Big Saturday Read: Lessons from a Westminster scandal?

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Over the last two weeks, a major scandal erupted at the Palace of Westminster, the home of the United Kingdom’s Parliament. The scandal has caused significant embarrassment to the British government. The episode presents a teaching moment for several reasons that are discussed in this BSR. It is a grim reminder that even the older and more established democracies are not immune to the abuse of power and political corruption.

It also reminds us of the tyranny of majoritarianism when the raw force of numbers is shamelessly deployed to defend improper behaviour. Besides, while the analytical lenses are often trained on fledgling and weaker democracies, it is useful sometimes to refocus them upon the older democracies and observe what lessons, if any, can be drawn. We will see that in addition to the shame that this episode brought on British democracy, there is also evidence of what political scientists Levitsky and Ziblatt call the “soft guardrails” of democracy which played some restraining role during the scandal[1].

Let us start with a summary of the scandal.

“Moving the goalposts”

Owen Paterson was a Member of Parliament representing the Conservatives, the ruling party in the United Kingdom. He was recently found guilty of improper conduct by a parliamentary watchdog, the Parliamentary Commissioner for Standards.  This is an independent officer of the House of Commons who carries out investigations of allegations that MPs have breached certain rules in the House of Commons’ Code of Conduct.

The Parliamentary Commissioner makes recommendations to the Committee on Standards, which is a select committee of the House of Commons with members from both the ruling party and opposition parties. It is this set of watchdogs that found that Owen Paterson had breached parliamentary rules on lobbying. They recommended a suspension from parliament, which could have triggered a recall.

However, when the matter came before parliament, there was a brazen attempt by the government to change the rules of the game to protect Paterson. The government whipped its MPs to forestall the vote on his suspension proposing instead a review and an overhaul of the way MPs were investigated. The government was discarding and undermining an existing process just because one of its MPs was affected. It was a clear case of shifting the goalposts midway through the game. Other MPs were protecting their personal interests as it emerged that 24 MPs facing official complaints had voted to support the government’s motion.

“Shameful and wrong”

The government’s conduct drew a lot of criticism from opposition parties, civil society, and the media. Both the Labour Party and the media branded the conduct as “corruption and sleaze”. Even some of the Conservative MPs could not support the government’s actions.

It soon became clear to the government that it had made a great error. It might have used its parliamentary majority, but this was a case of using majoritarian power for an improper purpose. A former Prime Minister, Sir John Major, was highly critical of the government’s conduct, which he described as shameful and wrong.

The avalanche of criticism caused the government to perform a quick U-turn the next day. It ditched the plan to back Paterson. At that point, Paterson resigned from his role as an MP. The government’s actions had initially suspended further action against Paterson pending the overhaul of the standards system. With the U-turn, Paterson was left without cover and had no choice but to throw in the towel. The resignation meant it was no longer necessary for parliament to vote on his suspension as originally recommended by the watchdog. We shall see what might have happened had Paterson not resigned because the suspension would have promoted his recall from parliament. His resignation, therefore, pre-empted the recall.   

Why the sudden U-Turn?

The government had a parliamentary majority to maintain its decision, so why did it perform such a swift U-turn? Many people who live under dictatorships know too well that when the ruling party decides, that’s it. If they have the numbers to back them, they can do as they please. Take Zimbabweans for example. A few months ago, they thought the government would listen to their concerns before passing controversial constitutional amendments. The regime did not care. It had the numbers to carry the amendment and that’s all that mattered.

However, even those who live in long-established democracies also know numbers rule over reason when politics is polarised and politicians place self-preservation above all else. It explains why Republican legislators continued to vote for President Trump regardless of his indiscretions. The Conservatives could have held on to their decision on Paterson, insisting that they had the majority. In a country where parliament is supreme and has enormous power, the majority can change laws without great difficulty. But they changed their stance. Why?

Criticism and pressure from the opposition and the media were important factors. The UK has a huge, diverse, and independent media which does not shy away from calling out the government. When a scandal erupts, the media is relentless. The media is a truly powerful institution that keeps politicians in check. Labeling the conduct as corruption and a sleaze highlighted the reputational harm that the actions were causing.  

