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House of Commons Hansard
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Constitutional Reform and Governance Bill
02 March 2010
Volume 506

Consideration of Bill, as amended in the Committee

[Relevant documents: Report of the Joint Committee on the Draft Constitutional Renewal Bill, Session 2007-08, HC 551-I and -II, and the Government response, Cm 7690. Tenth Report from the Public Administration Select Committee, Session 2007-08, on Constitutional Renewal: Draft Bill and White Paper, HC 499, and the Government response, Cm 7688. Fourth Report from the Joint Committee on Human Rights, Session 2009-10, on Legislative Scrutiny: Constitutional Reform and Governance Bill; Video Recordings Bill, HC 249. The Scottish Parliament has passed a Legislative Consent Resolution in respect of this Bill. Copies of the Resolution are available in the Vote Office.]

New Clause 22

Transfer of records to Public Record Office

‘(1) In section 3 of the Public Records Act 1958 (selection and preservation of public records)—

(a) in subsection (4) (transfer to Public Record Office or to other appointed place of deposit of public records selected for permanent preservation), for “thirty years” substitute “20 years”, and

(b) after that subsection insert—

“(4A) Until the end of the period of 10 years beginning with the commencement of section [Transfer of records to Public Record Office] of the Constitutional Reform and Governance Act 2010, subsection (4) has effect subject to any order made under subsection (2) of that section.”

(2) The Lord Chancellor may by order make transitional, transitory or saving provision in connection with the coming into force of subsection (1)(a).

(3) An order under subsection (2) may in particular—

(a) provide for the time within which any records are to be transferred to the Public Record Office or other place of deposit referred to in section 3(4) of the Public Records Act 1958, and

(b) make different provision in relation to records of different descriptions.

(4) An order under this section is to be made by statutory instrument.

(5) A statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.’.—(Mr. Straw.)

Brought up, and read the First time.

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I beg to move, That the clause be read a Second time.

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With this it will be convenient to discuss the following: Government new clause 23—Freedom of information.

Government new schedule 1—Amendments of Freedom of Information Act 2000.

Government amendment 47.

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These provisions give effect to the Government’s response to the Dacre review of the 30-year rule. The House will recall that, in October 2007, my right hon. Friend the Prime Minister announced an independent review of the 30-year rule, which generally requires that all national records be released into the public domain after a 30-year period, save where there are special exemptions. The review was chaired by Paul Dacre, a distinguished journalist and the editor-in-chief of the Daily Mail group of newspapers, who worked with Professor Sir David Cannadine, a distinguished historian, and Sir Joseph Pilling, a distinguished public servant. I am grateful for the care and interest that they took in conducting their review. I dare say that it is to be expected of a review written by a senior journalist and an eminent historian, but, in addition to containing good recommendations, it is a very interesting and informative read. I commend it to the House, which I would not for every review conducted on behalf of the Government. This one is deeply informative.

We have considered the review’s recommendations carefully. On 10 June, my right hon. Friend the Prime Minister announced to the House the Government’s intention to move to a 20-year rule. The Dacre review debated whether we should move to a 20-year rule or a 15-year rule and, on balance, it came down in favour of a 15-year rule. We considered the matter in some detail and my right hon. Friend the Prime Minister announced our intention to move to a 20-year rule. There was a subsequent period for further consultation, and last week, we published our response to the review in full. That is now before the House.

The key proposals are to reduce the 30-year rule to 20 years, to amend the Freedom of Information Act 2000 and to reduce the time frame within which certain exemptions can apply to the 20-year period. New clause 22 will implement those proposals and it will amend the Public Records Act 1958. Those proposals will thus provide earlier access by 10 years to a wide range of material, and it is the next step towards greater transparency—a process that began under this Government with the passage of the Freedom of Information Act 2000.

Such a move involves careful preparation. It is often assumed that officials simply put the records on the shelves and open them. As I know, not least from my time in the Foreign Office, a huge effort is put in by historians and archivists to go through all the records carefully to ensure that all that can be made publicly available are made publicly available, while also ensuring that some are held back in conformity with public records legislation. The same is true of every other Government Department.

Because the proposal involves a big change, the Dacre review recommended a transitional period and essentially proposed that until we reach the target time of 20 years, in the intervening period two years’ records should be released every year to get down from the 30-year limit to the 20-year limit. The new clause makes provision for the transitional period to be brought in by order, because exactly when that new time limit is introduced will need to be considered by Government in the next Parliament.

Dacre also recognised—as does everyone else and as did the House when we discussed the freedom of information legislation—that there must be a balance between increased transparency and protecting sensitive and personal information. That is a fact of life. The introduction of the Data Protection Act 1998 preceded the Freedom of Information Act 2000 by a couple of years, and one thing I believe I got right about the Freedom of Information Act 2000 was requiring a single commissioner for both data protection, which is about protecting information, and for freedom of information, which is about its release. Some other Administrations have two commissioners for those two purposes, which can cause immense problems. This represents one area where a balance must be drawn. In circumstances going beyond the protection of personal information, everyone accepts that there may be arguments for protecting the information for longer than the minimum period. Bearing that in mind, schedule 1 maintains the time limit for certain exemptions at 30 years.

The first exemption relates to the protection of commercial interests. Some contracts, particularly those relating to large-scale infrastructure projects and procurement, can run for more than 20 years and may contain commercially sensitive information beyond that point.

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I appreciate that this is a sensitive area and I welcome the acceptance of 20 years as a general proposition. It is difficult, however, to see why commercial enterprises should have the retained 30-year holdback, in particular in the case of local authorities. What possible contract could a local authority enter into that would need protection for 30 years? If the right hon. Gentleman could build on what he started to say about commercial interests, particularly as affecting local authorities, it would be helpful. Is this intended to protect defence establishments or the nuclear industry; what is the purpose behind this 30-year retention of information?

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I have cited large-scale infrastructure projects and procurement. I cannot immediately think of any local authority projects of such a scale or duration, but that is only because no such projects are within my experience. I am sure that some exist, and it may well be the case—although I am afraid I am not informed on the matter—that some of the contracts entered into by local authorities of all political persuasions for the longer-term provision of, for example, back-office services last for more than 20 years. I do not feel that whether commercially sensitive information should be protected while the contract lasts should be simply a matter of chance, but that does not prevent proper scrutiny of the arrangements by, for instance, auditors—perhaps by the Audit Service.

I have just been provided with further and better particulars. I am happy to say that I knew this bit already and was going to mention it, but I am deeply grateful none the less.

My constituency contains a large new hospital which is under a PFI contract which will run for more than 20 years, and I believe that the same applies to some of the new prison contracts. [Interruption.] An hon. Member asks, from a sedentary position, “Why should we not know about them?” This is a qualified exemption. That is what it says here, and what I was going to say in any event.

A balancing test will still be required. We are not talking about an absolute exemption from day one until the end of the period. What we are discussing is whether there should come a moment when the information is automatically released. I think it reasonable for parties to such contracts, if they are still in force, to be able to argue that their commercial interests—the interests of the public authority on one side and those of the commercial organisation on the other—may be adversely affected if the information is released into the public domain. It would be a matter for the Information Commissioner, and then the Information Tribunal, to make the final judgment. I think that that is a reasonable balance.

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What I do not follow is why the argument finished with 30 years. If it is purely about commercial interests, we should bear in mind that it is perfectly possible for contracts to last for longer than that.

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Whether or not that is the case—and I accept that there are some areas involving defence, for instance, in which exemptions may continue—there has not been a problem so far, and the Government have not sought in any way to use the Dacre review to restrict access via freedom of information requests rather than to make it easier.

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Given the extension of freedom of information opportunities, does the Secretary of State believe that there is any special merit in parliamentary questions any more? Might some information be made available to Parliament that is not made available in response to an FOI request, or is this part of a process whereby Members of Parliament will become just like members of the public, and submit FOI requests instead of parliamentary questions?

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That is a very important point. I have to deal with both parliamentary questions and requests for information under the Freedom of Information Act, and my answer to the right hon. Gentleman is that there is every purpose in parliamentary questions. They have to be answered by a Minister, and they have to be answered very quickly. Occasionally there are delays, but—the right hon. Gentleman will remember this from his time as a Minister—a large part of my box and those of my ministerial colleagues every night relates to answering parliamentary questions. I have a daily diet of questions from, for instance, the hon. and learned Member for Beaconsfield (Mr. Grieve) and his colleagues. I do not complain about that in the least—it is his job. I do my best to ensure that the questions are answered. Normally, the reason for the delay is that I do not think that we are providing full information, not the reverse.

Occasionally, hon. Members put in an FOI request if they feel that they are being blocked by a Minister. In my experience—obviously I cannot speak directly for other colleagues—that happens only when there is a really strong case in the public interest for not making the information available. In that case, there is of course an opportunity to appeal to the Information Commissioner.

I would not recommend making routine FOI requests because they take much longer to process. There is no requirement to answer such a request in a couple of days, as there is to answer a question tabled to the Secretary of State under our Rolls-Royce system. Such a FOI request goes to someone, inevitably at a lower level, and there is a maximum time of 20 working days, a month, to provide the requested information. Sometimes that limit is exceeded; it can take a lot longer. I accept, however, that FOI has opened up the ability to question Government. In the old days, which the right hon. Gentleman will remember, when I was working as an adviser, Ministers could simply block questions—they would put a block on any further answers. Nothing could be done about that in that alleged golden age. That time has gone. I have had to say once or twice to officials, “There’s no point trying to block this, otherwise we will get an FOI request.” My approach has just been to answer the question, and life has gone on. I hope that that is helpful.

I need to make some progress because other colleagues wish to speak. Information affecting relations between the United Kingdom Government and the devolved Administrations may also be sensitive for a longer period, and it is right that that should remain protected beyond the 20-year point, where it is in the public interest to do so.

A related point is that we want to continue to protect information that would be prejudicial to the work of the Executive Committee of Northern Ireland, or which would otherwise prejudice the effective conduct of public affairs in Northern Ireland. I refer to one of the most extraordinary things that has happened in my 31 years in this House. I came here a month after Airey Neave was murdered on the ramp up from the car park. Like many hon. Members, I remember the terrible terrorist outrages that took place in the 1980s and early 1990s. Indeed I was caught up in one in the 1970s. Then, dramatically, following painstaking work, originally by Sir John Major and his Government, including the right hon. and learned Member for Devizes (Mr. Ancram), and under Tony Blair, huge progress has been made. Northern Ireland is completely different now. That could not have taken place—I am glad to see the right hon. Member for North Antrim (Rev. Ian Paisley) in his place—without great statesmanship by both sides of the confessional divide in Northern Ireland and without the possibility of secret, entirely private negotiations. It is important that there should be a record of those. It is also important that they should not be released for a long time.

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I note that my right hon. Friend has referred to the provisions in new schedule 1 that refer directly to Northern Ireland. From whom did the Government seek clearance or agreement for those extended exemptions? If it was just the Northern Ireland Executive, whose affairs are already safeguarded from freedom of information and other things anyway, why do the provisions of the new schedule extend to the Northern Ireland Assembly, Northern Ireland Departments and any Northern Ireland public authority?

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I did not seek clearance directly from any of the bodies in Northern Ireland. I took the advice of my right hon. Friend the Secretary of State for Northern Ireland. His advice is and has been very careful on this. I will seek to get more information on the matter that my hon. Friend raises when I come to my winding-up speech, if that is helpful.

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Just to clarify, I fully accept what my right hon. Friend has said about the contribution of the right hon. Member for North Antrim (Rev. Ian Paisley) in latter years, but some of us were deeply involved in putting agreements in place that were about ensuring that we had accountable, transparent Government. Transparency is as important as equality and inclusion in ensuring that public confidence is maintained and sustained in future. People will be deeply suspicious about a change such as this. No one in Northern Ireland appears to have been consulted about it. It appears to have been made completely on the whim and the wheeze of the Secretary of State for Northern Ireland.

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I will come back to that in more detail in my closing remarks.

I now come to the proposals we have made in respect of the monarchy.

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First, may I ask about the records of the honours scrutiny committee? I understand that no records have been destroyed but that civil servants are looking at the criteria for selecting those that will be preserved in the National Archives. In a briefing that I have received from the Campaign for Freedom of Information, I am told that the honours exemption would continue for 60 years. Are the Government telling the House that that is indeed the case; that our successors will have to wait a couple of generations before they can find out what the honours scrutiny committee has said about certain individuals?

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When we were discussing freedom of information between 1998 and 2000, it was agreed that records relating to honours should be subject to a clear exemption, for reasons I think everybody understands. I do not recall Paul Dacre making any suggestions to the contrary, so there is nothing in these proposals that changes that either way.

The provisions relating to the monarchy were presaged in the Government’s response, which was published at the end of last week. We are blessed in this country by a constitutional monarchy of the highest standards. Whatever turmoil there might have been in our body politic, above it all, and held in continuing high respect, is the position of the sovereign. There were lacunae—I confess that I am the Minister responsible—not in the intention of the Freedom of Information Act, but in its drafting that have raised some uncertainties about the protection of the monarchy in relation to national records. Everybody acknowledges that there is a profound difference between those who hold public office because they are volunteers and those who are members of the royal family, particularly the senior members—the sovereign and the heirs to the throne—who, by definition, serve for a lifetime. It seems to me entirely reasonable—I say this notwithstanding the fact that I am a Minister who has served for a longer period than many—for us to bring the 30-year rule down to 20. But it is of great importance that we protect the political impartiality of the monarchy, the sovereign’s right and duty to counsel, to encourage and to warn the Government and the right of the heir to the throne to be instructed on the business of government in preparation for the time when they assume the monarchy. These rely on well established and respected conventions of confidentiality.

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I am not sure whether it is an enigma or not, but the Secretary of State was correct in saying that the institution is held in great esteem because it is non-controversial and does not enter into the public debate. Some members of the royal family, however, are passionate members of society who lobby for objectives. That is where there is a delicacy in this matter. We must maintain clarity in our constitutional arrangements, and it is an essential key to the stability of the whole institution of the monarchy that the sovereign and their successors do not enter into controversy.

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I appreciate the point the hon. Gentleman makes. If he examines the proposals in new schedule 1, however, he will see that a distinction is drawn. An absolute exemption is proposed for the monarch, the heir to the throne and the second in line, and a qualified exemption is proposed for other members of the royal family.

It became clear that there were lacunae in the drafting of the Freedom of Information Act—although that was never an issue when it was passing through Parliament as a Bill 10 years ago—in that it does not properly acknowledge the fundamental public interest in maintaining the confidentiality surrounding the conventions, and in that that does not apply to historical records, despite the fact that the sovereign remains in office for life. Therefore, the proposal is for an absolute exemption for information relating to communications with the sovereign, the heir and the second in line, and for those acting on their behalf, of a period of 20 years, or their lifetime plus five years, whichever is longer.

To pick up on the point of the hon. Member for Aldridge-Brownhills (Mr. Shepherd), in recognition of the fact that the constitutional position of other members of the royal family will vary, we are proposing that there should also be a qualified exemption: decisions on whether information relating to them should be released would come after consideration of the public interest test. Their exemption would no longer expire at 30 years; instead it would expire at 20 years, or five years after the lifetime of the relevant member of the royal family, whichever is the later.

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I might be mistaken, but it seems to me that paragraph 3 of new schedule 1 affects not only national records, but the application of the Freedom of Information Act to royal communications by removing any possibility of the use of the public interest test from any such communication. Am I right in thinking that that is the effect?

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As I have said, that paragraph provides an absolute exemption in respect of records relating to the monarch and the next two in line and also for a qualified exemption of 20 years or for five years after the death of the monarch, whichever is later. The hon. Gentleman is correct in that respect.

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In the unlikely event that we had a monarch who was seeking to subvert the constitution, would it not be in the public interest for us to know about that?

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Of course it would, but if the monarch were seeking to subvert the constitution, we would know about that, because it would become rather obvious, and then, of course, it would be perfectly possible for this House to bring in all sorts of emergency legislation, including an Act of Attainder. A trial could be held down in Westminster Hall, and the usual arrangements made for punishment. I do not think for a second that the Freedom of Information Act or this exemption would prevent my hon. Friend and others from knowing about such an act of subversion.

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But there would be a public interest in disclosure if the heir to the throne, or the second in line, were to intervene and change public policy quite significantly. Surely we should know about that.

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There is a balance to be struck. My view is that the right balance is encapsulated by the provisions that we make. I seriously say to my hon. Friend that there is no way that members of the royal family can change public policy. They may have opinions, and they are entitled to those—why would they not be? The royal family do a remarkable job in how they comport themselves in this country. As he will know, the work that Prince Charles has done in better educating the public about, and ensuring that they are better informed about, one of the world’s wonderful religions, Islam, is remarkable. Some people might regard that as slightly partisan, but I do not; I think that it is entirely appropriate for him to do that. However, he is not making public policy on that matter; public policy is ultimately decided by this place.

I have spoken at slightly greater length than I had anticipated, but I hope that these provisions commend themselves to the House, because they represent a significant further advance on ensuring that there is genuine freedom of information in this country.

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These provisions commend themselves to Conservative Members, and I greatly welcome the fact that the Government have tabled them to implement the proposals in the Dacre report. I join the Secretary of State in thanking those who contributed to putting together the report.

I, too, do not wish to take up too much of the House’s time, because the answers given by the Secretary of State on the exemptions in new schedule 1 appear to make eminent sense and there is no point in my repeating the arguments that he put forward. I seek slightly greater clarification on only one matter. I understand that the original proposals in the Dacre report were that we should move from 30 to 20 years and, secondly, that there should be a formula to cover the period that will fall over 10 years to address the differences between the 20 and 30-year periods. In new clause 22, the Government have, perfectly reasonably, not sought to spell that out in primary legislation, but have chosen to give the Lord Chancellor and the Secretary of State discretion on how that is best implemented by statutory instrument.

If my understanding of the new clause is correct, it would therefore be open to the Government, when dealing with the matter at a later date, to go less far than the Dacre report proposes, or to identify some categories for disclosure and some for which disclosure might not happen. Alternatively, they could decide to go further and faster. I should be grateful if the Secretary of State could clarify that point so that the House may understand exactly what it is implementing. However, I appreciate that any order made by the Lord Chancellor would require a statutory instrument and would be

“subject to annulment in pursuance of a resolution of either House of Parliament.”

It is important that that point is appreciated because it might offer us an opportunity to speed up the process.

It has always been recognised in the Dacre report, however—and indeed by the Government—that past assurances about the length of time for which material will be retained rather than put in the public domain represent a factor that must to be taken into account when deciding whether that process should be accelerated. When something concerns an individual who is very much alive, and who can therefore be consulted, their view may carry considerable weight when considering whether particular categories of material ought to be disclosed.

That is the only point on which I hope that the Secretary of State might be able to respond. Subject to that, and because I am mindful of the time available for debate, I simply wish to reiterate my welcome and say how grateful I am that we have taken the opportunity—at one stage I thought that we were not going to get it—to have the provisions implemented in this Bill and before the forthcoming general election.

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One of my right hon. Friend the Secretary of State’s many enduring legacies is the introduction of the Freedom of Information Act, and it is appropriate that he is introducing an improvement to that measure in the last days of this Parliament.

First, let me quickly welcome the dog that did not bark: the proposal to exempt Cabinet materials, which was the original intention. I understand that the Prime Minister made a most welcome intervention to ensure that that did not happen. I can understand the temptation for wanting to do it, however. I remember, many years ago, visiting Australia to look at freedom of information when we were contemplating it here. I remember, as might my hon. Friend the Member for Pendle (Mr. Prentice)—we have been together for a long time—that we stood outside the Cabinet room, where we were shown a trolley loaded with papers. People explained that they pushed that trolley into the Cabinet room so that the papers became, ipso facto, Cabinet papers, therefore giving them a blanket exemption. They thought that that was a cunning wheeze, and I can quite see that there would be huge attractions in trying a similar wheeze here. I am glad that even though that idea was flirted with, it was resisted, and we should welcome that.

I never thought I would say that I wanted to praise the editor of the Daily Mail, but putting him in charge of the review of the arrangements in this area now looks to have been an inspired decision. I am glad that we are now seeing, more or less, the implementation of what that Committee recommended and that the period is being brought down to 20 years.

I want to say something about the royal family exemption, however. I know that my right hon. Friend the Secretary of State told me that all such things were inconceivable when I raised the question of what would happen if a royal did something or other but, of course, there is a history to all this. Monarchs in the past have not behaved themselves terribly well in terms of the constitutional relationship. People did not know about it at the time, but they jolly well ought to have done. Just before the 1880 election, Queen Victoria wrote in a memorandum:

“If the Liberals…intend to lean to the extreme Radicals, they can never expect any support from the Queen…These are dangerous times and any attempt to make our Institutions Democratic will be most disastrous”.

I think that people would have been entitled to know that that was coming out of the palace. In 1906, when the Labour party did rather well in the election, people were entitled to have known that the Prince of Wales, who later became King George V, wrote:

“I see that a great number of Labour members have been returned which is a rather a dangerous sign, but I hope they are not all socialists.”

People are entitled to know such things.

As it happens, I am quite an admirer of Prince Charles. He seems to be doing an interesting job—that is, an impossible job with interest—and I find myself in agreement with him on many things. If I were in his position, I would write similarly vigorous letters to Government Ministers about issues of the day. The question is whether such communications—after all, the amendment that we are being asked to consider is, in a sense, the Prince Charles amendment—should remain non-disclosable in perpetuity, which is to say until five years after his death. Given the splendid longevity of members of the royal family, that would be a long time away. As he is someone of robust opinions who tries to persuade Government Ministers to see the world from his point of view, it is not fanciful to suggest that a Government Minister might decide to see things from the point of view of the person writing from the palace.

Let us consider homeopathy, which most sensible people think is not entirely supported by evidence. Suppose that Prince Charles, the heir to the throne, were to weigh in to the debate, giving heavy support to the idea that resources should be devoted to homeopathy. If a Government then decided to start allocating resources to homeopathy, people would be entitled to know that that act of lobbying had been extremely successful. We would want to know about it if it had come from any other source.

We have an obligation both to respect the privacy of such communications at the time and to make sensible judgments about when they can properly be released so that people can see what has happened. What I do not understand is what has been the urgency of making changes in this area. I ask my right hon. Friend to address that point when he responds to the debate, because my understanding is that there is no difficulty and that the current exemption has been upheld whenever it has been tested by the Information Commissioner. I think that my right hon. Friend has to make the case for giving away a public interest test virtually in perpetuity, and I ask him simply whether representations on this issue have come entirely from him, or whether they have come from the royal family itself. With those comments, I extend a welcome to the measures.

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I, too, welcome the progress that the new clauses and schedules represent, although I resent slightly the fact that they were introduced so late in the day and that we are taking up time on Report with yet more new Government proposals. It seems to me that the degree of scrutiny that they will get is inadequate. It is now very unlikely that the Bill will get much further than Second Reading in the other place, so the Bill will go straight into wash-up—and who knows what will come out of the other end of that? Certainly, there is no public debate. I fear that that was perhaps part of the intention behind bringing forward at this stage the part to which the hon. Member for Cannock Chase (Dr. Wright) has referred. That said, I welcome the fact that progress is being made.

I would like the Secretary of State to say a little more about the decisions that the Government have taken in response to the Dacre review. In his opening remarks, he rather skated over the question of whether there should be a 20-year period, rather than a 15-year period, and gave the impression that although it is perfectly natural for people to suggest a 15-year period, a 20-year period would be far better. The Government seem to be arguing that one reason why Ministers believe that the period should be 20 years is that it would be much less of a distraction to them in their current jobs than if they thought that their deliberations would be revealed in 15 years’ time. I wonder whether there is any evidence for that.

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I can answer that point directly. The review team said that

“neither the case for 15 years nor the case for 20 years is beyond argument. It must be a matter of judgement how to strike the balance”.

I do not say that there is direct evidence because we are making judgments about the future, but our judgment was that the balance would be best struck at 20 years. Hon. Members should bear in mind that, with the Freedom of Information Act 2000, most records are not closed even within the current envelope of 30 years—soon to be 20 years, I hope. Records can be requested even after a couple of years. However, that decision was a matter of judgment.

