I’m now well used to my time as a parliamentary clerk being well behind me, but I still have thoughts about goings-on – and specifically I have some thoughts I want to share about Standards and Privileges, suspensions from the House, and the House’s penal jurisdiction. I worked for the House for ~6 years non-continuously, primarily as a Senior Clerk, so I have some experience to draw on here.
I’m going to address a few things that I’ve seen people say about the 90-day suspension recommended by the Committee on Privileges for Boris Johnson.
1. “This is too short a term”
The Committee in its initial report said that if Johnson had indeed committed the misconduct that he was accused of, they would recommend to the House a suspension long enough to engage the provisions of the Recall of MPs Act 2015.
Let’s be clear – this is effectively saying that the Committee would recommend his seat be vacated and up for by-election.
When the 2015 Act was making its way through Parliament, some raised concerns that it would lead to a situations where the House would feel constrained in how it applied suspension lengths due to the Act. This is an example of the Committee being highly aware of the Act, but using it as a benchmark, not a constraint.
Before the 2015 Act there was no way for a Member to be forcibly removed from the House short of a motion of expulsion (not done sine 1946-7, we’ll get to that) or becoming disqualified for other reasons. Before this Act, Members were suspended for months at a time and remained Members. Long before he
The Committee was effectively recommending his expulsion, but leaving that choice ultimately up to his constituents. That is the right and correct thing to do – the threshold for a recall petition is so low that if the provisions of the Act are activated, it only takes a tiny portion of the constituency to recall the MP.
The 90 days is effectively symbolic, but would have also meant he would have likely been suspended until the end of the petition period, meaning he would not have returned. It would also have been the 3rd longest suspension since the 30s, behind Keith Vaz’s 6 months and Rob Roberts’ six weeks.
2. “It should be a motion of expulsion, then.”
and 3. “He should not be able to return to Parliament”
So the Recall of MPs Act means the Committees can recommend expulsion without explicitly recommending expulsion.
However, this is not to say that prior to the Act the committees were willing to expel Members. The House last expelled a Member in the 1946-47 Session, on a finding of Contempt. At the time, there were grave concerns about the use of this power, and it has not been used since.
I will say outright: The House should not be able to permanently disqualify people from being Members. An expulsion does not, in fact, do this. Charles Bradlaugh, when he was expelled from the House in 1882 for refusing to take the oath on account of being an atheist, was re-elected multiple times. The power to return Members to Parliament lies and must lie solely within the electorate. There are disqualifying criteria under the House of Commons Disqualification Act 1975 and the Representation of the People Act 1981. For example, if one is imprisoned for more than a year or is an active member of the armed forces. The armed forces provision – and those like it that prohibit current judges – are constitutionally necessary. However, I believe that there is an argument for the provision against electing current prisoners to be overturned.
Bradlaugh, again – the House expelled him despite the wishes of his constituency. His constituency re-elected him, the House expelled him again, and so on. Manifestly undemocratic – and precisely the reason why the power to expel should be wielded extremely rarely if ever. And even if it were used, the reason why an expulsion must not lead to future disqualification if a constituency wills it.
4. “He should face more punishments – the remaining punishment of removing his former Members’ pass is laughable”
This comes to the House’s penal jurisdiction – I.E. should the House be able to punish non-Members. Johnson became a non-Member and thus removed himself from the House’s jurisdiction.
The House law exercised its penal jurisdiction on a non-Member in 1880. It would be ridiculous to argue to return to a situation where the House can commit a non-Member to prison, or apply some other sort of punishment. The only punishment that the Committee could have applied to him as a non-Member is to remove his former Member privileges, which they did recommend.
5. “It doesn’t matter if the *House* should be able to punish him. There should be an Act making these kinds of things illegal.”
That would be a massive change to the constitutional settlement. That alone isn’t an argument against necessarily, but I would argue it would be a negative one. Johnson was investigated and reported on solely because of his actions in the Chamber. This is separate to any police investigation and subsequent fines for the acts themselves.
If there were an Act of Parliament giving the courts jurisdiction over the conduct of people in the Chamber, this would institute a massive chilling effect on how Members spoke in the Chamber. Free debate would be stifled massively. This was an investigation into truthfulness. The reason libel laws don’t apply in the Chamber is to maintain that freedom of debate.
We do not want a situation where everything that a Member says has to go through a lawyer.
The Committee was well aware of the possibility of a chilling effect in its investigation, and talk about this in the full report. They proceed having decided that the contempt shown to Parliament is major enough to warrant punishment, despite the risks.
Conclusion:
I think the current situation is fine. The electorate ultimately make the decision on an expulsion via the Recall of MPs Act, the courts stay out of parliamentary debate, and if the electorate thinks that a Member ought to be elected again despite their misconduct they can do (For example, Ian Paisley Jr. faced a recall petition and ultimately did not get recalled)
I struggle to envisage what people want to have happened to Johnson here, from Parliament. Either you think that the covid laws should have been more draconian and he should have faced more than a fine (I would disagree most strongly, but, different argument), or you think Parliament ought to be able to met out a stronger punishment, or you think that there should be a law against lying to Parliament. The truth is that ‘law’ exists, but here is the law that is followed within the mechanisms of the protection of parliamentary privilege and the punishment of contempt.
Natalie O'Connor 