[Relevant Documents: Memorandum from the Audit Committees on the Parliamentary Standards Bill. Copies are available in the Vote Office. Seventh Report from the Justice Committee, Constitutional Reform and Renewal: Parliamentary Standards Bill, HC 791. Nineteenth Report from the Joint Committee on Human Rights, Legislative
Scrutiny: Parliamentary Standards Bill, HC 844. ]
[2nd Allocated Day]
Considered in Committee.
[Sir Michael Lord in the Chair]
MPs’ code of conduct
We begin with amendment No. 63, with which it will be convenient to deal with new clause 4 and clause 6 stand part.
On a point of order, Sir Michael. There has been a most extraordinary development since we met yesterday. The Justice Committee produced a report to the House this very morning in which it has recommended that clause 10 be not proceeded with. That was decided unanimously, and with a majority of Labour Members present. The Justice Secretary has already indicated that he will not proceed with clause 6, and I am sure that it would assist this Committee’s deliberations considerably if he indicated now whether he is minded to accept the unanimous report of a Select Committee of the House.
As far as the Chair is concerned, our proceedings must simply follow the order that is set out before us. I am sure that if the Justice Secretary wishes to alter those arrangements or make any other interventions, he will do so in his own time.
I understand that amendment No. 63 is not to be moved.
Question proposed, That the clause stand part of the Bill.
I am grateful to the Government for adding their name to my amendment proposing the deletion of clause 6. It seemed to me that the clause added absolutely nothing to the Bill, as the House already has a code of conduct that reflects the Nolan rules. It also posed a substantial risk in opening up to judicial review that which happens in the House. I am glad that the Government have recognised the force of the arguments against it, have heeded the wise counsel of the Clerk of the House, and have had second thoughts.
There are many other issues that we hope to address later, so I will not detain the House any longer. I merely express my gratitude for the fact that common sense has prevailed, and the clause is now not to be part of the Bill.
I am sure everyone will be relieved that the Government have shown such good sense. I congratulate my right hon. Friend the Member for North-West Hampshire (Sir George Young) on his amendment. If we are lucky enough, in terms of the timetable and in other respects, we shall deal later with new clauses 7 and 8, which will help to clarify issues relating to the application of article IX of the Bill of Rights 1689 and the supremacy of Parliament. However, I think that we can leave that debate until later.
We are, of course, pleased that the Government have decided to remove clause 6. However, we wish to make clear that that is not because we do not approve of the idea of a code—indeed, we already have one—but because, as the Clerk of the House made clear, the clause would have put us on a collision course with the courts.
While I welcome what I expect the Secretary of State for Justice to tell us in a moment, this does rather take us back to the future. I will not rehearse all the arguments that were in my Second Reading speech, but I will say that if clause 6 had remained in the Bill, the legitimate concerns of constituents would have been replaced by the vexatious concerns of litigants.
We are, however, disappointed that yesterday, having delighted us by saying that they would withdraw the clause, the Government brought it in again through the back door, in a slightly watered-down form, by changing all the language of clause 5 from the word “rules” to the word “code”. That, in our view, has introduced a new element of confusion. Before the amendments were passed, there was a welcome hint of clarity. The word “code” now refers only to financial interests. It is to some extent sub-divided in the language of clause 5, but, as with the use of the word “standards”, the Government have introduced that element of confusion, which could otherwise have been avoided.
I think that the origin is, once again, interference by the Prime Minister. Page 8 and other parts of the document that he produced yesterday, “Building Britain’s Future”—itself probably an inaccurate title—state:
“We are introducing legislation to create an independent regulator for Parliamentary standards, and a tough, legally binding Code of Conduct for MPs.”
If we juxtapose the amended clause 5 and the soon-to-be absent clause 6 with what the Prime Minister has said about a legally binding code of conduct, and if we take what he has said at face value, we see that we may once again be heading for a justiciable code of conduct, which is exactly what the removal of clause 6 was designed to avoid.
We are not clear—I am convinced that there is still confusion—about whether that will create the problems surrounding justiciability that the Clerk of the House has already highlighted, but I am afraid that our pleasure at the removal of the clause has been tainted by our disappointment that many of its disadvantageous elements have crept into the Bill elsewhere.
As I said on Second Reading, it is good that the Secretary of State will remove clause 6, but when he rises to explain his reasoning for that, he might also explain his logic as to how it is consistent to remove clause 6 while retaining other provisions such as clause 10.
I am grateful for recognition of the fact that I have sought to respond to proposals from all parts of the House to improve the Bill, and I shall continue to do that wherever I can.
Let me say in response to the hon. Member for Rutland and Melton (Alan Duncan) that the provisions of clause 5 are completely different from those of clause 6, which we hope will be excised in its entirety in a few seconds. Clause 5 deals with the Independent Parliamentary Standards Authority—and, for sure, various statutory duties are imposed on that. The fact that what was previously referred to as financial rules is now defined as a code relating to finance is a rose by any other name in that it does not make any substantive difference. I think I can see a twinkle in the hon. Gentleman’s eye as he understands that point.
We will remove clause 6 because we have recognised the serious anxieties expressed, not least by the learned Clerk, and because, as the hon. Gentleman said, it could have encouraged litigious constituents. I might just add, however, that that prospect remains. It happens to be the case that I was the first Member of this House to be subject to legal action from a constituent who believed that they had been badly served by me. That happened at the end of the 2000-01 Session, and a resolution of the House was tabled on that. A completely inadvertent error was made, compounding one made by the local authority, in which the name of an innocent constituent who lived at No. 9 in a street was transposed to the address of a drug dealer against whom the constituent was complaining who lived at No. 11. The local authority transposed the two addresses. My very good member of staff did the same on the basis of the mistake by the local authority, and I was the subject of legal action. The House very kindly decided to indemnify me against the £33,000 that that mistake cost. That risk remains, but I have no wish to compound it.
As we are discussing clause 6, I shall come on to deal with the point raised by the hon. Member for Orkney and Shetland (Mr. Carmichael) when we discuss clause 10. I see that an important amendment to it has been tabled by the right hon. Member for North-West Hampshire (Sir George Young) and my hon. Friend the Member for Middlesbrough (Sir Stuart Bell) to which I am very sympathetic, and I will make a further decision about it in the course of these proceedings. With that, I ask that clause 6 be excised from the Bill.
Question put and negatived.
Clause 6 accordingly disagreed to.
Amendment made: 84, page 4, line 33, leave out ‘financial interests rules’ and insert
‘code of conduct relating to financial interests’.—(Mr. Straw.)
With this it will be convenient to discuss the following:
Amendment 10, page 4, line 42, at end insert—
‘(4A) No report shall be made by the Commissioner—
(a) in any case where the member concerned has agreed that he has failed to register or declare an interest, if it is the Commissioner’s opinion that the interest involved is minor, or the failure was inadvertent, and the member concerned has taken such action by way of rectification as the Commissioner may have required within any procedure approved by the IPSA for this purpose; and
(b) in any case involving the MPs’ allowance scheme, or the use of facilities or services, if the Commissioner has with the agreement of the member concerned referred the matter to the IPSA for the purpose of securing appropriate financial reimbursement, and the member has made such reimbursement within such period of time as the Commissioner considers reasonable.’.
Amendment 11, page 5, line 5, at end insert—
‘(5A) In determining the procedures, the IPSA must consult—
(a) the Leader of the House of Commons,
(b) the Committee on Standards and Privileges, and
(c) any other person the IPSA considers appropriate.’.
Amendment 48, page 5, line 6, leave out subsection (6).
Amendment 45, page 5, line 11, at end add—
‘(7) The IPSA must ensure that any member who is subject of an investigation is provided with independent advice and counsel on all matters relevant to that investigation.’.
New clause 5—Minimum requirements for fairness—
‘The procedures referred to in subsection (5) of section 7 must, in particular, provide a Member who is the subject of an investigation or complaint with—
(a) a prompt and clear statement of the precise allegations against the Member;
(b) adequate opportunity to take legal advice and have legal assistance throughout;
(c) the opportunity to be heard in person;
(d) the opportunity to call relevant witnesses at the relevant time;
(e) the opportunity to examine other witnesses;
(f) the opportunity to attend meetings at which evidence is given, and to receive transcripts of evidence.’.
New clause 11—Fairness: Minimum requirements—
‘The procedures referred to in subsection (5) of section 7 must, in particular, provide a Member who is the subject of an investigation or complaint with—
(a) a prompt and clear statement of the precise allegations against the Member;
(b) adequate opportunity to take legal advice and have legal assistance throughout;
(c) the opportunity to be heard in person;
(d) the opportunity to call relevant witnesses at the relevant time;
(e) the opportunity to examine other witnesses;
(f) the opportunity to attend meetings at which evidence is given, and to receive transcripts of evidence;
(g) the benefit of a standard of proof of beyond reasonable doubt where the allegation amounts to a criminal charge, and of the balance of probabilities in all other cases.’.
Clause stand part.
As drafted, clause 7 does not provide an opportunity for Members to refer their own cases to the new Commissioner for Parliamentary Investigations. The Bill thus removes a facility that is currently available to Members and which has been used on several occasions in the past couple of years. Amendment 9 would restore that facility.
I think it is right that there should be no automatic entitlement for Members to refer their own cases. Currently, the commissioner seeks the agreement of my Select Committee on Standards and Privileges before he proceeds with an investigation into a matter that has been self-referred. In my view, it would be appropriate for the procedures that will be drawn up under this clause to prescribe a similar process whereby a self-referral leads to an investigation only if IPSA gives its assent. For example, there may be allegations made about a Member which receive widespread publicity but nobody actually makes a complaint. The only way in which that Member can have his name cleared is to refer himself, currently to the Parliamentary Commissioner for Standards, go round the course and then, hopefully, be cleared. Amendment 9 would replicate that facility in the proposed new regime.
Amendment 10 deals with a different point, but it is similar in that the purpose is again to restore a feature of the current system that will otherwise be lost, and which in the opinion of my Committee has worked well. I am referring to the rectification procedure. The amendment allows the new commissioner to rectify certain cases without making a formal report to IPSA. It closely replicates the language of Standing Order No. 150. Typically, cases suited to rectification involve the misuse of a few prepaid envelopes, or an inadvertent and relatively minor error in the content of a letter sent out using the communications allowance. Where the Member accepts that such a relatively minor error has been made and makes the appropriate restitution, the matter can be regarded as dealt with. I fear that if no provision of this kind is made, IPSA will find that it is kept very busy considering reports on relatively minor and inconsequential breaches of the rules.
Subsection (4) states:
“After conducting an investigation, the Commissioner must make a report to the IPSA on the Commissioner’s findings.”
If the reports are to be substantive they will, again, involve a lot of work about very little. It would be helpful if the Secretary of State could say something about how that unqualified requirement to report might work in practice.
Finally in this group, amendment 11 would require IPSA to consult before it determined a set of procedures applying to the treatment of complaints, the conduct of investigations by the new commissioner and the publication of the commissioner’s reports. The procedures will be of considerable importance to the House, and I am surprised that no provision for consultation was included in the Bill, especially as it very commendably includes consultation provisions in clauses 3, 5 and 11—a fact that should make it easy for the Government to accept this amendment.
I would have preferred the new commissioner rather than IPSA to be in the driving seat when it comes to drawing up the investigation procedures, and my failure to table an amendment to that effect is but one more symptom of the haste with which this Bill is being put through. I have, however, tabled such an amendment for Report, and it would be helpful if the Secretary of State could comment now on whether he will accept it.
A further question arises on this clause: its relationship with clause 9. Given that all the alleged breaches of the rules that the commissioner may investigate under clause 7 will also be offences under subsections (1) or (2) of clause 9, do the Government expect the commissioner to be at all busy, because these will now be criminal offences—and is it not the case that all serious breaches will be handled by the police, leaving only relatively minor cases such as the misuse of prepaid envelopes and the inadvertent inclusion of a party logo in a letter funded by the communications allowance to be investigated by the commissioner? Therefore, what exactly will the work load be?
Amendments 48 and 45 stand in the name of the hon. Member for Hendon (Mr. Dismore) and my hon. Friend the Member for North Essex (Mr. Jenkin) respectively, so I shall not comment on them. However, having successfully had a number of amendments adopted by the Government yesterday, I regard myself as being on something of a roll, and I hope that my good fortune may carry on to today.
I will not detain the House for long, and I apologise for not having been present at the beginning of our proceedings—although not so that I could have moved the amendment in my name in the previous group; I had no intention of wasting the House’s time on that, given the Secretary of State’s statement that he was withdrawing the clause concerned.
My amendment in this group echoes the concern of my right hon. Friend the Member for North-West Hampshire (Sir George Young) that Members subject to the procedures of IPSA and the commissioner should be properly informed of what is going on and have proper advice.
My particular concern relates to a personal experience, which I discussed in abstract terms with the Parliamentary Commissioner for Standards, so as to avoid lobbying him about a complaint that might arrive in his in-tray. I had found that I had inadvertently breached the rules, so I went to him to present him with a letter, which was, in effect, a self-referral. He said that he was minded not to accept it, but when I asked him what action he would take, he said that he would wait for a complaint. I then asked him what he would advise me to do, to which he said that he could not advise me, because he might receive a complaint and have to adjudicate on the case. I asked him which servant of the House of Commons could advise me on the matter, but he told me that nobody could. I then asked whether I should seek legal advice—that seems to relate to the import of my right hon. Friend’s amendment—but he said that his body discourages from people taking legal advice because it makes its proceedings so much more protracted.
I have great sympathy with that view, and now that, between IPSA and the commissioner, we are having a separation between the management of rules, and the investigation of and adjudication on breaches, it should be simple for IPSA and/or the commissioner—here I link my amendment 45 with my amendment 46, which seeks to amend clause 8—to ensure that a servant of IPSA or a Clerk in the service of the House, which means someone who does not cost the Member money and does not cost the House of Commons additional money, is made available to the Member who is subject to an investigation or to a direction by the commissioner under clause 8. There should be an informal way of ensuring that right hon. and hon. Members have access to independent advice without having to resort to expensive lawyers.
That would be simple to arrange, and my two amendments seek to put those obligations on IPSA and the commissioner to ensure that that advice is afforded to Members without additional and unnecessary expense. That would avoid the situation wherein hon. Members are left completely isolated in a system that they are fighting. The accusations may be unjust or arise out of a misunderstanding, but we still ought to have a means of providing, in a fairly relaxed way, relatively informal advice. Obviously it remains open to a Member of Parliament to obtain formal legal advice if he or she so chooses, but I hope that my proposal would save right hon. and hon. Members a great deal of anxiety, while also giving comfort to IPSA and the commissioner that the Member was capable of dealing with the matter in an informed and practical way, and was not being left on his own or facing huge legal expenses.
I shall speak to amendment 48 and new clauses 5 and 11, which I have tabled to give effect to recommendations made in the report of the Joint Committee on Human Rights. The Committee’s concern was about the need to ensure that Members receive a fair hearing throughout this process. It is often said that human rights are all about unpopular causes and, as I said on Second Reading, there cannot be many more unpopular causes around at the moment than us. However, our unpopularity does not detract from the fact that even MPs are entitled to due process.
The significant human rights issue raised by the Bill is whether it provides sufficient safeguards—I do not think that it does—to be compatible with Members’ right to due process under both common law and article 6 of the European convention on human rights. The Government accept, in their explanatory notes, that the provisions in the Bill relating to the functions of IPSA “may engage” the right to a fair hearing under article 6, but they say that no incompatibility is involved. Their notes say that the reason for that is, first, that
“the direction or recommendation functions of the IPSA do not involve the determination of civil rights or obligations.”
They say that in this context we are talking about
“a matter of ‘public law’ rather than private law rights.”
The notes say that the second reason is because even if IPSA’s functions do determine a Member’s civil right, there is no incompatibility because
“there are a range of safeguards in place to ensure the fairness of the procedures of the IPSA.”
In addition, they say that
“an MP will have the opportunity to make representations”.
However, if we examine the Bill we see that such safeguards are almost non-existent. The only safeguards are those in clause 7(6), which are that a Member has a right
“to make representations to the Commissioner about the investigation”
“to make representations to the IPSA in light of the Commissioner’s report.”
That is nowhere near enough.
The right hon. Member for North-West Hampshire (Sir George Young), the Chair of the Standards and Privileges Committee, has admitted in evidence that he gave some time ago to the Committee on Standards in Public Life that even our existing procedures are not fully compliant with article 6. Yet the new procedures represent far less than we have at the moment before the Standards and Privileges Committee, and they are inadequate.
My amendment 48 would delete clause 7(6) with a view to replacing it with something a little more fitting, because I believe, as my Committee states, that the
“Government’s view that Article 6…does not apply to the disciplining of members is…not tenable in view of the very serious consequences that might result”.
We are talking about not only financial penalties, but expulsion or suspension from the House and, inevitably, the destruction of the Member’s political career. We have seen what can happen to Members as a consequence of the revelations in The Daily Telegraph and of previous recommendations of the Standards and Privileges Committee accepted by the House that have, in effect, meant that Members have had to decide to give up their seats at the next election as a result of what we have found out.
