House of Lords
Tuesday, 14 July 2009.
Prayers—read by the Lord Bishop of Newcastle.
My Lords, by long-standing convention, the Government do not publish unemployment forecasts.
My Lords, I am delighted to know that the noble Lord’s party, given the chance, would seek to reduce unemployment. We need to see how the party’s public expenditure plans would be consistent with that aspiration.
I repeat that the Government do not publish unemployment forecasts. Clearly, a range of data is looked at, including the AME figures available in the Budget, and various workload projections which relate to resource allocation. If the noble Lord is asking what the Government are doing about unemployment, I would say they are doing lots. Indeed, those workload projections are the basis for securing resources from the Treasury. They include, for example, the £1.3 billion that was achieved in November 2008, a further £1.7 billion for Jobcentre Plus and providers in the Budget 2009, and a further £1 billion for the future jobs fund aimed at creating 150,000 new jobs. This Government are doing plenty. They are an active Government who believe that the state should be active in seeking to address unemployment and support people who have lost their jobs.
My Lords, my noble friend is quite right not to make a forecast or guess, as most of the best economists in the world are doing. Does he accept that, despite everything that the Government are, rightly, trying to do to keep unemployment down, it is, sadly, likely to rise in the near future at least? However, is it likely to reach the kind of levels that it reached in the years when the noble Lord, Lord Lawson, was in charge of our economic affairs?
My Lords, my noble friend will be aware that there is a relationship with GDP, and unemployment is generally seen as being a lagging indicator. However, if my noble friend is asking me about current employment or unemployment levels in comparison to the historical position, I can say that employment levels are at about 29 million and we will get the updated figures tomorrow. That compares with the 1980s when the figure at its worst was 23 million. There has been a 5.5 million increase since then. The claimant-count-to-unemployment rate was at 4.8 per cent last month. It was pretty much double that in the 1992-94 recession.
My Lords, the noble Lord is referring to the employment and support allowance. This was introduced only in October last year, so it is far too early to assess how it is working. There has been some press speculation around that, but until there has been a full year at least for it to settle into a steady state of introduction, it is too early to make any significant estimate.
My Lords, you do not have to be one of the world’s greatest economists to work out that unemployment will reach its peak more or less about the middle of next year, given the underlying dynamics. Does my noble friend agree that the real worry for the country, given what passes for an economic policy on the part of the Official Opposition—most of us have great difficulty working through it to see whether they actually have a policy—is that they might win an election and we will have a double-dip recession in which unemployment, having reached its peak by that time, will start to go up again?
My Lords, my noble friend is a far better economist than I could ever hope to be and far be it from me to do other than support his analysis. We know from history the other party’s approach to this. In previous recessions, it put people on inactive benefits and left them there, with no support and no help to get back into employment. That is the key difference between our two parties. We believe in an active state that will support people when they fall out of work and will help, support and encourage them back into employment.
My Lords, perhaps I may refer to the Financial Times article yesterday on the work capability assessment. The Financial Times reported that figures were circulating among welfare intermediaries about the remarkable results of that assessment. When can the House see those figures?
My Lords, I thank the noble Lord for his question and welcome him to his new duties on the Front Bench. We look forward to working with him over many months. I repeat that any assessments in relation to the employment and support allowance are premature. The scheme was introduced only in October last year. The work capability assessment is not yet fully in a steady state. It will make a significant improvement. I will refer the noble Lord to one of his own comments in respect of our approach to these things. In an important report that he produced, he said:
“The Government has made strong, and in some respects remarkable, progress over the last ten years”.
I commend his judgment.
My Lords, much of the stimulus programme is working its way through the economy and helping us to make sure that there are more people in work than would otherwise have been the case. We estimate that half a million people are now in work who would not have been if we had not adopted the fiscal stimulus and other components that we have debated on a number of occasions in the House.
Probation Service Officers
My Lords, no minimum entry qualifications are required for probation service officers or trainee probation officers. The 42 separate probation areas recruit probation service officers locally to nationally agreed role profiles and competencies. Probation service officer training is delivered locally, in line with a nationally agreed core framework. Trainee probation officer entry requirements are based on a nationally agreed competency-based application and assessment centre process. The training lasts two years, resulting in an honours degree in community justice and a diploma in probation studies.
My Lords, I thank the Minister for that reply but perhaps I may reinterpret what he said. Can he confirm that there are in fact two types of probation staff: those with no entry qualifications who are trained for six weeks and those who are trained to degree level? Can he also confirm that between 2000 and 2007 the number of degree-level probation staff fell by 4 per cent and the number of six-week trained staff increased by 75 per cent, so that there are now more six-week trained than degree-level trained people? In the light of the work that we expect the service to do, does he agree that this reduction in the skill levels of the probation service is highly undesirable?
My Lords, I am afraid I do not agree with the noble Baroness on that. I believe that the report to which she refers is Probation Resources, Staffing and Workloads 2001-08, prepared on behalf of Napo. There has been a response to it from the Government. The figures are inaccurate. The number of professionally qualified probation officers in this period did not decrease by 4 per cent but increased by 20 per cent. The inaccuracy in the report was caused by double-counting, with probation officers in training both being counted as a separate group and being included in the figures for qualified probation officers. Therefore, I am afraid that on that point at least the report was wildly inaccurate.
My Lords, in that case, can the noble Lord kindly tell us what was the average caseload for probation service officers—that is, the lower level that we are speaking about—in Kent at the end of last year? I have seen it reported as being more than 56 cases each.
My Lords, Kent has confirmed that its current average caseload for a PSO is 68.8, which includes both offenders in prison and those serving their sentence in the community. Of course, it is expected that probation service officers will carry a higher caseload of low-risk offenders, particularly those in unpaid work, while trained probation officers will undertake more intensive work with a smaller number of high-risk offenders.
My Lords, in the light of the rapidly increasing caseloads for probation officers and probation service officers, what investment have the Government put into training probation officers in the past three years? More importantly, what investment do they plan for the future in the light of the current situation?
My Lords, the noble Baroness will know that there has been a sustained increase in probation service funding over the past 12 years. Indeed, between 1997 and 2007 total funding for probation rose by 70 per cent in real terms. The probation service is a high-performing organisation, achieving all but one of its targets in 2008-09. The noble Baroness will also know that there are proposals for the future training of both probation officers and probation service officers. Those proposals, set out in the new probation qualifications framework, are currently out for consultation with a return date of 31 July this year.
My Lords, it is not six weeks’ training at all. Probation support officers do 12 months’ work in an area of the probation service. As part of that they are given core competencies and they are taught various things by various groups. Training is dealt with locally and, at the end of the 12-month period of training in a particular probation area, they qualify as probation support officers. However, under the new scheme the training will be somewhat different.
My Lords, in speaking about the training of probation officers, the Minister referred to the fact that their training proposals were out for review. In the mean time, according to the Home Office website this morning, all training has stopped. Will the Minister tell the House for how long that will be the case and whether we can assume that there will be no recruitment in the mean time?
My Lords, as the Minister knows, offenders in the community are categorised from tier 4 down to tier 1, tier 4 being the most serious. Can the Minister confirm that no category 4 prisoners or offenders are being supervised by anything other than qualified probation officers?
My Lords, offenders can be categorised as requiring a tier-4 level of service either because they are assessed as posing a high risk of serious harm, and thus need the full range of intense interventions, or because they may be assessed as being very likely to reoffend prolifically. A probation service officer would rarely be an offender manager in a high-risk-of-serious-harm case but would work as the offender supervisor under the supervision of a probation officer.
My Lords, we are in the 16th minute.
My Lords, the current negotiations represent the best opportunity that Cypriots are likely to have to resolve the long-standing division of the island. It is up to the two leaders and the Cypriot people to seize the unique opportunity to shape their future for the better. The UK welcomes the personal commitment shown by the two leaders and we shall continue to lend our full support by encouraging positive engagement by all parties to reach an agreement by Cypriots for Cypriots. Although good progress has already been made, efforts must now be intensified to make substantive progress in the coming months. A settlement will deliver major economic, social and political benefits. All parties, therefore, need to show flexibility and good will to reach an agreement. This opportunity will not last for ever.
My Lords, I thank the noble Baroness for that helpful Answer. Does she agree with my observation on a recent visit to the island that there is a surprising degree of communication and dialogue between the two communities and certainly a shared interest in arriving now at a solution and that the obstacles may lie primarily with Ankara? Therefore, are Her Majesty’s Government using the leverage that they have with Ankara, as this country has been a sustained and consistent advocate of Turkish membership of the European Union and there is no chance of Turkey becoming a member of the European Union unless there is a settlement in Cyprus?
My Lords, the noble Lord makes a very good point. However, I point out that, following the recent visit to Turkey, the Foreign Secretary expressed his personal belief and the Government’s belief that the Government of Turkey are fully committed to achieving a settlement in Cyprus. Following the April elections in the north of Cyprus, Prime Minister Erdogan and President Gul have both made positive public statements about the importance of supporting Talat in the negotiations.
My Lords, my noble friend will recall that, in the last round of negotiations, to facilitate territorial adjustments between the parties we agreed to transfer part of the Sovereign Base Area to the Republic of Cyprus. Does that offer still stand?
My Lords, are the Government urging parties to the current talks to give due consideration to the positive contribution that the religious communities of Cyprus can make to the future of the island? Are the Government also committed to ensuring the highest standards of religious freedom in a reunified Cyprus?
My Lords, I certainly accept and support what the right reverend Prelate has said. He makes a good and urgent point for us to recognise. The religious division certainly needs to be addressed and understood by us all. We would expect that it will be a factor that will be given priority in the negotiations.
My Lords, does not the Minister agree that the factor most likely to drive these negotiations forward would be if the European Union revitalised the negotiations for the accession of Turkey? That would then give a high motivation to all parties involved in the negotiations, including the Turks themselves, to come to a solution on Cyprus. Given the signature yesterday by Turkey and other countries to the Nabucco pipeline agreement, and the accession of the new presidency, which is a good deal friendlier than the previous one to Turkey’s point, is this not the moment to get this moving? I leave with the noble Baroness the thought that it is always unwise in Cyprus negotiations to try to impose artificial deadlines; it is best to soldier on.
My Lords, I thank the noble Lord. I think that I am someone who will be prepared to soldier on with this matter. I certainly very much support his point about the importance of Turkey’s accession and the opportunity that that presents to move forward the talks in Cyprus. Of course, that contributes to Turkey’s security, stability and prosperity, as it does to ours in the European Union. The process is now establishing a clear path towards European standards in Turkey across a range of domestic issues, from human rights to agriculture, business practice and border security. The prospect of EU membership, together with the Turkish Government’s determination to give their citizens the quality of life that they deserve and demand, is bringing real change. The noble Lord makes a very important point.
My Lords, what the noble Baroness says is very helpful. I know that she appreciates that this has been a very long saga. The United Nations alone has been there for 45 years and, of course, the British were deeply involved before that. I gather that the latest meeting between the two community heads—the Turkish Cypriots and the Greek Cypriots—was last week, on 9 July, on security issues. Can she bring us up to date on what of substance was agreed at that meeting?
My Lords, does my noble friend agree that the lesson to be learnt from Cyprus’s membership of the European Union is that one should not agree to the accession of countries where territorial disputes are still unresolved? Does she agree that it is very important in future enlargement that that rule is respected? I think in particular of the troublesome case of Croatia and Slovenia, but hope that they will be able to solve this problem bilaterally, rather than have the process of the agreement to the opening and closing of chapters held hostage to the views of one side rather than the other.
My Lords, my noble friend makes an important point. The Croatian and Slovenian difficulty illustrates the importance of those benchmarks and of those opening and closing of chapters that have been put in place. The problem that we had with the accession of Bulgaria and Romania was that we were not as rigorous as we should probably have been. I assure my noble friend that that rigorous approach will take place with Croatia, as it will with Iceland in the near future.
Higher Education: Universities
My Lords, there has been an unprecedented increase in applications to higher education, with a 45,000 increase this year from UK and EU-domiciled applicants to English universities. The Government are exploring all the options to ensure that as many students as are able and have the appropriate qualifications can benefit from a university education.
My Lords, I thank the Minister for his reply. As he said, there has been an unprecedented increase in applications this year and, as a result, many universities will not be offering many places in clearing after the A-level results come out. Is he aware that this is likely to leave as many as 30,000 qualified students without a university place? Why has the department so far refused to lift the cap on places when the cost of maintaining students at university is very much the same maintaining them unemployed, and many of these students will otherwise be unemployed?
My Lords, the noble Baroness is right in her analysis. We have seen a significant increase in the number of applicants to university, and therefore clearing will be much more competitive this summer. As I said in my Answer, we are looking at what more we can do. Discussions are taking place at the moment. A number of proposals are being looked at, but we do not have anything specific or concrete that I am able to announce today.
My Lords, first, why is the Secretary of State, the noble Lord, Lord Mandelson, not answering this Question since the news he is conveying to the House is the worst news for universities for over 30 years? If the noble Lord was in the Commons, he would be at the Dispatch Box, but not in this House. Could someone tell the Secretary of State that he has a duty to answer to our House?
Does the Minister recognise that all universities recognise that between 30,000 and 40,000 youngsters will not be going to university this year, which will be a generation of stunted opportunity? That is an appalling indictment of the way the Government have conducted the public finances of our country.
My Goodness! My Lords, I will, of course, pass on to my noble friend the noble Lord’s comments, but I feel that that is a frankly ridiculous assessment of the situation. The number of students going to university this summer, despite the significant increase in applicants, will be another record and reflects this Government’s continued investment in university education and university places.
My Lords, does the Minister agree that the A-level results of students from lower socio-economic groups may well be a little more marginal than those from other groups because of the disadvantage that they have had to overcome? Since the Government’s target for university applications from lower socio-economic groups is near to being reached, why are they making it much more difficult for those young people because they are the ones who will have to go through clearing and there will not be many places available?
