Scotland likes to see itself as a modern parliamentary democracy with a new Parliament elected by proportional representation, a circular chamber that reflects its intended way of working, and a committee system designed to hold power to account. This is very much the view of official Scotland and of much of our political classes. It was the view of Labour and Lib Dems when they governed Scotland and it is the view of the incumbent SNP now.
However, in at least one critical respect, there is a huge democratic deficit and need for urgent reform – and that is the absence of any popular mechanism to instigate the recall of MSPs, should voters wish. This is known the world over as a recall election – providing procedures to allow voters to show their dissatisfaction with their local representative – and has come to the fore with the Derek Mackay scandal.
Since he resigned as a Scottish Government minister, Mackay remains the MSP for Renfrewshire North and West but has not been seen in public for two weeks, has not made any further public pronouncements since his resignation, and has not undertaken any local constituency MSP responsibilities such as surgeries. This has brought condemnation from politicians across the spectrum that this is indefensible and unsustainable, but they are currently powerless to do anything for now.
Recall election procedures exist elsewhere in the world, but are unusual at a national level. Forms of recall of different levels of government can be found in at least 30 countries, including six out of 26 Swiss cantons, British Columbia in Canada, the Philippines, South Korea, Taiwan and Argentina. It is widely used in the USA – at local, city-wide and state level. And it now exists in the UK at Westminster – a product of the Conservative-Lib Dem coalition Government and the Recall of MPs Act 2015.
The UK act is an imperfect recall mechanism that was the product of coalition negotiations, with Lib Dems being for recall and Tories against. It specifies that a recall petition can be enacted if an MP faces a prison sentence of under 12 months (over 12 months seeing them automatically banned from the Commons), is suspended from the Commons for at least 10 sitting days, or is convicted for breaking the law on parliamentary expenses. If any of these conditions are met, then a recall petition is enacted which has to achieve a 10% threshold of voters to recall the MP in question and institute a by-election.
This right of recall has been undertaken three times since the act was passed. The first was the unsuccessful recall of North Antrim Democratic Unionist MP, Ian Paisley Jr. He was suspended from the Commons for 30 days for not declaring a Sri Lanka trip paid for by the Sri Lanka authorities. His petition gathered 7,099 voters – representing 9.4% of voters and thus there was no by-election.
The second was Fiona Onasanya, Labour MP for Peterborough elected in 2017, who was found guilty in January 2019 of perverting the course of justice after a speeding fine and sent to jail for three months. The recall petition gained 19,261 signatures representing well over a quarter of all voters (27.6%), hence producing a by-election in June 2019. Labour won this under a new candidate, Lisa Forbes, with a slender majority of 683 – slightly up on the previous majority of 607 seats – although it lost the seat in the subsequent 2019 UK General Election to the Tories.
The third, and so far last example, was that of Tory MP Chris Davies who represented Brecon and Radnorshire from 2015. Davies was found guilty of submitting fraudulent invoices and fined by the courts after the 2017 election, initiating a recall process. 10,005 people – representing 18.9% of the voters in the constituency – signed the petition, producing a by-election in August 2019.
The local Conservative association stood by Davies and the Lib Dem Jane Dodds won by 1,425 votes. The Tories won back the seat with a new candidate in the 2019 election, with Dodds going down in the record books as the shortest-serving female MP in the history of the UK, lasting just 97 days.
The UK law has worked removing two MPs who broke the law and providing a mechanism inbetween elections for voters to show their dissatisfaction. This, despite the narrow criteria which were drawn up to provide for recall, was agreed to by Tories in the hope that they would be so tight they would never or rarely be used.
Arguments against recall at Westminster, or bringing it to Scotland, increasingly look from a bygone age. They stress the importance of the independent judgement of national politicians. They emphasis that they should be able to come to assess an issue on its merits, free from being seen as a delegate. Yet such views have always been part folklore and contributed to the 19th-century Burkean idea of politicians resisting the revolutionary mob demanding radical change. This version of parliamentary sovereignty has become increasingly a myth in the age of party politics and judicial review, and post-Brexit, where direct democracy and popular sovereignty are seen as more important by many.
It is true that national politicians have competing responsibilities – local, national and the pressure of party discipline. This contributes to the absence of any clear consensus about what actually constitutes a good politician, MP or MSP. David Judge from Strathclyde University has rightly pointed out in relation to recall that there are 'multiple theories of representation prescribing what an MP should do'. But this cannot be seen as a defence of the status quo and doing nothing, but rather thinking about the role of politicians and even thinking about writing some kind of job description.
Democracy, politics and the rules by which we elect and administer politicians are always evolving and changing. The argument used by some that recall is open to abuse and could be used by corporate interests, rich backers and populists, is not an argument against it. Rather that is an argument for having a cold look at what passes for UK democracy, the amount of dark monies, including from Russian oligarchs, flowing into funding the Tories, and the issue of Russian state interference in the 2016 Brexit vote, as well as other contests.
In Scotland, 306 different people have been elected as MSPs since the establishment of the Scottish Parliament – 22 of who have been elected representatives for the entire 21-year period. Nearly all of the 306 have been from the four established parties or the Greens and Scottish Socialists, with only a tiny smattering of independents and others: Dennis Canavan, Margo MacDonald, Jean Turner. And there have been numerous scandals which have cost politicians their seats: Mike Watson, David McLetchie, Bill Walker, Keith Raffan. Some of these and others could have been aided by recall.
The Scottish Parliament does need to continually revisit and renew its democratic procedures. It recently commissioned and published a review by John McCormick to examine Holyrood's procedures and suggest areas for reform and improvement, but its remit and recommendations were cautious and narrow in the extreme.
We always need to be careful about the motivations of making law as a result of one case, but the Derek Mackay controversy throws light on an important weakness in our parliamentary procedures. He has resigned as a Government minister, pocketed £12,000 ministerial severance payment paid by taxpayers, and is failing in the job he was elected to do – to represent his constituents. If he is not charged by the authorities, there is no current mechanism to get rid of him as a MSP until the next Scottish Parliament election, with him being paid £63,579 per annum in the meantime.
The idea of recall is popular in the UK and Scotland. When the Westminster bill was being considered by the UK Parliament, the pollsters YouGov found 79% support across the UK and 72% in Scotland for the principle of recall. When asked if failing to provide constituency surgeries and work should be sufficient reason, support for recall was 60% across the UK and 67% in Scotland.
Scotland should have a recall procedure. One that is more open and inclusive than Westminster, and it should be in place before the next Scottish elections in 2021. It will require thinking about the different roles of first past the post (FPTP) and regional list MSPs – with perhaps a lower threshold for the latter reflecting their larger constituencies. Surely this is the sort of democratic reform all the main parties could quickly reach agreement upon?
Once in place, perhaps the Parliament could establish a standing committee made up of MSPs and outside experts to offer a continual thread of advice on how to best renew and reinvigorate democracy. This could be a healthy source of ideas because democracy and politics never stand still, but are continually changing, as is the expectations of voters.
If we don't want to be left defending 19th-century Burkean ideas of representation, but instead mapping out what it means to do politics or to be a politician in the world of 2020, we need new procedures, rules and notions of what democracy and accountability means to voters. Recall could provide a powerful tool for voters, as well as reminding politicians who their ultimate boss is.