Consideration of Bill, not amended in the Public Bill Committee
New Clause 1
“Standing Orders of the House of Lords may provide for the Lord Speaker to lay on the Table of the House of Lords before that House agrees to any resolution under section 1(1) a report on whether and to what extent any investigation by an officer of the House of Lords of the member of the House of Lords whose conduct is the subject of the proposed sanction has complied with—
(a) the principles of natural justice,
(b) the principles of the European Convention of Human Rights, and
(c) any other relevant provision or rule of law”.— (Sir Tony Baldry.)
This New Clause applies established principles of fairness to any investigation prior to the application sanctions provided for under the Bill.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 2—Bill of Rights—
“Nothing in this Act shall be constructed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689.”
This clause, modelled on section 1 of the Parliamentary Standards Act 2009, preserves the exclusive cognisance of the House of Lords over its own proceedings and membership.
New clause 3—Code of conduct—
‘(1) Standing Orders of the House of Lords may provide for the adoption of a code of conduct.
(2) A resolution passed by virtue of section 1(4) must include a reference to the relevant provision of any code of conduct which the House of Lords may have adopted and which has not been superseded by a subsequent decision of the House.”
This clause allows the House of Lords to adopt a code of conduct and also requires the application of penalties under this Bill to be linked to that code, if there is one.
Amendment 18, in clause 1, page 1, line 6, at end insert
“on the ground of that member’s conduct as set out in the resolution”.
New clauses 1 and 2 stand in my name, and new clause 3 and amendment 18 are in the name of my hon. Friend the Member for Christchurch (Mr Chope).
This important Bill enables a lacuna to be filled in the procedures of the House of Lords, and to enable the House of Lords—where appropriate—to suspend or expel Members. The House of Lords currently has powers to suspend Members, but rather curiously it can do so only for the remainder of a Parliament. Therefore, if a Member of the House of Lords were to be suspended today, they could effectively be suspended only until 30 March, or whenever this Parliament is dissolved. If, on the other hand, the House of Lords decided to suspend a Member early in the next Parliament, they would be suspended for the duration of that Parliament. That is curious and it is difficult to justify why the length of suspension should vary. The House of Lords wanted to clarify that position as well as the position on expulsions. The measure had wide support in the other place, and I am sure it will win support throughout this House.
This is a somewhat thin House today. I speak not personally about my bodily weight—although, as my wife points out to me, I have a body image problem because I do not see my body as everybody else sees it—but it is a thin House because there are very few of us here. That, I think, is a consequence of five-year fixed-term Parliaments, because for the last few months, although the House has been sitting, large numbers of colleagues understandably want to be in their constituencies or elsewhere campaigning.
Given that in the last Session the House of Lords Reform Bill passed through this House and the other place, does my right hon. Friend know why, if these matters are now considered so important, their lordships did not see fit to amend that Bill last year to include these proposals?
I cannot speak for what happened in the House of Lords—clearly these measures were not included in that Bill or we would not be debating them today, and I will come on to that point.
As I was saying, we may be a rather thin House, but we are also an experienced House, and looking at the right hon. and hon. Members present, I think we have well over a century of service between us. I feel a bit like one of those black and white western films, where one is at Fort Laramie and most of the people have been sent out in the middle of night to get to safety, but a few old soldiers are left manning the battlements of the business. I feel a little as though we are in that position today. My right hon. Friends the Members for North East Hampshire (Mr Arbuthnot) and for North West Hampshire (Sir George Young), myself and others, are the old soldiers who have been left behind while others are out campaigning, because we are considered to be totally expendable.
The right hon. Gentleman is a welcome young soldier to the proceedings, although he is almost a solitary soldier on his side of the House. I suppose it is a measure of the Opposition’s desperation that not one of them could afford to be in the House of Commons today because they all felt it necessary to be out campaigning somewhere.
The new clauses relate to two issues, and for the convenience of the House I shall start with new clause 2, as in some ways that is more logical. It states:
“Nothing in this Act shall be constructed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689.”
The new clause is modelled on section 1 of the Parliamentary Standards Act 2009, and preserves the exclusive cognisance of the House of Lords over its own proceedings and membership. Either the House of Lords has exclusive cognisance over its proceedings, or one can put forward an equally credible argument that these issues are now so important that they cannot just be left to Parliament. Throughout this Bill, the test is about what will command public confidence, because it is important that the public and the nation—our constituents—should have confidence in the integrity of Parliament as a whole and in both Houses.
While we are talking about a Bill of Rights from a few centuries ago, let me check that the wording of new clause 2 is meant to be as printed in the Order Paper, namely that nothing in the Act shall be “constructed” by any court as affecting the Bill of Rights 1689. Should that read “construed”, or is it a special language from 1689?
Subject to any advice that the Clerk gives you, Madam Deputy Speaker, I think we all took that as meaning construed, but we know that for these purposes construed and constructed probably mean pretty much the same thing and I do not think anything really turns on it. I am grateful to my right hon. Friend for drawing the House’s attention to that point.
What is important is what commands public confidence. Over the years the issue of parliamentary privilege has detained Committees and the House from time to time, because it has always been recognised that Parliament and parliamentarians need certain rights or immunities to ensure that we can operate freely and independently. In 1999 the Joint Committee on Parliamentary Privilege observed:
“Parliament makes the law and raises taxes. It is also the place where ministers are called to account by representatives of the whole nation for their decisions and their expenditure of public money. Grievances, great and small, can be aired, regardless of the power or wealth of those criticised. In order to carry out these public duties without fear or favour, Parliament and its members and officers need certain rights and immunities. Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts. Members need to be able to speak freely, uninhibited by possible defamation claims.”
Parliament must therefore be free from intervention by the courts, according to the Joint Committee on Parliamentary Privilege.
As we will see, however, at certain times the courts have become involved in the workings of Parliament, and we must consider how we respond to that. It is normal for a democratic state to protect parliamentary independence. Parliamentary immunity has developed throughout the world, not as a constraint on the rights of the citizen but as a fundamental liberty. Parliamentary privilege is not a privilege for parliamentarians, but the privilege of our constituents. Privilege refers to the range of freedoms and protections each House of Parliament needs to function effectively. In brief, it comprises the right of each House to control its own proceedings and precincts, and the right of those participating in parliamentary proceedings, whether or not they are Members, to speak freely without fear of legal liability or other reprisal.
Over time, however, we have seen the development of some grey areas. The Bill was introduced by Baroness Hayman as a private Member’s Bill in the House of Lords. It passed all its stages in the Lords and then came to this House. Under the procedures of this House, the Bill was, very appropriately, taken up by my right hon. Friend the Member for North West Hampshire, who is a former Leader of the House. The Bill had a rather unusual Second Reading in that it was conducted upstairs in Committee, so this is the first time there has been an opportunity in the Chamber to debate the Bill. The Bill touches on who is summonsed to Parliament and who can be a Member of Parliament, so it is right and appropriate that this Chamber should give it reasonable consideration. I was very grateful to the House for providing half a day for consideration on when women bishops might enter the House of Lords. If we are willing to give half a day to whether women diocesan bishops could be given precedence over others to take their place in the House of Lords, it seems appropriate to give equal time to considering other measures relating to the House of Lords, such as those on suspension and expulsion.
My right hon. Friend the Member for North West Hampshire, in a speech to the Conservative spring forum in 2010, observed that there is a grey area on whether parliamentary privilege precluded criminal prosecution of Members of this House accused of false accounting relating to parliamentary expenses. There were suggestions that there should be clear legislative proposals to ensure that privilege cannot be abused by Members of Parliament to evade justice. This has been an issue of some ambiguity for some time. The 1999 Joint Committee on Parliamentary Privilege, chaired by Lord Nicholls of Birkenhead, said it was right for Parliament to regulate its own affairs and that Members needed to be able to speak freely. However, the Committee proposed clarification of the scope of various privileges and in some cases greater powers for the courts to examine proceedings in Parliament. It recommended that all the changes proposed in its report should be embodied in a new and comprehensive parliamentary privileges Act, codifying parliamentary privilege as a whole. Unless I have missed something, I do not think that Parliament ever got around to carrying out the recommendations of the Joint Committee that there should be a comprehensive parliamentary privilege Act codifying parliamentary privilege as a whole.