My Lords, I am afraid I do not agree with the noble Baroness’s premise. Why should those students be more likely to be going through clearing? If we look at the figures, we can see that our agenda of widening participation has worked. Figures for state schools are up from 81 per cent in 1997-98 to 87.4 per cent last year. We recognise that, in part because of the global economic downturn, a more significant number of young and older people are applying to university this year. We are looking at what more we can do, but we have dramatically improved participation and access to universities over the past 11 years.
My Lords, does the Minister think that there will be particular problems for people of mature years or who have dropped out and want to come back to a more appropriate course? If he does, will the assessment that his department is making take account of the needs of these groups?
My Lords, we are looking very carefully because we are seeing a shift in the demographic, as the noble Lord said. We are seeing a greater proportion of people from older age groups considering applying to university. One of the other trends that we are seeing, which we regard as a welcome change, is an increased interest in studying stem subjects—it increased by 6.8 per cent last year—and we expect that trend to continue. In this environment, where we have a greater proportion of young and more middle-aged, if you like, people looking to go to university, we are also seeing what we can do to direct and encourage more of them to study the stem subjects that this country needs.
My Lords, will the Minister assure the House that the Government have a long-term policy? Does he not agree that this Question is directly related to the first Question this afternoon in that if people are not going to get to university, that will have an effect on unemployment? Will he assure us that the Government are looking at the long term in this regard?
My Lords, I assure the right reverend Prelate that we are looking to this in the long term. This is a long-term policy, which we have followed through the years of really quite significant economic growth. We recognise the additional pressures that are being placed on the higher educational system, in part because of demographic change but in part because of the economic downturn. We are keen to learn lessons from the past and the experience of the 1990s, when higher education numbers were allowed to expand without sufficient resources being given to them by the previous Conservative Government. That meant that there was a significant drop in the quality of the student experience and backlogs in capital investment—two mistakes which we do not intend to repeat.
My Lords, has there been a similar increase in access to university among young people who have been in care and have been looked-after children? Is the Minister aware of the Frank Buttle Trust’s kitemark for universities, which demonstrates that a university offers support for young people who have been in care and that they can benefit from it to be successful? Is he also aware of the invaluable support that the trust has provided to care leavers at university to make their careers successful there?
Parliamentary Standards Bill
Committee (1st Day)
1: Before Clause 1, insert the following new Clause—
“Bill of Rights
Nothing in this Act shall be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689.”
I trust that your Lordships will bear with me as I try to fill the giant gap left in our counsels by the death of my late friend Lord Kingsland, one of whose last characteristically incisive speeches in this House was his clinical dissection of this sorry Bill at Second Reading.
My late friend played a constructive and effective part in negotiations that changed this Bill from being a highly dangerous measure to one that still gives profound grounds for disquiet but has been improved by the major changes that the Government have already made. I thank the Chancellor of the Duchy of Lancaster for being prepared to listen in this process, but I must also say bluntly that so far she has listened with only half an ear, as is demonstrated by the amendments in her name that we will discuss later this afternoon. They do not go far enough and, if she cannot go further, I shall ask your Lordships to make further changes to the Bill. Indeed, I hope that the Committee will insist on some of those changes if matters cannot be resolved before next Tuesday.
We have heard much from the noble Baroness about the public’s concern about parliamentary expenses, which is right and well understood by all. However, it does not mean that Parliament should abrogate all its responsibilities. There is no major quarrel about those parts of the Bill that deal with the management of expenses, although, if recent events have shown anything, it is that nothing is more powerful than transparency. Indeed, we have tabled no amendments to Clauses 1 to 4.
However, this Bill went and still goes very much further. We are making laws, creating new criminal offences and dealing with a Bill obviously made up in a hurry and now being amended in a hurry, too. We have agreed to use our endeavours to let the other place have the Bill that they have asked for before the Summer Recess, but we will not be frightened by anonymous spin into letting a bad Bill become bad law. The old adage applies: legislate in haste, repent at leisure. That is one inescapable reason why a sunset clause to some clauses in this Bill is essential to enable the new Parliament that we so desperately need to decide on a long-term regime and to prevent error and, still worse, injustice from being embedded into our political system. The sunset clause tabled by the noble Baroness is simply inadequate and she needs to go much further on it. We will deal with that when we come to it.
This amendment goes to the heart of the deep constitutional anxieties raised by the Bill. It addresses one of the most important issues debated at length in another place and here at Second Reading: the relationship between Parliament, the Executive and the courts. That had, I thought, been settled in 1689 and 1701, so it has been utterly astonishing to find the basic freedoms of Parliament being casually thrown into doubt. No one who has read the comments on this Bill-in-the-making by the Clerk of the Parliaments, by the Clerk in another place and in the distinguished report of your Lordships’ Constitution Committee can have any doubt that an amendment such as this is needed. Rarely have I read such coruscating comments in any documents laid before the House. No one who listened to the powerful speeches in your Lordships’ House at Second Reading, including those of the noble and learned Lord, Lord Woolf, and my noble friends Lord Goodlad and Lord Higgins, could have any doubt that a firm and explicit defence is needed.
Article IX of the Bill of Rights sets out clearly that the debates and proceedings of Parliament are not matters for courts to question. That is not an archaic and irrelevant principle. Nor are parliamentary proceedings matters for executive appointees to dictate, as was suggested in the original Bill. The ability of MPs to raise their constituents’ concerns and represent their views depends on this protection. The possibility that this Bill shakes that protection shows just how little thought the Government have given to the content of this Bill as opposed to the content of the press releases surrounding it. The Government have conceded that this Bill raises these concerns. They have been shedding clauses as scrutiny of the Bill has proved beyond even their ability to deny that they have breached privilege.
The amendments in the name of my noble friend Lord Jenkin identify further areas where the same arguments apply and have been made. We all know what some in the Government will have told the noble Baroness to say as she takes up her folder with a tag marked “Resist”. But I ask the noble Baroness to reply today as the Leader of the House and a good parliamentarian and to answer the question why on earth she would not accept this fundamental amendment.
At Second Reading, the noble Baroness tried the other old Minister’s line of, “It isn’t necessary”. She told us that the Government,
“do not believe that the Bill is incompatible with Article IX of the Bill of Rights. It … will not change the relationship between Parliament and the courts”.—[Official Report, 8/7/09; col. 747.]
If that is the case, there can be no reason in principle to reject this amendment, for it states explicitly what she claims is the case.
We need a firm affirmation in the Bill and a clear sign to the courts that this Bill is not and must not be amended to become any invitation to anyone to detract from the hard-won freedom of Parliament in Article IX. I hope that the Government will feel able to accept this amendment, which would lay to rest the concerns expressed in such powerful terms by noble Lords who are much more experienced in legal matters than I am. Above all, as a parliamentarian who has learnt to be just a little distrustful of placing Parliament’s rights and our ancient freedoms in the hands of this particular Executive, I believe that we would be wise to make it clear that we hold the principle of Parliament’s sovereignty as firmly in the 21st century as did our forebears in the historic convention of 1689.
My Lords, I realise that this is an unusual procedure, but with the leave of the Committee it might be helpful if I make a few comments before we debate the first group of amendments. As I said at Second Reading, Parliament and politics face a huge task in seeking to dispel public anger with our politics and politicians and to replace it with public trust and confidence instead. That is what this Bill is all about. Its fundamental purpose is to replace the self-regulation of expenses, allowances and financial interests with a system of independent, transparent and robust regulation.
The Government have listened carefully with probably one and a half ears to what people both in this House and the other place have said about the Bill. In the other place, amendments were made to provide that the Bill will not set aside parliamentary privilege and not include a statutory requirement for there to continue to be a code of conduct incorporating the Nolan principles. Following the debates in the other place and in the light of what I heard in this House, a number of government amendments have been tabled. I am grateful to noble Lords for their trenchant comments made at Second Reading.
Further to my letter of 13 July, which has been laid in the Vote Office, I hope that the amendments will go a long way towards reassuring your Lordships. We have tabled amendments, first, to remove the offence on paid advocacy from the Bill; secondly, to provide that the commissioner will refer his or her findings directly to the House of Commons Committee on Standards and Privileges; and, thirdly, to provide that the commissioner will not be required to refer findings to the Committee on Standards and Privileges if the transgression is minor and the Member in question has already agreed to take appropriate remedial action. We have introduced greater safeguards into the procedures that the commissioner will be required to have. They include an opportunity for the Member to be heard in person and an opportunity, where appropriate, to call witnesses.
I could go on, but I come instead to the sunset clause. We have tabled an amendment to require that the parts of the Bill that relate to offences be continued by order every two years. We believe that that approach is about balance. However, I hear what the noble Lord says and I am minded to return to the sunset clause, which I would call a review clause, later in the debates. Also, as noble Lords will recall, I gave a commitment that the Bill should be subject to formal post-legislative scrutiny within the next two years.
In order to respect the strength of feeling in this House on the issues of principle that have been raised, I am happy to accept Amendment 1 on the Marshalled List in the name of the noble Lords opposite. I am also happy to accept the principle of Amendment 2, with some exceptions. I undertake to return to this at the Report stage. Your Lordships will recall that I gave an undertaking that this legislation would not apply to the House of Lords and, of course, the commitment still stands.
While the debate has been lively, I hope and think that we can agree on the key principles that are central to the Bill. The current arrangements for administering MPs’ allowances must be replaced. We must respond to the public’s legitimate concerns. There should be an independent body to administer and oversee MPs’ allowances and the registration of financial interests, and any new system of regulation should be independent, transparent and robust. I have been listening and I have acted accordingly.
I am grateful to the noble Baroness. I have to say that I am sorry that that statement has been made before I could explain why Amendment 1, far from clarifying the position, actually creates some confusion and why it is unnecessary. I had better say that, even though the Government have indicated that they will accept the amendment. I was not able to be here yesterday, but let me say at the beginning how sad I am that that most noble and most learned Lord and friend, Lord Kingsland, is not here today to deal with this and how gallantly the noble Lord, Lord Strathclyde, has stepped in, better than most lawyers.
The noble Lord, Lord Strathclyde, said that he thought that the freedoms of Parliament had been casually thrown into doubt. I do not think that that is true. He has not identified anything in the Bill that puts into doubt either Article IX or the way in which it has been interpreted. The problem with the amendment as it stands is that it applies only to this Act, not to other Acts. Far from clarifying the law, it leaves it in a state of uncertainty, as we will see when we come to judicial review, a tribunal, fairness and other matters. It does not grapple with the central problem identified by the Joint Committee on Parliamentary Privilege, which is that Parliament is subject to Article 6 of the European convention and when it uses its disciplinary powers in an extreme way there are problems about fairness.
The present law is perfectly clear and any suggestion that the courts might need Amendment 1 in order to keep off the grass of Parliament’s lawns is totally wrong. The great case that decided this, in which I appeared on one side, was Pepper v Hart. As we have no constitutional legal adviser and the Law Officers are not here, I remind your Lordships of what was made quite clear in that case. The noble and learned Lord, Lord Browne-Wilkinson, said:
“Article 9 is a provision of the highest constitutional importance and should not be narrowly construed. It ensures the ability of democratically elected Members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech). But even given a generous approach to this construction, I find it impossible to attach the breadth of meaning to the word ‘question’ which the Attorney-General urges”.
“In my judgment, the plain meaning of Article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal, for what they said, and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule”—
this is the rule against Hansard being used as an aid to statutory interpretation—
“will not involve the courts in criticising what is said in Parliament”.
He then said this, which is very important in the context of the Bill:
“Moreover, the Attorney-General’s contentions are inconsistent with the practice which has developed over a number of years in cases of judicial review. In such cases Hansard has frequently been referred to with a view to ascertaining whether a statutory power has been improperly exercised for an alien purpose or in a wholly unreasonable manner”.
He cited as an example the case of Brind, where Hansard was used for that purpose in judicial review proceedings. In conclusion he explained why there was no threat to Article IX. The case of Prebble, which I shall not bore the Committee with, was a Privy Council decision where the law was made even clearer.
The judges have made quite clear the boundaries of Article IX and the important ways in which they must respect the laws of Parliament and not intrude. I still await to be told by someone what it is about this Bill—especially after the government amendments described by the Leader of the House—that will put any of that in jeopardy. There is the matter of fairness, which we will attend to later, but that is not covered in the amendment. We are rushing to accept the amendment and to get the Bill through. That happened once before, with a previous Government, when we rushed to amend the Defamation Act to enable Neil Hamilton to sue the Guardian, and Lord Simon of Glaisdale and others on the Cross Benches explained why that was a constitutional monstrosity. This amendment is not a constitutional monstrosity, but I urge those who support it to explain what it is about the Bill that requires it.
Any harm would be, if in future, because the amendment refers only to this Bill, it were to be interpreted in some way as glossing the position so far as other Bills are concerned. That is the only harm that could be done. The main case against it is that it is wholly unnecessary and that the courts have made the position absolutely clear.
If we hear my noble friend, who I think was making an intervention, I am sure that we can then move to the noble Lord when the noble Lord, Lord Lester, has responded.
The noble Lord leaves me completely bewildered. Is he saying, after the Leader of the Official Opposition has moved the amendment and the Leader of the House has accepted it, that he will demonstrate the wisdom that the Liberal Democrats showed last Wednesday and divide the Committee and vote against it? That would break an all-time record for irrational behaviour in the House of Lords.
I do not think that this is an occasion for forensic sarcasm. I am simply saying that Parliament should not legislate in vain and that this is not a necessary amendment, because the courts, by their case law, have shown perfectly well the need to respect Article IX of the Bill of Rights. Since no one has yet explained what threat the Bill poses to Article IX, I am saying that those who support the amendment on the government or the Conservative side need simply to inform the Committee of the problem about Article IX in the context of the Bill, other than that of fairness. That is all. Parliament is entitled to have that question answered.
