Committee (1st Day) (Continued)
38: Clause 5, page 3, line 37, at end insert “with or without amendments”
The amendment is pretty self-explanatory, but it is an opportunity to probe the Government’s reason for deciding to give another place no option to decide whether to accept the code of conduct that it is offered. It is a small point but quite an important amendment, because if another place can suggest improvements to the code of conduct, it will not be limited to the nuclear option of rejecting it outright or accepting it whole. We in this House are very aware of the dangers of rejecting an entire document because it tends to throw out the baby with the bath water. Allowing only this way forward restrains many from expressing perfectly valid criticism.
Under this amendment, my suggestion is that another place should be given the chance to amend the code. I know that it will have been consulted during the drawing-up of the code, but we all know the ways in which consultations can go. The real purpose behind this is to find out the thinking—there may be some very clear thinking going on, although there may not be—of the noble Lord and the noble Baroness on exactly why the Commons has not been given a chance to amend the code. What harm could such a step do? I beg to move.
I hope that I can display some clear thinking on this matter. The noble Lord, Lord Strathclyde, has raised a valid and interesting point. I was disappointed that he did not think that the provision under Clause 3(4) in terms of the organisations that the IPSA must consult would meet his requirement. The Government have always accepted that the code of conduct on financial interests must be approved by the House of Commons, which is why the provision is in the Bill. It is also necessary that the code should work with the way in which the House does its business, which is why the IPSA is required to consult various bodies within the House as well as with MPs generally in drawing up the code. We see that as an extremely important part of the work of the IPSA in building confidence in terms of the general public. I also think that it is important to build confidence among MPs. I do see that this consultative process is a very important part of the way in which that should be done.
The intention is for the House and individual MPs, as well as the various bodies and committees listed in Clause 3(4), to have ample opportunity to discuss the code as it is being developed. In response to the noble Lord, Lord Strathclyde, I accept that a balance has to be drawn here. We think that there is a difference between making sure that the House is satisfied with the code and that it will work, and giving the House the opportunity to rewrite the code, which I would caution against. It clearly is essential to delivering the objectives of this Bill for restoring public trust in Parliament that this part of the scheme should be seen as the responsibility of an independent body outside Parliament.
The problem with the noble Lord’s amendment is that the IPSA could present a code and the House could make radical changes to it. Although the resulting code would be still labelled the IPSA’s code, with the amendments it might not be acceptable to the IPSA itself, which would be an untenable position. What would the IPSA do in those circumstances? I suppose that it might then have to undertake a review and attempt to present a revised version to the House. However, that would probably undermine the point of an independent code.
We have tried to get the balance right. We think that Parliament should be asked to endorse the code and that the IPSA should go through a proper process of consultation and discussion with parliamentarians in the form I have suggested, but I would be wary of creating a situation where the code would be open to amendment and, because of that, it would not be the IPSA’s code.
I was waiting to hear the Minister’s explanation before contributing to the debate. There is a genuine dilemma here. I cannot think of circumstances in which the Speaker lays something before the House of Commons because he or she cannot speak to it. Who is going to introduce, explain and respond to comments by Members? This is a very unusual procedure. We have several former Members of the other place here this evening and it may be that my memory is less comprehensive than theirs, but I cannot think of circumstances where the Speaker has laid something before the House without any opportunity for serious examination. It is effectively a fait accompli if the Speaker of the House of Commons lays something before the House. Would the Minister address the particular issue of whether this has been discussed with the Speaker?
I must be wary of anticipating how the House of Commons itself will deal with this matter. The key question is whether we have the architecture right. Clearly it is for the Commons itself to decide how it would be asked to give its approval, but my understanding is that in circumstances where the Speaker is required to lay the scheme, the Leader of the House of Commons would in fact speak to it.
I think there may be a clue to the answer. I have to say that the code in the other place was introduced some years after I left so I have no firsthand experience of it. The first resolution in July 1995 was that the House should endorse the principle of a code of conduct. In July 1996 a resolution introduced the code of conduct by approving the third report of the Committee on Standards and Privileges. The ninth report from the Committee on Standards and Privileges provided amendments to the code. The procedure in the other place has always been via the Committee on Standards and Privileges. The committee is asked to look at the code and suggest amendments. If amendments are produced, such as the one put forward on 14 May 2002, we can see that the resolution of the House was:
“the Code of Conduct and Guide to the Rules relating to the Conduct of Members … shall be amended as proposed in Annex 2 to the Report”.
There is an opportunity for amendments to be introduced under the existing procedure. It therefore seems to me that my noble friend’s amendment seeks to find a way of building that process into the new structure.
I am most grateful to the noble Lord, Lord Jenkin, but we are talking about two different codes. I suspect that the code he is talking about is the code of conduct for MPs, whereas the code we are debating is the code of conduct on financial interests. They are different, and that is why the proposal, as I understand it, is that the Leader of the House would introduce it.
I know that very soon after a debate on an earlier part of the Bill, my noble friend offered to write a note to Members.
My noble friend has made a helpful suggestion. I noticed earlier that we are talking about different codes and, if it will be helpful, I shall write to noble Lords to try to make this somewhat clearer than it is at the moment.
As the noble Lord, Lord Peston, is not in his place, I hope that after he has read Hansard tomorrow he will not accuse me of being guilty of the offence known as supporting the Government. He sits behind them and obviously wants to disassociate himself totally with this measure. I hope the Official Opposition will not now accuse me of the same sin.
Clause 5 is fine—it reminds me of the provisions for other codes of practice—because, unless I am quite mistaken, it starts with IPSA, the independent body, preparing the code; it gives the power to IPSA to keep it under review and to revise it, which seems sensible; and it then requires IPSA to fully consult all the proper authorities in the House of Commons. I take it that the Speaker, in laying the code, is acting formally—in other words, he is simply the mechanism, the trigger, by which the code is laid. It then does not come into effect until it is approved by a resolution of the House of Commons, by whom it is governed. There is therefore flexibility and consultation and, ultimately, the sovereignty of the House of Commons, as there should be. My difficulty is that I cannot find anything wrong with it.
One of the problems with the Bill is that the drafting seems to be extraordinarily strange in places. Is there any precedent whatever for the Speaker laying anything before the House of Commons? Is there legislation anywhere else which has a provision of this kind?
I am not aware whether there is or is not. However, I am clear that this is a formal mechanism for allowing the code to be brought before Parliament. I understand that in allowing that to be considered, the Leader of the House would take responsibility for ensuring that it happened.
It is my recollection that the original draft of the Bill said that the report would be laid by IPSA. However, it was pointed out that only a Member of the House is entitled to lay a report before the House of Commons and that in this case it should be the Speaker, and the Bill was amended in another place to introduce the word “Speaker” in subsection (5).
In response to the earlier point, I have many resolutions in this book about Members’ financial interests, declarations of financial interests and registration of financial interests. We are not talking about two different things in origin. They may be two different things now, but they were originally the same.
That is right. The current system—the Green Book, the MPs’ code of conduct—included guidance on financial interests. But we are talking about a new system where there will be a general code in relation to MPs and a code of conduct on financial interests. That is what we are discussing.
As to the Speaker laying the code, my understanding is that the wording of this part of the Bill has been discussed with the House authorities to ensure that it is acceptable.
It has been a useful debate. I wanted to probe the Government’s thinking and they have told us what it is. As a result of this, there is obviously confusion as to which codes we are talking about and the Minister has agreed to send out another explanatory note. It is extraordinary that this Bill will be law in a week’s time and that, even in this House, where the Bill has been in the public domain for some weeks, there is still a great deal of confusion as to what it will mean. In another place, that confusion is even greater.
I understand the Government’s explanation about denying another place the ability to seek to amend the code; it is an argument. I hope that we never have anything in this place that would be imposed by an outside body without this House being able to have a say. However, this Bill has gone through the House of Commons. It may come to regret this provision, but we shall see. It is not the most important point that we shall be dealing with, so I beg leave to withdraw the amendment.
Amendment 38 withdrawn.
38A: Clause 5, page 3, line 39, after “interests” insert “other than financial interests as a Minister of the Crown or Office Holder in the House of Commons”
Earlier in our deliberations, I found myself moving an amendment which had the support of both Front Benches and, I think, of the Liberal Democrats and a large number of Cross-Benchers, which is not a very usual situation for me. However, I now seem to find myself moving an amendment which is opposed by both Front Benches—my own and that of the Government. The proposal which I wish to put before your Lordships is that the code should require members to register information about financial interests in a register to be maintained by IPSA. The financial interests of a large number of Members of another place, and of some in this place, too, are those of being a Minister of the Crown. I was a Minister of the Crown for quite a long time, throughout Margaret Thatcher’s Prime Ministership and into that of John Major, which I declare as a past interest.