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I thank the Secretary of State for that response, but surely there should be some evidence about how long ministerial careers last. Perhaps this point can be applied directly to him. His ministerial career started in 1997, so, under the 15-year rule, he would start to be affected by the greater openness in just a few years’ time, which might or might not be just after he has left office. In contrast, he would be affected in seven years’ time under the 20-year rule. Would he feel distracted from the exercise of his present office by the prospect that he might have to be open about 1997 in a couple of years’ time, as opposed to seven years? Given the robustness with which he approaches his job, that seems unlikely. I therefore voice some scepticism about the way the figure has drifted upwards.

The second point about which I want to express some scepticism has been raised already in the debate, and has to do with the commercial enterprise exception. I think that a policy decision has been made that has not been acknowledged openly. When commercial organisations or enterprises sign very long-term contracts with public authorities for the provision of public services, they are often very nervous about openness. That is one of the problems: openness is a disincentive for operating the public service in that way.

A further problem—and when I was the leader of a council, I used to think that it was really serious—is that that sort of arrangement has the capacity to freeze public policy in one direction for a very long time. The idea that it is at all legitimate for any political authority, whether it be the Government or a local authority, to enter into contracts that last a generation is, I think, problematical. Simply on policy grounds, therefore, I would prefer there to be a disincentive against awarding very long-term contracts of that sort. I can see why commercial interests might be nervous, but I am glad that they are.

My third point echoes what the hon. Member for Cannock Chase said. This group of amendments contains one piece of good news, if only in the sense of the dog that did not bark. The Cabinet papers exemption was mooted at an earlier stage, and it is very good news that it does not appear in the Government’s final proposals. However, I want to add one point to what the hon. Gentleman said, and it is that the ministerial veto is still in place.

That veto was used in connection with the Iraq Cabinet minutes, for example, and again in the case of the Cabinet Committee considering devolution, but I believe that a dangerous drift is taking place. When the veto was used for the first time, the Secretary of State came directly to the House and justified what was going on in an oral statement. He was therefore subject to the accountability of the House, even though everyone said at the time that the case was highly unusual and not a matter of routine.

However, in respect of the second case—the one involving the Cabinet Committee and devolution—the Secretary of State made a written statement. He did not come to the House, and I think that we are drifting towards routine objections—[Interruption.] The Secretary of State makes a gesture to show that I have mentioned only two cases. It is true that this is a curve with two points, but where is the trend going? That is the question.

I object to the whole idea of a ministerial exemption, as it is a violation of the separation of powers. However, I would be much more comfortable with the present situation if the Government were to say that, whenever the exemption is used, Ministers at the very least will have to come to the House and justify it orally. They must not be allowed to leave that to a written statement.

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The legislation has been in force for five years, and the section 53 veto power has been exercised only twice. In that five years, the commission or the tribunal has made scores and scores of decisions that could have been subject to veto. The fact that they have not been shows that the exemption has been used only very rarely.

However, the hon. Gentleman mentioned the statement that I made about the Iraq Cabinet minutes. I am always up for making oral statements, but it is a matter of balance. In that case, the House was properly informed about the matter, and I do not think that anyone made a request for an urgent question. I would also point out to the hon. Gentleman—he may not accept this—that the section 53 veto power is as fundamental to the architecture of the Act as all the other provisions. The truth is that the Act would not have gone through, and no Government would have put their name to it without the full works of the architecture, and one limb depends on another.

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On the substance, the Secretary of State and I simply disagree about whether the exemption is fundamental. I do not think that it is. He might be right that it was causative—it helped to get the Bill through the House—but I do not think that it is very important in a proper system of freedom of information, in which the ultimate arbiters should be the courts, not the Government making decisions in cases in which they are one of the parties.

May I correct the Secretary of State? There are several requests for urgent questions in the normal course of events, but those requests are not always granted. There is a problem, because whenever the question of Cabinet minutes arises, the Government react automatically in thinking that the exemption should be used. I do not want that to be the case, because that aspect of the law is still within the general jurisdiction of the commissioner and the public interest test. I do not think that it should be changed simply as a result of the Government’s repetitive decision.

Finally, I do not want to add very much to what the hon. Member for Cannock Chase said about the royal papers, but I think that he is right. The problem is not to do with the sovereign at all, but with other members of the royal family. The question is whether a complete exemption from the public interest test—there is no balancing; it is an absolute exemption—should apply beyond the sovereign herself. The hon. Gentleman is quite right to make the point that if lobbying is taking place by anyone—by any citizen—that is something that the public should know about at some point.

The House should also bear carefully in mind the point made by the hon. Member for Aldridge-Brownhills (Mr. Shepherd). The constitution is a delicate balance: the monarchy exists in that balance, because it is politically neutral. That neutrality should not just be an apparent neutrality engineered by legal exemptions but a real neutrality. The possibility of the Freedom of Information Act being brought into play in some cases is an important incentive in making sure that that neutrality is real and not just apparent. Those are my queries and concerns, but the overall policy thrust is moving in the right direction—I just wish that it would move further and faster.

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Like other hon. Members, I welcome new clause 22, which includes provisions to reduce the 30-year limit and so on. However, I am concerned, as I said in an intervention on my right hon. Friend the Justice Secretary, about new schedule 1, particularly the provisions affecting Northern Ireland. I should like to explain my reservations.

Paragraph 5(4) of new schedule 1, would add several new subsections to section 63 of the Freedom of Information Act 2000. It states, for example, that

“information contained in a historical record cannot be exempt information by virtue of section 36 except”—

and this is one instance—

“in a case falling within subsection (2)(c) of that section where the prejudice or likely prejudice relates to the effective conduct of public affairs in Northern Ireland.”

Similarly, proposed new subsection 2B says that compliance applies

“except where the effect…falls within subsection (2)(c) of that section and relates to the effective conduct of public affairs in Northern Ireland.”

My right hon. Friend suggested that the purpose was to protect the business of the Northern Ireland Executive. The business of that Executive, or the conduct of their business, is not referred to specifically, but there is a wide descriptor of the likely prejudicing of the conduct of public affairs in Northern Ireland. Many people will be concerned that if the measure is used in relation to historical information in general, and is not specifically linked to the conduct of the Executive or anything else, it could be used to impede requests for information that may well be relevant, particularly in investigations of how Northern Ireland deals with the past on the basis of the Eames-Bradley and any other proposals. Measures could be taken to prevent the release of information that might simply be embarrassing to Ministers or to people involved in the political process as it is now in Northern Ireland, because it might reveal or expose some of their previous involvement in untoward and less constitutional activities. Many people will be deeply concerned that that language can be used to provide a sweeping exemption and protection in relation to historical information that it might be valid to seek.

I hope that the House will not inadvertently be lured into allowing such a sweeping exemption on the grounds that the provision is designed purely to protect the conduct of the business of the Northern Ireland Executive. The measure appears to go much wider than that, and at no point is the Northern Ireland Executive specifically mentioned in the new schedule. I hope that that is something that my right hon. Friend can address.

Some of us have experience of trying to use freedom of information requests to find out what was, or was not, agreed or understood in relation to possible side deals. It was in the public interest to know whether there were side deals and hidden understandings, because many people had objections and suspicions at different stages of the Northern Ireland peace process. In the past—as a party, we have always pushed the process forward, trying to reach agreement and upholding the institutions that were agreed and ratified—our requests were refused on the grounds that they dealt with sensitive political matters. That was simply not credible, and it was fairly insulting, so I would not wish to give further licence to the notion that a British Minister could tell me that I did not have the right to receive clear information about the conduct of political affairs in the devolved realm as it applied to me as an elected representative in that devolved realm, because they had done some other deal with someone else and were too embarrassed to allow that side deal to emerge. I hope that my right hon. Friend recognises that sustaining our institutions in Northern Ireland and taking them forward requires transparency as much as secrecy and the protection of any sort of covert political deals.

I urge my right hon. Friend, too, to address paragraph 6 of the schedule, which would insert into the Freedom of Information Act new section 80A, relating to information held by Northern Ireland bodies. It states that the new section applies to information held by

“the Northern Ireland Assembly…a Northern Ireland department, or…a Northern Ireland public authority.”

It goes on to make it clear that we are talking not about 20 years but 30 years, and it lists other exemptions and outs. If that is for the purposes of protecting the business of the Northern Ireland Executive, why are there references to the Northern Ireland Assembly, Northern Ireland Departments and Northern Ireland public authorities? Was the Assembly consulted on the reference to it? Section 36 of the 2000 Act says that the Speaker of the Assembly is the relevant officer, so were he and the Northern Ireland Assembly Commission consulted? If not, what right does the House have to proceed with this, if there has been no approval, agreement or assent?

Similarly, were the Northern Ireland Executive or the Office of the First Minister and Deputy First Minister consulted on the provision for Northern Ireland Departments and public authorities, or is it based purely on the surmise and advice of the Secretary of State for Northern Ireland? The Government rightly chose to exempt Cabinet papers not for 30 years, but only for 20, and it would be bizarre if all the affairs of Northern Ireland Departments, public authorities and the Assembly—meaning the information that the Speaker holds—were to be exempt for 30 years. There is no credible reason why they should be, and the public and, I am quite sure, the press in Northern Ireland would be deeply suspicious of that. They would certainly be very suspicious if the provision, having been microwaved out of wherever, passed through this Parliament without any of us from Northern Ireland speaking up to question it.

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I wholly concur with everything that has been said in support of relaxing or expanding freedom of information. Through questions, I have raised my main concerns with this aspect of the Bill, but I shall return to the commercial interests question, which worries me quite deeply.

I remember that, in the early days of our pre-legislative scrutiny of the Freedom of Information Bill under the chairmanship of Rhodri Morgan, we had an interview with commercial interests. One was Tarmac, and we asked its representatives, “Why do we need to exempt you? Why shouldn’t your business, where it affects public authorities and so on, be a matter of revelation?” They agreed wholeheartedly with us and wanted to know why rivals secured a contract with a public authority, for instance. That was the commercial engine for their interest in the matter, but if we citizens, taxpayers, Governments and local authorities stand back, do we not find that we have the same objective in wanting to achieve best value for money, for instance? The competitive details—the commercial interest, as it is called—should be a more open book. In some states of the United States, all tendering is open and all contracts are open. They say, “Here’s the deal. Who can match it? Who can do better?” Within the process, however, there are obviously other checks and balances on the stability and solidity of the company that provides the services.

The provision before us is an extraordinary exemption. Everywhere else we are bringing the period down to 20 years, but this proposal is for 30 years. Public authority contracts have turned sour in recent years, but that point is not confined to this Government; it predates them and goes back into our history. We are discussing long-term contracts, so I wonder whether the exemption is for national security reasons. Defence installations, nuclear power stations and so on touch on our national security interests if only in respect of our containing them, fighting for them or protecting them from terrorism. But, in truth, on the issue of 30 years’ exemption for a contract that a local authority has entered into, ought we not to know whether it is a good contract? How do we evaluate it, and by what do we compare it?

I should have thought that it was in the interests of the Government, House and public authorities to be much more open and frank about these matters, so I wonder why there is always resistance—from Whitehall, in large measure—to such openness, publication or accessibility in respect of what is behind the contracts. I cannot see in what way such a blanket restriction—there is no calibration, remember—assists the public interest, which includes best value, openness and all the criteria that inform, or are meant to inform, the freedom of information legislation.

I know that we want to get through these provisions rapidly, but the Justice Secretary’s comments on them were, of necessity, brief: we are under a guillotine, after all. Nevertheless, there is no opportunity to tease out the issue. My proposition to the House is that the evidence suggests a provision that is contrary to the Government’s proposal, so I shall not wave it through as a good measure. At the heart of that contention lies some of the answers to the public procurement and long-term contracts that central and local authorities enter into, and that is the point that I wanted to make.

The proposal should be revisited. I know that the Bill is not going anywhere, but I should hope that in the Lords, at least, a beadier eye will be cast over whether the provision is necessary and in the public interest.

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The hon. and learned Member for Beaconsfield (Mr. Grieve) asked whether the time scale could be compressed or extended, or apply at different speeds to different bodies. In principle, we aim to ensure that the process applies evenly to all bodies over a 10-year period. For example, if we had the order ready and it came into force for 2011, in 2011 the records for two years rather than one—1981 and 1982—would be released; in 2012, the records for 1983 and 1984 would be released; and so on until we got to 2020, when the records for 1999 and 2000 would be released. After that, the transition would be complete.

However, the power to make the order is flexible, as the hon. and learned Gentleman spotted, so it would be possible to include different time scales for different bodies, and to extend or compress them. I suspect that that is not the intention generally, but there may be some bodies whereby for particular reasons it is not practicable to do all that work at the same time. I hope that that answers his question.

The hon. and learned Gentleman was good enough to commend the Government for introducing this legislation. He said that he had doubted whether it would be possible, and I, too, doubted whether it would be possible. I am therefore deeply grateful to the Minister of State, my right hon. Friend the Member for North Swindon (Mr. Wills) for assiduously pressing all Departments in order to ensure not only that we introduced it, but that, with luck, it will go on to the statute book. Given the consensus behind the legislation, I have no reason to believe that that luck should not obtain.

My hon. Friend the Member for Cannock Chase (Dr. Wright) entertained us with dastardly things that had been said by heirs to the monarchy, by the monarch herself in the 1880s and by the heir to the Crown in 1906. If he had wanted to make a point, however, he would have needed some slightly more contemporary examples. Furthermore, it is also true that, as Queen Victoria was uttering those concerns about the Liberals being elected, £10,000—equivalent to £1 million today—from the Secret Service Vote was routinely made available to the Chief Whip for him to use as he wished to ensure that Government business went through. [Interruption.] I shall leave that sedentary intervention where it is and certainly not repeat it.

To a degree, that money ensured compliance, but the idea that these days the Chief Whip should have £1 million in folding money to dish out as he wishes is preposterous. It may have ensured more votes back then, but times change. I think that we have reached a rather settled position on the monarchy, and I have explained the reasons why we believe the proposals to be necessary.

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Although the examples given by my hon. Friend the Member for Cannock Chase (Dr. Wright), which I watched in my office, were amusing, there have been more recent examples of members of the royal family seeking to intervene in public policy. Why do the Government think it is right to remove the public interest exemption? In most cases, the Information Commissioner has ruled on the side of the royal family, and surely it is right to retain the exemption.

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The reason is that the current situation was never the intention when the Freedom of Information Act was introduced. I say that without fear of contradiction, because I know what the intention was. I do not recall any suggestion that there should be anything but substantial protection for the monarch and the heirs to the throne. It was a complex Bill, and as the hon. Member for Aldridge-Brownhills (Mr. Shepherd) will recall, it went through a number of iterations. It was certainly a different and much tougher Bill that went on to the statute book compared with the one that I introduced. My hon. Friend the Member for Cannock Chase will remember a most extraordinary period on Report when, without any agreement from any Cabinet Committee, for instance, I accepted a series of amendments to accommodate concerns on both sides of the House.

My hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) and I may simply disagree about this, but I urge on the House the profound distinction between members of the royal family and anybody else in public life. The royal family have not chosen their position. They perform their functions with the utmost professionalism and dedication, but they have their position for life. It is worth bearing in mind that Her Majesty is now on her 11th Prime Minister, I believe. I am one of the few people in the House who can remember her succession to the throne in February 1952—one or two others are in their places, such as the right hon. Member for North Antrim (Rev. Ian Paisley) and the hon. Member for Aldridge-Brownhills. We are a fast-diminishing group, but Her Majesty goes on. If we want to ensure that respect for and confidence in the monarchy continue, we have a duty to ensure that she and the heir to the throne are properly protected. As for everybody below the second heir to the throne, they are subject to qualified exemptions, as I have explained.

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Will my right hon. Friend clarify whether the exemption will apply only to matters that are directly and personally communicated by the relevant members of the royal family, or also to anything voiced by third parties, perhaps at semi-private lunches to which Ministers are invited?

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I am sorry to resort to the text of new schedule 1, but my hon. Friend will see that it sets out the relevant categories of information—communications with the sovereign, the heir and the second heir. The key word is “communications”, which covers a wide range of information. I believe that it is appropriate that it should. [Interruption.] I am grateful to my hon. Friend the Minister of State, who has handed me a note stating that the provision applies also to those acting on behalf of the relevant members of the royal family, which I said in my opening remarks.

It took me a bit of time to catch up with the news that the hon. Member for Cambridge (David Howarth) is going to leave the House, and I am sorry that he is. I made my point about the veto in an intervention on him. I sometimes think that people want to pick and mix the Freedom of Information Act. It is a very tough Act, and notwithstanding the criticisms as it was going through the House that it was no better than the non-statutory information code, it has transformed the public’s right to know about what public authorities do and changed the behaviour of national and local government. It is not an à la carte menu, it is a single whole, and as I have said before, the section 53 power is as essential a part of it as the public interest test exceptions in section 2. It is better and more substantial than most comparable freedom of information Acts in the world, including that in Australia.

We are simply maintaining the status quo with respect to Northern Ireland. We did not ask the Northern Ireland Assembly whether it wanted us to do that, because there was not anything in particular to ask it since we were not changing anything. It will remain open to the Assembly to pass its own freedom of information legislation relating to its own areas of business if it wants to bring it into line with what is happening in this House. That seems an appropriate way to proceed.

I understand the anxiety of my hon. Friend the Member for Foyle (Mark Durkan), but neither the Information Commissioner nor the Information Tribunal allows the text of the Freedom of Information Act to be used more widely than the provisions in it state. If anybody attempts to use the exemptions in it too widely, they have to get past first the Information Commissioner and secondly the tribunal. If they are both blind to the fact that the provisions of the Act are being misused, there can be an appeal to the High Court on a point of law, as there has been. I am quite sure that the High Court would spot the error that was being made, even if the other two institutions had not done so.

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My right hon. Friend says that no consultation took place because there was no change, but he told us earlier that the reference to Northern Ireland was in the new schedule specifically at the request, and on the advice, of the Secretary of State for Northern Ireland. Obviously it occurred to somebody that there were implications, and they said that Northern Ireland should be exempted. It seems strange that the Secretary of State for Northern Ireland took the decision, not the elected representatives of Northern Ireland.

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Of course I acted on advice from my right hon. Friend the Secretary of State for Northern Ireland—it would have been eccentric if I had not done so. We had made a general policy decision to move to a 20-year period, and my right hon. Friend made what I regarded as cogent arguments for why it should remain 30 years in Northern Ireland, which I accepted for reasons that I have tried to spell out. Because that decision did not affect the status quo, there was nothing on which to consult the Northern Ireland Assembly directly. It is worth bearing in mind that, as I recall, there was no Northern Ireland Assembly when the original Act was passed.

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Does the Secretary of State not accept that as well as the Northern Ireland Assembly and the Secretary of State, there are Members and political parties in this House who should have been asked for their considered opinion? Would it not have been appropriate for such consultations to be held?

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If that is so, I apologise to the hon. Gentleman and his colleagues. All this reminds me that whatever bad things I did in my previous life, they were never bad enough to have me made Secretary of State for Northern Ireland. If I have not explained the matter as fully or comprehensively as I should have done, I will perhaps have to write to my hon. Friend the Member for Foyle and copy the letter to other hon. Members.

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Would the right hon. Gentleman not regard being Secretary of State for Northern Ireland as an honour rather than as a burden?

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It would have been as much of an honour as being Home Secretary, but I will not proceed down that road. It would have been a wonderful honour to be Northern Ireland Secretary and of course, had the Queen’s shilling come my way in that respect, I would have accepted it.

Finally, to answer the points raised by the hon. Member for Aldridge-Brownhills, I gather that Departments and other bodies release details of contracts on a regular basis in publication schemes. However, 30 years is necessary for a limited number of contracts that are long term. In any event, all we are doing, as with Northern Ireland matters, is maintaining the status quo—the current 30 years—which I do not think is a huge deal. For quite good reasons, the exemption will still be subject to the public interest test: it is a qualified exemption, not an absolute exemption.

With those comprehensive and informed answers, I commend these provisions to the House.

Question put and agreed to.

New clause 22 accordingly read a Second time, and added to the Bill.

New Clause 23

Freedom of information

‘Schedule [Amendments of Freedom of Information Act 2000] (which makes amendments of the Freedom of Information Act 2000) has effect.’.—(Mr. Straw.)

Brought up, read the First and Second time, and added to the Bill.

New Schedule 1

‘Amendments of Freedom of Information Act 2000

1 The Freedom of Information Act 2000 is amended as follows.

2 In section 2(3) (exemptions not subject to public interest test) after paragraph (e) insert—

“(ea) in section 37, paragraphs (a) to (ab) of subsection (1), and subsection (2) so far as relating to those paragraphs,”.

3 In section 37(1) (communications with Her Majesty, etc.), for paragraph (a) substitute—

“(a) communications with the Sovereign,

(aa) communications with the heir to, or the person who is for the time being second in line of succession to, the Throne,

(ab) communications with a person who has subsequently acceded to the Throne or become heir to, or second in line to, the Throne,

(ac) communications with other members of the Royal Family (other than communications which fall within any of paragraphs (a) to (ab) because they are made or received on behalf of a person falling within any of those paragraphs), and

(ad) communications with the Royal Household (other than communications which fall within any of paragraphs (a) to (ac) because they are made or received on behalf of a person falling within any of those paragraphs), or”.

4 In section 62(1) (meaning of “historical record”), for “thirty years” substitute “twenty years”.

5 (1) Section 63 (removal of exemptions: historical records generally) is amended as follows.

(2) In subsection (1)—

(a) omit “28,”, and

(b) for “36, 37(1)(a), 42 or 43” substitute “or 42”.

(3) In subsection (2)—

(a) omit “28(3),” and

(b) for “36(3), 42(2) or 43(3)” substitute “or 42(2)”.

(4) After subsection (2) insert—

“(2A) Information contained in a historical record cannot be exempt information by virtue of section 36 except—

(a) in a case falling within subsection (2)(a)(ii) of that section, or

(b) in a case falling within subsection (2)(c) of that section where the prejudice or likely prejudice relates to the effective conduct of public affairs in Northern Ireland.

(2B) Compliance with section 1(1)(a) in relation to a historical record is not to be taken to have any of the effects referred to in subsection (3) of section 36, except where the effect—

(a) falls within subsection (2)(a)(ii) of that section, or

(b) falls within subsection (2)(c) of that section and relates to the effective conduct of public affairs in Northern Ireland.

(2C) Information cannot be exempt information—

(a) by virtue of section 28 or 43, or

(b) by virtue of section 36 in the excepted cases mentioned in subsection (2A),

after the end of the period of thirty years beginning with the year following that in which the record containing the information was created.

(2D) Compliance with section 1(1)(a) in relation to any record is not to be taken, at any time after the end of the period of thirty years beginning with the year following that in which the record was created, to be capable—

(a) of prejudicing any of the matters referred to in section 28(1) or 43(2), or

(b) of having any of the effects referred to in section 36(3) in the excepted cases mentioned in subsection (2B).

(2E) Information cannot be exempt information by virtue of any of paragraphs (a) to (ad) of section 37(1) after whichever is the later of—

(a) the end of the period of five years beginning with the date of the relevant death, and

(b) the end of the period of twenty years beginning with the date on which the record containing the information was created.

(2F) In subsection (2E)(a) “the relevant death” means—

(a) for the purposes of any of paragraphs (a) to (ac) of section 37(1), the death of the person referred to in the paragraph concerned, or

(b) for the purposes of section 37(1)(ad), the death of the Sovereign reigning when the record containing the information was created.”

6 After section 80 insert—

“80A Information held by Northern Ireland bodies

(1) This section applies to information held by—

(a) the Northern Ireland Assembly,

(b) a Northern Ireland department, or

(c) a Northern Ireland public authority.

(2) In their application to information to which this section applies, the provisions of this Act have effect subject to the following modifications.

(3) Section 2(3) (exemptions not subject to public interest test) is to be read as if paragraph (ea) were omitted.

