The previous Welsh government, an effective coalition between Labour, the Liberal Democrats and an independent, introduced legislation that gives Welsh local councils the opportunity to switch from First Past the Post to the Single Transferable Vote. But time is running out for councils to adopt it before the next set of local elections.
Of course, it’s disappointing that there wasn’t an automatic switch for all 22 councils, like in Scotland due to the Labour-Lib Dem coalition (2003 – 2007). Instead, individual councils have to make the decision themselves. But we are where we are.
There are real opportunities for change. However, the decks are stacked against reform campaigners. The Local Government and Elections (Wales) Act 2021 sets a deadline for reform ahead of the next elections. The legislation says the following:
“A resolution to exercise the power has no effect unless it is passed before 15 November of the year that is three years before the year in which the next ordinary election of the council is due to be held.”
With the next local elections due in May 2027, the deadline for reform is 15 November 2024, three years ahead of the elections. That’s now just two years away.
That may seem like a while away, but it’ll be November 2024 before we know it. Electoral reform campaigners in Wales will be very much aware of that.
Central Scotland MSP Graham Simpson has lodged his proposal for a Removal from Office and Recall Bill (19 January 2022). This potential Act of Parliament is a direct response to the ministerial resignation of then Finance Secretary Derek Mackay in February 2020, as a result of him messaging a teenage boy, and his subsequent disappearance from parliament while claiming a full salary as an MSP.
If passed in the Scottish Parliament, the Bill will make MSPs more accountable to the electorate by setting out new terms to remove MSPs from office where appropriate. The bill has three main functions:
To remove absent MSPs from office
To lower the jail time threshold for removal from office
To establish a system of recall for MSPs
Here are five reasons why all five of Scotland’s political parties should come together and pass the Bill.
1. Democratic duty of participation
Legislators have a duty to act on behalf of their constituents and attend parliament. Turning up at parliament is the bare minimum that should be required of MSPs. Under the status-quo, MSPs can remain in post even if they don’t show up for work (while claiming a salary!). This is simply unacceptable.
The Removal from Office and Recall Bill will mean automatic expulsion from parliament if an MSP fails to show up for six months. Importantly, the Bill will have a provision so that MSPs on maternity leave or those affected by ill-health are exempt from this reform.
This automatic expulsion will address the problem of non-attendance and is the right step forward for Scottish democracy. It is also worth noting that such a provision has existed in government as a result of Section 35 of the Local Government (Scotland) Act 1973. To put that in context, the Scottish Parliament is almost half a century behind Scottish councils. It must catch up.
Holyrood must learn from the rules of local government and support Graham Simpson’s bill.
Elected officials should act and behave in a way that is expected of them. Standards in public life are extremely important – as have been shown by events of the last few months in Westminster. It is therefore vital that anyone jailed while serving as an MSP should not be in their position.
The current rules ban MSPs from their job if they go to jail for more than a year. This means that representatives jailed for a year or less can remain in post, a loophole that is simply unacceptable. This could have happened in 2013 had Bill Walker MSP not resigned from parliament. Graham Simpson MSP highlights this in his proposal, saying:
Bill Walker, the former MSP for Dunfermline, was convicted of 23 charges of assault and one of breach of the peace in August 2013, yet was sentenced to just a year in prison. If he had not resigned then the Parliament would have had no power available to it to remove him and, consequently, the people of Dunfermline would have been represented for a year by an MSP in jail.
Graham Simpson MSP (19 January 2022)
Thankfully, the Removal from Office and Recall Bill will ratify this problem by containing a provision to expel MSPs from parliament of they go to jail for one year or less.
In addition to the moral argument that MSPs have a duty to attend parliament, participate in debates and vote, there is also the issue of money. Absent MSPs mean wasted taxpayer money.
When Derek Mackay stopped turning up to parliament between February 2020 and May 2021, he cost the taxpayers a heft sum for doing very little – if anything – at all.
The Removal from Office and Recall Bill will ensure that MSPs absent for six months or more (without a valid reason) are booted out of Holyrood. The main argument for this is to ensure that constituents are fairly represented in parliament but their is also a strong case to ensure taxpayer money is not wasted, adding weight the need for change.
The Removal from Office and Recall Bill crucially adds a mechanism allowing constituents to recall their MSPs. This is vital to improve accountability so that the public have a say on members that bring the parliament into disrepute.
Of course, this needs to be done carefully to ensure the mechanism doesn’t become a political tool. Appropriate checks and balances can be put in place, taking a steer from the process set-up at Westminster in 2015. The UK’s Recall of MPs Act 2015 sets out the following three conditions for a recall petition:
A custodial prison sentence (including a suspended sentence)
Suspension from the House of at least 10 sitting days or 14 calendar days, following a report by the Committee on Standards
A conviction for providing false or misleading expenses claims
Furthermore such a system should also account for both types of MSPs elected (constituency and regional). The exact way to do this is hard to say as highlighted in the Bill’s proposals.