I would not dream of voting against it. All I am saying is that we are a legislative body looking at a piece of legislation in a hurry and that someone needs to explain to the Committee what the problem is. I have not heard anybody do so. The late Lord Kingsland, in a marvellous speech, did not identify the problem. I certainly would not oppose the amendment, but it would be good if Parliament were to be informed by somebody of exactly what the problem is about Article IX.
As I support the amendment, I am relieved that noble Lords are equally as bewildered as me. I simply do not begin to understand the logic, the sense or the direction of the speech of the noble Lord, Lord Lester.
I am most grateful to the Leader of the House for saying that she accepts the amendment. It goes to the essence and heart of the Bill. It was drafted by Lord Kingsland and bears the mark of his authority.
It is a purpose amendment, related to Amendment 2, also drafted by him, which goes to the essence and purpose of the Bill. That is nothing to which the noble Lord, Lord Lester of Herne Hill, has referred. The purpose of the Bill is to enable another place to devise its requisite reforms and implement its domestic procedures as to conduct of honourable Members by virtue of the constitutional freedoms of both Houses under the Bill of Rights. That is the essence of it.
As the noble Baroness accepts it, I can see no reason why, if the Bill is related only to that purpose, it should not be accepted by the House. But it is not. That is the trouble—hence the legal bewilderment. I am a lawyer, and I very often get bewildered, but I have never been as bewildered as I am today. One has to accept the fundamental concept that the Bill of Rights gives parliamentary freedoms to both Houses and that if that is slighted by this Bill, it would set an evil precedent that could well affect this House in time to come. We can forget about sunset clauses—it is nothing to do with that observation.
Second Reading enabled a series of amendments to be tabled—I think quite a few are in the name of the noble Lord, Lord Lester—which inhibited such entitlement by proposing statutory ordinance which had to be accepted by another place, such as resort to courts of law, appeals, and one thing and another, which are without the constitutional provision. If one slights this provision, this is dealt with in the related purpose amendment in the name of my noble friend, Amendment 2. In time to come, it will affect, or could affect, this House.
I have only a little more to say, and it is not on the basis of a legal argument in the Appellate Committee. This is not the Supreme Court, thanks heavens. The Bill was presented as a sort of political placebo, without consultation on any aspect of constitutional reform. It is not for me to criticise, but that is a fact.
The Bill should pass but—in a sense this has been said by my noble friend Lord Strathclyde—only if its purpose is limited to acknowledgement and respect of the freedoms of the other place and to enable it to do what it wishes after its own fashion.
The four amendments grouped with Amendment 1 are in my name. It prompts me to ask the noble Baroness some questions. Let me say straight away that I am delighted that she has said that she will accept Amendment 1 in the name of my noble friends Lord Strathclyde and Lord Henley. I am sure that that will go a long way to meeting the anxieties which were so eloquently voiced at Second Reading.
My four amendments are designed to make clear that various activities that will be carried out under the Bill will be regarded as proceedings in Parliament and will therefore qualify for the protection that is offered by the Bill of Rights for such proceedings. They concern the question of the code, the register of interests, the question of investigation under Clause 6 and, although I realise that the noble Baroness has already indicated that she is not going to move Clause 7, there were items in that clause that would have needed to have been subject to the same protection.
One of the points that is so important to make for the public is that when one asks for privilege protection for Parliament, for both Houses, one is trying not to secure concealment but to make certain that none of these matters can be justiciable in the courts.
A Member of Parliament should be responsible to his constituents, not to the courts, a point that was made by many noble Lords at Second Reading. Will IPSA decisions be justiciable, will they be protected by Clause 1 or do we need the protection of one or other of these amendments? It is a question of the code of practice.
If they remain justiciable in the courts, Parliament will have to answer to the courts. At Second Reading, the noble and learned Lord, Lord Woolf, eloquently made it clear that this is a feature of the separation of powers between Parliament and the courts that so far the courts have been extremely reluctant to breach. They may have to look at the boundaries of a matter, but, once it has been decided as a matter for Parliament, it is not a matter for the courts. I am not clear whether the amendment that I understand the noble Baroness is going to accept will cover these matters.
Where Clause 6 deals with investigations, it says that an inquiry can be launched in response to a complaint by an individual. It is not difficult to imagine a case where a thoroughly disgruntled member of the public, dissatisfied with what is happening under the Bill, may wish to take the matter to court. I want to be absolutely assured that there is no possibility of a member of the public—
May I just finish my sentence? I want to be assured that there is no possibility of a member of the public launching a case for judicial review on the grounds that IPSA, the commissioner, or the Committee for Standards and Privileges have not done their job properly. That must be a matter for the House of Commons. If the noble Baroness can give—
I am sorry; everyone wants to get on. If the noble Baroness can give me that assurance, despite what my noble friend said about supporting these four amendments, I would not believe it necessary to press them. However, if the effect of accepting Amendment 1 will be to leave these new institutions still able to be taken to court by a member of the public, or a Member of Parliament, or whoever, then we have not got what we are seeking in order to ensure that the Bill of Rights fully applies to everything under the Bill. I hope that she can assure me on that.
In the House of Commons debate, which I will not bother to quote, her right honourable friend Jack Straw, in response to a similar amendment to one of these, said that the Government had not closed their minds to it. What the noble Baroness said some moments ago in response to my noble friend Lord Strathclyde appears to mean that they really had not closed their minds to it and are now minded to accept that amendment. I would like to see further assurances, though, that nothing that is done under the Bill by these parliamentary institutions is likely to result in a judicial review and the matter coming before the courts.
Briefly, I have spent much of my time over the past week reading through the Bill. I firmly endorse the point made by the noble Lord, Lord Jenkin of Roding. The issue of whether areas of the Bill are justiciable is critical to the debates that will now take place. The Bill is effectively in two parts; the first dealing with the independence of the Parliamentary Standards Authority and the second with the question of offences. The Government’s handling of the first section of the Bill must depend very much on answers that my noble friend has given. While I wholeheartedly accept, as does the whole Committee, that the Government have taken the decision to accept Amendment 1, this residual area must be clarified before we proceed.
Briefly, all my House of Commons friends individually tell me that the morale of that House is absolutely terrible. They are shell shocked and shattered. They have been spat on by their constituents and ghastly things have happened to them. The vast majority of them are men of principle, and that applies to both sides of the House of Commons. They go into Parliament for service to their country. It is up to us, who are not as yet affected—and I hope we never will be—by the current vitriol, to try to help to give the House of the Commons back its self respect. In doing so, we must stick up for its Members’ rights, because they are at the moment perhaps feeling a little frightened so to do.
I find it strange that we are continuing this debate. I listened carefully to the noble Lord, Lord Jenkin, who was asking for lots of assurances on particular parts. I respect him, and respect even more my noble friend Lord Campbell-Savours. But surely a new clause right at the start saying “Nothing in this Act”—“nothing” is plain English; it could not be plainer—includes everything that the noble Lord, Lord Jenkin, adumbrated. Each thing is excluded because it says here “Nothing in this Act”. I would have thought that we could get on to Clause 2 as quickly as possible.
I raise a simple point. We always look at the Bill of Rights as something that created a massive, monumental right. It did not. It did not create anything. It declared rights that were already there, inherent in the very institution of Parliament. Indeed, the Bill of Rights is only one manifestation of those rights. They are wider than Article IX. The fact that they were spelt out in statute did not change them or confine them in any way at all.
In 1840, Parliament passed the Parliamentary Papers Act, after Stockdale v Hansard. That in no way limited it rights; it merely declared rights that would have been there in any event, even if that declaratory instrument had not been made. Since it seems that those rights may well be wider than the Bill of Rights, I ask with great humility that the Government—I congratulate the Government; the noble Baroness the Leader of the House has placed the whole House of Lords in her debt through her decision on this matter—consider that the reference should be not just to the Bill of Rights but also to the parliamentary privileges of which the Bill of Rights is a manifestation.
I will clarify one point. What noble Lords have been saying is completely right: the issue relates to judicial review. The noble Baroness the Leader of the House made it clear at Second Reading, at col. 947 of Hansard, not only that there is no infringement of Article IX in the Bill but that a court faced with a judicial review would not be able to consider proceedings in Parliament because that would not be possible under Article IX. I completely agree with her.
However, there could of course be judicial review. If I were to go on, I would explain how judicial review quite often arises in cases involving Article IX. Accepting Amendment 1—although it clearly says that nothing in the Act affects Article IX—does not resolve the underlying problems. I was attempting to explain that the courts have been resolving those problems clearly, and in a way that we should respect.
For some 10 years, until the last election, Lord Kingsland and I shared a very small room just off the Peers’ Lobby. For much of that time I had grave concerns about his health but he fought back valiantly and continued to make a major contribution in the House of Lords. Perhaps I might therefore be allowed to say that, in 45 years’ experience in both Houses of Parliament, he was among the finest debaters that I heard in either Chamber. He will be greatly missed not only today but in the future.
I am sure we all very much welcome the amendment moved by my noble friend the Leader of the Opposition and its acceptance by the Leader of the House. This, in effect, provides a safety net, but safety nets have holes in them. It would be quite wrong for us to assume that we can go ahead and not deal with the detailed provisions in the Bill, which raise serious questions about its relationship to the Bill of Rights, without clearing up those particular clauses. We cannot simply leave a lot of rubbish all over the place and say, at the end of the day, “Don’t worry—the courts will have to take account of this safety net”. That would be a very bad way of doing it. Who knows what cunning judicial arguments might be put forward, based on the fact that we have left the matter in an uncertain state in the Bill?
The noble Baroness has been immensely helpful throughout, but we are still left with the view expressed by the Clerk of the Parliaments in his evidence, that there are main provisions in the Bill which—by leaving open the possibility of judicial examination in the House’s internal rules—could threaten the principle of parliamentary privilege. It is quite clear that that is still the situation. The noble Baroness kindly wrote us a letter, to which she referred, on 13 July to assure us that, quite apart from the safety net, the proposals that she will now make will deal with the matter. I have some difficulty in understanding precisely what she has in mind. It is quite clear, she says, that:
“Under the amendments, the IPSA will be responsible for determining the procedures”,
but not for “individual cases”.
So far, so good, but she goes on to refer to the other changes, which she argues will reassure us on these matters of parliamentary privilege, but it is somewhat confusing. To some extent we have problems because we now have too many commissioners and committees. It is certainly unclear from the noble Baroness’s speech this afternoon to which commissioner she was referring. She just refers to “the commissioner”, whereas there are at least two and probably more floating around the place. One would have thought that the arrangements that the noble Baroness has now proposed are open to some doubt. Her letter goes on:
“These arrangements replicate those which presently exist, with the substitution of the new Commissioner for the present Parliamentary Commissioner for Standards”.
I am not clear why suddenly substituting the new commissioner—namely the one mentioned in the Bill—for the present commissioner for standards somehow solves all the problems. I am not at all clear as to what happens to the present parliamentary commissioner for standards; he appears to disappear into some limbo where no one thinks that he is relevant to these matters.
The noble Baroness needs to spell out in rather more detail precisely how what she is now proposing will deal with the concerns regarding parliamentary privilege. For the reasons that I have mentioned, it is very important that we should accept amendments through the course of the Bill—on whatever the appropriate clauses are—to make sure that we are not left with what one might almost describe as the smile on the face of the Cheshire Cat after the Cheshire Cat has disappeared. That will not necessarily be completely protected as far as this amendment is concerned, much as I welcome it and its acceptance by the noble Baroness.
Before my noble friend sits down, I assure him and the Committee that I cut my speech but I accept the point that my noble friend made that statutory ordinations, to which I referred, should be debated because that is of interest and help to another House. All I am saying is that this House should not impose them.
I listened very carefully to what the noble Lord, Lord Lester, said when he referred, as he did on Second Reading, to Pepper v Hart in which he and I took part. The question mark, which I do not think that he answered, about where there might be doubt in the Bill is well highlighted by the four amendments of my noble friend Lord Jenkin of Roding, which deal with codes, investigations and recommendations of the new commissioner. Unless it is spelt out that those are proceedings in Parliament, and are covered by the relevant amendment, there may be doubt about that. It may be said that proceedings in Parliament comprise our debates and committee work, but that the work of the commissioner is in some way not a proceeding in Parliament. I would like to think that that was incorrect but it does not seem to me totally clear. I would be very grateful to hear what the noble Baroness the Leader of the House says about it.
Before the noble Baroness winds up the debate, I should point out that in her first speech she said three very important things. First, she said that she would accept this amendment, for which I am incredibly grateful. That is absolutely the right decision. I was surprised by it but it is entirely the right thing to do. Secondly, she said that she would accept the principle behind the second amendment. If she could put a bit more flesh on the bones of what she means by that, I will not move the second amendment. I think she said that she would bring back amendments on Report to make that clear. Thirdly, she said that she would tighten up the sunset clauses which the Government have already put down. That would be extremely helpful.
I say to the noble Lord, Lord Lester, that the noble and learned Lord, Lord Woolf, said on Second Reading that the Bill,
“creates a danger of undermining”—[Official Report, 8/7/09; col. 688.]
some of our constitutional safeguards. It is for that reason that I put forward this amendment. I look forward to hearing the noble Baroness’s speech. After she has spoken and confirms what she has said, I shall be very happy with the amendment.
First, I say to the noble Lord, Lord Higgins, that John Lyon, the existing parliamentary commissioner, will remain responsible for all issues relating to conduct. He will be responsible to the CSP. The IPSA commissioner will deal purely with financial breaches within the framework set out by IPSA. The IPSA commissioner is needed to take these issues out of the control of Parliament; so there are two commissioners, one within the remit of IPSA and the other the parliamentary commissioner, John Lyon. I trust that clarifies the situation.
