We now debate one of the most interesting and important clauses in the Bill, Clause 8, which deals with the penalties that are to be brought into force and used by the new body to deal with Members of Parliament who have broken the law. I have given notice that I will oppose the clause in due course.

Amendment 76A is probing and gives the Government the opportunity to clarify fully, as they have not been able to do so far in either House, the nature and scope of this offence. Will the Leader of the House set out in detail how the offence laid out in subsection (1) differs from the existing offence in Section 2 of the Fraud Act? There has been much questioning in another place and in various cross-party meetings of the need for this offence and the reason why a maximum penalty less than that available in the Fraud Act is being proposed. We are also led to understand that there is interest in this new offence at the highest levels of government, so I assume that a great deal of thought was given to it before it was introduced into the Bill.

On the nature of the offence, will the noble Baroness explain clearly the distinction between the dishonesty test in the Fraud Act and the knowingly false test on which this new offence is based? Many Members of Parliament who are brought under the scope of this new offence—I hope they will not be—will not be lawyers or legally qualified, and it is important as this Bill goes through Parliament that we understand the parameters of this new offence. Can the noble Baroness tell us precisely what the difference is between dishonesty and a knowing falsehood in respect of this legislation? What sort of behaviour that was not able to be prosecuted under the existing legislation is to be caught by this offence? Could a simple mistake, for example, be caught by this provision, or could it be something where there was no intention to secure any financial advantage? I doubt it; the Bill states that the MP must be representing something that he knows is false. To me, that sounds a little more like fraud. When she responds, can the noble Baroness give some explicit examples?

I should also like to press the noble Baroness on the second strand of concern that has been the reason for opposition to this offence over the past few weeks—the perception that this may be a “fraud lite” offence. There have been charges that the Government are establishing for MPs a softer criminal regime than that which applies to the rest of us to ensure that they are not to be punished to the full extent of the law for crimes that are considered to be serious offences outside Parliament. I doubt that that is the Government’s intention, but perhaps the noble Baroness can give assurances that this offence will not be used to give the impression that action will be taken against a fraudulent MP that would allow him to be prosecuted for a much reduced crime, which could not, under the current law, ever result in his losing his seat.

Does the noble Baroness also agree that a crime that meets the criteria of the Fraud Act should be prosecuted under that Act, rather than this Bill? In summary, this new offence must add to the existing legislation, not simply replace it.

The noble Lord said that the first amendment was probing; but his second amendment is very interesting. Is that more than a probing amendment?

They are both probing at this stage. In other words, I want to hear the Government’s justification for bringing forward these provisions. Later on, I shall speak to the whole clause, with which I have various problems. This is just an opportunity for the Government to explain their thinking before the Bill becomes law.

I am asking the noble Baroness—I am sorry to repeat this—to give specific examples of the type of knowingly false representation that will be prosecuted under this new law which could not be pursued as an act of fraud. I beg to move.

I am glad that the noble Lord described these as probing amendments. I was a little confused about the distinctions between what he is proposing and what the Bill proposes—but he has explained them. I do not wish to focus on the drafting, given his intention in tabling these amendments at this stage. However, I noted that “false” in his proposed subsection (1B) would include “misleading”. Clause 8(1)(b) includes both terms as separate concepts.

On the substance of the amendments, if the noble Lord is to proceed with them at a later stage, it would be helpful to distinguish between the knowledge of what “might be” false, which is the terminology used in the amendment, and recklessness, which is a more usual concept.

It is hard to envisage a claim described in Clause 8(1) without an intention of making a gain. If the noble Lord proceeds with the amendment, or anything similar, at the next stage, perhaps he could bear that in mind. I do not wish to be unduly picky, but one does not want to create criminal offences without being very careful about every single word.

I have not had an opportunity to look at the penalties which might apply to the existing offence of fraud under the Fraud Act. The noble Lord has told the Committee that 10 years is the current maximum penalty; that was extremely helpful. I am concerned about creating a new offence for an action or omission that is covered by an existing provision. I understand the politics behind this. What is suggested here—a 10-year penalty—is very serious. Heaven forfend that we should be thought to be indulging in gesture politics.

Amendment 77ZA is very interesting. It deals with the only remaining area of the Bill where there may be some controversy. It deals head-on with the case made by the Opposition in both Houses that the offence set out in subsection (1) carries a penalty that is diluted in comparison with penalties available under other legislation. In the event that the amendment were incorporated in the Bill—this is why I asked the question—I would like to think that there would be no difficulty about Clause 8 standing part, and the House would then unite to approve the clause with this amendment to the penalty embodied in it. I should be very interested to see what the noble Lord says on the Question that Clause 8 stand part of the Bill. If he were to indicate that that was the case, the Committee would be very pleased.

I will add my voice to the concern about the way in which Clause 8(1) is expressed, for two reasons. First, it is undesirable to create a new offence if an existing offence immediately covers the crime that is dealt with here. I, too, would like to know in what way Clause 8(1) differs from the existing criminal law.

The second matter, which is more important, is political. If the Bill goes through with a 12-month offence, the public will say that Members of the House of Commons are getting a lighter sentence than members of the public. I cannot believe that that is what the House of Commons intended. However, it is extremely important that there is no perception that the law is a soft touch for dishonest MPs compared with members of the public. As the noble Lord, Lord Campbell-Savours, said, if Amendment 77ZA is accepted by this House, that would deal with my second point. It would not deal with my first point, which is to ask why we need a new offence at all.

These are probing amendments. As such, they afford the opportunity for debate that was referred to yesterday by my noble friend Lord Higgins. That is of interest and value to another place—but perhaps no more. I will oppose the Question that Clause 8 stand part of the Bill. I will not go into the reasons again—I have said enough already. One has to be very careful to bring down the curtain on crime where it is clear; but how can one say what is not a crime or what could be a crime, and so on and so forth? This is not an easy exercise, and not something that we should seek to resolve in this House and impose on another place. It is for another place to decide, constitutionally, what it is going to do about implementation of its domestic procedures covering breaches of rules. It is nothing to do with us.

I certainly have some sympathy with the submission of the noble Lord, Lord Campbell of Alloway. After all, we are a reviewing Chamber, and we are reviewing one of the most important pieces of legislation ever to have come our way. Whether we like it or not, and whether or not we feel embarrassment in relation to a matter which is exclusively—at this stage, at any rate—referable only to the House of Commons, we have that overarching duty which, with the very greatest respect, we simply cannot avoid.

The first question is whether it was necessary to create a third offence at all. Certainly Parliament should always balk at creating an offence that applies only to a very narrow constituency of people—in this case, 665 or 670 Members or thereabouts—unless it is absolutely necessary. The offence of falsification of accounts under Section 17 of the Theft Act 1968 certainly covers this amply, and an offence under Section 2 of the Fraud Act 2006, which double-banks considerably Section 17 of the Theft Act but goes a little wider, also covers it totally. Therefore, it seems that there never was a case for a third offence. The defence put forward by the Government is that in relation to the offences under the Theft Act and Fraud Act it was necessary to prove dishonesty. Under Clause 8, it is necessary to show that a Member has made a claim and provided information for the purposes of the claim knowing that information to be,

“false or misleading in a material respect”.

However, how can that fail to be dishonesty? That is the first and fundamental question.

The next question is: if I am wrong as a matter of technicality, does it make any difference at all? The test of dishonesty was laid down by the Court of Appeal in R v Ghosh about 25 years ago. A jury has to decide two questions. First, is the conduct that has been proven such that an ordinary, honest, decent citizen would regard it as dishonest? If the answer is yes, then there is a second question; if the answer is no, then of course the charge falls there and then. However, if the answer is yes, the next question is: did the defendant appreciate that he was doing wrong and acting dishonestly in accordance with that standard—not his own standard but the standard of an ordinary, honest, decent person?

Even if one were not to insert the word “dishonesty” in the offence or to regard dishonesty as being specifically necessary for the commission of the offence, I fail to see how it would make any real difference regarding the issues that would have to be determined as matters of fact by an ordinary, reasonable jury. I have the gravest doubt myself.

Secondly, there is the question of punishment. Even if the Government managed to get over the first hurdle of whether a third offence was necessary here, how can there be any justification for the sanctions being so out of kilter with those that apply to ordinary British citizens? Those citizens are subject to a maximum 10-year penalty under the Fraud Act and a seven-year penalty under Section 17 of the Theft Act. The message that will go out to the public if this provision remains worded as it is today is that a soft option has deliberately been created in the interests of Members of Parliament, who will have a maximum penalty one-seventh or one-tenth of that of the ordinary citizen. There is an absence of logic in saying that a third offence has been created to make it easier to prosecute Members of Parliament. That is the Government’s case. They say that by not referring to dishonesty, you make them more vulnerable to prosecution. What is the sense, then, in saying that they are less vulnerable to sanction?

Does the noble Lord not accept that Amendment 77ZA does not dilute the penalty whatever but includes the option?

I am sorry. I was speaking of the clause as it exists in the Bill at present. I accept totally what the noble Lord says.

Before I respond to the amendments tabled by the noble Lord, Lord Strathclyde, I would like, for the benefit of the Committee, to remind your Lordships that, when talking about clauses in the Bill, we should refer to the Bill as introduced in the House and not to the numbering contained in the Keeling schedule that I have made available in the Public Bill Office.

Do I understand that the noble Baroness is talking about the Bill as originally introduced into this House and not the reprinted one, so that, as far as the next amendment is concerned, for example, the noble Baroness will read out the relevant lines as they appear in the Marshalled List?

That is absolutely correct.

This has been a very good debate and lots of interesting questions have been raised. Before today there was a lengthy debate with colleagues in the other place about whether or not the offences set out in subsection (1) were sufficiently different from the offences set out in the Fraud Act to justify their creation. We argued that there is a long list of similar offences to that set out in subsection (1), where Parliament has decided that in particular contexts it should be an offence knowingly to make a false or misleading statement. These offences apply in circumstances where a duty of complete honesty is expected. So, for example, there are offences—less serious than full-scale fraud but culpable none the less—of making a false statement in relation to applications for driving licences and passports and, in an electoral context, of donations to political parties. To take an example close to that of MPs, the Local Government and Housing Act 1989 makes it an offence knowingly or recklessly to provide information in respect of pecuniary interests that the councillor knows to be false or misleading.

As I said when I wrote to noble Lords earlier this week about the government amendments to Clause 6, false statements in the context of benefit claims is an obvious example. Under Section 112 of the Social Security Administration Act 1992, it is an offence to make a statement or representation that the person knows to be false in a claim for benefits. That offence carries a penalty of a fine not exceeding level 5 or imprisonment not exceeding three months. However, there is a more serious offence under the Social Security Administration Act as well, which is to make a false statement or representation dishonestly and with a view to obtaining payment of any benefit. That carries a maximum penalty on conviction of seven years’ imprisonment. The differences between the two offences are that the more serious offence requires proof of dishonesty and that the purpose of the false statement was to obtain payment of a benefit.

Section 2 of the Fraud Act 2006, which is the offence to which reference is most usually made, requires proof of a false representation that is untrue or misleading; that the person perpetrating the fraud knows that it is, or might be, untrue or misleading; and that the person intends to make a gain or cause a loss to another. And all this must be done dishonestly. The offence in Section 17 of the Theft Act 1968 of false accounting applies to someone who destroys, defaces, conceals or falsifies a document dishonestly, with a view to gain for himself or another, or with intent to cause loss to another.

As your Lordships will see, what is required in all three of the offences that I have cited, which carry significantly greater maximum penalties than those set out in this Bill, is proof of dishonesty and of the purpose for which the false representation was made. Dishonesty is a high hurdle for the prosecution to mount. It is something in addition to knowledge or intention. It requires the prosecution to prove that, first, the person has behaved dishonestly according to the ordinary standards of reasonable and honest people and, secondly, that the defendant realised that reasonable and honest people would regard what he or she did as dishonest.

The offence of knowingly making a false statement in support of an expenses claim differs from the more serious Fraud Act offence in that it does not require the prosecution to prove dishonesty or an intention to make a financial gain. This is a combined objective and subjective test. A person who knowingly provided false information in an allowances claim but who did not satisfy the dishonesty test or did not have the requisite intent to make a gain would not commit an offence under the Fraud Act or the Theft Act. For example, a belief that the claimant is entitled to money claimed or that the person from whom it is claimed consents to the payment, or an intention to repay the money claimed or to set it off against other claimable expenses, may negative dishonesty. As in other contexts, the prosecution will have a choice of potential offences depending on the evidence and the seriousness of the breach.

The amendment replicates offences under the Fraud Act. I would argue that, if it was thought that subsection (1) was unnecessary, new subsection (1A) as proposed in the amendment is even more unnecessary. I understand that noble Lords wish to make it clear in the Bill that the higher penalties are available in respect of really serious breaches of the rules. However, I suggest that it is not good law-making to include unnecessary provisions. The amendment does not add to the options available for prosecuting an offence. The evidence required would be exactly the same as would be necessary to prosecute under the Fraud Act. That is the difference between subsection (1) and this new subsection. I therefore urge the noble Lord to withdraw his amendment.

I should say that I do not regard a test of the success of this Bill as being evidenced by successful prosecutions of Members of Parliament—quite the contrary. The Government hope that, by setting up a new independent system with clearer rules on what allowances can be claimed, Members of the other place will be in no doubt as to what is required of them. We all expect Members of both Houses to respect the duties of honesty and integrity which are included in the codes of conduct and which reflect the Nolan principles to which we all subscribe. Creating an offence specifically in respect of providing false information in an allowance claim makes it apparent to Members of the other place and to the general public that we expect a duty of candour from our elected representatives in this matter. It is a backstop should this duty be flouted. However, I hope that the success of creating a new criminal offence and the success of this Bill will be judged not by criminal convictions but by the fact that in two years’ time we will celebrate the fact that no prosecutions of MPs have been contemplated or necessary.

I again specifically want to make it clear, in response to the question whether the new offence means that MPs will be treated more leniently than their constituents for fraudulent claims, that the new offence criminalises conduct that on its own is not currently an offence. If there is evidence of dishonesty and an intention to make a gain, the prosecuting authorities will, as now, have the option of prosecuting for the more serious offences of fraud or false accounting.