5. Positive experiences from Westminster and around the world
Lastly, the proposed measures in the Removal from Office and Recall Bill have been tried and tested elsewhere, showing that they are workable. Upgrade Holyrood advocates for democratic best practice and learning from how other democracies conduct themselves. The functions proposed in the bill have a history of working elsewhere.
The House of Commons has had a recall rule since 2015 and to date has been used on three occasions. Crucially, it has not been used as a political tool and the mechanism is largely viewed as a success. While there are still questions to be answered about how this would practically work for regional members, it is right that the balanced approach of the recall process at Westminster should be the starting point for reform of the Scottish Parliament.
Next steps for the bill – contribute to the consultation and write to your MSP
The Bill has a long way to becoming law as it needs the support of MSPs from different parties to overcome the first hurdle to be introduced to the chamber. One action to help move this forward is to ask your MSPs to back the motion. You can find out who your MSPs are here.
Another way to help out is by contributing to the open consultation, which will close on 13 April 2022. Make your case for the Removal from Office and Recall Bill here.
You can read more about the consultation and the Bill here.
Where do Scotland’s political parties stand on the bill?
The Scottish Conservatives and Scottish Liberal Democrats both supported recall proposals in their 2021 manifestos, the former’s leading to Graham Simpson’s bill.
Scottish Labour did not include a similar proposal but have since come around to supporting the bill, as reported by Holyrood Magazine. Scotland’s two governing parties, the SNP and Scottish Greens, have yet to voice their support.
These days, Scottish politics is viewed as extremely polarised but surely this is one issue where Holyrood’s five parties can come together. Even if there are disagreements on some of the detail, surely there is enough common ground on the principles to introduce and pass the bill.
When it comes to democratic processes, there’s a lot that Westminster can learn from Holyrood but there’s one really obvious improvement Holyrood can make by learning from Westminster.
Despite being stuck in the past, with its unrepresentative voting system, the undemocratic House of Lords and much more, the introduction of a recall process at Westminster was a welcome innovation that has made British democracy more accountable.
Westminster’s recall system was introduced in 2015 by the coalition government. The Recall of MPs Act (2015) provides three circumstances where a recall petition can come into force. If any MP recieves a custodial prison sentence, is suspended from the House or is convicted for providing false or misleading expenses claims, then a recall petition is triggered.
If this happens to an MP, their constituents will be able to sign a petition and if 10% of constituents sign in the set time period, then a by-election will be triggered.
There is no similar provision for MSPs in Scotland despite calls for a recall mechanism during the last parliament.
Only two parties called for the introduction of a recall process during the last election – the Lib Dems and the Conservatives. Here’s what they said:
Scottish Liberal Democrats – “Continue to call for the introduction of a recall system for elected representatives.”
Scottish Conservatives – “At Westminster, there are clear rules around recall, allowing a by-election to take place in certain circumstances, but no such rules exist for MSPs. We will introduce Mackay’s Law, allowing the public to recall MSPs who have broken the law, grossly undermined trust or cailed to contribute to Parliament for more than six months. This will mean that Scotland will never again face the scandal of a disgraced former minister remaining an MSP, earning over £100,000 and failing to represent his constituents.”
That there have been six years since the introduction of the recall process at Westminster gives an opportunity to learn from the legislation in London – as well as from elsewhere.
The House of Commons system ensures that constituents can’t just recall politicans for any reason. There are clearly defined routes to recall – sensibly setting boundaries although there is room for expansion – that can be adapted for the Scottish Parliament.
The case for a recall system is as simple as it is obvious. MSPs who bring the Scottish Parliament into disrepute have no place in the chamber. The exact reasons that would lead to a recall petition (and potential by- election) would need defined but those outlined for MPs at Westminster, as well as the detailed reasons offered in the Scottish Conservative manifesto clearly highlight the need for a such a system. The fact that MSPs can break the law or not turn up to work and keep their job is a democratic outrage. The Scottish Parliament needs to learn from Westminster and adopt a recall process.
Scottish democracy needs an upgrade and the introduction of a recall system would help do just that.
However, there is one practical stumbling block to the introduction of a recall rule. It is worth considering the two different types of MSP at Holyrood (although Upgrade Holyrood supports switching from AMS to a more representative electoral system). Recall would ultimately lead to a by-election for any MSP elected in a single seat constituency, however, the route to recall would be more complex for a regional MSP.
There are some solutions but the answer is far from obvious:
A region-wide by-election (a fascinating prospect but one that throws up questions about the very nature of the Holyrood voting system).
A decision taken by the party that the MSP belongs to over whether to remove the MSP and let the next candidate in the list taking up the post (however, this would give a significant amount of power to parties and take away the electorate’s option to have their say).
A parliamentary vote of confidence. If the MSP loses then they would be expelled from parliament. The next candidate on that party’s list would then take their seat. This might be the most sensible option but there would need to be significant checks to ensure that it wouldn’t be abused.
The correct answer to this is unclear (and there would be similar questions if Scotland adopts the Single Transferable Vote of an Open List PR system with levelling seats), however, introducing a recall mechanism would ultimately improve Scottish democracy.
It’s time to introduce a recall rule. Let’s learn from Westminster and adopt a recall system to improve Scottish democracy.