The noble Baroness is short-handing this too much. I think that the parliamentary commissioner is quite another person, but at all events is she speaking of the Parliamentary Commissioner for Standards? It is very important to spell out the full title as we go along. If there is a parliamentary commissioner, I suspect that he has nothing to do with this.
My apologies for my shorthand. In future, there will be two commissioners. There will be a person known as “the commissioner”; he is the person who we are now setting up who will look at issues relating to IPSA. Then there is the Parliamentary Commissioner for Standards, who is currently John Lyon; he will continue to be the Parliamentary Commissioner for Standards. He is the person who will deal with all issues relating to conduct. There we have two commissioners. I hear the concerns expressed—
In the Second Reading debate it was probably made clear—and I beg your Lordships’ pardon if it was not—that that person to whom the noble Lord just referred will henceforth be called, or known as, the commissioner. So that person whom the noble Lord referred to is the commissioner—
Clause 1(3) states categorically:
“There is to be an officer known as the Commissioner for Parliamentary Investigations (“the Commissioner”)”;
hence my shorthand in calling that person the commissioner.
I hear the concerns expressed by the noble Lord, Lord Lester, and I am grateful for his advice. However, we accepted the amendment because there are clearly such strong feelings in this House about the issue, which we did not want to obscure or to damage consideration of wider issues in the Bill. We agree that the amendment must be regarded as being for the avoidance of doubt, although we can see nothing in the Bill, as drafted, which affects Article IX; but we are happy to accept the amendment.
I turn to the amendments tabled by the noble Lord, Lord Jenkin. There are a number of reasons why the Government consider that these amendments and the approach taken in them are not acceptable. First, they are at odds with the approach that the Government have taken to privilege and, I might say, at the urging of the other place and noble Lords. Since the removal in the other place of the provision explicitly dealing with privilege, our approach has been to ensure that the Bill does not affect parliamentary privilege in any way.
That is one of the reasons why we have tabled government amendments in this House removing IPSA’s recommendation and direction function, and the offence of paid advocacy. In short, the new scheme will not affect parliamentary privilege and, taking the views of noble Lords and the other place to their full extent, we have accepted Amendment 1. In other words, this Bill will explicitly not affect Article IX of the Bill of Rights—the key provision which deals with parliamentary privilege. However, the noble Lord’s amendments would affect parliamentary privilege.
The Government are bringing forward amendments to make it clear that the work of IPSA and the commissioner will be limited to administering the schemes on allowances and the code on financial interests, and making factual investigations about alleged breaches of either. The outcome of any such investigation will be passed either to the Committee on Standards and Privileges or to the police to take forward. The work of the committee—the Committee on Standards and Privileges—is, of course, already fully covered by Article IX.
I have already mentioned that the offence of paid advocacy is removed. This means that IPSA and the commissioner will not deal with privileged subject matter. There is then, we believe, no need to extend the cloak of privilege around them.
I want to be helpful. Will my noble friend ask her officials to look at the Hamilton case where, if I recall correctly, Mohamed Al Fayed attempted to secure a judicial review of a decision by the Commissioner for Standards and Privileges in the House of Commons? I think that it was in 1999. The application failed, but the Government, having studied the judgment, might wish to revisit the issue raised by the noble Lord, Lord Jenkin of Roding.
Will the Leader of the House help me? The questions about judicial review will not go away. Does she agree with me, first, that decisions are judicially reviewable, as she has said already? Secondly, if that is the case, and if, for example, an officer of the House of Commons or the Commons itself were to act, through their disciplinary powers, in a way that involved a criminal charge or the destruction of a civil right, would that not raise problems that the courts would then have to resolve—a situation that is not solved by Amendment 1? This is the kind of question that noble Lords on all sides of the House are asking. That is the problem that the Joint Committee on Parliamentary Privilege identified 10 years ago. It said that there had to be a parliamentary privileges Act, but there has been no such Act—that is the problem that we face today.
I am sure that is the problem that we must address today. I do not have an answer at the moment, but I will come back to noble Lords. In the debate, I have listened to the views of noble Lords who believe that the amendments tabled by the noble Lord, Lord Jenkin, are necessary in order to safeguard privilege. I have also heard the advice of my noble friend that I should ask my officials to look at the case of Al Fayed v whoever in the 1990s. This is clearly an issue that I will wish to return to. I do not give any undertaking to reverse the Government’s position, but I do undertake to investigate the matter thoroughly and come back.
The noble Lord, Lord Strathclyde, asked me for more details about our reaction to Amendment 2. I hope that it will be acceptable if I deal with that now. The issue that I wish to return to on Amendment 2—the reason why I wish to see it withdrawn and to table another amendment—is that the Bill gives your Lordships a role in the administration of the new regime. The chair and members of IPSA, and the commissioner, may be removed from office only following an address by Her Majesty to both Houses of Parliament. I know that amendments have been tabled on this. The accounts and annual report of IPSA must be laid before each House of Parliament. Therefore, I wish to come back with an amendment that takes into consideration those parts of the Bill. However, I am wholly in agreement that we put in the Bill the fact that the vast majority of the Bill does not pertain to the House of Lords—it is just these two small points.
Of course I accept the noble Baroness’s assurance that she will look carefully at the first two of my four amendments—the others disappear with the disappearance of Clause 7, which I suspect that the Committee will accept later. I ask her to look at them carefully. I want to get to a position where the activities of the new bodies that we are setting up—IPSA and the commissioner—will not be justiciable, because they will be regarded as within the control of the House of Commons.
I understand the noble Baroness’s point. She wants to demonstrate to the public at large and to the media that these are independent bodies. As my noble friend Lord Higgins said, that needs to be clarified because at the moment it is not clear at all. If there is one issue that stands out above all others—indeed, it was the subject of the extremely helpful letter from the Clerk of the Parliaments—it is what is to be regarded as justiciable in the courts and what is not. At the moment, I am not clear on that, which is why I tabled the amendments.
I do not think that the Government have ever accepted one of my amendments made in opposition. There is certainly a little ray of sunshine at this Dispatch Box this afternoon and I am extremely grateful for the assurances that have been given by the noble Baroness.
Amendment 1 agreed.
2: Before Clause 1, insert the following new Clause—
“House of Lords
Nothing in this Act shall affect the House of Lords.”
I accept the noble Baroness’s assurances. There are other amendments grouped with this one. I look forward to seeing her amendments and I hope that she will consult not just me but others who have amendments in this group. On that basis, I shall not move the amendment.
Amendment 2 not moved.
Clause 1 : Independent Parliamentary Standards Authority etc
3: Clause 1, page 1, line 3, leave out “Parliamentary” and insert “House of Commons”
I shall speak to the Amendments 3 to 6 standing in my name and that of my noble friend Lord Shutt of Greetland. I am grateful to the noble Lord, Lord Strathclyde, who has just referred to them. I hope that, in considering how to deal with the noble Lord’s amendment, the Leader of the House will also consider how to deal with the related point that we have raised.
We are concerned to ensure that all the terminology used in the Bill relates only to the House of Commons, save for the role of this House with regard to the authority and the commissioner, to which the noble Baroness has just referred. I do not want to discuss the merits or demerits of any of this at this point but we are concerned not to make it at all easy simply to transfer this legislation to an application to this House, whatever the assurances given today, which I do not for one moment doubt. We want to be sure that there is no confusion either in the text of the legislation or in its title, to which the later amendments in this group relate.
We propose to change the word “Parliamentary” to “House of Commons” in a number of places and also to change the acronym of the new authority. One of my noble friends suggested that IPSA had a good classical ring to it. I am sorry if we lose that, although it occurs to me that ICSA is more Greek than Latin, so the classicists might be consoled.
The noble Lord, Lord Cope of Berkeley, has amendments in this group and I look forward to hearing what he has to say. Perhaps I can ask him whether, in speaking to them, he can deal with the point about which my noble friends—particularly those who have come from the House of Commons—feel fairly strongly. I refer to the use of this House, which is far less partisan in its approach than the House of Commons sometimes is, in the removal of members of the authority and the commissioner, and that use perhaps being a good safety net. I beg to move.
With your Lordships’ permission, I shall treat Amendments 13A, 13B and 20B as being still grouped with Amendment 3 and the others that we are discussing at the moment. The noble Baroness the Leader of the House has already referred to these three amendments, which are all similar, and so has the noble Baroness, Lady Hamwee, from the Liberal Democrat Benches. The point of them is very simple, at any rate in comparison with the things we have been discussing. When it is suggested that the chair of IPSA or a member of IPSA or the Commissioner for Parliamentary Investigations should be removed from office, should that be solely a matter for the House of Commons or should it be a matter for this House as well? The appointment of these various people is to be done by Her Majesty but on the recommendation of the House of Commons in the various procedures set out. Only the Commons, not the Lords, is concerned with the appointments.
It seems to me that all the matters under discussion are entirely matters concerning Members of the other place and that your Lordships should not be involved in a petition to the Queen to remove them. I think we should be placed in an awkward position if such an Address were to be moved to Her Majesty and the Commons agreed to it and then your Lordships were asked whether we agreed to it. Suppose we were inclined not to agree. We would get ourselves into a very peculiar position. It would be very difficult for us not to agree if the House of Commons had agreed that the appointment should be ended, so supporting an address to Her Majesty. If the Commons supported it when the particular person was entirely concerned with the Commons, it would be very difficult for us to make a different ruling. Without saying it is a matter of huge moment, or to press it too strongly, I suggest that we should consider whether these powers should be left to the Commons alone and that your Lordships should be taken out of the procedure for presenting an Address to Her Majesty.
This amendment seems to make complete sense. I have great sympathy with the amendment of the noble Baroness, Lady Hamwee. The noble Baroness, Lady Royall, has undertaken, more or less, to agree with Amendment 2 from the noble Lord, Lord Strathclyde. If that is the case, the Bill is nothing to do with us and concerns only the Commons. Therefore we probably should not do anything to interfere with it. If you put in the Bill only the words “House of Commons”, there will be no confusion, as could be the case if you use the word “parliamentary”.
I have reservations about the “not us, only them” approach to the Bill. The reality is that, in the longer term, the public will not stomach a two-tier structure whereby one end is perhaps subject to the criminal code and we are not. It is inevitable that, one day, we will have a Bill and it may not be the sort of Bill that we like. In reality, we would have to follow closely the arrangements which exist in the other place.
The other day, I heard my noble friend’s reference to the model. I think it was in response to an intervention. The reality is that the Commons model will, in the end, apply here. I would have thought that the clear undertakings my noble friend gave at the Dispatch Box last week—that as far she was concerned at the moment, and certainly under this Government, there would be no movement whatever in favour of the introduction of a Bill in this House—would be satisfactory. Although I am not prepared to go to the wire over my noble friend’s undertaking that she will accept Clause 2—in other words, put it into the Bill—I think it is quite unnecessary for us to do so. Indeed, I think it sends out the wrong signal. As I say, it will appear to those outside as, “We don't want it. They can have it, but we will not have it”, and I think that is the wrong approach to take.
I hear the concerns expressed by my noble friend, who is very wise in his counsel. However, the Government are prepared to accept Amendment 2 in this slightly amended version. It is clear that the motivation for the amendments tabled by the noble Lord, Lord Shutt of Greetland, and the noble Baroness, Lady Hamwee, come from a desire to make the matter even clearer in the Bill. I am not persuaded that that is necessary or appropriate. There is nothing necessarily wrong in using the word “parliamentary” to describe a body whose functions relate to the other place. To give one instance, there is the current non-statutory Parliamentary Commissioner for Standards. I hope that noble Lords will consider that we have addressed the substance of their concerns by accepting Amendment 2.
The amendments tabled by the noble Lord, Lord Cope of Berkeley, are slightly different. They provide that this House would not be required to make an Address to remove from office the chair of IPSA, a member of IPSA, or the commissioner. The current provision means that such a person can be removed only on a Motion of Address from both Houses of Parliament. Although I accept that the position adopted by the noble Lord appears to be logical, that is in fact an important safeguard on the independence of those offices. It is imperative that this House must also approve any removal of those office-holders. Otherwise, the other place could be seen to be both judge and jury. It is worth noting that those measures build on the same procedures for removing members of the senior judiciary. It is an essential signal to the community that the independence of those persons is as important as the independence of the judiciary. I therefore ask noble Lords not to press their amendments.
I am obviously disappointed with what the Leader of the House has had to say about our amendments. The noble Lord, Lord Campbell-Savours, referred to the signals sent out. It is the signal sent out by this terminology that concerns us. I do not for one moment disagree with him about public perception and the possibility that we may have to come back to it, but the question is what the “it” is in connection with this House. I do not detect an appetite at the moment to debate the detail of that. I hear what the noble Baroness has to say and I beg leave to withdraw the amendment.
Amendment 3 withdrawn.
Amendments 4 to 6 not moved.
7: Clause 1, page 1, line 11, after “Committee” insert “(“the Committee”)”
The Committee may be relieved to hear that there are no great issues of principle in this group of amendments, in contrast to the two previous groups. These are simple matters of correction and clarity. There is a whole series of drafting problems in the Bill, which I suspect are a product of the speed at which the Bill has been produced. All that we are trying to do is to be helpful by pointing them out in the hope that the Minister will be able to accept them or, at least, commit to government amendments to deal with any defects on that basis.
I shall briefly canter through the difficulties that we have encountered. First, on Amendment 7, it appears to us that there is no initial reference to the short title of the Speaker’s Committee in Clause 1(5). The committee is, however, later referred to in subsection (6), so I anticipate that there is a need for clarity, although I understand that the Minister may be able to correct our correction, in that it is the view of officials that the correction should be in line 12, rather than in line 11 as it is in our amendment.