Although pressure and criticism were important, self-preservation on the part of the Prime Minister and his government were even more influential. It was clear that the political cost of backing Paterson was too high and unsustainable. But the political cost of the ridiculous decision should have been clear from the onset. Perhaps it is an example of the arrogance that comes with a party staying in power for too long. The reversal was a damage limitation exercise, but considerable damage had already been incurred.

Apart from the shame, embarrassment, and political cost, the government also faced a legitimacy crisis. While British politics is notoriously adversarial, with the House of Commons being the theatre of political performances, there are conventions, values, and principles that ensure that the ruling party and the opposition work together in parliament and other areas. The major parties understand the significance of mutual recognition of each other’s legitimacy for their democracy to work. If one of the parties withdraws because the other is repudiating the unwritten code, it causes problems. The moment the official opposition and other parties declared that they would not participate in the government’s proposition to overhaul the parliamentary standards system, it became clear that the process would have a serious legitimacy deficit. It was misguided and unsustainable to go ahead with the plan without the consent and participation of the opposition.

The government had violated one of the much-cherished norms in British society, the idea of fair play. It means everyone must subscribe to the rules of fair play. Everyone must play by and uphold the rules of the game. By trying to block its MP’s suspension for wrongdoing midway through the process, the government was not only subverting this established norm, but it was also declaring that its party members were above the rules. This would prove damaging to its future electoral prospects. 13 of its MPs voted against the government’s motion and a further 98 abstained leaving the government with a small majority of 18. 19 of its MPs who voted for the motion were facing formal complaints which means they were conflicted. If they had not voted, the government might have lost the vote. It was clear that its efforts were ill-conceived and politically costly in the future.   

Moral crisis

The government’s U-turn and Paterson’s resignation were a scant consolation to critics of the government. It was an embarrassing episode not just for the government but for British democracy. This is a country that preaches democracy to the rest of the world but here it was outperforming tin-pot dictatorships. How would it be able to claim the moral high ground when it comes to issues of democracy and fighting corruption and sleaze? Dictatorial regimes seize these dark moments to launch attacks against democracy. That is the danger when those who are supposed to be democracy’s torchbearers become its saboteurs. How do you lecture others against abuse of majoritarian powers when you are abusing them to protect your own friends?

The government’s conduct also undermined the authority of parliament’s independent watchdogs. The watchdogs had expressed their independence by recommending the suspension of a ruling party MP, but now the ruling party was using its parliamentary majority to subvert their decisions. It is a mark of strength that parliamentary watchdogs which have MPs in the Standards Committee who come from both the major parties had performed their role in a non-partisan way and reached a decision. What is the point of having independent watchdogs when their decisions can be thwarted by majoritarian power in parliament? It’s what would normally happen in a banana republic.

Some redemption

However, despite the embarrassment of the brazen attempt to abuse a parliamentary majority, the government’s about-turn presents an interesting opportunity for examination because, as we have observed, if a similar situation were to occur in an authoritarian regime, there is little if any chance that the regime would back down. What is it about the British political system that made it possible to stop the calamitous route that the government had taken? That the government was unable to carry on reflects some of the subtle elements that distinguish established democracies from weaker versions.

We have already seen how the media, opposition parties, and the government’s instinct for self-preservation played an important role. This is what is referred to when people talk of strong institutions. The older and more established democracies tend to have stronger and independent institutions that fight back when there is a threat to the democratic order. By contrast in authoritarian regimes, state media generally parrots the government’s views and private media tends to be smaller and less influential. This was evident in the US during the Trump presidency despite the other failings. Although the Republicans in Congress and some parts of the state went along with Trump at crucial points, in the end, institutions such as the military, the judiciary, the media, and others refused to be cowed into submission. 