The present arrangements do not require one, as far as I know, to declare that one is a Minister of the Crown in the documents. However, it is not only a huge financial interest, in the sense that one is paid more than a Back-Bench Member of Parliament, but also a big consumer of one’s time. At one point, I was Security Minister in Northern Ireland; I spent part of the week in Belfast, part in London and part in my constituency. My constituents had every right to say to me—fortunately, comparatively few of them did—“What are you doing swanning off to Belfast and London? You’re not looking after us”. A very large number of hours in the week were taken up with my responsibilities in Northern Ireland, and the same was true of the various other jobs that I did. There is no doubt that it is a very big financial interest. In that sense, it should be declared in the code alongside any outside interests that a Member may have been pursuing—a professional or other financial interest.
I say in passing that it is in the interests of the House of Commons and good government that Back-Bench Members of Parliament are able to retain other jobs as well as their job of a Member of Parliament. I am a chartered accountant by original profession. I am extremely rusty and I know that if you do not practise your profession there quite quickly comes a time when you lose ground and are not up to date with the latest things. However much you read the professional press and so on and talk to others, you get out of date quite quickly. It is therefore in the interests of the body politic that Members of Parliament should have continuing interests, some of which will bring them financial rewards. The two are by no means incompatible—and the case of Ministers makes the point, because a Minister, whichever department he or she is in, is obliged to spend a lot of time on ministerial work of one sort or another.
He or she is also inhibited in what they say in Parliament or in Committee by the fact that they are Ministers and bound by collective responsibility. So being a Member of Parliament has a huge effect on one’s conduct, a much greater effect than being a solicitor, accountant or farmer. It also has an effect on one’s ability, in a direct sense, to be seen to be looking after one’s constituents. Most of us manage to look after our constituents pretty well in the circumstances, but you cannot argue that it is irrelevant that someone is a Minister. To that extent, it is quite right to put it in the register and declare it along with any other more conventional financial interests. At the same time, it seems fairly obvious that Gordon Brown is the Prime Minister. Does he really need to state that in the register? Is it not just another complication?
The main reason for moving my amendment is that the law should be precise about this matter. Otherwise, there will be controversy and different views about it as time goes on. If the intention is that the House of Commons should continue its present practice, under which ministerial office or being an office holder is not to be regarded as a financial interest from the point of view of the register, then the legislation should make that clear.
I should also talk about the position of office holders; that is another past interest of mine, as noble Lords will know. There are not only Ministers but office holders such as Opposition Chief Whip, which position I had the honour to hold for a while, not so long ago. One is paid to do a job of work, a very all-consuming job, which takes a lot of time, energy and attention. I was also a Whip in the Commons but I was a Government Whip and therefore a member of the Government and a Minister, so it was different. The Opposition Whip and the Leader of the Opposition in the Commons come under the same provision, so I have included them in the amendment.
I can see the argument: the Bill seems to require the disclosure of all financial interests; for that matter, Amendment 42, in the name of my noble friend Lord Strathclyde, certainly requires these interests to be stated. What I think is unacceptable is that the Bill should not pronounce on this matter at all. From my point of view, the present system is satisfactory, and the amendment seeks to ensure that that continues. I beg to move.
As my noble friend Lord Cope pointed out, he and I have put down amendments which appear to oppose each other. That is not what my noble friend and I are about, so I am rather embarrassed if that is the impression that has been given.
My noble friend Lord Cope has managed to draft an amendment that allows for the raising of the issue to which I wish to speak but without seeming to argue for an unworkable registration, or a potentially unworkable registration, of ministerial duties. Let me be clear: in Amendment 42 I am not seeking to suggest that Ministers should have to register their payments or all the time they spend on ministerial duties. What I was intending to identify, and what my amendment was designed to give me the opportunity to highlight, was the distinction the Government were drawing between different types of jobs. There appears to be a false distinction between the value of MPs having voluntary or government-paid jobs and the apparent harm caused by having a non-governmental job involving remuneration. In the first case, I hope that the Government would agree that it is of great benefit to Parliament to have people with hands-on knowledge of the real world. For example, knowing intimately the work that charities do at the grass roots or the difficulty of complying with reams of regulatory requirements can only improve the quality of the legislation that Parliament inflicts upon the people of this country.
However, the Government appear not to agree—this is where I part company from them—that it is also of value to have MPs who know what it is like to have been at the coal-face of, for example, the legal profession or the medical profession. Both of these careers can be well remunerated and very time-consuming, and it is to many MPs’ credit that they are willing to maintain these professions or any other job while also putting in a full day’s work as a Member of Parliament. The example that my noble friend Lord Cope made as a Northern Ireland Minister was very compelling. Not only did he put the enormous hours into the work but he was also travelling over to the Province.
I hope that the Minister, on behalf of the Government, will be able to explain why they have drawn the line in the way they have and why they are making what I believe to be a false distinction between voluntary and government jobs and those that are remunerated.
I do not believe that my noble friends Lord Cope or the Leader of the Opposition are actually on opposing sides of this; they are both addressing the same point. I strongly support my noble friend’s amendment for all the reasons that I set out, I think quite powerfully, in my Second Reading speech, which I do not intend to repeat today.
There is another reason for supporting my noble friend Lord Cope. A large number of Members of the other place pressed for a similar amendment there, and many argued on exactly the same grounds that he has that this should be registered, if for no other reason than to show the preposterous and deeply damaging nature of the existing code. We are in difficulty here because, regrettably, that code was of course agreed by the parties before the Bill came before them. It is one of the most damaging things that has happened to the other place for a very long time. I set out in my Second Reading speech my reasons for thinking that.
If either of these amendments emphasises and draws attention to the damage that has potentially been done by the existing code and the preposterous nature of that code, brilliantly exposed by Mr Frank Field in his speeches in the other place, it will be all for the good. One thing that cheers me up about all this is that Clause 5 starts by saying,
“The IPSA must prepare a code”.
My hope is that that will be a completely new code of financial interests that will not contain these damaging and preposterous rules which mean that people have to declare every single contract, exactly how much time they have spent on it and exactly how much they have been paid for it.
If those rules are to be observed, it is highly desirable that an amendment of this kind should go into the Bill, if only so that one’s constituents can then understand the facts of the situation and the fact that most Ministers are probably more heavily committed to work other than the straightforward parliamentary work of a constituency Member than anyone with a second job outside.
This is a valuable amendment. If it prompts IPSA, when it comes to consider these matters, to re-examine the whole issue of detailed declarations required by the existing code, we will have made a real advance. I support my noble friend.
I have a non-interest to declare. As the noble Lord, Lord Cope, says, the opposition Chief Whip in the House of Commons receives a salary and therefore holds paid office, but of course the Liberal Democrat receives not a penny extra. Nor, of course, do I have any previous ministerial experience. That goes without saying.
I am glad that those who have tabled the two amendments in this group have told us that they are absolutely compatible. I am afraid that to anybody outside this place they seem to be aiming in completely opposite directions. But at least this gives us an opportunity of thinking very seriously about a problem that has already been referred to by Members of the Committee.
If one is a purist—and I am not—anything that makes a clear distinction between parliamentary duties and ministerial duties must be a step towards the separation of powers. Since we have in this country parliamentarians who serve in the Executive—that is one of our distinctive characteristics—it is rather important to get this right. If we are trying to distinguish between parliamentary duties and ministerial duties, under which heading does the time spent in the House of Commons come? There will be some fun if we are not careful about this issue.
Similarly, if we are going to be pragmatic, we should recognise that the public feel some anxiety and may seek some reassurance that MPs are not moonlighting in a way that not only dilutes their commitment to public service but potentially affects their judgment, which is of course a much more serious issue. It is not just a question of whether they are paid to do something else. It is whether, as a result of that occupation, they are affected in their parliamentary duties.
I cannot understand the noble Lord’s contribution, having had to listen to his contribution only six weeks ago in the political parties Bill when we discussed an amendment that would have done precisely this prior to elections. He has totally reversed his position.
Not at all. I am trying to illustrate that there is a genuine dilemma here. I hope that all Members of the Committee will accept that. It is important to try and distinguish between the work of a parliamentarian as a Minister and any work they do outside Parliament in other walks of life. I think that is where these amendments come from. That is the point of this—
I really am appalled that a former Member of the other place could use this disreputable phrase “moonlighting”. Is he really suggesting that all the former lawyers in the other place, some of whom became distinguished law officers of the Crown, were moonlighting? Is he suggesting that all the other hugely distinguished Members who have contributed and had other jobs were moonlighting? That is an extraordinary assertion to come from a former Member of the other place. I hope that he withdraws it. It gives a totally false impression.
I would add that, if you were to take that back into history, people like Winston Churchill were undoubtedly moonlighting. It is nonsense, and we really must get away from such nonsense.