We have the notion that Parliament controls matters and that both Houses of Parliament control their own precincts and procedures, but that is now sometimes more of a sentiment than an actuality. In 2002, in the case of A v. the United Kingdom, the European Court of Human Rights held that the absolute freedom of speech in Parliament was proportionate and did not violate the European convention on human rights, although—this is an important point—the Court also asserted its jurisdiction over national Parliaments’ privileges. The Court held that a rule of parliamentary immunity
“cannot in principle be regarded as imposing a disproportionate restriction on the right of access to the courts, as embodied in Article 6”
of the European convention on human rights. Moreover, the Court held that the creation of exceptions to that immunity, the application of which depended on the facts of any particular case, would seriously undermine the legitimate aims pursued.
Parliamentary privilege is clearly a living concept. It still serves to protect Parliament and all those involved in its proceedings. Article IX of the Bill of Rights says:
“the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”
If that is the case, Parliament needs either to assert that right and say that this is a matter entirely for the cognisance of the House of Lords, or to say that there may be good reasons for others—the courts—to have some involvement and interest in what is taking place. Parliament may well come to the view that the public no longer have confidence in the ability of Parliament, or its individual Houses, to manage their own affairs. That is why, in this place, we agreed by Act of Parliament to have an Independent Parliamentary Standards Authority. I think it was felt by the House of Commons that when it came to commanding public confidence, it was far better to hand over all matters relating to parliamentary expenses to an independent statutory body than to have continuing supervision by the House of Commons itself. I think, by and large, that has helped considerably in restoring public confidence in House of Commons expenses.
There is, therefore, a perfectly credible argument for a system in which, if it was felt that Members of either House had misbehaved so badly, there should be some judicial oversight of the process. One has to decide one way or the other: either we assert the established principle in the Bill of Rights that each House has cognisance over its own affairs, or we say that there may be some judicial oversight. The purpose of new clause 2 is to try to clarify that.
I will of course listen with interest to the explanation of my right hon. Friend the Member for North West Hampshire as to why the Bill is drafted as it is. It may well be that that explanation satisfies the whole House. I well know my right hon. Friend’s ability to explain Bills, because he and I once served together on a Committee considering a Bill to introduce leasehold reform. I remember him very elegantly one afternoon describing, with his hands and words, what a flying freehold and a flying leasehold look like, so I have absolutely no doubt that he will be able to explain to the House the exclusive cognisance of the House of Lords. If there is to be exclusive cognisance of the House of Lords, however, we have to be confident that that will work one way or the other.
Just to reassure the right hon. Gentleman, is he aware of the comments made by Lord Brown of Eaton-under-Heywood, the Chair of the Sub-Committee on Lords’ Conduct? He must have been aware of these concerns. He said:
“I greatly welcome the Bill and the logical and highly desirable increments to the powers of the House that it would bring with it.”—[Official Report, House of Lords, 24 October 2014; Vol. 756, c. 930.]
He recognises that it will be the House that will have the additional powers, not anybody from outside the House.
I take the right hon. Gentleman’s point. The Bill, as far as the House of Lords is concerned, is an enabling and clarifying Bill that the House of Lords intends will give it greater powers, but there is still an important ambiguity that needs to be clarified, and I will welcome the observations of my right hon. Friend the Member for North West Hampshire on that.
New clause 1, on natural justice, reads:
“Standing Orders of the House of Lords may provide for the Lord Speaker to lay on the Table of the House of Lords before that House agrees to any resolution under section 1(1) a report on whether and to what extent any investigation by an officer of the House of Lords of the member of the House of Lords whose conduct is the subject of the proposed sanction has complied with…the principles of natural justice,…the principles of the European Convention of Human Rights, and…any other relevant provision or rule of law”.
The Bill is intended simply—and importantly—to give the House of Lords powers to amend its Standing Orders to suspend or expel Members, but nowhere are there any details about, and nowhere does this House have a say over, those Standing Orders.
We need to treat this matter with some care. The way the spotlight falls on Members of the Lords or the Commons is different in this world of mass communication, Twitter and investigative journalism, and we need to be confident that if a Member of the House of Lords is at risk of suspension or expulsion, the procedures carried out are in accordance with the basic principles of natural justice, and that there is no suggestion of action being taken for the sake of political expediency or anything else. People might say, “That wouldn’t happen”, but we must never underestimate the temper of politics.
One of the last Members of the Lords to be expelled and put to death was Lord Lovat—I am not trying to make a flippant point about anyone being put to death—an elderly, enfeebled Scottish peer and supporter of Bonnie Prince Charlie caught up in the Jacobite uprising. Lord Lovat had not taken a huge part in the Culloden uprising, but he had doubtless been a supporter of Bonnie Prince Charlie, and he was arrested and brought to trial. As is evident from the transcript, it was a show trial, because understandably, in the heat of the moment, Parliament wanted to make it clear that it would have no more of these Jacobite uprisings challenging the Crown. However, there was no natural justice—he was not allowed to call witnesses in his own defence—and I suspect that that lives on in folk memory in parts of the highlands as one of those many injustices done in London that people in Scotland still regret. The point is that in the daily temper of politics there is always the risk that we might lose sight of the principles of natural justice, so it is important to make it clear that whatever happens should be in accordance with natural justice.
When considering possible amendments, I discussed with the Clerks whether I could say that when drawing up the Standing Orders, the House of Lords should consult with the Committee on Standards in Public Life on the procedures for considering whether a Member should be suspended or expelled. It seemed to me that consulting and listening to the advice of such a body would help to give people confidence that the process was both fair to Members and rigorous, fair and in accordance with natural justice. We need to send a clear signal that we expect the process to have integrity and to accord with natural justice, and that is the gravamen of my new clauses.
I thank my right hon. Friend the Member for Banbury (Sir Tony Baldry) for introducing his new clauses and emphasising the importance of natural justice.
New clause 3 and amendment 18 link in with the theme already established in our discussion of new clauses 1 and 2. The Bill essentially concerns the conduct of Members in the other place—the noble Lady Baroness Hayman on Report called it a disciplinary Bill—and it was in that context that I tabled my new clause and amendment. At the moment, there is a lacuna in the drafting: there is no linkage between the provisions in clause 1 on conduct and the House of Lords’ code of conduct. Subsection (1) reads:
“Standing Orders of the House…may make provision”
“expel…or…suspend a member…for the period specified in the resolution”.
Subsection (4) reads:
“A resolution passed by virtue of subsection (1) must state that, in the opinion of the House of Lords, the conduct giving rise to the resolution…occurred after the coming into force of this Act, or…occurred before the coming into force of this Act and was not public knowledge before that time.”
The clause does not, however, spell out what that conduct should amount to, and that is why new clause 3 would link the provision to breaches of the code of conduct of the other place:
“Standing Orders of the House of Lords may provide for the adoption of a code of conduct… A resolution passed by virtue of section 1(4) must include a reference to the relevant provision of any code of conduct which the House of Lords may have adopted and which has not been superseded by a subsequent decision of the House.”
Amendment 18 would insert at the end of line 6, page 1, clause 1, the words
“on the ground of that member’s conduct as set out in the resolution”.
Under my proposals, it would not be possible to use the extensive powers in the Bill other than in respect of breaches of the code of conduct in the other place.
It is important to put that safeguard in the Bill, given comments bandied around by Members of the other House. On Report, when discussing clause 2, the noble Lord Wallace of Saltaire—
I am delighted to hear that he is one of my hon. Friend’s constituents. I am sure it is just as well he does not have the chance to vote for my hon. Friend.
The noble Lord Wallace of Saltaire said:
“I read the latest Code of Conduct again this morning, thinking that we need to be sure what we are on about”—
I think that is always wise advice. He continued:
“One of the issues that perhaps we need to discuss informally off the Floor is how far this measure is intended to refer only to conduct that is mentioned in the Code of Conduct or to egregious conduct of other sorts conducted by Members of this House. However, that is a question that we need not have in the Bill itself, but it is certainly a question that the Committee for Privileges and Conduct and others will need to consider at a later stage”.