The second important factor is the existence of free, fair, and credible elections as an incentive for better behaviour. Where institutions are strong and independent, and elections are free and fair, political actors know that poor political decisions carry heavy political costs because voters will punish them. It would be foolish to insist on a decision that is widely unpopular and controversial. By contrast, in authoritarian regimes, where electoral processes are pre-determined, ruling parties do as they please. With key institutions firmly captured, there is nothing to restrain them and since elections are generally not free and fair, the possibility of losing power is remote. When you have a near-perfect guarantee to remain in power, you become arrogant, and you are unlikely to respect the rules or your opponents. Such conduct would be suicidal in the more established democracies where voters will surely punish you come election time.  

Therefore, if they were a ruling party in an authoritarian regime, it is unlikely the Conservatives would have made that swift U-turn. It would have carried on regardless and justified its conduct by pointing to its parliamentary majority. They would not have cared about the complaints of the opposition. Instead, they would simply have told them to forget it and fight for a majority in the next election. That it’s unethical and improper to change the rules midway through the game would not have mattered to them. 

Could Paterson have been recalled from Parliament?

In this part, we look at what did not happen in the Paterson case but might well have happened had the government not interfered with its ill-fated attempt to protect its MP. This is important for comparative purposes between the UK and Zimbabwean systems of removing MPs before the expiry of their terms of office.

The UK parliament passed the Recall of MPs Act in 2015 which provides for circumstances in which an MP may be recalled from his or her role. The law was prompted by reforms following a huge scandal in 2009 involving MPs’ who were making improper expenses’ claims. All political parties pledged to initiate reforms that would give citizens the right to recall errant MPs. The Act gives power to citizens who are registered to vote in a constituency to recall their MP. A valid recall petition must be signed by at least 10% of registered voters in the relevant constituency.

However, the recall power can only be exercised on specific grounds. The grounds are where an MP has been convicted of an offence and sentenced or ordered to be imprisoned and all appeals have been exhausted; where an MP has been suspended from the House on recommendation by the Committee on Standards for a specified period; or where an MP has been convicted of an offence under section 10 of the Parliamentary Standards Act 2009. The Speaker of the House of Commons must notify the petition officer in a constituency when one of the grounds of recall is brought to his attention by the courts.

In the Paterson case, if Parliament had voted to suspend him following the recommendation by the Committee on Standards, the Speaker of Parliament would have been required to notify the petition officer in his constituency. It would have been up to the people in his constituency to trigger the recall process by launching a petition. They would need just 10% of registered voters in the constituency to back the recall petition to get him recalled. The seat becomes vacant once the Speaker is informed by the petition officer that the 10% minimum threshold has been satisfied. Thereafter a by-election is held to fill the vacancy. This process became unnecessary because Paterson resigned after he lost the backing of the government which had ill-advisedly stepped in to protect him. His resignation created a vacancy in the seat and there was no more need for a recall process.

The Paterson case could have been the fourth time in 6 years that the recall procedure would have been used in the UK. It has been used on three occasions before and was successful in two of those cases. It gives power to citizens, but it can only be exercised on the limited grounds allowed by the law. In all cases, there must have been due process, affording the MP a chance to be heard and to be judged by independent bodies. Two of the grounds require a judgment of a court and one is based on the decision of Parliament following an investigation by a parliamentary watchdog. It is this process that Paterson was not satisfied with, and the government was proposing to overhaul. But whatever the merits of their arguments, it was too late and improper to stop a process that was already in motion and apply new rules retrospectively.  

What if Paterson had been a Zimbabwean MP?

Unlike the UK, Zimbabwe does not have a law for the recall of MPs by citizens. Instead, Zimbabwean law confers power to a political party to terminate the MP’s tenure in office on the ground that he or she is no longer its member[2]. Therefore, whereas in the UK the power to recall an MP lies with the citizens, in Zimbabwe, the power belongs to the political party.

On the continent, other countries like Kenya, Nigeria, Ethiopia, and the Gambia have specific provisions for the right of recall by citizens. However, while the UK recall provisions are simple and have a low threshold, most constitutional provisions in these countries have varying levels of qualifications. For example, in Kenya, after a successful recall petition, there must be a recall election and if it succeeds, there will be a by-election to fill the vacancy. In Nigeria, there must be a recall referendum even after the petition to recall an MP is successful.