The noble Lord clearly was not listening to me. I did not say that I was accusing anybody of moonlighting. I said—and it is a fact of life—that some members of the public think that if Members of Parliament are doing anything other than their parliamentary duties, they are moonlighting. The noble Lord can argue about whether he does, or I should, take that view. All I am saying is that the public take that view and, sadly, the media encourage it.
I happen to agree with the noble Lord; if he had been a bit more patient, he would have allowed me to reach this point. The present House of Commons suffers from not having people who have what is called “hinterland”, or experience. I do not want to go into yet another of my personal reminiscences, but I was lucky enough to be defeated in the autumn of 1974 and went away and had a real job for 18 years. I came back, I suggest, a much better Member of Parliament in 1992 because I had had that experience of hiring and firing, working in and running companies.
There is a difficult problem if we are, in either of these amendments, assuming that any minute that is not spent in the House of Commons is somehow to be treated as being some form of—yes, I say it—moonlighting. There are all sorts of occupations that many Members have. It might be charitable, it may be pro bono, but the fact is that by concentrating here on the issue of financial support, we would not take that into account. We are in danger of dancing on the top of a pin on this issue. Neither amendment really adds to the Bill in a way that is helpful and constructive. I hope that when IPSA produces its code, it will do so with an open mind on these issues.
Both Houses of Parliament benefit from those who have extensive experience outside politics and outside Parliament. Whether that is past experience or some current experience is not the big issue. The big issue is whether they are unable to do their jobs as parliamentarians effectively because they are distracted either by time constraints or financial inducement. That is a genuine issue and a difficult balancing act. In my view, the key issue is transparency. The electors are entitled to know what Members are or are not doing. I hope that that will be the guidance that is given to IPSA in due course. I wait with interest to hear how the Minister intends to respond to these two—it seems to me—entirely contrary suggested additions to the Bill. In doing so, I hope the Government will take the approach that the key issue is that the electorate should know clearly what is going on in the most transparent way possible.
I give a footnote to what my noble friend has just said. A great service has been done by tabling these two amendments so that we can have a brief debate on the issues. The problem is that the underlying problems of the House of Commons cannot be tackled by what we are now considering in the Bill. The underlying problems are, first, that MPs are paid too little; they should be paid at least at the same rate as, for example, the head teacher of a school. Secondly, they sit in the mornings, which means that it is very hard for members of the legal profession to carry on practising in court. Thirdly, the noble Baroness, Lady Thatcher—then Mrs Thatcher—wisely reduced the top rate of taxation to 40 per cent, which meant that the lawyers of ability—who would otherwise have gone into the House of Commons—decided that they would rather keep the money and stay outside. Fourthly, since 1977, in my direct experience, lobbies have emerged in a completely different way from anything before 1977.
It began, as I recall, at the time of the Aircraft and Shipbuilding Industries Act, and it mushroomed from that period. Andrew Marr’s excellent history goes into all that. To construct a House of Commons now of full-time, well paid professionals is very difficult and way beyond anything that the Bill is able to do. The Bill deals with an important subject, but does nothing that can appease the noble Lord, Lord Crickhowell, or me. Like him and my noble friend, I entirely agree that it was admirable that Roy Jenkins, for example, in opposition, wrote all those great books and made money in doing so; that men such as Denis Healey had a large cultural hinterland; and that many of our great Ministers have had great jobs.
When I came to the Bar, many centuries ago, the House of Commons was full of very able lawyers in opposition, who acted as an opposition civil service in the afternoons and evenings. Men like Frank Soskice and Elwyn Jones would come out of court at 4.15 pm. They would spend the afternoon and evening drafting amendments, briefing the Labour Party in opposition and performing a great service. All that has almost completely gone and it is hard to find many outstanding lawyers in the House of Commons. There are some, of whom I would say—if I may—that Dominic Grieve is an outstanding example, but there are not very many. The Bill is not about this problem. The Bill is about trying to ensure full disclosure to deal with the mischief that has arisen in the recent past.
I entirely agree with my noble friend that one cannot draw a distinction between Ministers and other Members of Parliament so long as we do not have a separation of powers between the Executive and the legislature. It is simply a constitutional heresy to think that we could. Therefore, it is important that Ministers and former Ministers should be subject to exactly the same disclosure requirements as everybody else.
I am truly glad that there is no difference of opinion on the Benches opposite about whether ministerial salaries should be declared in the Register of Interests. That point has been clearly explained. I recall the trenchant views expressed by the noble Lord, Lord Crickhowell, at Second Reading. I am very grateful to him for drawing our attention to Clause 5(1), which explicitly states that it will be for IPSA itself to draw up the code. I trust that it will be able to bring about the relevant changes, if that is what the noble Lord wishes. In doing so, IPSA will consult relevant parties, but the final result will not necessarily be the same as the current code. I think that that addresses that question.
Amendment 38A appears to say that the interests of a Minister are not to be registered, but Amendment 42 would require the specified financial interests to be registered to include,
“payment as, and hours worked as, a Minister”.
The Government agree with the noble Lord, Lord Cope of Berkeley, in that regard. We do not think that it is necessary to spell this out in the Bill but we are certainly opposed to any suggestion that working as a Minister is a second job in the same way as an interest outside Parliament would be. That is not to say that MPs should not have a very wide hinterland.
There is, of course, no mystery about the work of Ministers. I fully recognise the point made by the noble Lord, Lord Cope, that Ministers can and do look after the interests of their constituents as well as fulfilling their ministerial tasks. That Ministers are Ministers is a matter of public record, as are their salaries, although I accept that the hours they work are not. The key difference between a Minister, a lawyer and an accountant is that a Minister carries out his or her work within Parliament. It is an integral part of our system that Ministers are full Members of Parliament. As noble Lords have said, we are not like France; we do not have the separation of powers. We value the connection that continuing to be a constituency MP gives those who serve as Ministers in the House of Commons. That is something that we all agree on. It enhances the contribution Members make as MPs and as Ministers.
I agree with the noble Lord, Lord Tyler, that the code will address the issue of transparency. That is of fundamental importance for our democratic system. However, I reiterate that nothing in the Bill prevents MPs having outside interests, as the other place has already decided; it simply provides that such interests should be registered so that there is no ambiguity about an MP’s motives for raising a matter. As I explained earlier, a new code will be devised by IPSA. With that, I trust that both these amendments will be withdrawn.
I am grateful to those who have contributed to this short debate. There is consensus that it is a good thing for Members of another place to continue to have outside interests in addition to being Ministers and office holders. We were told when the rise of professional lobbyists started; I think that it started a little before the date that the noble Lord, Lord Lester, suggested. When I first entered another place, the most efficient lobby, by a considerable degree, was the National Farmers’ Union. It was extremely experienced at lobbying and had done it for many years, although it was not alone in the field. I entirely accept that, since then, there has been a huge rise in the number of professional lobbyists and, for that matter, a decline in the number of MPs with substantial outside interests.
I quite agree, but I was trying to say something else—not regarding the National Farmers’ Union but about the rise in the number of public relations firms lobbying on behalf of other interest groups, which very much began in the middle to late 1970s.
We should not argue about the history. The noble Lord, Lord Tyler, said that it was wrong that MPs should be influenced by what they do outside. I understand and concur with the sentiments that he was trying to express. At the same time, however, we are all, in a way, saying that lawyers should be influenced by the fact that they are up to date with the law and that they are appearing in court as well as taking part in debates in the House of Commons. The same applies to the various other professions. Someone who has an interest in farming, for example, but who has not been involved in it for some years will be frightfully out of date about how it all works, how the markets are moving, how the subsidies work and all the rest of it. Unless you are continually engaged, you very quickly get out of date, and the same is true in all sorts of other areas.
Those matters relate to the general debate that lies behind my amendment, which was intended, as the Leader of the House said, to ensure that interests as a Minister or an office holder in the House of Commons should not be required to be registered—which is the case at present. The noble Baroness said that it is not necessary to state that in the Bill. I find that I am on the same side as her except as regards whether it is necessary to state that in the Bill. I will take her word for it on this occasion and beg leave to withdraw the amendment.
Amendment 38A withdrawn.
Amendments 39 to 42 not moved.
Debate on whether Clause 5 should stand part of the Bill.
I have tabled a stand-part Motion to explore the ramifications of Clause 5, which establishes a statutory code of conduct under the aegis of IPSA.
This part of the Bill has had an extremely complicated passage through another place. The original proposals consisted of two clauses: one related to a register of financial interests, and the declaration of those interests during Commons proceedings, and the other acknowledged the Nolan principles. Those proposals now look very different. We have lost any reference to the Nolan principles and we have lost any requirement as to the proper declaration of interests. The question of just what Clause 5 is seeking to achieve is, therefore, more than a little obscure.