(4) Section 37(1) (communications with Her Majesty, etc) is to be read as if for paragraphs (a) to (ad) there were substituted—

“(a) communications with the Sovereign, with other members of the Royal Family or with the Royal Household, or”.

(5) Section 62(1) (meaning of “historical record”) is to be read as if the reference to twenty years were a reference to thirty years.

(6) Section 63 (removal of exemptions: historical records generally) is to be read as if—

(a) in subsection (1), for the words from “section” to the end there were substituted “section 28, 30(1), 32, 33, 35, 36, 37(1)(a), 42 or 43”,

(b) in subsection (2), for the words from “section” to the end there were substituted “section 28(3), 33(3), 36(3), 42(2) or 43(3)”, and

(c) subsections (2A) to (2F) were omitted.”.’.—(Mr. Straw.)

Brought up, read the First and Second time, and added to the Bill.

Clause 41

Allowances claims

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I beg to move amendment 55, page 24, line 14, at end insert—

‘(6) In section 7 of that Act (information and guidance about taxation)—

(a) before subsection (1) insert—

“(A1) The IPSA must—

(a) prepare guidance for members of the House of Commons about making claims under the MPs’ allowances scheme;

(b) review the guidance regularly and revise it as appropriate;

(c) publish the guidance in a way the IPSA considers appropriate;

(d) provide to any member on request such further advice about making claims as the IPSA considers appropriate.”, and

(b) in the heading omit “about taxation”.’.

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With this it will be convenient to discuss the following: Government amendments 56 and 58 to 63.

Amendment 91, in schedule 7, page 78, line 7, leave out ‘fund’ and insert ‘trust scheme’.

Government amendment 64, page 78, line 9, leave out sub-paragraphs (2) to (4) and insert—

‘Number and composition of trustees

1A (1) The following are to be the trustees of the Fund—

(a) one person appointed by the IPSA after consulting the Minister for the Civil Service and the persons who are already trustees of the Fund,

(b) one person appointed by the Minister for the Civil Service after consulting the IPSA and the persons who are already trustees of the Fund, and

(c) 8 persons nominated and selected in accordance with arrangements under paragraph 1B (“member-nominated trustees”).

(2) Paragraphs 44 and 45 make transitional provision about the trustees of the Fund.

Member-nominated trustees

1B (1) The trustees of the Fund must make arrangements for the nomination and selection of member-nominated trustees.

(2) The arrangements must provide for the member-nominated trustees to be—

(a) nominated as the result of a process in which all the members of a scheme under paragraph 7 and all the members of a scheme under paragraph 11 are eligible to participate, and

(b) selected as the result of a process in which all those persons are eligible to participate.

(3) The arrangements must—

(a) include provision for the nomination and selection process to take place within a reasonable period of any vacancy arising,

(b) include provision, where a vacancy is not filled because insufficient nominations are received, for the nomination and selection process to be repeated at reasonable intervals until the vacancy is filled, and

(c) include provision that, where the IPSA or the Minister for the Civil Service so requires, a person who is not a member of a scheme under paragraph 7 and is not a member of a scheme under paragraph 11 must have the approval of the IPSA or the Minister for the Civil Service to qualify for selection as a member-nominated trustee.

(4) The arrangements may include provision that where the number of nominations received is equal to or less than the number of vacancies, the nominees are to be treated as selected (subject to sub-paragraph (3)(c)).

Remuneration

1C (1) The IPSA may provide for remuneration and allowances to be payable to the trustees of the Fund.

(2) Any such remuneration and allowances are to be paid from the assets of the Fund.

Resignation and removal of trustees

1D (1) A person appointed as a trustee of the Fund by the IPSA under paragraph 1A(1)(a)—

(a) may resign by giving written notice to the IPSA, and

(b) may be removed by the IPSA after consulting the Minister for the Civil Service and all the other trustees of the Fund.

(2) A person appointed as a trustee of the Fund by the Minister for the Civil Service under paragraph 1A(1)(b)—

(a) may resign by giving written notice to the Minister for the Civil Service, and

(b) may be removed by the Minister for the Civil Service after consulting the IPSA and all the other trustees of the Fund.

(3) A person who is a member-nominated trustee—

(a) may resign by giving written notice to the other trustees of the Fund, and

(b) may be removed by all the other trustees of the Fund acting together.

Proceedings

1E (1) Subject to any provision contained in a scheme under paragraph 3 because of paragraph 3(1)(c), the trustees of the Fund may determine their own procedure.

(2) The validity of any proceedings of the trustees of the Fund is not affected by—

(a) a vacancy among the trustees, or

(b) a defect in the appointment of a trustee.’.

Amendment (a) to Government amendment 64, in paragraph 1B(2)(b), after ‘which’, insert ‘some or’.

Amendment (b) to Government amendment 64, in paragraph 1C(1), after ‘may’, insert

‘with the consent of the Treasury’.

Amendment 90, page 79, line 2, at end insert—

‘(bb) the indemnification of the trustees (and former trustees) of the Fund’.

Government amendments 65 to 73.

Amendment 94, page 82, line 6, leave out ‘the provision specified in paragraph 24(2)’ and insert—

‘(i) the provision specified in paragraph 21(1), unless with the consent of the trustees of the Fund,

(ii) the provision specified in paragraph 26, unless with the consent of the trustees of the Fund, and

(iii) the provision specified in paragraph 24(2)’.

Amendment 95, page 83, line 24, at end insert

‘, except the provisions specified in paragraphs 21(1) and 26 unless with the consent of the trustees of the Fund’.

Amendment 93, page 84, line 16, after ‘puts’, insert ‘(or might put)’.

Government amendment 74, page 84, line 18, leave out from ‘if’ to end of line 28 and insert—

‘(a) the trustees of the Fund consent to the new scheme making the provision, and

(b) the person making the new scheme is satisfied that the consent requirement is met.

(4) The consent requirement is met if under the new scheme the provision has effect in relation to an accrued right only with the written consent, given in accordance with sub-paragraph (4A), of—

(a) the person (“P”) in respect of whose service the right has accrued, or

(b) if P is dead, the persons (“the survivors”) who because of the accrued right are entitled, or may become entitled, to a pension or the benefit of any pension.

(4A) Consent is given in accordance with this sub-paragraph if it is given after the person making the scheme has given P (or the survivors)—

(a) information in writing which adequately explains the nature of the provision and its effect,

(b) notice in writing that they may make representations about the provision,

(c) an adequate opportunity to make such representations, and

(d) notice in writing that the provision has effect in relation to the accrued right only with their written consent.

(4B) Consent may be given by a person acting on behalf of P (or the survivors); and the references in sub-paragraph (4A) to P (or the survivors) include a person acting on their behalf.’.

Amendment (a) to Government amendment 74, in sub-paragraph (4)(b), leave out

‘pension or the benefit of any pension’

and insert

‘benefit or future benefit payable out of the Fund’.

Government amendment 75.

Government amendment 76, page 84, line 36, leave out sub-paragraphs (2) and (3) and insert—

‘(2) “Accrued right”, in relation to a provision of the new scheme, means a right or entitlement to or in respect of a pension or future pension payable out of the Fund which has accrued in respect of service before the provision comes into force.

(3) If the person in respect of whose service the right or entitlement has accrued is in service when the provision comes into force, the right or entitlement is to be determined as if the person left service immediately before then.’.

Amendment (a) to Government amendment 76, after ‘means a right’, insert ‘(including a contingent right)’.

Amendment (b) to Government amendment 76, leave out

‘a pension or future pension’

and insert

‘a benefit or future benefits’.

Amendment (c) to Government amendment 76, leave out sub-paragraph (3).

Government amendments 77 to 79.

Government amendment 80, page 85, line 31, at end insert—

‘( ) For the purposes of this Schedule “member”—

(a) in relation to a scheme under paragraph 7, means a person with service as a member of the House of Commons who, in respect of that service, has a right or entitlement under the scheme to a pension or future pension payable out of the Fund, and

(b) in relation to a scheme under paragraph 11 , means a person with service to which that paragraph applies who, in respect of that service, has a right or entitlement under the scheme to a pension or future pension payable out of the Fund.’.

Amendment (a) to Government amendment 80, in sub-paragraph (a), leave out ‘pension or future pension’ and insert ‘benefit or future benefits’.

Amendment (b) to Government amendment 80, in sub-paragraph (b), leave out ‘pension or future pension’ and insert ‘benefit or future benefits’.

Government amendment 81.

Amendment 92, page 85, line 40, at end insert—

‘“trust scheme” has the same meaning as in section 124(1) of the Pensions Act 1995’.

Government amendments 82 to 88.

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On a point of order, Mr. Deputy Speaker—

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May I just point out to the House that there was an error in the text of proposed amendment (a) to amendment 64, tabled by the hon. Member for Bournemouth, West (Sir John Butterfill)? On page 1153 of the amendment paper, the words proposed to be inserted should read “some or” and not “some of”. I am sure that that will come as matter of great satisfaction to the House, and hopefully we can proceed.

Did you wish to make a point of order, Mr. Heath?

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That was my point of order, Mr. Deputy Speaker, and you have corrected the matter. Thank you.

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I wish all were satisfied quite so quickly. I am obliged to the hon. Gentleman.

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It may be convenient for the House if I inform hon. Members that I intend to accept amendments (a) and (b), in the name of the hon. Member for Bournemouth, West (Sir John Butterfill), to amendment 64, which is in my name; and his amendments (a) and (c) to my amendment 67. I also urge the House to accept amendments 90, 93, 94 and 95, which are in his name. I understand that the hon. Gentleman will make clear the reasons why he does not intend to move amendment (a) to amendment 74, amendment (b) to amendment 76, amendments (a) and (b) to amendment 80 and amendments 91 and 92.

The provisions relate to part 4 of the Bill, which implements a number of recommendations of the report by the Committee on Standards in Public Life on MPs’ expenses—the Kelly report. Lest there be too much complaint that the Bill is longer now than when it began its journey, I should say that although that is true, one of the main reasons is that in the intervening time, we had the expenses scandal, the Kelly report and a decision by the House to establish the Independent Parliamentary Standards Authority, which was done via free-standing, emergency legislation last summer—the Parliamentary Standards Act 2009. That preceded the Kelly report, and we have decided to implement the parts of the report that require legislation in this Bill, because it is the only available vehicle. That inevitably means that the process has been a bit compressed, but I suggest that it would have been disastrous for the already damaged reputation of the House and of politics if we had not proceeded fully to implement the Kelly report by the time of the forthcoming general election.

During debates in Committee on the Kelly provisions, the right hon. Member for North-West Hampshire (Sir George Young) and others raised a number of issues that I undertook further to consider. In particular, I undertook to look at how we give effect to the Kelly report’s recommendations on MPs’ pensions and at the enforcement powers of the compliance officer in respect of the expenses regime. I also told the shadow Leader of the House that I would look carefully at his proposal to require IPSA to be ready to offer guidance to Members on prospective claims for expenses, to avoid our getting into a position in which claims are made and rejected, which would be on the public record. It would be better for advice to be given in advance, and I am pleased to tell the House that an amendment in my name meets that concern.

On Members’ pensions arrangements, the House will recall that paragraph 13.32 of the Kelly report suggested that either the Senior Salaries Review Body or the independent regulator could, among other things “set the terms and” oversee

“the…administration of parliamentary pensions.”

Paragraph 13.34 states that the Committee, after consideration, thought that that should be a matter not for the SSRB, but for the new body. Recommendation 43 states:

“The independent determination of MPs’ pay and pensions should be entrenched in primary legislation in the same way as expenses. The independent regulator”—

IPSA—

“should therefore be given statutory responsibility for setting MPs’ pay levels and overseeing MPs’ pensions as well as for dealing with expenses.”

We made some progress on implementing the pensions provisions in Committee. I am grateful to the hon. Member for Bournemouth, West, my right hon. Friend the Member for Islwyn (Mr. Touhig), my right hon. and learned Friend the Leader of the House, and other trustees for their subsequent contributions. I fully recognise that the trustees of the pension fund, who do great, unsung work on behalf of current Members and pensioners are properly anxious to ensure that the new arrangements will work effectively and provide everyone—current Members and pensioners—with appropriate safeguards in respect of their accrued pension entitlements.

I have set out what Kelly recommended, and I think everybody accepts that we must remain faithful to the principles that Kelly set out. He said that the full remuneration package of MPs—expenses, pay and pensions—should be subject to determination by IPSA, and that IPSA should, to use its word, “oversee” the administration of the pension scheme. However, there was no suggestion in the Kelly report that IPSA should do everything in respect of pensions, and IPSA has not made that suggestion.

The first concern was that there should be proper safeguards for hon. Members’ accrued pension rights. My aim is to ensure that the statutory safeguards afforded to members of other occupational pension schemes broadly apply to the parliamentary scheme. As with statutory protection for pension schemes elsewhere, amendment 74 would put a double lock on any provision adversely changing accrued pension rights. It would first be necessary for the trustees to consent to the scheme making such provision and, secondly, each member would have to give his or her informed consent to any changes to accrued rights.

It is the Government’s view that in giving such approval, and indeed exercising any of their other functions, the trustees would need to act in the best interests of the members in accordance with their clear fiduciary duties as trustees. That protection means that if IPSA were to change the rules of the scheme, the pension entitlements that other hon. Members and I have would be safeguarded if we left service immediately before any change. No adverse changes could be made to that pension entitlement without the agreement of the trustees or our individual consent.

Secondly, there were concerns that schedule 7, as originally drafted, left open to doubt whether the new arrangements ensured the continuation of a trustee-based scheme with appropriate member representation on the board of trustees. Amendment 64 would put that beyond doubt and set out on the face of the Bill the structure of the board of trustees. The amendments provide for a board of 10 trustees, one of whom would be appointed by IPSA, a second by the Minister for the Civil Service, while the remaining eight would be member-nominated trustees. It will be left to the trustees collectively to make appropriate arrangements for the nomination and selection of the member-nominated trustees, but such arrangements must involve all members of the MPs’ and Ministers’ pension schemes.

The amendments include appropriate transitional provisions, so that there can be a managed progression from the current board of trustees to the new one, but the existing trustees will continue to be trustees until the end of the transitional period. There is also provision for the first eight member-nominated trustees to be chosen from among the existing trustees.

Thirdly, amendment 66 would require IPSA to obtain the consent of the trustees before making the administration scheme under paragraph 3 of schedule 7. This is an appropriate further safeguard, given that the administration scheme will set out the trustees’ core responsibilities in respect of the administration of the parliamentary contributory pension fund and the management of its assets.

I have considered very carefully whether we have got the balance right between the administration scheme and the MPs’ pension scheme. I know that this was another issue that has troubled the trustees. After much discussion, I am satisfied, and I hope that the trustees are too, that we have got the demarcation between the two schemes right. The pension scheme will determine the full range of pension benefits and entitlements. In accordance with the overarching principle of independent determination, these are properly matters for sole determination by IPSA, albeit—as the provisions in the Bill make clear—after consultation with the trustees, the Government Actuary, the Senior Salaries Review Body and others.

I have studied carefully the amendments in the name of the hon. Member for Bournemouth, West and other trustees, and I have had the opportunity to discuss them. I have advised the House on those that I think it should accept. I understand that the hon. Gentleman is ready to withdraw some of his amendments, but I shall address them briefly.

Amendments 91 and 92 are not necessary. There is no question but that the trustees will owe a fiduciary duty to members of the scheme and that it will continue to operate as a trust-based scheme. Nothing in these provisions would alter the current position in that regard. Amendments 74(a), 76(b) and 80(a) and (b) relate to accrued rights. I think that those amendments were based on a misunderstanding, although everyone has had to run very fast with these provisions. It is important that we get them on the statute book quickly, so all of those advising us on all sides have had to work very fast.

The provisions in schedule 7 are based on those in the Parliamentary and Other Pensions Act 1987. Our provisions use the language “pension or future pension”, rather than the language “benefit or future benefit” as used in the Pensions Act 1995. The same outcome will be achieved, and there is no question that the use of different language will mean that members are disadvantaged.

Finally, I wish to address the IPSA expenses regime and the role of the compliance officer. In Committee, the right hon. Member for North-West Hampshire was keen to ensure that there was some explicit duty on IPSA to offer guidance to MPs, and I recognise the need for clear, comprehensive and consistent guidance, alongside the scheme itself. This will be essential if the mistakes of the past are not to be revisited. Moreover, such guidance needs to be a living document, regularly reviewed and updated in the light of experience.

In addition, while hon. Members must take personal responsibility for their own expenses claims, it is right that such guidance should be augmented by some facility to seek advice from IPSA, albeit that those arrangements must be a matter for IPSA to determine. In IPSA’s consultation paper on the expenses scheme, it made clear its intention to provide such advice and guidance. Amendment 55 will provide statutory underpinning for this.

Finally, amendments 56, 58 to 60 and 62 respond to concerns that the enforcement provisions in schedule 5 to the Bill do not enable the compliance officer to exercise appropriate discretion when seeking to recover overpaid expenses in those cases where the compliance officer has established that IPSA was wholly or partly at fault. There may be circumstances where, for example, an MP incurs expenditure in good faith having sought advice from IPSA; IPSA then reimburses that expenditure; but it subsequently transpires that the advice was erroneous and that the expenses should not have been paid. If in exceptional circumstances such as these the compliance officer finds that IPSA is at fault, we agree that the compliance officer should have discretion not to require full repayment of the overpaid expenses.

I hope that I have given a helpful explanation of the amendments and that they will command the approval of the House.

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On this side of the House, and in common with many others, we have been absolutely clear that MPs’ pay and expenses should be determined by an independent body. MPs setting their own financial package is simply not acceptable. Given all that has happened in recent months, that imperative has become ever more pressing. On that basis, we supported the Parliamentary Standards Act 2009.

Just as we supported IPSA’s conception, we also pressed for its speedy inception, in order to ensure that the next Parliament can start under a new regime. After a long process of reviews and reports, the passing of the Parliamentary Standards Act 2009, and now with several additions and amendments to the 2009 Act being pursued through the Constitutional Reform and Governance Bill, we are close to ensuring that the next Parliament will be able to start with a clean sheet, so far as pay, expenses and allowances are concerned.

Many of the changes made so far to this Bill are welcome. They have strengthened the Parliamentary Standards Act, following the many important and welcome recommendations made by Sir Christopher Kelly. As a result, the future management of Members’ pay and allowances will be independent and transparent, coupled with a more rigorous audit and assurance process.

In Committee, we raised several concerns regarding some of the new clauses introduced by the Government. These included the need for a clearer requirement for IPSA to provide advice to Members; the fact that the compliance officer had a dual role, giving advice as well as having an investigatory role; the manner in which the original schedule 7 dealt with the transfer of the MPs’ pensions scheme to IPSA, along with an obvious lack of consultation by the Government with the scheme’s trustees; and the issue of payment of costs by Members in cases where IPSA itself was wholly or partly at fault concerning the advice that it offered. It is clear that the Government have reflected on those and other issues raised by right hon. and hon. Members in Committee, and I am pleased that the result is an improvement in the sections of the Bill dealing with IPSA.

On the issue of repayment of overpaid expenses, and the payment of costs by Members, I am pleased that the points raised by my right hon. Friend the shadow Leader of the House have been acted on and addressed in amendments 56 to 62. On the former, it is sensible that the Government have confirmed a discretion on the compliance officer concerning the full repayment of overpaid expenses when the compliance officer has found IPSA to be wholly or partly at fault. Although the discretion is unlikely to be exercised often, it is important that it exists, if natural justice is to be seen to be done, and actually to be done, in cases where incorrect information has been provided to Members who have subsequently acted on that advice in good faith.

We are also grateful that amendment 55 introduces a specific requirement on IPSA to provide further advice when Members request it. After the general election, all Members—whether old hands or newly arrived—will operate under the new regime, but it is inevitable that there will instances when a potential claim by a Member is not a black-and-white issue, no matter how well drafted the guidance from IPSA might be. The provision of advice will therefore help the process. May I say to the Secretary of State that his acceptance, on this issue, of the substance of the amendment tabled by the shadow Leader of the House and myself, in a spirit of cross-party co-operation, is much appreciated?

Then we come to pensions. Since we met in Committee, it has become clear that the Secretary of State has taken on board many of the points raised in the debate, and his amendments are a welcome step in the right direction. For example, they provide for member-nominated trustees on the board of trustees, which will give members a voice concerning their pension rights. As the chairman of the current board of trustees, my hon. Friend the Member for Bournemouth, West (Sir John Butterfill), said, the amendments tabled will provide

“better protection to pension scheme members and better governance arrangements than those proposed at Committee stage.”

However, the trustees clearly had some concerns—hence a number of amendments were tabled in the name of my hon. Friend and his colleagues, and to be fair, as we have heard, the Government have accepted a number of them. For example, amendment 90 provides indemnity for the trustees of the fund, past and present. If that was not made explicit in the Bill, we would certainly have problems trying to find people willing to serve as trustees. Amendments (a) and (b) to amendment 64, which allow for more effective selection of member-nominated trustees and a check on the payment of remuneration to trustees, are also highly sensible.

The Government, however, are not so supportive of another amendment tabled by the trustees. The Government have helped to clarify that the scheme will continue to be trust-based in the future, with amendment 64 dealing with how many trustees are to serve and how they will be appointed. However, the trustees assert that the point of the scheme being trust-based should be made explicit in the Bill, and they seek to do that with amendments 91 and 92. Although the scheme has operated on a trustee basis in the past, given that we are now transferring it to another body, it makes sense to make it as clear as possible that it will continue to be a trustee scheme in the future. On that basis, the Secretary of State might wish to reconsider amendments 91 and 92.

The trustees have also tabled amendment 94, which seeks to ensure that, if IPSA decides in the future to make a payment out of the fund to somebody who has not paid into it, the trustees must give their consent. Although that is an unlikely scenario, the Bill as drafted allows IPSA to do just that, and I am pleased that the Secretary of State has accepted some of the arguments for amendment 94. The trustees also have concerns about the protection of accrued rights, as evidenced by amendments (a) and (c) to Government amendment 76. Again, it is good that the Secretary of State is prepared to hear some of the arguments put forward, and I look forward to hearing what my hon. Friend the Member for Bournemouth, West has to say on that and other amendments.

The issues before us affect all Members, and I am pleased that the Secretary of State has taken note of the various suggestions made in Committee and the amendments before us today. The result is an improved Bill in so far as it relates to IPSA, which is welcome.

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There is a slight sense of a work in progress about this group of amendments, which is to be entirely expected when trying to translate into legislation the Kelly Committee proposals and to refine the IPSA legislation that we passed earlier in the year.

On pensions, I must say that I was disappointed in Committee that there had clearly been so little prior consultation with the trustees of the pension fund about the shape and detail of the legislation. It seems slightly bizarre that the amendments then tabled apparently had not been thought through properly in conjunction with the trustees such as to allow us to hear what they had to say. However, that was the start of a process that, by and large, has been productive, which is very good news. However, even today the Government amendments before the House are subject to amendments tabled on behalf of the trustees, so clearly the process of reconciling their views had not reached a conclusion when those amendments to the Bill were tabled.

We heard today that the Lord Chancellor is prepared to accept further amendments tabled on behalf of the trustees, which is good news, because it suggests that we are close to the point at which the two views can be consolidated into a single whole to be put before the House. However, I must say that most Members are not expert in this area and need, I think, the advice of those with much greater experience in order to understand some of the complexities of pension law. Nevertheless, even the least expert Member—probably me—recognised that the previous scheme, which did not provide for board-level representation of recipients of the pension scheme benefits, was out of kilter with what is considered good practice elsewhere. That obviously needed to be dealt with, hence the amendments before us.

I still do not understand entirely one slightly arcane point, although I hope that when I have heard the contribution from the hon. Member for Bournemouth, West (Sir John Butterfill), I will understand it better. It concerns the distinction, in terms of language, between a “pension or future pension” and a “benefit or future benefit”, which I understand to be the language of the Pensions Act 1995—if I have got it right. I am not sure whether I understand what possible impact there could be of changing the language from one to the other, other than for the purposes of consistency. If that is the case, I should say that I am normally in favour of consistency, but I shall be interested to hear the arguments on either side. That said, it is not a critical factor, and largely I appreciate the work that has been done, the progress that has been made and the stance taken by the Lord Chancellor.