I think this issue should be considered in the Bill. If we are to enable expulsion or suspension from the other place on the basis of breaches of conduct, we need to know whether the conduct needs to be linked in with the code of conduct under the Standing Orders or whether the provisions apply, as the noble Lord put it, to
“egregious conduct of other sorts conducted by Members of this House”.—[Official Report, House of Lords, 21 November 2015; Vol. 757, c. 650-51.]
In discussing these issues, people sometimes bandy about expressions such as “bringing the House of Lords or Parliament into disrepute”. Judgments about areas of conduct or behaviour can be extremely subjective. I hope that the promoter and indeed the Government, who have hitherto been slightly underwhelmed by the contents of the Bill, will accept that the wording needs to be much more precise than it is at present.
When the ill-fated 2012 legislation came before this House, it was withdrawn by the Government because of the threat of it being properly considered; they did not want it to be properly considered, so they decided that rather than have it considered without a guillotine, they would not have it considered at all. That Bill was withdrawn, but it made reference to suspension and expulsion on grounds of conduct, and it was linked with breaches of the House of Lords code of conduct. However, in this Bill, that has been dropped.
My hon. Friend the Member for Bury North (Mr Nuttall) inquired earlier why the provisions of this Bill were not included in the private Member’s Bill proposed by our hon. Friend the Member for North Warwickshire (Dan Byles). The answer is—it was given by our hon. Friend—that he did not want these provisions in his Bill because he thought they were far too controversial, and he wanted to get his Bill on the statute book, which he succeeded in achieving, before he retires from this House after one term in our Parliament. Rather than venture into an area of controversy, he decided to stick to the principles contained in his Bill, which enable expulsion on the ground that a person has been convicted and sentenced to a period of imprisonment in excess of one year, rather than go into this linkage with the code of conduct or conduct defined more widely, as it might be in due course by the noble Lord Wallace of Saltaire.
People are talking about bringing the House of Lords into disrepute, so in preparation for today’s debate I tried to establish how this could be viewed as analogous to the disciplinary processes in some firms where it is a disciplinary offence for an employee to bring the company for which the person works into disrepute. Case law in this area is fraught with difficulty. It is extremely difficult for an employer legally to control the actions of an employee outside their employment, and there is often little reason why an employer would wish to do so. However, the notion of an employee bringing the company into disrepute following actions in their personal life is one situation in which the parallel might occur.
You may recall, Mr Deputy Speaker, that a Member of the other place—I refer to the noble Lord Rennard—found himself on the wrong end of an accusation. He was accused of bringing the Liberal Democrats, his party, into disrepute. It was not alleged that his conduct amounted to bringing their lordships’ House into disrepute, although some might fairly say that it probably did amount to that. As Members will recall, he was advised by the noble Lord Carlile, who took the view that it would have been outrageous if Lord Rennard were forced to apologise because there was no case against him to answer. That brings us back to the point made by my right hon. Friend the Member for Banbury—that if we start on the basis of making a very wide area of conduct the subject of sanctions that can result in expulsion or long-term suspension, we must ensure that the rules are clearly established and circumscribed.
In this particular case, Lord Rennard resigned his party Whip amid claims that he had made unwanted sexual advances to several women and touched them inappropriately. An internal inquiry into what was alleged to have happened concluded that there was broadly credible evidence dating back several years of behaviour that violated the personal space and autonomy of the complainants. When the noble Lord Wallace talks about “egregious conduct” being the subject of the sanctions contained in the Bill, does he have that sort of conduct in mind? Before this Bill makes any more progress, I think we need to be clearer in our own minds about the scope and extent of these provisions.
My hon. Friend makes a very good point. Would tax avoidance also be relevant? It has been a topical issue of late, and it could be that Members in the other place engage in activities that are within the law, but which a majority of their lordships might find distasteful. Does my hon. Friend think that someone who was abiding by the law could fall foul of the Bill’s provisions? We could end up in a very difficult situation, with people not being sure what they are or are not allowed to do.
My hon. Friend makes a very good point. I fear that the sort of conduct to which he refers could be regarded as conduct that brought the House of Lords into disrepute and that the person accused of such conduct could be sanctioned under the terms of the Bill. The Bill refers to the Standing Orders of the other place—it does not even cover the code of conduct—and we know that their lordships are understandably jealous of their reputation and want to maintain it in the eyes of right-thinking members of the public. I suspect that a number of them would regard the sort of tax avoidance to which my hon. Friend referred as behaviour that redounded to the detriment of other Members of that place.
However, we are not talking about a firm of accountants. We are talking about a part of the legislature of our great nation, and if we are going to restrict people’s ability to participate in it, we need to do so on a clearly defined basis rather than resorting to the ad hoc pandering to public opinion of which I am afraid we have seen a great deal recently.
For example, a number of political parties—I shall not mention any cases that may have arisen quite recently—now take the view that the best thing for them to do is distance themselves from any Member who is accused of a certain type of conduct and whose membership of his party is taken away from him, because, although it may not have been established that that conduct is in any way illegal, it might be regarded as potentially embarrassing that the accusation has been made. Such Members are suspended, or the whip is withdrawn, which is exactly what happened to Lord Rennard.
It is clear that we are increasingly moving away from a system whereby we rely on the rule of law to a system whereby the dictates of public opinion determine the outcomes of cases. That is why I think that we need to be extremely careful before we introduce legislation that would give the other place significant scope to introduce its own house rules, which could deny those Members who have been appointed or are in the other House as a result of their election as hereditary peers the opportunity to participate in the legislative process and other proceedings of the other House.
My hon. Friend has made another good point. When we look beyond the immediate subject of the debate, we see that there is pressure to reduce the numbers in the other place because the Government have been increasing the number of appointments to such an extent that I have complained. Indeed, my House of Lords (Maximum Membership) Bill is on the Order Paper today, although it is, of course, being blocked by the Government. It would restrict the Government’s ability to increase inexorably the membership of the other place.
At present, because of the pressure of numbers, the House of Lords is creating what is almost a culture, aided and abetted by the current Lord Speaker, who has said that she will retire at a particular time in an attempt to set an example to others. The implication is that when they reach a particular age, they too should choose to retire. That is entirely outwith our constitution. However, if the Bill were passed, any Standing Orders passed by their lordships requiring Members not to stay on beyond the age of, for instance, 70 or 75, could mean that a Member who refused to give up their seat would be the subject of the sanctions specified in the Bill, namely expulsion or suspension.
There is an issue that the House of Lords will have to address in its Standing Orders. If a Member of that House were seriously threatened with suspension or, particularly, expulsion, would he be able to avoid that simply by retiring, under the new provisions for retirement, thus avoiding any quasi-judicial investigation into his conduct?
We have had exactly that problem with senior police officers. As soon as they are brought to book or accused of anything, they run for cover. They retire or resign, and are then able to keep their pensions. When we deal with the next group of amendments, we shall discuss the question of whether the Bill should apply to both expulsion and suspension. I think that there should be a distinction between them, but I will not anticipate that later discussion.
As is already clear from the short debate that we have had so far, this is an extremely complex matter, and the idea that it could become law without being properly thought out fills me with horror. The fact that most members of the general public will not be writing letters saying how outraged they are by the potential consequences of the Bill does not mean that we should not pay great attention to its implications, not least because it impinges on our constitution. At one stage during the current Parliament, the Government were taking the line that they did not want any more piecemeal reform of the other place, but they seem to have shifted their position a bit. Perhaps the Minister will explain a little more about the Government’s policy in a moment, but I think that, unless it is amended, what we have before us could be very dangerous to our democracy.
My hon. Friend is making an important speech, but may I return him to his earlier comments about Lord Rennard, and to the point made by my hon. Friend the Member for Shipley (Philip Davies) about tax evasion? Is my hon. Friend suggesting that under those circumstances, if the legislation were enacted, it could lead to the expulsion of a peer? Surely the powers to suspend a peer already exist. This Bill focuses on expulsion, not suspension.