In its current form it comprises two points: maintenance of the register of financial interests, and the prohibition of paid advocacy. Both, as the Bill is currently drafted, are subject to investigation by the commissioner, as established by the Bill, and are therefore subject to referral to the Commons Committee on Standards and Privileges for disciplinary proceedings. Breaches of this code in both regards are also, at the moment, to be criminal offences.
However, yet another version of the Bill will be available for the Report stage on Monday. Incidentally, can the Government indicate what will be the earliest time for the reprinting of the Bill? Government amendments have indicated that the commissioner will investigate only breaches of the register, not the possibility of paid advocacy, and that only breaches of the rules about the register will become a criminal offence.
To make matters even more complicated, there is a rumour that the Government are to remove that offence too, so that a breach of the register will also be a matter only for the Commons Committee on Standards and Privileges. I would welcome any clarification from the noble Baroness on whether the rumour has any basis in fact. It is extremely relevant to our discussions on the clause.
The twisting and turning that the Government have demonstrated on the clause suggest that they are seeking to ensure merely that some sort of statutory code of conduct—any sort of statutory code of conduct—remains in the Bill. They appear to have lost sight of what the code is intended to achieve. Clause 5(1) limits the code of conduct to matters concerning the register and the prohibition on paid advocacy relating to registered interests. The commissioner will be able only to investigate breaches of the register. What, therefore, does subsection (8) add? What is the purpose of including it in the code of conduct? Any breaches of proper parliamentary behaviour—which paid advocacy certainly is—will continue to be a matter for the existing parliamentary commissioner and for the Commons committee. Why will IPSA be involved?
My second point is intended to probe further the Government’s intentions on what the register of financial interests will look like. We have had debates here and in another place about the possibility of excessive registration requirements for MPs. Such requirements would be extremely harmful to the effective operation of another place. Will the noble Baroness give us greater clarity about what sort of registration requirements the Government envisage that IPSA will establish? We know that the Kelly commission is looking at allowances and that his independent recommendations, formed after several months of consideration and debate, will be the basis for the scheme established under Clause 3. On what independent report will IPSA base Clause 5?
The current guidelines are in such a state that the Secretary of State has admitted that any breach of them would be impossible to discipline because of the difficulty of deciding whether the breach was inadvertent. It is clear that the guidelines must be rationalised; but what criteria will IPSA apply to this? Having played a part in the detailed debate on Clause 5, I will say that the whole purpose of the clause is now shrouded in mystery. The purpose of giving notice of my intention to oppose the clause was to give the noble Baroness the opportunity to shed light, not on each subsection but on the philosophy that underlines Clause 5.
I am surprised by what my noble friend has just said. If I understand him correctly, he has information that the Government are intending radically to rewrite Clause 5 on Report. If that is not right, I do not understand the point that he made. He asked when we were likely to have more information on that. No doubt the Leader of the House will enlighten me.
I will make one small point. The code is prepared by IPSA after consultation. It must be laid before the House of Commons and does not come into effect until approved by a resolution of the House of Commons. What happens if the House of Commons declines to approve the resolution?
Noble Lords have asked many interesting questions. First, I will clarify the point raised by the noble Lord, Lord Higgins. The noble Lord, Lord Strathclyde, asked a question in relation to Clause 8(2), which refers to offences. It states:
“A member of the House of Commons commits an offence if, without reasonable excuse, the member fails to comply with a requirement included by virtue of section 5(7) (registration of interests) in the MPs’ code of conduct relating to financial interests”.
This is an issue on which I have been reflecting throughout the day. I am minded to reflect further on this specific offence and come back to it on Report. The Government are absolutely clear that they regard the offence mentioned in Clause 8(1) as a prerequisite of the Bill. We want that offence to stand; we consider it to be extremely important for the core function of the Bill. As I said, I am reflecting on whether the offence referred to in Clause 8(2) might be removed, but I shall come back on that in due course. The noble Lord has a question.
The noble Lord is absolutely right, but the noble Lord, Lord Strathclyde, asked for my views about Clause 8(2) and I am responding to that question. I hope that noble Lords will forgive me, but that is how it is. It was not I who began this debate.
I have no intention of amending Clause 5 further. I believe that it is excellent as it stands. It is extremely important and it lies at the heart of the new regime established by the Bill. This clause is essential for the re-establishment of public trust in Parliament. It demonstrates that House of Commons rules on financial interests should be drawn up and overseen by a body outside Parliament; that is what Clause 5 does. It sets out the requirement for the Independent Parliamentary Standards Authority to prepare a code on financial interests that must be observed by Members of the House of Commons.
The noble Lord, Lord Strathclyde, suggested that there was now some confusion about the codes. My noble friend has kindly suggested that we prepare a note for all noble Lords setting out the differences between the two. The code referred to in Clause 5 specifically relates to financial matters. If the clause were removed from the Bill, I do not believe that the new body being established would have any oversight of these vital elements of MPs’ financial interests and therefore the Bill as a whole would not answer public demands for independence and transparency.
I think that the Leader of the House is saying that, in thinking about Clause 5, we should think also about Clause 8. The moment that the offences in Clause 8 become criminal, there is a possibility that the offence referred to in Clause 8(2) will become a disciplinary matter, although that may or may not be the case. Therefore, in looking at Clause 5, we should look forward to Clause 8 as well. Is that roughly the position?
I am sorry to complicate matters but if, and I repeat “if”, Clause 8(2) were removed from the Bill and the offence referred to in it were not to stand, it would, as the noble Lord makes clear, then be for the House of Commons as it is now—the parliamentary standards authority—to deal with any transgression of the rules pertaining to the register.
The code of conduct relating to financial interests is for IPSA. It is deliberately left to IPSA to determine, as informed by the Kelly review. There is interaction between the Kelly review and IPSA and IPSA will take into consideration the work being undertaken by the Kelly committee. The noble Lord, Lord Strathclyde, asked whether IPSA had any functions in relation to paid advocacy. IPSA will be responsible for making the rules on paid advocacy. Neither IPSA nor the commissioner will have a role in enforcing the rules on paid advocacy. That will be a matter for the House of Commons. That is a completely different issue.
Why is Clause 8 in the Bill when we are dropping not only the offence on paid advocacy but also the power for IPSA and the commissioner to investigate? IPSA will be responsible for making the rules on paid advocacy.
Yes, the Government are bringing forward an amendment which we will be taking on later in Committee. Clause 8(3) is dead and will no longer be an offence. There is also an amendment from my noble friend Lord Campbell-Savours to that effect. Clause 8(3) has gone. I am reflecting on Clause 8(2), but Clause 8(1) is here to stay. We can give much away, but not Clause 8(1).
I was asked many more questions and I am sure that I have not provided all the answers. The basic requirements for the code set out in the clause embody the principles that the House of Commons has long accepted should govern its conduct in relation to financial interests arising outside Parliament. The House of Commons will continue to have the ability to make the final decision about the contents of the code, as the noble and learned Lord, Lord Mackay of Clashfern, said, but it is essential to the restoration of trust in politics that the code is seen to be the responsibility of and to be enforced by a body outside the House. I am happy to consider any further questions.
I have a simple question for the Leader of the House. She has gone through this clause and explained all the complications and the offences to which Members of Parliament will be liable. Does she not think that we have gone over the top? Four years ago, the situation was the same as it was 34 years ago. Members of Parliament were governed by the rules then and there would not have been a row four years ago, but now there is the most appalling row. Does she not think that we have overreacted?
No, I absolutely do not think that we have overreacted. We are ensuring that in future there will be greater transparency and greater public confidence in the House of Commons. We owe it to our colleagues in the House of Commons to restore trust in our parliamentary system, the trust that has been so severely damaged over the past weeks. That is what this Bill is all about and I think that it is extremely important that we deliver it precisely so that we can restore that trust.
This Bill is rapidly turning into a good Bill. People are not really taking stock of what is happening. I know that large sections are being deleted and, in the event that my noble friend goes down the route of taking out subsections (2) and (3) on advocacy and registration, I believe that the residual Bill will be universally popular and will work.
I, too, think that the Bill will be much improved as a result of the efforts of the Committee and of the Leader of the House and her colleagues on the Front Bench. This has been unfortunate. The fuss and the difficulties in the Commons have all been related to the allowances system; they have not, in the past few weeks, been related to MPs’ outside interests. We ourselves had a little problem with outside interests and paid advocacy not long ago, but that was at this end of the Corridor, not the other end.
This part of the Bill, dealing with paid advocacy and the registration of outside interests, seems to me to be much the more difficult to get right. We all—well, most of us—want MPs to be able to continue with outside interests. That is the more difficult bit of the Bill to get right, yet that is being rushed through alongside the bit that is important to do quickly, which is the bit relating to allowances, where all the trouble and damage have been to the House of Commons in the past few months. I am sorry that that is the way that it has worked out, but that is the way it is heading and I feel it right to put that on the record as my opinion.