I shall deal with the amendments relating to IPSA. As I have said from the start, I believe that there are still unanswered questions about the role of the compliance officer. We discussed the matter in Committee, and I was simply told that my concerns had no foundation—and no foundations there remain, because the Lord Chancellor has not put down any amendments about that role.

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May I take the hon. Gentleman back to his question about the use of the terms “pension or future pension” and “benefit or future benefit”? It is a matter of drafting. “Pension or future pension” is a phrase used in the Parliamentary and other Pensions Act 1987, and the strong advice that I have had is that it is best to stick to that, because it is the foundation of our scheme. “Benefit or future benefit” is used in the Pensions Act 1995. It is a matter of drafting and cleanliness—and nothing else.

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I thought that that was the case. This is a question of who or what we are going to be consistent with. We cannot be consistent with both, but obviously at some stage, there has been inconsistency between the two enactments—hence the problem.

Returning to IPSA, I was saying that I still have some concerns about exactly to whom the compliance officer will be answerable, if anyone, and about the independence of their role, which will be critical to the operation of the process. I welcome amendment 55, which provides for IPSA to supply guidance, both general and specific, to Members. That function, however, must be separated from that of the compliance officer. The compliance officer cannot provide that advice, because they might find themselves taking a critical view of IPSA’s actions, and their independence of action would be frustrated from day one if they were also the source of such advice. That has not been made explicit in the amendment, but no such linkage is suggested by it either. I hope, however, that IPSA will take note of my comments and ensure that the compliance officer is at least at one remove from the provision of any such advice.

The other principal area of amendment in this group relates to the discretion given to the compliance officer in dealing with Members who have been paid sums to which they are not entitled, when IPSA might be wholly or partly at fault. This raises a number of questions. I do not intend to divide the House on this point, but I should like clarification on the definition of fault in this context. Obviously, a simple arithmetical error would constitute a fault, but would a judgment based on advice that had been misconstrued be seen as a fault? We are getting into a difficult area here, in trying to define fault on the part of IPSA.

We should make a clear distinction between an overpayment in which the Member had had no involvement—for example, when they had claimed for a certain amount and more had been put into their bank account, unbeknown to them—and a case in which a Member had claimed for an item of expenditure to which they were not entitled under the scheme. The key question is whether the Member would have incurred the expenditure, were it not for the advice—or clearance, if we are to put it that way—from IPSA that they took before incurring it. It is not the claim that is the issue but the expenditure. If a Member has simply been overpaid, there should be no question but that they should pay it back. The money is not theirs. Whether they received it because of an error by IPSA is immaterial to the fact that they are in possession of public moneys to which they are not entitled.

There is a strong argument for a degree of discretion in arranging the manner and timetable of the repayment, but we should not afford ourselves any discretion in statute as to whether the money should be repaid at all. After all, we do not allow such discretion to people who are overpaid through tax credits, for example. I regularly meet people who are outraged because, having been overpaid in that way, through no fault of their own, they are then being required to repay the money, often at an inconvenient time, even though they have often spent it, perhaps on their children. This often happens to people who are not very well off. We should not give ourselves any latitude that we do not allow others when it comes to overpayment.

A separate issue involves expenditure incurred as a result of an inquiry as to whether it was properly allowable, the answer to which was yes. The expenditure, which would not otherwise have been incurred, is then made, and subsequently reclaimed. Again, the first responsibility must rest with the individual Member, and not on the advice that they were given. If there is to be a discretion to excuse Members who have claimed money inappropriately from repaying it when the claim is determined to be inadmissible, I would expect that discretion to be used very sparingly, if at all. I can see why it is sensible to have some discretion, but I would like IPSA to issue clear instructions on when it is appropriate to use it. I do not think that its use will be appropriate in most cases.

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The hon. Gentleman says that the discretion is unlikely to be used, but may I remind him that we are talking only about provisional findings that might emerge from an investigation by the compliance officer? If it were to emerge that something was wholly or partly the fault of IPSA, that should be declared very readily; otherwise, people would always entertain the suspicion that, so long as a matter relating to an MP had been referred and investigated, it would always be the MP and only the MP who had done wrong.

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I should like to make it plain to the hon. Gentleman that I am not talking about the findings. The findings should clearly state whether there was a reasonable case that a Member had been misled by the authority. I am talking about the repayment direction, which is a different matter. As I have said, we do not extend any latitude to others. Her Majesty’s Revenue and Customs do not do so, and the Treasury does not do so via the tax credit system. We must be very careful here. For heaven’s sake, if we have learnt one lesson over the past year, it ought to be that we apply the same rules to ourselves as we apply to others. That is the plea that I am making, and I believe that that can be encompassed in the amendments before us today, provided that the discretion is exercised appropriately. But I absolutely agree with the hon. Gentleman that findings that exonerate a Member from blame for a mistake made by others should be made absolutely clear. There should be no question about that, and if it needs to be set out in the way that it has been, that is entirely appropriate. That would not necessarily excuse anyone from repayment, however.

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The trustees are extremely grateful to the Justice Secretary, who has worked with us tirelessly of late to try to reach agreement on these extremely complex matters. It is important that we do not miss any issues, and that everything is properly understood. The trustees—and, ultimately, pensioners—will face unwelcome and unfair unintended consequences unless we get this right. The trustees have a long track record of trying to act very sensibly—in the interests not only of Members but of taxpayers—in administering the scheme in the past. We have made a number of changes that have resulted in significant savings for the taxpayer.

I can now say that the Bill is much improved; I am confident that there will be good will from IPSA if any matters remain unresolved. There are some instances, however, where the trustees felt it right to bring forward amendments at this stage because of the importance of the issues for members of the scheme and the trustees and because of the need for understanding of matters that need to be shared.

What I have to say about the Bill should be seen in the context of the fundamental shift that is going to take place, as recommended by Kelly, when future benefits for Members of this House are to be set by IPSA. That is what will happen and as it goes forward, the trustees will be consulted—but only consulted—on any future scheme. Because of the complexity of pensions, however, and the fact that current and former members have accrued rights within the pension scheme that should be protected, the role of the trustees is important for the administration and the management of the scheme in the future. I hope that the trustees will be helpful to IPSA in dealing with the most complex areas.

The trustees have tabled a number of amendments. After discussion with the Secretary of State, we have been quite happy to amend some of them in a minor way. Amendment 91—amendment 92 is related—states that the parliamentary contributory fund is a “trust scheme”. We put that in for the reason that we have always understood, as I think has everybody, that it is a trust scheme, so we felt that it would be sensible to show it on the face of the Bill. The Secretary of State has said that he does not think it absolutely necessary because he has confirmed in this place that it is a trust scheme—I am sure that I am not misrepresenting him on that—so we will not press these amendments.

In amendments (a) and (b) to amendment 64, we have put forward some technical amendments to the method of selection of members. Originally, we were in a position of having to go out to every single member—deferred members, retired members and sitting members—and organise a huge ballot, which would have been extremely complex and rather difficult to achieve. It might not have achieved the selection of people with sufficient skills and knowledge to act within the trustee scheme. We are grateful that the Government will accept our amendment, which provides a good deal more flexibility and will work for the benefit of the scheme as a whole. It will, of course, be consistent with section 241(2)(b) of the Pensions Act 2004. Whatever we do about our own schemes in this place, it is important that we comply with the requirements that we impose on everyone else in the nation; it would be wrong if that were not so.

Under amendment (b), the Treasury would have to consent to the use of parliamentary contributory pension fund assets to remunerate trustees. There again, we think it must be right that if IPSA is to provide remuneration or allowances for trustees out of the fund’s assets or for spending on other matters that may arise, it must be right to protect the taxpayer by making that particular area subject to the Treasury’s consent. I am quite sure that IPSA would not expect anything else.

Amendment 90 deals with

“the indemnification of the trustees (and former trustees) of the Fund”.

As was said earlier, it would be impossible to find anyone willing to serve as a trustee if they did not have an indemnity; indeed, they would be stark raving mad if they did the job without having it. The indemnity will come from the funds. We are grateful that the Secretary of State has agreed to this. Currently, the 1993 regulations provide each trustee and former trustee with an indemnity from the fund’s assets, except where prohibited by legislation or in cases of dishonesty, bad faith or recklessness—one hopes that none of those ever arises in the future. Although we should be confident that IPSA would not want to remove this indemnity, it is none the less inappropriate for IPSA alone to have the power to do so without the consent of the trustees.

Amendments 94 and 95 require trustee consent to aspects of proposed IPSA and Minister for the Civil Service benefit powers. Amendment 94 would leave out

“the provision specified in paragraph 24(2)”

of schedule 7 and would insert the stated words in sub-paragraphs (i), (ii) and (iii). I am sorry that these are rather complex amendments and apologise if they are difficult to follow. Amendment 95 would insert

“except the provisions specified in paragraphs 21(1) and 26 unless with the consent of the trustees”.

I welcome the Justice Secretary’s agreement that paragraph 21(1) of schedule 7, which empowers IPSA or the MCS in relation to the Ministers’ scheme to provide

“for the application of assets… in or towards the provision of pensions to be paid otherwise than out of the Fund”.

There again, we think that if that happens, it should be subject to the trustees’ consent, as it is not appropriate to exercise those powers without the consent of the trustees, who have a duty to safeguard the interests of all the PCPF’s members. It is a historic power that has not been used and the safeguard of trustees’ consent is necessary.

Paragraph 26 of schedule 7 empowers IPSA or the Minister for the Civil Service in relation to the Ministers’ scheme to make

“Provision conferring functions under the scheme on persons specified in or determined under the scheme”,

and I welcome again the Secretary of State’s agreement to the amendment. Its purpose is to ensure that all the functions currently exercised by the trustees in conjunction with the relevant experts cannot be changed without the consent of the trustees. Commutation factors are relevant, for example. Although they are nominally brought in by the trustees, they are derived from work done by the Government Actuary’s Department, which will periodically clarify what the commutation factors should be in line with changes in the market. We did not feel it appropriate for the trustees themselves to dictate that; it should be done through the use of some independent expert.

It is the same with provisions for ill health retirement. Again, the trustees do not determine whether someone is sufficiently ill to merit it. We go to an outside medical opinion, and whether or not someone is entitled to the ill health retirement will derive from whatever that opinion might be. We think that that is a sensible regime, which we imagine IPSA will wish to continue.

I am losing my place here. Amendment 95 is, of course, consequential on amendment 94. Amendment 93 deals with accrued rights protection. We must be sure that the protection of accrued rights for members who have paid in—for many years in many cases—are suitably robust. The amendment would thus insert after “puts”, the phrase “(or might put)”. We are pleased that the Secretary of State has agreed to that amendment. It will make the accrued rights protection consistent with section 67A(4) of the Pensions Act 1995, which applies to a modification that would or might affect subsisting rights.

We tabled amendment (a) to Government amendment 74 to ensure that accrued rights would apply to all benefits, not just pensions, because we were aware that some benefits under the scheme were not really pensions. Payment to a widow on the death of a Member, for instance, would not constitute a pension, but would fall within the jurisdiction of the present scheme. We have received assurances that the current drafting of the Bill does not limit accrued rights protection to pensions generally, but includes benefits more widely.

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That is the phrase used in the Parliamentary and other Pensions Act 1987. “Pensions” obviously includes other rights and benefits that are already being paid. I know, and have been advised, that the phrase is widely drafted, but I am grateful to the hon. Gentleman for accepting that it is better to stick with the language of the original foundation scheme than to adopt language that could, to my certain knowledge, produce consequential problems.

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I am pleased to say that the legal advisers to the trustees have confirmed that that is an appropriate interpretation of the legislation. We will therefore not press the amendment to a vote, and the same applies to amendment 80 as amended by amendments (a) and (b).

We tabled amendments (a) to Government amendment 76 because although in the case of a new scheme all the accrued rights will be covered and secured, some rights may be contingent. People who retire because of ill health, for example, will not know of their rights before the new scheme starts, because those rights will be contingent on the deterioration of their health. We are grateful to the Secretary of State for supporting the amendment. Many private sector schemes provide similar protection.

If the Government accept the amendment—which I understand that they will—I shall want to put on record the trustees’ recognition that the Government wish to empower IPSA to create a scheme relating to the pension benefits that Members of Parliament will earn in future. The protective words being sought in relation to rights that Members have earned are not intended in any way to prevent IPSA from creating such a scheme. However, the trustees consider it important for the contingent rights of serving Members, which have been paid for by Members’ contributions, to be protected.

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I grateful to the hon. Members for Bournemouth, West (Sir John Butterfill), for North-West Cambridgeshire (Mr. Vara) and for Somerton and Frome (Mr. Heath) for the general welcome that they have given our proposals. I do not need to say much more about them.

The hon. Member for Bournemouth, West was good enough to accept my explanations in respect of his amendments (a) to amendment 76, (b) to amendment 74, (a) and (b) to amendment 80, and amendments 91 and 92. A total of six amendments refer to only two issues, the substitution of “benefits” for “pensions” and the issue of a trust scheme. I hope that in both instances my explanations have been adequate.

The hon. Gentleman was also good enough to confirm the view of the trustees, which I know is also the view of the whole House—I paraphrase his words—that we should stick faithfully to recommendation 43 of the Kelly report, which states:

“The independent regulator should… therefore be given statutory responsibility for setting MPs’ pay levels and overseeing MPs’ pensions”.

The recommendation is more explicit about IPSA’s power to set the terms and oversee the administration of parliamentary pensions.

I believe that our proposals achieve the necessary balance. What I am about to say is almost otiose, but it may just be worth my saying it. If it transpires following the election—it will have to be then, but I hope that this will become law—that because of the speed with which we have had to undertake these measures there are some glitches in the drafting, the House will have to return to the matter. However, given the explanations offered by the hon. Member for Bournemouth, West on behalf of the trustees and those offered by me, and given the spirit in which the changes are being made, I hope that that will not be necessary.

Amendment 55 agreed to.

Clause 43

Investigations

Amendment made: 56, page 25, line 7, at end insert

‘, including findings that the member’s being paid an amount under the MPs’ allowances scheme that should not have been allowed was wholly or partly the IPSA’s fault.’.—(Mr. Straw.)

Schedule 5

Parliamentary Standards Act 2009: new Schedule 4

Amendments made: 58, page 71, line 16, leave out sub-paragraphs (2) and (3) and insert—

‘(2) The Compliance Officer—

(a) if sub-paragraph (2A) applies, may give the member a direction under this paragraph (a “repayment direction”), and

(b) otherwise, must give the member a repayment direction.

(2A) This sub-paragraph applies if the Compliance Officer has made findings under section 9(5) that the member’s being paid an amount under the MPs’ allowances scheme that should not have been allowed was wholly or partly the IPSA’s fault.

(3) A repayment direction must require the member to pay to the IPSA—

(a) if sub-paragraph (2A) applies, such amount (not exceeding the amount of the overpayment) as the Compliance Officer considers reasonable, and

(b) otherwise, the amount of the overpayment.

(3A) The repayment direction must specify the period (the “repayment period”) before the end of which that amount is to be paid.’.

Amendment 59, page 71, line 23, leave out ‘overpayment’ and insert ‘amount mentioned in sub-paragraph (3)’.

Amendment 60, page 71, line 40, leave out ‘1(4)(b)’ and insert ‘1(4)(a) or (b)’.

Amendment 61, page 71, line 40, at end insert—

‘( ) The guidance must include guidance about whether the Compliance Officer should include such a requirement if paragraph 1(2A) applies.’.

Amendment 62, page 72, line 10, at end insert—

‘( ) if paragraph 1(2A) applies, the Compliance Officer’s decision to give the member a repayment direction;

( ) if paragraph 1(2A) applies, the amount the member is required to repay because of paragraph 1(3)(a);’.—(Mr. Straw.)

Schedule 6

Parliamentary standards: consequential amendments

Amendment made: 63, page 77, line 41, at end insert—

‘Part 2

Amendments of other Acts

European Parliament (Pay and Pensions) Act 1979 (c. 50)

8 (1) In section 1(2) (salaries of MEPs) for paragraphs (a) and (b) substitute “the same as that of the salary payable for that period, under section 4 of the Parliamentary Standards Act 2009, to a Member who does not hold an office or position specified in a resolution of the House of Commons for the purposes of section 4A(2) of that Act (higher salaries for holders of specified offices or positions).”

(2) Omit section 5 (salary to be used for calculating pension benefits).

(3) In section 8(1) (interpretation) omit the definition of ““a Member’s ordinary salary” and “a Member’s pensionable salary””.

Parliamentary and other Pensions Act 1987 (c. 45)

9 In section 5(2) (interpretation) for the words from “such resolutions” to the end substitute—

“(a) section 4 of the Parliamentary Standards Act 2009, or

(b) in relation to a time before that section was in force, the resolutions of the House of Commons then in force relating to the remuneration of its members.”

Ministerial and other Pensions and Salaries Act 1991 (c. 5)

10 In section 4 (grants to persons ceasing to hold ministerial and other offices)—

(a) omit subsection (3),

(b) after that subsection insert—

“(3A) The annual amount of the salary paid to a person in respect of the office of Chairman of Ways and Means or Deputy Chairman of Ways and Means is the difference between—

(a) the annual amount of the salary payable under section 4 of the Parliamentary Standards Act 2009 to a person holding that office, and

(b) the annual amount of the salary payable under that section to a member of the House of Commons who does not hold an office or position specified in a resolution of that House for the purposes of section 4A(2) of that Act (higher salaries for holders of specified offices or positions).”, and

(c) omit subsection (7).

Scotland Act 1998 (c. 46)

11 (1) Section 82 (limits on salaries of MSPs) is amended as follows.

(2) In subsection (1)—

(a) before paragraph (a) insert—

“(za) under section 4 of the Parliamentary Standards Act 2009 (salaries of members of the House of Commons),”, and

(b) in paragraph (a) for “either House of Parliament” substitute “the House of Lords”.

(3) In subsection (2)(b) for “(1)(a)” substitute “(1)(za), (a)”.

Government of Wales Act 2006 (c. 32)

12 (1) Section 21 (limits on salaries of Assembly members) is amended as follows.

(2) In subsection (1)—

(a) before paragraph (a) insert—

“(za) under section 4 of the Parliamentary Standards Act 2009 (salaries of members of the House of Commons),”, and

(b) in paragraph (a) for “either House of Parliament” substitute “the House of Lords”.

(3) In subsection (2)(b) for “(1)(a)” substitute “(1)(za), (a)”.’.—(Mr. Straw.)

Schedule 7

Parliamentary and other pensions

Amendment proposed: 64, page 78, line 9, leave out sub-paragraphs (2) to (4) and insert—

‘Number and composition of trustees

1A (1) The following are to be the trustees of the Fund—

(a) one person appointed by the IPSA after consulting the Minister for the Civil Service and the persons who are already trustees of the Fund,

(b) one person appointed by the Minister for the Civil Service after consulting the IPSA and the persons who are already trustees of the Fund, and

(c) 8 persons nominated and selected in accordance with arrangements under paragraph 1B (“member-nominated trustees”).

(2) Paragraphs 44 and 45 make transitional provision about the trustees of the Fund.

Member-nominated trustees

1B (1) The trustees of the Fund must make arrangements for the nomination and selection of member-nominated trustees.

(2) The arrangements must provide for the member-nominated trustees to be—

(a) nominated as the result of a process in which all the members of a scheme under paragraph 7 and all the members of a scheme under paragraph 11 are eligible to participate, and

(b) selected as the result of a process in which all those persons are eligible to participate.

(3) The arrangements must—

(a) include provision for the nomination and selection process to take place within a reasonable period of any vacancy arising,

(b) include provision, where a vacancy is not filled because insufficient nominations are received, for the nomination and selection process to be repeated at reasonable intervals until the vacancy is filled, and

(c) include provision that, where the IPSA or the Minister for the Civil Service so requires, a person who is not a member of a scheme under paragraph 7 and is not a member of a scheme under paragraph 11 must have the approval of the IPSA or the Minister for the Civil Service to qualify for selection as a member-nominated trustee.

(4) The arrangements may include provision that where the number of nominations received is equal to or less than the number of vacancies, the nominees are to be treated as selected (subject to sub-paragraph (3)(c)).

Remuneration

1C (1) The IPSA may provide for remuneration and allowances to be payable to the trustees of the Fund.

(2) Any such remuneration and allowances are to be paid from the assets of the Fund.

Resignation and removal of trustees

1D (1) A person appointed as a trustee of the Fund by the IPSA under paragraph 1A(1)(a)—

(a) may resign by giving written notice to the IPSA, and

(b) may be removed by the IPSA after consulting the Minister for the Civil Service and all the other trustees of the Fund.

(2) A person appointed as a trustee of the Fund by the Minister for the Civil Service under paragraph 1A(1)(b)—

(a) may resign by giving written notice to the Minister for the Civil Service, and

(b) may be removed by the Minister for the Civil Service after consulting the IPSA and all the other trustees of the Fund.

(3) A person who is a member-nominated trustee—

(a) may resign by giving written notice to the other trustees of the Fund, and

(b) may be removed by all the other trustees of the Fund acting together.

Proceedings

1E (1) Subject to any provision contained in a scheme under paragraph 3 because of paragraph 3(1)(c), the trustees of the Fund may determine their own procedure.

(2) The validity of any proceedings of the trustees of the Fund is not affected by—

(a) a vacancy among the trustees, or

(b) a defect in the appointment of a trustee.’.—(Mr. Straw.)

Amendments made to amendment 64: (a), in paragraph 1B(2)(b), after ‘which’, insert ‘some or’.

Amendment (b), in paragraph 1C(1), after ‘may’, insert

‘with the consent of the Treasury’.—(Sir John Butterfill.)

Amendment 64, as amended, agreed to.

Amendment made: 90, page 79, line 2, at end insert—

‘(bb) the indemnification of the trustees (and former trustees) of the Fund’.—(Sir John Butterfill.)

Amendments made: 65, page 79, line 3, leave out ‘number, qualification and’.

Amendment 66, page 79, line 19, at beginning insert—

‘( ) The IPSA may make a scheme under paragraph 3 only with the consent of the trustees of the Fund.’.

Amendment 67, page 79, line 22, leave out paragraph (c).

Amendment 68, page 79, line 28, leave out paragraph (a).

Amendment 69, page 80, line 22, leave out from ‘with the’ to ‘make’ in line 23 and insert ‘relevant consents,’.

Amendment 70, page 80, line 24, at end insert—

‘(1A) The “relevant consents” means—

(a) if the result of making the provision is that the amount of the Exchequer contribution in respect of any financial year is less than it otherwise would be, the consent of the Treasury, the Minister for the Civil Service and the trustees of the Fund, and

(b) otherwise, the consent of the Treasury and the Minister for the Civil Service.’.

Amendment 71, page 80, line 28, after ‘(a)’ insert

‘(if sub-paragraph (1A)(a) does not apply)’.

Amendment 72, page 80, line 28, after ‘Fund,’ insert—

‘( ) the Government Actuary,’.

Amendment 73, page 81, line 24, after ‘as’ insert ‘in service as’.—(Mr. Straw.)

Amendments made: 94, page 82, line 6, leave out ‘the provision specified in paragraph 24(2)’ and insert—

‘(i) the provision specified in paragraph 21(1), unless with the consent of the trustees of the Fund,

(ii) the provision specified in paragraph 26, unless with the consent of the trustees of the Fund, and

(iii) the provision specified in paragraph 24(2)’.

Amendment 95, page 83, line 24, at end insert

‘, except the provisions specified in paragraphs 21(1) and 26 unless with the consent of the trustees of the Fund’.

Amendment 93, page 84, line 16, after ‘puts’, insert ‘(or might put)’.—(Sir John Butterfill.)

Amendments made: 74, page 84, line 18, leave out from ‘if’ to end of line 28 and insert—

‘(a) the trustees of the Fund consent to the new scheme making the provision, and

(b) the person making the new scheme is satisfied that the consent requirement is met.