There is little doubt that the proposed procedure relates to the determination of Members’ rights. Sometimes the nature of the allegation will be such that the determination will be of a criminal charge—we have already seen some such cases before the Standards and Privileges Committee in which there has been a suggestion that a Member has acted fraudulently. Otherwise, the allegations will relate to the determination of a Member’s civil rights, given the seriousness of the consequences for the Member concerned. These cases will always have serious consequences for Members’ reputations, and may well affect their ability to pursue their livelihood. That view is reflected not only in my Committee’s report, but in the previous report undertaken by the Joint Committee on Parliamentary Privilege and in the recommendations made by the Committee on Standards in Public Life.
We are recommending a series of relatively straightforward matters that reflect contemporary standards of fairness. We propose the following, which are minimum requirements of fairness:
“(a) a prompt and clear statement of the…allegations against the Member;
(b) adequate opportunity to take legal advice and have legal assistance throughout;
(c) the opportunity to be heard in person;
(d) the opportunity to call relevant witnesses…
(e) the opportunity to examine other witnesses”—
the Standards and Privileges Committee does not allow that last one at the moment—and
(f) the opportunity to attend meetings at which evidence is given”.
We also seek to ensure that the standard of proof to be applied reflects the nature of the charge. Thus, if the charge is so serious as to amount, in effect, to the determination of a criminal charge, it should be proved beyond all reasonable doubt, but for less serious charges the standard of proof should be the “balance of probabilities”. That is the basis on which the commissioner investigates a complaint and the Standards and Privileges Committee judges it now. The more serious the charge, the higher the standard that we will apply, as is only appropriate. I hope that the House will accept what I am saying about this issue.
Is there not also merit in thinking about whether we should have some procedure for appeal, so that the finding could at least be reviewed as to its merits by some appellate authority?
The right hon. and learned Gentleman anticipates my new clause 6, which will be discussed when we reach clause 10, and I entirely agree with what he says. New clause 11 is slightly fuller than new clause 5 because it also deals with the burden of proof. I understand that my right hon. Friend the Secretary of State is minded to accept, in principle, that I am on the right lines here, but I hope that when he replies he will make clear which of this shopping list of very basic procedural minimum requirements he does not agree with. He should do so if he wishes me not to pursue this matter, but to allow it to be dealt with in the other place. I cannot see which of my proposals anyone who is expecting a fair hearing could object to. If we are to consider turning our procedures to the outside world and having independent investigation, we should apply to ourselves the same standards as we would expect any other professional disciplinary body to apply in the outside world, be it one relating to doctors, lawyers or anybody else. We should not be treated any differently, fair standards of hearing are essential, and my proposals set out what those require.
My name is attached to new clause 11 and I support it strongly for the reasons cogently adduced by the Chairman of the Joint Committee on Human Rights, the hon. Member for Hendon (Mr. Dismore). I rise at this point to refer to a more detailed aspect of clause 7, and in doing so I draw the attention of the Committee to the report on the Bill that the Justice Committee produced overnight, which deals with many of the clauses and includes the Clerk’s memorandum, the Government’s response to it and several academic notes on some of the issues.
The issue that arises in clause 7(3) is who would decide on the reasonableness of the commissioner’s requests, and whether a Member could seek judicial review of the commissioner’s actions. If in the meantime the House had used its disciplinary powers to punish a Member for failing to provide information that subsequent judicial review demonstrated that the commissioner was acting unreasonably in seeking, we would be in difficulties, because that would open the door to judicial review of the decision by the House or the Standards and Privileges Committee on the matter. That may sound like a technical point, but it is potentially important, and the Clerk has drawn attention to it.
The issues to which the Justice Committee wants to draw special attention arise mainly in clause 10, for which we recommend a route to achieve at least more measured reflection on all these aspects of privilege by setting them aside for the time being and concentrating on the parts of the Bill that set up the independent body so that it can carry out its central and essential function. In case the Government do not accept that wise advice, we will have to ensure as we go along that we do not build in the potential danger of undesirable judicial review of the proceedings of the House.
I can well understand that it may be necessary to require discovery of documents, but as clause 7(3) is drafted, it would enable a Member to be required to produce “any information”, and that raises issues of self-incrimination. Perhaps we should look carefully at the clause to see whether it can be tightened to apply only to the disclosure of appropriate documents, and does not require Members to incriminate themselves.
That is a sensible point and further illustrates the need for much more measured and careful consideration of some of these clauses than the procedures that we are now following allow. If we cannot reach sensible conclusions about them under this process, we should set them aside and consider them later, while concentrating on matters that can be dealt with immediately.
I support these amendments, especially those tabled by my right hon. Friend the Member for North-West Hampshire (Sir George Young). I hope that he will continue his remarkable run of getting his amendments accepted. In particular, I support what he said about the lack of proportion in the gravity of the offences to be investigated. We are all aware that there is no de minimis rule in the Bill, although inadvertent and trivial breaches may occur, through genuine mistakes, that could easily be put right.
My hon. Friend is right, and it is a scandal that we did not even discuss such a vital protection yesterday. The theme running through the whole of these proceedings is that there is no case for treating this Bill as an emergency. It is a complete abuse of how we conduct proceedings that we have been asked to sign up to matters affecting the rights, immunities and privileges of this House—and, more widely, of the people whom we represent—without discussing important clauses at all.
I am especially concerned by the lack of proportionality in these clauses. As I understand it—if I am wrong, I trust that the Justice Secretary will correct me—the same rules will apply to trivial or inadvertent offences. Many such offences will be referred to the commissioner as part of the party political contests in each constituency. Many people are itching to refer to the new commissioner matters that may be important locally but which, in the great scheme of things, are oversights that could be easily corrected. The commissioner will have to investigate all such matters, in order to decide whether they are unimportant or trivial, and will then have no option but to make a report to IPSA on his findings, under clause 7(4). The very fact of making any inquiry—even if the conclusion is that no action need be taken—must lead to a report. That will be immensely bureaucratic, and it is likely that in the intervening weeks the Member’s local paper will highlight the fact that he or she is under investigation by the commissioner. It is very important that we now try to assess what the commissioner will have to do, and to relieve him of the burden of having to make an investigation and report on unimportant matters.
My second point confirms that made by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) about the possible role of the courts in this matter. Serious offences will of course be subject to the criminal law on fraud, theft and false accounting. In addition, and unnecessarily, we will also import some more criminal offences into the Bill. I am especially concerned by the word “reasonably” in clause 7(3). It could be judiciable—it will, after all, appear in statute law. I can imagine a case in which the commissioner gets into a dispute with a Member under investigation—for what may well be a serious matter—who resists having to disclose personal tax records. The commissioner may demand those records, on the grounds that that is the only way in which the evidence can be found for income received that should have been disclosed. Or the financial disclosure requirements could require the production of names and addresses of professional clients or customers, in the case of a business. The Member concerned may consider, reasonably, that that would be improper and that he owes a duty of confidentiality to his customers or clients. So there may be a genuine dispute between a Member and the commissioner—an external person, appointed by the Crown and therefore with no particular duty to or affection for the House, and driven by public opinion. The Member concerned may feel that he is on the receiving end of unfair inquiries.
As I understand it, such a dispute would be judiciable, and therefore the court would have to decide what was reasonable. In that case, the court would be interfering in matters that should remain within the purview of the House.
I am grateful to my right hon. and learned Friend for pointing that out. I think that that gives it additional weight and authority, and we should all be concerned when a servant of this House raises such points. The Clerk cannot make a speech; he relies on us to reflect his concerns, which is what we are doing.
It is a regrettable fact that the courts might be required to make a judgment on what is essentially a dispute between the House and the commissioner, with unpredictable consequences. If I understood the right hon. Member for Berwick-upon-Tweed correctly, if the House decided to discipline the Member concerned and it was subsequently found that the information was demanded unreasonably, the court would be interfering directly in the disciplinary matters of this House. If there is something on which we all agree, it is the fact that the House must retain the ultimate sanction to discipline its own Members. If I am wrong about that—[Interruption.] No, I think that the Justice Secretary is agreeing with me. Will he explain, then, how that sanction is not put at risk if a court can declare that disciplinary action by the House is unreasonable because the commissioner had been unreasonable in the requiring certain information from a Member under investigation?
I, too, shall endeavour not to detain the Committee overlong. We have before us a range of amendments. The amendments tabled by the right hon. Member for North-West Hampshire (Sir George Young) seem, as others have said, sensible and workable. They represent an improvement to the mechanism of the Bill and I hope that the roll that the right hon. Gentleman is on will continue.
I was impressed by some of what the hon. Member for North Essex (Mr. Jenkin) said about the availability of informal legal advice—I think that that was the way that he put it. Experience teaches me, however, that legal advice is never informal. One either gets legal advice or one does not. It seems to me that his suggestion, superficially attractive though it is, is a parliamentary equivalent of the legal aid duty solicitor scheme. For many years, I trawled around the police cells of the north and north-east of Scotland as part of that admirable scheme, and although I find the proposal not unattractive, even a legal aid duty solicitor has a direct lawyer-client relationship from which there can be no departure. The standard of service and care, as well as the duty of care, that is owed by the legal aid duty solicitor to the client in the cells is exactly the same as that which would be owed by any City solicitor to a blue-chip client.
I did not say “informal legal advice”, but “advice”. In fact, my amendment referred to “advice and counsel”. Let us suppose a Clerk of the House was allocated the duty of advising Members who were the subject of complaints, or of advising Members on how to conduct themselves if they believe that they have broken the rules. It seems quite reasonable that an hon. Member should have someone in the House to turn to. They might well say, “Well, in your circumstances you should go and get legal advice,” but we should avoid somebody’s having to take that step initially as it might be quite a low-level complaint. There should be some way of dealing with low-level complaints without resorting to lawyers.
I take the hon. Gentleman’s point and I do not want to labour it because I do not know whether he will seek to press his amendment to a Division. There is certainly merit in the notion, but my concern is that once we come to the practicalities of how to make this work, the advice provided will effectively be legal advice. It would be a brave Clerk who would advise a Member not to take legal advice in those circumstances.
Although one might argue about the legalities, surely the proper position is to say that the hon. Member should have an opportunity to take legal advice. It would be for the hon. Member to determine where he got that advice from and how he paid for it, but he should have an opportunity to take legal advice and to be represented by that adviser if he so chooses. Surely that is a requirement of natural justice.
That is one of the most basic norms of natural justice, and once we go down the route that the Government are taking us down with this clause, that is the inevitable consequence.
That point brings me to new clause 11, tabled by the hon. Member for Hendon (Mr. Dismore). I thought that my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) succinctly and cogently showed why I would also support the new clause. It is a basic statement of best practice and I do not see what part of it could be objected to. I, too, will listen to the Secretary of State when he responds on that point.
Let me return to the practicalities of all this. The hon. Member for Hendon has tabled a new clause that will rebalance the rights and obligations under the Bill in a way that is very necessary. However, if we go down that track, what is there by way of effective investigation? It is in the nature of investigation that we do not always know what we are looking for when we start. Although much of what we have here provides necessary protection for the rights of the person being investigated, as consequences could subsequently flow to him, will we have an inquisitorial process that achieves the objective that we aim it to have at this stage?
Under the existing arrangements between the commissioner and the Standards and Privileges Committee, there is an obligation on a Member to co-operate with the inquiry. Co-operating with the inquiry does not preclude a Member’s having the benefits of due process.
It is a question of checks and balances. The system at the moment is reasonably well balanced because the consequences that can flow from an investigation are that much more restrictive. It is clear from the Bill, and from clause 9 in particular, that a lot more could follow by way of consequences in the future. That is where the inquisitorial element, I fear, could become deficient at the end of the day. The hon. Gentleman’s amendments are good, well founded and necessary. However, I fear that as a consequence of the effectiveness of the Bill as a whole, we will be left with a system that will not work as well as it ought to. That is the consequence of the Government’s having proceeded in the way in which they have. They persist in that, notwithstanding the evidence that has come from the Joint Committee on Human Rights, chaired by the hon. Member for Hendon, and the Justice Committee, chaired by my right hon. Friend the Member for Berwick-upon-Tweed.
The right hon. Member for North-West Hampshire (Sir George Young) expressed the wish that his roll would continue. I want to back that wish in respect of amendments 9, 10 and 11.
I am of an age where in my Church we still said the old-fashioned confiteor, with “Mea culpa, mea culpa, mea maxima culpa”—“Through my fault, through my own fault, through my own most grievous fault.” Clearly, we have to ensure that the system can allow for occasions where Members spot some discrepancy or indiscretion in relation to returns, claims, mistakes that were made by their office or the inadvertent misplacement of claims. When they identify them, they need to be able to have them corrected properly without being told, as the hon. Member for North Essex (Mr. Jenkin) said, that although they have corrected the error themselves, they still have to await the peril or jeopardy of a complaint or to be subject to some wider observation. Self-correction must be able to be taken and we need to ensure that the system recognises the difference between venial sins and sins of omission and the mortal sins and more serious sins of commission. I believe that the amendments go some way towards doing that.
Many of us have been looking at various claims and other things, and I found myself listed among those who had made repayments in the recent context. I refused an offer of a new mobile phone from O2, and was then told that I would get £200. I thought that that would be credit on my mobile phone bill, but instead I got a cheque for that amount as cashback. Normally, I claim most bills for the phone on expenses, so I said that the cashback should go back to that source of payment, which is the House of Commons. The £200 payment was not in respect of any specific claim, or any claim that was wrong or undue, but it constituted a repayment in the context of everything else that was happening.
Clearly, hon. Members must be allowed to make sensible and proper judgments without finding themselves with some sort of criminal record. We are doing something that is on a par with tidying up The Highway Code, and it should not end up with people being investigated as though they were involved in some sort of federal case.
I have some sympathy with the situation that the hon. Member for North Essex (Mr. Jenkin) found himself in. He was caught in a conundrum but, for the reasons put forward by the hon. Member for Orkney and Shetland (Mr. Carmichael), I am wary of creating a system that means that everything could automatically be the subject of legal advice. People may feel compelled to seek that advice, but the fact that such advice was being sought could also became a matter of record and freedom of information.
The way that the hon. Member for Hendon (Mr. Dismore) presented new clauses 5 and 11 made them sound reasonable and compelling, but again I have some concern that investigations could turn into hearings. We must not let the process grow beyond its limits, and I believe that the test will be how we strike that balance.
Mr. Dominic Grieve.
Order. Let me make it clear that there is no reason why hon. Members may not take part. Those hon. Members who stand are called to speak in the way that the Chair thinks appropriate. Mr. Dominic Grieve.
Thank you, Sir Michael. I hope that the Secretary of State will be able to respond positively. It is clear that clause 7 moves us towards a much more structured system of investigation than we have at present. Whether or not the current investigation regime falls within what we like to call parliamentary privilege, it certainly happens in-House. I am the first to accept that much of what will be investigated probably will not concern parliamentary privilege in any way at all, and that is why investigating whether an MP has misclaimed or overclaimed is of very little consequence to the wider constitutional framework of this country.
However, if we move down this road, it is important that we acknowledge that we will have to look very carefully at the fairness of the system that we introduce. It will come in for more scrutiny, and my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) was right to say that it will be justiciable—that is, anyone unhappy with any aspect of the proceedings will be able to seek judicial review.
In that context, the amendments put forward by my right hon. Friend the Member for North-West Hampshire (Sir George Young) are extremely sensible. They would allow people to self-refer, but the most telling proposal is for a system that would allow very minor matters to be handled without a report having to be made.
One problem that we will face was touched on by the hon. Member for Foyle (Mark Durkan). In a sense, Members of Parliament are sole practitioners, and we handle offices and budgets that are quite substantial. Also, I suspect that most Members of Parliament work rather longer hours than the average, and that the administration of our offices is not the thing that we do best. Our capacity for making mistakes is very great.
When our documents going back to 2004 were published, I looked through them and found that it was not difficult to pick out examples of things that might have been done differently. Perfectly reasonably, most of us tend to sign off on things presented to us by members of staff. Keeping our office expenses under proper scrutiny is not what we are likely to do best.
We need a system that recognises the importance of self-regulation. People must be able to own up quickly to making mistakes without the fear that they will be dumped on and dragged through the mud. Also, we need a system that can reflect the de minimis rule: that is, we must ensure that people do not have to go through convoluted procedures for absolutely minimal mistakes. Those points are dealt with by amendment 10, which I consider to be extremely sensible.
The hon. Member for Hendon (Mr. Dismore) introduced new clause 11, which is a substantial improvement on what we have at present. I do not know whether he is minded to press it to the vote, and I appreciate that it may be possible to do something about the proceedings when the Bill comes up for further consideration elsewhere. My judgment, however, is that new clause 11 is a substantial improvement, and my concern is that not putting a similar provision in the Bill will lead, because of justiciability, to a decision by the commissioner being overruled or overturned.