By comparison, it seems easier to recall an MP in the UK than in these countries. However, as we have seen, the UK model is also vulnerable to the whims of the government. If the government is unwilling to play by the rules, as the current government had done in the Paterson case, the use of the recall provisions is rendered theoretical at best.     

We have seen that the UK parliament has powers to discipline errant MPs. Some might wonder whether the Zimbabwean parliament has similar powers and processes. Parliament’s power to discipline MPs is regulated by the Privileges, Immunities, and Powers of Parliament Act. Under that legislation, parliament may investigate and punish an MP for a breach of parliamentary privileges. One prominent instance in which it was used was against Ian Douglas Smith, the former Prime Minister of Rhodesia. He was serving as an MP in 1987 when he made public statements in support of South Africa’s apartheid policy and opposed the imposition of sanctions against the apartheid regime. He was accused of contempt of parliament. As punishment, the government passed a motion to suspend Smith without pay for a period of 12 months[3].

Smith initially challenged the suspension and the withholding of his remuneration and benefits. However, he later withdrew the challenge against his suspension from parliament, accepting that he had breached parliamentary privilege. The Supreme Court accepted that parliament had jurisdiction to punish violations of privileges by Members, but this must be consistent with the Constitution because after all, it is the supreme law of the country. Any penalties must, for example, be consistent with the Declaration of Rights in the Constitution. As the Court stated in the case of Smith v Mutasa NO and Anor. 1989 (3) ZLR 183, “… Parliament cannot step outside the bounds of the authority prescribed to it by the Constitution”. Although Smith did not pursue the challenge against his suspension from parliament, he was successful in challenging the withdrawal of his remuneration and benefits.

Therefore, while both the UK and Zimbabwean parliaments can suspend an MP for breaching rules or privileges, the consequences are different. In the UK, a suspension from Parliament can trigger a recall of the MP by citizens under the Recall of MPs Act while in Zimbabwe there is no equivalent law for recall of MPs by citizens. A political party cannot even remove the suspended MP unless it sacks him and declares to the Speaker that he is no longer its member. This is an area that needs consideration for reform.

The current system confers too much power on the political party and excludes citizens. If the recall of MPs is to be maintained on the books, the bulk of the power of recall must be given to citizens. Constitutional practice has been demonstrated as one of the great errors of the current Constitution in that it confers too much power on political parties while excluding citizens. This has resulted in abuses by all political parties with the power to remove MPs being weaponized against political rivals, often with very little to do with the public interest.

Finally, would Paterson have resigned had he been an MP in the Zimbabwean parliament? The answer to this is that it’s highly unlikely. There is no culture of resigning in Zimbabwe, even in the face of scandal. He would have been extremely unlucky to be investigated by a committee of a ZANU PF-dominated parliament. But even in the unlikely event that he was found guilty and suspended from parliament, he would probably serve his suspension and return to parliament. It would not trigger a recall by citizens because the law does not provide for it.  

WaMagaisa     

[1] How Democracies Die, 2018

[2] Section 129(1)(k) states the seat of an MP becomes vacant “if the Member has ceased to belong to the political party of which he or she was a member when elected to Parliament and the political party concerned, by written notice to the Speaker or the President of the Senate, as the case may be, has declared that the Member has ceased to belong to it”

[3] Another instance in which the Zimbabwean Parliament has the power to determine the fate of an MP is where an MP has missed 21 consecutive parliamentary sittings without proper leave from the relevant authorities [3]. One high-profile attempt to use this provision was in 1983 when the government invoked it against Dr. Joshua Nkomo who was the leader of the opposition. Nkomo had fled to Britain after facing persecution from the government and fearing for his life. ZANU PF moved a motion for Nkomo’s seat to be declared vacant. However, the motion was eventually withdrawn following Nkomo’s return.