Actually, having discussed the Bill with my right hon. Friend the Member for North West Hampshire (Sir George Young), my understanding is that the most important part is the part that deals with suspension, which enables the House of Lords to suspend a Member for a longer period than until the end of the Parliament. There are all sorts of anomalies. If a Member of the Lords chooses to misbehave at a late stage in a Parliament, they can be suspended for only a few weeks, whereas if they misbehave at the beginning of the Parliament, they can be suspended for up to five years. That is the part of the Bill with which I have sympathy. I am much less sympathetic when it comes to the issue of expulsion.
At present, there are very circumscribed rules relating to the ability of the other place to expel. They are the rules that we have in the House of Commons, applying to Members who have been convicted of an offence and sentenced to more than a year in prison. However, whether we are talking about expulsion or suspension, it needs to be dependent on bad conduct, and that is where there is a big gap in the Bill. It obviously enables people such as Lord Wallace to hope that in due course they can bring within the ambit of the Bill all sorts of egregious behaviour, some examples of which we have been discussing this morning.
I hope that my right hon. Friend the Member for North West Hampshire will respond to the concerns that I have addressed. In our earlier debate, we discussed the balance between delay and getting things right. I think it is important for us to get this Bill absolutely right, even if that means it is delayed for a few hours or days.
It is a pleasure to be here on a Friday. This is not something that I have often been able to do in the past. It is also a pleasure to be able to listen to some of the older generation sallying forth, as my right hon. Friend the Member for Banbury (Sir Tony Baldry) might have put it.
For the older generation, sitting on Fridays is a regular occurrence. We are often here, Friday after Friday, as well as doing our constituency work. Indeed, I made my maiden speech on a Friday. As for the idea that being here on a Friday is somehow exceptional, for us it is part of our natural life, as were all-night sittings.
I meant that being here on a Friday was exceptional for me, not for my right hon. Friend. Perhaps I did not make my point clearly. It has been a pleasure to listen to him and to the others who have been making contributions today. It has been great to see some of the hon. Members who come here on a Friday in action. It has been a particular pleasure to hear my hon. Friends the Members for Christchurch (Mr Chope), for Shipley (Philip Davies) and for Bury North (Mr Nuttall), as I have heard much about these Friday sittings.
My hon. Friend the Member for Bury North asked a question earlier, and I shall try to give him an answer. He asked why these proposals had not been included in the House of Lords Reform Bill in the last Session. The Bill, which became the House of Lords Reform Act 2014, was modelled on Lord Steel’s earlier Bill, which did not address these areas.
This group of amendments seeks to ensure that the powers in the Bill are exercised legally and in accordance with the House of Lords code of conduct. The Government believe that those provisions, while well intentioned, are unnecessary. New clause 1 would allow for Standing Orders to require that the Lord Speaker lay a report, before a resolution of expulsion or suspension, on how the investigation of the conduct had complied with principles of natural justice, the European convention on human rights and any other relevant provision or rule of law. I can confirm that the Bill is compliant with the convention on human rights. It will be for the House of Lords to set out the detail of the procedure for expulsion or suspension in its Standing Orders. The House could therefore make the provision in new clause 1 in Standing Orders if it wished to do so.
The Government do not consider that the Bill needs to state that nothing in the Bill should be construed as affecting parliamentary privilege under article IX of the Bill of Rights, as proposed by new clause 2. Article IX is only part of the doctrine of parliamentary privilege, relating primarily to freedom of speech. If what is wanted is a saving for exclusive cognisance—the right of the House to regulate its own affairs—a broader proposition would be needed. However, the Government do not consider that necessary. The doctrine of parliamentary privilege is robust and does not need express provision on the face of the Bill to preserve it. Furthermore, an express provision saving privilege here might create doubt in other contexts where there is no express provision.
The remaining new clauses and amendments aim to allow for the House of Lords to adopt a code of conduct and for a resolution under the Bill to refer to the conduct that has caused the expulsion or suspension of a Member. The House of Lords already has a code of conduct. The code of conduct in both Houses relates to the disciplinary arrangements of the House and, to that extent, is protected by parliamentary privilege. It is therefore undesirable to refer to it unnecessarily in primary legislation, as this could lead to the courts examining Parliament’s right to regulate and discipline its own Members.
As my hon. Friend knows, this Bill is expressly limited to matters of conduct. That has been made clear in the Bill and throughout the debates in this House and the other place. The power of expulsion that the Bill confers on the other place is similar to the power that we already have in this House. This House has an inherent power to expel Members if it needs to, but the other place cannot do so because, without primary legislation, it cannot override the right of peers to receive a writ of summons. I hope that that deals with my hon. Friend’s point.
The Bill is also already explicitly limited to matters of conduct by subsection (4) of clause 1. It is certainly envisaged that a resolution to suspend or expel would only follow from a report from the Committee for Privileges and Conduct. Proceedings on the Bill in the Lords made it clear that any relevant breach would be linked to the existing code of conduct. The Government therefore do not support the new clauses or amendment 18.
I should like to begin by thanking all my hon. and right hon. Friends who have taken part in the debate for their interest in the Bill. I am grateful to my right hon. Friend the Member for Banbury (Sir Tony Baldry) for making it clear at the beginning of his remarks that he supported the principle behind the Bill, and I am grateful to the Minister for confirming that the Bill conforms to the requirements of the European convention on human rights. I am also grateful to my hon. Friend the Member for Christchurch (Mr Chope), who, as always, has raised important issues that will need addressing as we go through the legislation.
I should like to put the new clauses and amendments, and indeed the Bill, into perspective. As my right hon. Friend the Member for Banbury said, the Bill basically does two things. It enables a suspension to go beyond the lifetime of the current Parliament, and it enables the House of Lords to expel a Member. It does not change anything else. It does not change the code of conduct or the environment in which the code is administered, and it does not change the interface between the House of Lords and the courts in regard to issues such as exclusive cognisance. So, to some extent, the broader issues that he has raised have already been dealt with in the context of the original introduction of the code of conduct and of how the system works.
The Bill has no direct impact on this House. My hon. Friend the Member for Christchurch said that clauses had been dropped because they were controversial, but there has been no sign so far—certainly in the upper House—of any controversy. Indeed, there was an absence of controversy as the Bill went through. The upper House sees it as an important building block in restoring the reputation of that House, by giving it clear powers to expel a Member whose behaviour is unacceptable. There will be an indirect benefit for this House, in that anything that restores confidence in Parliament is good for both Houses.
I turn now to the new clauses and the amendment. I understand exactly why my right hon. Friend the Member for Banbury tabled new clause 1. I understand that in the House of Lords, technically, it is not the Lord Speaker who lays such documents. That is in fact done by the Committee for Privileges and Conduct, which lays on the Table the reports of any investigation into the conduct of a Member of the House of Lords. The Committee is already required to do that by Standing Order No. 68 of the House of Lords, which states:
“Reports from Select Committees shall be laid on the Table and ordered to be printed. Notice shall be given on the Order Paper of the day on which the report is to be considered .”
I therefore hope that my right hon. Friend will agree that we do not need any changes to the legislation or to Standing Orders to enable such reports to be laid.
My right hon. Friend made an important point about natural justice. If he looks at the House of Lords code of conduct, he will see that paragraph 19 states:
“In investigating and adjudicating allegations of non-compliance with this Code, the Commissioner, the Sub-Committee on Lords’ Conduct and the Committee for Privileges and Conduct shall act in accordance with the principles of natural justice and fairness.”
Also, if he looks at those who sit on the Committee, he will see that it is required, by Standing Order No. 77, to include two former holders of high judicial office. I therefore think that we can be confident that the fate that befell poor Lord Lovat will not befall any errant peer; no one will be subjected to a kangaroo court. We can be confident that the principles of natural justice will be upheld. The Standing Order also states:
“A Committee for Privileges and Conduct shall be appointed at the beginning of every session; sixteen Lords shall be named of the Committee, of whom two shall be former holders of high judicial office.”
My right hon. Friend went on to deal with the issues of privilege, and he referred to the Parliamentary Standards Act 2009 and an amendment inserted in the Bill that became that Act by the House of Lords. That Bill was a very different animal from this one. The Bill then being considered contained provisions that seriously risked breaching privilege. He may well remember the decisive intervention of the then Clerk of the House, Malcolm Jack, who produced a report during the passage of the Bill expressing the concerns in this House. That Bill explicitly required the production of a code of conduct relating to financial instruments and it set out that it must be laid before the House of Commons. The Bill detailed at some length the procedure of any investigation into a breach of that code and established a new offence of providing false or misleading information about allowance claims.