I also have great concerns about the potential impact of the procedures on disciplinary decisions. Such decisions may be found to be in conflict with decisions taken by the commissioner that are subsequently reviewed and found to be wanting. I shall say more about this in connection with clause 8, but I do not think that the House can lightly ignore the problem.
Yesterday, we discussed at considerable length questions of where Parliament’s rights will be intruded on. The problem is not so great with clause 7, but the fact is that the clauses cannot be looked at in isolation. I make this point because the Secretary of State may wish to respond now as well as later, but the linkage between investigations, enforcement and offences must be looked at as a whole.
I have the most serious concerns about what we are doing. If we confine the commissioner’s activities to looking at our expenses and salaries, there will be no great difficulty, and that was exemplified in the evidence given yesterday by the Clerk of the House to the Justice Committee. However, conflicts will start to arise once we stray outside of that, and the potential will grow for the courts to intrude into the House’s affairs in ways that touch on our constitutional responsibilities. I hope that the Secretary of State will be open-minded now—I suspect that he will be, as it has been hinted that he may accept some of the amendments—and that he will also bear what I have said in mind when we consider later amendments.
Finally, my hon. Friend the Member for North Essex (Mr. Jenkin) has also tabled some amendments that highlight areas of anxiety in exactly the same way. I hope that the Secretary of State will be able to provide some reassurance that those problems will be addressed. It may be that they can be addressed now, but they could also be dealt with by looking at the matter in its totality. We need a proper set of rules to govern investigation and inquiry, and those rules should also cover hon. Members’ ability to get proper advice as an investigation proceeds.
I shall be brief, but there are two points that I would like to put to the House. Parliaments tend to get known by particular names. The other week in the Chamber, the hon. Member for Cannock Chase (Dr. Wright) talked about how this Parliament would come to be known in the future. I fear that it may go down as the tarnished or tainted Parliament. Among those of us who have sat in this Chamber in the past few weeks, it will certainly go down as the depressed Parliament. I look forward to the next Parliament and hope that its Members can perform their duties untrammelled, both here and in their constituencies.
However, we must have regard to one overriding fact in that context. The new Parliament, no matter who decides to go or stay, will contain many new Members. Some papers calculate that half the new Parliament could be composed of Members who have never sat here before. However many new Members there are, it will be a lot. Those new Members will come here, as we all did at one stage, somewhat overwhelmed by the honour of being here, I trust, and somewhat perplexed by the rules of our procedures, which we all have to try to learn. There will be a new dimension, too, provided by the Bill, which the House is rushing through this week. It worries me very much that that new Parliament could come to be known as the frightened Parliament, or the blighted Parliament.
Just think of the enormous scope that there will be for vexatious and frivolous complaints, yet according to the Bill, every one of those complaints will have to be investigated. My right hon. Friend the Member for North-West Hampshire (Sir George Young) made an excellent speech when he moved amendment 9. He referred to the fact that when a Member is under investigation, he or she is under a cloud until it is completed. We all know from our constituencies that if we read that somebody has been arrested on a particular charge, a question mark automatically flashes up in our minds about the integrity of that person, even though we all subscribe to “innocent until proven guilty”. How dreadful it would be if 50 or 60—the number could even run to three figures—new colleagues in a new Parliament were subject to some form of orchestrated complaint, or to a series of complaints. That is quite possible.
I was very impressed by the speech of my friend, the hon. Member for Foyle (Mark Durkan), who talked about his payback. Just think of the deterrent to saying “Mea culpa.” A Member may say, “Oh, good gracious me. I didn’t look sufficiently carefully at that, and now I have signed it off and all those letters have gone out. Let’s be quiet about it.” Members could be frightened, their careers could be blighted, and they could feel deeply self-conscious. All those factors will make it less easy for them to be effective Members of Parliament.
When we finish considering the Bill today—I deplore the fact that we are dealing with it in such haste—we must bear in mind that we are agreeing a piece of legislation that will not particularly impinge on many Members in the House at the moment. By the time that it is fully in force, it will probably be the turn of the year; the Justice Secretary made that point. However, by May or June next year, there will be a new Parliament. If the Act, as it will then be, hangs above that Parliament like the sword of Damocles, just think of the effect that that could have. I therefore beg the Secretary of State to accept the amendments—or, at the very least, their spirit—and to try to inject into the Bill a note of discernment and discrimination between the trivial and the serious. If he does not, we will pass an Act that will have a very bad effect on the next Parliament.
I just want to say a brief word about amendment 10 and new clause 11. I am a strong supporter of amendment 10, which was moved by my right hon. Friend the Member for North-West Hampshire (Sir George Young), for the reasons that were advanced by my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack). It is entirely right to say that individual Members could face vexatious complaints, and that would be very bad because it would put the hon. Member in question under a serious cloud and inhibit him or her in the performance of his or her duties.
One cannot exclude the possibility of co-ordinated and coherent campaigns against individual Members, in which vexatious complaints are made. The amendment put forward by my right hon. Friend addresses that, in part, by providing for the hon. Member in question to make a repayment, if the sum involved is modest and if there has been an oversight. The amendment would guard against errors of a de minimis kind. I think that the Justice Secretary is saying that he is minded to accept the amendment. If he does not, let us hope that he will accept the spirit of what my right hon. Friend is doing.
I note that new clause 11, which was tabled by the hon. Member for Hendon (Mr. Dismore), has the support of the Joint Committee on Human Rights, because the amendment is drawn from the text of the Committee’s report. It also has the support of the Committee on Standards in Public Life. Those are two all-party committees of considerable authority, and the fact that they are both signed up to the new clause seems to be of considerable importance. As the hon. Gentleman said, the commissioner’s report could have dire consequences for the future of any right hon. or hon. Member affected by that report. That is even more true of the IPSA report. It is therefore important that the House should try to ensure that the process is conducted in accordance with the rules of natural justice. The hon. Gentleman’s new clause ensures that that happens.
I have only one proviso to make. The process has two stages—at least, it does at the moment, but there may be more later. The first stage is the investigation by the commissioner, leading to a report to IPSA. IPSA is then obliged to enable the right hon. or hon. Member to make representations, so there is a second stage. I am not entirely clear—this is a matter for further consideration—about whether all the protection afforded by new clause 11 should apply to both stages or one stage. That is a matter on which there needs to be some reflection. My feeling, at this stage, is that the full panoply of the protections should apply to the hearing of the representations by IPSA, and that there should be a lesser stage of protection relating to the inquiry undertaken by the commissioner. The commissioner should be obliged to accord quite a lot of protection to the hon. Member concerned, but not the full panoply that is contemplated in new clause 11. That full panoply should be confined to the IPSA hearing.
Like many of these debates, this has been an interesting one. I shall deal with the amendments by grouping them together.
First, I accept amendment 9, which was tabled by the right hon. Member for North-West Hampshire (Sir George Young) and my hon. Friend the Member for Middlesbrough (Sir Stuart Bell), as it is entirely right to add it to the Bill. I accept amendment 11, too, and there should be no argument about that. I shall also accept amendment 10, but I want to add a gloss. Sometimes one has reservations about amendments, although one accepts their overall principle. If there are questions about their drafting or their full impact, one might ask the Member who tabled them to withdraw them and wait for the matter to return at a later stage.
On amendment 10, I accept entirely the argument made by the right hon. Member for North-West Hampshire that the cases captured by proposed paragraphs (a) and (b) will be relatively trivial and so on, so it would be ridiculous to have the full panoply of a report to the authority without any discretion in the hands of the commissioner. I am therefore going to accept the amendment, but I reserve the right—of course, it will be a matter for the House and the other place—to submit a revised drafting. I will consult the right hon. Gentleman about this, but if a member of the public—and we are not talking about vexatious complaints; if they are vexatious, hopefully they can be dismissed at an early stage—makes a genuine complaint it is important that even if there is no formal report by the commissioner, they are told what has happened. We must check that that is the case.
I am thinking of myself, too, because I was the subject of a complaint to the commissioner, which would receive consideration by IPSA, and a complaint was made in respect of a separate matter to the Electoral Commission. It made a difference to me to be able to spell out the conclusion, which was that I could continue to be a Member of Parliament. The most recent complaint was about my repetition of an entirely inadvertent error by my constituency party treasurer, who received a donation that he misrecorded, without misleading anybody—it was from one of two companies owned by the same person—and I repeated the error, because I obtained the information from him. How else could I have obtained it? The newspapers made quite a lot of the fact that I had been referred to the Electoral Commission by a Member of the House, and it took a bit of work to get them to accept that there was a further story, and that I had been cleared by the Electoral Commission. We must bear that in mind.
I hope that that deals with those amendments satisfactorily. The right hon. Member for North-West Hampshire and my hon. Friend the Member for Middlesbrough have continued their clean sweep—every one a winner—so I shall now turn to the other amendments. The hon. Member for North Essex (Mr. Jenkin) tabled amendment 45, which states:
“The IPSA must ensure that any member who is subject of an investigation is provided with independent advice and counsel on all matters relevant to that investigation.”
It is important that we do not over-egg the pudding and seek to provide ourselves—and the implication is that this would be provided free—with something that is not available to others in similar circumstances. The availability of civil legal aid has been restricted for a long time. Although the costs of such aid continue to rise, eligibility, particularly outside the area of family law, is restricted. [Interruption.] The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) is confirming that that is the case. Civil legal aid is also subject to means-testing, and it would be improper of the House to establish by means of a single amendment—I know that the hon. Member for North Essex does not intend this—a Rolls-Royce of a legal aid scheme for ourselves that is not available to others.
We all have constituents in that situation—I have one at the moment—who are subject to a process by their employer that could lead to dismissal and be reputationally terminal. They do not receive legal aid, although they may receive legal assistance from their trade union, so we must bear that in mind in relation to the question of fairness.
As the right hon. Gentleman rightly said, I do not intend that the Exchequer should end up providing legal aid to Members of Parliament. I am talking about practical, reasonably expert advice that might result in a Clerk of the House saying, “Go and get a lawyer. You’re in trouble.” Before reaching that stage, there should be provision for some advice. If I may say so, the exception for Members of Parliament is justified in this case, given that we are creating offences that apply only to Members of Parliament, who are particularly vulnerable to attack from members of the public who may have grudges against us for some peculiar reason.
We will come on to the offences later, but it is fair to point out that the House has been ready to impose similar offences on other bodies. [Interruption.] The hon. and learned Member for Beaconsfield (Mr. Grieve) is mouthing derogatory comments about the provision of those offences, but when the Scotland Act 1998 was before Parliament I do not recall any adverse comments from the Conservatives.
I remember the generality of discussions on the Scotland Act, but I certainly would not be able to recall exactly what I said in the course of that debate. The Secretary of State must accept that since I have been in the House I have said pretty consistently that the tendency of the House, and particularly the Government, to impose new criminal sanctions—I think that more than 3,000 have been created since 1997, mostly of a regulatory nature—appears to have done nothing to benefit our country whatsoever, and is a habit that we would do well to cease.
We try not to have criminal offences unless they are necessary. The hon. and learned Gentleman makes a nice rhetorical point, but when one goes into the detail of those offences, one discovers far less enthusiasm for removing them from the statute book. I have had a lot of correspondence from the leader of the Liberal Democrats, who has waxed eloquent on those 3,000 offences. I have asked him to name which of them he would repeal, were he ever in a position to do so. We have got it down to two out of 3,000. I also set that homework to the hon. and learned Gentleman. I accept that Members will need advice, but provision does not necessarily need to be made in the Bill. They ought to receive advice—indeed, advice is available—here, but I will certainly take the proposal away and think about it. I promise the hon. Member for North Essex that I will do so.
I come now to amendment 48 and new clauses 5 and 11. It is probably sensible to look at the more comprehensive new clause 11 first. No one can argue with the fact that the methods adopted by the commissioner and the authority’s proceedings have to be fair. Clause 7(6) seeks to capture that injunction, and I am grateful to my hon. Friend the Member for Hendon (Mr. Dismore) and his Committee for their further, rapid consideration of the matter. However, there are some issues that we need to think about. I invite my hon. Friend to accept that we do not have a vote on the matter, and I in turn will accept that what is in subsection (6) will need to be added to, though perhaps not in the detail he proposes. There is one point that I need to raise in respect of subsection (g), which is the standard of proof, but I accept that there should be greater clarity about the rights of those who are subject to a report by the commissioner.
Let me pick up the points made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the name of whose constituency has changed with extraordinary rapidity, although I dare say the boundaries have almost always stayed more or less the same. He argued—I paraphrase—that the commissioner carries out a preliminary investigation, which must of course be fair. Now that we have accepted amendment 10, the commissioner, if he so judges, makes a report to the authority. Plainly, less elaborate processes can apply in respect of that initial consideration by the commissioner.
I emphasise the point that, paradoxically, the overall process that we are providing under the Bill is more substantial and provides more inbuilt protections for Members—[Interruption.] Yes, it does, I say to my hon. Friend the Member for Hendon—than the existing process. Why? Because there will be a complaint, whether it is a self-referral or an external complaint, to the commissioner and an investigation by the commissioner. The commissioner then produces a report, which goes to the authority. We are making extensive provision for an arm’s length relationship between the authority and the commissioner.
The authority considers the matter and can make a finding. The finding is either, under clause 8(1), which we shall come on to deal with in more detail, to require the Member to make a payment or to correct an omission or an inaccuracy in the register, and/or to recommend to the House of Commons Standards and Privileges Committee the exercise of its disciplinary powers. When the matter goes to the Committee, the normal rights of Members before the Standards and Privileges Committee, and from there to the Floor of the House, apply. Although under our current proposals the authority may recommend that a Member be suspended or expelled, the decision on that or a further recommendation is for the Standards and Privileges Committee and then for the Floor of the House.
My right hon. Friend is outlining a series of steps, of which there is one more than we have now, in practice. At present the commissioner reports to the Standards and Privileges Committee, and we report to the House. Under the Bill, the commissioner reports to IPSA, the Standards and Privileges Committee and the House. An extra stage does not mean extra fairness; it simply means an extra stage in the process. My question to my right hon. Friend is the one that I asked earlier: which of the elements (a) to (g) does he disagree with in principle as part of the IPSA process?
The one that I am particularly concerned about is that related to the standard of proof, (g). We need to think very carefully about that. This is about a recommendation by the authority, not about the determination by the Standards and Privileges Committee. I am not an employment lawyer, as I think my hon. Friend was. I want to think about the matter. I also want the opportunity to go through the drafting of the new clause in more detail. That is not in the least a complaint to my hon. Friend. It is a recognition that we are proceeding with some rapidity. His report came out yesterday and we need to think about the matter.
Two things—first, the Secretary of State says he needs to think about the report. We need to think about it as well, but the trouble is that our consideration of the Bill will all be finished at 7 o’clock this evening. Secondly, I would have more sympathy with his concern about having a criminal standard of proof—the point raised by the hon. Member for Hendon (Mr. Dismore)—if it were not for the fact that the system of investigation, when linked to clauses 8 and 9, is a seamless line potentially moving towards a criminal prosecution.
Because the Government have set up the structure in that way, and—I come back to this point—given powers to the commissioner of a kind that I do not believe he needs to do his job properly and make sure that our allowances are properly given to us, we will be ratcheted into much higher standards of proof. If this is the model that the Government insist on adopting, which I wish they would not, the line taken by the hon. Member for Hendon will have to be followed.
I want to remind the House of this, and it is fundamental: it is astonishing how quickly the focus of a debate and of concern in the House can move, but there is a public outside that remains highly sceptical, as well as cynical, about the way we have operated our affairs up to now. We must bear that in mind all the time. One of the major problems that has been faced in this terrible expenses scandal is that no one outside the House accepted the legitimacy of decisions made by the Fees Office or any other part of the House about whether an expenses claim was or was not acceptable. That is why there must be an external adjudication of such decisions.
The hon. and learned Gentleman seems to want it both ways. Of course we must get it right, but if there is to be an external authority, it must be able to come to some decisions, in a parallel way to decisions that would be made by similar bodies with similar tasks external to a particular profession and so on, not with lesser rights to the individual, nor with more. We need to end up with a situation where, if there were misconduct—not inadvertence, error or light negligence, but misconduct—by a Member, that could lead to a criminal prosecution and/or discipline in the House, and equally, where there is an allegation against a Member, but that allegation falls to be dismissed by the authority—or subsequently by the Standards and Privileges Committee, but let us leave it at the authority—that is accepted as having authority behind it.
I understand the point that my hon. Friend makes, which we will consider. We will respond in the other place. This evening will not be the end of proceedings on the Bill. It will go to the other place and come back here. One of the serious concerns that I have about a raft of amendments that have been tabled—not, I may say, by the right hon. Member for North-West Hampshire (Sir George Young)—is that their overall effect is to emasculate and undermine the basic purpose of the Bill, which was accepted by Members on all sides and all three party leaders.