(4) The consent requirement is met if under the new scheme the provision has effect in relation to an accrued right only with the written consent, given in accordance with sub-paragraph (4A), of—

(a) the person (“P”) in respect of whose service the right has accrued, or

(b) if P is dead, the persons (“the survivors”) who because of the accrued right are entitled, or may become entitled, to a pension or the benefit of any pension.

(4A) Consent is given in accordance with this sub-paragraph if it is given after the person making the scheme has given P (or the survivors)—

(a) information in writing which adequately explains the nature of the provision and its effect,

(b) notice in writing that they may make representations about the provision,

(c) an adequate opportunity to make such representations, and

(d) notice in writing that the provision has effect in relation to the accrued right only with their written consent.

(4B) Consent may be given by a person acting on behalf of P (or the survivors); and the references in sub-paragraph (4A) to P (or the survivors) include a person acting on their behalf.’.

Amendment 75, page 84, line 29, leave out ‘(3)(a)’ and insert ‘(4)(a)’.—(Mr. Straw.)

Amendment proposed: 76, page 84, line 36, leave out sub-paragraphs (2) and (3) and insert—

‘(2) “Accrued right”, in relation to a provision of the new scheme, means a right or entitlement to or in respect of a pension or future pension payable out of the Fund which has accrued in respect of service before the provision comes into force.

(3) If the person in respect of whose service the right or entitlement has accrued is in service when the provision comes into force, the right or entitlement is to be determined as if the person left service immediately before then.’.—(Mr. Straw.)

Amendments made to amendment 76: (a), after ‘means a right’, insert ‘(including a contingent right)’.

Amendment (c), leave out sub-paragraph (3).—(Sir John Butterfill.)

Amendment 76, as amended, agreed to.

Amendments made: 77, page 85, line 4, leave out paragraph (a).

Amendment 78, page 85, line 8, leave out paragraph (a).

Amendment 79, page 85, line 12, leave out sub-paragraph (6).

Amendment 80, page 85, line 31, at end insert—

‘( ) For the purposes of this Schedule “member”—

(a) in relation to a scheme under paragraph 7, means a person with service as a member of the House of Commons who, in respect of that service, has a right or entitlement under the scheme to a pension or future pension payable out of the Fund, and

(b) in relation to a scheme under paragraph 11 , means a person with service to which that paragraph applies who, in respect of that service, has a right or entitlement under the scheme to a pension or future pension payable out of the Fund.’.

Amendment 81, page 85, line 35, at end insert—

‘“member-nominated trustee” has the meaning given by paragraph 1A;’.

Amendment 82, page 90, line 38, leave out from beginning to ‘may’ in line 41 and insert—

‘(1) The existing regulations have effect (subject to any provision in an order under section 89 of this Act)—

(a) so far as they relate to matters which could be contained in a scheme made by the IPSA under paragraph 3, as if they were a scheme made by the IPSA under that paragraph,

(b) so far as they relate to matters which could be contained in a scheme made by the IPSA under paragraph 7, as if they were a scheme made by the IPSA under that paragraph, and

(c) so far as they relate to matters which could be contained in a scheme made by the Minister for the Civil Service under paragraph 11, as if they were a scheme made by the Minister under that paragraph.

(2) An order under section 89 or 90 of this Act’.

Amendment 83, page 91, line 8, leave out ‘The order’ and insert

‘An order under section 89 or 90 of this Act’.

Amendment 84, page 91, line 16, leave out ‘The order’ and insert

‘An order under section 89 or 90 of this Act’.

Amendment 85, page 91, line 24, after ‘means’ insert ‘the’.

Amendment 86, page 91, line 25, at end insert

‘in force immediately before the date specified in an order made by a Minister of the Crown by statutory instrument.

( ) An order under sub-paragraph (8) may specify different dates for different purposes.’.

Amendment 87, page 92, line 4, leave out ‘1’ and insert ‘1A to 1D’

Amendment 88, page 92, line 7, at end insert—

‘( ) In paragraph 29(2) of Schedule 1 (interpretation) in the definition of “regulation functions” after “18(2)” insert “and (3)”.

43 (1) An order under section 13 of the Parliamentary Standards Act 2009 may make the provision mentioned in section 13(6) (provision for transfer schemes) in connection with this Schedule (as well as in connection with that Act).

(2) But for this purpose—

(a) the reference in section 13(6)(a) to matters dealt with by the rules is to be treated as a reference to matters which could be dealt with by a scheme under paragraph 3 or 7;

(b) section 13(6)(b) and (c) does not apply to property, rights and liabilities, or documents and information, held by or on behalf of the trustees of the Fund.

(3) Section 13(7) of that Act applies to a scheme made by virtue of section 13(6) and this paragraph.

Trustees of the Fund

44 (1) This paragraph applies if, under an order under section 90, paragraph 1A comes into force for the purpose of making an appointment under paragraph 1A(1)(a) or (b) before it comes into force for other purposes.

(2) The reference in paragraph 1A(1)(a) or (b) to the persons who are already trustees of the Fund is to the persons who are trustees of the Fund by virtue of section 1 of the Parliamentary and other Pensions Act 1987 (c. 45).

45 (1) In this paragraph “the transitional period” means the period of six months beginning with the day on which paragraph 1A comes into force (other than for the purpose of making an appointment under paragraph 1A(1)(a) or (b)).

(2) During the transitional period—

(a) paragraph 1A(1) applies as if for paragraph (c) there were substituted—

“(c) the persons who (by virtue of section 1 of the Parliamentary and other Pensions Act 1987) are the trustees of the Fund immediately before the beginning of the transitional period.”, and

(b) paragraph 1D applies to persons who are trustees of the Fund because of paragraph (a) as if they were member-nominated trustees.

(3) But if a person who is a trustee of the Fund immediately before the beginning of the transitional period is appointed under paragraph 1A(1)(a) or (b) that person is not to be treated as being a trustee of the Fund because of sub-paragraph (2)(a).

(4) The trustees of the Fund must make arrangements (the “transitional arrangements”) for 8 persons to be nominated and selected as member-nominated trustees before the end of the transitional period.

(5) Those persons become member-nominated trustees immediately after the end of the transitional period.

(6) Only persons who are trustees of the Fund immediately before the beginning of the transitional period may be nominated and selected as member-nominated trustees under the transitional arrangements.

(7) But if it is not possible to secure 8 member-nominated trustees from among those persons, the deficiency may be supplied by other persons.

(8) At the end of the transitional period any persons who—

(a) immediately before the end of that period, are trustees of the Fund because of sub-paragraph (2)(a), but

(b) have not been nominated and selected as member-nominated trustees,

cease to be trustees of the Fund.’.—(Mr. Straw.)

Clause 59

Demonstrations etc in the vicinity of Parliament

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I beg to move amendment 2, page 33, line 16, leave out ‘section 132 to 138’ and insert

‘sections 132 to 136 and section 138.’.

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With this it will be convenient to discuss the following: amendment 8, page 33, line 18, leave out subsection (2).

Amendment 9, page 95, line 15, leave out schedule 9.

Amendment 10, in schedule 9, page 95, line 21, leave out from ‘procession’ to end of line 18 on page 55 and insert

‘or a public assembly that is having the effect of preventing reasonable access to the Houses of Parliament.

(2) The Speaker of the House of Commons shall decide whether reasonable access to the Houses of Parliament has been prevented.

(3) If the Speaker has decided under subsection (2) that reasonable access to the Houses of Parliament has been prevented, the senior police officer may, for the purpose of restoring reasonable access to the Houses of Parliament, give directions to any person who is organising or taking part in the public procession or public assembly.

(4) The directions referred to in subsection (3) must be necessary for the purpose of restoring access to the Houses of Parliament and proportionate to that purpose.’.

Amendment 17, page 95, leave out lines 40 and 41.

Amendment 24, page 95, line 41, at end insert

‘in relation to how the specified requirements for maintaining access to and from the Palace of Westminster shall be met’.

Amendment 14, page 96, leave out lines 1 to 3 and insert—

‘(6) A statutory instrument containing an order under this section must be approved by both Houses of Parliament.’.

Amendment 26, page 96, line 5, leave out ‘include’ and insert ‘are limited to’.

Amendment 11, page 96, leave out lines 15 to 18.

Amendment 12, page 96, leave out lines 21 to 39.

Amendment 19, page 96, line 27, leave out ‘300’ and insert ‘250’.

Amendment 30, page 96, line 28, leave out ‘the nearest relevant entrance’ and insert

‘the point nearest to it in Parliament Square’.

Amendment 31, page 96, leave out lines 29 to 36.

Amendment 15, page 96, leave out lines 37 to 39 and insert—

‘(5) A statutory instrument containing an order under this section must be approved by both Houses of Parliament.’.

Amendment 13, page 96, line 40, leave out from beginning to end of line 35 on page 97 and insert— 

‘14ZB  Special provision for a House or Committee meeting outside Palace of Westminster

(1) If either House of Parliament, or a committee of either House of Parliament, intends to meet in a building outside the Palace of Westminster, the Secretary of State may by order made by statutory instrument specify that the building shall count as part of the Houses of Parliament for the purposes of section 14ZA on the day or days that the meeting is taking place.

(2) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

For the purposes of this section, the Speaker may delegate the matter referred to in section 14ZA(2) to the person who is in the chair of the relevant meeting.’.

Amendment 20, page 97, line 1, leave out ‘300’ and insert ‘250’.

Amendment 21, page 97, line 19, leave out from ‘any’ to ‘used’ in line 20 and insert

‘day on which the specified building is’.

Amendment 22, page 97, leave out line 23.

Amendment 18, page 97, leave out lines 29 and 30.

Amendment 25, page 97, line 30, at end insert

‘in relation to how the specified requirements for maintaining access to and from the specified building shall be met’.

Amendment 16, page 97, leave out lines 31 to 33 and insert—

‘(9) A statutory instrument containing an order under this section must be approved by both Houses of Parliament.’.

Amendment 3, page 97, leave out lines 36 to 40 and insert—

‘Serious Organised Crime and Police Act 2005 (c. 15)

2 (9) In section 137, the following amendments are made in relation to the use of amplified noise equipment and other devices designed to produce noise in the area around Parliament.

(10) For “loudspeaker” wherever it occurs substitute “amplified noise equipment or other device designed to produce noise”.

(11) In subsection (1) leave out “in a street in the designated area” and insert “in the area around Parliament, as specified by order under section 14ZB of the Public Order Act 1986”.

(12) In subsection (2), leave out paragraph (i).

(13) After subsection (3) insert—

“(3A) A police officer shall, on receipt of a complaint of excessive noise caused by amplified noise equipment or other device designed to produce noise, have the power—

(a) to require the operator to desist, and

(b) in the event of non-compliance, to seize the amplified noise equipment or other device designed to produce noise and to retain it as long as it is deemed necessary.

(3B) The powers available under subsection (3A) above may be exercised by the most senior police officer in the immediate vicinity of the source of the noise.”.

(14) In subsection (6) leave out “or of” and insert “save where prohibited under”.’.

Amendment 23, page 98, line 4, leave out paragraph 5.

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Although amendment 2 is the lead amendment, it is to amendment 3, proposed by the Conservatives, that I should like to address my remarks. It would amend the Serious Organised Crime and Police Act 2005 in respect of activities in Parliament square. The amendment would empower the most senior police officer present, first, to require the operator of amplified noise equipment to desist and, secondly, to confiscate the equipment on receipt of a complaint about excessive noise.

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I spent rather a large part of my life dealing with the Serious Organised Crime and Police Bill in Committee and on Report. One of the criticisms, which I thought Conservative Front Benchers at the time shared, was of the provision that allowed for the powers under that Act in respect of Parliament square to be exercised by an officer of no higher rank than constable. Is it not the case that what the hon. Lady is proposing today revisits that issue, with Conservatives on the other side of the argument? The nearest available police officer may well simply be a constable, yet she is proposing that that constable be given these powers.

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No, the hon. Gentleman is nit-picking. The intention of amendment 3—[Interruption.] We are discussing the general principle, although I agree that we are also discussing the particulars. I do not see that there is a conflict between what was said some years ago and what is being said now. However, if there is a conflict, my answer is simply that what is on today’s amendment paper is what we are proposing today and that is what I am putting before the House now.

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It is the opposite.

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If it is the opposite of what some colleagues of mine said some years ago, so be it—this is what we propose today. The hon. Gentleman is wasting time. We have very little time to get through the rest of this Bill. If he does not want powers to be taken to sort out the chaos in Parliament square, he is entitled to say so, but we are discussing what is in front of us now.

The Bill as it stands does not provide an alternative arrangement for dealing with an effective sanction by completely removing the illegality of the offence. We all know that people who work in the buildings surrounding Parliament square are particularly affected by the use of amplified loudspeakers, which are used almost constantly by protesters. We in this Chamber are protected. We cannot hear the noise when we are in here, but it is the people who work for us and the people who run the parliamentary offices and Government Departments who are affected. The vast majority of people who have complained are not Members of Parliament. There may be a feeling out there that Members of Parliament get what they deserve, and fair enough, but that is not the point. The point is that it is their long-suffering secretaries, assistants and researchers who bear much of the distress and disturbance.

My hon. Friend the Member for New Forest, East (Dr. Lewis)—I hope that he will be able to address the House on the matter shortly; he has campaigned effectively on the issue for some time—has received 52 complaints. I hope that he will not go into great detail on all 52, but I am sure that he will give us a flavour of them. For that reason, I will not go into those details, because he is well able to do so. However, 52 people have complained and there are many more who agree with them because their professional lives are frequently made more difficult and distressing by what can only be described as harassment from the protesters in Parliament square.

If the intention behind amplifying at such volumes is to penetrate the walls of Parliament and reach the legislators within, frankly, it does not work. It is impossible to distinguish what is being said, so although the enormously disturbing sound is loud, the message is not transmitted to its intended audience. Thus the aim of penetrating Parliament to convey a message is lost.

We also understand that there are practicalities to consider. I am being intentionally brief because we have so much more of the Bill to get through—once again, we do not have enough time to do that—and I believe that most hon. Members are well aware of the problem. The Government are also well aware of the problem and have been sympathetic to various plans over the years to try to sort it out. They have themselves tried to legislate to improve the situation in Parliament square. Frankly, they have failed but I am not blaming them—this is not a party political matter; it is a matter of principle and of getting the balance right. Allowing freedom of speech is of course essential in our free country, and freedom of speech in the vicinity of Parliament is totally right. It is the freedom and the right of every person in this country to be able to tell Parliament what they think, but that has to be balanced with the practicality of having, effectively, chaos and constant noise in Parliament square.

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Is my hon. Friend aware of any other legislature in the world that would allow the chaos—the unregulated behaviour—that goes on outside our front doors?

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My hon. Friend makes an extremely good point. I know of no other legislature that would put up with the chaos and mess that is out there now. I am always a great defender of freedom of speech. Freedom of the individual is the most important thing that this Parliament stands for. If we do not stand for that, we stand for nothing, but because some people have set up camp in Parliament square and effectively have a monopoly on that bit of ground, from which they can be most noisy and disrupt this place, other people who may wish to come for a day or an hour to make a short protest about something about which they care and that affects their families, town or principles, do not have the freedom of speech that they should have. The people who have already set up camp and established their monopoly are in a strong position and are preventing other people from having the freedom of speech that they deserve.

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I have enormous sympathy with the hon. Lady’s points. How could I not, as I have made them in the past? Would she be prepared not to press the amendment, to allow a cross-party, sensible approach to be adopted, rather than this being seen as adversarial?

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I understand the right hon. Gentleman’s point but I had hoped that this debate was not adversarial. I had the impression that the amendment has support on both sides of the House. I do not wish to be adversarial at all. Unfortunately, when a similar amendment was tabled in Committee we ran out of time and it was not debated. If at that stage the right hon. Gentleman had made such a request, I would certainly have acceded to it. Now, alas, it is too late because we are running out of time. It is a pity that this long, ever-expanding and important Bill did not have more time in Committee, which would have allowed his proposed solution to prevail. I accept that he knows a great deal about the issue and that he is one of those who, very reasonably, tried to sort it out.

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My hon. Friend, who is being very indulgent in giving way, makes an extremely good point: many who might like to protest here over a particular issue are effectively debarred from doing so because of the almost permanent campsite in Parliament square. Might not one approach be to say that any demonstration in future should be an accompanied demonstration and that people should not just be allowed to set up camp and disappear, effectively leaving the site unmanned?

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My hon. Friend is absolutely correct. That is one possible solution. Good ideas are now coming forward—I am sure that there will be more from other parts of the House—and it is a great pity that we did not have the opportunity in Committee to explore the matter further. That would also have given the Minister a chance to put the Government’s point of view. I am sure that we could have achieved a consensus. It is still my hope that we will achieve a consensus this evening because the vast majority of people who work and live in and around Parliament square want to see the current chaos removed and order put in its place. I want to see freedom of speech and the opportunity for freedom of speech for every citizen in this country, not just those who now monopolise Parliament square.

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I am sorry to disappoint the hon. Lady, but I do not think there is consensus on the issue, and the more she spoke, the more I realised why there is not. I do not think that there is chaos outside; far from it. I have seen chaos and that is not chaos. It is untidy and annoying for people who like everything to be neat, tidy and orderly, but it is not chaos. I oppose the amendment, first, because I do not think that there is much of a problem and, secondly, to the extent that there is a problem, the means already exist for dealing with it.

Parliament is situated in the middle of a city; it is not in the middle of the countryside. One cannot expect total silence in the middle of a city. The evidence of the noise that we hear—it was accepted by the Government in their consultation exercise—showed that it was no more annoying than traffic noise. [Laughter.] It might be that I have lived a more urban life than members of the Conservative party; I am almost certain that I have. The idea that one cannot work in a city that is somewhat noisy would come as a great surprise to most of the inhabitants of London and all our great cities, and certainly to the inhabitants of New York. The idea that one cannot work except in total silence is extraordinary. If I think of occasions when my own work and that of my office in the precincts of the Palace has been disrupted, it has not been by protests outside but by the helicopter that we sometimes hear—whether it is a police or MOD helicopter, I am not sure—or by noise from the river traffic, which is the kind of thing that one expects if one lives and works in a major city.

To the extent that there is a problem, I cannot see why we need special protection in this House, and why we cannot use the general law. I cannot see why we should give ourselves some kind of special position legally. There are three obvious existing legal methods for dealing with any problem that arises. First, there is statutory nuisance—environmental health legislation.

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I wish that the hon. Gentleman were right—I really do—but that does not apply to political protests.

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It applies in the sense that if noise gets entirely out of hand, environmental health standards come in. If it does not apply, it will be for human rights reasons, in which case there is nothing that the amendment can do about it as it would violate the Human Rights Act and the European convention on human rights. Either way, the hon. Gentleman cannot go down that route.

Even if the statute does not apply, there is the common law of public nuisance, which has been applied to demonstrations for centuries.

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Can I tell the hon. Gentleman—not in a partisan, spiteful or exasperated way—that all these alternative remedies have been explored with Westminster council and the police, and none of them applies? None of them works. The only sanction that could ever be imposed would be to report the matter to the courts. If at the end of that there were a judgment, a fine would be paid by someone else. Nothing can be done to stop the noise other than a right of confiscation of equipment.

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First, the hon. Gentleman seems unwilling to accept the rule of law; he wants to exempt himself from the ordinary courts. I do not see how that is acceptable. Secondly, there is already a right of confiscation of noise-making equipment—stereos and so on—under environmental health law. Many of us have been local councillors and have seen the police use this power in conjunction with environmental health officers. If it turns out that Westminster council is not very efficient, I suggest that Conservative Members should address themselves to their fellow party members who run that council.

There is a third way in which demonstrations can be brought to an end; it is if they cause serious disruption to the life of the community, as contained in section 14 of the Public Order Act. If the hon. Gentleman wants to tell me that that cannot be used, I can tell him that I have seen it myself being used at the G20 demonstration. It is not the case that there is no remedy.

I find the details of the amendment even more extraordinary. Confiscating all amplified noise equipment seems to me to amount to banning speeches at any demonstration in the vicinity of Parliament. Anyone who has tried to make a speech outside in a noisy city will know how difficult it is to make oneself heard. This seems to be a direct attempt to make sure that people cannot have their voice heard at organised demonstrations. Also, the Government picked up in their consultation that in a demonstration it is quite important for the stewards and organisers to be able to get their point across to keep order within their demonstration. Having to do that without the assistance of any amplification would make demonstrations more dangerous for the people taking part.

There is a further point. It is often said—I have heard it said from the Conservative Front Bench as well as my party’s—that any power we grant will end up being abused. A power is being granted here to seize any device designed to make a noise. That could cover almost anything—buckets, balloons or party poppers, for instance. [Interruption.] The hon. Member for Epping Forest (Mrs. Laing) is looking amazed, but all those things were seized by the police in the Kingsnorth demonstration in Kent, on the grounds that they were going to be used in illegal ways. [Interruption.] The hon. Member for Hendon (Mr. Dismore) has reminded me of the other things that were seized. I will not recount them all, but they included clown suits. The point here is that if one grants the police a power in respect of policing protest, experience shows that that power will be abused to interfere in the right to protest. I therefore cannot go down the route the hon. Lady proposes at all; I am sorry to have to tell her that she will not find consensus in support of her proposals from my party, or, I hope, from the Labour party.

I shall now turn to the other 18 amendments in this group that were tabled by me and my hon. Friend the Member for Somerton and Frome (Mr. Heath). [Interruption.] I apologise to the hon. Member for Hendon for forgetting about his amendments—which are very moderate, I might add. The purpose of our amendments is to go in the opposite direction from the amendments tabled by Conservative Front Benchers. Our amendments would further protect the right to protest and freedom of speech.

Amendments 8 and 9 would simply remove from the Bill the whole replacement regime for the Serious Organised Crime and Police Act 2005 regime. There is no obvious need for extra powers against demonstrations in the vicinity of Parliament. However, I accept that we had a vote on that in Committee—there was no debate, but there was a vote—so instead of trying to explain why I think there is no need for this replacement legislation, I want to make a case for amendment 10, which offers a compromise between our view and the Government’s.

The Government propose a system of prior restraint under which the authorities can take pre-emptive action, where they think there might be interference with access to this House. We think that it would be perfectly adequate to have no prior restraint, but instead to have powers that allow the police to ensure that access to the House is preserved—we do not think that that is absolutely necessary, but we are assuming for the purposes of this amendment that we are wrong about that. Amendment 10 removes the pre-emptive powers and replaces them with provisions for what could happen, if it turns out that access to this House is being interfered with by protest. A senior police officer would be able, but only in circumstances where the Speaker decides that reasonable access to the Palace is being prevented, to give directions to anyone organising or taking part in the demonstration to do whatever is necessary to restore order.

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I recall that when we discussed policing and protest in Westminster Hall on the basis of my Committee’s report, the hon. Gentleman endorsed the consensus view that there should be no surprises in respect of policing and protest. Is not what he is proposing here likely to lead to that very problem of surprise action by the police? It does not encourage what he and I would like to see—negotiations between police and protestors to deal with any problems.

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I do not agree with that, because the existence of the power would be known to both sides. The point about there being no surprises is not to do with the law; it is to do with contact, negotiation and talks between protestors and police, so that both sides know where the other stands. A power of that sort would not interfere with that process. In fact, it might encourage more contact, because it would not be a pre-emptive power that protestors might think would be used against them any way. It is my view that we can move forward in this area with a proportionate power to deal with any real problems that might arise, not a power that can be used pre-emptively without any real problem having yet occurred.

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Why would a senior police officer be needed to protect the right of access to this House?

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Actually, under amendment 10 it is the Speaker who decides that reasonable access has been prevented, which is a rather more traditional way of doing things, and then the Speaker gives the authorisation through a senior police officer. The senior police officer simply gets to say precisely what it is the demonstrators have to do in order to restore access. I think that ought to be a senior police officer, because this is an important interference with an important right and, as we have learned from many examples of policing protest, giving that kind of discretion to junior police officers is simply asking for trouble.