Amendment 18 is a probing amendment. I hope that the Minister will be able to explain why the interim chief executive will need to incur expenditure on behalf of the whole of IPSA without the approval of its chair or other members. That would seem to be out of character with the normal procedures of a similar organisation. Worse still, in paragraph 15(2) of Schedule 1, an extraordinary permission is given to the interim chief executive—“to do other things”. Other Members of your Lordships’ House have much longer experience than I have, but I have been either in or out of Parliament for 35 years and watching legislation with considerable personal interest during that period. I do not recall ever seeing any organisation giving to its chief executive the ability “to do other things”. What sort of other things have we in mind? It rather beggars belief and is slightly mind-boggling, if I may put it that way. I have never seen such a phrase before. What exactly are the other things? Perhaps the Government can indicate what they have in mind. If they want to be more specific, I hope that they may be able to come back on Report and tie this down more securely.
Amendment 19 is again about drafting and no more. Paragraph 17(3) of Schedule 1 states:
“The IPSA must make such arrangements as it considers necessary to ensure that”.
Ensure what? I can see the Minister nodding. I think that he, too, finds that a slightly curious way of expressing what seems to be in need of more careful formulation. We think that the Government mean that IPSA must make arrangements to ensure that it complies with paragraph 17(2), so that is what our amendment says; it does what it says on the tin.
Finally, Amendment 22 omits the rather clumsy phrase,
“as to which see further”,
which has the feel of an A-level response to a question where the student wants to sound more formal and authoritative than he or she feels has actually been the case in a hastily constructed essay. We assume that the Government simply mean “under”, and that is what we have put.
All these amendments are pretty straightforward. We are trying to tidy up a Bill that shows all the defects of hasty construction. That is what this House not only has an obligation to do, but, on the whole, is very good at doing. We hope that the Government will accept the amendments in this group. I beg to move.
Amendment 18A is in my name. It has been listed in the next group, but it refers to the point that the noble Lord, Lord Tyler, was making. The Bill says:
“The IPSA must make such arrangements as it considers necessary to ensure that”.
That seems to be meaningless and unnecessary. If IPSA’s administrative arrangements must be carried out separately, of course it has to make the arrangements to obey sub-paragraph (2), so why does it need to be told to make the arrangements as well? Sub-paragraph (3) is unnecessary. If it is to remain, the amendment tabled by the noble Lord, Lord Tyler, would make it clearer than it is at the moment, but it is quite unnecessary.
The Government expect to get Royal Assent on the Bill within a week, yet here we are with my noble friend Lord Cope and the noble Lord, Lord Tyler, pointing out some fairly elementary drafting mistakes. I do not know whether the Minister will accept the amendments, but can he say whether he believes that these mistakes are important, whether he thinks that there may be some more in the Bill and whether the Government will bring forward further drafting amendments before Report?
I think that I said in my opening speech on this group that we understand that the appropriate place for this amendment is actually in line 12, at the end of the subsection, to make it absolutely clear. We understand that the Government are going to make that suggestion, but perhaps that has not yet reached the Minister.
It will be a great pleasure to accept most of the amendments that have been so well spoken to by the noble Lord, Lord Tyler, and other noble Lords. As far as Amendment 7 is concerned, I am grateful to the noble Lord for telling me what I am going to say. He is right; it got to him slightly earlier than it got to me. Amendment 7 inserts a shorthand abbreviation for the committee on standards into the Bill. The amendment would insert the words “the Committee” so that the relevant provision would say, “There is to be a committee (‘the Committee’) known as the Speaker’s Committee for the Independent Parliamentary Standards Authority”. I assume that noble Lords hope that that would make it clearer that the committee in subsection (6) is the same committee. Noble Lords are right—the committee in that subsection is the same committee—and, although I do not think it necessary to add words to clarify the subsection, I am happy to accept the amendment, subject to moving the insertion so that it is consistent with the rest of Clause 1. Now that I mention it, that is exactly the point that the noble Lord, Lord Tyler, was getting at. We are happy to accept his amendment.
I invite the noble Lord to let us take away Amendment 18 and see whether we can come up with another form of words, although I am not sure that I agree with him entirely about the phraseology of the schedule. Having listened to him, I do not think that he does not want the interim chief executive to be able to do anything that involved spending money. Giving an interim chief executive powers to spend money is absolutely standard when setting up a new body of this type. Indeed, it may be an essential part of the setting-up process. Once again, I draw attention to the need for this body to be seen as independent of both Parliament and the Executive.
When the Minister reconsiders Amendment 18, will he also consider whether there is any need to say anything at all about the interim chief executive? The chief executive will have powers. An interim chief executive is merely someone who is appointed before the permanent chief executive is appointed, so why the need to make any distinction?
I understand that, but as long as the institution is there, there should be no distinction between the first chief executive, who may simply be appointed to the position but not for very long, and the permanent chief executive, who will be the second appointment. This is not a big matter, but the Government are seeing problems where there may be none.
For once, I can come to the Minister’s help in that I have set up and been a chairman of a public body—the National Rivers Authority—and I share the view that there is probably a need to set up an interim chief executive. The only difference when we set up the National Rivers Authority was that I was appointed first. The Liberal Democrats’ point in moving the amendment—that it would probably be better if the chairman was appointed before the interim chief executive—is perfectly valid, but there is a need for interim arrangements when you are setting up a body, so we should not make too much of a fuss about it.
It is also worth pointing out that the chief executive is to be appointed by IPSA, whereas the interim chief executive, as I understand it, is appointed by the Speaker of the House of Commons. Some distinction has to be made to allow for that difference of appointment.
I am most grateful to the noble Lord and the noble and learned Lord, who have come riding to my rescue on this issue. Although we will reconsider the amendment in the name of the noble Lord, Lord Tyler, because of its wording, I do not take the point about the interim chief executive because the arrangement may be essential in this case. The Speaker will no doubt look to appoint an interim chief executive as soon as possible after commencement to lead the work of setting up the new authority. In fact, we might be accused of being a bit negligent if we were not ready for an interim chief executive so that the body could be up and running.
I propose to accept Amendment 19. Although the Bill could not be misconstrued, it is possible to approach the drafting differently and I thank the noble Lord for proposing the amendment, which would allow that. Noble Lords already know that Amendment 22 has been overtaken by government amendments removing the drafting to which they objected. When we come to it, I am minded to accept Amendment 18A in the next group, which is in the name of the noble Lord, Lord Cope, for the reason that he stated.
I am extremely grateful that the Minister should think of accepting my amendment, but if he accepts Amendment 19 in the name of the noble Lord, Lord Tyler, Amendment 18A is not required. Perhaps I may put it the other way: if the Minister accepts Amendment 18A in my name, he rubs out the whole thing and the amendment in the name of the noble Lord, Lord Tyler, is not required. The Minister needs to give further thought to this. He cannot accept both of them, although he can accept one or the other. They achieve a similar effect.
I am grateful to the Minister for his response. However, I should withdraw Amendment 7 because it is slightly defective in that it refers to the wrong line. I can obviously come back with a corrected amendment on Report or discuss with the Minister whether there is another way to deal with it. I am grateful to him for looking at Amendment 18 in a positive way and I hope that he will come back with another formulation to meet the concern that we have expressed. That would achieve the sort of clarity that we should seek. I do not think that he substantially dealt with the second point on sub-paragraph (2), which states:
“The interim chief executive may incur expenditure and do other things in the name of and on behalf of the IPSA”.
It is a pretty messy and open-ended sort of statement to be on the face of a statute of the United Kingdom Parliament. I do not think that it is sufficiently tightly drawn. On that basis, I am happy to withdraw Amendment 7.
Amendment 7 withdrawn.
Amendment 8 not moved.
Clause 1 agreed.
Schedule 1 : Independent Parliamentary Standards Authority
9: Schedule 1, page 10, line 10, leave out “four” and insert “seven”
This group of amendments concerns the setting up of IPSA, which is what we had better call it now. Amendment 9 questions whether there will be sufficient people, whether this small group of four plus the chairman is sufficient and suggests that that number is increased. The amendment would increase the number of ordinary members of IPSA from four to seven. Under paragraph (1), at least one person must have held “high judicial office”, one must be qualified,
“to be an auditor for the National Audit Office”,
and one must have,
“been a member of the House of Commons”.
Therefore, there is not much room for anyone else or anyone who might be called ordinary. I do not know whether “ordinary” is a good word, but, bearing in mind that the public seem to have an understandable concern about the subject matter of this Bill, the idea of having someone to represent what is well known as common sense could be helpful. We believe that IPSA is bereft of members, particularly if, under paragraph 12, it should exercise its discretion to form committees and sub-committees. With a membership of only five, the committees will be small and any sub-committees of a committee could end up with one member. That brings me to Amendment 16. If the Government do not agree to increase the number of members, the authority may find itself needing to look outside and to co-opting people to be members of committees and sub-committees.
Amendment 10 would enable a current holder of a high judicial office to be a member. We do not understand why this post on IPSA is to be restricted to former members of the judiciary and we are concerned as to whether there is a large enough pool of qualified applicants.
Amendment 12 addresses the length of time that must have elapsed since an applicant served as an MP as set out in paragraphs 1(4) and (5) of Schedule 1. Paragraph 1(4) states that one of the members of IPSA must be a former MP, to be known as “the Parliamentary member”. Paragraph (5) does not prevent another former Member of Parliament from becoming a member of IPSA so long as they have not been an MP within the last five years. Should the parliamentary member be a more recent former MP or should they have been an MP within the five years prior to their appointment? What is the difference between the parliamentary member and any other ex MP who might become a member of the authority?
Amendment 13 is a probing amendment about the phrase “fair and open competition”. We agree absolutely that people should be appointed on merit, but will a large enough number of candidates put themselves forward given the requirements of the Bill and the specific points such as one member having to be a former holder of high judicial office, one a former MP and one a qualified auditor? Are we ruling out the possibility that, to use the term, a “head-hunter” may well be required?
Amendment 14 seeks to leave out paragraph 1(10). It states that the IPSA must operate “efficiently and cost-effectively”. I would not dare stand up in this place and suggest that the outfit should operate in any other way, but why has it been put in? Is this something we must watch out for in every single piece of legislation from this day forth? If the provision is not in, can a body be profligate? We do not understand why this has been put in the Bill, although it is difficult to say that it should be otherwise. However, it is a strange item to include since I would have thought that an outfit of this nature must in any event operate efficiently and cost-effectively.
Amendment 15 is a further probing amendment to find out why the authority should not borrow money. We are not to know why not. I suppose that if the money has not come through and the authority needs to pay expenses or even the members’ salaries, I do not understand why it is specifically denied the business of borrowing money.
The final amendment we have tabled in this group is Amendment 20, which is to ask why IPSA should retain any money that it receives from repayments made by MPs. Why is such money to be retained? Is it to be kept in order to have a party or to be retained on the basis that less will be needed the next time there is a subvention to pay normal expenses? Quite frankly, if money is repaid, I would have thought that it should go back to central government. I beg to move.
I thought that the noble Lord, Lord Shutt, would raise a point I referred to in my speech at Second Reading and which was the subject of comment by the Constitution Committee of this House. Noble Lords may recall that I expressed anxiety about the political balance of the committee. I thought that the noble Lord was going to say that he wanted more members so that there would not be just one former Member of Parliament as the parliamentary member. The anxiety is that if you have only one, it is just possible that he would turn out to hold strong views which represent just one political party, and that might be unfortunate.
There is a case for having at least one other member of IPSA so that it is possible to have perhaps two former Members of Parliament on the committee. As this matter was raised by the Constitution Committee in its report, it should be addressed. As the noble Lord, Lord Shutt of Greetland, has not raised it, I suggest it ought to be considered further. I would like to know the Minister’s response on the issue.
I wish to raise two practical points, one of which is a question to the Minister. Paragraph 1(2) of Schedule 1 states:
“At least one of the members of the IPSA must be a person who has held (but no longer holds) high judicial office”.
Is it intended that there should be an age limit for members of IPSA? If it is, and if the age limit is 70, you will not be likely to get many judges because they do not have to retire until the age of 70. Therefore the Government might consider whether it should be someone who is holding high judicial office rather than someone who has retired. As the noble Lord, Lord Shutt, said, there might be a very small pool from which to gather the member of high judicial office.
Secondly, in supporting seven instead of five, paragraph 12 on “Committees” states:
“The IPSA may establish any committees which it considers appropriate”,
“Any committee … may establish one or more sub-committees”.
“All members of a committee or sub-committee must be members of the IPSA”.
If you have got only five, you will not have many sub-committees; you will have a sub-committee of the whole committee.
I echo the point as to age that has just been made by my noble and learned friend Lady Butler-Sloss. But a word of warning; it would not be desirable for someone who holds high judicial office to be on IPSA. We have already referred to the sensitivity of the position of the courts in relation to this legislation, and to have a person who is serving in high judicial office would look rather inappropriate.
I support the point made by the noble and learned Lord, Lord Woolf; it would be quite inappropriate for a serving judge to hold the position. I would hope that if the person appointed held or was entitled to hold high judicial office, they would be imbued with a degree of common sense, which is the other requirement the noble Lord had in mind.
After that row of contributions from persons who have held high judicial office, perhaps I may turn the Committee’s attention to some more of this ragbag of small but important points that are being negotiated here. Amendment 19A seeks to delete from paragraph 18(2)(b) of Schedule 1 the words,
“(except as mentioned in sub-paragraph (1) above)”.
This section of the Bill attempts to separate administrative functions and regulation functions—paragraph 18(1) defines administrative functions and paragraph 18(2) defines regulation functions—so as to distribute them between the IPSA and its staff. The last line of sub-paragraph (1) states that among the administrative functions is,
“the function of maintaining and publishing the register under section 5”.