The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) hit on a very serious point when he asked whether new clause 11 would end up applying both to the investigation stage and then to the adjudication stage by the authority. The hon. Member for Hendon (Mr. Dismore) clarified that it would apply only to the authority stage because it refers specifically to subsection (5). But let us remember that subsection (5) states:
“The IPSA must determine—
(a) procedures in relation to investigations under subsection (1);
(b) procedures in relation to complaints under subsection (2)(c);
(c) procedures in relation to the circumstances in which a report under subsection (4) is to be published.”
So IPSA clearly applies to two stages in relation to the investigation, and proposed new paragraphs (a) to (g) of subsection (5) would apply separately in relation to the procedures, because new clause 11 begins with:
“The procedures referred to in subsection (5)”.
So three sets of procedures are referred to, and they could apply three times, but that still does not deal with what we were assured the provision was meant to deal with: how the authority would approach the matter on receiving the report and the findings. Clearly, something needs to be remedied and clarified if we are to get the measure right.
I accept that new clause 11, in relation to where it fits in the jigsaw of the process, might need tidying up. That is a fair point, but I am more concerned about the principle of the requirement for a fair hearing, and my right hon. Friend still has not said whether he objects in principle to proposed new paragraphs (a) to (f) as far as IPSA is concerned. They are the minimum requirements of natural justice and of article 6.
My right hon. Friend expressed his reservations about proposed new paragraph (g), but it provides for exactly what the Commissioner for Standards and Privileges does now. If my right hon. Friend says that the Bill takes nothing away from the rights of Members, he has nothing to fear from proposed new paragraph (g), because the commissioner applies a much higher standard in the most serious cases than he does in the more trivial ones, and so he should, because that is the requirement of article 6.
I rise to support fully the hon. Member for Hendon (Mr. Dismore). There is currently a difference between the standard of proof in a very serious offence and the other end of the scale, and the new clause’s instruction to IPSA would be a good thing, not a bad thing. It would not emasculate the Bill; it would put more meat on the bone.
In the interests of progress, Sir Michael, I think I have made the points I have made. I commend to the House the amendments that I suggest that we accept, and I hope that, on those amendments that we cannot accept, the invitations that I have made to hon. Members will prove acceptable.
Amendment 9 agreed to.
Amendments made: 10, page 4, line 42, at end insert—
‘(4A) No report shall be made by the Commissioner—
(a) in any case where the member concerned has agreed that he has failed to register or declare an interest, if it is the Commissioner’s opinion that the interest involved is minor, or the failure was inadvertent, and the member concerned has taken such action by way of rectification as the Commissioner may have required within any procedure approved by the IPSA for this purpose; and
(b) in any case involving the MPs’ allowance scheme, or the use of facilities or services, if the Commissioner has with the agreement of the member concerned referred the matter to the IPSA for the purpose of securing appropriate financial reimbursement, and the member has made such reimbursement within such period of time as the Commissioner considers reasonable.’.
Amendment 11, page 5, line 5, at end insert—
‘(5A) In determining the procedures, the IPSA must consult—
(a) the Leader of the House of Commons,
(b) the Committee on Standards and Privileges, and
(c) any other person the IPSA considers appropriate.’.—(Sir George Young.)
Does the hon. Gentleman wish to press his amendment?
It has not actually been moved. Mr. Dismore?
I certainly will not press my new clause to a vote now, Sir Michael. I expect that my Joint Committee on Human Rights colleagues in the Lords may well table a similar amendment to ensure that the matter is not overlooked.
Clause 7, as amended, ordered to stand part of the Bill.
With this it will be convenient to discuss the following:
Amendment 17, page 5, line 25, at end insert—
‘(2A) The Committee on Standards and Privileges may accept, modify or reject as it sees fit a recommendation under subsection (2).’.
Amendment 65, page 5, line 25, at end insert—
‘(2A) Any recommendation under subsection (2) shall be deemed to be proceedings in Parliament as expressed in the Bill of Rights 1689 notwithstanding any other provisions of this Act.’.
Amendment 33, page 5, line 26, leave out ‘or to make a recommendation under subsection (2).’.
Amendment 46, page 5, line 28, at end insert
‘, and must ensure that the member is provided with independent advice and counsel on all matters relevant to the said direction or directions.’.
Amendment 34, page 5, line 29, leave out subsection (4).
Amendment 18, page 5, line 34, leave out subsection (5).
Amendment 19, page 5, line 38, leave out subsection (6).
Amendment 20, page 5, line 38, leave out
‘Speaker’s Committee on the Independent Parliamentary Standards Authority’
‘Committee on Standards and Privileges.’.
Amendment 21, page 5, leave out line 43.
Amendment 66, page 6, line 2, at end insert—
‘(7A) Any statement (“protocol”) prepared in accordance with subsections (6) and (7) shall be deemed to be proceedings in Parliament as expressed in the Bill of Rights 1689 notwithstanding any other provision of this Act.’.
Amendment 64, page 6, line 3, leave out subsection (8).
Amendment 36, page 6, line 4, leave out from ‘powers’ to end of line 5.
Amendment 67, page 6, line 5, at end insert—
‘(8A) Where any criminal investigation or proceedings are concerned with the same or related matters which are the subject of an investigation by the Commissioner or of a recommendation by IPSA, the criminal investigation or proceedings shall take precedence, subject to the agreement of the House of Commons Committee on Standards and Privileges.’.
Amendment 97, page 6, line 6, leave out subsection (9).
Amendment 12, page 6, line 6, leave out ‘is, or’.
Amendment 22, page 6, line 10, leave out subsection (10).
Clause stand part.
We now come to what I think are the core clauses, and in my judgment they start to cause considerable difficulties. I hope that the Government will look constructively at ways of avoiding those difficulties, so that the Bill does what the public want—ensure that we are properly regulated, but not destroy the House’s ability to be independent and to carry out its job properly on behalf of the electorate.
The clause provides a mechanism of enforcement, and subsection (1) is completely uncontroversial. It provides that
“IPSA may direct a member of the House of Commons—
(a) to repay…within a specified time an amount paid…under the…allowances”,
“(b) to take any steps necessary to correct an omission or inaccuracy…in the (register of financial interests).”
I have concerns about subsection (2), however, which states that
“IPSA may recommend to the House of Commons Committee on Standards and Privileges that the House should exercise any of its disciplinary powers in relation to a member of the House.
The IPSA may publish a recommendation that it has given.”
It seems quite clear from the wording that IPSA will be able to make a specific recommendation to the Standards and Privileges Committee about how an hon. Member is dealt with in respect of a transgression. That, I assume, includes everything from an apology in the Chamber, through a suspension from the service of the House, to—the House has exercised this once since the second world war—the expulsion of a Member.
The problem is that the Standards and Privileges Committee will then have to consider whether it agrees with IPSA’s recommendation. If the Committee decides to agree, any public perception that it has been influenced by an outside body in reaching its own decision will be unfortunate. Of course, the Committee might decide for whatever reason that it wants to impose a different penalty, which need not be less severe than that which IPSA recommends. However, as the clause stands, it will embody in statute a specific reference to the Standards and Privileges Committee and to its powers, and they would then be judicially reviewable through the courts.
The consequence of the Committee’s powers being judicially reviewable through the courts goes to the absolute heart of Parliament’s independence and what the Bill of Rights of 1689 was all about, given its insistence that what this Parliament does cannot be called into question elsewhere. From the current drafting of subsection (2), I really do not see how we can escape that conclusion. Indeed, it is noteworthy that witnesses who submitted either written or oral evidence to the Justice Committee stated very clearly that that outcome was undesirable. Professor Dawn Oliver said:
“(2) may be omitted. The House would in any event be able to exercise its disciplinary powers under existing privilege rules.”
In earlier evidence she expressed her deep concerns about the manner in which the House might proceed with a major constitutional change in respect of parliamentary privilege.
No doubt my hon. and learned Friend has also read the evidence from the Clerk of the House. He said unequivocally that
“clause 8(2) brings in the Standards and Privileges Committee”,
“what would happen if Standards and Privileges concluded that it could not accept a recommendation from the Commissioner, perhaps the recommendation was too severe on the Member, the degree of punishment or whatever was being recommended, the whole matter would then have to be resolved in the courts.”
There then followed further evidence from the Speaker’s counsel making that position absolutely crystal clear.
I thank my hon. Friend for saving me the trouble of having to read out that very passage; I was about to move on to it, but I could not have made the point better than he has. Both Professor Dawn Oliver and the Clerk of the House have expressed the same concerns. It is worth reading the totality of the evidence, including the written submissions. It is crystal clear that clause 8 embarks on issues that go to the very heart of Parliament’s independence.
There is a solution. It is amendment 32, which would delete clause 8(2) and replace it with the words
“may refer to the House of Commons Committee on Standards and Privileges any findings it may make in relation to any member in the exercise of its functions.”
“Findings” refers to findings of fact. IPSA would simply say to the Committee on Standards and Privileges that it had carried out an investigation, concluded that there had been a misclaim of x thousand pounds and thought that that should be drawn to the Committee’s attention. That would be a completely neutral thing to do, because it would not be accompanied by any recommendation. The amendment would go a long way towards solving the problem.
I have a problem with IPSA. What would happen if the compliance failure was IPSA’s failure? If a Member made a claim in good faith and IPSA got it wrong, the Member would carry the can for IPSA. Over the past few months, a lot of Members have carried the can for compliance failures that were out of their hands.
It is clear from our debate on clause 7 that the actions of the commissioner and IPSA will be judicially reviewable. I have made my point to the Minister and the Secretary of State. If we confine those external regulation functions to our salaries and allowances, that might lead to judicial review proceedings but it would not have a major impact on the independence of Parliament in doing its work.
The difficulty is that, as one starts reading clause 8 subsection by subsection, one sees that it goes further and further into key functions of Parliament and its independence that have hitherto been regulated solely by the Standards and Privileges Committee. They are non-justiciable and are protected by the operation of the Bill of Rights 1689. The House needs to concentrate on that issue if we are to ensure that we can continue to carry out our work properly.
My hon. and learned Friend is making a powerful case. Under clause 8(6), one of IPSA’s first duties is to try to work out the comprehensive muddle that the Bill is making of the situation. It would have to prepare a statement
“with the agreement of the Speaker’s Committee on the Independent Parliamentary Standards Authority”
about how it, the commissioner, the Standards and Privileges Committee and other authorities could make sense of this complete jumble. Does that not prove that, even according to the Government’s own words, the thing is a comprehensive mess?
I agree entirely with my right hon. Friend. It all shows how poorly thought through the Bill is. It is rushed legislation. Each of the witnesses who gave evidence—except the Clerk of the House, whose ability to make such comments is a bit fettered—expressed horror at the speed with which the legislation was being carried through. All the independent witnesses asked what on earth the Government were doing in rushing ahead with something of such fundamental importance to the workings of democracy in this country, without giving the matter some proper thought. We will have only two hours on Report this afternoon, and there will probably be no Third Reading. Frankly, the whole thing is a scandal—but we will have to make do with what we have.
Clause 8(2) relates to the recommendation of IPSA. We are all assuming that the recommendation would depend on findings of fact about improprieties in allowances claims or whatever, but nothing in subsection (2) confines IPSA’s recommendation to such a finding of fact. IPSA might well decide that although there was no allowances impropriety, the Member needed to be disciplined for other reasons. Is that what the House really wants to achieve? Subsection (2) is certainly couched in wide enough terms to allow that interpretation.
My right hon. and learned Friend makes a good point, to which I hope the Minister will respond. She may argue that the terms on which IPSA and the commissioner for investigations are set up would not allow them to stray too far from the main remit of our financial affairs. However, my right hon. and learned Friend has made a perfectly valid point, which illustrates some of the difficulties that we face.
Amendment 32 deals with clause 8(2), but as one reads down the list of enforcement clauses, the whole thing becomes murkier and murkier. I wonder why some of the subsections are there at all. They start dealing with issues relating to the punishment of Members by the House itself. Subsection (6) mentions an agreement between IPSA and the Speaker’s Committee on the Independent Parliamentary Standards Authority on a protocol that requires a number of different people to work together. That protocol includes the Committee on Standards and Privileges.
The House does not need to pause for thought for long to appreciate that if the Committee on Standards and Privileges remains included in subsection (6) it will inevitably be embroiled in court proceedings about its functions and independence. That would drive a coach and horses through the Bill of Rights 1689 and what it was designed to achieve.
The protocol must be judicially reviewable, and it concerns relations with the Director of Public Prosecutions and—wait for it—the Commissioner of Police of the Metropolis. I gently point out that a past incumbent of that post was subject to comment about the infringement of the privileges of the House in respect of the problems faced by my hon. Friend the Member for Ashford (Damian Green), a matter currently under investigation. As one goes through clause 8, one asks oneself what in it is really necessary for achieving IPSA’s main functions.
I am a member of the Standards and Privileges Committee, and we have always transacted our business in complete confidentiality. That will not be the case if we are subject to judicial review; all our papers and dealings and all the matters that we transact will become public. Would anybody wish to be on a Committee dealing with such matters if those things were subject to outside scrutiny by the courts? I doubt it. The change will definitely hamper the Committee’s business.
I agree with the hon. Gentleman and I go back to the evidence given yesterday to the Justice Committee by the Speaker’s Counsel; I refer to page 33 of the transcription. He was asked to highlight his areas of concern about clause 8. He contrasted clause 8(2), on which I have touched and whose necessity has been questioned, with clause 8(5):
“clause 8(2) is not really saying anything about the basis of the powers for the Committee on Standards and Privileges to act…I think clause 8(5) might be saying something because it says that the failure may be punished by the House of Commons. If that is interpreted as a kind of statutory permission then there might very well be an issue as to whether the conditions of that permission had been fulfilled. If the Commission had acted unreasonably you would not have the conditions for that permission to operate, whereas contrarily with section 8(2), if I may say so…Dr Palmer is right to say it is simply like some other actor who says something should be done and then the Committee on Privileges does something. It is not a condition of the Committee of Privileges doing something that someone else has probably said something to it.”
It is clear that the Government should justify why any of the second part of clause 8—below subsection (2), which I suggest should be amended—is necessary to achieve the House’s functions, IPSA’s functions and the proper regulation of MPs. That part of the clause is a seriously dangerous step that involves the scrutiny and review in court of how the House of Commons works.
We have tabled amendments. Others have tabled theirs, and will doubtless speak to them. The hon. Member for Middlesbrough (Sir Stuart Bell) has tabled a really important amendment that would take away the Standards and Privileges Committee from the protocol set out in clause 8(6). Our amendment 34 seeks to leave out clause 8(4), which, as far as I can see, is completely unnecessary. There is an amendment proposing to leave out subsection (5). Each one of those needs a response from the Minister justifying the necessity for not making those changes: it should not be for us to have to justify every line that we are trying to take out.
If the Minister is wise, and the Government are wise, this clause in its entirety can be substantially altered. She will then find that the Government have met their objectives of enabling IPSA to carry out its investigation and report to the Standards and Privileges Committee, leave it to the Committee, under our present powers, to implement whatever sanctions are necessary, and avoid the extraordinary mish-mash in the provisions as drafted, which will drag the House of Commons and its procedures into the courts.
I am looking at subsection (9). Would the hon. and learned Gentleman expect that, if there were criminal proceedings against an MP, in order to avoid double jeopardy the commissioner and IPSA should not be investigating the MP at the same time for the same complaint?
There are clearly potential issues of double jeopardy. Double jeopardy is a rather complicated subject, and once we start putting it on a statutory basis we run much more risk of landing ourselves in the sands than under the current procedures. The hon. Gentleman makes a perfectly reasonable point, but given the limited time that I have had to scrutinise the detail of the Bill, I do not have the answer.
I hope that the Minister is able to answer those questions, and I look forward to hearing from her.
I rise to support my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) in all that he says about the detail of the amendments, which would go some way towards abating the problems with clause 8, and in what he says in general about the need to keep Parliament in charge of disciplining Members of Parliament.
I find the wide-ranging debate that the Government have opened up on this clause and this Bill quite extraordinary. I have not heard any criticism of the Committee on Standards and Privileges. I have never heard of a great public controversy because it was doing its job badly. We have not been told that its justice has been inadequate. We have not felt that people have been hard done by under it. We have not felt that those who deserved to be punished have gone unpunished. It is not an issue. It is extraordinary that we are being asked to overturn that and to make the Committee subsidiary to an outside body when there is no case against it and no charge sheet that anyone has heard about. I would like to concentrate on the need, as my hon. and learned Friend said, to recast the clause, if it has to stay at all, in a way that deals with the big issue of how IPSA appears to be superior to the Committee on Standards and Privileges and how it seems to have overturned the Bill of Rights.