I do not want to go through the 17 other amendments, but I want to ask the Government about a particular problem that is raised in our amendments 19, 20, 30 and 31. The problem has arisen because the Government amended their own Bill in Committee without any debate. They extended by a very great extent the area around Parliament that is covered by the replacement regime. Westminster bridge is now covered, as is a large section of Whitehall. Victoria Tower gardens is covered, too, in a way that it was not covered before. I am not sure why it was thought necessary to increase the area by so much.

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That was undertaken after discussion with the House authorities, to ensure that we have appropriate access to the House in the event of a demonstration.

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That is an interesting reply. Westminster bridge is included, as I have said. Is the idea to be able to clear that bridge in a way that was not done in the Tamil demonstration? I wonder whether the Minister’s definition of access includes a very broad notion of what one needs in order to get access to the House. I have to say that during the Tamil demonstration, I did not have any difficulty getting into the House, because I came by tube, and the tube station was never blocked.

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My hon. Friend may not recall this, as I do not think that he was a Member of the House at the time, but during the debates on the Serious Organised Crime and Police Act 2005, the Government’s original contention involved a radius of 1 mile around the Houses of Parliament, which was excessive. That was another point on which the Conservatives and the Liberal Democrats were at one in criticising the Government, although it seems that a different view now prevails among the Conservatives.

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Yes, it will be interesting to see whether they still hold that view. The problem for me is whether the purpose is really to maintain access to the House itself, or instead to stop demonstrations that simply annoy people to some extent.

Let me explain one final query, which is raised by our amendment 21. Schedule 9 includes provision for the Bill’s regulations to be extended beyond Parliament itself to any building that Parliament is using—I suppose an example would be a building in which a Regional Committee is meeting off site. The regulation of demonstrations that the schedule creates would exist for a week around such a building. Why opt for a week? Why not just opt for the day on which Parliament is proposing to use the building?

This approach raises a more general issue about proportionality, which is addressed in the amendments tabled by the hon. Member for Hendon, because this is another example of a power being sought that is disproportionate to the problem at hand. Why is it necessary to control demonstrations for a week when Parliament or a parliamentary Committee is meeting in a building for only one day? This debate is about the untidiness of democracy. I know that it offends some people and that some people find it difficult to cope with, but that is democracy—democracy means an untidy populace who will have their say. I do not think that we should do any more to get in their way.

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I wish to discuss amendments 24, 25 and 26, which stand in my name on behalf of the Joint Committee on Human Rights, and I draw the attention of hon. Members to our report that has been tagged for this debate. Not only were the amendments part of our scrutiny report on this Bill, but they give effect in large part to what we had to say in our report on policing and protest.

First, I shall deal with the good news from the Minister’s point of view. My Committee very much welcomes the Government’s decision to legislate to repeal sections 132 to 138 of the Serious Organised Crime and Police Act 2005 and, in particular, their decision to amend the Public Order Act 1986 to deal with protest around Parliament. Such an approach is consistent with much of the evidence we received during our policing and protest inquiry and gives effect to the recommendations that we made in our reports on this issue. As we have stated, sections 132 to 138 have proved too heavy-handed in practice, are difficult to police and lack widespread acceptance by the public. I shall not go into the detail now, because we have dealt with the matter at great length in our Westminster Hall debate on the report on policing and protest. I know that he was not able to be there because of his duties upstairs, but I am sure that he has followed the debate.

My Committee also welcomes the decision to reduce the area around Parliament in which special requirements will apply, but I, too, have concerns about the extension from 250 metres to 300 metres. What has been proposed is a more proportionate response, which is less intrusive on individual rights to freedom of association and expression than the existing arrangements. However, the overall thrust of my amendments seeks to deal with the fact that some of the proposed replacement provisions give us cause for concern as they are widely drafted and could result in legal uncertainty. One of the main thrusts of all the Committee’s work on this issue over the past 18 months or so has been the importance of creating legal certainty for protestors, protestees and the police in order to create that “no surprises” environment so that everybody knows where they stand.

The new section 14ZA (2) proposed in schedule 9 empowers a police officer to impose conditions if

“in the officer’s reasonable opinion”

they are “necessary”. That is a very broad power. We understand that the intention is to issue a circular to the Metropolitan police and others containing guidance. According to a previous ministerial reply, it will state that

“it is important that the police, Parliamentarians and those wishing to demonstrate around Parliament are clear about what maintaining access to and from the Palace of Westminster means”.

It was explained that the guidance will contain the considerations that the police will need to take into account before giving directions that are reasonably believed to be necessary. We know from the other work we have been doing recently that the Association of Chief Police Officers manual is being revised, so perhaps when the Minister replies he will be able to say what progress has been made on that revision, because it is urgently needed.

The Committee agrees with the Minister that it is vital that the police, parliamentarians and protestors are clear about the level of access that is envisaged, but our concern is that the “reasonable opinion” of an officer is a subjective test. That raises the risk of uncertainty as to what an individual officer will or will not deem to be “reasonable” in the circumstances, and that is a recipe for problems. It can lead to confusion for protestors, police officers and those seeking access. Again, this goes back to the point about trying to eliminate the risk of surprises, either from the demonstrators or the police, as that is what inevitably leads to some of the problems that we have seen. Our approach very much chimes with the recommendations made by the chief inspector of constabulary in “Adapting to Protest—Nurturing the British model of Policing” following the G20 meeting.

The Committee welcomes the Minister’s commitment to publishing guidance, but it is important that the guidance makes clear the kind of conditions that are reasonable for an officer to impose. We desperately need there to be up-to-date and accurate guidance on policing protest in a wide variety of circumstances for police throughout the country and we urge ACPO and the Home Office to ensure that the various manuals are rapidly updated to take account of the proposed new powers in the Bill.

The second general point I wish to make concerns the order-making powers of the Secretary of State. He would be given a power to specify requirements that must be met to maintain access. One of the Committee’s concerns is that proposed new section 14ZA(7) represents a non-exhaustive list. We believe that it would be far better to have a restricted list in the Bill to ensure legal certainty. Thus, my amendment 26 would remove the word “include” before

“conditions as to the route of the procession”

to say that those conditions should be “limited to” that route

“or prohibiting it from entering any public place specified”.

That would create the legal certainty that we think is missing from the order-making power as it stands. As I have mentioned, we are concerned about the general power being given in this Bill to the senior police officer.

The other particular point that I wish to make concerns the distinction drawn in the Bill between public procession and public assembly. On public processions, the Bill contains a non-exhaustive list of conditions that can be imposed, for example on the route of the procession or which prohibit it from entering a public place. On public assemblies, however, the list of conditions that can be imposed is exhaustive—they relate to the place, the maximum duration and the number of persons that can attend. The human rights section of the explanatory notes states that

“conditions may only pertain to the place of the demonstration, its maximum duration and the maximum number of persons”

and so on, but that relates to only half the story. It relates only to public assemblies—static demonstrations—not to public protests, where no limit on the conditions that can be imposed is set out in the Bill. That is one of our main concerns and my amendment 26 aims to address it.

We agree with the Government’s view that it is desirable for legal certainty and clarity for the same or similar provisions to apply throughout the country to protest and that as few distinctions as possible should be made, but in view of the particular significance of Parliament as a venue for protest and the historic problems that have arisen in policing protest in the area, we think it is far more appropriate for a much more precise list of conditions to be set out on processions around Parliament. That is why my amendment aims to provide for such an exhaustive list as part of the Bill. An alternative approach, which I hope the Minister will examine, is to provide legal certainty through relevant guidance, giving a comprehensive list of the sorts of conditions that could be imposed on processions under this proposed new section.

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I thank the Government for making it possible by their arrangement of the business tonight for us at least to discuss amendment 3. Had we had an opportunity to discuss it in Committee, I am sure that it would have been accepted, because I understood at the time that the Secretary of State for Justice proposed to give the House a free vote. I have no doubt that if there had been a free vote, the amendment would have been overwhelmingly carried.

It is not a restriction of my freedom of speech in this place if, once I have had my say, expressed my opinion and communicated my views to other hon. Members, I proceeded to start ranting, shouting and continuing to demand to be heard even though I had had ample opportunity to convey my message—if I continued to insist on shouting my message in support of my views time and again, irrespective of the rights of others, defying any reasonable request to desist—I were then eventually forcibly removed from the Chamber. That would mean not that I had not had my freedom of speech, but that I had abused my right of freedom of speech and trampled on the rights of others.

That is what has been happening with the protest noise in Parliament square. Hon. Members and, above all, their staff are sick to death of it. The previous Speaker, on a number of occasions, expressed his concern about the nuisance of constant amplified noise. I first became aware of the problem when I had my office in No. 1 Parliament street a few years ago. It became impossible to concentrate on work because of persistent ranting through a highly amplified loudspeaker. When I investigated what was happening, I was astonished to find that there was no rally or assembly of protestors in Parliament square at all. On average, there were between half a dozen and a dozen people standing around and the person with the loudhailer certainly did not need to use it in order to exercise his right to communicate with anyone in attendance who wished to hear his message.

I crossed the road to ask the principal demonstrator why he was broadcasting at such a loud volume when so few people were present. He frankly explained that only by doing so would he be able to ensure that his message penetrated into Parliament above the noise of the traffic in the square. That clearly had nothing to do with the right freely to express his views or to communicate them to a voluntary assembly of people who wished to hear them. By contrast, it had everything to do with forcing his views on people who simply wished to go about their daily business undisturbed.

As has been pointed out already in the debate—and as I can vouch from experience—the ranting messages broadcast at such volume are loud enough to be a continual source of disturbance to people trying to work in their offices in No. 1 Parliament street, in particular, but also in various other offices and meeting rooms on the parliamentary estate. We must not forget those people who live and work in the vicinity of Parliament square and who wish to use the facility of Parliament square for their own enjoyment—they should not be disturbed unduly.

For the most part, it is not possible to distinguish what the shouting is about. The political message is not reaching its target—all it is doing is causing massive annoyance and significant distress to people who are trying to work. As was said by my hon. Friend the Member for Epping Forest (Mrs. Laing), who speaks from the Front Bench, I did a survey of people’s experiences of this persistent noise and 52 of them joined together and submitted a complaint to the council. I attached those complaints to my submission to the consultation exercise that was held.

I should like to refer to the experiences of a number of hon. Members from all parties, including the Liberal Democrat party. The hon. Member for Lewes (Norman Baker)—I have to confess, Mr. Deputy Speaker, that I did not warn him because I did not know that I would be referring to him in the Chamber today, but he gave me permission at the time to quote him in the submission that I publicly gave to the consultation exercise, so I am sure that he will not object to my quoting him now—wrote to me:

“We’re at one. You’re free to quote me objecting to the use of amplified material, provided I am also quoted as not wanting to restrict the right to protest outside parliament. (Indeed I think that the present exclusion zone should be lifted.)”

That is an example of someone who was rightly distinguishing between whether the protest should be allowed to take place and whether the people taking part in the protest should be allowed continually to use amplified noise for hours on end simply to batter the eardrums of other people who had nothing to do with the protest in the square.

An hon. Member from the Labour Benches, who is well-respected on constitutional matters, said:

“There was, and always should be, the right to lobby your MP. As a student, I would leave my placards etc on Westminster Bridge and join an orderly queue to see my MP. This whole episode shows the weakness of Parliament unable to control its surroundings let alone hold government to account.”

I have given examples from one Liberal Democrat Member and one Labour Member, and a Conservative colleague of mine—a shadow Minister—said:

“I complained to the Serjeant and was told that there was nothing he could do. My office in 1 Parliament Street does not overlook Parliament Square and yet we are still tormented by the volume of the loudspeakers.”

The parliamentary assistant to a right hon. Labour Member said that

“it drives me round the bend especially when I am trying to concentrate. We have to put up with enough noise from the constant flow of traffic without having to put up with them shouting through the loudhailer.”

Another hon. Labour Member said:

“I fully support your contention that the protestors in Parliament Square do in fact disturb those working within the Palace of Westminster. My own office overlooks Speaker’s Court and the noise can clearly be heard—even with the windows closed. Which means of course in hot weather it is impossible to open the windows without further amplifying the disturbance. I pity the poor security staff who have to work directly opposite and suffer the barrage of abuse for long periods of time.”

I have only given half a dozen or so examples and there were 52 of them, which were submitted to the consultation. I believe that the consultation response showed that there was real concern about the noise, quite apart from the question of what people thought about the demonstration’s being allowed to remain on a virtually permanent basis in the square. So, I went back to the permission that had been sought by the main protestor in Parliament square from Westminster council. I found the minutes of the meeting, which were helpfully on the internet. The meeting was held by licensing sub-committee No. 5 on 30 June 2006. The solicitor for the main protestor was a certain Mr. Grosz and the protestor, as we all know, is Mr. Haw. The minutes state:

“Mr Grosz stated that the area in question was already noisy with traffic, bells and commentary from tour buses. Mr Haw’s site was a long way from the Chambers of Parliament. There was, Mr Grosz said, no evidence of noise from Mr Haw’s loudspeaker reaching those working inside the Palace of Westminster, and that Mr Haw had no intention that loudspeaker noise penetrate its buildings.”

It quoted Mr. Haw as saying that

“he wanted to work positively with officers from the City Council to avoid creating nuisance.”

The sub-committee, it its naivety, accepted Mr. Haw’s statement that he had no wish to cause a nuisance or a problem to people working in Parliament. That is, of course, exactly the opposite of what Mr. Haw told me when I went to ask him why he was broadcasting at such volume when only a tiny handful of people were present.

The problem of noise harassment is real and serious. There is not an absolute unfettered right to shout one’s opinions in the face of everybody else for hours on end, long after any reasonable person would conclude that the first person had had their say. This is not freedom of speech—it is bullying. It is harassment. Indeed, in any other environment it would not be tolerated for a moment.

The Liberal Democrat spokesman, the hon. Member for Cambridge (David Howarth), said, “Well, it’s all right. It’s remediable—you can take them to court.” The problem is that it is not remediable. Under the existing law, nobody can be dealt with who is determined to go on making incessant noise at unreasonable volume. All that could happen is that they would eventually end up in a courtroom and there would eventually be some sort of conviction either for causing a nuisance or for breaking a byelaw, and then someone with a political axe to grind would pay the fine for them. At the end of the day, however, there would be absolutely nothing that anyone could do to stop them making the noise in the run-up to the court case or continuing to make it after the court case. This is not about freedom of speech; it is about intolerance. Those people are intolerant bullies who have not managed to have their own way and are therefore determined to shout, scream, rant, hector and harass other people.

There is only one way in which to deal with this matter: by applying a degree of common sense. I speak from experience because I am probably the only Conservative Member of the House actually to have been arrested for participating in a demonstration. As I have explained to the House on previous occasions, that was back in the 1980s when there was a demonstration against the Falklands war, and I was involved in a counter-demonstration. The police decided to remove us from the scene because we were the smaller demonstration of the two, but we worked with the police thereafter and were able to have our protest because we regulated the amount of noise that we made. At that time, before any of these other laws, restrictions and rights came in, we were told that if we raised the noise level excessively, our equipment would be confiscated at least until the demonstration was over.

Freedom of speech requires tolerance on all sides. The people who are ranting, raving and shouting—often in extremely crude, rude and insulting terms—in a public place cannot be dealt with by any means that does not require the removal of the equipment if, on receipt of a complaint about the noise, they refuse to tone it down and keep it to reasonable levels. This issue is being dressed up as being about freedom of speech, but it is actually about the bullying and intimidation of people going about their lawful business. I am very sorry that the Government, in the form of the Home Secretary, will not allow Labour Members to vote according to their consciences, because I know that large numbers—probably a majority—of those Members would like the amendments to go through. However, now that the Government Chief Whip has entered the Chamber, I shall simply repeat what I said at the beginning of my remarks. I am grateful to the Government for having at least provided an opportunity for this issue to be aired and discussed.

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We have had, as usual, a very lively—and in part noisy—debate about these issues. I shall explain to the House why I hope that the amendments will not be pressed to a Division.

The hon. Members for Epping Forest (Mrs. Laing) and for New Forest, East (Dr. Lewis) have made their case about the noise, which is, on occasion, disturbing to individual Members and members of staff. When I was the Parliamentary Private Secretary to the former Prime Minister between 2001 and 2005, I was frequently in an office facing Parliament square and on the receiving end of amplified noise about the performance of the Prime Minister and the Government throughout some very difficult debates on Iraq, student fees and a range of other issues. The purpose of the amendments is to remove such amplified noise from Parliament square, but I do not believe that they would represent a practical or workable solution.

My first point to both the hon. Lady and the hon. Gentleman, and in support of the hon. Member for Cambridge (David Howarth), has to be about what makes Parliament so different from any other place of operation in London and from somewhere in any other city in the UK. We have a responsibility to undertake work and our other activities in a positive way, but unless that protest noise is so disruptive that it prevents us from exercising our functions on the Floor of the House, the suggested action would be excessive and we could not support it.

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The noise certainly prevents us from exercising our functions in the W Rooms and the Committee Rooms, and it certainly disturbs people who are trying to conduct constituency work from their offices but are not able to concentrate because of intrusive and excessive noise. If we had more time, I could quote the Minister chapter and verse about that.

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As has been outlined, there are measures in place regarding noise pollution and public order legislation, to which the hon. Member for Cambridge referred, and there are also provisions in place to deal with harassment, in addition to, when relevant, byelaws regarding this place.

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I promise that I shall not keep intervening, but will the Minister explain how any of those measures would stop the noise rather than simply leading to a fine that would be paid by someone else while the noise continued unabated?

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I will go through the measures that are available to ensure that such actions can be dealt with if they are excessive. However, let me first return to the original point of contention. What makes Parliament different from any other establishment that can be and is subject to protest? I can be sympathetic about the situation, because I know that the noise can be difficult to deal with, but let me recognise, as we did in the policing White Paper, and as the hon. Member for Cambridge and my hon. Friend the Member for Hendon (Mr. Dismore) have done, that the creation of noise and disruption is, and should be, part of our democratic process and a healthy element of a democratic society.

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Although we all agree about the problem of loudspeaker noise, one of my concerns is that when we have tried to legislate regarding protest in Parliament square in the past, we have made mistakes and all sorts of things have ended up going wrong. Would there be any fallout for other forms of broadcast noise in Parliament square if these amendments were made? Would anything else be unintentionally banned as a consequence?

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My hon. Friend touches on an important point that I shall come to in a moment.

Let me tell the hon. Members for Epping Forest and for New Forest, East, who spoke in support of the amendments, that if noise from loudspeakers is threatening or intimidating, the behaviour can be, and has been, captured by section 5 of the Public Order Act 1986. If noise from loudspeakers amounts to harassment, the civil and criminal remedies that other organisations have successfully brought are available to Parliament. If noise from loudspeakers amounts to

“serious disruption to the life of the community”,

the police have powers under section 14 of the 1986 Act to impose conditions on assemblies. Clearly, the police could show that there was serious disruption if those who were being disrupted complained to the police. As has been made clear by the courts, by us in our policing White Paper, and by Her Majesty’s inspectorate of constabulary in its report “Adapting to Protest”, if noise from loudspeakers amounts to nuisance or inconvenience, that alone does not provide sufficient grounds to restrict peaceful protest.

The hon. Member for New Forest, East might be aware of the Greater London authority’s Trafalgar Square and Parliament Square Garden Byelaws 2002, which make it an offence for a person to use amplification equipment on Parliament square garden without the prior permission of the Mayor of London, whom I recall is one Mr. Boris Johnson of this parish, who is supported by the Conservative party. Westminster city council, which I recall is run by a party other than the Labour party, has also made specific byelaws under section 235 of the Local Government Act 1972 regarding causing or permitting any loud or continuous noise to be made by use of an amplifier or similar instrument after being warned to desist by a constable. The practical effect of amendment 3 would, as the hon. Member for Cambridge indicated, be to silence not only protestors, but anyone else in an area around Parliament. It would, as my hon. Friend the Member for Hendon indicated, prevent the use of amplifying equipment in every way, shape or form. It would include stewards who use amplifying equipment to control crowds and people who use such equipment to speak at demonstrations. It would cover people such as the Gurkhas and groups such as the Countryside Alliance. Indeed, I sometimes oppose the content of parts of that body’s demonstrations, but I respect its right to demonstrate.

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The amendment is not about banning noise but about giving a power to remove amplifying equipment if, on receipt of complaints, it is judged that people are being unduly harassed. The Minister is talking about demonstrations that would have been arranged and regulated, and so would be perfectly allowable. The amendment would not impinge on them in any way whatsoever.

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In February 2008, Barbara Tucker—she is well known to us because of the protests that she holds outside the House with Brian Haw—used a loudspeaker to express threatening language to the hon. Member for Rutland and Melton (Alan Duncan) as he left the Commons. In August of that year, she was found guilty of committing an offence under section 5 of the Public Order Act 1986, which makes it an offence to use

“threatening, abusive or insulting words”.

She was fined £100 and court costs. What is the difference between that and what the hon. Gentleman proposes?

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The Minister has just illustrated the point that I have been arguing throughout the debate. She was fined, but she is still out there and making noise. We are not interested in whether she is fined or not, but in whether we can go about our lawful occasions and carry out our normal duties without harassment and disturbance by noise. That conviction has not remedied the problem one whit, as the Minister knows perfectly well.

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I am afraid that I disagree. People have a right to protest, but laws on harassment and environmental health, as well as certain byelaws, contain powers to stop noise. The legislation also allows complaints to be made and forwarded accordingly.

Although the hon. Member for Epping Forest might not realise this, I must advise the House that accepting the amendment would mean, for example, that Westminster abbey would not be able to rings its bells. In addition, ceremonies at which bands use amplifying equipment, such as the wreath-laying ceremony at the Cenotaph, would not be allowed.

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indicated dissent.

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The hon. Lady might disagree with the tenor of my remarks, but the implication of her amendment would be as I set out. If Members want to support her amendment, they can do so, but that would be its impact.

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Another power is available to the Attorney-General and any local authority in that an injunction can be obtained against a person who persistently breaches the criminal law. There are a great many methods available, but it seems that the hon. Member for New Forest, East (Dr. Lewis) has simply not worked out what they are.

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The amendment is defective, and would have consequences that the hon. Members for Epping Forest and for New Forest, East have not recognised. It would cause great difficulty not just for those who protest in Parliament square, but for those who need to use amplifying equipment for legitimate reasons.

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Nobody wants to stop Westminster abbey ringing its bells or any of the other things that the Minister has just set out. However, does he agree that giving this Bill proper time for scrutiny would have led to the arguments that he is making today being put forward in Committee? If that had happened, and if it is true that my amendment would stop the Westminster abbey bells ringing, we could have agreed to table another amendment to make sure that that did not happen. However, we would then have defended freedom of speech for the little people out there who want to come and protest in Parliament square but who cannot because of the bully who is already there.

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I remind the hon. Lady that I waited for six and a half hours to speak to the amendments that were tabled on the relevant day of the Committee stage. I was not able to speak to them in the end because Conservative Members were filibustering on matters to do with a European referendum. I therefore do not want take lessons from her about debate, discussion and protests, given that the hon. Member for Stone (Mr. Cash) spent a lot of time filibustering to make sure that we stayed on the question of a European referendum and did not reach any other matters.

I return now to the main issues. The amendment is defective, and my right hon. Friend the Home Secretary wishes it to be defeated. It would not achieve the aim set out by the hon. Member for Epping Forest. I support the contention made by the hon. Member for Cambridge and by my hon. Friend the Member for Hendon, which was that protests are a valuable part of a democratic society. We might not like or appreciate the noise, but people’s right to make it is one that I think we must defend. I therefore urge the hon. Member for Epping Forest to withdraw her amendment and to ensure that it is not pressed to a Division.

The general purpose of the Bill is clear. In conjunction with the House authorities, we have tried to ensure that we allow proper protests in Parliament square, but we have also tried to make sure that hon. Members have free access to the House. The police are required to ensure that people can have access to Parliament, and they are able to act accordingly.

What is distinct about Parliament that might justify provisions that are different from those that apply elsewhere? That is the central question running through our review of the legislative framework. We believe that while we must allow Parliament to exercise its democratic functions, we must also ensure that people are allowed to protest, because the right to protest is a valuable part of our democratic society.