However, I cannot see that IPSA has a duty under Clause 5 to maintain the register, but it does to publish. The clause says that it has to prepare a code and goes into a lot of particulars about how it is to go about that and how the code is to be approved and so on. It also says that the code must require members to register the information, but it does not say that IPSA has to keep the register. It is fairly obvious that it will keep the register, which is part of its whole purpose, but the drafting might have become a little confused there. It is worth another look.
The next of my amendments in the group, Amendment 19D, relates to funding and how the Speaker’s committee has to review its estimate each year. Paragraph 22(4) of Schedule 1 states:
“If it is not satisfied, the Committee must make such modifications as it considers necessary to achieve consistency”.
But it does not say consistency with what. Is it consistency with the previous year—accountants do like to ask, “How does that compare with the same period last year?”—or is it consistency with some other bodies or quangos, or is it consistency with something else: for example, Treasury rules? “To achieve consistency” does not seem enough. Perhaps it is internal consistency between different parts of the estimate. It is not clear with what consistency in mind the committee has to propose modifications. In fact, the provision limits the committee to making modifications which achieve consistency with something or other, but not modifications that achieve inconsistency. Perhaps that is all it needs, but the drafting is not very clear.
Amendment 19E raises a very small point. The Bill states that,
“the Committee must consult the Treasury and have regard to any advice given”.
I thought that “consider any advice given” might be better, but the difference in meaning is very slight and I would not press it.
Amendment 20A is concerned with what the Commissioner for Parliamentary Investigations will be paid. The Bill says that terms and conditions will be determined by the Speaker. I suggest that the Speaker should not be left entirely untrammelled in this matter, but that we should insert,
“after consulting the Senior Salaries Review Board”,
after “determined by the Speaker”.
The noble Lord, Lord Cope of Berkeley, referred to the funding paragraph in the schedule, paragraph 22, and criticised sub-paragraph (4), which states:
“If it is not satisfied, the Committee must make such modifications as it considers necessary to achieve consistency”.
He asked, “Consistent with what?”. I read it as being the previous sub-paragraph, which states:
“The Committee must review the estimate and decide whether it is satisfied that the estimate is consistent with the efficient and cost-effective discharge by the IPSA of its functions”.
Perhaps I may add to the fine print of the important points raised in Amendment 9, in relation to the numbers that affect the timing of the appointment of IPSA. I assume that the target date for the body taking effect is the beginning of the financial year in 2010, which is a relatively short time. If it is not to take effect and take control of the functions in the Bill by the beginning of the financial year 2010, there will be a very unfortunate interregnum. I would like to hear it confirmed, just so that we all know where we are, that the target date for the start of this body is 1 April 2010. If that is the case and we are thinking about appointing members to IPSA on the basis of “fair and open competition” the Appointments Commission would surely have to be involved. The full panoply of the statutory rules and regulations that it applies to public appointments is necessary to be able to say with certainty that four or five of the seven members—however many they may be—are appointed on merit on the basis of fair and open competition. We would need to use its good offices. In that case, some of the important points that have been raised about the small pool of people from which these candidates can be drawn become even more important. There will be real problems in getting this organisation up and running, with its interim chairman, full-time chairman and chief executive, in time for it to start at the beginning of the financial year 2010.
In terms of considering numbers, I think that we might be a little premature. We are not altogether clear what IPSA’s final responsibilities will be. There are many people in the Commons who still believe that by the time this Bill has cleared all its stages, IPSA will be little more than an outsourced fees office for the House of Commons. I think it is highly unlikely that we will want a top-heavy organisation, so perhaps we might consider the question of size a little later in the Bill’s proceedings.
There are a number of amendments to deal with in this group. The noble Lord, Lord Kirkwood, asked when IPSA will be set up. The answer is not necessarily particularly helpful, but it will be set up as soon as is practicable after Royal Assent. That does not necessarily mean 1 April 2010. His next question will probably be to ask when members of IPSA will be appointed. The answer is that this, too, will be done as soon as is practicable after Royal Assent. However, it is important that IPSA is set up as quickly as possible.
I shall be asking the noble Lord, Lord Shutt, to withdraw his amendment in due course but before doing so I shall go through the other amendments in his name and explain my reasons. We have made it clear that these measures apply to the House of Commons only—that is the starting point. Some of the amendments deal with the financing arrangements for the body. We all know that financial matters are really for the Commons and not for this House. The other place is content with these proposals. There was, quite rightly, a good debate on these proposals in this House and in the other place. However, following a number of technical amendments made in the other place, the proposals were agreed without a Division.
On the specific proposals, we believe that to increase the number of members of IPSA, with the consequential amendments that would flow from that, would add to its costs at the same time as the Committee is agreeing to reduce its functions. The public need to be assured that our response to the recent problems is proportionate and efficient, as well as effective. I note what the noble Lord says about the need to ensure that there is always a good number of members present at meetings and the resulting need to have some spare members. A body has to be designed with its functions in mind. This body will have functions in relation to a group of people which is limited in number. The issues it may have to deal with may be complex, and they will certainly be high profile, but they will arise only in relation to that limited group. IPSA will need enough members to enable it to carry out its functions properly, but that consideration must be balanced against the need for it to be responsive. A body as large as eight is likely to become more inefficient and more unwieldy, although I take the noble Baroness’s second point about committees and sub-committees.
Amendments 10 and 11 reverse a decision taken by the other place, which decided that the serving holder of high judicial office should not be a member of IPSA but that it wanted someone who had experience at that level. The point made was that a serving member of the judiciary was unlikely to be able to devote the required time to the functions. I want to add to that; I agree with the noble and learned Lords, Lord Woolf and Lord Mackay of Clashfern, that it would be a mistake to have a serving judge sitting on IPSA, not just because they are busy people in any event but because in principle it would not be appropriate.
The number of senior judiciary is deliberately limited by legislation, and it was thought that provisions such as this would only increase the demand on senior judiciary. We therefore agreed to amend the Bill to remove the possibility that a serving judge could be a member of IPSA, and we think that that is the right decision. I am happy to tell the noble and learned Baroness, Lady Butler-Sloss, that there is no age limit at all—all retired judges who are interested, please take note.
It is implicit in paragraph 1(5) that the parliamentary member should have recent parliamentary experience. We do not feel that it is necessary to spell this out in paragraph 1(4) as well. We can see why the noble Lord seeks to ensure that the member must have recent experience, but it does not seem wise to limit the provision in that way. There may be occasions when the most suitable candidate has not been a Member of the other place for six years, and we would not wish them to be disqualified just for that; we want to rely on the selection of the most meritorious candidate.
I take the point that the noble Lord opposite made about political bias. One hopes that whoever is chosen will not show any such bias and it is unlikely that they would, but there is no reason why there should not be more than one ex-Member of Parliament on the body; the Bill says that there has to be at least one member who has recently been a Member of the House.
I know that these were probing amendments, but we find it strange that the noble Lord, Lord Shutt, should wish to remove a requirement that the members of IPSA should be appointed on the basis of fair and open competition. It is an important part of the overall scheme that the new IPSA should be both independent and transparent, and that independence and transparency needs to start with the process of appointing its members. The requirement means that any competition for selection as a member of IPSA should not be restricted to a limited ground of candidates, and the selection process itself should be fair.
The noble Lord appeared prepared to see IPSA not acting efficiently and cost-effectively. I am sorry, that is the wrong way of putting it; that would be on the basis that it was not a probing amendment, but of course it is. Rather, he wanted to raise that topic in Committee today, and I shall give him an answer. The requirement, not necessarily in the Bill, would enable IPSA to borrow money, and he asks why we have reached the decisions that we have on this. It is because the provisions are requirements that are found elsewhere for bodies of this kind. It is surely not objectionable that, in carrying out its functions, IPSA must do so with regard to the costs that it will incur and the efficiency with which it will achieve outcomes. Because it will be a small body, however, we do not see any need for it to be able to borrow money.
Lastly, the provision allowing IPSA to retain money it receives and apply it to its functions is also a standard, sensible provision. IPSA may receive repayments of money that has been paid out under the allowance scheme in error. In many cases, that may be dealt with by setting the overpayment off against the next payment due, but that might not always be the case. Instead of requiring that the payments are returned to the Consolidated Fund, the Bill provides that IPSA can keep the payments and use them to pay out allowances to other Members of Parliament.
On the amendments of the noble Lord, Lord Cope of Berkeley, I have come to a view about Amendment 18A, about which I spoke a little prematurely following his lead in the previous group. I prefer Amendment 19, so if the noble Lord would be kind enough to withdraw his amendment in due course, I would be grateful.
I return to the Minister’s point, which he made off the cuff, understandably, and without looking at his text. He said that in his recollection the schedule says that at least one of the members of IPSA must be a person who has been but is no longer a Member of the House of Commons, it actually says “one of the members”. I suppose that it is intended to make a distinction with the preceding sub-paragraphs, which say that “at least” one of the members must be a person who has held high judicial office, and that “at least” one of the members must be a person who is qualified under Schedule 3, and so on. A distinction seems to be intended there, and the Minister might like to look at that and clear it up when convenient.
This may, again, be a matter of drafting. I have just been advised that it does mean a minimum of one of the members, so the phrase “at least”—which appears, as the noble and learned Lord rightly points out, in the subsection—should really apply to subsection (4) as well. I am grateful to the noble and learned Lord for having pointed that out.
It might be convenient if I mention one more matter at this stage; I recognise that this is not necessarily a conventional way of doing so, because it is a rather general point. The Minister emphasised in what he said that cost is a consideration which should be taken into account with regard to IPSA. We were also talking earlier about having two commissioners in this field in the other place. If the matter is being looked at again, I urge the Minister to take back for consideration, now that the Bill has been slimmed down, the idea that there might be considerable advantages in not having two commissioners, for the good reason that the existing commissioner has been the subject of a decision of the Court of Appeal—which I confess was presided over by me—to the effect that he is not subject to judicial review in exercising his functions. I apprehend from what has been said in this Committee that that would be looked at with favour.
Another reason is that, from the limited experience I had when I was chairman of the sub-committee in this House dealing with Lords’ interests, the person in the position of the commissioner will, over time, develop expertise as a result of exercising his office. There will always be a subjective quality to that in these matters. The one thing that I would have thought that the other place would not want is the two commissioners that they have created coming to different decisions in this area.
There may be a very good reason of which I am simply unaware why it was felt necessary to have two commissioners. However, it seems to somebody wishing to take forward the idea of efficient, effective and economic operation of this new body, and when one looks at a Bill which is now so different from what it was, that something is being created that might be over-egging the pudding, creating an undesirable complication with conflicts of jurisdiction over the same issues.
I am, as always, very grateful to the noble and learned Lord for his observations. Obviously they have been heard not just by me but by my noble friend the Leader of the House. I will take away the noble and learned Lord’s suggestion and comments and come back in due course with an answer for him.
Would the Minister give way on another point? It may be regarded as the sort of wild contingency that would appeal to AP Herbert. It may also be the case that those in your Lordships’ House today who have held high judicial office would say that it was impossible for any of them ever to have previously been a Member of Parliament. However, it seems possible that somebody could satisfy both sub-paragraphs (2) and (4) of paragraph 1. In those circumstances, would that one person be sufficient to fulfil both obligations?
The noble Lord has got the better of me: I have no clue as to the answer to his question, but I think that I know people who could find out for me. I am grateful to the noble Lord.
I return to attempting to deal with the amendments tabled by the noble Lord, Lord Cope of Berkeley. On Amendment 19A, we understand the desire of the noble Lord and the Committee not to have superfluous wording in Acts of Parliament. However, we do not think that these words are superfluous. It is important to make it clear that there is no contradiction between the provisions of paragraph 18(1), which sets out the administrative functions of IPSA in relation to the Register of Members’ Interests, and the provisions of paragraph 18(2), which sets out the regulatory functions in relation to the code as a whole. It is helpful to make clear the distinction by including the words that the noble Lord objects to. On that basis, I ask him to consider not pressing that amendment.
As far as Amendment 19D is concerned, I think that my noble friend Lord Borrie dealt with the point about consistency, so I will rely on his argument for that.
I have listened with great care and am full of admiration for the Minister who is answering and the noble Lords who have asked these questions. I wonder whether the aim of Amendment 19D to paragraph 22(4) could be achieved with the words “considers necessary to achieve such consistency”. Then it would clearly refer back to the previous sub-paragraph. I think that that is what the Bill is supposed to mean.
I am very grateful to the noble Lord. We will take that away and consider that possible minor, but helpful, amendment.
Amendment 19E would, if accepted, weaken the regard that the Speaker’s Committee should have to the advice of the Treasury in finalising the estimate. The committee is not required to accept the advice in any event. It can reject it but must prepare a statement of reasons if it does so. I point out that the wording of this part of the schedule mirrors that which applies to the Electoral Commission. I remind the noble Lord, Lord Cope, that the other place considered these provisions; there was an extended debate on Schedule 1. The amendments also deal with the funding of a public body and with an estimate that will be a parliamentary estimate, not a departmental estimate. Without for a moment suggesting that it is not for this Committee today to debate these matters, I think that this is one of those matters that are—it could be argued—pre-eminently House of Commons business.
Finally, Amendment 20A would require the Speaker to consult the Senior Salaries Review Body in setting the terms and conditions of the independent commissioner. There is no proposal for a similar amendment to the identical provision in relation to the members of IPSA. We are not convinced that the Speaker should consult the Senior Salaries Review Body. It has nothing to do with the work of the independent commissioner. We think that the Speaker is perfectly capable of taking advice about other comparable positions without specifying it in the Bill, so we do not see the case for making a specific reference to the SSRB in this case. Clearly, terms and conditions of employment go well beyond salaries.
