Prof. Dr. Melanie Sully

Rechtspanorama "Die Presse", Was Österreich von den Briten lernen kann Dr Melanie Sully in the legal section of Die Presse

Photo: Dr Melanie Sully

This email address is being protected from spambots. You need JavaScript enabled to view it. has written in the quality daily "Die Presse" ("Was Österreich von den Briten lernen kann") on MPs, when they should resign, discipline, recalls, lobbyists, the expenses scandal in the British parliament and other international examples. For some offences UK MPs forfeit their salary. Also read what happens when MPs get prison sentences.

 Prof Dr Melanie Sully English version of article which first appeared in “Die Presse” "Was Österreich von den Briten lernen kann"

 Members of the British House of Commons cannot resign. This goes back to a decision of the seventeenth century according to which an MP forfeits his seat on death or expulsion. The latter has not occurred for around 60 years. An additional way is to accept an office which is incompatible with being a deputy eg a high court judge or ambassador, hardly posts which would be offered if the Member was facing corruption charges. Therefore two Crown posts have been specially created for MPs who want or have to resign. Such a post is by definition incompatible with a seat in the House of Commons.

It is possible for MPs to be in prison without giving up their seat, so long as the sentence is under a year. The expenses scandal a few years ago led to several cases of imprisonment although by then the MPs concerned were no longer in parliament. Since prisoners in the UK cannot vote, it can occur that an MP is in prison but could not take part in a parliamentary election. In Canada MPs can continue as deputies while serving prison sentences of up to two years but are not able to stand as a candidate for a parliamentary election. In France and Belgium loss of eligibility leads to loss of the parliamentary seat.

British deputy prime minister, the Liberal Nick Clegg has called for tougher action against MPs who receive sentences under a year. Currently in such cases the judge will merely inform the Speaker and it will be noted in official records. MPs can be suspended by a decision of the House which involves an immediate loss of salary. As a rule only one MP is suspended at a time and the party balance in votes in the plenary is not affected. MPs can also be deprived of their salary without being suspended. For some offences they can be required to make a full apology to the House, repay money falsely claimed or temporarily give up certain privileges. The House of Commons has not itself imposed fines since the seventeenth century and a proposal to reintroduce this was rejected some years ago. The House has also lost its own right to imprison members although a cell still remains on the parliamentary premises.

The coalition government is supporting a recall mechanism (as used in California) for cases of “serious wrongdoing” which could trigger a petition which if signed by 10% of the registered electorate in a constituency would bring about a by-election. Some argue the only ones who can deprive the MP of the seat should be those who sent him or her to parliament in the first place ie the voters. The proposal has been criticised by  many MPs who feel such action could be arbitrarily used simply because people disagree with Members. Some would prefer a more frequent recourse to expulsions by the chamber.  The public is basically interested in recall although the understanding of “serious wrongdoing” varies. Most see the acceptance of bribes, telling lies, racism but also switching parties and breaking election promises as cause for a recall.

The situation in the noble House of Lords is somewhat different. In 2009 two undercover journalists from the Sunday Times secretly filmed parliamentarians offering them cash for legislative amendments. Ironically these were the very same journalists who later similarly taped MEPs including the former Austrian Minister of the Interior. One Lord and some Members of the House of Commons refused the offer but some Lords agreed and they subsequently were sentenced to prison. No money exchanged hands but they faced an internal inquiry which looked at their failure to act honourably and their willingness to break the House code of conduct. The Lords noted that they do not have powers to permanently expel members. Special legislation can deprive a member of the House of Lords of a seat for treason and the last case was after two members supported Germany and Austro-Hungary in the First World War. Also Lords are not paid a salary and before the recent scandals the last suspensions were in the days of Oliver Cromwell in the seventeenth century. The softer sanctions were reckoned to be a reason why Lords fell into the journalists’ trap in contrast with members of the Lower House. The Lords eventually suspended the Members who were in prison and reviewed the code of conduct to make it tougher and clearer; Lords now have to sign the code.

As in Austria some politicians hang on to their posts until the last possible minute. A case occurred during the expenses scandal with the Speaker of the House of Commons. He came under fire for his mishandling of the situation and his apparent failure to condemn those who had abused the system. He refused to give up his position despite the outrage of MPs. Only when a motion of no confidence was tabled against him did he step down. In effect he had no choice since within hours the Chamber would have expressed a lack of confidence in his Speakership. He became the first Speaker who was forced out of office since the turbulent times in the seventeenth century.

A recent parliamentary report looked at the whole question of discipline for MPs and cautioned against hastily adopting new punitive measures. It stated that

an MP could break the law and go to prison for various reasons eg civil disobedience and cited the case of members under Thatcher who refused to pay the infamous poll tax believing it to be a bad or immoral law and were imprisoned. However at the time the leader of the Labour Party, Neil Kinnock, an ardent opponent of Thatcher and her policies said “law makers must not be law breakers”, a view which is held by many including the general public today. In any case MPs should always get a fair hearing to avoid challenges at the European Court of Human Rights.

In the end politicians should realise the burdens and duties that go with public service and until then measures to expel, suspend, fine or otherwise induce this culture may be necessary.