I am conscious of the time, and I want to ensure that we reach a conclusion on this matter. I hope that the hon. Member for Epping Forest will withdraw the amendment. Her amendments are defective and should be opposed. If they are pressed to a Division, I would urge the House to reject them.

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I think that we have had sufficient debate on this matter tonight. In view of the time, I will not insist on amendment 2, but I want to press amendment 3 to a Division. I beg to ask leave to withdraw amendment 2.

Amendment, by leave, withdrawn.

Schedule 9

Amendment to Part 2 of the Public Order Act 1986 etc

Amendment proposed: 10, in page 95, line 21, leave out from ‘procession’ to end of line 18 on page 55 and insert

‘or a public assembly that is having the effect of preventing reasonable access to the Houses of Parliament.

(2) The Speaker of the House of Commons shall decide whether reasonable access to the Houses of Parliament has been prevented.

(3) If the Speaker has decided under subsection (2) that reasonable access to the Houses of Parliament has been prevented, the senior police officer may, for the purpose of restoring reasonable access to the Houses of Parliament, give directions to any person who is organising or taking part in the public procession or public assembly.

(4) The directions referred to in subsection (3) must be necessary for the purpose of restoring access to the Houses of Parliament and proportionate to that purpose.’.—(David Howarth.)

Question put, That the amendment be made.

The House proceeded to a Division.

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I ask the Sergeant at Arms to investigate the delay in the Aye Lobby.

Division 93

2 March 2010

The House having divided:

Ayes: 45
Noes: 388

Question accordingly negatived.

View Details

Amendment proposed: 3, page 97, leave out lines 36 to 40 and insert—

‘Serious Organised Crime and Police Act 2005 (c. 15)

2 (9) In section 137, the following amendments are made in relation to the use of amplified noise equipment and other devices designed to produce noise in the area around Parliament.

(10) For “loudspeaker” wherever it occurs substitute “amplified noise equipment or other device designed to produce noise”.

(11) In subsection (1) leave out “in a street in the designated area” and insert “in the area around Parliament, as specified by order under section 14ZB of the Public Order Act 1986”.

(12) In subsection (2), leave out paragraph (i).

(13) After subsection (3) insert—

“(3A) A police officer shall, on receipt of a complaint of excessive noise caused by amplified noise equipment or other device designed to produce noise, have the power—

(a) to require the operator to desist, and

(b) in the event of non-compliance, to seize the amplified noise equipment or other device designed to produce noise and to retain it as long as it is deemed necessary.

(3B) The powers available under subsection (3A) above may be exercised by the most senior police officer in the immediate vicinity of the source of the noise.”.

(14) In subsection (6) leave out “or of” and insert “save where prohibited under”.’.—[Mrs. Laing.]

Question put, That the amendment be made.

The House proceeded to a Division.

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I ask the Serjeant at Arms to investigate the delay in the No Lobby.

Division 94

2 March 2010

The House having divided:

Ayes: 135
Noes: 312

Question accordingly negatived.

View Details

Debate interrupted (Programme Order, this day).

The Deputy Speaker put forthwith the Questions necessary for the disposal of business to be concluded at that time (Standing Order No. 83E).

New Clause 24

Regional Counting Officers

‘(1) This section has effect, in addition to section 128 (Chief Counting Officers, and counting officers, for referendums) of the Political Parties, Elections and Referendums Act 2000 (c. 41) (“the 2000 Act”), in relation to the referendum under section 29.

(2) The Chief Counting Officer for the referendum must appoint a Regional Counting Officer for each region in Great Britain.

(3) For the purposes of this section the regions are as follows—

East Midlands;

Eastern;

London;

North East;

North West;

South East;

South West;

West Midlands;

Yorkshire and the Humber;

Scotland;

Wales.

The regions in England comprise the areas specified in the Table in Schedule 1 to the European Parliamentary Elections Act 2002 (c. 24) (ignoring the reference to Gibraltar) as it has effect for the time being.

(4) Each Regional Counting Officer must, as respects the votes cast in the region for which the officer is appointed, certify—

(a) the total number of ballot papers counted, and

(b) the total number of votes cast in favour of each answer to the question asked in the referendum.

Where two or more forms of ballot paper are used in the referendum, a separate number must be certified under paragraph (a) in relation to each form of ballot paper used.

(5) The Chief Counting Officer may require a Regional Counting Officer to appoint counting officers for relevant areas (within the meaning of section 128 of the 2000 Act) in the region for which the Regional Counting Officer is appointed.

(6) To the extent that counting officers are appointed by virtue of subsection (5), the duty of the Chief Counting Officer under section 128(3) of the 2000 Act is discharged.

(7) A reference to a counting officer in sections 33 to 35 (except the reference in section 34(5)) includes a reference to a Regional Counting Officer.’.

New Clause 25

Conduct etc of referendum

‘(1) The Secretary of State may by order make whatever provision he or she considers expedient—

(a) for and in connection with the referendum under section 29;

(b) for and in connection with the combination of the poll at the referendum with the poll at an election or at another referendum (or both).

(2) An order under this section may, in particular, apply or incorporate, with or without modification, any enactment or subordinate legislation (whenever passed or made) relating to referendums or elections.

In this subsection “subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30).

(3) An order under this section—

(a) may include provision creating criminal offences;

(b) may make supplementary, incidental, consequential, transitory, transitional or saving provision;

(c) may make different provision for different purposes (including different areas).

(4) The power to make an order under this section is exercisable by statutory instrument.

(5) The Secretary of State must consult the Electoral Commission before making an order under this section.

(6) An order under this section may not be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.’.

New Clause 26

Electoral Commission accounts in relation to specified matters

‘(1) Schedule 1 to the Political Parties, Elections and Referendums Act 2000 (c. 41) (the Electoral Commission) is amended as follows.

(2) For sub-paragraph (2) of paragraph 17 substitute—

“(2) The Commission—

(a) shall prepare accounts for each financial year, and

(b) if directed to do so by the Treasury, shall prepare accounts in relation to any matter specified in the direction.”

(3) In sub-paragraph (3) of paragraph 17, for the words from the beginning to “sub-paragraph (2)” substitute “Accounts under sub-paragraph (2) shall be prepared in accordance with directions given to the Commission by the Treasury.

Directions under this sub-paragraph may”.

(4) In sub-paragraph (1) of paragraph 18—

(a) for “for any financial year” substitute “under paragraph 17”;

(b) for the words from “after” to the end substitute “as may be practicable after the end of the financial year to which the accounts relate or, in the case of accounts prepared in pursuance of a direction under paragraph 17(2)(b), the giving of the direction.”’.

New Clause 37

Parliamentary elections: counting of votes

‘(1) Schedule 1 to the Representation of the People Act 1983 (c. 2) (parliamentary elections rules) is amended as follows.

(2) In rule 44 (attendance at counting of votes) after paragraph (5) insert—

“(6) In making arrangements under this rule, the returning officer shall have regard to the duty imposed on him by rule 45(3A) below.”

(3) In rule 45 (the count)—

(a) after paragraph (3) insert—

“(3A) The returning officer shall take reasonable steps to begin counting the votes given on the ballot papers as soon as practicable within the period of four hours starting with the close of the poll.”;

(b) after paragraph (7) insert—

“(8) The Electoral Commission shall issue guidance to returning officers on the duty imposed by paragraph (3A) above.”

(4) After rule 53 insert—

“Counting of votes: statement by returning officer

53ZA (1) In a contested election, if the counting of the votes given on the ballot papers did not begin within the period specified in rule 45(3A) above, the returning officer shall before the expiry of the period of 30 days starting with the day on which the poll closed—

(a) prepare and publish a statement giving the information specified in paragraph (2) below, and

(b) deliver it to the Electoral Commission.

(2) The statement must—

(a) specify the time at which the counting of the votes given on the ballot papers began,

(b) describe the steps taken under rule 45(3A) above, and

(c) explain why the counting of the votes given on the ballot papers did not start within the period specified in rule 45(3A) above.

(3) Where a statement is delivered to the Electoral Commission under paragraph (1)(b) above, the Commission shall specify in any election report they produce that a statement has been delivered to them under that paragraph in respect of the constituency to which the statement relates.

(4) In paragraph (3) above “election report” means a report under section 5(1) or (2A) of the Political Parties, Elections and Referendums Act 2000 in relation to the parliamentary election in question.”’.—(Mr. Wills.)

Brought up, and added to the Bill.

Clause 8

Special advisers code

Amendment made: 35, page 5, line 22, at end insert—

‘(4A) Subject to subsection (4B), a special advisers code must provide that a special adviser may not—

(a) authorise the expenditure of public funds;

(b) exercise any power in relation to the management of any part of the civil service of the State;

(c) otherwise exercise any power conferred by or under this or any other Act or any power under Her Majesty’s prerogative.

(4B) A special advisers code may permit a special adviser to exercise any power within subsection (4A)(b) in relation to another special adviser.

(4C) In subsection (4A)(c) “Act” includes—

(a) an Act of the Scottish Parliament;

(b) an Act or Measure of the National Assembly for Wales;

(c) Northern Ireland legislation.’.—(Mr. Wills.)

Clause 22

Power to impose new nationality requirements

Amendments made: 36, page 12, line 35, leave out subsection (12) and insert—

‘( ) Section 75(5) of the Race Relations Act 1976 (c. 74) and Article 71(5) of the Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6)) apply in relation to rules under subsection (7) above as they apply in relation to rules under subsection (1) above (so far as they would not otherwise apply).

( ) In section 75(5)(b) of that Act and Article 71(5)(b) of that Order any reference to the implementation of rules includes (in particular) a reference to granting (or refusing to grant) exemptions under subsection (10)(b) above.’.

Amendment 37, page 13, line 1, leave out ‘limits any power’ and insert ‘affects—

(a) section 82 of the Police Reform Act 2002 (c. 30),

(b) section 41(3A) of the Police (Northern Ireland) Act 2000 (c. 32), or

(c) any power’.—(Mr. Wills.)

Clause 27

Section 24 not to apply to certain descriptions of treaties

Amendment made: 38, page 14, line 36, leave out ‘section 788 of the Income and Corporation Taxes Act 1988 (c. 1)’ and insert

‘section 2 of the Taxation (International and Other Provisions) Act 2010 (c. )’.—(Mr. Wills.)

Clause 30

Entitlement to vote

Amendment made: 39, page 16, line 32, at end insert—

‘( ) Subsection (1) has effect subject to any provision that may be made, in an order under section [Conduct etc of referendum], for disregarding alterations made in a register of electors after a specified date.’.—(Mr. Wills.)

Clause 64

Salary protection for members of tribunals

Amendment made: 40, page 35, line 41, leave out paragraph (b).—(Mr. Wills.)

Clause 80

Powers of National Assembly for Wales: Auditor General for Wales

Amendments made: 41, page 43, line 11, leave out from ‘14.1’ to end of line 12.

Amendment 42, page 43, line 37, at end insert—

‘(4) In section 94(6)(a) of, and paragraph 6Z of Schedule 5 to, the Government of Wales Act 2006 (c. 32) for “paragraphs 1 to 6” substitute “paragraphs 1 to 6A”.’.—(Mr. Wills.)

Clause 86

Amendment made: 57, page 48, line 37, leave out clause 86.—(Mr. Wills.)

Clause 90

Extent, commencement, transitional provision and short title

Amendment made: 43, page 50, line 11, leave out paragraph (d) and insert—

‘( ) the provisions of this Part other than section [Electoral Commission accounts in relation to specified matters]’.—(Mr. Wills.)

Schedule 2

Consequential amendments and transitional provision relating to Part 1

Amendments made: 44, page 58, line 37, leave out sub-paragraph (4) and insert—

‘(4) For subsection (4) substitute—

“(4) See also section 1 of the Civil Service (Management Functions) Act 1992 under which functions conferred on the Minister for the Civil Service by section 3 of the Constitutional Reform and Governance Act 2010 may be delegated to the Scottish Ministers etc.”

(5) Omit subsection (9).’.

Amendment 45, page 60, line 11, leave out sub-paragraph (4) and insert—

‘(4) For subsection (4) substitute—

“(4) See also section 1 of the Civil Service (Management Functions) Act 1992 under which functions conferred on the Minister for the Civil Service by section 3 of the Constitutional Reform and Governance Act 2010 may be delegated to the Welsh Ministers etc.”

(5) Omit subsection (10).’.—(Mr. Wills.)

Title

Amendments made: 46, line 6, after ‘generally’ insert

‘; to make provision about the accounts to be prepared by the Electoral Commission’.

Amendment 89, line 6, after ‘generally’ insert

‘; to make provision relating to the counting of votes in parliamentary elections’.

Amendment 47, line 22, at end insert

‘; to amend the Public Records Act 1958 and the Freedom of Information Act 2000’.—(Mr. Wills.)

Third Reading

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Finally, we have reached the end of the Commons stages of the Bill. Since the beginning of its gestation more than two years ago, Parliament and politics have faced new challenges, and the Bill has grown to meet them. Its basic components have remained the same, but, as with a fine wine, it has absorbed elements from its environment to mature into its final expression in the House tonight.

The Bill represents significant constitutional reform. There have been six days in Committee on the Floor of the House, 18 consultations and publications, draft Bills, and several Select Committee reports. Many hon. Members have contributed diligently and tirelessly to improving it as it went on its journey, and I should like to take this opportunity to thank them all.

As far as possible, we have tried to proceed on the basis of consensus. The Public Administration Committee, for example, found

“much to welcome in the Government’s proposals for the civil service”

when it considered the draft Constitutional Renewal Bill. This part of the Bill delivers the Northcote-Trevelyan recommendations of more than 150 years ago. The Joint Committee on the Draft Constitutional Renewal Bill agreed with the Government that

“putting the Ponsonby Rule on a statutory footing, together with giving the House of Commons an effective veto on the ratification of a treaty, is a positive and beneficial reform”.

We welcomed constructive comments from both sides of the House as the Bill proceeded. The Government have considered and adopted amendments from my hon. Friend the Member for Hendon (Mr. Dismore) on nationality restrictions on Crown employment. We have also given our backing to an amendment tabled originally by the hon. and learned Member for Beaconsfield (Mr. Grieve) and his colleagues, including the hon. Member for Epping Forest (Mrs. Laing), to ensure that the counting of votes in parliamentary elections will begin within four hours of the close of the poll. We are very grateful for the support of both sides on this measure.

The Government tabled a further amending provision on Report, as all sides recognised that the original clause needed further amendment to make it technically effective. The new clause provides that a returning officer must take reasonable steps to begin counting the votes on the ballot papers as soon as practicable within four hours of the close of the poll. Where the count does not begin within that specified time period, which may of course be for perfectly understandable reasons, returning officers will be required to submit a report to the Electoral Commission to explain why and to describe the steps that they have taken.

The new clause, which was shared with the Opposition Front-Bench teams, strikes a balance between the strong and clearly expressed view of this House that overnight counts should be the presumption and the need to avoid at this stage the considerable technical changes to electoral legislation that would have been needed to make the original clause 86 effective. Unforeseen circumstances on the night of the count—a major weather condition in a remote constituency, for example—might well mean that no further reasonable steps could have been taken to ensure an overnight count. The approach taken in the new clause allows for that, but the intention is to ensure that returning officers actively consider what action could reasonably be undertaken to achieve an overnight count in as many constituencies as possible. That will continue at the next general election.

I want to make it clear that the new clause respects the independence of electoral returning officers, and I think that everyone in the House respects that. However, I should make it clear that if that independence is exercised at the forthcoming general election in a way that is seen with hindsight to have flouted the clearly expressed wish of this House that there should be a presumption in favour of an overnight count—with the exceptions that I have mentioned—I have no doubt whatever that the new House elected in the next two or three months will return to the issue.

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I entirely agree with everything the Minister has just said. May I make it clear that we entirely accept that new clause 37 is superior in form, albeit identical in intention, to the original clause 86? I am grateful to the Minister for coming forward with a better version of the law, but with the same intention. May I make it clear that we entirely support the Minister in saying that the will of this House and of Parliament is absolutely clear? There is no dissent. We trust that those who have the duty to put into action the will of Parliament will do so forthwith.

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I am very grateful to the hon. Lady for those comments, and I pay tribute to her and her colleagues who played such a constructive role in bringing this forward at some speed. It is worth putting on record that the main reason why so many Members have taken this view is that it reflects the wishes of their constituents. We are not talking just about the will of Parliament; the will of the British people is at stake in this, too. I am grateful to all hon. Members who played a constructive role.

Also with cross-party support, we have introduced several significant amendments to the Bill. As a result of the recent consensus on the issue of parliamentarians’ tax status, for example, it was possible to table amendments with the support of the Conservative Front-Bench team, which will ensure that hon. Members of both Houses of Parliament are liable to pay the same taxes as most UK taxpayers. Many hon. Members will recognise how important that is in the current climate. We have also delivered on the cross-party commitment to implement the report of the Committee on Standards in Public Life on MPs’ expenses.

It is fair to say that some provisions have not been universally welcomed. New clauses to provide for a referendum, offering the public a choice between the current first-past-the-post system and the alternative vote system, have left the Conservative party isolated in their opposition. In contrast, we believe that we must do all we can to restore trust in politics, and it is clear that part of that process must involve consideration of which electoral system can best serve the people of this country. We believe that a credible alternative should be put to the people—it is not for the Government to decide this; it is for the British people themselves—one that would retain the link between MPs and constituencies, which we believe is fundamentally important. We believe that most hon. Members—whatever their view of the electoral system—consider that link to be important, and we believe that the British people themselves consider it to be a very valuable part of our political system.

In our view, the Bill as a whole gives greater clarity and transparency to Government business, both financial and non-financial. It tightens rules and regulations on membership of both Houses of Parliament in the wake of the profoundly damaging controversy over some Members’ misuse of the allowances system, and it gives those rules and regulations teeth. It reasserts the right of people to protest around Parliament if they are unhappy, and it puts in their hands the decision whether to change the current electoral system if they feel that they would prefer a different and a better one. This Bill reinforces the principles of probity, transparency and accountability at the heart of public life, and I hope very much that Parliament will look favourably on it.

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I am aware that the Minister of State, Ministry of Justice, the right hon. Member for North Swindon (Mr. Wills) is approaching the end of his time in Parliament. I know that the Bill is of great importance to him, and I recognise that in piloting it through the House, he wanted to achieve as much consensus as possible.

Let me say at once that the Conservatives have no difficulty in welcoming many aspects of the Bill. Indeed, we have expressed our support for those aspects from the outset. They include the move to put the civil service on a statutory footing, the proposal to beef up the Comptroller and Auditor General’s national audit role and the work on judicial appointments, all of which, as the Minister will recall, we supported in earlier debates on the Bill.

We also welcome the small but nevertheless important tidying-up of matters relating to, for instance, human rights claims against devolved Administrations, ratification of treaties, Crown employment and nationality. Although I must tell the Secretary of State and the Minister that the Bill does not quite live up to its grandiloquent title—certainly the “governance” bit—we can happily welcome its sensible constitutional reforms, and we therefore will not seek to divide the House tonight.

That said, there are some aspects of the Bill that we find much more troublesome. I think it only right for me to mention them, because given the timetable facing the remaining life of this Parliament, sensible decisions will almost certainly have to be made at some point about whether the Bill can be enacted with the consensus that will be needed at the end of the Parliament’s life or whether it should fail. As the Bill contains an adequate number of provisions that I want to see on the statute book, I hope that the Government will listen carefully to what I have to say about the parts of it that continue to cause us concern.

First, however, let me say something about new clause 37. I am grateful to the Government for taking account of the concern expressed by Members in all parts of the House about what appeared to be the creeping in of a substantial change in the way in which counts take place after elections. I am delighted that we were able to table the new clause, and even more delighted that the Government were able to adopt it in a way that would otherwise not have been possible. I have no doubt that one or two noises made about it by some returning officers are without merit or substance. Ultimately, it is for the House of Commons to decide how counts should take place, and not for bureaucrats to start deciding that they are a law unto themselves. We are fully entitled to lay down the ground rules for ourselves, especially if they are—as they appear to me to be—entirely reasonable.

The Government have also done a great deal in introducing clauses relating to IPSA, which my right hon. Friend the Member for North-West Hampshire (Sir George Young) has already commented on. There have been some sensible debates. We entirely endorse the need for reform, and we are pleased that the opportunity has been taken of trying to resolve the matter as far as possible before the general election. We hope very much that the proposals will work and lead to far greater public confidence in the way in which the House works.

I have to turn to those bits that please us rather less. We think that the Government’s proposals for a referendum on the alternative vote were brought in in great haste and in the most extraordinary fashion at the end of a long process—the Government have previously shown themselves to be rather hostile to such proposals. We think that a referendum would be a complete waste of money and undermine the first-past-the-post system, in which we believe and in which I think many Labour Members also believe. It strikes us that that measure is unnecessary, and we certainly would not wish to see it placed on the statute book.

It has been a matter of considerable regret during the passage of the Bill that it has not been possible to debate Opposition amendments that required debate and certainly should have been debated, such as our new clause this evening about evening out the size of constituencies and reducing the size of the House. At the risk of repeating what I have said frequently, I do not think that at any stage during the passage of the Bill and debate on the Floor of the House there has been time wasting. Indeed, I think that the Minister will acknowledge that this evening, in an effort to make progress, at times we have curtailed debate to make very short contributions. Yet we face the fact that, at Report stage of a constitutional measure of considerable importance, a huge number of amendments have not been debated at all. I deeply regret that we have not had a chance to debate our proposals, which would have reinforced the first-past-the-post system, made it fairer and produced fairer results.

In so far as our proposal has any pain involved in it, I say to the Secretary of State that, far from, as has been suggested, it being a piece of gerrymandering, the pain would fall fairly evenly. I cannot for the life of me see where the gerrymandering would be, because ultimately the decisions as to the shape of constituencies would lie entirely with the Boundary Commission, not with us as politicians. Our inability to debate that in this place during the passage of the Bill strikes me as an enormous missed opportunity. The title of the Bill does not reflect its true scope, and we have not had an opportunity to conduct a debate on that matter.

I turn to other areas of the Bill. There are some sensible amendments in respect of the House of Lords, which we also welcome, and we await with interest how the other place responds to them. Some of the amendments are extremely good. We are delighted that our proposals about the tax status of Members of the House of Lords, put forward by my right hon. Friend the Leader of the Opposition and tabled by us, enabled us to bring about a change—[Interruption.] I see the hon. Member for Pendle (Mr. Prentice) smiling, but the fact of the matter is that, until we tabled that amendment, there was nothing in the amendment paper to bring that about. It was only our intervention, and our saying that that was clearly an area of public concern that needed to be addressed, that finally enabled us to do that. I am delighted that it has happened. Times change, and what may have been deemed to be acceptable in previous generations, when Commonwealth citizens, or Commonwealth residents, were encouraged to come and spend parts of their careers in this country and then go back to their homes, is no longer seen as acceptable, because of the public perception that people may derive tax advantages from it. That is all the more reason, therefore, to change those rules, but until we tabled that amendment, we were not in a position to do anything about it. I acknowledge that the hon. Member for Pendle had this in his sights for a considerable period, but he did not seem to be very successful in persuading his own Front Benchers to take the issue particularly seriously.

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What’s new then?

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The hon. Gentleman says, “What’s new?” I acknowledge that he has a personal approach in being willing to articulate what he believes to be right which is much respected by Conservative Members. On that we are in agreement.

We are less in agreement on two matters relating to the House of Lords. I do not wish to go over the first in great detail, but it is worth reminding ourselves that the Government’s decision to get rid of the by-elections for electing a certain number of hereditary peers pending the final resolution of the constitutional status and reform of the Upper House is a flagrant breach of the undertakings that they gave at the time of the initial House of Lords reform. I very much regret that; this is not a final reform of the House of Lords. If it is, the Government have been misleading the public as to what the final reform might be. For those reasons, I do not think that this is a good idea, and I strongly believe that the Government will find that when the Bill gets to the other place, they may have difficulties there as well.