Before my noble friend sits down, perhaps I may ask her a question, as I desperately try to follow the argument. I first heard about all this at the Constitution Committee when the noble and learned Lords, Lord Woolf and Lord Lyell, raised it and said that this special thing was totally not needed because the Fraud Act covers all possible cases. We are now talking about the future and not going over the past. Will my noble friend give a specific example of the new relevant matter in relation to an MP misbehaving, as opposed to what would be covered under the Fraud Act? In other words—to reveal my total ignorance—what are we talking about?

I understand what my noble friend wants and what other noble Lords asked earlier. Of course, this Bill does not pertain to any current cases. Because cases are under investigation, I am told that it would be inadvisable to cite cases in which this new offence would be applicable.

Before the noble Baroness sits down, perhaps I may ask again my question as to what will be the public’s perception in relation to a one-year maximum sentence. I understand her point that there are other offences that are less important, but it will look to be a cop-out.

This new offence criminalises conduct that on its own is currently not an offence. It does not mean that, if there was evidence of dishonesty, the person against whom the claim was made would not be prosecuted under the Fraud Act. This is a new offence but, if dishonesty were the case, the person would be prosecuted under the Fraud Act.

Before the noble Baroness sits down, I do not think that the noble Lord, Lord Peston, was asking about cases currently under investigation. He was asking—perhaps the noble Baroness can help us—whether she can give an example of the kind of case that might be caught by this new offence and which would not be caught by either the Theft Act or the Fraud Act. Perhaps she does not have information on that with her at the moment, but I think that it would be enormously helpful if, before we reach Report stage, she could give us one or two examples, so that we know what we are talking about.

Forgive me, but it is not the case that I did not understand. As cases are ongoing, I cannot cite any future examples; I am advised that that would not be appropriate. That is what I am told by my lawyers.

I can understand the difficulty. I wonder whether this argument is not properly referable to the stand part debate, which I was intending to take some part in on this specific point. For the moment, I think that there is some difficulty in giving specific examples. On the other hand, it may be possible to test this by just asking a question which I shall pose in due course.

Before the noble Baroness sits down, perhaps I may rashly suggest a question that may be of assistance when we come to a rather fuller consideration of the matter as a whole. The noble Baroness said that those cases that show dishonesty will be prosecuted under either the Theft Act or the Fraud Act and that cases that do not show dishonesty will be prosecuted under this clause. Perhaps she can answer this question, which is in essence the same one that noble Lords have already raised. If one thinks of this—to put it, I hope, in a homely way—as an evidential bar that has to be overcome, how much higher, if at all, is the bar for a test of dishonesty under Ghosh than it is under this provision, where a person has to be shown to be knowingly providing information that is false or misleading? Is the bar in exactly the same position or is the difference so tiny-weeny that we really should not be troubled?

The Government clearly believe that there is a difference and that the bar is set at a different level. That is precisely why the Government believe that this is an appropriate offence.

In answer to the question from the noble and learned Baroness, Lady Butler-Sloss, about public perceptions, I point out again, as I did in my earlier statement, that the same situation applies to benefit claimants. Therefore, the public might see MPs in the same light as we impose on benefit claimants.

Before the noble Baroness sits down, perhaps I may establish whether I have correctly understood. Is she saying that this proposed new offence is primarily symbolic and presentational and that its true success will be that it is never used? Is that really what she is saying?

I am not saying that it is symbolic and presentational at all. I said that we believe that the new offence is absolutely necessary. However, it is my profound hope that the activities of MPs and the way in which people conduct themselves will be so improved that in future there will be no resort to the use of this offence.

It is difficult, as I said, to bring the curtain down. Dishonesty is a difficult concept for anyone other than a jury to achieve. There are many cases on the border of dishonesty, so who is to decide whether it is the new offence, where there is no dishonesty, or the old offence, which is dishonesty? With an apparently new offence, someone will have to make that decision and it certainly is not going to be a jury. One is getting to a difficult stage, so difficult that I, too, will oppose the clause when it is considered. If the Government are going to persist, they must deal with this. If you are charged with dishonesty and the jury acquits you, can the new offence be charged because there was no dishonesty? All sorts of silly questions can be asked, but they require consideration and answers.

I note the many concerns of the noble Lord. These offences will be dealt with in the same way as any other offence. Who decides what penalty is going to be appropriate for every offence and who is going to be charged under what offence? The same rules and regulations will apply to this as to any other offence.

When I put down this amendment originally, we were faced with a rather different Clause 8, if we accept the amendments that we are about to come to, as I am sure we will. It is in terms of that that we will have the wider clause stand part debate, so this whole new debate can be seen as a precursor to that one. I am equally looking forward to the questions of my noble and learned friend Lord Mackay of Clashfern for the noble Baroness. In that context, perhaps I could make a small procedural point. I have noticed one or two Peers saying, “Before the noble Baroness sits down”. Since we are in a Committee of the whole House, there is no need to say it because we can ask as many questions as we want, as we may well need to on this occasion.

The reason why I suggested this as a probing amendment was that I was slightly confused as to what was intended by the new offence and its interaction with the provisions of the Fraud Act. I suspected that the noble Baroness would give us quite a long answer, which she has done. I am still a bit mystified, which is why I will have to study it. I do not have the experience and knowledge of the noble Lord, Lord Elystan-Morgan, who deals with this stuff all the time. However, I was struck by what the noble Lord, Lord Peston, said about debates in the Constitution Committee and the views of my noble and learned friend Lord Lyell and the noble and learned Lord, Lord Woolf. If their view is that this offence is unnecessary because it is already covered in the Fraud Act, that is powerful. It is a pity that they are not in their places to make the point.

I understand the difficulty that the noble Baroness is in because of police investigations, but can she say whether under this new offence dishonesty would need to be proved? In other words, is it possible for an MP to be prosecuted without being dishonest? If they do have to be dishonest—this is where I am slightly lost—why cannot the prosecution be made under the Fraud Act? I suspect that we will come back to all this in the next debate. I will read carefully what the noble Baroness has said before making a decision on what we will do on Report. I moved the amendment because it looks at the part of Clause 8 that brings in the regime of offences under this new law. It is important that we understand what is being done so that our colleagues in another place understand what it is that they are up against when this becomes law. On that basis, I beg leave to withdraw the amendment.

Before I call the next amendment, I have to inform the Committee that if Amendment 76B is agreed to, I cannot call Amendments 76C or 77 because of pre-emption.

Amendment 76B

The effect of the amendments in this group is to remove from the Bill the two offences of failing, without reasonable excuse, to comply with a requirement in the code of conduct on financial interests in relation to registration of interests, and of breaching the paid advocacy rules.

We tabled the amendment to remove the offence in relation to paid advocacy on Monday, so noble Lords were already aware of it during our debates on Tuesday. We have accepted that it is an offence which would be difficult to prove without incursion into matters covered by privilege, and with the removal of the clause which would have waived privilege for the courts and prosecutors in investigating and prosecuting the offence, would have probably been unworkable. This does not mean that breach of the rules of paid advocacy is not to be taken very seriously. We have agreed not to pursue it in this Bill on the basis that the draft Bribery Bill currently receiving pre-legislative scrutiny will cover the same mischief.

I also signalled on Tuesday that I was looking further at the offence in Clause 8(2) in relation to the registration of interests. I have concluded that we should also remove this from the Bill. There would not have been the same difficulty in prosecuting the offence as there would have been with paid advocacy. I remind your Lordships that this Parliament created offences of failing to declare interests and of paid advocacy for members of the devolved Administrations and for local councillors. Although it would not have been an infringement of privilege to have continued to have an offence, I recognise the strength of the feeling expressed in the House earlier in the week. I beg to move.

Amendments 76C, 77, 77ZB and the Clause 8 stand part debate are grouped with government Amendment 76B and so there will be an opportunity to have a more rounded discussion on this issue. I thank the noble Baroness for the amendment. It is extremely welcome and I am delighted that she has brought it forward, particularly as it gets rid of the second offence.

The Bill changes almost hour by hour and will become law on Tuesday, and so we find evidence of the hasty manner in which it was thrust together. The Bill creates another new offence and I wonder how many new offences have been created over the past 12 years. Perhaps the noble Baroness has that information in her folder. However, under this amendment, she is at least removing the potential new offences, and she is quite right to do so. The Bill will be much improved by the absence of the two offences.

The offences being removed are not criminal matters in other fields. They relate solely to the House of Commons and its code of conduct on financial interests. As such, as has been repeatedly established in these debates, it would be inappropriate for breaches to be examined and judged upon in a court of law. The second offence would involve a discussion of the proceedings of Parliament and the third would involve the debates in which an MP takes part in another place.

The sole remaining offence in Clause 8, which we discussed earlier, is to be implemented by a statutory instrument, and the commencement date of this SI is not tied to any other part of the Bill under the drafting of Clause 12. Can the Minister give any more information on when she expects the remaining offence to be brought in? Will the Government wait until IPSA is up and running and the new allowances regime is in place, or is the offence to be applicable immediately upon Royal Assent? The noble Baroness is indicating that it is not going to be on Royal Assent.

This process has been rushed through Parliament in order to get this one offence on the statute book by next Tuesday, but it is not going to be brought into force until the Government decide that it should be. Can the noble Baroness indicate when she believes that will be? If she cannot do it now, that is fine; it is not critical to the debate.

Without going over old ground too much, the clause has now been reduced to dealing with this one new offence, although the noble Baroness is unable to give us an example of what would fall under it or how the prosecuting authorities would make a decision about whether they believed a law had been broken. I wonder whether since the previous debate she has received any further inspiration about the reasons why such a prosecution would take place.

I echo some of the points just made by the noble Lord, Lord Strathclyde. We, too, are concerned about the commencement provisions. No doubt the noble Baroness can answer that one in due course.

We are also anxious about the question of examples. It does not seem entirely logical. There may be cases at the moment that fall within this category and cannot be referred to, but apparently she cannot speculate about future offences. Perhaps she can give us some guidance on that in due course.

We are in a rather unusual situation. Amendment 76C, which we tabled and which is supported by the noble Lord, Lord Strathclyde, is swept up by government Amendment 76B, as is Amendment 77ZB because the Minister has endorsed our amendment on that. So we are left with the clause stand part discussion, to which I expect much more eminent Members of your Lordships’ House are going to contribute in a moment.

I have no real expertise, but I make this point as a non-lawyer: the crux of the issue is whether there are some circumstances in which the prosecuting authorities will not be able to act in a way that would be comparable to the circumstances of a member of the public rather than of a Member of Parliament. Are we on all fours? Is there a soft-option argument? That issue has been addressed on a number of occasions in previous debates, both today and previously. Is the Bill, in the term of the noble Lord, Lord Strathclyde, “sentence-light” for Members of Parliament in a way that the public would find difficult?

The issue of the definition and completion of a case with regard to dishonesty is both difficult and controversial. Under both the Theft Act and the Fraud Act, where members of the public would be convicted there is presumably case law, and presumably that can apply here. But are the prosecuting authorities still able to act in the case of an offence by an MP on exactly the same terms as a member of the public? That, to a non-lawyer, is the crux.

The noble Lord, Lord Peston, referred in an intervention earlier to a discussion that took place in your Lordships’ Constitution Committee. I have searched briefly through the various reports from that committee; they are timely and excellent reports but, as far as I can see, that discussion is not reflected in them. When such distinguished Members of your Lordships’ House make a contribution of that sort in your Lordships’ own committee to that effect, it raises important questions that we will need to have answered. I hope that the Minister will be able to do so.

To a non-lawyer, we now have a Clause 8 that is shorn of its most obvious difficulties but still raises important questions of principle about the equal treatment of Members of Parliament compared with their constituents. I hope that the noble Baroness will be able to reassure us that the Bill as it stands, with those omissions, which we assume will go through, does not leave us open to the soft-option argument.

I warmly welcome this amendment. I am sure that it improves the Bill as a whole. I want to add one thing. The Bill is extremely hurried, there is no question about that, but the Member of the House who is most inconvenienced and put to the most trouble by that is the noble Baroness the Leader of the House, who, along with the Bill team, is trying to cope with major changes in a Bill of this sort in a very short time. We all owe them a debt of gratitude. I hope that we may have some further changes still, but in the mean time I express gratitude for the changes that have been made.

I am also grateful for the informal Bill as amended so far in Committee that we have with us today, although of course I am not referring to it.

My noble friend will know that I have been most concerned about the whole question of the advocacy arrangements in the Bill since it was originally published. She will recall that we had a number of conversations with Jack Straw to clarify the possible removal of subsection (2) from the Bill. I want to comment on the need for the Bill, particularly Clause 8, to go through, including an offence that affects, as the noble Lord, Lord Elystan-Morgan, referred to it, a narrow constituency of people—in this case, the narrow constituency of Members of Parliament. It is important that the Bill sends out a message to MPs as individuals that they are actually targeted in this legislation. It would concentrate their minds on the need to comply with the law, specifically in this area, more than would be the case than if they thought they were simply liable to prosecution under the general law in other areas that have been referred to by noble Lords.

MPs are well aware of the difficulties that have arisen following recent exposures in the national newspapers but, if ever there was a temptation to breach the rules in these areas in the future, a specific reference in legislation would act as an incentive not to do so. In that sense, I warmly welcome my noble friend’s view that it is important that Members of Parliament get the message and that no prosecutions take place in the future because they have received that message.

I support the taking out of subsections (2) and (3), but I want to make one further point on subsection (1) and on the fact that there would be a maximum 12-month sentence. If the Minister is right and there is a distinction to be drawn between the offence created under Clause 8(1) and the Fraud Act and the Theft Act, what is the Crown Prosecution Service likely to do? It will be much easier to prosecute under Clause 8(1) than under the Fraud Act or the Theft Act if there is a genuine difference. I suspect that, if an MP has committed an offence that is capable of being found by a jury to be dishonest but there is an easier way of prosecuting which he or she may plead guilty to, or which means that a jury is much more likely to convict, we will end up in the same situation with an easier sentence for a small group of people, as the noble Lord, Lord Elystan-Morgan, said.

