruption organisation perspective, the corruption risk depends on what activity is replacing attendance at Parliament. If that activity could present a conflict of interest, it should be declared in the register of members’ interests. That puts that to one side.
Another consideration is how an elected member chooses to perform their role and allocate their time, which is largely up to that person. It is notable that, when members of the House of Lords are removed for non-attendance, it is frequently due to ill health, although there is a different process for that and those members cannot resign. Adequate protections will have to be in place to ensure that the full picture of non-attendance is available and that people are not punished or somehow targeted for being unwell. Again—and I am sure that Annabel Mullin can speak to this—we see that happening more with women politicians and people who are responsible for childcare or who have different health conditions.
You will be pleased to know that I have not come to a settled position on the issue. If one of the challenges that the committee is seeking to address is the public perception of politicians, their visibility in the Parliament is a metric that the public obviously find easy to see as tangible proof of members playing an active role.
11:00My final point is one that came up earlier this week when my colleague gave evidence on outside interests to the UK Parliament Committee on Standards. That is a similar area. It is to do with what a conflict of interest is and what a conflict of attention is, which is a principle that the committee is interested in developing. Another point that was raised in that meeting—I offer this information without any opinion—is that attendance does not necessarily determine the quality of the contributions.
Juliet Swann mentioned caring responsibilities, which are often a reason why elected members cannot attend. I would like to hear your thoughts on that, Annabel Mullin. Also, does the bill give enough weight to privacy and the confidentiality of a person’s personal circumstances?
There are a few things that play into that. From an organisational perspective, we are keen for 21st century democracy to represent all people, and flexibility has to be baked into that; otherwise, those who have caring responsibilities struggle to be able to play their part. A really big part of why women and minoritised women do not get involved is the fact that they cannot balance such demands. We must encourage them and ensure that they can do that. Having been through the pandemic and having understood hybrid and virtual working, we all know that we have the capacity and the capabilities to make it work. However, at the moment, the bill does not provide that contextualisation.
I think that the general public take the view that, just as Juliet Swann said, if someone is providing the right quality of work, they do not necessarily need to be present as long as their presence is making an impact. Having that part on flexibility and hybrid working strongly defined in the bill—if that aspect continues to be in the bill—will be absolutely fundamental because, at the moment, the greyness leaves open a great number of questions. I suspect that women will end up on the hard end of that, as we have seen happen before.
This week, I was talking to MPs about the impact of voting, and it still amazes me—this is totally ridiculous—that an MP cannot vote remotely when they represent a constituency in Scotland or Wales at Westminster. That is just extraordinary.
Thankfully, we can do that.
I know.
It begs the wider question of whether that element is a fit for the bill. There is certainly a precedent with councillors; a law about their attendance already exists. However, now that we have moved on to a more hybrid approach to working, a closer look is needed as to whether attendance would fit in the bill and whether it would possibly be an invasion of a person’s rights to say, “You’ve not been here.” If we put to one side ill health, mental health and caring responsibilities, there are a myriad of other reasons that could prevent them from attending.
Yes, exactly.
Thank you very much.
Is there a challenge in the bill having an objective assessment on, say, attendance? Other examples might be put forward that are, in essence, conduct related—that is, aspects that are internal to the Parliament’s code of conduct. When you apply the subjective reality of the individuals who fulfil the role of MSP, it is hard to reconcile that with a stark objective rule such as one that states that they must be present in Parliament at least once in 180 days. If someone wanted to game the system—I do not think that any MSP or elected official would ever choose to do so—their turning up once would take them out of the spotlight. However, the subjective reality of an individual’s life might put them in the spotlight when that spotlight should not be on them.
That is a really interesting point. No one goes into such a role lightly, and I do not believe that MSPs would wish not to be in attendance, because most of them will come into the role wanting to play their part and be diligent. However, we all know that life has an extraordinary way of throwing curve balls at us. Those who are required to be in caring roles or who are in financial hardship can find attendance to be harder. The bill could respond to that: provisions could be made to ensure that thought is given to extenuating and extraordinary circumstances. It is also important to be clear that that process would occur before a problem was taken to the extreme, because that transparency would alleviate the trust issue.
Women’s exposure on social media—and the problems that that can bring to the role and the work—is another big issue for us. If we can find ways to mitigate that while being really clear and transparent in the bill, that would help, were that element to remain in the bill.
That measure feels like a bit of a blunt instrument for trying to deal with what might be a complicated series of situations. It is important to try to understand what is preventing someone from attending. A good manager in a workplace would say, “You haven’t been attending for a while, so let’s sit down and talk about why that is.” That would be better than moving immediately to dismissal or some other sanction.
It comes down to the other integrity measures that are in place in Parliament. If someone’s only failing is non-attendance, where does that sit among the other expectations about conduct, integrity and behaviour?
If the provision remains in the bill, there should be lay members on the committee to consider whether the punishment is appropriate, both in order to bring in real-life experience and to avoid politicisation of the process. To go back to the original question that I posed, I am not 100 per cent sure what problem we are trying to solve. I know that we could refer to one specific instance and that there might be a couple of other borderline instances, but I would hate to legislate so broadly on the basis of an individual’s behaviour. That is not a particularly good way to legislate.
Annabel Mullin and Juliet Swann’s points are important, but we have to balance that with the extreme possibility that nothing could be done if, for example, someone became an MSP and then went off to live in the south of Spain. It is about balance, and there are loads of checks and balances that you can put in place to ensure that no one is being treated unfairly. However, there is a risk—it is a very small one—that that might happen.
Graham, do you have questions arising from any of that?
I have a reflection. If members have not done so already, I encourage them to read the bill’s policy memorandum, which covers quite a lot of the ground and shows that I have given deep thought to some of the questions that have been raised.
I know that I will be questioned in a few weeks’ time, but, if individual members feel that it would be appropriate and want to speak to me in advance of that, my door is open and I would be happy to discuss matters in detail. I will leave it at that.
That offer is now on the record. Thank you.
I thank the witnesses for attending today and for their evidence. If you have any thoughts afterwards, please feel free to correspond with the committee. I hope you will not mind us doing the same if we have any questions. I particularly thank Annabel Mullin for attending remotely. I am glad that that worked as well as it did—it shows that hybrid working can work properly.
That brings the public part of the meeting to an end.
11:09 Meeting continued in private until 11:22.