The short Bill before us is a very different animal and does none of those things. Unlike with the 2009 Act, the Bill has raised no concerns from the Clerks of the Parliaments, nor has anyone raised any concern about its current drafting risking parliamentary privilege. As the Minister has just said, matters of parliamentary privilege do not need to be expressly stated in legislation in order not to be justiciable.
Let me now address the measures proposed by my hon. Friend the Member for Christchurch on the code of conduct. A code of conduct is already produced, and it is published by the Committee for Privileges and Conduct. That already takes place under Standing Order No. 77. All reports from that Committee that have recommended that a sanction should be applied have included a very clear reference to the relevant provision of the code that was breached in each instance—that is also what happens in this House. The most recent investigation gives us an example of how this is done. The Committee’s report summarises and includes the findings of the House of Lords Commissioner for Standards and the Sub-Committee on Lords’ Conduct, all of which include specific reference to which paragraphs of the code of conduct the Member was alleged to have broken. The most recent report states:
“The complaint alleged that Lord Redesdale breached the Code of Conduct by not registering certain interests in the Register of Lords’ Interests (in breach of paragraph 10(a) of the Code) and by registering certain other interests more than one month after those interests came about (in breach of paragraph 13).”
Other reports on the conduct of noble peers, such as the one on the conduct of Lord Hanningfield, contain explicit reference to which particular breach of the code has taken place. My understanding is that the case of Lord Rennard was not referred because the code specifically says:
“Matters not falling within the Commissioner’s remit include…Members’ non-parliamentary activities.”
That is not wholly dissimilar to the rules that apply to us in this House and it explains why that case did not go before the relevant Committees.
With the greatest respect, my right hon. Friend has not addressed the issue raised by Lord Wallace of Saltaire, who expressly contemplated that this Bill was going to go wider than the existing code of conduct. The purport of my new clause 3 is to ensure that it cannot do that. In so far as it is a belt and braces, why will my right hon. Friend not accept my new clause?
If my hon. Friend looks at the Bill, he will see that clause 1(4) specifically refers to “conduct”. It talks about:
“A resolution passed by virtue of subsection (1) must state that, in the opinion of the House of Lords, the conduct giving rise to the resolution”.
I know that he wants us to be more specific about the sort of conduct, but if one goes down that road, there is a real risk of breaching parliamentary privilege. We may run the risk that if we are too specific in the legislation, the courts may then have reason to look behind the conduct and then the exclusive cognisance that we have at the moment might be prejudiced. That is why the Bill is specifically drafted in order to avoid prejudicing parliamentary privilege.
I imagine that my right hon. Friend was much associated with the drafting of the 2012 Bill. It was a Government Bill and it made a specific link with breaches of the code of conduct. Why can we not make that link? Clause 1(4) currently refers only to the “conduct giving rise”; it does not say that that conduct has to be conduct that is in breach of the House of Lords code of conduct.
Because the moment one puts the code of conduct into legislation, one runs the risk of the courts having another look at it. I am not sure, but the Joint Committee that looked at the Bill the Government published may have recommended that that specific provision be removed—I stand to be corrected on that. The key thing is that the Bill before us does not go beyond the general reference in clause 1(4) to “conduct”, for the very reasons that I have given. I am sure that my hon. Friend, who is a member of the Standards Committee and the Privileges Committee, would not want to run the risk of the courts second-guessing the decisions of the Select Committees on which he serves. Given those assurances, I hope that, on reflection, my colleagues will not press their proposals to a Division.
I am very grateful to both the Minister and my right hon. Friend the Member for North West Hampshire (Sir George Young) for their remarks. I had not realised that this was the Minister’s first outing on a Friday. He gave a clear explanation from the Dispatch Box of the true position, and if he had been given more Friday outings we would probably have got through business rather more quickly. In the next Parliament I hope he will have many more such outings at the Government Dispatch Box. I am extremely grateful to my right hon. Friend for his lucid explanation, which met my concerns on both natural justice and cognisance. On the basis of the explanations given, I beg to ask leave to withdraw the clause.
The new clause will have to be moved formally.
Clause, by leave, withdrawn.
New Clause 3
Code of conduct
“(1) Standing Orders of the House of Lords may provide for the adoption of a code of conduct.
(2) A resolution passed by virtue of section 1(4) must include a reference to the relevant provision of any code of conduct which the House of Lords may have adopted and which has not been superseded by a subsequent decision of the House.”— (Mr Chope.)
This Clause allows the House of Lords to adopt a code of conduct and also requires the application of penalties under this Bill to be linked to that code, if there is one.
Brought up, and read the First time.
Question put, That the clause be read a Second time:—
Expulsion and Suspension of members of the House of Lords
With this it will be convenient to discuss the following:
Amendment 2, page 1, line 7, leave out subsection (2).
Amendment 7, page 1, line 17, at beginning insert
“in relation either to an expulsion or to a suspension”.
This is linked to the amendment below which prevents retrospective judgement of behaviour leading to a final expulsion of a member of the House of Lords.
Amendment 6, page 1, line 17, after “Act”, insert
“and any Standing Orders made under subsection (1)”.
Amendment 19, page 1, line 17, after “Act” insert
“and any Standing Orders made under this section”.
Amendment 8, page 1, line 18, leave out paragraph (b).
This removes all reference to previous conduct that was not public knowledge.
Amendment 9, page 1, line 18, at beginning insert
“in relation only to a suspension”.
This removes the power of expulsion in respect of previous conduct that was not public knowledge.
Amendment 10, page 1, line 18, leave out from “Act” to end of line 19 and insert
“but since 1 January 2015”.
This limits the application of the Bill’s sanctions to previous conduct that was not public knowledge to just the current year.
Amendment 11, page 1, line 18, leave out from “Act” to end of line 19 and insert
“but since 1 January 2000”.
This limits the application of the Bill’s sanctions to previous conduct that was not public knowledge in the past 15 years only.
Amendment 12, page 1, line 18, leave out from “Act” to end of line 19 and insert
“but since 1 January 1985”.
This limits the application of the Bill’s sanctions to previous conduct that was not public knowledge in the past 30 years only.
Amendment 13, page 1, line 19, after “knowledge”, insert “in the United Kingdom”.
This limits the scope of public knowledge of previous conduct to what was not known in this country.
Amendment 14, page 1, line 19, at end insert—
‘(4A) A resolution under subsection 4(b) may not relate to expulsion”.
This is an alternative approach to removing the power of expulsion in respect of previous conduct that was not public knowledge.
Amendment 15, page 1, line 19, at end insert—
“(4A) Standing Orders of the House of Lords set out guidance on what constitutes public knowledge under subsection 4(b)”.
This allows for some certainty as to what might constitute public knowledge of previous conduct.
Amendment 20, page 1, line 19, at end add—
‘(5) nothing in this section shall authorise the expulsion or suspension of members of the House of Lords on the grounds of age, health or length of service”
Amendment 3, in clause 2, page 2, line 2, leave out “Expulsion and”.
Amendment 4, page 2, line 4, leave out clause 3.
Amendment 5, in clause 4, page 2, line 9, leave out “Expulsion and”.
Amendment 16, in the title, line 1, leave out “expel or”.
Effectively, amendment 1 seeks to remove from the Bill any reference to the expulsion of Members of the House of Lords, which means that the Bill would relate only to their suspension. The reason why I wish to circumscribe the Bill in that way is that the main point of the Bill is to make the House of Lords’ powers relating to Members’ suspension more consistent. On that, I agree with my right hon. Friend the Member for North West Hampshire (Sir George Young). Where I disagree with him is over the use of the expulsion power.
When this Bill was originally put forward, it was said to be very minor and technical, but as one of their lordships said, the expulsion power was certainly not about routine housekeeping. The power to expel Members from the other place is a fundamental interference in the constitutional arrangements of our country; people are appointed to the other House for life, or they are elected as part of the cohort of elected peers. To expel such a person is an extreme measure.