I know that the Minister says that the situation is similar for benefit fraud, but I do not think that the public look upon those who commit benefit fraud in the same way as they look upon Members of the House of Commons.

I wish to speak about whether the clause should stand part of the Bill. I agree with the noble and learned Baroness, Lady Butler-Sloss, that the public make a distinction and will not look in exactly the same way at benefit fraud as they will at fraud by MPs, which we are now considering. Nevertheless, the Leader of the House gave an analogy with the benefit fraud situation. She explained that the prosecuting authority has the option, in a case in which someone has been cheating on benefits, to charge the lesser or greater offence, depending on whether or not dishonesty is involved. We are trying to find out how it is going to differ in the case of MPs. It might be helpful if the noble Baroness could tell us how the prosecutors in benefit cases decide whether to prosecute the lesser offence or the greater offence, and how often. Do they normally use the lesser offence or do they normally use the greater offence? Those criteria will presumably be similar to the criteria that will be used if the clause is passed, as we expect that it will, with the amendments in this group.

I wholeheartedly congratulate the Government on their withdrawal of subsections (2) and (3). It was a very sensible act on their part, because the offences would be triable summarily in a magistrates’ court. Magistrates are wholly unqualified, in my respectful submission, to deal with either of those matters—the registration of interests or paid advocacy. It is a realm that is entirely without their cognisance. Of course, they are citizens and extremely interested in those issues, but they would have no real qualification to deal with that matter at all. They will be fumbling in the dark with regard to issues that, with the greatest respect, they could not possibly understand fully.

There is a second reason. Magistrates in many areas are still appointed to some extent on a political basis. Every attempt is made to see that the political constitution of a magistrates’ Bench is not dissimilar to the political breakdown of that particular PSD—petty sessional division. That is perfectly proper, but the tendency could well be for magistrates to think in political terms in relation to these matters—or, if that is not the case, for there to be a public perception that they might do so. In other words, if a member of party A was acquitted, the public might say, “Oh yes, well she was on the Bench—they belong to party A”. The same would go for parties B and C. For those reasons, it is entirely proper that this matter should not have gone to a magistrates’ court.

As far as the other matters are concerned, I shall not repeat what I have already said, but there is a philosophical and esoteric distinction between dishonesty and the offence spelt out in subsection (1). In practice, I cannot think of a case falling under subsection (1) that would not be dishonest. It is not the esoteric consideration that the ordinary juror or magistrate as a judge of fact would be considering. The issue would be this: the defendant would be saying that he did not know. In each case, whether under the Theft Act, the Fraud Act or this Bill, the defence for the defendant would be, “I simply didn’t know”. That is what the jury would have to consider—whether they are satisfied that they are sure he knew. It is as simple as that. We are talking about theoretical distinctions that, in practice, would provide very little difficulty.

I am grateful for the welcome from noble Lords on all Benches for the changes that we have made and the amendments that the Government have introduced in this grouping. I know that many people feel very frustrated by the rapid changes being made to this Bill. Perhaps they think that this brings the Government into ridicule, but I do not. It is precisely what this Chamber is for—to improve legislation when it is found to be lacking. Clearly, this is a very hasty Bill; everybody knows that and everybody knows why. However, I think this Chamber is doing exactly as it should be doing, and the Government are responding accordingly.

The noble Lord, Lord Strathclyde, asked the important question of when the new offence will be brought in. It certainly will not be brought in on Royal Assent; it will be commenced only when the new IPSA allowances scheme is laid. I do not know exactly when that will be, but I shall keep noble Lords informed.

I have explained in our earlier debate why the Government think that it is important to have available the offence created by Clause 8(1), and why we do not think that relying on the Fraud Act is sufficient. I shall, of course, repeat and add some new arguments. There is a long list of similar offences to that set out in subsection (1), when Parliament has decided that in particular contexts it should be an offence knowingly to make a false or misleading statement. These offences apply in circumstances where a duty of complete honesty is expected. So, for example, there are offences, less serious than full scale fraud but culpable none the less, of making a false statement in relation to applications for driving licences and passports; and in an electoral context of donations to political parties.

The example closest to that of MPs is the Local Government and Housing Act 1989, which makes it an offence knowingly or recklessly to provide information in respect of pecuniary interests which the councillor knows to be false or misleading. It is not unusual in criminal law to have a hierarchy of criminal offences; for example, if one person assaults another, that is potentially criminal, but whether a prosecution is brought and, if so, for what, will depend on what can be proved in relation to the seriousness of the injury and the intention of the attacker. There is a hierarchy of offences, depending on the intention of the attacker and the injury caused for assault occasioning actual bodily harm or grievous bodily harm to manslaughter or murder. Someone charged with GBH could inevitably have been charged with assault, but that does not mean that no one will ever be charged with GBH or that it is not right to criminalise less culpable behaviour.

I agree with my noble friend Lord Campbell-Savours that the Bill sends out a very clear message, not just to members of the public but to Members of the other place. That is an important precept of the Bill. The new offence is not a soft option. Creating an offence specifically in respect to providing false information in an allowances claim makes it apparent to Members of the other place and the general public that we expect a duty of candour from our elected representatives on this matter. It is a backstop should this duty be flouted. I go back to the argument in the earlier debate about dishonesty. It is a high hurdle for the prosecution to mount; it is something in addition to knowledge and intention and requires that the prosecution proves that, first, the person has behaved dishonestly according to the ordinary standards of reasonable and honest people and, secondly, that the defendant realises that reasonable and honest people would regard what he or she did as dishonest. There is a big distinction between dishonesty and what is cited in respect of the new offence.

I hope that the success of creating a new criminal offence and the success of the Bill will be judged not by criminal convictions but by honourable Members in the other place changing the way in which they act and that no prosecutions will be made.

Would the Minister not agree, especially in respect of what she has said about the public’s view about behaviour of Members of Parliament—and as the noble Lord, Lord Campbell-Savours, has also said—that this provision will not reinforce that message until and unless IPSA, when it makes its report about Members’ allowances, does so in such a way that those allowances will no longer contain the type of expenses that are large and bizarre or the ones that are small and petty, which have infuriated the public much more than anything else, and which will not be put right by anything we have done in this Bill or in the near future until that takes place?

The noble Baroness makes an extremely important point. Of course the new system of allowances is one of the key issues that will change behaviour and public perceptions. We believe that is one of the pieces of the jigsaw; the Bill and the offence we are currently discussing is another key part of it.

I return to the previous argument about examples. In very general terms, the type of cases where dishonesty might not be proved includes where someone intends to repay the expenses later or where they know the facts and the claim are false, but think that they are entitled to the money for some other reason.

I cannot call Amendments 76C and 77 for reason of pre-emption.

Amendment 77ZB; the noble Lord, Lord Tyler.

Not moved.

I think that the last amendment we debated was also in the name of the Leader of the House, so it should be given effect to—subsection (5) should go.

I anticipated that the noble Baroness would herself be moving that amendment. I apologise to the Committee if I did not give her the opportunity to do so.

I will re-call the amendment. Amendment 77ZB?

Amendment 77ZB

This is the appropriate place to talk about the clause, as amended, that we are now considering. Earlier in the debate it was not amended, although this Motion was grouped with the amendments. It is now a different Clause 8 from the clause with which we started the debate.

I want to raise two points. First, if you have a generalised offence and you have a particular offence that falls within that general offence, there is at least an argument that when this is done by Parliament it creates the second offence for the purpose of carving out that particular area from the major offence. Otherwise, what is the point if the one covers the other? Therefore, there is at least a risk that if this provision is carried into the law there will be an argument to say that the general offences do not apply to Members of Parliament. I do not say that it would necessarily be successful, but I think that there is a very good chance that it would. Obviously, the discussion we have here would be open under the law as it now stands to be looked at by the court in deciding that question.

My second point is this. I want noble Lords to assume that a Member of the House of Commons makes a claim under the MPs’ allowances scheme. That is, he or she is claiming money. He provides information—he is not going under a particular head or anything—that is supposed to be factual, which he knows to be false or misleading in a material respect. Can you imagine—I ask rhetorically—that being honest? I find it extremely difficult; in fact I find it impossible to envisage that a person can make a claim for money under the allowances scheme providing what he or she alleges to be fact knowing that what he or she alleges to be fact is either false or misleading—and it is for the purposes of the claim. In other words, to advance the claim he provides information that he knows to be false or misleading. It is not an absolute offence in the sense that if it is false or misleading he is liable: he has to know it is false or misleading. If he does that, can anybody suggest that it could be regarded as honest? The standards of honesty in this country must have fallen very far if that is to be allowed as honest.

I am as certain as I can be that this offence is covered under the general law of the Theft Act or the Fraud Act. Therefore, I think there is a very severe risk, at the least, that this would be regarded as carved out and therefore providing a very much lower maximum sentence for Members of Parliament than in the generalised law. If the Government think that is a good idea, I find it difficult to accept that.

I can understand well the point the noble Lord, Lord Campbell-Savours, makes about making sure that people making claims understand the seriousness of it. I suppose one way of doing that is by ensuring that the claim form that you have to fill up states the risk of criminal prosecution in the event of making false or misleading statements in the claim form. I think that it is going a little bit far to put in a new offence for that purpose to signal to MPs that this is a dangerous business from the point of view of prosecution, particularly when it carries the risk that it would exclude Members of Parliament from the generalised scheme. So I find it very difficult. I know the position that the Leader of the House has taken up, and, as I said earlier, I very much respect all she has done to help us as a House to carry out our work of reconsidering the Bill in a very short time. I think they have done that extremely well, but I really cannot see justification for this particular provision. Therefore, for my part, I would like to see Clause 8 not stand part of the Bill.

I, too, would like to express concern about the message that is sent to the public. I greatly agree with my noble friend Lord Campbell-Savours that this is really about driving the message home to Members of Parliament, but I am afraid that the message to the public will be rather different.

One of the concerns that I have heard repeatedly expressed by the public when I speak at public meetings, as I have done over the past few weeks in discussing our democracy, is that somehow opportunities are availed to Members of Parliament that are not normally availed to the public if they are involved in dishonest behaviour. One of the examples is that if one were to in any way abuse the social security system, people are prosecuted for making claims or not drawing to the attention of the authorities how their situation has changed and so on. They say, “There seem to be different rules for those in Parliament than there are for the rest of us. If we were found not to pay our capital gains tax on the sale of a house, we would not be able to just write a cheque willy-nilly, there is the real risk that we would be prosecuted”. There is a sense among members of the public that there are different rules for Members of Parliament than there are for the general public.

My concern about the creation of an offence specific to Members of Parliament is that it seems to be that, for the very same kind of behaviour that the public would be involved in, Members of Parliament are going to have a much more limited response by way of sentencing. We should be clear about the nature of messages. I agree with my noble friend Lord Campbell-Savours that we want a clear message to Members of Parliament that dishonesty will not accepted. You can do that in a number of different ways, and one was mentioned by the noble and learned Lord, Lord Mackay: by having it firmly on the forms that are filled in that any dishonest claim will be dealt with by existing laws. However, I am concerned that this sends a message to the public that laws will be introduced, specific to Members of Parliament, which carry a much lesser sentence and which will be dealt with in a different way.

There is an important distinction to be made between a perfectly dotty expenses system from which people can legally claim, albeit with a difference of morality, and doing things like—I am not quite sure if I am in order here—claiming interest on a mortgage that does not exist. Claiming interest on a mortgage that does not exist strikes me as falling exactly into the category to which my noble and learned friend Lord Mackay of Clashfern referred. We should and we must be careful to differentiate between a rotten expenses system that is open to serious difficulties and the criminal law. That is my only point.

I should speak on this briefly because I am one of the Members who gave notice of their intention to oppose the Question that Clause 8 stand part. The noble and learned Lord, Lord Mackay, and the noble Baroness, Lady Kennedy of The Shaws, have made interesting and important points. I will certainly be interested to hear how the noble Baroness the Leader of the House replies to them.

Nevertheless, I simultaneously recognise that the Government have made considerable concessions on this. Certainly, if Clause 8 was in its original form I would have been absolutely committed to opposing it. I find the situation really quite different now. It is important, as I understand it, that the Bill should be enacted as soon as possible. I am therefore anxious to hear what the noble Baroness says in response to those who have spoken.

On what the noble Baroness, Lady Kennedy, said, while I quite recognise that Clause 8(1) produces a crime that is a good deal less effective than the general law on fraud in terms of the maximum sentence, the fact that a sentence is being introduced might in itself make a good impression on the public, most of whom will not be in a position to consider whether this is also a fraudulent offence that would have a much higher penalty, so I am not particularly worried by that problem.

What the noble Lord, Lord Goodhart, has said is very interesting. I have already spoken once on the clause stand part, but the way in which the debate has moved on has raised in me another thought. I agree completely that the Clause 8 that we now have is a vast improvement on the Clause 8 that we had earlier this morning—and thank goodness for that. However, there now seem to be two clear views on the offence that we have created. The first is that this is tough action by the Government, dealing with these terrible Members of Parliament who have misbehaved, and they need this offence with a new imprisonable penalty. Then noble Lords such as the noble Baroness, Lady Kennedy, say that this is completely unnecessary and that, far from looking tough, it could actually look rather weak by allowing MPs to be prosecuted with a lesser penalty. The noble Lord, Lord Goodhart, gave the impression that he favoured the Government’s view rather than that of the noble Baroness, Lady Kennedy. I have no idea how the public will view this. I expect that they will be as mystified as I am, so I am looking forward to hearing what the noble Baroness has to say. Perhaps she might tell us: is this all simply a matter of presentation to the general public?

I reinforce what my noble friend has just said, because that is my concern both about the Bill and this clause. The noble Baroness seems to think that the Bill is being introduced to meet public concern and that that is justification for it. It is not addressing public concern; if it was, it would be an abolition of MPs’ allowances Bill. That is the real issue.