Then there is an issue that is of deep concern to us but is quite capable of being resolved. I have to put the Minister on notice that unless it is sorted out, it will prejudice the ability of the Bill to go on the statute book; it is the extraordinary procedure by which it will be possible, under the Bill as it stands, for a Member of the House of Lords to resign and immediately stand for election for the House of Commons. I think that I am right in saying that the Liberal Democrats and ourselves—and, indeed, I suspect others in this House—tend to see that as a device by which certain Government Ministers who have found their political careers in this place ended by various problems and gone to the other place for a resting period while they recover their strength, can like Lord Voldemort, come back to this House, reinvigorated. Quite frankly that is unacceptable.

There must be a period between resignation from the House of Lords and return or re-embodiment in this Chamber. There should be a period during which that return is not permitted. It is likely that that matter will be returned to in another place. If there is no time, and we get to the wash-up and there have to be discussions about issues in the Bill, that is one that will have to be sorted out to our satisfaction if the Bill is to go on the statute book. As it stands, it is contemptuous of the public and of the reasons why people should be going to the House of Lords in the first place as legislators; usually because they accept that some aspect of political ambition is gone and not as a springboard to a resurrected existence in this place. For those reasons, I hope that the Government will listen to the arguments in the other place and act accordingly.

Finally we come, with some regret, to the issue concerning noise in Parliament square. The Government tabled some sensible amendments to the Bill to try to resolve some of the civil liberties issues surrounding demonstrations around Parliament where we were unhappy—the Government had begun to accept out unhappiness—that the structures that had been set up previously were a fetter on civil liberties and freedom of expression. We were supportive of the Government on that and pleased that they were in the Bill.

We had also understood—we believed that the Government shared our concern—that in some cases the right to freedom of expression was being abused by people bombarding Parliament with amplified noise to such a level as to constitute a serious nuisance. Indeed anyone who works in this building will know exactly what the impact is, particularly if they have rooms or offices that are adjacent to Parliament square itself. It was our understanding that the Government recognised that there was an issue, were happy—we thought—for there to be a free vote and were encouraging that it should not be seen as a partisan issue, as indeed we did not see it. We tabled an amendment in good faith, which we very much hoped would command acceptance. Indeed, until very recently we thought it would receive considerable encouragement from the Government. It is therefore unfortunate that this Bill will be going ahead without a provision dealing with the noise nuisance in Parliament square.

I am the first to accept the cock-up theory of politics, rather than the conspiracy theory, and the Minister for Policing, Crime and Counter-Terrorism, who answered for the Government on Report, appeared to say that he had been brought into this matter at the very last minute, so I can understand why he might not be aware of the Government’s previously stated position on a number of occasions, particularly by the Secretary of State for Justice, and why they may have suddenly got cold feet. I found it difficult to disentangle the reasons for that. On the one hand, they might have been procedural, in that he shared the intention but thought there was a defect in the Opposition amendment. It is not the first time that Opposition amendments have been defective, however; it is often jolly difficult for Oppositions to draft amendments that are perfect, and if the Government support the principle behind them, we rather expect them to lend a hand in tidying things up. On the other hand, the problem might have been that the Minister for Policing, Crime and Counter-Terrorism had suddenly decided that there was some electoral, or other, advantage in arguing that people should be allowed to bombard the Houses of Parliament with amplified noise at nuisance level for hour after hour every day. I do hope that the latter is not the case. Indeed, I find it difficult to believe it is the case, because of all the expressions of concern about this issue from Members throughout the House, including the Government Back Benches.

May I therefore make a plea to the Minister? I hope that he understands that we felt that we had to put the matter to the vote, because of the Government’s unexpected withdrawal of support for the proposal without coming up with any alternative. Clearly, the opportunity still exists to deal with this, and I urge the Minister to do so in a way both that sends out a message that the House of Commons supports civil liberties and freedom of expression, and, equally reasonably, that maintains that there are proper ways of expressing oneself that do not involve a noise nuisance perpetrated hour after hour. I cannot believe that it is beyond the wit of a parliamentary draftsman to put something together that can provide that without also silencing the bells of Westminster abbey, as has been suggested in rather apocalyptic fashion. I am by no means persuaded that the amendment that was tabled would have done that, but it was clearly not the intention that it should do so.

The Bill is lacking in this respect. The Government took a specific decision to deal with demonstrations in the vicinity of Parliament square, which was a sensible move, but at the end a key component is missing. I urge the Minister to address this when he goes away to discuss these matters with his colleagues and to consider what is to be done in the other place.

I do not want to take up any more of the House’s time. This Bill has been a bit of a magical mystery tour, in that we have never known from one day to the next what would be in it. It started out in concept as very grand indeed, but by the time it was launched on Second Reading it had shrunk to mouse-like size. It has since been mildly reinvigorated in some areas, but it is defective in others. We have got to try to sort that out. If we do so, I would like to think that even if the Minister is not completely satisfied with the outcome, he will at least leave this place with a proper sense that he has actually achieved something that is a monument to his endeavours. I say to him that I would like to see that happen. A bit of flexibility on the part of the Government in the dying weeks of this Parliament can ensure that it does.

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I shall be very brief. In some ways, this should be called the “constitutional highways and byways” Bill, because we have roamed freely during its passage. For a moment I wish to return to where we started, because I was keen on where we started and, in particular, on the proposition that the time had finally come, after 150 years, to put the civil service on to a statutory basis. Many of us had been campaigning year in, year out on the issue and undertakings had been given by this Government and, in some respects, by the previous one, that this would happen, but I had begun to think that it never would. I am delighted that it has been possible, through political consensus—that was always the precondition for this happening—to get within a close distance of having secured it. I can say to the House that this measure will be an enormous source of satisfaction to the civil service of this country, which has wanted this constitutional underpinning for a long time—securing it will be a huge achievement. Whatever else happens in the remaining life of this Bill, I hope that we can at least secure that provision because that was its core constitutional element when we set out and not to secure it at this stage would be serious.

Given that that provision was the Bill’s core element at the beginning, I regret very much that many amendments relating to it were never able to be taken because we went off on this constitutional tour. However, I am delighted that the Government have now accepted what is contained in amendment 35. It has not been discussed at any point, and in a different world it would have been the subject of exhaustive discussion because it turns on the powers that we think special advisers should have; this would have been a major item of debate on this Bill. So although I say that it is good that right at the end the Government have accepted an amendment that the Public Administration Committee had proposed, it is not satisfactory that it has not been discussed as we progressed. A long list of other amendments on the civil service have not been discussed either, and that cannot be satisfactory.

Having said that, I was one of those who was pressing for some of the highways and byways to be explored and, in particular, some of the tidying-up measures relating to the House of Lords. I was pleased that we managed to accommodate those in the Bill, but my regret is that we did so selectively. The Government have taken up large elements of Lord Steel’s Bill, but they failed to take up the residual bit that proposes that it is time to put the House of Lords Appointments Commission on a statutory basis. I think that the House of Lords will have something to say about that omission. That bears directly on today’s controversy about Lord Ashcroft, because it cannot be right that when a non-statutory body imposes an obligation on a prospective Member of the House of Lords to come onshore for tax purposes, that can be disregarded without any sanction. It cannot be right that a non-statutory body can start inventing rules of that kind which are then not enforced. We have to be serious about this machinery and not just have a row about the consequences of it. We must ensure that we have the machinery embedded, constitutionally, in the proper place—I suspect that we are not done on that.

I was not one of those who was pressing to include a provision on the electoral system, but, on balance, I think that the alternative vote system is probably preferable to first past the post. I merely note in the margin of that discussion that it has implications for us. Everyone party to that discussion was lining up to say how much they believe in the single Member constituency. Of course we all love the single Member constituency because we are all “the single Member”. I am not sure that it looks quite the same from the point of view of the citizen. I am about to become what we like to call “an ordinary person” and, as such, my view of these matters is liable to be quite different from the one that I have as the single Member for my constituency sitting in this place. Casting an eye in the Speaker’s direction, I shall simply say that at some point we will have to revisit the guidance if we are all so attached to the single Member constituency. After all, we send letters out to people saying that we cannot possibly deal with their case if they are not one of our constituents. In fact we say—I do it, too—that there is a strict parliamentary convention against it. If someone happens to have a Member of Parliament who they find politically or personally so antipathetic that they want to go nowhere near them, which is not inconceivable, and seeks to approach another Member of Parliament to take up their cause, I am not so sure that that citizen—that ordinary person—will feel quite so attached to the single Member constituency when they get the letter saying that there is a strict parliamentary convention that means that the second MP cannot deal with them. If that is the general consensus of opinion in the House, even if we might change in the direction of the alternative vote, we must revisit some of the conventions to which we say we are so attached.

I had hoped to go to my political grave having secured one further thing, which I have failed to do. It is a simple thing: to allow citizens to take up cases directly with the ombudsman. When the House set up the ombudsman system in 1967, it worried that the system would undermine the ability of Members of Parliament to deal with the grievances of their constituents. That turned out to be completely false. For the past 30 years, successive ombudsmen have called for the right of direct citizen access. The Cabinet Office had a discussion 10 years ago and it recorded that there was universal dissatisfaction with the present system. In 2004, my Committee, in association with the ombudsman, did a survey of all Members of Parliament and found that there was a clear majority in favour of direct access.

Here we are again, about to face a general election and for many weeks citizens will not have access to the ombudsman because there will not be a Member of Parliament through whom they can do so. As the ombudsman has pointed out, this is a completely unsustainable position. It would take one simple clause of the kind that we have described to make the required change and I suspect that the House of Lords will be interested in that, even if we are not.

Finally, I said earlier that I thought that the Bill was a Christmas tree without Christmas, but there are things of value in it that should be welcomed. We might not get all the goodies that Christmas can bring, but we shall get the orange and the chocolate mouse, and they are certainly worth having.

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I certainly agree with what the hon. Member for Cannock Chase (Dr. Wright) said about this being a Christmas tree Bill. I also agree with what he said about the ombudsman. A number of serious aspects of the Bill could have been attached to the tree rather more usefully than some of the stuff that is in it.

In introducing the debate on Third Reading, the Minister said that the Bill had matured like good wine. It is certainly different from the previous version. It is very different from the draft Bill, to the extent that one might fear that this is one of those French wine scandals. The original draft Bill had about 45 clauses, 17 of which are now no more—they are nowhere to be seen. The remaining 28 clauses form less than a third—more like a quarter following our proceedings on Report—of the Bill. This is a very different Bill from the one with which we started. It is certainly much longer, as it is about double the size that it was when we started to discuss it on Second Reading.

The main measure of how different the Bill is can be seen if one looks at the long title, which is now nearly three times longer than the title with which we started. Topic after topic—and specific topic after specific topic—have been added. That is an interesting way of assessing what has happened to the Bill. The Government never wanted it to be a constitutional reform Bill in the sense that it was about the constitution of the country. The long title was never designed to allow extensive debate about any topic of constitutional reform. It was specifically designed to describe a small number of specific reforms. Having set out on that route, the Government then added more and more specific topics without any great theme.

Nevertheless, there is much in the Bill to welcome. Let me start with new clause 37, which the Minister spoke about at the start of his speech, about counting votes on election night. I strongly welcome his comments on that measure, especially the way in which he described how it will operate. It is important that it should have the flexibility that he described because there is a danger, especially when there is consensus in the House, of legislating at great speed and ending up with an unworkable, rigid piece of legislation. I hope not only that returning officers will listen to what the Minister and the Opposition spokesman, the hon. and learned Member for Beaconsfield (Mr. Grieve), have said about how important this matter is to many Members of Parliament, but that they will listen regarding the important flexibility that the Minister put into his interpretation of the new clause. In some parts of the country, votes are never counted on election night. Indeed, in some areas, such as the far northern islands and highlands of Scotland, there have been times when the count did not happen until the Saturday. We must understand the practical difficulties that many returning officers face.

The omissions in the Bill are very important. The hon. Member for Cannock Chase (Dr. Wright) has described many aspects that the Select Committee on Public Administration wanted to discuss. One such missing issue is the measures regarding the role of the Attorney-General that were in the draft Bill but mysteriously disappeared from the version that was put forward on Second Reading. I have wanted to discuss that issue throughout the Bill’s various stages, including Committee and Report, but we have not got around to it and we have never had a proper debate about what the Government were up to. It still strikes me as utterly unsatisfactory that a Minister of the Crown should have a decisive say in any way about whether a particular individual or company is prosecuted. That aspect of our system of government must be put right. International organisations have noted that that is not how a modern state should operate.

Nevertheless, the civil service part of the Bill is a great achievement and should be strongly welcomed. The last-minute acceptance of new clauses on special advisers should also be strongly welcomed. They are not quite right in our view and so we tabled some amendments regarding those measures, which were never discussed, about precisely how that should be done—in the law or simply in a code of practice. Another crucial issue that we never got around to discussing is how many special advisers there should be and whether there should be a numerical limit. Without such a limit it will still be possible to appoint 3,000 SpAds and to end up with a senior civil service that is more of the American style than the British style. We should have discussed that issue more seriously.

I congratulate the hon. Member for Hendon (Mr. Dismore) on getting the provisions of the Crown Employment (Nationality) Bill through. He has been struggling with those measures for many years, and it is good to see that, in the end, they will make it to the statute book—at least at this stage.

I strongly welcome the progress on the treaties part of the Bill, but there has not been much progress. The Government still insist on using the negative resolution procedure, which effectively denies Parliament a voice. It is a more open procedure, but it still is not effective. It is disappointing that the Government have chosen not to move on other aspects of the prerogative on which they have promised to move since at least 2007 and earlier, such as war powers and the Dissolution of Parliament—an issue that we will face all too soon.

On the referendum on electoral reform, it is the wrong system, as it is not a proportional system. However, that reform is a small step in the right direction. We are prepared to face a referendum with equanimity. We hope that a future Government will move much more radically towards an electoral system that is not only fair but produces legitimate Governments. The present system produces Governments who are elected on such a low percentage of the vote that, regardless of party, they have little public support—so little, in fact, that they are unpopular and illegitimate from the start.

I very much welcome those parts of the Bill that deal with the implementation of Kelly. I think that the Government have fulfilled their promise in that regard, and that is much to be welcomed.

On the House of Lords, I am greatly disappointed that we have not made proper progress towards the promise that my party made in 1911. We promised then to introduce a House of Lords that was elected on a popular basis, but it looks like 100 years or more will pass before we achieve that. I am sure that there are members of the Conservative party who hope to delay it even longer, but it must come. We cannot have a legislature that is appointed. We cannot have people with a serious say in what counts as the law of the land who are not elected—

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Yes, we can.

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The hon. Lady says that we can have such people, and we do have them, but should we? Again, how is that a legitimate system of government? I do not think that hon. Members on any side of the House realise quite how near to the edge of illegitimacy we are with our system of government. We spend a lot of time congratulating ourselves here, without realising how deep the political malaise in our political system is. That malaise extends to the House of Lords and to the voting system for the Commons.

Progress was also made on the tax status of Members of the House of Lords, although it was not quite what it should have been. What sort of person should we have in the Lords? That is the question to ask: the important thing is not whether that person should pay tax, but whether a person who does not want to pay tax should be there in the first place.

Progress has been made on public order. Two steps forward have been taken by removing the excessive regulation of protest near Parliament, but the institution of a heavy-handed regime amounts to one step back. I believe that we will have to watch that regime very closely, to make sure that the powers that it contains are not abused.

I profoundly disagree with what the hon. and learned Member for Beaconsfield (Mr. Grieve) said about noise. This is a constitutional Bill, and the noise made outside Parliament does not strike me as a big enough issue for a Bill such as this. Also, I caution him against treating noise as an issue significant enough to obstruct the progress of a Bill of this importance. I am sure that he did not mean that.

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I want to make two points to the hon. Gentleman that he may agree with. First, part of the Bill deals with demonstrations in Parliament square. Strictly speaking, that is not a constitutional issue, but rather one of the odd, Christmas-tree aspects of the legislation. However, he may agree that it is quite an important change, in light of the deep disquiet that exists about fettering freedom of expression and civil liberties. Given that context, the issue of noise clearly could have been dealt with in this Bill, and he may also agree that it is unfortunate that we have not done so.

Secondly, I want to make it clear that I do not see the question of noise as the be-all and end-all of this legislation. I never suggested that it was.

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I am glad for the final sentence of that intervention. It strikes me as disproportionate to suggest that reform of the civil service should be put at any risk because of a disagreement about something else.

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I just want to make myself clear. As I indicated to the Minister, I have very deep disquiet about certain elements of the Bill, but the question of noise is not one of them. I expressed regret that a consensual approach—and I thought that we had achieved consensus on the matter—seemed to have failed. I also said that I hoped very much that the issue could be dealt with in the other place.

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I am very glad of that clarification. I am sure that the Minister is too.

The big problem with the Bill now is timing. Its process through the House has not been handled well. We eventually had six days in Committee on the Floor of the House, whereas we were originally going to have four. The Government’s real intentions for getting the Bill out of this House and into the other House were not made clear at any point. I suspect that the Bill will get its Second Reading in the other place some time between 22 and 24 March. That is very late in the life of this Parliament, and the Bill is unlikely to receive a Committee stage in the House of Lords.

The Bill contains important and welcome reforms, but it is in danger of being hacked to pieces in the process of negotiation that happens at the end of Parliaments. It would be regrettable if that were the case. This is not a real constitutional reform Bill, which would deal with much bigger issues. It would be a shame, however, if the achievement, such as it is, were lost in procedural wrangles at the end of the Parliament.

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A few minutes ago, the hon. Gentleman mentioned the debates that we had on the provisions relating to the ratification of treaties. From memory, when we debated ratification processes—we also discussed Lisbon—I said that in the other place there had been a vote on the so-called in-out referendum, in which the Liberal Democrats voted against taking a different position from the one that they took in the House. We had another debate on a completely different topic last Friday. While I was preparing for it, I looked again at the Division lists, and in fairness, it turns out that the Liberal Democrats abstained from the vote in the other place, rather than voting against the measure. As he mentioned it, may I take the opportunity to set the record straight?

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I am grateful for that partial peace offering from the hon. Gentleman, and I hope that that is the spirit in which the Bill makes progress.

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I do not want to say a great deal, but I do want to say something about chapter 4, which deals with Crown employment nationality provisions. I did not have a chance to address the matter when we considered my amendments in Committee, because of the guillotine that was operating. The extent to which the Bill has been subject to guillotine motions throughout its progress is regrettable, as it has meant that we could not discuss many things that should have been discussed at greater length and that some things were not discussed at all.

I wanted to refer to the provision, because it is rather close to my heart, as several Front-Bench spokespeople have said. I began work on the issue about 10 years ago, and the measure has gone through various guises, including presentation Bills, ten-minute Bills and so on. The object was to straighten out the provisions on recruitment to the civil service. The measure has been around for a long time—I think that this was my ninth attempt to legislate on the issue—and it began as a hand-out Bill with Government support. The Government then went rather neutral and decided that it was not such a good thing after all, but eventually we won them round again. After a lengthy period, the measure in its various guises enjoyed different degrees of support from the Government, and the same is true of the Opposition.

The Bill, which had no priority at all, reached Report stage on three separate occasions, which was something of an achievement. The late Eric Forth took it upon himself particularly to victimise the Bill, and when he passed away, the hon. Member for Christchurch (Mr. Chope) considered it to be the Eric Forth memorial Bill, given the right hon. Gentleman’s opposition to it, so it was an effort to make progress with it. Realistically, we are now going to put right problems that go back the best part of 200 years. When the Act of Settlement was introduced, it was a welcome measure, but as time went by, it faded away, with the Aliens Restriction Act 1914, and a plethora of regulations, orders and EU directives, which intersected to create such a spider’s web of provision that it was impossible to work out who was entitled to work for the civil service and who was not. Some strange criminal offences were created—people did not even know they existed—and there were weird anomalies whereby the widow of a 9/11 victim who was an American citizen married to a British person could not work for the civil service, but Abu Hamza, should he pass the exams, I suppose, could, because he had British nationality. There were all sorts of strange outcomes, but we now have workable provisions.

Clause for clause, this is probably the most scrutinised piece of legislation that the House has introduced in recent years, apart from the fox-hunting legislation, given the number of times that it has been debated and considered. We now have provisions that will create a civil service that is more representative of our multicultural society. The legislation will reserve about 10 per cent. of civil service posts where it is appropriate that UK nationals hold them, but overall we have workable and sensible provisions that will create a civil service that reflects our society.

I am very pleased that, at long last, we have been able to take the legislation this far. There is always many a slip between cup and lip, but given the assurances of support from the various Front Benchers, I hope that, with a fair wind, this part of the Bill will survive the wash-up and, equally, the depredations of the other place, which it has unfortunately never managed to reach. I live in hope that, at long last and after nine attempts, we have finally achieved the objective of reforming the nationality rules of the civil service.

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With the leave of the House, I shall say a few words in conclusion. This has been a good-spirited Third Reading debate, and I am very grateful for all that has been said. In response, I shall pick up on some of the points that have been made.

Much reference has been made to the Bill’s protracted gestation, and dictionaries have been pillaged to find the appropriate imagery. It is true that the Bill has taken a considerable time to complete its journey to this stage, and one reason is that we have genuinely tried to move forward consensually. It has been, as my hon. Friend the Member for Hendon (Mr. Dismore) just said, one of the most scrutinised Bills ever, and I know that we could all have done with more time on it. However, there has been a great degree of scrutiny. All Members accept that we have tried to respond to the real concerns of this House and to move forward on that basis, and I think that we have had a great deal of success.

Despite all the grudging remarks about the Bill’s lack of ambition, somehow everyone has found something good to say about it, and together that means that it is a significant Bill. I must give credit to the hon. and learned Member for Beaconsfield (Mr. Grieve) for the way in which he adapted his previous characterisation of the Bill, and I am extremely grateful for his acknowledgement that it is no longer a mouse—even though my hon. Friend the Member for Cannock Chase (Dr. Wright) seemed to think that a chocolate mouse was a good thing, rather than a pejorative phrase.

Anyway, I hope that when we look collectively at the endeavours in which we have all been engaged, we can all feel proud of what we have achieved. I am very grateful not only to all hon. Members present, but to all who have contributed significantly to the legislation on the Joint Committee on Human Rights, in the various Select Committee hearings and in all our protracted debates on the Floor of the House.

I have listened very carefully to what Members have said, and I particularly listened to what the hon. and learned Gentleman said about how we need to move forward. Clearly, there are still areas for further discussion and areas about which significant Members still feel strongly, but I undertake on my own behalf and that of my right hon. Friend the Lord Chancellor and Secretary of State to do all that we can to meet those concerns in the remaining weeks of this Parliament.

I am confident and have no doubt that we can make some progress. I doubt whether we can do everything that everybody wants, and all of us may have to make some hard decisions in the next two or three weeks, but I hope that we can do so while remembering what gave rise to the Bill in the first place and the subject to which we have turned over and over again in all our discussions: the need to restore trust in our democratic politics.

The House has had a tough time during the progress of this Bill, and there have been many problems, but MPs’ expenses did not create them; to a large extent it crystallised inherent problems, which all of us in our different ways—in our constituencies and here in this place—have wrestled with for a considerable time, and we have to take away that message. That is what gave rise to the Bill, and in seeing it through to what I hope will be its conclusion during the remaining weeks of this Parliament, I hope that we can all remember why we are doing this: to restore the trust of the people whom we all serve.

I think that the Bill goes a considerable way towards doing that, directly through the measures that we have taken to set up the Independent Parliamentary Standards Authority and everything around it, and indirectly by rewiring our constitutional arrangements in order to make them more transparent, to make all of us more accountable to the people whom we serve, to give power back to Parliament and to fetter the Executive. We have had a lot of discussion about that. I believe that when people look at the Bill, they will see that the Government’s instinct is to give power away. It is important that we remember that as we move forward.

In conclusion, I pay tribute again to everyone who has contributed so much to the Bill. I am confident that when historians look at it, they will—

Debate interrupted (Programme Order, this day).

The Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the Bill be now read the Third time.

Question agreed to.

Bill accordingly read the Third time and passed.