I share the view that the Bill is being much improved, but I think that I heard the Leader of the House say “later in Committee”. Because we cannot really absorb all the changes being made today, is it possible for the Committee to meet this week, to meet the needs of the Government to table their amendments so that they can be further considered, rather than have it all done in a great hiccup at Report next week? I should have thought that that would be in the interests of the Government and Parliament, as it would give us time to reflect. I do not know whether that is what the Leader of the House had in mind when she said “later in Committee”. She surely cannot mean later tonight in Committee, because the Government cannot table further amendments tonight.
The government amendment to Clause 8(3) has been tabled; it is in the Marshalled List. That is the amendment that I was referring to that we will consider later in Committee. Any amendment that I might bring forward pertaining to Clause 8(2) I will table for Report. I of course undertake to table any amendments for Report at the earliest opportunity.
The noble Lord, Lord Strathclyde, asked when we might publish a revised Bill. Of course, it depends when we finish Committee, but I undertake to do everything possible to ensure that the revised Bill is published before the weekend.
It was useful to have that debate on Clause 5, although we spent a large amount of time talking about Clause 8. I am glad that we have clarified that Clause 8(3) is going and that there is the strongest possibility that Clause 8(2) will be removed, so that we will be left with just Clause 8(1).
Other noble Lords who have spoken, including the noble Lord, Lord Lester of Herne Hill, have said that we are being asked to absorb a great many changes to the Bill from all the amendments that have been made. If we finish the Bill tonight—I have a feeling that we will not—it could be reprinted tomorrow, but if we continue Committee for, say, a couple of hours on Thursday, it will not be reprinted until Friday. I wonder—I have no idea of the answer—whether there is any way in which there could be some sort of interim publication to deal with all the amendments that we have already had to help us when we get to Report on Monday. The alternative is that Report on Monday may end up being a recommitment of the Bill; I am not sure that the Government would be very keen on that at all.
I remember that, once in the past, the Government published a Bill with some amendments in an informal way, so that one could see what changes had been made and we could follow it. That was certainly done in the past. I cannot remember the occasion, but it could be done in a non-binding way.
That is certainly an interesting suggestion. I will take back the suggestions both from the noble Lord, Lord Strathclyde, that we publish an interim Bill and from the noble Lord, Lord Lester, that we publish an informal Bill and come back to the House as soon as possible.
I think that there is no theoretical objection to publishing a Bill as amended in Committee up to a certain point, but I can see some practical difficulties because of the strain that that might put on the resources available for printing and numbering.
Clause 5 agreed.
Clause 6 : Investigations
Amendments 42A to 42C
42A: Clause 6, page 4, line 23, after “with” insert “a requirement included by virtue of section 5(7) (registration of interests) in”
42B: Clause 6, page 4, line 28, leave out paragraph (c)
42C: Clause 6, page 4, line 30, leave out from “investigation,” to “provide” in line 31 and insert “the IPSA must”
Amendments 42A to 42C agreed.
Amendment 43 not moved.
43A: Clause 6, page 4, line 33, leave out subsections (4) and (5) and insert—
“(4) If, after conducting an investigation, the Commissioner finds that the member was paid an amount under the scheme that should not have been allowed, the Commissioner must refer the Commissioner’s findings to the House of Commons Committee on Standards and Privileges.
(5) But the Commissioner need not refer the findings if—
(a) the member accepts the findings,(b) such other conditions as may be specified by the IPSA are, in the Commissioner’s view, met in relation to the case, and(c) the member repays to the IPSA, in such manner and within such period as the Commissioner considers reasonable, such amount as the Commissioner considers reasonable. (5A) If, after conducting an investigation, the Commissioner finds that the member failed to comply with a requirement included in the code by virtue of section 5(7), the Commissioner must refer the Commissioner’s findings to the Committee on Standards and Privileges.
(5B) But the Commissioner need not refer the findings if—
(a) the member accepts the findings,(b) the Commissioner considers that the financial interest concerned was minor or that the failure was inadvertent,(c) such other conditions as may be specified by the IPSA are, in the Commissioner’s view, met in relation to the case, and(d) the member takes any steps required by the Commissioner to correct the register.(5C) If the Commissioner finds that a member who is the subject of an investigation has not provided the Commissioner with information the Commissioner reasonably requires for the purposes of the investigation, the Commissioner may refer the finding to the Committee on Standards and Privileges.”
Amendments 43B to 43E not moved.
Amendment 43A agreed.
Amendments 44 to 46 had been withdrawn from the Marshalled List.
Amendments 47 and 48 are pre-empted.
48A: Clause 6, page 5, line 6, leave out “a report under subsection (4) is” and insert “the Commissioner’s findings are”
Amendment 48A agreed.
Amendment 48B not moved.
48C: Clause 6, page 5, line 10, at end insert—
“(ba) the Commissioner, and”
Amendment 48C agreed.
49: Clause 6, page 5, line 12, leave out subsection (8) and insert—
“( ) The procedures referred to in subsection (6) must, in particular, provide a member who is the subject of an investigation or complaint with—
(a) a prompt and clear statement of the precise allegations against the member;(b) adequate opportunity to take legal advice and have legal assistance throughout;(c) the opportunity to be heard in person;(d) the opportunity to call relevant witnesses at the relevant time;(e) the opportunity to examine other witnesses; (f) the opportunity to attend meetings at which evidence is given, and to receive transcripts of evidence;(g) the benefit of a standard of proof of beyond reasonable doubt where the allegation amounts to a criminal charge, and of the balance of probabilities in all other cases.”
I shall speak also to Amendments 51, 64 and 76, which have been grouped. I move this amendment and speak to the others partly as a member of the Joint Committee on Human Rights, drawing upon its report, and partly relying upon the report of the Constitution Committee, which is also dealing with these matters. This amendment and the others in the group are designed to tackle a problem that the Joint Committee on Parliamentary Privilege highlighted a decade ago, which is the problem of ensuring fairness to Members of Parliament, given the system that we operate.
Paragraph 13 of the Constitution Committee’s 18th report, under the heading “Supervision by the courts” explains:
“When a new public body or regulatory scheme is to be established, constitutional scrutiny requires there to be careful examination of the proposals to ensure that adequate arrangements have been made for a regulated person to be able to make legal challenges to a decision. This is a practical application of the constitutional principle of the rule of law”.
Paragraph 14 states:
“In the context of the present bill, consideration of the principle that a regulated person should have access to a tribunal or court is complicated by the fact that there is a rival constitutional principle of great importance— parliamentary privilege”.
Paragraph 15 says:
“For sound constitutional reasons, the courts have historically respected the right of Parliament to govern itself and have refused to be drawn into any disputes that may arise about things said or done in Parliament”.
The committee then explains why.
Paragraph 26 of this admirable report explains:
“The fact that investigations and other regulatory decisions are now to be placed on a statutory footing (rather than based on a Resolution of the House of Commons) does not, in and of itself, have the consequence that they will in future be judicially reviewable. The courts will determine the extent”.
Paragraph 34 says:
“We believe that, as a matter of constitutional principle, decision-making powers of a public authority should be subject to the possibility of an appeal to a different body. We see no justification for denying members such a right of appeal against determinations of the IPSA”.
It then refers to the 1998 report of the Joint Committee on Privileges and the Joint Committee on Human Rights, and explains what it sees as the problems.
Paragraph 35 refers to the Joint Committee on Human Rights and the earlier committee on the problem of Article 6 of the European Convention on Human Rights, and concludes:
“We recognise that such an appeal would have profound implications for parliamentary privilege if the appellate body were to be a judicial tribunal outwith Parliament”.
I apologise for referring to all that, but it is necessary background to explaining what this clutch of amendments is trying to do. I say straightaway that none of them does it wholly successfully.
Amendment 49 comes straight out of the Joint Committee on Parliamentary Privilege’s recommendation and sets out in detail what fairness requires when a Member is subject to an investigation or a complaint. Proposed new paragraphs (a) to (f) have been endorsed by the Joint Committee on Human Rights. That is one way of trying to tackle the problem. It is elaborate, but it has the benefit of having been endorsed by two committees—one extremely powerful—in the past.
Another way of tackling the problem is set out modestly in Amendment 51, which would insert the word “fair” into the reference to the procedures that are to be agreed.
Another way was proposed by the noble and learned Lord, Lord Bingham of Cornhill, to the Joint Committee on Parliamentary Privilege and is set out in Amendment 76; it is a right of appeal by a Member of the House of Commons to the Judicial Committee of the Privy Council. Although the amendment is in my name and that of my noble friend Lord Tyler, it has the disadvantage of the Judicial Committee of the Privy Council being outwith Parliament and therefore gives rise to the problems of parliamentary privilege to which noble Lords have referred.