My fear is that this clause will reinforce rather than ameliorate public concern, for the reasons that have been given in terms of the legal offence, about which a compelling case has been made by my noble and learned friend Lord Mackay of Clashfern. Therefore, what will be left is the political dimension, in terms of what is seen as a lesser offence. Indeed, there is also the issue of commencement. While the Government will claim that the offence has been created, it will not actually have been commenced. My fear about this clause is part of my wider concern about why the Bill is being brought forward.

On the last point of the noble Lord, Lord Norton of Louth, one of the key purposes of the Bill is to address the demonstrable public concern of the past few months and to improve the confidence and trust of the public in our system of governance. However, it is also a question of improving that very system of governance. The Bill improves our system of governance by having in place a better system for the payment of allowances to Members of Parliament.

The main thrust of this debate is whether or not the clause will engender a sense among the public that there are rules for them and different rules for us. MPs, as I have made clear and as noble Lords recognise, can still be prosecuted under the Fraud Act 2006 if they are clearly acting dishonestly. In that respect, MPs and members of the public are exactly the same. I, of course, agree with the noble Lord, Lord Goodhart, that this is a strong Bill, not a weak Bill. We are acting from a position of strength because we are introducing a new offence for MPs which should ensure that, if there is wrongdoing, it will be properly prosecuted.

I have tried to be helpful to my noble friend throughout the Bill but I want to say something now which I hope does not worry her. I think that MPs will not understand the distinction on this issue of dishonesty. It is worrying me, the more I think about it. I want the Bill to go through with a criminal offence, but it must be clear to MPs exactly where they stand. We need a little more reflection on this matter before Report.

Clarity is of the essence whenever offences are being discussed. A person must know whether or not what they are doing is against the law. Like the noble and learned Lord, Lord Mackay, I do not think that standards have slipped so far that people do not know when they are being dishonest. I hear what my noble friend says, but I think that it is extremely important that we accept this clause today. It is an integral and important part of the Bill. I agree that perhaps more clarity is needed but I am not sure that such clarity is needed in the Bill; perhaps it should be given in guidance. I hear what the noble and learned Lord and others have said about what should appear on claim forms. I am not sure that that would be the right way forward; I would need to reflect on that, but perhaps some guidance is needed. I can certainly come back to noble Lords on Report with a more informed view about the need for guidance.

Is the guidance likely to draw the Member’s attention to the fact that, if a knowingly false claim is made, the Member would be liable to prosecution? Would that prosecution liability come under the Fraud Act or would it come under this Bill? If so, what is difference between the two and how would the guidance make that distinction?

That has been the very crux of our arguments today. What I am suggesting is that I will go away and consider the possibility of guidance and what that guidance will say. I have undertaken to come back to noble Lords on that.

Listening to the speech of my noble and learned friend Lord Mackay of Clashfern, I thought that he demolished the Bill on an important legal point about changing the law. The noble Baroness the Leader of the House has not answered my noble and learned friend’s point at all. It seems important that she should.

I have not yet concluded what I was saying. I will come back to answer the points made by the noble and learned Lord, for whom I have the utmost respect.

I have to agree with the point that was made earlier, because I am advised—I believe that I have made it clear—that it is well precedented to create a hierarchy of offences, with additional elements leading to more serious offences. I enumerated some examples earlier. The Fraud Act, based on a Law Commission report, deliberately added dishonesty to knowingly making a false statement. In 2006, the Law Commission and Parliament both thought that there was a difference. Section 17 of the Theft Act was also referred to. Providing false information under an allowances claim could potentially amount to false accounting, provided that the additional elements of the offence were made out. False accounting requires destroying or falsifying an account or document required for an accounting purpose, or dishonesty with a view to gain for oneself or another. The Government continue to believe that it is more appropriate for there to be a choice of potential offences, depending on the evidence and the seriousness of the breach. We also continue to believe that it is important that the option of prosecuting for the lesser offence remains available.

Before we proceed, I have one or two questions for clarification. Would I be right that, if your Lordships voted that Clause 8 should not stand part, the Theft and Fraud Acts would still be Acts of Parliament and would therefore apply? I would like that answer. As your Lordships know, I felt that we should never have hurried our deliberations on the Bill; I managed to annoy all my noble friends on the Front Bench not only by arguing that but by voting for it. However, we committed ourselves—with me dissenting—to getting the Bill through by Tuesday. I will not dally on why or how we committed to it, but we certainly did it. It seems to me that we are honour bound to go through with that since it is what we decided. I therefore ask, on procedure: if we decided that Clause 8 should not stand part today, is it within our rules that it could stand part again on Report, or would it be gone for ever with no way of getting it back? I have forgotten the rules, which is why I ask the question. Equally, if we let it stand part today, can we un-stand part it next week? I think that we can do it that way round. It would help us all if we knew exactly what we were allowed to do procedurally. Much as I was totally opposed to this, we must not forget that, as a matter of your Lordships’ honour, we really have to deliver the Bill by Tuesday.

If this clause, as it stands and has been amended, does not stand part, that is fair enough. The Government could, I think, produce a totally new clause on Report, or even at Third Reading, although it is not often done. That would have to include this new offence. It would have to be in a form that complied with the requirements of any legislation and was totally clear. That is something for the future; I am not suggesting that it should be done.

I have great sympathy with the noble Baroness the Leader of the House because this is a difficult area of law. However, we are not here creating an absolute offence whereby, if an MP writes something that is at all wrong on a claim form, they can be prosecuted. We accept that absolute offences have to be very rare and that, therefore, there would have to be an intention to defraud and make a claim wrongly. My noble friend refers to the requirement for dishonesty in fraud, which the Law Commission introduced. You can imagine a situation where a Member of Parliament lives at No. 19 in a block of flats and claims for the rent on that flat. He then moves across the hall into flat 20 and does not bother to notify anybody because the rent is exactly the same. There is no dishonesty but he is making a false statement. Rather than going through any complex reorganising or rearranging with the Fees Office, he just makes the same claim. The absence of dishonesty would mean that he would have a defence, but so he would in fraud. It is not part of the hierarchy. I am saying that it is important that Members of Parliament know exactly what is being criminalised. Is it different from fraud and, if so, how? That clarity is what people are urging.

The crux of our arguments so far on Clause 8 is really rather simple. Is it right that MPs should be judged by the law of the land as it stands if they have committed a clear offence, or should MPs have a harsher regime than already exists in law to try to prevent such dishonesty? If that is right, does it achieve anything and is it fair?

When the noble Baroness was asked earlier, she said that an offence committed under the Fraud Act had to be shown to be clearly dishonest. I assume that the words “clearly dishonest” also apply to Clause 8. Is it right that you can be half-dishonest under Clause 8? How does that help us at all? It does not help me in any way. You cannot be half-dishonest.

I rise not at all on the substantive issue—like others, I have just parachuted in occasionally—but on a procedural point. My understanding of the procedure—I stand to be corrected—is that only in Committee can you oppose that the clause stand part of the Bill and take it out. I understand that that cannot be done on Report. However, I have been in situations in which we have kept in a clause about which there was some concern but then, on Report, it was decided with the agreement of the House to revert temporarily to Committee to take out a clause before the Bill reverted to Report stage, thus allowing a breathing space to consider the appropriate route.

I am never irritated by my noble friend Lord Peston; I am a very patient person. It is absolutely clear that MPs are now covered by the Fraud Act. If this Bill becomes an Act and Clause 8(1) remains in it—or even if it does not—MPs will continue to be covered by the Fraud Act. We are discussing today a new offence under Clause 8(1). Perhaps one could call it a lesser offence because the threshold pertaining to dishonesty is lower.

The MP is less dishonest.

He is not less dishonest; there is a lower burden of proof, as I understand it. Under Clause 8(1), you need to have made a statement knowing it to be false or misleading. Dishonesty does not also have to be proved. That is why this offence is different from the offence in the Fraud Act.

I hear the understandable demands for clarity from around the Committee. I have already undertaken to come back to the House on Report and to try to provide guidance, not only for this House but for honourable Members in the House of Commons, on the new offence and thresholds.

My noble friend asked what would happen if we voted against Clause 8 standing part of the Bill today. If we voted against it, the clause would disappear. If we allowed the clause to remain today, this issue could be raised again on Report with the aid of an imaginative amendment.

I cannot promise that the argument on the proposed new clauses in Amendments 78 and 79 will be any less complex than the one that we have just had. Nevertheless, they give rise to a hugely important point. Originally, these two proposed new clauses were grouped with Amendment 1 because they relate to the Bill of Rights and the privileges of Parliament under it. I asked that they should be degrouped and we are now taking them separately because, as will become apparent, I am raising a very different issue from those raised by my noble friend on the Front Bench and by the noble Baroness when Amendment 1 was accepted.

At this point, I add only that the other amendments that were grouped with Amendment 1 included four which I tabled, and I look forward to hearing the outcome of the noble Baroness’s consideration of the issue that I raised in them: whether the different stages of the process by IPSA and the commission would be regarded as proceedings in Parliament.

By itself, Amendment 1 will not offer complete protection against scrutiny by the courts because it will not offer protection against potential litigation in the European Court of Justice and the European Court of Human Rights. I will explain why because it is very important that this should be understood. If the Government do not accept that the process of investigation by the commissioner should be regarded as proceedings in Parliament, it will remain justiciable. However, under Amendment 1, which the Committee has already accepted, it could not be justiciable in the United Kingdom courts.

Obviously the noble Lord was not here for the very beginning of the debate and so may not have been here to hear my noble friend’s statement that the Attorney-General will be asked whether she can make a statement on these matters at Third Reading. I think the noble Lord should be aware of that during his contribution.

I am grateful to the noble Lord because I was not aware of that. That would be extremely helpful, but I think my noble friend Lord Higgins asked that the Attorney-General say to what extent there remain general constitutional problems in this Bill or whether they have been dealt with.

I come back to the question whether Amendment 1 refers to the United Kingdom courts. We welcomed that amendment—I think the Government’s decision to accept it was applauded in all parts of the House—but it does not cover protection against proceedings in the European Court of Justice and the European Court of Human Rights. I emphasise that this is not an anti-EU point. Noble Lords who were in the House of Commons at the time may remember my noble and learned friend Lord Howe of Aberavon taking the European Communities Bill through the House in 1972. I was Financial Secretary and in charge of the money resolution, on which we had a full day, and it is interesting to look back at that in the light of history. I have never adopted an anti-EU stance.

The proposed new clauses aim to extend the protection against judicial attack on the free speech of Members of Parliament in proceedings in Parliament not only in the UK courts but in the European Court of Justice and the European Court of Human Rights. Noble Lords who were there may well remember that last Tuesday I postulated in a debate on another amendment that a disgruntled person, perhaps even a Member of Parliament, may not be satisfied that an investigation had been carried out properly because an otherwise incriminating or vindicating speech by the accused in Parliament was privileged and therefore not available to the commissioner or the police as evidence. The noble Lord, Lord Lester of Herne Hill, then drew our attention to the Hamilton case.

Such a disgruntled person, unable of course to raise the matter in the courts here, could then turn to the European Court of Justice or the human rights courts and pursue his case there. I should turn to the European Union treaties to explain how that might be done and what the impact would be. Article 234 of the present version of the treaties provides that:

“The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty”.

Once the treaty includes the fundamental charter of human rights, which includes the Article 11 provision for free speech, there seems to be no doubt—perhaps I should put this in the interrogative and ask: is there any doubt that this could include a power to construe matters that are currently protected by Article IX of the Bill of Rights?

Moreover, while Amendment 1 would prevent a domestic court from construing Article IX, such a court or tribunal would be obliged to refer the matter to the European Court of Justice if an application were made for it to do so. That is the impact of Article 234, which includes the provision:

“Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is a judicial remedy under national law, that court tribunal shall”—

I emphasise “shall”—

“bring the matter before the Court of Justice”.

In fact, this provision places an obligation on any such tribunal to refer the matter to the European Court of Justice, if that court asks for it. This would include IPSA, the commissioner and even the Committee on Standards and Privileges in another place. I think that this is the effect of the treaties, but I should be grateful if the Government could confirm whether that is right. I have had a careful look at the treaties and taken advice, and I think that that is what they provide for.

I want to refer in passing to the opinion of the noble and learned Baroness the Attorney-General given to the right honourable Harriet Harman, Leader of the House of Commons, on 3 April in the wake of the affair involving my honourable friend Damian Green. Her letter and the report were circulated also to, among others, my right honourable friend Sir George Young, the chairman of the Committee on Standards and Privileges. They were placed in the Library of the House of Commons, but I am not sure whether they were placed in the Library of this House.

Under the heading “Admissibility of evidence and Parliamentary privilege”, the noble and learned Baroness said, at paragraph 3:

“It is clear that the determination of whether material is inadmissible as evidence in a criminal trial by virtue of Article IX is a matter for the court. Article IX is statute law and its interpretation, as with any other statute, is a matter for the courts. It is a question of law both whether particular material constitutes ‘proceedings in Parliament’ and whether the use that the material is being put to amounts to the impeaching or questioning of such proceedings”.

That is an admirably clear statement of the law. The noble and learned Baroness, who is an extremely able lawyer, got that absolutely right. However, it is incomplete.

Perfectly reasonably, the noble and learned Baroness was not addressing the issue of European law—I do not think for a moment that anyone suggested that my honourable friend Damian Green was to be referred to the European Court. That statement simply did not refer to it. However, the passage that I quoted from Article 234 of the treaties makes it abundantly clear that the article gives jurisdiction to the European Court of Justice. Moreover, if there is an application to the domestic court in this country, that court must refer such a question to the European Court of Justice.

That is what seems to be the position, but I ask the question: am I right in saying that that is the result of the law? Am I also right—as I suspect I am—that Amendment 1, which we passed on Tuesday, does not prevent that? It does not appear to stop it. That amendment referred only to the domestic courts. As I see it, there is nothing in that amendment that would stop the Strasbourg court deciding that Article IX—I just give this as an example—should be set aside in the interests of what that court might see as its wider duty to ensure due process.

Therefore, if the Bill is to be protected from the courts by virtue of Article IX, which I believe was the intention of this House when we and the Government accepted Amendment 1, it needs to be supplemented by the two new clauses that I have tabled in Amendments 78 and 79. In my view, both new clauses are essential if this is going to work—indeed they work in harness.