If we look at subsection (6), we can see that the Government themselves acknowledge that the clause is a comprehensive muddle and a huge mess. As currently drafted, it does not make clear the relative powers and responsibilities of IPSA vis-à-vis the commissioner or the House of Commons Committee on Standards and Privileges. The subsection invites us to agree to a form of words whereby, although we know as legislators that it will not work in its current form and that the Government have not had time to work out how it might function, we would ask IPSA to consult the Speaker’s Committee on the Independent Parliamentary Standards Authority in preparing a statement saying how all these different bodies could work together smoothly and harmoniously in a way that ensured that no difficult case fell between the gaps and that people were not put through double and triple jeopardy for no good reason. Under the list in that subsection, IPSA has to consult the commissioner, the House of Commons Committee on Standards and Privileges, the Director of Public Prosecutions, the Commissioner of Police of the Metropolis, the Speaker’s Committee on the Independent Parliamentary Standards Authority, and any other person that they may have forgotten about. We can see what an absurd, burgeoning bureaucracy this is.
I am not a legal expert, but I would read it in that sense. It seems that IPSA is being asked to take on the main burden and to be the main initiator.
I would have thought that given its wisdom and experience, the Committee on Standards and Privileges should be the guiding body. Many right hon. and hon. Members have given or are giving good service to that Committee. Several amendments drafted by those who have been working on it have already been accepted by the Government in the realisation that that experience is necessary. The Government should take this clause away and ask the Committee how it thinks it could best be phrased to preserve these two fundamental points: first, that Parliament must be sovereign, as the Bill of Rights rightly asserted, so that the people’s rights are preserved in this Chamber; and secondly, that the good work and experience of the Committee on Standards and Privileges must continue without being messed up—without being subject to judicial review and intrusions that would not make it fairer or better but might make its work more difficult.
The right hon. Gentleman raises an important point about clause 8(6). Surely the crucial question is this: could the protocol that is drawn up by IPSA end up giving obligations to everybody else on the list? If so, it is extraordinary that IPSA should give obligations not only to the House of Commons Committee but to the DPP and the police. Surely that is a complete violation of the separation of powers.
My reading of the drafting suggests that none of this is subject to parliamentary approval. IPSA needs the agreement of the Speaker’s Committee, but we are not told what happens if the Speaker’s Committee does not agree. IPSA could publish and try to assert its view regardless, because it appears that it is primus inter pares in these matters. No procedure is set down for reconciling disputes between the Speaker’s Committee and IPSA. The implication is that once IPSA has published, preferably with the agreement of the Speaker’s Committee, then that is the statement from which not only this House but the courts, if they become involved, will have to operate.
That is totally unacceptable. We are being asked to override not only the Standards and Privileges Committee but our own law-making powers by delegating a crucial element in how this complex and bureaucratic system is going to work to a draft from IPSA that it could not possibly undertake for several months until we know who the chief executive is and that person has a staff who can get to work and take advice. Presumably they would then come to see right hon. and hon. Members from the Standards and Privileges Committee. However, as the drafting makes clear, they do not have to take the view of those Members—they can come up with their own independent view and assert that.
For all those reasons, I hope that the Minister will realise that this proposal is impractical and cumbersome, that it cannot work, that it will delay justice rather than give justice, and that it will make the House of Commons look ridiculous rather than showing that we take these matters seriously. The overriding of procedures that have worked well is symbolic of a Government who love to railroad their way through traditional institutions that are already functioning in the name of modernisation without thinking about the difficult consequences that may follow. This will not produce more justice or a better administered Parliament; nor will it deal with cases that the present system would not otherwise deal with. It is a recipe for disaster.
The most painful part of this situation is that we are all now having to confront the reality of the relationship between Government and Parliament. Over the years, all of us—certainly me, in the past 20 years—have subjected ourselves to an incredible amount of self-delusion in thinking that the House of Commons actually meant something, that its powers were important, that it was somehow, if not an equal partner, then at least an elderly uncle whose advice could be taken seriously and had some impact on the parliamentary process and the legislative process.
What the Government are now doing is honestly, although perhaps not deliberately, stripping away from Members of the House any last illusions that they had about the pathetic nature of the parliamentary branch of government, by not even allowing that misconception to continue. They are placing in statute, in clause 8 and other clauses, the fact that the House of Commons is at best a supplicant to Government.
I am reminded strongly of the process that has taken place under all Governments, and been suffered by all parties, of the atrophy of local government. It was never established in a written constitution, and it never had independence, but in many regards it used to have a degree of separation and functions distinct from national Government. Over a period of 20, 30 or possibly more years we have all seen, and those of us with experience in local government have felt at the sharp end, what has happened to our local government. Those who care about our democracy have seen it, too. Through perhaps 40 or 50 Acts of Parliament, the ability of local government to act independently has been stripped or sliced away. Now, virtually everything at local level is guided by statute, by central Government and by the man in Whitehall.
In essence, that is now our fate. Our role is being prescribed in a way that was never the case before because we did not want to disturb the people in the House of Commons or have crowd control difficulties. We wanted them to believe the mythology of parliamentary sovereignty. Just as local government’s sovereignty is a thing of the past—we are all poorer for that, although many of us acquiesced in it—so parliamentary sovereignty is being condemned to the dustbin of history, not even with a nod and a wink but by statute.
We let that go at our peril. I am not necessarily suggesting that today is the day when we can halt the process, but we will rely upon the other place, and upon the Government themselves to retreat to some extent when they bring the Bill back to this House. We are relying on them to improve this dog’s breakfast of a hurried, precipitate piece of legislation, caused by our fear of what the media have managed to concoct and reveal about goings-on in this place. I hope that the Government will retreat from some of the more extreme things that we see in the Bill. If they do not, that point—it may be only a couple of weeks away—will be a real watershed for our democracy.
The hon. Gentleman is making an extremely important point. These are vital issues for the future of Parliament. I put it to him that this matter cannot be resolved in another place, because there are issues of privilege. My hon. Friend the Member for Stone (Mr. Cash) and my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) articulated them better than I can. This House will have to resolve the matter, and if it cedes authority, it will be finished as the supreme legislating authority in this land.
I am not suggesting that we should rely upon the other place, but even the fact that the Lords will have had a few more days to read the Bill, which I suspect colleagues in this place have not done, will allow them to table some serious amendments. The Bill will then return here, and I hope that at that point, those of us who have been in the Chamber for these debates will take up the challenge. There have been incredible contributions from all parts of the House, which I hope will be studied in detail in years to come as evidence of some of the days when Parliament said no to this process. I hope that we ensure that all colleagues understand what the consequences will be if we allow provisions such as clause 8 to go through unamended.
I have just a brief point. I agree entirely with what the hon. Gentleman is saying. We are establishing an important precedent that could be invoked time and time again by future Governments. We need to be chary about doing that, because it will be a declaration about the relationship that Parliament deems that it has with our external authorities.
Indeed, and the louder the Government talk about democratising the House of Commons, the more careful we ought to be to study the legislation that comes forward. There is talk about reforming the House through a Select Committee, for example, but at the moment there is no resolution to establish such a Committee, and no terms of reference that command agreement throughout the House have yet been on the Order Paper.
There is ever stronger rhetoric about rebuilding our democracy, but of course the rhetoric can be belied by the lack of means to create that democracy. Indeed, the very means to undermine it further may be in front of us, but some of us may be missing them because of the loudness of the rhetoric about increasing and improving our democracy.
I pay tribute to the hon. Gentleman for his work over a sustained period to try to get the House to take more power over the Executive. Does he agree that it makes for better government if Ministers see the need to come to the House early and have things exposed to proper debate, as I hope they will with this Bill?
That is a measure of the fear with which Governments unnecessarily view this House. If we have a strong House of Commons and a strong Parliament, Government themselves are the main beneficiary. We have better value for money, better legislation and more public involvement, and it does not require eight efforts to get child support legislation right. At least once a year we try to get the criminal justice system right. We should have proper pre-legislative and post-legislative scrutiny, yet there are those in government who run in fear of that, wishing instead to have legislation drafted by unelected officials in their Departments and rubber-stamped by the House. We all lose in that deal, and we could all win in a deal whereby a strong Executive had self-confidence and the judgment to take the view of the House when it had been properly and responsibly expressed. The only greater beneficiary than the Government would be the British people.
On the drafting of legislation, to which the hon. Gentleman has rightly referred, the evidence that has been heard in the past few days has had alarming characteristics. The most obvious is that first parliamentary counsel appears to have prepared the memorandum upon which the so-called Lord High Chancellor and Secretary of State for Justice is relying. It is clear that there is a complete difference of opinion between the Clerk of the House and first parliamentary counsel. Does the hon. Gentleman agree that that ought to worry people a great deal?
I do not want to stray too far from the clause, but one day, when we have a self-respecting and self-confident Parliament, we will have our own parliamentary draftspeople and our own right to legal advice on going to war or whatever it may be. We will have our own capabilities to transform the legislative framework. At the moment, we have an Executive who are not directly elected by the British people taking the advice of a civil service that has no familiarity whatever with the ballot box. Members of this House are being overseen by people who have no understanding of electoral politics and our democracy, but who decide on the rights of Members. Those rights have been sacred—perhaps too sacred, but they have been in place for many years. I hope that colleagues will press their case to the Secretary of State, and that he will take away the expressions of anxiety that he has heard in the past day or so—and will hear until the end of the day—and rework the Bill so that it does what we all thought it intended to do: create a strong parliamentary standards authority to ensure that abuses that have happened in the past cannot happen in future. As part of that, it should construct a much broader framework, so that our legislature, rather than becoming a quango, an advisory body or a quaint but withered part of our constitutional arrangements, can play not only the role that it fulfilled in years gone by, but an important role in rebuilding our democracy and people’s trust, which has been so sorely tested in the past month or two.
The shadow of the guillotine is beginning to fall over our debate, so I will not follow up the very interesting speech of the hon. Member for Nottingham, North (Mr. Allen), with whom I agree about many parliamentary matters, but focus on issues that directly concern the Committee on Standards and Privileges and enforcement.
I want to pick up the comment of my right hon. Friend the Member for Wokingham (Mr. Redwood), who said that the aspect of the Bill that we are considering is not the problem. The problem has not been the Parliamentary Commissioner for Standards and the Standards and Privileges Committee. We operate downstream, and the problems have been upstream, with processing and making claims. We do not process claims; we process complaints, and I believe that that part of the system has operated well.
The system was set up some 14 or 15 years ago—it is tried and tested and has been improved. The House has been well served by Philip Mawer and now by John Lyon. The Committee on which I serve has tried to operate the rules of the House dispassionately and fairly. In his evidence to the Committee on Standards in Public Life, which is now sitting, Anthony King said that that part of the system works quite well. Clause 8 would dismantle it at breakneck speed and try to replace it. By doing that at speed, one may not get it right.
The Government are trying to fetter the discretion of the Standards and Privileges Committee because they believe that the tariffs that we have operated are not tough enough. In the speech that the Leader of the House made a few days ago, she referred to the long time that had elapsed since someone was expelled. My hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) did not make it clear that the Standards and Privileges Committee simply makes recommendations on the tariff to the House. It is open to any Member and to the Government to amend the tariffs recommended by the Standards and Privileges Committee if they think that they are too lenient or too tough.
I believe that we could achieve some of the Government’s objectives, not by dismantling the machinery, but by re-examining the tariff. If there is a general view that we are not being tough enough, we can tackle that without the proposed paraphernalia.
All we have are our reputations, which can be destroyed by a critical report from my Committee. That has happened many times. The reputational hit is not fully understood outside the House.
Clause 8 tries to make the Standards and Privileges Committee the agent of an outside body. The moment we do that, we run into all sorts of difficulties, which the Clerk of the House identified in his memorandum. One cannot make us the agent of an outside body, as subsection (2) would do, without running into all the constitutional difficulties that we outlined.
Amendment 32, which my hon. Friend the Member for Rutland and Melton (Alan Duncan) tabled, would remove IPSA’s power to recommend to my Committee the application of a particular sanction. For that, it substitutes a power to refer its findings to the Committee. That would broadly replicate the current position, whereby the Parliamentary Commissioner for Standards reports his findings to the Standards and Privileges Committee, which then determines the appropriate sanction. I support that amendment because it replicates, as far as possible, the current position. I remind the House that my Committee has said that it would be prepared to have lay members serving on it if that helped solve the problem that the Government identified of our being somehow out of touch with the outside world.
Amendment 12 would remove the provision that allows the new commissioner to conduct an investigation into a case that is simultaneously the subject of criminal proceedings—the hon. Member for Castle Point (Bob Spink) made a point about that—while leaving in place the provision that allows him to carry out an investigation into a case that has already been the subject of such proceedings. That is crucial. We cannot have a position whereby a Member is subject to competing jurisdictions for the same offence. He cannot have his collar felt by the Metropolitan police and the Parliamentary Commissioner for Standards at the same time.
Perhaps I can leave the amendments that the hon. Member for Middlesbrough (Sir Stuart Bell) has tabled to him to consider. I have some sympathy with amendment 19, which deletes subsection (6). That would deal with the problem that my hon. and learned Friend the Member for Beaconsfield outlined. If subsection (6) is to remain, we must knock out the reference to the Speaker’s Committee. The Committee on Standards and Privileges should be responsible for drawing up the protocol; it is nothing to do with the Speaker’s Committee, which is solely concerned with appointing and spending plans, not procedure.
I have genuine anxieties about the implications of the Bill. The way through is to follow the path laid out by my hon. and learned Friend the Member for Beaconsfield, which avoids some of the complications that he rightly identified.
The hon. Member for Nottingham, North (Mr. Allen) made some significant points, many of which arise in the context of clause 8. Of course, many go much further, too.
In our debates, we keep coming up against the “there’s a hole in my bucket, dear Liza” syndrome. We claim that we want to create an independent parliamentary standards authority, yet, at every turn, we assert the sovereignty of Parliament and say that there must be a dual control brake on anything that IPSA or an investigator might do. We need to get real. The public feel little about the sovereignty of Parliament, which we value and discuss here, but are very angry about the avarice of parliamentarians, as they perceive it and as has been represented over past months. People want to know that we will allow any independent standards authority that we create to be independent. Yes, we should ensure that there cannot be excesses and that there are limits. We must also ensure protection for Members’ rights and reputations, individually and collectively. Several sensible amendments have been tabled about that, and some are in the group that we are considering.
We all understand the public anger, but we cannot simply have a knee-jerk reaction—I see the Justice Secretary frowning, unusually. If we understand the significance of parliamentary sovereignty and the public do not, and we knowingly impair it, we will damage hugely the interests of our constituents and our ability to serve them. It is nothing to do with protecting us, but with safeguarding the fundamental rights of the British people and our powers in this place to represent them. We must not allow the Bill to impair that fundamental principle. If we do so, we do grave damage to our constituents.
I thank the hon. Gentleman for that point. None of us wants to do damage to the sovereignty of Parliament. However, we will not help the reputation of Parliament if we respond to every measure to try to restore credibility and public confidence by simply boasting about the sovereignty of Parliament. I have heard more from some hon. Members about the sovereignty of Parliament and about standing up to the Executive and not being cowed in relation to this Bill than I heard in relation to measures such as the Counter-Terrorism Act 2008, when Parliament really should have asserted itself and when a lot of people should, in good conscience, have known that something was wrong. The same goes for identity cards. I have heard people today celebrating what has happened, yet they were willing to be whipped into voting for them and all the rest of it, so let us be a bit more real about some of these issues. It seems that some people are a bit more assiduous in protecting the sovereignty of Parliament in relation to parliamentary standards and the privileges and rights of Members than they have been in relation to the wider interests of their constituents and the citizens of the United Kingdom. So let us get real all round. It is not just the Executive who have questions to answer; all of us have questions that we should perhaps ask of ourselves and that we should answer.
Amendment 32 is sensible. The idea of the authority making recommendations and just giving them to the Standards and Privileges Committee on a hand-me-down basis seems crude and excessive. Amendment 32 would deal with that, thereby obviating the need for amendments 17 and 65, which would seem to be sensible. Some of the other amendments, however, I am not so sure about. Amendment 34 would mean leaving out clause 8(4), which would in turn mean leaving out subsection (5). I do not know that it would be right to leave those two subsections out. There would then be a hole in the procedures and a hole in the Bill, although some fine-tuning may still be needed.
It is very simple: if the hon. Gentleman reads the report of the Select Committee on Justice, he will see that everything after clause 8(4) does nothing to add to the regulatory powers of IPSA, but everything to undermine the independence of this House. By taking out one, the rest fall down like a domino, and that is why it should go.
That is also why, if people think that we have to be cautious, because the legislation has been brought forward in haste, I would be cautious about demolishing parts of it in haste. We need to consider whether we are getting the tuning of the Bill exactly right.
I can understand the hon. Gentleman’s caution. In particular, he was right to remind the House of the importance of the independent handling of expenses, salaries and finances. However, if we are cautious about what we allow to go through in the Bill, so that it focuses on that core function, but then decide after more consideration that there are other functions or ways in which we want to go further, that is surely safer than allowing things to creep through in the Bill that are dangerous or have risks attached, and then repenting at leisure as we try to sort them all out.