These are all different attempts to find a way of ensuring that Article 6 of the European Convention on Human Rights, which binds the United Kingdom, including Parliament and the other two branches of government, is satisfied in a way that is compatible with our democratic political and legal system. That is the puzzle.
I do not think that even the most fanatical person looking at the jurisprudence of the European Court of Human Rights at this hour needs my explanation of why the cases of Demicoli v Malta and Pierre Bloch v France do or do not mean that Article 6 is in play. Let us assume, as did the Joint Committee on Parliamentary Privilege in 1998, that if a Member of Parliament is subjected to really severe disciplinary penalties, that in terms of the convention the MPs’ civil rights and obligations are being determined, or that he or she is being subjected to what is in substance a criminal charge, the requirement of the right to an independent and impartial tribunal is triggered by the convention. I believe that to be the case. More importantly, that view was taken by the Joint Committee on Parliamentary Privilege as a likely outcome where severe sanctions were involved.
There is no problem when the Bill creates new criminal offences because such an offence can be tried in the ordinary way by an independent and impartial criminal court, which involves no clash with Article IX of the Bill of Rights. If a Member of Parliament is guilty of a crime in that traditional sense of crime, it is not connected with proceedings in Parliament. Criminal conduct of that kind cannot be regarded as proceedings in Parliament. At Second Reading I mentioned the case of Senator Brewster in the United States. He was a crooked senator who accepted a bribe and tried to argue that Article IX of the Bill of Rights meant that he could not be prosecuted. The Supreme Court threw it out. Clearly, in doing so, it was well versed in our system of government and in the case law on Article IX in this country. There is no problem where we create a crime or where there is a crime.
The problem arises in respect of the broader disciplinary powers of the House of Commons in whatever form and by any of the bodies in this Bill or otherwise. It is therefore very important to find a way to ensure fairness for Members of Parliament in a way which complies with the Bill of Rights and Article IX, and with the principles of fairness in the rule of law. Even MPs are entitled to fairness—it seems to me.
Perhaps I may hasten to say, as I did at Second Reading—all my attempts are objectionable in one way or another—that the right way forward would be to have a domestic tribunal within the House of Commons set up under statute. Its composition would be judicial but its members would not sit as judges of the Queen’s courts. They would sit as members of a parliamentary standards tribunal. There is nothing strange about that because in lots of legislation, including that for financial services and the regulation of solicitors, doctors or barristers, it is commonplace that serious disciplinary offences, involving for example being struck off or subject to a financial penalty, go to an independent and impartial tribunal. It used to be the Privy Council but it no longer is. In that way, fairness is accorded to members of those professions. We are concerned with fairness to members of the political profession, who are as entitled to fairness, as the Joint Committee on Parliamentary Privilege pointed out.
One has a choice. If we decide to do nothing, there will be judicial review proceedings. The Government have already conceded that decisions under this Bill are capable of being judicially reviewed. The proceedings will not satisfy Article 6 because the European Court of Human Rights has made it clear that there has to be a tribunal which can look at the facts and not only the law. It must be able to look at the merits and not just procedure. One has to have a true appeal to a proper tribunal or court in order that Article 6 can be satisfied. It is not good enough to leave it to judicial review, and in any case judicial review suffers from all the problems of Article IX as to the extent to which it is proper for the judicial review court to deal with it.
It seems to me that the right way forward is to create a tribunal within the House of Commons that satisfies the requirements of the rule of law and of parliamentary privilege, but keeps it domestic—within the House and not outwith it. No one would question anything in the House in another place. I do not believe it to be beyond the capacity of the Government to devise a tribunal of that kind. I raised this at Second Reading and I am sure that much better brains than mine have been thinking about it ever since. Having said that, I beg to move.
The noble Lord, Lord Lester, has raised an extremely important issue, one of the most important issues that we deal with only tangentially in this Bill. It is something that has caused me anguish over a number of years. I served on the Members’ Interests Committee in the House of Commons from 1983 to 1992 and on the Privileges Committee from 1996 to 2001. There were a number of occasions when Members felt that they had been unjustly treated by the Privileges Committee. While I could not argue in defence of Neil Hamilton, during the course of his case he raised issues that I believe were of fundamental importance and which did not bring the Privileges Committee, in its procedures—if I may use the term—into good repute.
On two occasions, certainly, I remember moving amendments to deal with the whole question of appeal. That is because the issue is one of appeal, and Members feel aggrieved when there is no structure to enable them to do so. Those Members who are interested, the anoraks in this area—I think it is particularly interesting—might wish to consider the review of the first report of the Committee on Standards in Public Life entitled Reinforcing Standards, carried out by the noble Lord, Lord Neill, who unfortunately is not in his place. I am sure that if he had been, he would have wanted to refer to this report. In his review he refers to the original recommendations and I shall quote from that. The original Committee on Standards in Public Life stated that,
“we consider that a sub-committee of the Committee of Privileges consisting of up to seven very senior Members would be the best body to take forward individual cases recommended by the Commissioner for further consideration; we recommend that such a sub-committee should be established … as the sub-committee would report to the full Privileges Committee, this would have the practical effect of giving the Member a right of appeal to that Committee. Only the most serious cases should need to be considered by the whole House”.
I was one of the Members who opposed the recommendation at the time, but I was wrong, as I learnt over the years. I do not think it is too late to go back to this issue. Looking back on my experience over those years, I think that the structure of the Committee on Standards and Privileges is wrong. It should be, moreover, a judicial committee, and it might well be that it should comprise in major part people from outside the Commons—they may well be people from this House. The sub-committee would carry out the functions of the existing committee. Then the higher committee, consisting of people from a judicial background because these would be judicial appointments, would become the appellate body. I believe that that would satisfy the anxieties of Members hauled before these committees under the new structure. In my view, that would deal with the problem just identified by the noble Lord.
The noble Lord talked about an appellate body within the House of Commons itself, and that is critically important. I would say to Sir George Young that I know it means that the members of that committee would give up some of their responsibilities and their existing powers, but they have to consider this. It is an important issue. Members who read the appendices to the judgment in the Downey report on the Hamilton case will find repeated references to Hamilton and his grievance over the lack of an appeal being available to him. Indeed, I remember a division in the committee after Ann Widdecombe spoke of her great concern, which led her to vote against much of the Hamilton report. She gave a long explanation of why she felt uneasy. If I remember rightly, she resigned from the committee over this on an issue of principle. I am sure the record of the time will correct me if I am wrong.
I say to my noble friend that we cannot do a great deal about this in the Bill, but I hope the message goes out to the House of Commons that it should get this problem sorted out because it leads to injustices.
I support modest Amendments 51 and 64, which seek to add the word “fair”. It is right that there should be a fair opportunity to make representations to the commissioner for the purposes of Clause 6, and a fair opportunity to make representations to IPSA under Clause 7. The Bill should make clear the obligation to act fairly.
I am much less enthusiastic about Amendment 49. I doubt the wisdom of setting out in detail what a fair procedure requires in this context, particularly when we are dealing with a novel jurisdiction. It may, for example, not be necessary or appropriate in all cases to give an oral hearing to those affected and the opportunity to cross-examine witnesses. That may depend upon the issues in the case. As long as they have a statutory duty to act fairly, I would much prefer to leave the statutory bodies to decide for themselves what procedures to adopt.
Amendment 76 raises different and difficult questions. I agree that there needs to be a right of appeal against a direction made by IPSA under Clause 7(1). As I understand Clause 7, IPSA will make decisions under subsection (1) and it is therefore right for there to be a right of appeal to a judicial body. However, I am not persuaded that there should be a right of appeal, as Amendment 76 suggests, against a determination by the House of Commons. Contrary to the terms of Amendment 76, the House of Commons will not determine any criminal charge—that will be a matter for the criminal courts—but it will determine disciplinary issues against Members. To propose a right of appeal, even to the Judicial Committee of the Privy Council, touches precisely upon the issue with which we began these Committee discussions so many hours ago. To confer a right of appeal would touch upon that most fundamental of constitutional principles that the courts, the judges, should have no role in relation to decisions taken by the House of Commons in disciplinary matters. This is not simply an academic theory; it is a vital, practical principle to ensure the avoidance of any conflict between Parliament and the judiciary.
As has been suggested by the noble Lords, Lord Lester and Lord Campbell-Savours, the solution is that the House of Commons could set up a fair procedure which complies with Article 6, as, I remind your Lordships, this House did; when it imposed disciplinary sanctions on its Members most recently, it adopted a fair procedure. However, this is entirely a matter for the other place. Its Members will no doubt consider what has been said here, but it is a matter for them.