Amendment 78 exercises Parliament’s sovereign right to limit the application of the European Communities Act and the European Court of Human Rights. It may be argued that this is theoretically capable of being struck down by either court. Therefore, the new declaration in clause in Amendment 79 is essential to make clear that Parliament is legislating Amendment 78 in its capacity as a sovereign body. It has been part of my understanding of our constitutional position that the UK Parliament is sovereign. As Lord Justice Cooke said 500 years ago or whenever, it can do anything it likes, except turn a man into a woman.

It has repeatedly been said in the courts—noble Lords may well remember the recent case of the “metric martyrs”, heard by Lord Justice Laws—that the supremacy of EU law applies only through the European Communities Act 1972, which is available to this Parliament to repeal or amend. I am not suggesting for one moment that either should happen. What I am suggesting is that there are essential issues which need to be protected, and I shall quote in a moment from the government White Paper. The only reason one might argue that we should not do that is if one believes that parliamentary sovereignty is a dead duck. I most emphatically do not believe that.

When we joined the Community in 1973—I took the money resolution through another place at that time—the then Government’s White Paper of 1971, for which my noble and learned friend Lord Howe had a major responsibility, made it abundantly clear that the treaties established a community of great nations,

“each with its own personality and traditions”.

It continued:

“Like any other treaty, the Treaty of Rome commits its signatories to support agreed aims”.

Furthermore, the White Paper stated:

“There is no question of any erosion of essential national sovereignty”.

An earlier sentence states:

“On a question where a Government considers that vital national interests”—

I stress those words—

“are involved, it is established that the decision should be unanimous”.

There is no reference at that stage to the European Court of Justice. However, Article IX of the Bill of Rights would be regarded as a vital national interest.

I will make one last point. Neither of these new clauses would put this country in conflict with EC law, or with the ECHR. That would occur only if there were to be a judgment that sought to set aside the two new provisions passed into law by this Parliament. One must ask: would the European Court of Justice or the ECHR ever do that in relation to Article IX? I do not believe that there is the remotest possibility of that happening, because it would call into question the whole relationship between those courts and the member countries.

It behoves this Parliament now to make the position abundantly clear. If we fail to make it explicit in the Bill, in respect of which matters of privilege have been questioned and widely debated, it would surely invite doubt that Parliament intends to defend this principle. When we added Amendment 1 to the Bill—it will become Clause 1 of the Bill when it is reprinted—the intention was to preserve the rights of Parliament established under Article IX of the Bill of Rights from interference by the courts. If that is right, we must now make sure that those rights will not be overridden by the European Court of Justice or the European Court of Human Rights simply because we have omitted any reference to them in the Bill. The proposed new clauses are essential if the main purpose of Amendment 1 is to be achieved. I beg to move.

The House will be grateful to my noble friend for moving these amendments in the context of the European situation. I intervene because, when we discussed Amendment 1, which was accepted by the House, I made the point that, although it would provide a safety net, it would not be 100 per cent secure, and that it was therefore important that we should, as we went along, make sure that any other infringements on parliamentary privilege would be dealt with. My noble friend’s amendment seeks to deal with one such possible loophole.

We have moved on since then. The Leader of the House has been immensely helpful, as we have gone along, in sending out “Dear Colleague” letters. These do not appear in the Official Report. It may be that, if the matters come before the courts, the doctrine of Pepper v Hart that states that the courts can take into account the proceedings of the House will not apply, so we will not be able to quote the noble Baroness’s letter unless we read it into the record. When we discussed the matter earlier—I think that my noble friend was overoptimistic on this point—we thought that the position was protected, except perhaps in the European context. This appears from the noble Baroness’s letter—I apologise for reading it out in extenso for the reason that I mentioned—not to be the case. The letter states:

“I should make clear that the Government considers that the new IPSA and the new statutory Commissioner for Parliamentary Investigations will be in a different position concerning privilege to the non-statutory Standards Commissioner. In particular, the Government does not consider that the functions of the Commissioner established by this Bill will be protected by parliamentary privilege”.

I confess that I had assumed that the operation of the new commissioner, and the operation generally, was a proceeding of Parliament. What the commissioner does is something that might reasonably, on any definition, be regarded as a proceeding in Parliament. The noble Baroness seems to be saying that the commissioner is not subject to privilege in the way that we expected.

I will intervene briefly again. Last week, my noble friend undertook to provide us with additional information on the distinction between the codes, because there was confusion. I put it to my noble friend that there is still confusion on the issue of who is a commissioner, and on the role of the commissioner. There are different commissioners. The confusion extends equally to the House of Commons. Perhaps I might suggest that my noble friend circulates a paper dealing with this matter prior to a possible statement from the Attorney-General on Report or at Third Reading. It is important, prior to any such statement, that a clear distinction is set out.

As my noble friend Lord Jenkin has drawn my name into the discussion, I ought to make a modest contribution. The relationship in 1971-72 between the law of this country and the European law to which we were attaching ourselves was quite different from that which exists today. I hesitate to confirm the central meaning of the passage that my noble friend quoted. My impression is that it referred to what subsequently became the right of veto in Council meetings rather than in the courts. However, a lot has happened since then. The European Court has given judgments that have been translated into the law of this country, as was required. One cannot speculate about how this issue might find its way before either of the European Courts, still less how they would be likely to decide it. Therefore, I am by no means convinced of the need for a pre-emptive provision of this kind, because there are many other sets of provisions which might well have sought to include such a thing.

I say no more than that, other than to express the hope of hearing from the noble and learned Baroness the Attorney-General, whose learning is far more established and credible than anything that might attach to me—it is some 37 years since I wore a wig in anger. I offer no advice as to the wisdom or unwisdom of what my noble friend has said, except to say that I look forward to hearing with interest anything that the Attorney-General might have to say. I do not think that I can say anything more or less useful than that.

I shall be brief. There are two fundamental points. The first is that, as soon as one took up the first Marshalled List, it was apparent that a gap had been left by Amendment 1. That gap, I thought and still think, was closed by the amendments of my noble friend, which I supported then and still do.

Secondly, we are concerned with parliamentary privilege and, equally, with the supremacy of Parliament and the question of whether what has been acknowledged by our judiciary, who decline to enter into deciding issues concerned with parliamentary privilege, is in effect given statutory provision by these amendments. However, that leaves the further question of the position in the European Court of Justice, and it is right that that should be met as a problem. It should be dealt with in the Bill and should certainly be considered by the Government. We have and retain residual sovereignty, and the question is whether we can and should assert in the Bill that in this context the European Court of Justice would assuredly have no jurisdiction.

For those reasons, I support the amendments. Without them, the situation is wholly unclear, and one cannot be certain what the position would be other than in our courts, which, as the noble and learned Lord, Lord Woolf, explained, accept parliamentary privilege and the supremacy of Parliament. The practice of the courts is to acknowledge that and to decline to adjudicate. We must take steps to seek to ensure that that would be carried forward in the European Court of Justice. Certain other reservations about the European Court of Justice were shared by Lord Kingsland.

On Tuesday on Amendment 1, the noble Baroness, on behalf of the Government, readily, rightly and wisely accepted the amendment that I proposed concerning Article IX, yet these two amendments, which I know are ungrouped, raise important questions pertinent to that. I shall not for a moment hide from anyone that I am not qualified to take a view of the intricacies of the workings of the European Communities Act 1972 and the ECHR and its interaction with Article IX, but it is important that the Government take these amendments seriously because of the very serious issues that they raise.

Earlier, the noble Baroness was kind enough to say that she would be speaking to her noble and learned friend the Attorney-General with a view to asking her to come to either the Report stage or Third Reading. I do not think that it matters whether she comes at the end of Report or the beginning of Third Reading. I do not yet know what the noble Baroness is going to say in response to this amendment but I think that it would be very useful to get some kind of authoritative view from the Attorney-General—either by letter or by coming to this House—so that we have a clearer understanding of the interaction of this important new law and the workings of the courts in this country or potentially in Europe. I cannot see any reason why we should not be able to get clarity and certainty on this issue, and I very much look forward to hearing what the noble Baroness has to say.

Anything that I say about this is subject to correction by the noble and learned Baroness the Attorney-General, if she is able to give her views to the House. First, I think that it has been deliberately set up in the Bill that the commissioner and IPSA—I shall call it IPSA for the time being—are outside Parliament. Therefore, proceedings of the commissioner as a commissioner and of IPSA are not covered by the phrase “proceedings in Parliament”, which is fundamental to Article IX of the Bill of Rights. Assuming that there is any important action that either the commissioner or IPSA can take, that will be subject to judicial review.

As a result of the amendments that have been made, the only positive action which IPSA or the commissioner can take independently of Parliament and which has effect is that IPSA is to make rules about the nature of the procedure to be followed in relation to complaints. So long as these rules have nothing to do with the proceedings in Parliament as a result of the commissioner’s report to the Committee on Standards and Privileges in the House of Commons, they will be outside the protection of Article IX but only in so far as they have a positive effect. As I said, I think that these are the only procedures outside Parliament that will have effect immediately. The other decisions of the commissioner and IPSA are of no effect of themselves, except in relation to the proceedings in Parliament as a result of the commissioner’s or IPSA’s proceedings outside Parliament.

There is only one point in relation to this that is possibly worthy of mention and that concerns the procedures relating to publication of the commissioner’s report. If these rules take effect before the commissioner’s report reaches the Committee on Standards and Privileges, then I do not think that they will be protected, and therefore there may be a slight question there.

I hope that I may ask the noble Baroness the Leader of the House for specific guidance for greater clarity. The noble Lord, Lord Higgins, has drawn attention to her very helpful letter. All Members of the Committee have benefited from the very considerable detail of that letter. However, it raises questions in my mind as a layman; for example, in relation to the paragraph to which the noble Lord, Lord Higgins, referred. The paragraph states that,

“the Government considers that the IPSA and the Commissioner will be subject to judicial review on ordinary administrative and human rights law principles. This, however, does not pose a risk to privileged matters as the IPSA and the Commissioner will not be concerned with such matters”.

However, the dividing line between the administrative work of IPSA and the commissioner and what follows from that activity seems to be rather muddied. For example, the MPs’ code of conduct relating to financial interests, for which we have now provided in Clause 5, will, once it is approved by the House of Commons, presumably have full protection of parliamentary privilege. But up to that point, presumably the draft will still fall within the possible purview of judicial review and, indeed, other challenge of the nature that the noble Lords, Lord Higgins and Lord Jenkin, have referred to.

At the beginning of my speech I said that there were four amendments standing in my name that were grouped with Amendment 1 which singled out parts of the new structure, including IPSA and the commissioner, and some of the processes; for instance, investigation. Those amendments suggested that they should be regarded as proceedings in Parliament for the purposes of Article IX. In response to those amendments, the noble Baroness undertook to take the matter away and to consider whether this should happen. It was originally part of the proposal of the Government—as the right honourable Jack Straw made clear in another place when similar amendments were debated—that that should be so, that they should be protected by privilege in Parliament. In the end, for the reasons which the noble Baroness gave on Tuesday, it was decided not to do that, but it is still an open question. I wait to hear what the noble Baroness will say about it. It is not concluded that IPSA and the commissioner would not be within the privilege of Parliament.

I am very grateful to the noble Lord, Lord Jenkin. It made me feel slightly less ignorant that he, too, has identified a real problem arising from the letter that the noble Baroness sent us because it seems to re-open this issue and leave it in doubt. Therefore, when she responds to this debate, I should be very grateful if the noble Baroness could put on the record precisely what the Government’s thinking is on this because it seems to be somewhat confused.

After that discussion I do not feel at all confused. I am extremely grateful to all noble Lords who have participated, and especially for the clarification given by the noble and learned Lord, Lord Mackay, and for the intervention by the noble and learned Lord, Lord Howe.

I say to the noble Lord, Lord Strathclyde, that, of course, the Government take these amendments extremely seriously. First, I can see no way in which the provisions of the European Communities Act would be relevant to this Bill. The Bill deals with the conduct of Members of the House of Commons and the arrangements which must be put in place to restore public confidence in the way we are regulated. The provisions of the ECHR and the Human Rights Act are, of course, relevant as the provisions of the Bill must be compatible with the first and the bodies set up by the Bill will be covered by the second. However, none of these considerations is, I would suggest, relevant to the question of the status of the Bill of Rights 1689. At introduction, the Bill did include provision that would have allowed proceedings in Parliament to be adduced in evidence in court. There was much debate in the other place about these measures and they no longer form part of the Bill.

The Government believe that parliamentary privilege plays an important role in facilitating free and honest debate in Parliament and we would not wish to undermine this. We do not accept that any other aspects of the Bill undermine parliamentary privilege and it is certainly not our intention to do this. But we have also been listening to noble Lords about the concerns raised about the relationship between this new body and Parliament. We have accepted that the IPSA should not have a power of direction or recommendation, but rather the commissioner should be able to refer his or her findings direct to the Committee on Standards and Privileges.

Furthermore, as noble Lords have stated, on Tuesday we accepted that a new clause should be added to the Bill—it has been added—which provides that:

“Nothing in this Act shall be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689”.

Given that that amendment was made, we can see absolutely no need for further amendments of that character to be made to the Bill.

The noble Lord, Lord Jenkin, asked about referral by UK courts to the ECJ and the ECHR. A UK court must refer questions of the interpretation of EU law to the ECJ when it considers it necessary, but this is entirely distinct from questions relating to Article IX of the Bill of Rights. A UK court, of course, will not be considering issues of the proceedings of Parliament because of Article IX, and it is clearly not a question of EU law.

The wider question of whether the Bill of Rights prevents any international court looking at proceedings in Parliament is a separate issue. MPs have human rights too and could conceivably ask Strasbourg to enforce them if the parliamentary disciplinary mechanisms were deeply unfair. However, they are not; they are fair. Therefore, we deem the amendment necessary. I broadly agree with the eloquent and learned explanation of the noble and learned Lord, Lord Mackay, concerning the relationship between our courts, the ECJ and Strasbourg. I agree with his conclusion that the amendments are not necessary.