Following the House of Lords Reform (No.2) Bill, which was introduced by my hon. Friend the Member for North Warwickshire (Dan Byles) and passed into law, the House of Lords and this House effectively have the same powers of expulsion. That includes ensuring that anyone who is convicted of an offence that results in imprisonment for more than one year is expelled. In this House, we have not expelled anyone for a very long time. A number of people, following critical newspaper reports, have chosen not to stand again, or even in extremis to resign their seat, but expulsion is a draconian sanction. Introducing it in this Bill is unnecessary; it is over-egging the pudding. That is why I hope that my right hon. Friend the Member for North West Hampshire will accept my amendment. Essentially, all the amendments in the group deal with the same issue, which is the conduct that gives rise to potential expulsion from the House.
Amendments 2, 7, 6, 19, 8, 9 and the others are worth considering because they tighten up the Bill and bring it more into line with what would be regarded as fair and reasonable. Rather than spending a lot of time going through them, I would prefer to see whether we can persuade my right hon. Friend, the promoter of this Bill, to drop the expulsion power. As was said on Second Reading and Report in the other place, this is a power that the Lords hope that they will never have to use, but the danger is that if it is available and can be used in relation to a wide range of conduct, people might be expelled from the Lords in circumstances in which they would not be expelled from this House.
Let us consider the interaction between this Bill and the recall Bill. The recall Bill gives electors the power to vote when a Member’s conduct falls short of what is expected but would not give rise to a sentence of imprisonment of more than one year. If we are to link in with that, it would be best to do away with the expulsion provisions and rely on the suspension provisions instead. Under the suspension powers in this Bill, the other place would be able to suspend Members for five years or more. If a Member was suspended for that length of time and felt that justice had been done, they might well choose to resign. That is a different issue, but given the constitutional implications, it would be a step too far to give the other House the power to override our constitution by expelling somebody who has been appointed a peer of the realm for life, or an elected hereditary peer. If we want to go down that route, we should not do so on a Friday through a private Member’s Bill.
As with so many powers that have been taken, people say that they will never have to use these powers. We were told, when certain legislation was originally introduced, that it would be used only to proceed against terrorists, but as the years went by we found that the rules became rather different. People forget the basis on which the law was introduced. The lack of safeguards in this Bill about the conduct that would give rise to expulsion means that it would be much cleaner to remove references to expulsion from it. Some of my amendments would therefore ensure that the Bill was called not the House of Lords (Expulsion and Suspension) Bill, but the House of Lords (Suspension) Bill.
I have a number of amendments in this group, but before I come to them, as they deal mostly with suspension, may I comment on the observations made by my hon. Friend the Member for Christchurch (Mr Chope) about expulsion? There is the question of consistency. The House has already agreed, through the previous group of amendments, that so far as is possible the House of Lords should have cognisance of its own matters. In other words, the House of Lords should control what happens in it. Unless there are compelling public policy reasons for doing so, it is difficult to argue, now that the House of Lords has agreed that it requires a power of expulsion, that this House should seek to frustrate the House of Lords’ having that power. As will have been clear to those of us who read the report of the Second Reading debate in Lords Hansard, there is cross-party support in that House for a power of expulsion.
Of course, it has always been possible to expel Members of the House of Lords; it is just that sometimes it has been done in slightly curious ways. I am a great supporter of some of the things done by Thomas Cromwell. I have always felt that what Ministers require is grip, and he certainly demonstrated grip. Poor Thomas Cromwell was arrested in June 1540, and a Bill of attainder passed in the House of Lords provided for his punishment without judicial trial. As we know, he was eventually put to death.
Lord Lovat, whom I mentioned earlier, was impeached for high treason in this House and found guilty by the House of Lords. Indeed, he suffered the ignominy of being hung, drawn and quartered—no one is suggesting, of course, that any Member of the House of Lords who might be expelled in future should suffer such a fate. In his judgment against Lord Lovat, the Lord High Steward said:
“The Commons found your Lordship to be one of the principal Conspirators, who contrived and carried on the late detestable Rebellion, to destroy our Religion and Liberties, and to subvert that Legal Settlement of the Crown in His Majesty, and His Royal Family, under which alone we can live Free and Happy.”
Other ways have been found of removing Members of the House of Lords. Impeachment was a procedure used by both Houses, under which all peers could be prosecuted and tried by the two Houses for any crime whatsoever. The House of Commons determined when an impeachment should be instituted. It related largely to high treason, but it could relate to other crimes and misdemeanours. There was a whole process involving the two Houses that could lead to the expulsion of a Member of the House of Lords.
Members of the House of Lords could also be expelled by a specific Act of Parliament. The last such Act was the Titles Deprivation Act 1917, which deprived enemy peers and princes of their British dignities and titles. Section 1(1) states:
“His Majesty may appoint a committee of His Privy Council, of which two members at least shall be members of the Judicial Committee, to enquire into and report the names of any persons enjoying any dignity or title as a peer or British prince who have, during the present war, borne arms against His Majesty or His Allies, or who have adhered to His Majesty’s enemies.”
No fewer than five members of the House of Lords were expelled under that Act, including three Royal Highnesses—His Royal Highness Leopold Charles, Duke of Albany; His Royal Highness Ernest Augustus, Duke of Cumberland; and His Royal Highness Ernest Augustus, Duke of Brunswick—and Viscount Taaffe of Corren. Therefore, on numerous occasions in the past it has been perfectly possible to expel Members of the House of Lords when that has been found necessary. We in this House have that power, and it seems perfectly sensible that the House of Lords should have it too.
My amendments relate to the slightly different matter of suspension and the question of when conduct becomes relevant. Most Members of the House of Lords are sent there as life peers, which means they will have had lives previously. This is an issue on which the other place spent some time in Committee. The question was from when conduct became relevant. My amendments consider whether conduct should be taken into account if it was not public knowledge. Amendment 10 would limit to the current year the application of the Bill’s sanctions to previous conduct that was not public knowledge. Amendment 11 would limit the application of the Bill’s sanctions to previous conduct that was not public knowledge in the past 15 years.
The point that I seek to make in this group of amendments is: when does the clock start running in respect of such conduct? Does it relate to conduct committed by a Member of the House of Lords only after they joined the House of Lords, or if it was discovered that prior to becoming a Member of the House of Lords, they had engaged in conduct that would merit suspension or expulsion, would time run from that point? Would it run in relation to any conduct that was discovered in respect of any Member of the House of Lords before the enactment of this Bill? Will the provisions in respect of suspension and expulsion start from the date of Royal Assent? Does that mean that any conduct prior to Royal Assent would be subject to the current rules, whereby suspension runs only until the end of a Parliament?
We need to be clear from when the provisions run, so that there is no ambiguity. The principal purpose of the legislation is to enhance public confidence. To achieve that, there needs to be clarity about the provisions and about the sort of conduct that will result in suspension. Comments made on Second Reading in the House of Lords suggested that some conduct outside the House of Lords might give rise to suspension, but I do not believe that is what the Bill intends. I would be grateful if my right hon. Friend the Member for North West Hampshire (Sir George Young), who is the Member in charge of the Bill, and the Minister could address these points and the amendments, so that we are clear about when the clock starts to run in relation to conduct meriting suspension or expulsion under the terms of the Bill.
I shall be characteristically brief in my comments on this group of amendments. There is a great deal of merit in the amendments tabled by my hon. Friend the Member for Christchurch (Mr Chope) and my right hon. Friend the Member for Banbury (Sir Tony Baldry) in this group and they deserve closer scrutiny.
My hon. Friend the Member for Christchurch proposed amendment 1, and I have a great deal of sympathy for the points he made about expulsion. His amendment is made even more persuasive by the fact that his new clause 3 was defeated in the Division earlier. If the new clause had been accepted in the previous group of amendments, amendment 1 may not have been necessary. In the circumstances, I think it is necessary.
My hon. Friend has said that the punishment is draconian, which, of course, it is; it does not get much more draconian than expulsion from a House. I share his concern that the definitions of conduct that will lead to expulsion are not sufficiently tightly drawn. This is about whether we think that expulsion is an appropriate sanction and about the democratic accountability and legitimacy of Members of the House of Lords to make such decisions. My right hon. Friend the Member for Banbury touched on that issue when he moved new clause 1 and it is also addressed by amendment 1.