I fully agree. Indeed, I have supported a number of amendments and, even in this bunch, there are a number that I would support and some that, if adopted, would make the need for others disappear. However, I worry that some of the amendments would go so far as to leave a significant hole in the Bill. That might provide a site for which planning permission could be given to do more things in relation to other issues. However, I would prefer to hear from the Justice Secretary or the Deputy Leader of the House before drawing those full conclusions.
On clause 8(6), we definitely need some provisions in respect of a protocol, but I believe that subsection (6) is wrong as drafted. I do not go as far as the hon. and learned Member for Beaconsfield (Mr. Grieve), in saying that it is a recipe for disaster or that the sky will fall, in the way that he colourfully suggested it would. However, perhaps we have all missed something. Perhaps we should have amended subsection (6), so that it said that IPSA and the Speaker’s Committee or the Standards and Privileges Committee would seek to agree protocols with “the following”. Instead, subsection (6) says that IPSA will prepare a statement or a protocol on how “the following” will work together. That means not just how “the following” will work with IPSA and somebody else, but how “the following” will work together. It therefore seems that something needs to be done about subsection (6).
Order. Perhaps I should remind the hon. Gentleman that we are actually discussing amendment 32. He can speak to those amendments, but they do not need to be moved at this point.
The importance of privilege was underlined by the learned Clerk in the evidence that he gave yesterday. It is well to remind ourselves of the purpose of privilege. He said:
“If there was not that freedom”
“Parliament could not…function effectively.”
He said later:
“I think the traditional view in this country, the United States and a lot of other countries, is that if speech is not free in the House of Commons, it is not free anywhere…we are not unique by any means. All systems have immunities and they are recognised.”
Most importantly of all, he made it clear that
“if you start to make exceptions to parliamentary privilege for one reason or another, under one Act or another, eventually you will undermine the whole principle.”
The Chairman then said:
“The earlier decisions to do this are now being adduced in support of the current proposals,”
to which the learned Clerk answered yes. That is why we should tackle the question of privilege in these debates.
Is not the short point that the only thing that stands between the people and arbitrary government is this Chamber? If we undermine the position of this House in that relationship, we open up the possibility of dictatorship, arbitrary government and misconduct in government. If we lose sight of that, we might as well give up.
I wholeheartedly agree with my hon. and learned Friend. I would submit that, not by virtue of the erosion of our sovereignty but by virtue of the imposition of whipping—the whipping on this Bill on the Government Benches is an example of that—the House of Commons is not losing its sovereignty, but simply giving away our influence. We should use this opportunity to wrest it back.
I support the principle of independent regulation. Indeed, I do not think that anyone speaking in this debate has suggested that we should take the principle of independent regulation out of the Bill. The scheme that I propose with the amendments standing in my name would mean that the process of independent regulation would become privileged itself. We should put an envelope of privilege round the entirety of the Bill’s operation, with the exception of the criminal offences, which is another matter that I shall not try to address. However, the principle is that privilege should envelope the entire Bill.
Therefore, my amendment 65 proposes a new subsection (2A) of clause 8, which reads:
“Any recommendation under subsection (2)”—
I am led to understand that that would also mean any direction under subsection (1)—
“shall be deemed to be proceedings in Parliament as expressed in the Bill of Rights 1689 notwithstanding any other provisions of this Act.”
That would have the effect of making the activities under clause 8 privileged—that is, beyond question by the courts, so that they could take in evidence what Members of Parliament had said in this place, because their proceedings would be privileged. There would then be no question of any of our proceedings leaking into the jurisdiction of the courts outside Parliament. I have also proposed a similar amendment to clause 7, for debate on Report, which would mean that all investigations would be regarded as proceedings in Parliament.
My amendment 64 would remove clause 8(8). I have read subsection (8) many times, but I simply do not quite understand what it means. It seems to me to have been drafted highly ambiguously—although that probably means that parliamentary counsel are much cleverer people than I. However, even the explanatory notes say that subsection (8)
“preserves the right of the House of Commons to exercise any disciplinary powers which it may have.”
I do not know why we need to legislate in the Bill to allow a sovereign House of Commons to continue to exercise its own disciplinary powers. Why is that in the Bill?
The explanatory notes continue:
“It is not to be limited to acting only following an investigation by the Commissioner or a recommendation from the IPSA.”
If we believe that we are sovereign, how could any implication in the Bill limit what the House of Commons does? The very fact that the Government have sought to put this provision into the Bill at all underlines the weakness of their case that so much of this is justiciable: they are putting provisions in legislation to try to prevent the actions of the House from becoming justiciable and limited.
I will move on as swiftly as I can.
My amendment 67 addresses the question of what should take precedence. Even if there is, as I propose, an envelope of privilege around the entire activities of IPSA and the commissioner, there would still need to be some means of deferring to criminal proceedings if they were in progress. It is in any case something that we do automatically on an administrative basis within the House. The amendment proposes:
“Where any criminal investigation or proceedings are concerned with the same or related matters which are the subject of an investigation by the Commissioner or of a recommendation by IPSA, the criminal investigation or proceedings shall take precedence”,
and I add,
“subject to the agreement of the House of Commons Committee on Standards and Privileges”,
which should surely be the final arbiter of such a case.
Finally, I shall briefly refer to amendment 94, which I appreciate is in a different group. It would amend clause 10, and it states:
“Where proceedings of the IPSA and proceedings of the Commissioner arise from section 7 (investigations), section 8 (enforcement) or section 9 (offences), they shall be deemed to be proceedings in Parliament in accordance with Article IX of the Bill of Rights 1689.”
My amendments may be imperfectly drafted and they may not create a perfect envelope around the activities that need to be enveloped, but I honestly believe that they provide a solution to the Secretary of State’s problem. He wants independent regulation, he wants the independent regulator to be able to look at all the evidence, and he wants the commission to be able to conduct investigations as freely as possible, but he really does not want the courts interfering with these processes and he does not want to provide an avenue for the courts to look at what has been happening in Parliament and to have a chilling effect on free speech.
If my amendments are accepted, along with those in the name of my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) that strike out the final subsection of clause 10, we will have created a perfect envelope to allow the Bill to go forward—enveloped by privilege exactly as I believe the Secretary of State intends, but as the Bill fails to deliver at the moment, which is completely unacceptable.
I am grateful, Mrs. Heal, for the opportunity to participate in the debate on what the hon. and learned Member for Beaconsfield (Mr. Grieve) has said is possibly the heart of the Bill. I shall speak to amendments 18 to 21, which I tabled.
The essence of this part of the Bill, as the hon. Member for North Essex (Mr. Jenkin) has said, is the Independent Parliamentary Standards Authority, which is not a matter of question in the House, as it has been fully accepted and agreed by the parties themselves as well as by the party leaders. What has been a cause for concern is the determination of privilege in this House, and particularly whether it should stay within its precincts or whether, in line with Congress in the US, it can be subordinated to the Supreme Court in that case, or to the courts of law in our case. It has always been my view that conveying parliamentary privileges to the courts for them to determine our actions, our speeches, our proceedings in Committee and the like not only destroys the essential pillar of our democracy—the pillar that protects to the Member of Parliament on the Floor of this House—but prevents a Member from seeking to defend the constituents who sent him here. The principle of redress would be somewhat diminished if our proceedings were to be interpreted elsewhere and a determination of them made elsewhere. That would certainly destroy the essence and basis of the House of Commons as we know it, which would do a great disservice to past generations and also to future generations of parliamentarians.
I am grateful to Dr. Malcolm Jack and the Clerks for putting together a very important and significant document to deal with the problem. If I may, I will happily paraphrase liberally what it says. As I understand clause 8, which deals with enforcement, it raises a number of questions of principle relating to privilege. Clause 8(2) identifies recommendations to the Committee on Standards and Privileges that would be covered by parliamentary privilege, but if the Committee declined to act on a recommendation, it could presumably become the basis of legal proceedings in which the Commissioner, or someone else, sought to require the Committee to comply. In my humble and respectful submission, Mrs. Heal, it is not enough to argue that clause 8(2) speaks only of a recommendation, as the extent to which a reasonable recommendation should be accepted would itself become a matter for determination by the courts and a matter of interpretation.
Clause 8(5) appears to make the exercise by the House of its disciplinary powers a matter of statute, since it seems to confer on the House a statutory permission to exercise those powers in the circumstances provided for in the subsection. If the circumstances in which the House may exercise disciplinary powers became a question of law, it would then be open to challenge before the courts. There are a number of examples that I could provide here, but I am aware of the guillotine on our proceedings and I would not wish to delay the Committee in its consideration of my amendments and others. It could be argued, however, that it is only the “failure” under clause 8(4) and no other, that may be punishable by the House. That would be a question requiring determination by the courts.
Clause 8(6) requires IPSA to prepare a protocol on how IPSA, the Commissioner, the House of Commons Committee on Standards and Privileges, the Director of Public Prosecutions, the Commissioner of Police of the Metropolis, and any other person whom IPSA considers appropriate, are going to work with each other. Given the various examples of the intervention of the police in our precincts and their involvement in politics over the last few years, I am not entirely sure that the Commissioner of Police of the Metropolis will be very enthusiastic about embracing that concept. I would not imagine, or dare to suppose, what the Director of Public Prosecutions would say to that, either. It is not clear to me whether this is meant to impose any obligation on any of the parties to observe the protocol. Again, this will be a question of law to be determined by the courts. If it imposes an obligation—and there seems little point in having such a protocol unless it does impose some sort of obligation—it raises the question of whether IPSA should be entitled to bind a Committee of the House as to how it is to conduct its own work. An analogous issue arises for the DPP in the exercise of his discretions as to whether proceedings should be fettered.
I believe that there are dangers in this enforcement clause. It could lead to litigation, or constrain the House in the use of other sanctions that might be regarded as disciplinary. The issue of a formal reprimand and a formal requirement for an apology are within the powers of the House, but are not covered. The clause might also prevent the House from adopting other sanctions required by certain circumstances. The hon. and learned Member for Beaconsfield mentioned some of the sanctions currently available to the Committee on Standards and Privileges: for example, the ability to ban a Member from the use of certain facilities of the House.
I intend my amendments to help the House to preserve its privileges and to avoid a determination of those privileges by the courts.
When I speak about privilege, I do not do so as a member of any kind of club. It is the privilege of the people whom I represent that I am defending today, rather than anything to do with me personally or with any other Member. Similarly, when we talk about sovereignty we are talking about the sovereignty of the people, and we should hold that sacrosanct as well.
In evidence submitted in a memorandum yesterday, Professor Dawn Oliver of University college London said:
“I am afraid my general reaction is that the issues about MPs’ salaries, allowances and standards are too important to be dealt with in a bill rushed through Parliament without any prior consultations, Green Papers, etc., especially since the Committee on Standards in Public Life is considering some of the issues covered by the Bill along with others.”
Viewing the reality of the situation, however, she went on to say:
“Having made those points I assume that much of the Bill will be passed, and my remaining points are on details and how some of the problems about parliamentary privilege might be avoided. I go through the Bill clause by clause.”
On clause 8, she said:
“(2) may be omitted. The House would in any event be able to exercise its disciplinary powers under existing privilege rules.
(4) (5) are unnecessary. The House has these powers anyway.
(6) amend to omit (c). Under (f) it is obvious the IPSA will consult HC bodies.
(8) is unnecessary. If omitted (10) is unnecessary. Both should be omitted.
(11) would be unnecessary if the above measures are omitted as suggested.”
Members might consider that a rather iconoclastic and Luddite response to the Bill, but it comes from a professor of constitutional law who knows a thing or two about the field that we are discussing.
In the interests of brevity I shall concentrate on amendment 32, which I regard as a very elegant way of achieving what the learned professor wanted. I think that we are trading on extremely dangerous ground. We are driving a coach and horses through the constitution of this place. I do not say that through any love of this place. The hon. Member for Nottingham, North (Mr. Allen) made some very good points, and I want to align my position with his.
The hon. Gentleman has put his finger on what concerns me. At present we have a rule called parliamentary privilege, to which there are certain exceptions. We are in danger of moving slowly towards a rule—the supremacy of the courts—with certain exceptions based on parliamentary privilege. There is a very strong difference between those two concepts.
That is absolutely true. If we meddle with parliamentary privilege we shall start a torrent of litigation, and, more to the point, we shall find that we are unable to do the work that we should be doing on behalf of our constituents.
As I said yesterday, and as Members know, we sometimes hide behind the cloak of privilege. We do it rarely, but we do it to good purpose when an overbearing person or company treads on an innocent constituent who is unable to fight back. We can often redress the balance in this place, but we shall soon find that we are unable to do that if our deliberations become subject to the law of the land. If that power were abused I would say, “Fine, let’s get rid of it,” but it is not abused. It is an essential tool for us as parliamentarians, and we should not allow anyone to start chipping away at it.
Amendment 32 deals with the issue sensibly. It preserves the role of the Committee on Standards and Privileges. Although I speak as a member of that Committee, I think that it has done a good job. I echo what was said earlier by its Chairman, the right hon. Member for North-West Hampshire (Sir George Young). I hope that if the amendment is pressed to a Division, Members will see fit to support it, in the best interests of this place and, more importantly, in those of their constituents.
I shall speak briefly, because we must try to reach clause 10 somehow, although I fear that in view of the way in which this debate is proceeding, we shall not manage to do so.
All the speeches so far have been extremely important, and have focused effectively on the issues at stake. The message to the Government is that we should have been allowed more time to scrutinise the legislation properly, and the message to the other place is that it will have to work very hard to ensure that we do not let slip anything that we should not have let slip. As has been said, when we talk about protecting privilege we are talking about the privilege of our constituents. It is extremely important to remember that.
As the hon. Member for Foyle (Mark Durkan) reminded us, we must acknowledge the context of the wider debate: the fact that we need to rejuvenate by introducing the external handling of allowances, expenses and finances. We should not go too far too quickly, however, and do other damage to the way in which this House works. In the long run, we do need major reforms: constitutional reform, such as a proper written constitution, and other ways to tackle issues that come before the House. That is not going to happen in Committee today, however. Therefore, I urge the House to support amendment 32 and to take on board the wise words of the right hon. Member for North-West Hampshire (Sir George Young) about protecting the role of his Committee.
I urge Members to make sure that the Bill remains focused on the key political imperative of addressing the aspects of this House that the public have concerns about. It should not go wider than that at this stage. We should look at other issues in more measured times; thereby we can ensure that we do not do any more damage that could undermine the workings of the House. If we were to do such damage, undoing it would be almost impossible. It is therefore very important that the Bill remain narrow in focus—and that is even more important given this short debate, and the lack of time.
Hon. Members in all parts of the House are making valiant attempts to improve this part of the Bill. I support most of the amendments, but this is essentially a fruitless exercise because we are trying to improve a Bill that is irretrievably broken. The debate we have had on this clause highlights that; it shows the problems caused when an attempt to fix the allowances system becomes, during the course of the Bill’s passage, an attempt to reform large chunks of the British constitution. If that was the aim, it should have been admitted right at the start, and the attempt to achieve it should have been approached with due humility and after a good deal of deliberation. Instead, we are now stumbling around the constitution, touching on very delicate matters of immunities, rights and privileges. If such reforms are necessary, they should be the subject of an entirely different piece of legislation.
What we are doing in this Bill is setting up new bodies and creating new appointments with new powers and responsibilities, but the relationships between them all are very unclear. They overlap, and they conflict in a number of important respects. That is very well illustrated by subsection (6), under which this entire matter is to be postponed to a “protocol” to be drawn up by one of the new bodies—the super-quango itself, IPSA—to try to find a way of ordering the relationships between the bodies, both old and new. If the protocol is to be effective, it will have to be an extraordinarily long document.
I do not know who in IPSA will do this work, as I do not know what the staffing arrangements will be, but they are going to have to try to order the relationship between the police and this House, for instance. We all know that that is a very difficult matter and we glimpsed that in the police raid on an hon. Member’s office. One aspect of that was that a computer that was seized probably contained material that touched on matters of the House and proceedings in the House; it certainly contained files that held material relating to other hon. Members. Wisely, the police did not proceed with that prosecution, but that matter of privilege was said to be the subject of an extensive document—which I have not seen yet. That is just one tiny example of the problems under an unwritten constitution of ordering the relationships between the external enforcement authorities—the police—and this House and its Committees. So if we are to codify the entire relationship, not only the one between the House and the police, but the one between the Director of Public Prosecutions and other persons unknown, and the relationships involving IPSA and the commissioner, that will require a real volume in itself and it is all unnecessary.
The dangerous part is that the protocol will, by definition, restrict this House. If it were not to do so, it would be a completely pointless document. There is no point having a protocol that does not do something, because it, thus, merely becomes a declaration. It becomes a bit of a new Labour totemic label: something that is desirable but has no effect. If something is in an Act of Parliament, it is designed to bind and to impose obligations, and one of the bodies on which this Bill will impose obligations is the Standards and Privileges Committee. It is wrong that that should be done in a protocol drawn up by an external body. If the Bill is intended to bind this House in this way, that should be openly admitted by those on the Treasury Bench. Of course, our Committees work to rules in Standing Orders, but this Bill means that they will obtain instructions in a protocol drawn up by other people. If that is intended, it should be admitted. If it is not intended, it should be withdrawn.