I am grateful for the repeated suggestion from my noble friend Lord Campbell-Savours about a note on the difference between the two codes. We agreed that we would provide such a note to Members of the House, which I have not done yet, but I will do so before Report.

The commissioner referred to in the Bill is the Commissioner for Parliamentary Investigations. He will investigate matters on allowances and the register of interests, and will refer findings to the Commons Standards and Privileges Committee. An existing non-statutory commissioner for standards will report to that committee under current Standing Orders of the House. He investigates breaches of the current Commons code of standards. I think that I dealt with the issue pertaining to commissioners in the letter which I circulated earlier, but I undertake to circulate a note on the code.

In relation to IPSA and privilege, the noble and learned Lord, Lord Mackay, again clarified the position in many ways. To the noble Lord, Lord Higgins, I would say that the current position on registration of financial interests and payment of allowances is that they are not regarded as proceedings of Parliament and are therefore not covered by Article IX of the Bill of Rights. That will not change under the arrangements of this Bill. If higher authority is needed for that position, I refer noble Lords to the evidence which the Clerk of the House and Speaker’s Counsel gave to the Justice Committee.

The Government’s clear position is that it is right that IPSA and the commissioner as public bodies are subject to judicial review on ordinary administrative law principles. They are statutory public bodies. As the noble and learned Lord, Lord Mackay, said, the functions of IPSA and the commissioner in the Bill, as amended, do not relate to privilege matters. Judicial review of their functions does not pose a danger for parliamentary privilege. Parliamentary bodies mentioned in the Bill—in particular, the House of Commons Committee on Standards and Privileges—will continue to be protected by parliamentary privilege. I note the point made by the noble and learned Lord about whether the reports from IPSA are covered by privilege before they arrive in the House of Commons committee. I shall certainly look at that and come back to noble Lords on Report.

The noble Lord, Lord Tyler, I think—or maybe it was the noble Lord, Lord Jenkin; I hope noble Lords will forgive me—is right that the Government considered extending the scope of privilege at one point but concluded that the best way forward was to ensure the independence of IPSA and the commissioner, which are statutory bodies dealing with non-privileged matters. The question posed was: why should these bodies receive a form of protection which is reserved for Parliament on specific public interest grounds? It was concluded that it would be very unusual and controversial to deem the functions of IPSA and the commissioner to be proceedings in Parliament for the purposes of Article IX of the Bill of Rights. That is the Government’s position on privilege in relation to IPSA.

My noble friend Lord Campbell-Savours referred to the possible presence of the Attorney-General on Report or at the beginning of Third Reading. Obviously, this is an issue she would deal with in her presentation to the House or, if she cannot be present, in writing to the House.

Absolutely nothing that IPSA or the Commissioner for Parliamentary Investigations does can be regarded as a proceeding in Parliament. It seems very strange to have a position of Commissioner for Parliamentary Investigations which has nothing to do with proceedings in Parliament.

The commissioner will look into financial issues. He will not look into anything that pertains to the work of parliamentarians. That is the distinction. The Commissioner for Standards in Public Life, on the contrary, looks into the breaches of the code of conduct of Members of Parliament. In this Bill, the commissioner will look at the code in relation to financial interests.

I am extremely grateful to all those who took part in this short debate. I make no apology for having brought these matters before the Committee. We have had a lot of very useful advice. Like the noble Baroness, I listened to my noble and learned friend Lord Mackay with great interest and was coming to think that perhaps I should have consulted him before I moved the amendment. In reply to my noble friend Lord Higgins, I tabled these amendments before we received the useful letter from the noble Baroness explaining where the Government stood on a number of matters. They have remained on the Order Paper until today.

I am grateful to the noble Baroness who has answered the question that she agreed to take back on Tuesday about the other amendments I had tabled grouped with Amendment 1. The Government have firmly come to the conclusion that neither IPSA nor the commissioner should be within the scope of parliamentary privilege, which we will need to look at to see whether there is anything that one should raise again on Report.

I still am quite unclear as to whether Article IX and the protections which it has afforded for centuries to both Houses of Parliament and its Members could be challenged perhaps, if not in the European Court of Justice in Luxembourg, under European human rights legislation and the court in Strasbourg. I will want to take advice on that because on Tuesday we had the argument on the amendments moved by the noble Lord, Lord Lester, about making sure that MPs’ human rights would be protected. It was a long and interesting argument, which suggests that perhaps the European Court of Human Rights would be involved in these matters. But if it is involved in protecting Members of Parliament who find themselves perhaps being, as they would consider, unjustly treated, why would that not raise questions under Article IX of the Bill of Rights? I will want to look at this with advice. But, in the light of the debate and the noble Baroness’s reply, clearly it would not be right to press these matters to a Division. I therefore beg leave to withdraw the amendment.

The amendment standing in my name and that of my noble friend Lord Cope can be very much more quickly and easily dealt with. In this House, we ran into some difficulties, and I believe the same has happened on occasions in the other place, where an investigation, by whatever machinery might have been in existence at the time, gave rise to the possibility of a prosecution in the courts. The noble Baroness will remember the cases that we dealt with.

This amendment seeks to make it abundantly clear—I think that this is the intention of the Government and the House authorities—that two investigations cannot proceed in parallel. If the matter is being investigated by the police on the grounds that an offence against the law may have been committed, all that this amendment says is that, in terms of time, that takes precedence. The matters before, for instance, the Committee of Privileges or the Committee of Standards and Privileges should be suspended until those proceedings by the police and the courts have been concluded. Whatever the result of that, it is then open to the committee to resume the proceedings within the purview of the House. I believe that this is actually what is intended and the present practice, but I thought that it would be helpful to put it on the face of the Bill so that there is no doubt at all. I beg to move.

This is another area that interests me. I remember a number of cases where proceedings in committee were suspended pending actions in the courts. There is one particular thing that I want to refer to, and then I will come to a second one.

The first is a letter sent in 1994 by Mr Neil Hamilton to the chairman of the then Members’ Interests Select Committee, Sir Geoffrey Johnson-Smith, in which he argued that because he was bringing a libel action against the Guardian newspaper, he should be entitled to secure a suspension of proceedings on a complaint that was made against him by Mr Alex Carlile—currently known as Lord Carlile of Berriew. The response of the committee chairman, on the advice of the Clerk, was that the proceedings in the court on a civil libel action should have priority over proceedings in Parliament and dealing with the complaint. I very strongly objected to that at the time. The noble Lord's amendment deals with criminal actions. However, if that is to be spelt out in legislation, the issue of civil actions must equally be spelt out. It meant that for a long period of time no action could be taken in the Hamilton case.

I want now to refer to another action, in the case of Mr George Galloway. The suspension of the commissioner’s investigation into the Galloway case spanned more than one Parliament. The commissioner’s inquiry began in April 2003 and the committee’s final report was made in July 2007. In other words, a four-year delay arose out of potential proceedings—actually they were not even proceedings; the police were carrying out an inquiry and the inquiry went on over a long period. The committee noted in its report that the legal proceedings delayed completion of the commissioner’s investigation of the complaints for nearly three years.

That led, in 2007-08, to the Commons Committee on Standards and Privileges producing its eighth report, The Complaints System and the Criminal Law. I would like to place on record the report’s findings on the very matters raised by the noble Lord, Lord Jenkin. Under the heading:

“Statement agreed between the Chairman of the Committee on Standards and Privileges, the Parliamentary Commissioner for Standards and the Commissioner of Police of the Metropolis following their meeting on 3 April 2008”,

it later states:

“The Chairman reiterated the Committee's belief in the general principle that criminal proceedings against Members, where these are considered appropriate, should take precedence over the House's own disciplinary proceedings … Where the Metropolitan Police receive information which suggests that a Member of Parliament may have committed a criminal offence, they will take the decision on whether to institute inquiries on their own initiative, on the same basis as they would in any other case, and without regard to whether the same information had formed any part of a complaint to the Parliamentary Commissioner. The Metropolitan Police undertook to inform the Parliamentary Commissioner in the normal course of events if they were considering initiating criminal inquiries into a Member, with a view to establishing whether the alleged conduct was also the subject of a complaint under the Code.

The Parliamentary Commissioner confirmed that he had regard, where appropriate, to the possibility of criminal behaviour when investigating complaints he received against Members of Parliament. He would continue the practice in specific cases of liaising with the Metropolitan Police or other relevant force whenever he considered it appropriate to do so, initiating the process at the earliest opportunity. All parties welcomed this”,

apart from me.

You see, I am concerned about Members of Parliament with pockets full of cash being able to use legal proceedings to defer decisions being taken by the Committee on Standards and Privileges in the House of Commons and, in this case, investigations by the commissioner. When the Al Fayed saga was unfolding in the House of Commons, every week the Committee on Standards and Privileges received yet another document from the Fayed empire. All I am saying is: let us be very wary about putting this sort of principle into legislation. It just strengthens the position of Members of Parliament who would seek to abuse the House, avoid justice in the committee and bring Parliament into further disrepute. I am afraid that I oppose this amendment very strongly. Indeed, it may well be that this legislation should deal with the issue of civil action, which I think is even more dangerous.

I agree with the noble Lord, Lord Campbell-Savours, that the question of civil actions could lead to an MP being able to delay the investigation by the commissioner and all the rest of it and the Commons disciplinary proceedings under the Bill. But I think that the question of prosecutions is different. They are not in the hands of the Member of Parliament concerned; they are in the hands of the police and the prosecuting authorities. Of course, sometimes the police are criticised for taking a long time to bring a case to court because they are carrying out their investigations, and no doubt the criticism of delay by the police is sometimes justified. But, as I said, the matter is in the hands not of the Member of Parliament concerned but of the police and the prosecuting authorities. Therefore, with this amendment referring only to criminal prosecutions and investigations, I do not think that there is a danger of the MP being able to delay it.

I think that the amendment, which stands in my noble friend’s name and my own, is important for exactly the reasons that he set out, and I will not trouble to repeat them.

Like the noble Lord, Lord Cope, I have some difficulty envisaging a Member spending money on being prosecuted.

I should like to ask the noble Lord, Lord Jenkin of Roding, whether he intends the term “investigation” to have a formal meaning or whether he is thinking of any informal—perhaps I should say “not so public”—work being undertaken? There may be a distinction. It might not be a real distinction in practice but, while a prosecution is in contemplation, it could be that the committee will want privately to be thinking about issues that could be raised. I am simply concerned to understand what “investigation” means in this context.

I clearly had it in mind, and I think my noble friend did as well when we tabled the amendment, to refer to investigations under Clause 6 of the Bill. There may well be other inquiries under way—people asking for information and so on—but I think that what we are talking about here is an investigation under Clause 6. I hope that is helpful to the noble Baroness.

It occurs to me in listening to the noble Lord, Lord Campbell-Savours, that in relation to criminal proceedings in some other areas of work, people may if necessary be suspended while the criminal investigation is proceeding. I do not know enough about what could happen in the House of Commons, but that certainly seems a possible solution if we have the kinds of problems to which the noble Lord referred.

The problem with that is that suspension requires a judgment and, for there to be a judgment, there must be an investigation. The investigation by the commission is ceased the moment that the police move in to carry out their investigation. So a Member of Parliament can remain in place for years, where the House knows that he has been involved in some dubious activity, but no action has been taken because the police have decided that they want to intervene, with a view, perhaps, to there being a prosecution. I ask the noble Lord: when was the last time that any of the so-called investigations by the police led to a Member of Parliament appearing in the dock?

There is a distinction between the commissioner under the Bill and other types of conduct. There may be a degree of flexibility there. The amendment refers only to the commissioner under the Bill.

I start by saying that I recognise the concerns expressed by my noble friend. In fact, those are concerns that we have recently had to grapple with in this House in many ways. Perhaps one day we should reflect on them further in this House. As we said several times in debate on Tuesday, we must make sure that MPs are treated fairly under the Bill. The noble Lord's amendment is aimed at addressing the issue of whether it is right that an MP should be under investigation through two different channels in relation to the same facts at the same time.

I remind the Committee that as a result of the government amendments to Clauses 6 and 7, IPSA will no longer have the power to recommend any sanction to the House nor to issue a direction to an MP to take any remedial action. The findings of an investigation by the commissioner will be referred to the Committee on Standards and Privileges, unless an agreement on remedial action has already been reached with the MP. Any action taken as a result of the referral will be a matter for the committee to recommend to the House.

It is not completely clear from the text of the amendment whether an investigation means one carried out by the new Commissioner for Parliamentary Investigation, as created by the Bill, or by the Committee on Standards and Privileges. I also point out that it may be possible, for example, for both the police and the commissioner to be investigating the same behaviour without the other being aware of it. This might particularly be the case with the commissioner, who may not know that information has been passed to the police.

If the amendment is referring to investigations by the commissioner, it will be for IPSA to determine the rules which govern investigations carried out by the commissioner. It is possible that IPSA or the commissioner may wish to establish a protocol or memorandum of understanding with the police and prosecuting authorities concerning investigations that run in parallel with criminal investigations. That is how the present system works. There is a protocol between the parliamentary commissioner for standards, the Committee on Standards and Privileges and the Metropolitan Police. I think that my noble friend was referring to that.

If the amendment refers to investigations by the committee, as well as proceedings, it is surely for the other place to decide the protocols that govern the working of its committees, and that is not a matter for your Lordships’ House. I imagine that those in the other place would be very surprised if we sought to insert provisions instructing them how they should approach their internal disciplinary proceedings.

In any case, I do not think that the provision envisaged in this amendment would be appropriate. Although it is right that in most cases where the police have become involved, we might expect the Committee on Standards and Privileges to suspend its proceedings until the conclusion of the police investigation, that may not always be the case. The committee might want to require the return of money or to take some other step to restore public confidence. It should not be prevented from doing so. I am sure that we can rely on the committee to behave sensibly and to consult the police as appropriate.

Accordingly, the new clause is inappropriate. It is unnecessary to ensure that there is proper co-ordination between the commissioner, the committee and the police, and it risks dictating to the other place how it should act. That seems in itself to be an interference in the exclusive cognisance of the other place, which in other areas we have been at such pains to ensure that the Bill does not do.