I support the view put forward that it would be highly desirable for the House of Commons to consider setting up an internal, fair appeal system to be used in the case of an important direction. I agree that it would be a mistake to have an appeal to the judicial committee of the Privy Council, because our constitution prevents any recourse from a decision of the House of Commons or of Parliament to the ordinary courts. Strictly speaking, the judicial committee of the Privy Council, although it is not particularly ordinary, is still a court of law, and it would, as the noble Lord, Lord Pannick, said, be a breach of the principle to have an appeal there. A domestic appeal tribunal within the House of Commons therefore strikes me as the best, but “fair” is what is required, and we should possibly leave it to the House of Commons to decide how to deal with it fairly.
Perhaps I may respond to both the noble and learned Lord and the noble Lord, Lord Pannick. If we include “fair” in the Bill and do not have some kind of appeal tribunal to deal with at least a limited part of the Bill, is there not a problem that that will then be capable of judicial review? The Government have conceded that decisions will be capable of judicial review, which will involve a collision with Article IX. Therefore, while we all agree that fairness needs to be in the Bill, do we not need to try to—as it were—hive off judicial review as much as possible and have the decision dealt with by a domestic tribunal? I quite understand that the wider questions of the House of Commons should be sorted out by the House of Commons, as the noble Lord, Lord Campbell-Savours, pointed out, but I am trying to address the need for the fairness principle to operate practically within the framework of the Bill without going into the wider question of the House of Commons’ disciplinary functions as a whole, which is for another day. Does the noble and learned Lord share my concern that, if we put fairness in the Bill but do not create some kind of tribunal, we shall finish up with judicial review, with all its problems?
I quite see that point, but it would as a practical matter be mightily difficult for us in the time that the Government have made available to work out the detail of an internal committee. I also take the point of the noble Lord, Lord Campbell-Savours, that how the House of Commons is practically to go about it is a matter for the House of Commons itself. However, the Bill is not the end of everything if it becomes law. The House of Commons authorities, the Government and the others in the House of Commons, with that indication, might set about thinking of a tribunal within the House of Commons that will deal with this kind of problem. I agree that, if that does not happen, there is a risk of judicial review, but I hope that the threat of that might be sufficient to spur on authorities in the Commons to take up this point.
I respectfully share the view of the noble and learned Lord, Lord Mackay of Clashfern. It would highly undesirable, not to say dangerous, to have an appeal system, of any sort, that went to any court, even the distinguished Privy Council. One would hope that the other place might feel it appropriate to create some system that met the particular problems raised so eloquently by the noble Lord, Lord Campbell-Savours. If one reads the Bill, one can see that there will be occasions when people who come before the House of Commons under the Bill when it becomes law will feel that they have not been justly treated. However, that ought to be a matter for the other place, which ought to be able to create whatever system it feels appropriate to meet that real problem.
We have rightly heard a great deal about the Human Rights Act and the European Convention. I remind the Committee that the principles of fairness and the rule of law pre-existed the Human Rights Act by many centuries.
With great trepidation, among such distinguished legal company, may I point out a practical point which I do not think the noble Lord, Lord Pannick, the noble and learned Lord, Lord Mackay of Clashfern, or, indeed, the noble and learned Baroness, Lady Butler-Sloss, have recognised? The report of the Joint Committee on Human Rights, which is endorsed by Members of the other place, and a government majority in the other place, specifically requires us to look very carefully at this issue now. We cannot just leave it for the future.
The latter, of course. I read carefully the contribution of the chairman, a very distinguished member of the Minister’s party in the other place. He is anxious that your Lordships' House, in Committee, faces up to this simple recommendation. It said that,
“we conclude that the Bill, as currently drafted, is incompatible with the right to a fair hearing in Article 6(1) ECHR. To render it compatible, it needs to be amended in two ways”.
Those two ways are incorporated in the amendment in the name of my noble friend and myself. My noble friend has made it quite clear that since we have tabled these amendments, we have given more thought to the actual method by which these objectives can be reached. But it is not good enough simply to say, “Let them deal with it when they can”. This is an extremely important issue, and if it is not addressed during the passage of this Bill, when will it be?
My noble friend has rightly said that his preferred method of a tribunal, set up within the framework of Parliament, deals with the point to which the noble Lord, Lord Pannick, referred. There is no possibility of the parliamentary privilege issue being raised. I am disappointed that the noble Lord, Lord Neill of Bladen, is not in his customary place this evening. Both the Joint Committee on Parliamentary Privilege, which reported in 1999—I was a member of it—and the Committee on Standards in Public Life made it clear that it was essential to deal with this problem. To my mind, the legislation that was recommended by the joint committee 10 years ago would have helped us hugely had it been followed through by the Government since, but it has not been.
Simply to leave this as unfinished business and hope that somebody is listening to us at 10.20 at night and that somebody in the other place will do something about it at some time is not good enough. We have to have a firm assurance from the government Front Bench that they will bring forward, at some point—not necessarily between now and Monday—an internal procedure to make sure that the requirements of the committee and of the ECHR are being met. Otherwise there will be a serious omission in the Bill, and I entirely endorse the comments of the noble Lord, Lord Campbell-Savours, about the inadequacy of past procedures.
I endorse the sense of urgency which my noble friend Lord Tyler has brought to this. After all, we expect the Bill to receive Royal Assent next week. Many of its provisions will subsequently be brought into force by statutory instrument; given the urgency with which the Bill has been brought forward, we assume that that will happen soon. It is not a question of being able to take one’s time in addressing the issue of some appellate body, probably within Parliament or within the House of Commons, the need for which, as the noble Lord, Lord Campbell-Savours, indicated, was identified in the issues surrounding the case of Neil Hamilton. Indeed, the Joint Committee on Parliamentary Privilege, which reported 10 years ago in 1999, also identified this. The report of the Constitution Committee, on which my colleague the noble Lord, Lord Pannick, and I both sit, identified this issue quite clearly, although it does not come up with any solution, not least because the time available meant that it was not possible to do so. But there is a very real issue here.
My noble friend Lord Lester of Herne Hill has indicated clearly that the proposal that refers to the Judicial Committee of the Privy Council, which was, as I understand from the 1999 report of the Joint Committee on Parliamentary Privilege, a suggestion of the noble and learned Lord, Lord Bingham, has difficulties in itself, as has already been referred to by the noble and learned Lord, Lord Mackay of Clashfern, as it would raise the issues of parliamentary privilege which we have tried to avoid. The alternative to that, though, has to be some tribunal from within Parliament, from either the House of Commons or both Houses. We cannot put off the day when that is determined, because these issues could become active before very long.
When other people, such as prisoners and members of the Armed Forces in combat, can all access the European Convention on Human Rights, I see no reason why Members of Parliament should not also be able to. If the House of Commons can take away someone’s livelihood—if it can suspend them without pay for a period of time or expel them—that clearly affects their livelihood and reputation, and they therefore have a right to some appellate tribunal. My noble friend Lord Lester has raised an important point, and I hope that the Minister can give us some assurance that has been actively addressed.
I agree with the noble Lord that the noble Lord, Lord Lester, has indeed brought an important matter to your Lordships’ attention today. This has been a fascinating and high-quality debate, mainly, though not exclusively, between esteemed lawyers in your Lordships’ House. In a sense, that debate has shown the difficulty that there would be in reaching consensus, particularly in the short time that is available.
I am aware that that will be used against me when I say that we have to be very careful about thinking of legislating in this area in the time available, given the different views that noble Lords have put forward. However, I accept the point that the noble Lord, Lord Lester, wishes to debate. He called it the “puzzle” of how to achieve fairness that complies with the rule of law and with ECHR rights but does not, he implied, undermine the privileges of Parliament.
The noble Lord, Lord Wallace, asked what comfort I could give. There are a number of government amendments, some of which have been spoken to and some of which have yet to come before us, which I hope will give considerable comfort to noble Lords. Since we are where we are, though, I recognise that it has been difficult for noble Lords to take account of that in their comments.
I begin with the point raised by the noble Lord, Lord Lester, about criminal charges. He said that he had no problem with that because those matters would have to go through the courts.
That does not mean that there is no problem about criminal charge in the sense of the convention. I was referring to traditional criminal charges. There is of course a problem if, in substance, a disciplinary offence is penal in character in terms of Article 6 criminal.
I am grateful to the noble Lord for making that intervention.
As we introduced the Bill, the IPSA’s functions were limited to giving a direction or recommendation. Even in those circumstances, though, enforcement was to be a matter for the House in the exercise of its current conduct and discipline functions. Much of our debate today has been about whether the House of Commons’s conduct and discipline functions are as fair as the noble Lord thinks they ought to be.
Subsequent to the Bill’s original publication, though, we have had two amendments that have changed the way in which the IPSA and the commissioner operate. First, IPSA is no longer to have any recommendation or direction functions. The commissioner is only to report findings to the House of Commons Committee on Standards and Privileges. That means that the commissioner would not be involved in determining civil rights or obligations for the purposes of Article 6.