As my hon. Friend the Member for Christchurch has rightly said, the decisions about who is made a life peer are not made by Members of the House of Lords, because life peers are appointed. Given the circumstances, it should not necessarily be for the House of Lords to determine whether someone should continue to be a life peer. There may be some merit in asking the person who appointed them in the first place whether they would have appointed them had they known everything they know now and whether the appointment was justified at the time. I am not entirely sure that the House of Lords is the appropriate body to second-guess what the person who appointed them had in mind when making the appointment in the first place.
I fear that people who are appointed for good reason may find themselves on the wrong end of a decision, not because the person who appointed them or Members of this House, who have democratic legitimacy, think they should be expelled, but simply because their actions did not meet the taste of Members of the House of Lords at a particular moment in time.
I have always been a strong supporter of the House of Lords, as shown by my votes in this House. I have always shown myself to be a strong supporter of the status quo; as a Conservative, I rather like the status quo and enjoy voting for it. I have to accept that I shall never be subject to any of the decisions under discussion—there is no self-interest at play here. I am surrounded by people who are much more likely than me to be affected by future decisions in the House of Lords. However, my support for the House of Lords, and the good sense I always thought it previously exercised, has been tested somewhat by some of its recent decisions. I no longer have the same faith that Members of the other place will continue to make wise decisions.
One reason for that is that, instead of being composed of people of great experience and expertise, the other place seems to have become a haven for failed parliamentary candidates who could not get elected and have therefore been shoved into the other place. That has undermined not only its legitimacy but my confidence in its being able to make sensible decisions about the basis on which peers should be suspended or expelled. Therefore, it would be sensible to have as much rigour as possible so that peers cannot make decisions that we would find completely unacceptable. The Bill as drafted does not make the case that the House of Lords should have the power to expel a peer who was appointed by somebody else and without allowing anybody else to have any input into the decision. That is a dangerous game to play and I do not think that the House of Lords has the democratic legitimacy to be entrusted with that decision. That is why I think that amendment 1 is very sensible.
Largely for reasons of time, I do not intend to speak to all the amendments in this group, because that would be time-consuming, but I want briefly to touch on a few that have a great deal of merit. They are amendments 8, 14 and 15, tabled by my right hon. Friend the Member for Banbury, who spoke in some detail about whether the behaviour that may lead to expulsion or suspension happened before or after the person involved became a Member of the House of Lords.
Clause 1(4)(b) introduces retrospective legislation—we should always be wary of doing so, although it may well be justified—and that demands at least that there should be a debate and that somebody should make the case for it. The clause states that people can be expelled or suspended if the action in question
“occurred before the coming into force of this Act and was not public knowledge before that time.”
I know, or I think I know, what my right hon. Friend has in mind. I guess that some people would call it the Jimmy Savile issue, although he was obviously not a Member of the House of Lords. He has in mind actions committed by someone before they got a title and that were not known at the time; once that person has a title and those actions become public knowledge, they are deemed so outrageous that the only possible course of action is for the person to be expelled. I suspect that that is what my right hon. Friend has in mind, and many people in the country would support that on the basis of such an extreme example.
My concern is that the provision is not limited simply to such extreme actions. There are shades of grey in all such areas, and I fear that its retrospective nature may come back to penalise people who did something that was not unlawful at the time. Clearly, the actions of Jimmy Savile were not only completely unacceptable but unlawful, but my concern is that the provision may be used against people who have done something that was not unlawful and may not even have been unacceptable at the time, but has become unacceptable with the passage of time. We all know that what the public will tolerate moves on over time: things that were seen as perfectly reasonable 100 years ago are now quite rightly seen as completely unacceptable. As things move on with time, it may well be that people get caught out by actions that were once seen as reasonable but are no longer seen as such.
Allowing the House of Lords to expel people on that basis is very dangerous territory to enter. In effect, it would lead not to the rule of law, which my hon. Friend the Member for Christchurch quite rightly advocated, but to the law of the lynch mob. The Bill might give rise to the application of the law of the lynch mob in such circumstances.
My right hon. Friend the Member for Banbury is quite right to seek to leave out any reference to conduct that happened before the Act comes into force and was not public knowledge before that time in relation to expulsion: people could not be expelled for such actions, although they could be suspended for them. That is probably a very happy compromise. My hon. Friend the Member for Christchurch said that it would be draconian to expel somebody. I think it would be draconian to do so on the basis of actions that are no longer acceptable but were acceptable when they took place.
We have yet to hear my right hon. Friend the Member for North West Hampshire (Sir George Young) respond to the debate, but my amendment 20 provides that
“nothing in this section shall authorise the expulsion or suspension of members of the House of Lords on the grounds of age, health or length of service”.
Does my hon. Friend agree that that safeguard should be the bare minimum?
My hon. Friend is right. He anticipates my remarks, because amendment 20 is one I want to comment on, but I have not quite got to it yet. If he will show his customary patience, I will comment on it, but he is absolutely right.
I commend my right hon. Friend the Member for Banbury for amendment 15, which seeks to remove some of the uncertainty that will be introduced by the Bill. He is forensic when he looks through Bills and he has hit upon a good point. What constitutes public knowledge in relation to the Bill? All sorts of things are out there in the public domain somewhere, particularly in this day and age, with the internet and all the things one can find on Google. However, what is out there on some obscure blog or website might not be widespread knowledge.
When does something become public knowledge? Is it when it is out there somewhere and someone can point to a blog that was published somewhere or other? Could somebody use that as a defence and say, “Well, actually, it was public knowledge. It was on an obscure blog, which barely anybody reads, 25 years ago”? Alternatively, does it become public knowledge when it is much more widespread than that—perhaps when it is in the mainstream media? How can anybody be expected to know everything about everybody that may be out there in the public domain? Amendment 15 would be helpful because it would remove some of that uncertainty.
I do not know whether this is the intention of my right hon. Friend the Member for North West Hampshire (Sir George Young), but I suspect that the phrase
“was not public knowledge before that time”
might well be used by people as an escape route. The purpose might be to deal with what might be called the Jimmy Savile issue, but people like Jimmy Savile might not even be captured by the Bill, because it could be argued that accusations and revelations were out there and were public knowledge beforehand, even though they might not have been acted on. It is therefore not entirely clear whether the Bill, as currently framed, will even catch out the people it seeks to catch out.
My hon. Friend refers to the Jimmy Savile precedent. Of course, if Jimmy Savile had been alive when the allegations came to light, he would undoubtedly have been prosecuted and sentenced to a period of imprisonment in excess of one year. I am therefore not sure that thinking about Jimmy Savile is as appropriate as thinking about people who, historically, have committed much less serious forms of what might be regarded as bad behaviour.
My hon. Friend is right. He shows why the Bill is unnecessary and perhaps dangerous. He returns me to my initial fear, which is that people will be expelled for doing things that do not warrant expulsion, just because the tide of public opinion has gone in a different direction.
In an intervention, I mentioned tax avoidance. Somebody might have taken part in activities that were perfectly legal at the time and, in fact, seen as acceptable behaviour. Their actions might not have attracted any controversy at all at the time but, as public opinion changes, they might subsequently be seen as unacceptable. The person will be judged on that basis and may well be suspended or expelled from the House of Lords not because they did anything illegal or anything that was seen as unacceptable at the time, but because they did something that had become unacceptable. I worry that that is the dangerous route we are going down with the Bill. I predict that we will be in that situation at some point if the Bill is passed in its current form, so amendments 8, 14 and 15 are important safeguards that I hope my right hon. Friend the Member for North West Hampshire will consider.
I promised to touch on amendment 20, tabled by my hon. Friend the Member for Christchurch (Mr Chope), and I do not intend to break that promise. Because he was being even more brief than normal, he did not expand on it in any detail. It states that “nothing in this section”—clause 1—
“shall authorise the expulsion or suspension of members of the House of Lords on the grounds of age, health or length of service”.