I am grateful to the Minister for his response to the amendments standing in my name and that of the noble Baroness, Lady Hamwee. The Minister’s fundamental point concerned the expense of increasing the body’s membership by three people. I would not have thought that we were talking about serious money in that regard, particularly bearing in mind the importance of the issue.
I listened to the exchanges that took place on former MPs. It strikes me that all five of these people could be former MPs. I see no reference to qualifications that the chairman may or may not hold. Certainly, some former MPs have held high judicial office and I am sure that some former MPs have been auditors. All of them could be former MPs. That is slightly worrying in the sense that MPs are saying that they want to distance themselves from this process. I have difficulty with the issue of the sovereignty of Parliament, but they are saying that they want to distance themselves from these matters and put them in the hands of other people. I am not convinced that the public would consider that the body was sufficiently distanced from the process if all its members were former MPs. The Minister may care to think about that a little more. Nevertheless, on the basis of the answer that I have received today, I beg leave to withdraw the amendment.
Amendment 9 withdrawn.
Amendments 10 to 18A not moved.
19: Schedule 1, page 13, line 36, leave out “ensure that” and insert “comply with sub-paragraph (2)”
Amendment 19 agreed.
Amendment 19A not moved.
19B: Schedule 1, page 14, line 10, leave out “6(6)” and insert “6(5)(b), (5B)(c), (6) and (7)”
This group of amendments deals with the changes to the investigation and enforcement regime that the Government have brought forward. During the passage of the Bill, there has been considerable concern about the impact of its provisions on parliamentary privilege, particularly each House’s right to freedom of speech and exclusive cognisance of its own affairs. As has been said, the events disclosed by the Daily Telegraph in relation to the other place have made it impossible to continue with the old system of self-regulation. The public will clearly no longer tolerate a regime where the other place sets, administers and investigates breaches of its own allowances and the rules on the registration of financial interests. I think that that is also the view of this Committee. Those powers do not deal with matters that are presently privileged.
We have always recognised, however, that it is a different question in relation to enforcement. The Bill as originally drafted took a particular approach in trying to steer the narrow line between enabling the commissioner and IPSA to do their work and not infringing privilege. That approach did not find favour in the other place and your Lordships remain concerned about how it is handled in the Bill, as it was sent up here by the other place. We remain of the view that many of the concerns expressed, particularly about the extent to which the courts would decide that they now had the right or duty to inquire into matters that would previously have been regarded as privileged, were to an extent exaggerated, but we recognise that those concerns are real.
The package of measures in the government amendments in this group—although there are also opposition amendments in the group, to which I shall reply after they have been spoken to—responds to those concerns by removing any role for IPSA in the enforcement of the new allowances regime or the code of conduct on financial interests in individual cases. IPSA will remain responsible for setting the allowances regime and for the payment of MPs’ salaries and allowances. It will be responsible for setting the code of conduct on financial interests and for administering the register of financial interests. IPSA will retain responsibility for the procedures under which alleged breaches of the financial rules can be investigated. Those, we think, are the core principles of independent oversight and regulation of MPs’ financial affairs which the public ask for and which we have promised.
An independent statutory commissioner will also be responsible for investigating complaints that MPs have breached the rules of the allowances regime or the rules on registration of interests. Those arrangements remain unchanged. The amendments make changes in what happens to the outcome of the commissioner’s investigations. Amendment 43A provides that the commissioner must refer his or her findings to the Committee on Standards and Privileges, rather than to IPSA. The amendment redrafts what was inserted in the other place as subsection (5), but maintains its effect in allowing minor cases to be settled by the commissioner without reference to the committee, provided that any general conditions fixed by IPSA are met and the Member acknowledges the error and agrees to repay the overpayment or correct the entry in the register, as appropriate.
New subsection (5C) is a revised approach to the duty of the MP to provide information to the commissioner, which was included in subsection (3) of Clause 6 and for which the sanctions were previously covered in subsections (5) and (6) of Clause 7. Rather than setting out the duty on the MP to provide information, the commissioner will be able to report a finding to the Committee on Standards and Privileges if the Member of Parliament chooses not to co-operate.
The other change to which I wish to draw the Committee’s attention are the additions to the requirement for the procedures that IPSA must draw up. Following concerns expressed by the noble Lord, Lord Lester of Herne Hill, and other noble Lords, we propose including a specific right for Members of Parliament who are subject to an investigation to be heard in person by the commissioner, as well to make representations, and a right, in appropriate circumstances, to call and examine witnesses.
I have not gone through in detail the individual impact of each element of this group of government amendments. I hope that what I have said will find favour with the Committee. Most of the amendments that I have not referred to are consequential on the main government amendments in the group. I beg to move.
I will speak to the amendments in this very large group that are in my name and those of my noble friends. The government amendments to Clause 6 in this group make a considerable improvement to the clause and we therefore support them. It was wrong that IPSA, the body that makes the code, should also have been responsible for its enforcement, and having IPSA intervening between the commissioner and the Committee on Standards and Privileges could have caused serious delays and additional expense. Therefore, we welcome Amendment 19B and the others tabled by the Government. In referring to “the commissioner”, I am of course referring to the Commissioner for Parliamentary Investigations and not the commissioner for the commissioning of parliamentary commissions, or any other commissioner who might be floating around.
Amendment 33 to Clause 4, in the names of my noble friends Lord Shutt and Lady Hamwee, provides that IPSA must review its determinations that a claim should be wholly or partly refused. The amendment states that IPSA must decide on the process for reviewing its determination and should submit the process that it has decided on to the Speaker’s Committee. It is desirable that the process should be given the widest possible circulation and it would be appropriate to do that by the method suggested.
Amendment 43 proposes that IPSA should give guidance to Members on the records that they should keep. Again, that is a sensible course, which would be of assistance to Members.
Amendments 43B and 43D are probing amendments. Government amendment 43A provides, in proposed subsections (5)(b) and (5B)(c) to Clause 6, that conditions should be specified by IPSA. It is not clear what these conditions are and how and when they are to be imposed. I imagine that they are not to be part of the code itself. Are they a new free-standing power? If so, how is that power to be exercised? Are the conditions to be of general application or could they be imposed for a single investigation? The most reasonable formula is to require any condition imposed under the new government amendments to be made as part of the procedures under existing Clause 6(6). In this case, it should be made clear that the conditions are made as part of the procedure that will be determined by IPSA under that subsection. If that is not the basis for imposing the conditions, a new power is being given to IPSA and the basis and limitation of that power must be explained.
Amendment 48 has been overtaken by the government amendments, which we will support. There remains the problem that there is no provision either in the Bill or in the government amendments for what should happen if the investigation clears the Member who is its subject of any misconduct. Will this not be referred to the Committee on Standards and Privileges or does it have to be referred to the committee for information? That should be covered in the Bill, but it is not.
I turn to Amendments 50, 51 and 52. Clause 8(6) refers to investigations. It states:
“The procedures must, in particular, provide a member who is the subject of an investigation or complaint with an opportunity—
(a) to make representations to the Commissioner about the investigation or complaint;
(b) to make representations to the IPSA”.
The complaint is relevant only as one of the possible triggers for investigation under Clause 6(2)(d). Is it intended that, where the complaint is made by an individual under Clause 6(2)(d) but not in other circumstances, Members will be able to make representations to the commissioner that no investigation should be started and will then be able to make representations again when the investigations are carried out? That is not in itself unreasonable but, if so, why not allow pre-investigation representations in cases triggered by Clause 6(2)(a), which concerns investigations on the commissioner’s initiative, or those triggered by subsection (2)(c) concerning investigations at the request of IPSA? On the other hand, should it be left for the commissioner to decide whether to proceed without the Member who is proposed for investigation necessarily having a right to make representations at that stage?
Finally, we welcome the exclusion of Clause 7 from the Bill. We think that that is an important step forward. Consequently, the Committee will no doubt be glad to hear that I shall not speak to Amendments 54, 55, 57, 64, 65, 68 or 69, which are tabled in my name, although my noble friend Lord Tyler will speak to Amendment 75.
It may be appropriate for me to follow the noble Lord, Lord Goodhart, although—and in this there is no sense of criticism of him—I shall be somewhat shorter. I simply want to talk about what was nearly his penultimate point concerning the reference in government Amendment 43A to “such other conditions”.
I was struck that at this stage it is impossible for the commissioner or IPSA to define all the circumstances in which they will find themselves becoming involved. Any reader of the Daily Telegraph would have recognised that there was an almost infinite variety of circumstances in which they might find themselves involved. Therefore, I do not think that it is unreasonable that in this clause the commissioner may have regard to,
“such other conditions as may be specified by the IPSA”.
That is referred to in proposed new subsection (5)(b) in Amendment 43A and, similarly, in relation to financial interests, proposed new subsection (5B)(c). However, it seems important that these provisions should not be absolutely at large. Therefore, I suggest that it would be an improvement if the word “reasonable” were added before the word “conditions” in both places, so as to read “such reasonable conditions”. The insertion of that word would simply act as a signal that, if the commissioner and IPSA found themselves with a case which might arouse strong emotions because people had behaved very badly, they should not be allowed to introduce vindictive conditions but, rather, reasonable conditions.
Going back to what I said earlier in the debate on Amendment 1, which the noble Baroness the Leader of the House was so readily willing to look at again, if we establish that none of these activities is justiciable, then it will not be for a court to decide whether something is reasonable. Of course, if a court were looking at the case, it would have to take that into account. If, in the end, the noble Baroness does not accept my amendments which were grouped with my noble friend’s Amendment 1, then it is conceivable that this could be justiciable, in which case the word “reasonable” would be an indication to the court that it would have to apply some judgment as to whether the conditions were or were not reasonable. I hope that we will not reach that position and that we will be able to get to the point where the court is not involved with any of these matters—a view held, I think, by a large number of noble Lords in all parts of the House. However, we have not got there yet, and I hope that the Government will be able to accept the insertion of the word “reasonable”.
In order to try to make Amendment 43A and Clause 6 work, I have one question for the Minister and some concern about what remains of Clause 6. As the commissioner will be referring his findings to the House of Commons Committee on Standards and Privileges, am I right in thinking that it will then be a matter for that committee, with complete freedom, to make such decisions as it thinks appropriate to deal with a referral from the commissioner? This lies uncomfortably with a considerable part of Clause 6, because Clause 6 seems to do two separate things: one is that the commissioner investigates and the other is that IPSA takes a role. I get the impression that Amendment 43A is taking over. If I am right, then you would not require the commissioner to report to IPSA under subsection (4) and I would assume that subsections (7) and (8) would be irrelevant because those are the jobs of IPSA and not of the commissioner. It looks to me as though most of Clause 6 should come out and that the duties of the commissioner should take over largely from the duties of IPSA.
Perhaps the noble Lord on the Front Bench can help me. Unlike some other noble Lords, I am somewhat clueless, a word frequently used by the Front Bench opposite. Could they please explain to me what happens if IPSA makes a finding, an MP is reported to the Committee on Standards and Privileges in the House of Commons and he says, “I didn’t do it, guv”? That committee would then have to make a judgment and it may or may not overturn what IPSA has done so, bingo, out of the window goes a totally independent body. Is that right?
I have two amendments in this group. Amendment 48B suggests that the Speaker of the House of Commons should be consulted when IPSA determines the procedures. He is to be consulted when the code is fixed and he is to be consulted on various other matters throughout the Bill but he is not to be consulted about the procedures. I think he should be, not merely the Leader of the House and the others mentioned.
I shall not pretend that I have absolutely mastered all the amendments that the Government are making to the Bill but I think that Amendment 74A has become a consequential amendment, at least in part, to some of the amendments which the Government are making. At present, the wording says that nothing should prevent the House of Commons exercising any of its disciplinary powers, otherwise than following an investigation. We do not want its disciplinary powers to be limited following an investigation either, so why not knock out the words from “otherwise” onwards? That would make the drafting a shade clearer. Those who drafted this Bill have done a fantastic job in the time available but the drafting is not of a quality which we normally expect from parliamentary counsel. I am sure that is because of the timeframe. Some of it is obscure, as I have tried to show, and I think we have made some improvements not only to the policy but also to the drafting.
Perhaps the Minister could clarify one small point which is simple compared with all the other problems he has been given this afternoon. On about three occasions, he mentioned the enforcement powers. “Enforcement” is a very strong word which I do not like because it has the sniff of the jackboot about it. I once received a letter at home from Norfolk County Council which on one side said “Norfolk County Council” and in a jazzy way, “working for the people of Norfolk”, and on the other side it said, “Rural Enforcement Agency”. One title is nice and democratic and the other is dictatorial and unpleasant. Who will enforce what on whom? I can only assume that it is Members of Parliament, those people who have been elected to the House of Commons, which always used to be regarded as the highest place in the country. Now they are having something enforced on them. What is to be enforced on them, who will do the enforcement and how?
My noble friend Lord Goodhart and I tabled Amendment 75, not being quite aware at that stage whether the Leader of the House was to move the inclusion or exclusion of Clause 7. It is only right that we should look at this issue, even if only for complete clarity at this stage. I remind the Committee that this deals with the enforcement section of the Bill, Clause 7(11), which refers to a Member of the House being expelled. It is important for us to put down a marker on yet another issue about the great relationships of our parliamentary system. A good deal of the debate so far has been concerned with the relationship between the House of Commons and the new parliamentary standards authority. Amendment 75 is about reasserting the relationship between Parliament and the authority on the one hand and the public on the other. The amendment says in a new subsection following subsection 11:
“The expulsion of a member from the House of Commons in exercise of the powers of the House under subsection (6) shall not prevent the member from standing for re-election”.