In addition, although the Government are not convinced by the JCHR’s arguments concerning ECHR, we have none the less decided to accept the key safeguards from Amendment 49. Government Amendment 53B sets out that the procedure for commissioner investigations must include an opportunity for the MP to be heard in person, and an opportunity, where the commissioner considers it appropriate, to call and examine witnesses. My understanding is that that reflects the procedural safeguards which exist in Standing Order 150 of the other place, where the parliamentary commissioner for standards makes use of an investigatory panel to assist him. That ought to go some way to reassuring the noble Lord.
My noble friend Lord Campbell-Savours and the noble Lord, Lord Pannick, have raised concerns about how the Committee on Standards and Privileges conducts its affairs; it is only right and proper for noble Lords to do so. At the end of the day, however, that is very much a matter for the other place to regulate. I agree with the noble Lord, Lord Pannick, that it is part of that House’s internal disciplinary proceedings. While I am happy to ensure that this debate is referred to appropriate Members in the other place, I am hesitant to go down the route of our determining what ought to happen.
Will the Minister at least accept on behalf of the Government—as the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Mackay, have suggested in support—that fairness be written in as a trigger to encourage fairness in the procedures throughout? If that is not included, it would raise a rather serious issue.
Although the noble Lord himself, in the illuminating debate with the noble and learned Lord, Lord Mackay, also pointed out problems with the use of fairness, he coupled it without a tribunal, as he also suggested.
To come to that, first, the amendment to the duty of IPSA in Clause 7(4) is of course rendered unnecessary if the Committee accepts the Motion of my noble friend the Leader of the House that Clause 7 does not stand part of the Bill. It is the Government’s intention to invite noble Lords to join us in determining that Clause 7 does not stand part of the Bill. That ought to provide a great deal of comfort to noble Lords on all these matters.
On the other fairness amendment, to Clause 6(8), we have to be cautious. On the face of it, introducing the word “fair” seems entirely reasonable and would give comfort. Both IPSA and the commission are of course under a public law duty to act reasonably, which is analogous to the duty to act fairly. Clearly an opportunity that was manifestly unfair would not be construed as an opportunity at all by the courts if the matter ever came before them. But I am advised that the addition of the word “fair” introduces a subjective test. Here we also come to the point raised by the noble Lord, Lord Lester, that, given that there is already a duty to act reasonably, the courts may decide that some additional duty is suggested which, in turn, may increase the likelihood that procedures were made subject to judicial review. I thought that was the point that the noble Lord, Lord Lester, was referring to.
I am, of course, very happy to give this further consideration between now and Report stage, but it has to be on the basis of a “without commitment” consideration. I am concerned that we have to be very cautious about introducing words which, on the face of it, seem entirely reasonable but may, in themselves, set up problems in the future. From the debate that we have had tonight, it seems that there is no clear consensus among the esteemed lawyers who have spoken in your Lordships’ House, which leads me to suggest that there could be problems with that word.
I do not know that I really need to go on. I think I have covered the right of appeal to the Privy Council already. We have tabled amendments in relation to the right of an MP to be heard in person and the removal of Clause 7—if noble Lords will happily support the Government in doing so. In the end, where these procedures come to be considered by the House of Commons Committee on Standards and Privileges, they really ought to be matters for the House itself.
I am sure that, at this hour, a brief reply is called for. At Second Reading the noble Baroness the Leader of the House said:
“The IPSA will also need to act in setting these procedures in a way that is compatible with the Human Rights Act. This means that courts will be able to review the exercise of functions of the Independent Parliamentary Standards Authority on the basis of the ordinary principles of administrative and human rights law”.—[Official Report, 8/7/09; col. 679.]
One of the ordinary principles of administrative and human rights law is that anyone exercising public powers has a duty to act fairly. Therefore, at the very least, there should be no difficulty about writing that into the Bill, the Government having already accepted that the powers will be fully subject to judicial review. I am only quoting back the Second Reading speech, which has not—I take it—been retracted in the mean time.
Not at all, but I refer the noble Lord to his comments to the noble and learned Lord, Lord Mackay, when he himself expressed concern about the use of “fairness” without the domestic tribunal that he also wanted to bring in. I think other noble Lords have real concerns about that.
My concern is that the Bill should leave Parliament complying with the requirements of Article 6 of the European Convention on Human Rights. I know that the Minister has certified that, in her view, it is compatible with the convention rights. There is an argument about that, which we do not have to have. However, assuming that the convention rights are triggered, my concern is that this House ought not to send the Bill back to the other House unless we are satisfied that it complies with the minimum requirements of Article 6 of the convention. It can be done by way of judicial review but I have serious problems with that, as does the noble and learned Lord, Lord Mackay, because of the Bill of Rights. The only other solution that I can think of is a limited domestic tribunal which can look at the facts and at the procedure.
I quite understand that the wider questions raised by the noble Lords, Lord Pannick and Lord Campbell-Savours, are very difficult. They were raised by the Joint Committee on Parliamentary Privilege 10 years ago and have never been solved. They will remain. Unless the House of Commons looks at that and does something about it, one day a Neil Hamilton will surely go to Strasbourg if unfairly treated by the Commons and will succeed. I do not want that to happen. I want us to be able—within our legal and parliamentary systems—to solve the problem. I do not think that it is beyond the wit of the Government and their advisers to devise a tribunal system between now and Monday that is very clear and limited and deals with a narrow issue in the way that I have indicated.
I have said my piece at too great length. I am very grateful to everyone who has taken part in the debate and I beg leave—
If the noble Lord begs leave to withdraw the amendment, I shall not be able to respond to his comments. His introductory remarks were entirely constructive; I hope that he did not think otherwise. He has identified what he considers to be a problem. He also said that the way forward that he suggested was not necessarily perfect but was an attempt to stimulate debate. We have had a very good debate. The combination of the various government amendments and the fact that we will oppose Clause 7 standing part of the Bill ought to provide considerable comfort.
There is a real problem about this House seeking to determine procedures that properly fall to the other place to resolve. I have also suggested that, while the use of the word “fairness” seems attractive on the face of it, my advisers consider that there are problems with it. I am happy to take this matter away and institute discussions with the noble Lord, who has much expertise. However, I do so without commitment.
I am very grateful. There must be adequate safeguards against abuse; that is all. There must be adequate safeguards of fairness and safeguards against abuse. I agree that the Government have moved towards that and that in some respects the situation is much better than it was. I would trust the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Mackay, to devise a procedure between them. I leave that matter to them and the Government. On that basis, I beg leave to withdraw the amendment.
Amendment 49 withdrawn.
Amendments 50 to 52 not moved.
Amendment 53 had been withdrawn from the Marshalled List.
Amendments 53A and 53B
53A: Clause 6, page 5, line 16, leave out from first “the” to end of line 17 and insert “Commissioner, before the Commissioner’s findings are referred to the Committee on Standards and Privileges, about the findings”
53B: Clause 6, page 5, line 17, at end insert—
“( ) Procedures by virtue of subsection (8)(a) must include—
(a) an opportunity to be heard in person;(b) an opportunity, where the Commissioner considers it appropriate, to call and examine witnesses.”
Amendments 53A and 53B agreed.
Clause 6, as amended, agreed.
Clause 7 : Enforcement
Amendments 54 and 55 not moved.
Amendment 56 had been withdrawn from the Marshalled List.
Amendment 57 not moved.
Amendment 58 had been withdrawn from the Marshalled List.
Amendment 59 not moved.
Amendments 60 and 61 had been withdrawn from the Marshalled List.
Amendments 62 to 64 not moved.
Amendment 65 has been pre-empted.
Amendments 66 and 67 had been withdrawn from the Marshalled List.
Amendments 68 and 69 not moved.
Amendment 70 had been withdrawn from the Marshalled List.
Amendments 71 to 75 not moved.
Debate on whether Clause 7 should stand part of the Bill.
We have discussed in detail the amendments that the Government have proposed to the Bill, and which your Lordships have agreed, in relation to the enforcement regime. As a result of those changes, particularly the removal of any powers of IPSA to direct an MP to repay allowances or to make an amendment to the Register of Interests, or to make any recommendation to the Standards and Privileges Committee about action that it might take against an MP, the need for the provisions of Clause 7 has fallen away, as it has for the safeguards that were specifically related to those powers. Since IPSA will not be recommending sanctions of any sort, we judge that there is no need to have a protocol about how it will work with bodies such as the DPP. Since there is to be no reference to the sorts of disciplinary powers that might be appropriate, the provisions that spelt out those powers and the provisions that made it clear that these were not any sort of restriction on the inherent powers of the House were also redundant.
Our amendments to Clause 6 have adopted a different approach to the sanctions that might be appropriate where an MP has persistently failed to co-operate with an investigation. Therefore, I oppose the Motion that Clause 7 should stand part of the Bill.
Clause 7 disagreed.
House adjourned at 10.40 pm.