Over the past 17 years, whenever there has been a crisis of confidence in this country, Parliament has created a quango. We are now reaping what we have sown because we are creating a super-quango to regulate ourselves, and that is a retrograde and extremely worrying step. I say to the hon. Member for Foyle (Mark Durkan) that of course the public are concerned when we seem to get on our high horse about sovereignty—
The Secretary of State makes my argument beautifully. This is a House matter, and I am raising my concerns as a Member of Parliament who is defending the sovereignty that goes with being an MP and that belongs to my constituents. I do not think that the British public really despise us because of our expenses—that situation is a manifestation of their frustrations; they despise us because we have become supine lickspittles, who are more concerned with sucking up to the Executive than with representing the public’s views in this place. We are in grave danger of handing—
The 17 amendments in this group make it the largest that we will discuss today, so I hope that hon. Members will bear with me as I go through them. First, I wish to touch on a matter that a great number of the people who have contributed to this lively debate have discussed: privilege and concern for their constituents. There is a danger—some of the later contributions started to approach this—that that view could become self-serving, and we must be careful to avoid that. A number of the contributions reflected the fact that we must keep reminding ourselves that we are in the middle of a recessionary downturn and that what people are worried about is not the issues that some hon. Members have raised. What people are worried about is their jobs and their homes. In the middle of all that, we have faced a scandal with which we have to deal. That is the key matter.
I hope that the hon. Lady is not going to allow herself to be misled by the ancient word “privilege”, which is a confusing one. I appreciate that those who do not think about it might find it difficult to understand its meaning. Perhaps we should use terms such as “trusteeship” or “duty”—words that are more widely understood. However, for shorthand purposes—thanks to the Government’s guillotine we have to speak in shorthand—the word “privilege” is the one that we will use and understand in this Chamber. That may require us to explain the term to those outside, but that should not allow her to misbehave in introducing her remarks by traducing those who have spoken not only passionately, but very seriously about the questions relating to the privileges of this House.
May I refer the Minister to the words of Lord Bingham when he gave evidence to the Joint Committee on parliamentary privilege in 1998? He said:
“The term ‘privilege’ is, I think, plainly unfortunate, although hallowed by long usage. It wrongly suggests some perk or special right or dignity, which certain office-holders enjoy, when attention should be concentrated on the limited exemption from the ordinary law which the effective performance of a public duty requires.”
That is what we are talking about. Does the Minister agree that we throw that away at our peril?
The Deputy Leader of the House dismisses the comments of my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) with one line, but she earlier prayed in aid the fact that we are in a recession with which the Government do not seem to have been coping. A recession should not be an excuse for failing to take seriously the constitutional position of this House.
I agree, and I hope that I have not given that impression.
Amendments 32, 33 and 36 would remove the power of the new body—IPSA—to make recommendations to the House about possible disciplinary sanctions and the provision that the recommendations might be published. The hon. Member for Foyle (Mark Durkan) made the point that we cannot have a dual control system. This is not a driving lesson: we need to change the system and we cannot have dual control.
As my right hon. Friend the Justice Secretary mentioned, we have all agreed that we need to set up an outside body to take over the running of our allowances and the financial rules. We cannot continue to be wholly self-regulating in such matters. The approach that we have adopted is to provide for IPSA to recommend—or, in some cases, direct—action, but to leave it to the House to enforce it. That is the key point, and that approach best treads the path between responding to the real public anger on this issue and respecting the position of the House.
There has been reference to the work of the Standards and Privileges Committee, and we have to weigh the excellent work that it has done in most cases with the very real public discontent with our processes. It would not meet our objectives of transparency and independence if all IPSA could do were to make a report to the Committee. One of the key messages that we have to take from the public anger about these matters in recent months is that the old way of dealing with them is no longer judged to be adequate. We are not overriding procedures that the public perceive as working well and we cannot return to a system that is entirely managed within the House.
The proposals in the Bill would give the House as large a continuing role as is compatible with meeting the concerns of our constituents that we must be seen to be subject to proper regulation and supervision.
Does the Minister think that the public might be extremely angered by the idea that they as electors should see such decisions taken by the courts rather than by those whom they have elected? That is a fundamental question of democracy. I suggest that an opinion poll would be guaranteed to show that at least 85 per cent. of the electorate would prefer to continue with their democracy, not hand it over to judicial supremacy.
Can the Minister not understand that the public were unhappy about the generosity of the scheme and the lax administration in some cases, not about the enforcement of cases against Members who had misbehaved? She is tackling the latter, not the former. How does that make any difference to the issue that annoyed the public?
I am going to have to start repeating myself, Mrs. Heal, if people keep asking me the same questions.
Let me turn to amendment 17, which was tabled by my hon. Friend the Member for Middlesbrough (Sir Stuart Bell). I understood the concern expressed in this amendment that, as the clause is drafted, it might make a decision of how to respond to a recommendation justiciable, or at least that the Standards and Privileges Committee would be obliged to act on a recommendation in some circumstances. The key point is that nothing in the Bill takes away the inherent powers of the House to discipline its Members as it thinks fit. In fact, there is a provision that makes it clear that nothing in the Bill prevents the House from exercising its disciplinary functions other than following an IPSA process. IPSA has the power only to recommend, not to enforce its recommendations, so it is quite clear from the Bill that the Committee and the House have a free hand to do with the recommendation what they think fit.
That simply cannot be right. If the Minister has bothered to read the report from the Justice Committee and the opinions of experts, she will know that the decisions will become justiciable because they have been incorporated in statute. We cannot get away from that—it cannot be magicked away—and so far, I have to say, she has said nothing about that.
I need to make a little progress.
Let me turn to amendments 65 and 66, which were tabled by the hon. Member for North Essex (Mr. Jenkin). I understand that amendment 65 concerns fears about how the courts will react to a new regulatory scheme. In particular, there is a concern that the Standards and Privileges Committee could be subject to judicial review for failing to follow a recommendation. The Bill does not repeal article IX of the Bill of Rights—nor does it disapply it. In the absence of an explicit provision or necessary implication, a court will continue to read article IX as applying. There is clearly no necessary implication in these provisions that article IX should be taken to be amended in any way. That would mean that it is more likely that a court will consider that any proceedings of the Standards and Privileges Committee would remain within the protection of article IX.
The Bill contains other clauses, which have been put in for clarification, such as that which makes it clear that the House can continue to use its disciplinary procedures unfettered by IPSA. Why not have a clarification in the Bill of exactly what the hon. Lady has just said that she believes that the Bill will do? A great many people, including the learned Clerk of this House, do not agree with her.
We have to be in a situation of clarity—[Hon. Members: “Absolutely.”] Okay, well, we can try to move to that.
Let me move on to amendment 66. A number of amendments tabled by right hon. and hon. Members concerned the protocol in clause 8, which was actually meant to be helpful. The Justice Secretary and I have been surprised at the extent to which difficulties have been expressed about that, and we are prepared to take it away and to consider it. I wonder whether the hon. Member for North Essex might be prepared to withdraw amendment 66, as it links in with matters of the protocol that we will be considering.
Will the hon. Lady clarify whether the Government’s intention is for the protocol to create obligations on the people on the list in clause 8? If that is not the Government’s intention, a lot of the problems will fade away when they come to reconsider the matter.
No, it was not the intention to create binding obligations. The provision was expressly limited to a statement about the way in which the bodies would work together. It was meant to be helpful. It will not create binding obligations, but it is clear that Members have concerns about it. A number of amendments in this large group relate to the proposal, and the Justice Secretary has said that we are prepared to reconsider the matter.
I come back to my point about justiciability, about which the Minister must have a view. I believe that incorporating references such as to the protocol or the role of the Standards and Privileges Committee means that the process must be justiciable henceforth—contrary to the previous position under article IX of the Bill of Rights. The Government must have an opinion on that, but the Minister still has not given it to us.
We have said that we are prepared to have a look at the matter. We are going to have to leave it there.
I have just touched on amendment 66. Amendment 46 is about giving advice to Members, and I hope that the hon. Member for North Essex will accept that we have dealt with that already.
The Minister must realise that this is a matter of acute concern. The Bill of Rights has been there for 300 years. It has protected the liberties of our people and made us the most law-abiding democratic nation in the world. Will she now please reply to the point put carefully to her by my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve)? She is replacing the Bill of Rights with a provision that renders matters pertaining to the House justiciable. We must have an answer before we move to a vote.
We do not believe that those matters will be justiciable. Opposition Members have said that they want to reach the later amendments, so we are going to have make progress.
I believe that we dealt with amendment 46 in an earlier debate, and I turn now to amendments 34 and 18. We have deliberately devised a scheme in the Bill so that the House retains the power to discipline its Members. Apart from the criminal offences in clause 9, the ultimate decision about what action to take against an MP remains with the House. It will be for the House to decide whether to punish a Member for not supplying information or for failing to comply with a direction, and it will be for the House to decide what to do with a recommendation from IPSA for other sanctions.
We believe that concerns that the provisions are breaches of privilege are misplaced, because they have been carefully drafted precisely to preserve those privileges of the House. The alternatives would have been to make every breach of the rules on allowances or the registration of interests into a criminal offence, or to give IPSA itself a power to enforce its decisions.
Both options would lead to giving a body outside Parliament far more of an incursion into the proceedings of the House, and would certainly be a breach of the principle of exclusive cognisance. Therefore, I urge the Committee to reject the amendment.
I think that the Minister is confusing things that involve proceedings in this House and things that do not. The payment of allowances is not a proceeding in this House. It is possible to deal with it through measures that do not impinge on parliamentary privilege. They may give rise to the problem of justiciability, but they do not raise issues of privilege. If the Government recognised that they can deal with pay and allowances without interfering with privilege, they would not have to disapply article IX of the Bill of Rights—as, contrary to what she said earlier, clause 10 does.
No, as I am going to work through the rest of the amendments.
Amendment 19 would omit subsection (6) of clause 8. I have said already that that subsection, on protocol, was meant to be helpful. Clearly, Members are not finding it helpful and we have agreed to look at it again to be helpful as the Bill progresses further through the House.
Amendment 20 would substitute the Committee on Standards and Privileges for the Speaker’s Committee on the Independent Parliamentary Standards Authority in the first line of clause 8(6). That is a sensible thing to do, and we are prepared to accept both that amendment and amendment 21.
Amendment 64, which is in the name of the hon. Member for North Essex (Mr. Jenkin), would remove the provision in the Bill that makes it clear that the House’s powers to discipline its Members are not constrained by the Bill. The point of that provision is to confirm that the House continues to have the freedom to discipline its Members in any way that it chooses, and in any circumstances that it considers relevant. For example, the House will continue to have the power to punish breaches of those parts of the code of conduct that are not transferred to the authority of IPSA. That power is not conferred by the Bill. The Bill, of course, does not give the House permission to exercise its powers; the provision is simply a statement of fact, included for the avoidance of doubt.
No. I will not lengthen the debate by that method. Given that amendment 64 is about a simple statement of fact that is included in the Bill, for the avoidance of doubt, I urge the hon. Gentleman to withdraw it. Amendment 67 is, again, on a matter that is linked to protocol. We have decided during this debate that there are a number of matters that should be looked at. We can support the principle behind the amendment, and can look to make some drafting changes as the Bill progresses, if that is acceptable to the hon. Gentleman.
On amendment 97, we accept the point made about double jeopardy. We definitely need to get the wording right. If we have not got it right, we need to do so, and I hope that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) will accept the assurance that we will ensure that we get it right. We accept the principle behind amendment 12, and will look at the matter later in the Bill’s passage.
That leaves us with amendment 22. The powers of the House to discipline its Members are inherent in its jurisdiction—a point that I made earlier—so the powers set out in the clauses are all powers that the House already possesses. There is no suggestion that the powers will be limited in any way in future, or that the list of powers is exhaustive. Nor is there any suggestion that the powers are conferred by the Bill. We are trying to make it clear that we are talking about, and recognising, powers of the House that already exist. Clause 8(10) makes it clear that the range of sanctions that IPSA can recommend include withholding salary, suspension and expulsion. That is a clear indication of the range of sanctions that a Member who has broken the rules might expect to have imposed, including the most serious sanctions.
We feel that it would be unacceptable if IPSA had the power to recommend sanctions when there was no public indication of what they might be. The public, to whom I keep referring, need to know such things. We feel that that approach best treads the path between responding to public anger and respecting the position of the House. Given my comments on those amendments, I commend clause 8 to the House.
If the Bill goes on the statute book and does not get repealed or altered soon, I think that the Minister’s speech in response to the debate will stand as an absolute monument to the way in which the Executive now treat this place. She was unable to answer any of the questions about the maintenance of our independence. The high point of the Government’s position was their telling us that their own analysis was that it was more likely than not that our independence would not be undermined as a result of the proposals in clause 8, yet she was unable to provide any coherent argument on why amendment 32 would not improve the Bill.
As the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) rightly says, let us start moving the process in a direction that provides clarity to the role of IPSA, while protecting our independence in matters that concern the internal discipline of this House and that ultimately touch on the way the House operates. That is the point where justiciability and privilege start to run together. If we could just keep that in mind, the Minister would find there was widespread consensus across the House on the changes that the Government have tried to introduce. Instead, every time we look as though we are about to approach that consensus, we get diverted into a strange, nightmarish regulatory regime that will stand us in endless discredit with the public and undermine our ability to do our job. In those circumstances, I believe that amendment 32 has real benefit, although it is just a small step in the right direction, and I wish to put it to a vote.
Let me refute what the hon. and learned Member for Beaconsfield (Mr. Grieve) said in an unusually temperate set of remarks. My hon. Friend the Deputy Leader of the House dealt carefully with each amendment. The hon. and learned Gentleman’s implication was that we have simply sat here and resisted all the amendments, but he knows very well that that is the reverse of the truth. I am not supposed to talk about this but, as the record of the notes going backwards and forwards between Ministers and the official Box will disclose, what I have sought to do with my hon. Friend is listen to the debate. On a number of occasions, I have come to the Chamber with one view, but I have changed it in the light of debate, which is the purpose of parliamentary debate. There is a legitimate argument to be had about amendment 32, but I have to tell the hon. and learned Gentleman and the Committee that the Bill is not remotely about undermining the independence of the House, something for which I have stood—
Nor is it an unintended consequence. I am ready to accept the amendment that the right hon. Member for North-West Hampshire and my hon. Friend the Member for Middlesbrough have tabled to clause 10. Furthermore, we will continue to examine it, and that will not necessarily be the end of the matter. I recognise the sensitivity of the matter of privilege but, to pick up a point made by my hon. Friend, privilege at its best is not about our privilege but about the privileges of our electors, and through that, the rights of this House. The hon. Member for Gainsborough (Mr. Leigh) is no longer in his place. [Interruption.] I am sorry, he is. I am looking at him; usually, he sits somewhere else. He spoke eloquently on the subject, but we must all understand that the term, which means many things, can also become self-serving. I think it was the hon. Member for North Essex who described it as trust.
I listen to him all the time, and I compliment him on what he said. However, there was a breach of trust by the House in the way it dealt with the expenses regime, which is why we are in this mess. Certain consequences, I am afraid, must follow. Second Reading was approved on a vote of 291:1. It was open to the House to vote the Bill down, but it decided not to do so. The measure involves a modification not of privilege as privilege but of powers previously exercised directly by the House. What we are doing, by the authority of the House, if the measure is approved—
On a point of order, Sir Alan. I wonder whether you would advise me. We are very short of time but we are now having a second Government winding-up speech on the debate. I fully appreciate the fact that the Secretary of State is loyally defending the junior Minister, but he is eating into our time. If we do not debate the Bill properly, we will be roundly accused of not doing our duty.
I am grateful to the hon. and learned Gentleman. I myself was about to suggest to the right hon. Gentleman that his speech was turning into a Second Reading speech, and was not closely germane to the amendment.
The time for the amendments is now. It is our one opportunity to make these decisions. Every Member of the House must look to their electorate and to their own conscience as to whether we wish to see our independence disappear for no good reason, when the Bill can be improved to make it workable and do what the public want and what we are required to do.
Question put, That the amendment be made.
Amendment made: 17, page 5, line 25, at end insert—
‘(2A) The Committee on Standards and Privileges may accept, modify or reject as it sees fit a recommendation under subsection (2).’.—(Sir Stuart Bell.)
Amendment made: 85, page 5, line 31, leave out ‘financial interests rules’ and insert
‘code of conduct relating to financial interests’.—(Mr. Blizzard.)
Amendments made: 20, page 5, line 38, leave out ‘Speaker’s Committee on the Independent Parliamentary Standards Authority’ and insert ‘Committee on Standards and Privileges.’.
Amendment 21, page 5, leave out line 43.—(Sir Stuart Bell.)
Clause 8, as amended, ordered to stand part of the Bill.