In parenthesis, perhaps I should say that I have subjected myself to the will of the electorate on rather a lot of occasions and have been successful on only six. I am sure that others in the Committee can beat that record. I have even been unsuccessful in a by-election, so I suppose I should declare that interest. It was the Beaconsfield by-election in 1982 when the Labour candidate was even less successful; a certain Mr Anthony Charles Lynton Blair. That is by the way.
The point about this amendment is that surely we should re-establish the principle that the final judge should be the electorate. We should not forget that. Therefore, we believe that it is extremely important to realise that there will be a subjective judgment, whether by the committee or even by the whole House, on the advice of IPSA, to take away the livelihood of a Member of Parliament but, more importantly, potentially to take away from the electorate the right to decide who their representative is to be. That is a subjective judgment and all judgments are subjective. What if the electors in that constituency disagree? It may be very unlikely but it is possible. Surely we must ensure in the Bill that we do not prevent a popular but censured Member of Parliament from re-standing in any by-election. There has rightly been a great deal of discussion about parliamentary privilege but that is always subject to the will of the people in a parliamentary democracy, the right of the public, as is their privilege, to elect whomsoever they like to represent them in Parliament.
I suppose our amendment is a probing amendment but it is important to re-establish the principle that in the end it is the electors who decide, not some scrutiny panel set up by the political parties which can turn into a kangaroo court or a star chamber. Neither of those gives us confidence in the way in which these things should be handled, particularly if they are peopled by the Whips, the hierarchy of the party, who may find some individual MPs rather less convenient than others. There are apparently some 30 Conservative seats now up for grabs and so rapid have been recent decisions and announcements of retirements that the selection rules have been suspended for the time being to allow other considerations to take their place. At the very least, it would be appropriate to ensure that, if this clause remains, we put something into the Bill to show that, in the end, it is not the decision of the party hierarchies which is critical but that of the electorate.
It is particularly unfortunate that the impression has been given that well established parliamentarians, who, perhaps, have a reputation for independence—even unconventional and inconvenient independence—have been those who have been asked to go, while others who are more subservient remain. That is why it is important, if the clause remains, that we establish the final authority of the people, the electorate. It surely must be right that the opportunity to walk away is, yes, voluntary, but when people are forced to walk away—even with a golden handshake and a resettlement package at the end of the Parliament—that they do so in terms acceptable to the electorate.
We do not know that yet. I am a comparative novice in this House; I have been here only some four years, but until the clause is removed from the Bill, it stands and therefore, as I understand it, all the amendments are in order. If I am corrected in a moment, obviously, I will understand.
All we seek to do in the amendment is to establish the principle that, at the end of the day, it is not the parties that should be in the position to enforce, it should be the people. If, as was indicated by all three party leaders in recent weeks, some form of report procedure should be established, that would have been a different matter. Without that, we think that it is wrong that the decisions should be taken behind closed doors. They should be taken in the open by the people they affect: the electors in the constituencies concerned. Hence the need, as we saw it, when we first saw the clause, for Amendment 75.
As it appears that my noble friend is winding up, perhaps I may comment briefly. The amendments are certainly to be welcomed, as they deal with the concern expressed about the role of IPSA in these matters, with regard to both the question of parliamentary privilege and whether it might affect criminal or civil charges. The noble Baroness the Leader of the House anticipated the amendments in her letter. They are certainly an improvement. Having said that, I share the concern expressed by other noble Lords about new subsection (5)(b), that IPSA will somehow, although it is said not to be involved in individual cases but only with procedures, be able to set certain other conditions which will or may have to be taken into account by the commissioner.
I think not. I am speaking to Amendment 43A. Perhaps the noble Lord will look at new subsection (5)(b) in the amendment, which states that IPSA can go on imposing various conditions. Although it is said that it will not be involved in individual cases, it will be involved in setting the structure which will, in turn, have to be taken into account in individual cases. That appears in the amendment. It is true that it may have appeared in the original clause, but I was referring to the provision in the amendment, not in the original clause. The noble Lord’s intervention is slightly off the point, if I may say so.
I am concerned that we will still find that IPSA is fulfilling a role in that context, and we have no idea what those conditions may be. Why we should leave it to IPSA to determine those conditions, rather than include them in the Bill, I am not at all clear. I am worried that subsection (5)(b) in the amendment brings IPSA back into a role that we may prefer it not to have.
In Amendment 43A, under new subsection (5B), which deals with registration, the commissioner has to take a decision on whether he regards the failure to register an interest,
“was minor or that the failure was inadvertent”.
From my recollection of what happens in the House of Commons, is there not a danger in that that the commissioner, who has received a complaint from a member of the public about a failure to register, may decide that, in his or her view, it was minor or inadvertent? That may not satisfy the person who has complained and may well be taking a decision that the Committee on Standards and Privileges would not approve of if it had known that it had been taken. As I understand that subsection, the commissioner is not required to inform the committee of his decision that it is minor or inadvertent.
Rather subtle points arise about the practice that the commissioner will adopt in deciding whether matters are minor or inadvertent. That requires subjective judgments, and I foresee circumstances in which the Committee on Standards and Privileges may simply say that it would not have agreed, had it known.
I want to ask about the relative position of the code of conduct and the financial rules. I understand—although I am subject to correction—that the commissioner is concerned only with the financial rules, not with the code of conduct. The code of conduct is dealt with by the existing parliamentary commissioner. Amendment 43A refers in new subsection (5A) to,
“a requirement included in the code by virtue of section 5(7)”.
It is not included in the code; it is included in the rules, so some confusion is apt to arise if those are not kept distinct.
Those last two or three interventions were extremely useful, especially that of my noble and learned friend Lord Mackay of Clashfern. They demonstrate that this substantial group of government amendments needs further probing. We will want to examine them in more detail, given that they have been in the public domain for only 24 hours or so.
Of course, we will support the government amendments, because the issue that the Minister is trying to resolve was raised in another place by my right honourable friend Mr Grieve. He rightly identified the impossibility of having the authority publicly recommend penalties to the Committee on Standards and Privileges. He suggested that the Committee on Standards and Privileges should retain the role it currently has of assessing evidence and giving judgment on the behaviour of Members of Parliament. As I understand it, in the amendments, the Government have conceded the point and tabled amendments that, in their words, replicate the current position. That is certainly a great improvement on the impossible provision introduced to this House originally, so we will accept the amendments and not oppose their inclusion in the Bill.
This is a complicated and substantial group of amendments that covers several clauses and has pre-empted many perfectly sensible amendments tabled by my noble friends and other noble Lords. It has raised many concerns that need proper examination; for instance, the rights of Members of Parliament to make representations and the fairness of the trial. No doubt, we shall come back to some of these issues when they are addressed later in the Committee, but I feel that some will have to be returned to on Report next week if this House is to give this legislation at least a vestige of the scrutiny that it so desperately needs.
I do not envy the Minister the job of replying to the concerns that have been raised. We shall read very carefully what he has said and study these amendments before Report.
Amendment 75 is a probing amendment that deals with the rights of a Member of Parliament. It was spoken to by the noble Lord, Lord Tyler. There is no way in which IPSA can get rid of a Member of Parliament. The noble Lord is right that only the electors can do so. The other place can expel a Member, but IPSA is not in a position to do so. The House retains all the power to sanction an MP. If it expels an MP or censures him in some way, it is its business through its committee and eventually on the Floor of the House. I understand that any MP who is expelled is entitled to stand again in a general election or a by-election. Nothing in the Bill affects that.
It may be of assistance if I explain what government Amendment 43A, which is perhaps the major amendment in this group, does. It sets up a new regime and provides that the commissioner, after conducting an investigation, may do one of three things. If the complaint relates to the allowances scheme, he may, if the Member of Parliament has accepted the findings and has agreed to repay any money owing, not refer the matter to the committee but settle it. If the complaint relates to the code of financial interests, the Member has accepted the findings and the interest is minor or the infringement inadvertent and the MP takes the necessary steps to rectify the situation, the commissioner does not need to refer findings to the committee but can settle the matter. IPSA can impose conditions about which cases are suitable to be dealt with in this way, but in any other case the commissioner must make a report of findings to the Standards and Privileges Committee. The commissioner may also make a report to the committee if the Member of Parliament has not provided information that the commissioner reasonably requires for the purposes of the investigation.
I am sorry to press my noble friend on that, but I am going back to the period that I spent on the committee. I cannot see how it is possible for the commissioner to decide whether something is minor or inadvertent. It is not as clear-cut as that. I foresee problems within the committee and objections from Members.
Many of the commissioner’s powers in this regard depend on whether the Member of Parliament acknowledges that he or she has done something in breach. The commissioner then decides that it is minor and the matter is not reported to the Standards and Privileges Committee.
I am beginning to think that it may be necessary for me to ask the Committee’s permission to take Amendment 43A back to reconsider. I make no apologies for doing that because of the important matters that have been raised during the debate on this group. I am more than happy to do that. Amendment 43A will not be put during Committee stage. I hope that that is helpful to the Committee.
I would prefer the Government to put Amendment 43A into the Bill while saying that they will consider the various points that have been raised and may produce amendments in response to them later. Then the Bill would read when reprinted and we would have a much better idea of it. At the moment, the difficulty is that we cannot read what the Bill will look like on one piece of paper. That makes it very difficult to unravel all these issues. I think that it would be better if the Minister put the amendment in the Bill, even if he is going to fiddle about with it later.
I entirely agree with what my noble friend said and I welcome the Minister’s response. However, he said that the information might never get to the Standards and Privileges Committee. Am I wrong in thinking that the general public may have access to that information under the legislation? Indeed, that is the origin of the whole present upheaval in Parliament. Is it not a fairly bizarre situation that someone may ask for the information and get it but the committee of the House will not have it?
I take the noble Lord’s point. It is the same point that my noble friend was making. That is one of the matters that we will consider with gratitude to the Committee for raising it.
I was asked what would happen if the commissioner referred a finding and it was overturned by the Standards and Privileges Committee. The committee retains the discretion to do whatever it likes with a referral from the commissioner. I do not think that anyone who has been a Member of the other place would expect it to do anything else. That does not undermine the independence of IPSA, which will set the allowances, if the Bill goes through. There will still be an independent body investigating and the findings can be made public. The IPSA scheme will be open to freedom of information.
It is about facts but, so that parliamentary privilege is absolutely certain, as we understand it, the committee is entitled to overrule what the commissioner has found. That is going one step further than many might require. IPSA, not the commissioner, will set the procedure for investigation, so there can be no allegation that the commissioner is both judge and jury.
I was asked why we need additional conditions to be specified by IPSA when a finding of a minor infringement of the rules is not referred to the Committee on Standards and Privileges. These additional conditions permit IPSA to specify additional matters before the commissioner refers a finding to IPSA. IPSA may, for example, wish to specify a threshold for the amount to be repaid and to avoid referring de minimis breaches or breaches where it is subsequently apparent that the rules or guidance are unclear.
On Amendment 52, the noble Lord, Lord Goodhart, may be suggesting that, by the time the Member of Parliament makes representations, any complaint has already turned into an investigation. However, this might not be the case. The commissioner may receive a complaint and want to ask the MP informally what he wants to say in response. Depending on what the Member of Parliament says, the commissioner may proceed to a full investigation. It is therefore important to have procedures that make it clear that the MP’s rights to respond to a complaint apply before, as well as after, it becomes a full-scale investigation. That is what the Bill seeks to say.
If the Bill does not allow for that, we must look at it after Committee. It is certainly our intention that the Member of Parliament should have that right.
I was asked why the Bill did not allow pre-investigation representations by Members of Parliament. That would add an additional layer of bureaucracy. The Bill provides that MPs can make representations throughout the investigation, although the noble Lord thinks that the Bill is not as clear about that as it should be. If the commissioner is satisfied that the complaint is unfounded—we have had this debate before—he may decide not to refer a report to the committee. That concerns my noble friend Lord Campbell-Savours and other Peers, too. However, I need to make it clear that this is only on the proviso that the MP agrees with the conclusion, not in any other circumstance.
The noble Lords, Lord Goodhart and Lord Jenkin of Roding, both seek through their amendments to amend the requirement that IPSA may specify the conditions under which the commissioner might be able to resolve a matter without referring it to the Committee on Standards and Privileges. As we see it, the noble Lord, Lord Goodhart, would like to see the provision removed; the noble Lord, Lord Jenkin, wants to qualify it.
On the point made by the noble Lord, Lord Jenkin, the conditions that are specified must be reasonable. IPSA will be a public authority and will be subject to the normal public law principles of rationality. Exactly what conditions may be imposed on informal settlements will be a matter for an independent authority. They might include a maximum amount of overpayment that can be dealt with without reference to the Committee on Standards and Privileges or a condition relating to a number of different findings on the same Member of Parliament.
I take the noble Lord’s point. If I have dealt with him too literally, perhaps he will understand why. It is important that the commissioner, the Member of Parliament and members of the public know the conditions in which it might be possible to settle the matter without referring it to the committee. This is there not to provide extra hoops for Members of Parliament to go through but to attempt to be open about the fairness of the procedures.
I am grateful for the Minister’s explanation, but I am afraid that I totally misunderstood what this is about. Could there be some clarification at a later stage, along the lines of the Minister’s explanation, of the meaning of the paragraphs that refer to such other conditions? I had assumed that they meant the conditions relating to a particular case, but they appear not to mean that at all. The conditions are set generally by IPSA as part of the provision for settling the case without referral to the committee.
There has to be some discretion. Not every condition can be in the Bill. Perhaps the noble Lord will be patient enough to wait for the letter to drop through his letterbox.
We have debated this group of amendments for a long time. They arise from government amendments that find general support from around the Committee. The Government have responded to widely held opinion both in the other place and here. The amendments may not be perfect, but the Committee stage gives us the chance to see how we can make them better.
Amendment 19B agreed.