I am grateful for the views that have been expressed. I listened to the noble Lord, Lord Campbell-Savours, with great interest. He has, not for the first time, found himself in a minority of one and yet been exceedingly persuasive. We have noticed that on other occasions. My noble friend Lord Cope made it perfectly clear that we are here talking about only criminal proceedings, not civil proceedings, for the very good reasons that have been spelt out. I assumed that we were talking about formal investigations. The original amendment—before we realised that the whole clause was going to be removed, when we retabled it as a new clause—was tabled before the Government had indicated their intentions for the Bill.

If I may say so, the noble Baroness made a strong case. The suggestion of a protocol between the police and the Committee on Standards and Privileges would probably be a better way to deal with the matter than having a single rule that applies to everything, because goodness knows what the variation in circumstances may be. That could give rise to the problem which, as the noble Baroness rightly said, has also affected this House, as is in the recent memory of many noble Lords.

One argument that I find a little difficult to accept, but I accept that it is extremely well intended, is that it is not for this House to make rules. The Bill has to come to this House. We know that it will apply only to the other place. We have made a great many changes here to affect matters in another place. Therefore, with the greatest respect to the noble Baroness, I do not necessarily give a great deal of weight to the argument that we should not pass the amendment because it is a matter for another place. On the other hand, the argument that she made about a better way to do that is strong, so, while thanking those who took part in the debate, I beg leave to withdraw the amendment.

Your Lordships may be relieved to know that after those heavyweight debates on whether a knowingly false claim can somehow be less than dishonest, and other weighty matters, this is a lightweight drafting suggestion. At present, the Bill sometimes refers to “the Speaker of the House of Commons” and sometimes to “the Speaker”. I suggest that the Bill should be consistent throughout. I point out that in Clause 3, the first reference is to “the Speaker of the House of Commons”, but later it just refers to “the Speaker”. The same formulation is used in Clause 5. Clause 9 refers to “the Speaker” throughout, but, at the end, it states:

“In this section ‘the Speaker’ means the Speaker of the House of Commons”.

Clause 10 reverts to the same formulation as Clause 3. Schedules 1 and 2, on the other hand, follow the formulation in Clause 9 and define the Speaker again twice over. Schedule 3 reverts again to the Clause 3 formulation.

I have tabled only the two amendments in the group changing it once. I did not think that I should clutter up the Marshalled List and make the work of the Public Bill Office, which has done so splendidly over the past few days, even more difficult by tabling all the consequential amendments. Clearly, whichever way the Government decide to jump, there will be consequentials that I have not put on the Marshalled List.

The third amendment in the group is Amendment 81A. It refers to page 9, where there is a requirement of the consent of,

“the person who chairs the House of Commons Commission”.

As the person who chairs the House of Commons Commission is by definition the Speaker, I do not understand why it does not state “the Speaker”, because that is who is meant. It is unnecessarily convoluted to use the formulation in the Bill. I beg to move.

I have had a little time to pursue this matter while, as the noble Lord, Lord Cope, suggested, we were debating more weighty matters. Indeed, I have been on a similar journey through the Bill to look at the various ways in which the Speaker of the Commons is referred to. The noble Lord is absolutely right, but I am glad to say that there is a coherent justification for what on the face of it seems to be some inconsistency.

The noble Lord could have put down a number of amendments but he has chosen to use what might be described as illustrative examples. Schedules 1 and 2 use “Speaker” and are given a definition because the word is used on a number of occasions. Schedule 3 has no definition because “Speaker” is used only once. The noble Lord also points out in the body of the Bill what he describes as further inconsistency. Part of the reason for that is because opposition amendments have been accepted during the passage of the Bill which in themselves have introduced some inconsistency.

However, this does not seem to be an unreasonable situation. Clause 9 refers to “Speaker” in several places, hence the need for a definition. In any event, the one thing noble Lords want from this Bill is clarity. Each part of the Bill makes it clear who is being referred to. I accept fully that it would be possible for us to seek consistency and I would be interested to know if the noble Lord is going to press us on this point. I do not consider it to be absolutely essential.

Amendment 81A concerns a different point. The noble Lord is right that the Speaker is in fact the Chairman of the House of Commons Commission. It is really a question of the quality of the Speaker’s involvement in changing the capacity in which he is acting. The provisions are about the staff of the House of Commons and it is therefore the House of Commons Commission rather than the Speaker who is the employer of the staff. That apparently is why he is referred to in this way in that particular clause. I can say to the noble Lord that the House of Commons has been consulted on the drafting and has no difficulty with it.

There are two different issues here, but I hope that on Amendment 81A, I have persuaded him that we should stick with the wording as it is. If he thinks that the inconsistencies really do cause a problem, we shall look at them between now and the Report stage, but I am not convinced that this is a matter of great moment.

I made it clear when I started that this is not a matter of great moment and I have tabled the amendments as suggestions rather than anything else. Bills should be well written, and this one has not been written as well as it might have been if the parliamentary draftsmen had been given more time. I do not think that the explanation given by the Minister, to the effect that where there are two references it is done in one way and where there are four it is done in another, carries much weight. Nevertheless, this is not a matter I wish to pursue further, but it is an illustration of the difficulties encountered not only by us but by the parliamentary draftsmen and everyone else when trying to pass legislation in a tearing hurry. I beg leave to withdraw the amendment.

In moving Amendment 80, I shall refer also to government Amendments 82B and 83B. At Second Reading, we all recognised that the Leader of the House was in some difficulty when dealing with a great many questions put all at once at some speed. However, she dealt with the points that were being raised on all sides of the House with admirable clarity and in a most responsive way. At col. 746, she said:

“I recognise however that some clauses could, and perhaps should, be revisited in a period of perhaps two years. I therefore suggest that we come back to this in Committee, but I do not think the Government would be opposed to reviewing some aspects of the Bill in a couple of years”.—[Official Report, 8/7/09; cols. 746-47.]

That is precisely the nature of Amendment 80, which sets out in simple and straightforward terms that there should be in effect a sunset clause as follows:

“Sections 5 to 9 shall cease to have effect at the end of the period of two years beginning with the day on which this Act is passed”.

There was also a great deal of discussion in the other place about the possibility of, and indeed the necessity for, some form of sunset clause. In the debate on Third Reading on 1 July, at cols. 401-08, Members on all sides expressed anxiety that a Bill of this sort, which is very complicated and raises important questions but is necessarily being considered at speed—though in somewhat more of a hurry in that place than in your Lordships’ House—there should be some form of sunset or review process built into the Bill itself. Members on all sides pressed that there should be a sunset clause or something similar.

In resisting that, Mr Jack Straw had two strong arguments. The first was that the amendment put before the House was for only one year, and there was a general recognition that that was perhaps asking too much. The other was that the amendment referred to the whole Bill. I want to make it absolutely clear to noble Lords that the amendment before the Committee today does not ask for a sunset clause for the whole Bill, so that IPSA and the new regime being introduced would not be subjected to automatic abolition after a relatively short period. That objection therefore clearly falls. Our amendment refers precisely to the specific clauses that are generally recognised on all sides to have merit, possibly, but also to be controversial and to have been considered at relative speed.

Before us today we have two alternative approaches to the agreed requirement for a specific assessment of the whole package introduced by this Bill within two years, to which the noble Baroness referred at Second Reading. The choice is between a full-scale sunset clause, as in Amendment 80, and a renewal clause, which is a totally different matter; it would mean the simple introduction of a statutory instrument in both Houses under the new amendments very recently tabled by the noble Baroness—indeed, we are seeing them for the first time today. At this point, and in common with many other Members of the Committee, I should pay tribute to the way in which the Leader of the House has listened so carefully to the prevailing anxieties and positive suggestions from all sides. I warmly welcome her apparent conversion to the principle of review or a sunset clause for Sections 5 to 9 and Schedule 2.

However, it is important that the Committee should investigate fully the differences between these two approaches before deciding how best to build in the necessary safeguards that all sides now think are required. There has scarcely been a contribution to the debate in either House that has not referred to the lightning speed with which we have considered and continue to consider this Bill. I am not a meteorologist, but in this instance I think that the sunset is as necessary as the lightning that we have already had to experience.

I have looked briefly at past examples of important Bills introduced at speed in response to some form of emergency to check the extent to which a review has or has not proved as satisfactory as a sunset clause. My attention was drawn to the Prevention of Terrorism Bill—now an Act—which was debated at length in the other place on 10 March 2005. I take seriously the comments made by Mr Dominic Grieve on that occasion. I must have been there because I certainly remember that we had considerable discussion about the best way of ensuring that a Bill passed at some speed would be reviewed within a specific timescale. Mr Grieve was admirably succinct and what he said is very relevant. He said:

“The situation regarding the sunset clause is quite clear. The Government know from the comments of many of their Back Benchers, including those whom they persuaded to support them yesterday, that the Bill is without doubt a major infringement of civil liberties and is poorly drafted. The hon. and learned Member for Redcar … made that comment, even though, in her loyalty, she came back to support the Government. The Home Secretary should therefore accept that the legislation should have a finite limit. Without such a limit, I have no confidence that the Government will ever review the measure properly. We will simply be asked to rubber-stamp its renewal, and there will be no creative thinking about how we resolve our present dilemma and maintain civil liberties while fighting terrorism adequately”.—[Official Report, Commons, 10/3/05; cols. 1767-68.]

We all accept that occasionally it is necessary for both Houses of Parliament to pass important legislation at some speed, but we have always insisted in the past that that speed is measured when it comes to considering a review. The Government’s response throughout the Committee stage has demonstrated just how seriously criticisms and concerns have been taken, but none of the changes that have been made completely clears the need for the Bill, when it eventually reaches the statute book, to be subjected to rigorous and detailed re-examination after it has been in operation for a limited time.

After a good many years of seeing in what fashion both Houses consider secondary legislation, my concern is that the process proposed in the Government’s amendments could easily become perfunctory. Just as serious, it might turn into an all-or-nothing confrontation rather than a careful consideration of all the different parts of the process for which we are now legislating.

In addition, as we are all now only too well aware, a great deal of the architecture, which is a word that has been used on a number of occasions by the noble Lord, Lord Hunt, for this new scheme will be developed at a secondary level—it is not all in place today—without the full scrutiny that we give to a Bill. That detail will follow on. That surely strengthens the case for a review process that is stronger than that available simply in a statutory instrument.

A political problem could arise if this is simply left to secondary legislation. Given the stark choice between accepting and rejecting a parliamentary standards statutory instrument in 2011, Members of both Houses may well feel inhibited and not prepared to seek detailed improvements to the way in which the new system is operating. Worse still, with no obvious improved system to replace it, how could they feel comfortable in voting against that order?

We have had a little over two weeks to consider the Bill. In two years, the House of Commons will look different—who knows how?—and the effectiveness of the new independent authority will have been assessed and commented on at length. Then will surely be the time for another Bill, taken on the basis of firm facts. Reflecting on evidence and not just responding to news, we will have an idea of how well all the elements of the present Bill, enacted, have or have not worked.

I am sure that the Leader of the House will appreciate that her important amendments have come to us only very recently. Although all Members of the Committee no doubt appreciate that we have received them now rather than on Report after the weekend, we surely need a little more time to consider them carefully and consult on their implications. Obviously we will all listen with great care to the Minister to try to fully understand precisely how the Government think their alternatives could work. In the mean time, at first sight—and we have had so little time to examine these proposals—I am not persuaded that the limited review process suggested is a sufficient, realistic and satisfactory alternative to the sunset clause that we propose.

Finally, I pray in aid the excellent reports produced by your Lordships’ Constitution Committee. In an appendix to the report on the Parliamentary Standards Bill published on 6 July, the committee drew our attention to the particular needs of any Bill that receives any kind of fast-track process through your Lordships’ House. In the recommendations contained in the Constitution Committee’s report, Fast-track Legislation: Constitutional Implications and Safeguards, at paragraph 186(e) the committee advises your Lordships’ House very precisely that this is the kind of question that we should ask:

“Does the bill include a sunset clause (as well as any appropriate renewal procedure)? If not, why do the Government judge that their inclusion is not appropriate?”.

That is a proper question to ask. I beg to move.

My name is attached to the amendment, which I think is entirely sensible and would offer a great protection for those most affected by the Bill. However, since we tabled the amendment, the Government have come forward, at a late hour yesterday, with their amendment. The noble Baroness deserves to be congratulated on it because, once again, she has shown flexibility and no little courage in the face of the declaratory remarks made by her senior colleagues in government in returning to this issue, and on being ready to go much further than the Government’s initial paltry offer. We have taken an enormous step forward from where we were yesterday. She responded immediately when I raised the issue at Second Reading. I was deeply impressed by that and the whole Committee will thank her for it.

The Government’s sunset clause has been improved immeasurably by the inclusion of these clauses and Clause 5 in particular. There are many on all sides in another place who worry about the potential impact on another place and the quality of those prepared to sit there of Clause 5 and the regulatory regime that it governs. When I spoke to Clause 5 on Tuesday, I raised several questions about the kind of regime that IPSA is likely to bring in—for instance, how detailed will registration be? Unfortunately, at that time the noble Baroness was unable to give an answer to those questions. Perhaps she will give more detail today or on Monday about IPSA.

I recognise that these matters will, in the execution, be largely within the exclusive cognisance of another place, but we are creating statute here and the whole of Parliament must understand the nature of any potentially constrictive regime under which one of its Houses is being placed by the Executive. The continuing uncertainties about the final form of the scheme demonstrate how important a sunset clause may well prove to be. We know nothing about the new requirements that will surround the registration of financial interests and we have not yet seen the Kelly report. Indeed, there is no certainty that the regime put in place under this Bill will be proportionate, reasonable and based on evidence rather than assertion, and there is very little known about the new offices that will administer and investigate it. The offence relating to its breach has, of course, been removed, but a scheme does not need a criminal offence attached to it to do a great deal of damage.

Once again I emphasise that this is a matter for another place, but I note the arguments put forward by distinguished commentators and many others outside the House that overintrusive and other requirements—for example, the suggestion that MPs should publish time sheets of every minute spent outside Parliament—may cause a great many people who would be an asset to the House of Commons to decide that politics is not what they wish to do.