With this it will be convenient to discuss the following:
Amendment 47, page 6, line 23, after ‘member’, insert ‘intentionally’.
Amendment 15, page 6, line 25, at end insert—
‘(2A) A member of the House of Commons commits an offence if the member intentionally fails to comply with a requirement included in the MPs’ financial interests rules by virtue of section 5(8) (declaration of interests).’.
Amendment 100, page 6, line 25, at end insert—
‘A Member of the House of Commons commits an offence if the Member intentionally fails to comply with a requirement relating to the declaration of interests included in the MPs’ code of conduct relating to financial interests.’.
Amendment 39, page 6, line 26, leave out subsection (3).
Amendment 41, page 6, line 34, leave out subsection (5).
Amendment 42, page 6, line 36, leave out subsection (6).
Clause stand part.
We now have to consider the criminal offences that the Government think it right to create and to impose on Members of this House if they transgress. Let me first make absolutely clear something that has been said on many occasions: if Members of Parliament commit criminal offences, no privilege or any other protection should exist in respect of them. There is nothing new about that: it has been the position for hundreds of years. However, the Committee should spend a moment considering whether the offences created in clause 9 add anything to the existing criminal law and whether they will create problems that will be damaging to the way the House operates.
We have to consider three offences. First:
“A member of the House of Commons commits an offence if the member…makes a claim under the MPs’ allowances scheme, and…provides information for the purposes of the claim that the member knows to be false or misleading in a material respect.”
The penalty for that action will be:
“on conviction on indictment…imprisonment for a term not exceeding 12 months or…a fine or…both.”
I have no difficulty with that offence, but I have to say that it sends a very strange message about how we view the criminal law to create an offence specifically for ourselves, and which I assume will therefore be used on Members who transgress in this way, when there already exist in the criminal law at least two, and probably more, offences which relate to exactly the same activity and would attract maximum sentences of seven and 10 years. How can I go back to my constituents and say that the House is taking them seriously when the offence that we have created for ourselves appears to be a much lesser one than that under the general criminal law? I would have thought that the Secretary of State for Justice, with his knowledge of the criminal law, would acknowledge that it is much better that this House should be subject to exactly the same criminal law as would be visited on anybody else who behaved in this way by obtaining their allowances fraudulently.
There are already two such offences on the statute book: the offence in section 17 of the Theft Act 1968, which is about false accounting and carries a sentence of seven years; and the offence in the Fraud Act 2006, which attracts 10 years’ imprisonment. Both fulfil exactly the same criteria as the offence in clause 9(1). The Secretary of State has told me informally—I am sure he will not mind my telling the Committee—that there are differences. Well, there are some minor differences in wording, but as regards what has to be proved against the individual concerned—namely, the provision of information in the knowledge that that information is false or misleading, which implies dishonesty on the part of the person concerned—I cannot see any distinction, in terms of ease of conviction or otherwise, between the more general offences and this offence.
Does my hon. and learned Friend share my surprise at the intervention by the Secretary of State on Second Reading, when he chided me for misconstruing clause 9, which I said, on any view, imputes a test of dishonesty? He said it did not and that was one of the distinctions between it and the Fraud Act 2006. I do not think that he had in mind section 17 of the Theft Act 1968, albeit I am sure that he is a highly experienced criminal practitioner. Does my hon. and learned Friend agree that clause 9(1), if it does nothing else, at least imputes a test of dishonesty?
I agree entirely with my hon. and learned Friend. Indeed, although I know we are supposed to be in a process of general atonement for our misdeeds, if the Government had suggested to me that we ought to have a criminal offence that did not involve a test of dishonesty, I would have suggested to the Secretary of State that prison capacity would have had to be considerably expanded. It is quite clear, as I think the Secretary of State has acknowledged, that MPs can make mistakes, like everybody else. The test of dishonesty is clearly fundamental to the offence.
As we are having this debate, will the Secretary of State provide the House with some persuasive arguments as to why we should concoct a specific offence for us, identical to other offences that affect the general public, but visited with a sentence that could be one tenth of the maximum duration that someone might get elsewhere? What sort of message does that send?
The second offence in clause 9 is committed if
“without reasonable excuse, the member fails to comply with a requirement included in the MPs’ financial interests rules”.
I do not believe that either that offence or the previous one has any bearing whatever on parliamentary independence, so if the Government wish to have them, they can. In respect of the offence in clause 9(2), however, the Secretary of State needs to provide some explanation of how the reasonable excuse provisions will work in practice.
Members of Parliament have known for a long time how easy it is to fail to comply with requirements included in Members’ financial interests rules, and how that can be done innocently. I wonder whether we are using a sledgehammer to crack a nut. This is a straightforward regulatory offence that we seem in the past to have succeeded in dealing with quite satisfactorily through the sanctions imposed in this House. It is odd that, because the new offence can be visited with only a fine as its penalty, if a conviction were obtained it would not disqualify a Member from serving in this place. I simply ask whether the offence is strictly necessary.
The hon. and learned Gentleman must read clause 9 in conjunction with clause 10, one of the consequences of which is that if a Member said in a debate, as the right hon. Member for Birkenhead (Mr. Field) did openly yesterday, “I do not approve of this legislation, I do not see how it can work and I will probably be subject to an offence under it. If I am, I will not pay the fine and I will go prison,” those words could be adduced in court proceedings. Prosecuting counsel could say, “You say that this was an accidental mistake, but in fact your own words, as reported in Hansard, incriminate you.”
Yes, the right hon. Gentleman makes a good point, which features in the comments of the Speaker’s Counsel, at page 13 of the evidence that he gave to the right hon. Gentleman’s Committee, the Select Committee on Justice. I agree that that could give rise to serious difficulties. Whether it touches on the core areas of the House’s privilege is an open question, but the Secretary of State will have to answer that point.
Speaking personally, I do not feel comfortable with the offence under clause 9(2). Apart from anything else, I think it is unnecessary. I am mindful of the fact that the Secretary of State keeps telling the House that we have fallen so low in the public’s estimation that unless we make a few rods for own back and go out for some public flagellation, we will never restore their trust. I understand that point, but it is important also that we do not make fools of ourselves. If the problem that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) identifies were to come to pass, it would have a chilling effect on how MPs express themselves here.
Is not the position compounded by the fact that we effectively have no de minimis rule in relation to outside earnings? The advice that we have had in the Standards and Privileges Committee from the registrar is that if somebody makes a speech and gets a bunch of flowers, they should register it. If they do not, they are potentially in jeopardy. Is it really right that somebody should face a criminal sanction for failing to declare a bunch of flowers?
The hon. Gentleman is right. I intended to discuss that when considering the third offence, which relates to paid advocacy. As I am sure he appreciates, there is some overlap.
From my reading of the Bill and from evidence given to the Select Committee, I have absolutely no doubt that the offence of prohibited paid advocacy takes us back into the heartland of the House’s independence. It is all the more bizarre because, to include the offence in subsection (3), we must drive a small coach and horses through part of article IX of the Bill of Rights.
A bribery Bill is currently out to scrutiny. In view of the House’s current rules, I do not understand how it is possible to commit the offence in subsection (3) without committing an offence of bribery. The Government offered to consult in great detail—in fairness, they are doing that—about how a bribery charge can properly be brought against a Member of Parliament, while not removing the protection of the Bill of Rights for speeches in the House. We have indicated our intention to support that because bribery is a serious offence. What, in those circumstances, is the point of the offence in subsection (3)? If we have only one opportunity to vote, the offence in subsection (3) is perhaps the most important for us to consider. However, I fully accept that the offence for which subsection (2) provides is also important because it could also cause hon. Members difficulties.
I agree with the hon. Member for Hendon (Mr. Dismore) who said, as I did yesterday, that we cannot consider the Bill without taking into account the infamous regulations, which the House has produced for itself. We acknowledged in the regulations that the boundary between a gift and a benefit in kind is unclear. If a Member of Parliament attends a dinner given by an organisation—the views of which he supports and for which he is promoting legislation in the House—speaks at the function and does not pay for his dinner, as almost always happens when hon. Members attend such events, he will be in serious difficulty. He will find it difficult to know what to put in the register and whether, thereafter, he is engaging in paid advocacy.
It will be completely unsatisfactory if, with 20 minutes to go before we get to Report, and the Bill set to leave the House at 7 o’clock this evening, potentially never to return, we do not clear up the problems, given the sword of Damocles that the measure hangs over every hon. Member. My amendments are designed to try to tackle the problems and stimulate debate. Some are probing, but the subject needs to be examined in its entirety. I remain unconvinced.
I am sure that the Government will say, in answer to the point made by the hon. Member for Hendon (Mr. Dismore), that the prosecution has discretion and that trivial prosecutions will not be brought. However, there is a fundamental problem with that because the prosecution service is superintended by the Attorney-General—a Minister. The Government promised to remove that problem by introducing a constitutional renewal Bill, but they have so far failed to do that. We are doing things in the wrong order.
The hon. Gentleman makes an interesting point. There are systems in place for ensuring that the Attorney-General is not involved in prosecutorial decisions about Members of Parliament. After all, Members of Parliament have been prosecuted in the past for other matters. We can therefore overcome that problem.
However, while trying to be reasonable and respect the Secretary of State’s point about showing that we take public anger seriously, we have to ask what clause 9 adds to the system of punishment that might be meted out under existing law for things that we do wrong. Subsection (3) and, to a lesser extent, subsection (2)—relating to the two new offences—raise serious and complex issues about how the House goes about its business and whether we can continue to enjoy article IX protection for what we say in the Chamber.
I entirely agree with my hon. and learned Friend about clause 9. However, despite the recent furore, particularly in relation to phantom mortgages, the general public will see that not a single charge has been laid against any Member in relation to either the Theft Act 1968 or the Fraud Act 2006. They may conclude that we therefore need new offences. Will my hon. and learned Friend turn his mind to the rather terrifying prospect that the Government are quite deliberately bringing forward clause 9 in order to place Members of Parliament under a different set of values from that which should apply to the public at large?
I do not think that anything in the Bill will make prosecutions more speedy; indeed, it will make no difference. Prosecutions may arise out of the events that have taken place in the past two months. All that can take place under the existing law.
As I have said to the Secretary of State, we seem to have had a remarkable capacity in the past 10 years to increase criminality in this country by creating new laws that are duplicatory. My reading of the Government’s proposals is that although they vary in their mischief, they are, to all intents and purposes, unnecessary. However, if there is one that the Secretary of State feels particularly passionately about, and if it happens to be clause 9(1), then, although I feel slightly embarrassed about this, because I cannot for the life of me see why there should be a special regime for MPs, I do not think that it will cause any wider harm to the independence of this House. However, the other two subsections raise important issues that the House must consider.
I hesitate to disagree with my hon. and learned Friend, but clause 9 is appalling and unnecessary. Just as there is no such thing as a half-pregnant person, so clause 9 is a bad piece of drafting and it is unnecessary. We should have the courage to say so and make clear our views. I trust that the reasonable approach that my hon. and learned Friend has taken would not allow him to reach a false conclusion.
I hope that I am not reaching a false conclusion. I hope that I have highlighted, as best I can, those aspects of the proposals that, in my view, are either silly or have a sinister consequence for the House, which it must consider. Broadly speaking, I think clause 9(1) is a bit silly—that is my reaction to it—but the other two subsections are much more serious. That is a distinction that can properly be made.
Given the time, I will be as fast as I can.
First, the hon. and learned Member for Beaconsfield (Mr. Grieve) asked why we were having specific offences when—he says—someone could be charged for any of the three proposed offences under general law. There is nothing unusual about having general provisions with specific parallels for specific purposes; I have plenty of examples, including what is now section 2 of the Fraud Act 2006 and section 17 of the Theft Act 1968, which apply generally to members of the public. The Local Government and Housing Act 1989 and the Social Security Administration Act 1992—not our legislation, but the Conservatives’ legislation—have specific offences for knowingly making a false declaration. Why did the previous Conservative Administration—in my view correctly—make those offences? It is because in practice it is sometimes easier to prosecute. One can have a jurisprudential argument about the difference between “falsely”, which involves a clear level of knowledge, and “dishonestly”, but there is a difference between those offences for which, in practice, it is on the whole easier to prosecute and gain a conviction, and the wider Fraud Act and Theft Act provisions.
Just a second, if I may.
As for subsection (2), the second limb of clause 9, this House has to my almost certain knowledge—with, if not the support, then certainly the acquiescence of the Opposition—supported the insertion of provisions concerning the registration of financial interests into the Scotland Act 1998, the Government of Wales Act 1998, the Local Government Act 1972, which is a Conservative Act, and the Local Government and Housing Act 1989, as well as other provisions. As I said to the Committee earlier, what is sauce for the goose needs to be sauce for the gander. The same is true in respect of paid advocacy, with the exception that those offences are rather less onerous than those that the House has imposed on Members of other Administrations.
The hon. and learned Gentleman, who usually makes good points, made a rather poor point by saying that this clause can apply only to Members of Parliament. Well, the offences that we have imposed on the Scottish Parliament can apply only to Members of the Scottish Parliament and the ones that they imposed on local councils can apply only to local councillors. The hon. Member for Cities of London and Westminster (Mr. Field) suggested with a slight smile on his face that there was some deep dark motive behind the provision, but there is not at all.
As to the point that the hon. and learned Member for Beaconsfield made about the current code and what I accept are ambiguities in it, these offences would apply only to the new provisions, which would come into force under clause 5, and they would have to be subject to a clear decision by this House and would certainly have to be more clearly defined than the existing provisions.
I promised that I would give way to the hon. and learned Member for Beaconsfield, and I want to put a final point to him. Without putting words into anyone’s mouth and to put it delicately, the hon. and learned Gentleman seems to accept that there was a general acceptance in the all-party talks that some specific offences needed to be in the Bill. There may not have been votes on it, but there was general acceptance of that. He accepts that for each instance there should be an offence but that they should be offences at large. Clause 9(3) deals with cash for questions, which is a rather serious issue. He says that bribery could be charged, which is possible in very serious circumstances; if it is very serious, there is no particular reason why it should not be charged as an alternative offence. I have argued that it is the practice of this House, with different parties in control, to have narrower offences for specific circumstances.
On clause 10, the hon. and learned Gentleman is right to say that we have been discussing the modification of article IX of the Bill of Rights 1689, so that Members of Parliament can be prosecuted if alleged to be guilty of bribery. My proposal on clause 10 is to accept the amendment in the name of the right hon. Member for North-West Hampshire (Sir George Young), which would broadly bring into line the third limb of the clause relating to proceedings in Parliament with what has already been widely accepted across the House for the bribery provisions.
If the Secretary of State looks back at the Scotland Bill, he will find—my memory goes back that far—that I was very concerned about ensuring that the Scottish Parliament had proper sovereignty. I remember expressing concerns about the criminal offences, as I raised the question of whether they should be left to the internal regulation of that institution. That is my first point. My second is that the Fraud Act 2006 was not in existence then and it commanded widespread support in the House for simplifying the fraud law. I have here the particulars of an offence relating to the charge of fraud, which could be that a person between a day and another day dishonestly and intending to make a gain for himself failed to disclose to IPSA what he was under a legal duty to disclose—he was double-claiming an allowance. That is all one has to prove. In those circumstances, I am afraid that I simply cannot accept the Secretary of State’s contention that the new offence under subsection (1) will be easier to prove.
The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) raised a question earlier about the connection between clause 9 and clause 10 and asked whether clause 10 would impede the body created from taking appropriate action against a Member. The Clerk said no, it would not, and that was reinforced by the Speaker’s Counsel, so on what basis does the Justice Secretary take the view that they were wrong?
I do not take the view that they were wrong, but there is self-evidently a difference of emphasis on whether they are right, and we are trying to resolve that.
I am conscious of the time. [Interruption.] It is the responsibility of the Government, but I can still be conscious of it. It may be helpful, however, if I explain that we judged clause 10 to be necessary to the independent operation of IPSA. For the time being, we want the amendments tabled by the right hon. Member for North-West Hampshire in the Bill, but I am ready to sit down with Members on both sides of the House and see whether we can secure a better answer.
I am grateful to the Secretary of State, because this is a crucial point. Surely he accepts that it is not necessary to disapply the Bill of Rights in order to deal with expenses and pay, because they are not part of the proceedings of Parliament, and that because it is possible—and not necessarily difficult—to prove bribery or even paid advocacy without making use of proceedings in Parliament, the Bill of Rights need not be disapplied in that instance either.
I am very grateful to the right hon. Gentleman and his Committee for their report. As he will know, there is a serious difference on that issue between independent jurists here—the Clerk of the House and his colleagues—and senior parliamentary counsel.
Why would I want to pursue an unpopular clause unless it was felt to be necessary? [Hon. Members: “The Prime Minister told you to.”] No, no. To be blunt, it has not featured on the Prime Minister’s radar at any stage. [Hon. Members: “Oh!”] The Bill has, but—I draw a veil over the operation of the Prime Minister, but the idea that he has been worrying about clause 10 of this Bill when he has me to worry about it is nonsensical.