I would like to think that all Members agree with my hon. Friend’s sentiment that people should not be expelled or suspended on that basis. He is right to be alert to the fact that if we do not tightly define the rules under which people can be expelled or suspended, we will open up the possibility, whether or not it is intended or likely, of people using the Bill as a Trojan horse to pursue a different agenda from the one that Members currently envisage.
My right hon. Friend the Member for North West Hampshire is a very reasonable man, and I am sure that he would not countenance anybody being expelled or suspended on the grounds of age, health or length of service. I am absolutely sure that that is nowhere near his mind. However, the point is not what is in somebody’s mind now, even the mind of the promoter of the Bill; it is how the Bill could be used at some future date if we do not define the rules tightly.
It may well be that because, as my hon. Friend the Member for Christchurch said, the size of the House of Lords has become completely ridiculous, people will look for an easy way to reduce the numbers. Of course, one of the easiest ways of reducing the numbers at a stroke would be to say, “Anybody above a certain age—you’re out. We’re going to take a particular point in time, draw a line, and if you’re on the wrong side of it, you’re out. If necessary, we’ll use these powers we’ve now got to enforce that new rule, because the public mood is that the House of Lords has got too big, and we’ve got to do something about it. This is the easiest way.” I really do fear that that could well happen. I am not saying that it will happen in the short term, but I can certainly see it happening in the medium term. People may pooh-pooh my hon. Friend’s amendment at the moment, scoff and say, “It’s absolutely ridiculous—that would never happen.” Well, let’s see.
My hon. Friend is absolutely right, and he highlights potential unintended consequences of the Bill—it could be a useful vehicle for people to use in future for purposes that were never envisaged. People can scoff and pooh-pooh the points that are being made, but who knows what decisions people might want to come to in the future and how they might use the Bill as a Trojan horse to pursue that agenda?
Amendment 20, tabled by my hon. Friend the Member for Christchurch, is certainly worth considering, and I hope that my right hon. Friend the Member for North West Hampshire will examine it and see that there is a legitimate fear about how the Bill could be used in future. Nobody is trying to scupper the Bill; people are trying to improve it and make it what we all intend it to be. I would like to think that my right hon. Friend will see that we are trying to deliver what he envisages the Bill doing. I have not heard him disagree with any of the points that have been made; he just seems to think that the things being described will not happen. That is where we might have a slight disagreement.
Looking at the clock, I have been speaking for 21 minutes, which, as a regular attender on a Friday, Mr Deputy Speaker, you will agree is brief—to be honest, I contend that that is more than brief, but we all have our own standards. I will not say too many nice things about the hon. Member for Liverpool, Walton (Steve Rotheram) as it might not go down well in Liverpool—
As ever you are right, Mr Deputy Speaker, and I am sorry that I was led astray by the hon. Gentleman. It will not happen again.
The amendments deliver what we all want the Bill to do—that is how I view them—and I think they are useful in ensuring that we stick to what we think the Bill delivers, rather than go beyond that. I therefore hope that my right hon. Friend the Member for North West Hampshire will agree to them. The amendments are good, and should the opportunity arise I hope that my hon. Friend the Member for Christchurch will consider dividing the House on amendment 1. I would support him in that.
I thank my hon. Friend the Member for Shipley (Philip Davies) for being so brief.
The Government oppose the amendments, but I will speak briefly because I want to give my right hon. Friend the Member for North West Hampshire (Sir George Young) the opportunity to push the Bill through today. Amendments 1 to 5 and 16 remove all references to expulsion in the Bill, thereby removing from the entire Bill the power to expel a peer. The Government do not support removing the power to expel. That power would allow peers to deal with particularly serious misconduct and would bring the disciplinary powers of the House of Lords more in line with those of the House of Commons.
We expect the House of Lords to need to use such powers rarely, as has been the case in the House of Commons, which has not exercised its powers to expel since 1954. Nevertheless, we think it appropriate for both Houses to have such a power in order to deal effectively with those who bring the House into disrepute.
I have listened carefully to the points made by my hon. Friends in this debate, and particularly to my hon. Friend the Member for Christchurch (Mr Chope), who in Committee made it clear that he had reservations about expulsion. I have gone back to the sponsors of the Bill and had discussions with the upper House. If anything, the power to expel is almost more important to them than the power to carry on suspension beyond a Parliament, and it would strike at the very heart of the Bill if that provision were removed.
We already have powers to expel if someone is sentenced to more than a year’s imprisonment, but during debates in the upper House it was made clear that many breaches of the code of conduct would not be a criminal offence but are of sufficient severity to justify a Member of the House being expelled. The House of Lords wants the powers that we have to expel a Member if their conduct is unacceptable. Expulsion is different to suspension, and it is important that the upper House should have the power to expel because its Members cannot be expelled by constituents in the way that we can be. We should therefore think hard before we deny the House of Lords a power that it wants and sees as essential in restoring confidence in the institution—a power that the House of Commons already has.
My hon. Friend raised that point in Committee and I gave some examples that were used in the upper House such as repeated offences, for example, or a criminal sentence of less than a year. Members may take the view that that activity is unacceptable and that the Member should be expelled. Expulsion must be related to conduct, which is specifically mentioned in the Bill. Fears that someone might be expelled because they are a man or a woman simply do not arise because it must be related to their conduct.
My hon. Friend the Member for Shipley (Philip Davies) said that he was unhappy with some of the decisions made by the upper House. I understand that, but wonder whether his criticism applies to the decisions it has made when it has come to censoring or suspending its Members. My view is that that has been done fairly and impartially. His suggestion that a life peer might be removed by the leader of their party who appointed them would strike at the heart of the independence of the upper House—I wonder whether, on reflection, he wishes to pursue that line of argument.
As for the arguments on public knowledge, the key phrase is in line 15:
“in the opinion of the House of Lords”.
There are real difficulties in defining public knowledge, and it makes sense to leave to the opinion of the House of Lords whether the conduct was public knowledge before. At the moment there is no time limit. In other words, anything that happened before the coming into force of the Bill is potentially within its scope. This is part of the process of rebuilding confidence. If a horrendous offence came to light that had happened before the commencement of the Act, is it right that the House of Lords should not be able to take any action? Far from bringing it into repute, it would bring it into disrepute.
On the issue of conduct, the Joint Committee that undertook pre-legislative scrutiny of the draft House of Lords Reform Bill looked at this particular provision. This was their recommendation:
“We recommend that Clause 56 should be restricted to providing that the House of Lords has power to expel or suspend its members. We are confident that the House will use that power responsibly and make appropriate provision itself.”
The Committee did not suggest that it should go down the route proposed by some of the amendments, which was that the measure should be more explicit on what sort of conduct should be within the scope of the Bill.
Against that background, I hope the amendments will not be pressed to a Division. It is important that we get this piece of legislation on the statute book before the end of this Parliament.
I am sure the Bill will get on the statute book before the end of this Parliament. In answer to the hon. Member for Liverpool, Walton (Steve Rotheram), who was saying that my hon. Friend the Member for Shipley (Philip Davies) had been speaking for 20 minutes or so, it is worth putting it on record that the Bill has got to this stage only because a number of us took the view that because it had been discussed properly in the other place it should be given Second Reading “on the nod”, as we say. The other side of that coin was that the Bill would be subject to proper scrutiny. This debate is part of that process of scrutiny.
It will not surprise my right hon. Friend the Member for North West Hampshire (Sir George Young) to hear I am disappointed with his response. I do not think he has addressed the specifics of the concerns that have been raised. It is all very well to say, “Let’s leave it to the discretion of their lordships”, but if the past is a guide to the future, when we leave people with power and enormous discretion quite often that power is abused. That is why it is very important to try to put proper safeguards in the Bill.
In a sense, my point was made for me very ably by my hon. Friend the Minister in his incredibly short response. It is notable that we have not had any response from the Opposition on either of the two groups of amendments. I do not know whether that means they do not have a view, or that they will be making up their policy later. The Minister said in his peroration that we must allow the Lords to take action against those who bring their House into disrepute. That expression is so easy to interpret in a very broad brush way. That is why I have been trying, so far in vain, to put something more specific in the Bill. In the circumstances, I hope we will be able to test the opinion of the House on amendment 1.
Question put, That the amendment be made.