If errors of proportion are made by this House or another place, we can correct them, but if it is done by statutory authority it is far harder to change. It will therefore be wise to enable the new Parliament to clean up politics and to assess and improve the regime that we are now so hastily putting in place in such exceptional circumstances.

Although we welcome the amendment as a chance to ensure that the new Parliament will look again at the whole scheme in two years, there are still a couple of details where the government amendment deviates from that put down in the name of the noble Lord, Lord Tyler, and the one to which I attached my name. First, the Government are starting the countdown from the moment that the scheme is brought into effect, not from Royal Assent. This moves the break point a considerable way further into the future. We feel that two years from Royal Assent is enough time to assess whether the scheme is working; it is certainly more than enough time for the damage to start happening if the scheme does not operate as well as the Government assure us that it will. In allowing a flawed scheme to run for as long as this, the Government are risking serious damage to the operation of another place. Secondly, the government amendment allows for the possibility of extending the effective period by affirmative resolution. That is not the optimal way forward; I would much rather have a clean break to these clauses within two years.

I hope that we can, in these unusual circumstances, return to this issue for clarification if need be, and perhaps for adjustment on Report or at Third Reading, depending on what the Minister says. I thank her for the flexibility that she has shown, but I would like to hear why the Government believe that a clean-break sunset clause as envisaged in this amendment is not the best way forward.

I say at the outset that I hope what I say in response to noble Lords opposite will answer their questions and assuage their concerns. I do not propose to come back to this issue on Report. I would like to clarify the situation regarding sunset clauses today. We have an awful lot of things to come back to on Report, and this issue is relatively clear.

The government amendments provide for a review mechanism for the clauses that deal with the independent commissioner and the sanctions regime, including offences, and for the provisions on the code of conduct on financial interests. The amendment from the noble Lords, Lord Shutt of Greetland, Lord Tyler and Lord Strathclyde, would apply a sunset clause to the provisions of the Bill that deal with the powers and functions of IPSA in relation to the code on financial interests and of the commissioner in relation to investigations, as well as offences. It would leave the regime with no means of dealing with any breaches of the rules on allowances, and would leave the commissioner with no powers and functions at all, although it would continue his existence.

We recognise that there has been considerable pressure in the House to introduce a sunset clause for the Bill, not least on the grounds that it has been passed under emergency or expedited procedures. I, too, have carefully read the excellent report from the Constitution Committee. Emergency legislation takes many forms. Sometimes it is to deal with a situation that will resolve itself very quickly. Sometimes there is a suitable legislative vehicle into which a revised proposal can be inserted with the normal timescale for parliamentary debate. This Bill, however, falls into neither of those categories. There is an urgent need to act—that is why, with the co-operation of the leaders of the other parties, we have sought to get the legislation passed before we rise for the summer.

The mischief that the Bill is intended to address is a continuing one. We need to restore the people’s trust in Parliament, particularly in the way in which MPs’ financial interests and allowances claims are dealt with. The Government simply do not accept that the people will be satisfied with a provision that implies that in two years’ time we could abandon the whole process and revert to the old ways. Nor do I believe that the parties opposite really think that either, but is it realistic to suppose that, near the beginning of a new Parliament, any Government would want to have to find time to re-enact this Bill or the bits of it that deal with the code on financial interests and the investigations regime? I think not.

We have heard a lot in debates on the Bill about the “chilling effect” of certain propositions. I suggest that the noble Lords’ sunset clause would itself have a chilling effect on the new IPSA. It is important that the members of the new body should be distinguished and authoritative people. The Bill says that they should be appointed for five years. The opposition amendment would leave IPSA and the commissioner in existence but shorn of many of their functions. Where would be the incentive for good people to put themselves forward for these positions in these circumstances?

I recognise that the Conservative Opposition have moved considerably from their position in the other place, where they were proposing that the whole Bill should be sunsetted within one year of it being passed. They have now moved to supporting the proposition that the parts of the Bill that do not deal with the allowances scheme should be sunsetted after two years. I am grateful for their flexibility on that, but what they are proposing would still have an impact on the quality of IPSA. It might not throw the staff of IPSA into the sort of uncertainty that their previous proposal would have done, but it still raises questions about the position of IPSA and, even more, of the commissioner. The institution of the commissioner would continue to exist under the proposed amendment, but he would have no powers or functions at all unless the Act were to be renewed. Who good would wish to apply for the position in those circumstances?

Nevertheless, the Government understand the concern that to some extent we are moving into uncharted waters with this Bill. We have therefore tabled these amendments to provide an opportunity for Parliament to reconsider whether the legislation is working as intended, but without requiring its complete re-enactment to continue its existence. We are clear that IPSA must continue to exist, and that we must be able to offer certainty to those whom we want to work in it. It is essential that we have an independent body outside the House setting a transparent allowances regime. That much is common ground.

Noble Lords will know that we had great doubts about the wisdom of applying the sunset provision to Clause 5, but we have decided to do so, given the strength of feeling in this House that we should. However, in contrast to the noble Lords’ amendment, we do not see any point in continuing the existence of the commissioner if he or she is to be shorn of all functions. That is why our amendment also refers to Clause 1(3) and Schedule 2.

There are two differences between our amendment and that of the noble Lords. The first, and perhaps the minor one, is that our timescale runs from commencement and not from Royal Assent. The purpose of a sunset clause is to evaluate the effectiveness of the provisions in practice. It will inevitably take some time to appoint members of the authority and the commissioner, and further time to allow the authority to consult fully and create the allowances scheme and code of financial conduct. If the two-year period ran from Royal Assent, which we hope will be next week, that would involve a period of many months when the timescale was running out but none of the functions to be reviewed were in existence. We therefore think that it is more logical for the egg-timer to be started when IPSA is actually brought into existence.

Our major difference with the noble Lords is over the way that they approach sunsetting. In a way, it is a question of the definition of “sunsetting”. Instead of providing for the relevant portions of the Act to expire after two years, whatever happens, the amendment would provide for the relevant portions of the Act to expire unless they were continued by resolution of both Houses. The relevant portions of the Act could be extended for two years at a time by order approved by a resolution of both Houses of Parliament. Such a sunset clause, as the noble Lord, Lord Tyler, pointed out, would be similar to provisions in the Prevention of Terrorism Act 2005 whereby the powers in that Act relating to control orders may be continued by the affirmative procedure for set periods.

That is the critical difference between the two approaches. Both give Parliament the opportunity to consider whether or not it wishes to continue with the investigations regime set up under the Act, but, in the case of the government amendment, if Parliament decides that it wants to continue the regime, it may simply vote to do so. Neither the Government nor Parliament would need to find the time for primary legislation needed to re-enact the Bill. Also, if all the provisions of the Act were working very well, why would Parliament want to take an inordinate amount of time in re-enacting the Bill? That may not be the best way forward. I suggest that the proposal put forward by the Government provides a much more satisfactory outcome, both for Parliament and for the public, who can be assured that the new regime can be continued. It is the best outcome for members of IPSA and the commissioner himself, all of whom deserve some security.

The noble Baroness’s defence of her approach to IPSA membership, the commissioner and so on, makes it very clear that hers is not a sunset clause as most of us would understand it but, as my noble friend said, a renewal clause. Indeed, she referred to the definitions.

With primary legislation, there is the opportunity for both Houses to consider the detail, to reflect on arguments and to deal with fairly nuanced points. My noble friend used the term “perfunctory” in referring to a statutory instrument. If there is primary legislation and will on all sides to renew and move forward quickly, it is open to both Houses to deal with the primary legislation quickly, and with little fuss. Conversely, with a statutory instrument, it is not possible to take the time that would be needed to have a debate, come back to it and tweak it. As for the noble Baroness’s defence of the opportunity for an abrupt and quick way of dealing with the matter—knee jerk was the term that I wrote down when I first saw this provision— I think it would be a pity. The sunset clause that would require primary legislation for extension or renewal, whatever one likes to call it, would give both Houses the opportunity to deal with a very serious matter in a serious and reflective manner.

I heard the noble Lord, Lord Tyler, refer to statutory instruments as being perfunctory, but I do not regard debates on statutory instruments as being perfunctory. Of course, one can always vote on them; they are affirmative instruments, so the House has enormous power.

I suggest to noble Lords that we are where we are now. One reason we are having difficulties is that this is an expedited piece of legislation. The noble Baroness is suggesting that, if we have to resort to another piece of primary legislation, it can be done rather quickly. We are just going to be back where we are now. It may well be that IPSA and the commissioner and everyone else related to that will be working absolutely fine—in which case, why would we want to go through the pain of another piece of legislation? It would be much more appropriate for Parliament to go down the line that the Government have suggested.

If IPSA and the commissioner are not working fine and the Government come up with their proposed solution in the form of a statutory instrument, the is no opportunity for Members to do other than say yes or no. The noble Baroness will accept the problem about there being no possibility of amending a statutory instrument.

I accept that statutory instruments cannot be amended, but they can be voted on. Before any statutory instrument was brought forward, there would of course be extensive consultation.

The noble Baroness suggested that it would need serious primary legislation if the sunset clause had to be applied, but that is surely not true. All that would be needed is a very short new Bill, which would simply give effect to the existing provisions, minus the sunset clause. It would be a very simple business indeed to do that.

I merely point out that very simple primary legislation is very seldom very simple, and that it takes rather longer than anyone would like.

I am very grateful to the noble Baroness, not only for the amendments that she has introduced but for the way in which she has dealt with this important choice. It may seem to be finely balanced but it is an important choice, and I regret that we have had comparatively little time in Committee to examine the merits of the two approaches. I am grateful to the noble Lord, Lord Strathclyde, for pointing out the two major differences between these two approaches—one that I had already dealt with, which was the issue of secondary legislation and affirmative resolution as opposed to a sunset clause and a clear break, to use the noble Lord’s phrase.

I am not so anxious about the timing. I accept the noble Baroness’s view that the trigger may be preferable. That is a matter of degree rather than principle. However, I cannot accept her argument that somehow the sunset clause would be likely to leave IPSA and the commissioner without statutory authority, in limbo. No responsible Government are going to allow that to happen. Clearly, if the process has worked very well, my noble friend Lord Goodhart is absolutely right in saying that a very short amendment would be necessary to the Bill, which could certainly be passed without an “inordinate amount of time”, which was the noble Baroness’s phrase—a rather depressing response to how Parliament works. Parliament can work perfectly effectively when something is obviously working well and simply needs to be endorsed. It really is barking up the wrong tree to suggest that the Government would leave it to the last minute of the two years and then allow the whole thing to collapse. That is simply fanciful. What really worries me is that the noble Baroness is appearing to confuse the two quite different concepts, which are so clearly set out in the Constitution Committee report to your Lordships’ House, between a sunset clause—I read the passage—on the one hand and a renewal procedure on the other. I do not think we have reached entirely the end of the road.

The real problem is that, as I have said, this is all coming to us rather late in the day in Committee. I regret that. I should prefer that we look at it again on Monday in the context of the Report stage in your Lordships’ House when we can more carefully consider these issues.

I am advised by the House authorities that were we to vote on this issue it might be more difficult to examine it again on Monday. Therefore on that basis I suppose that the best we can achieve is for me to ask leave of the House to withdraw the amendment and to hope that the government amendments go through without a Division so that we can look at them in more detail on Report on Monday. On that basis, I beg leave to withdraw the amendment.

We have been debating matters of great constitutional importance. It is in the nature of the way Bills are drafted that amendments towards the end tend to conclude, in T S Eliot’s words:

“Not with a bang but a whimper”.

I am therefore not going to delay the Committee more than a moment or two. My only concern is that Clause 11(2)(a) and (b) seem to give the Minister of the Crown considerable powers to amend things by amendment and by statutory instrument when the original legislation has been given much more opportunity for consultation. May I simply ask therefore what kind of specified purposes the Government have in mind, either in regard to subsection (2)(a) or (b)?

I am very glad to respond to the Clause 11 stand part debate of the noble Lord, Lord Higgins. I hope I can put his mind at rest on this point. Essentially, Clause 11 deals with the transition from the existing regime in the House of Commons to the new regime. It deals with matters that are exclusively the concern of the other place. It has been discussed and, indeed, amended in the other place. The provisions were included in the Bill as a result of discussions between the leaders of the parties in both Houses and representatives of the Committee on Standards and Privileges and the House authorities.

Perhaps I could set out what Clause 11 does. Essentially, it provides that a Minister of the Crown, who would be the Leader of the Commons, may by order make various provisions. First, the order may provide that the House’s rules on allowances should have effect for specified purposes as though they were included in a scheme made by IPSA. That essentially allows IPSA and the Commissioner for Parliamentary Investigations to take up their functions as soon as possible without having first to go through the process of revising the existing rules.

It may also provide that the rules on registration of financial interests and the rules prohibiting paid advocacy should have effect as if they had been included in the code drawn up by IPSA. Again this allows IPSA and the Commissioner for Parliamentary Investigations to take up their functions as soon as possible.

The order may also provide for the setting off of allowances unpaid before the advent of IPSA against allowances due to be paid after IPSA comes into operation. This is because some MPs who have previously been overpaid allowances, instead of repaying that amount immediately, receive in lieu a lower amount of allowances for a period in the future. This order-making power permits such arrangements in respect of overpayments under the old system to continue even after the transition to the new system.

The order-making power also permits a scheme to be established so that the transition of the staff from the House to IPSA can be managed sensibly, without either duplication or gaps. Such a scheme could only be made by the Minister of the Crown with the consent of the Speaker in his capacity as chair of the House of Commons Commission.

I take this opportunity to draw your Lordships’ attention to subsection (3), although I understand the noble Lord, Lord Higgins, was specifically asking questions on subsection (2). However, perhaps I may go on to talk about the clause in general. There was some concern in the other place that IPSA and the commissioner might apply more stringent standards to the investigation of complaints under the old rules once they took over administering them. The amendments which have already been made to the clause addressed many of those points, in particular making it clear that where a case had been settled under the existing regime it could not be reopened under the new one. In other words, IPSA and the commissioner can deal only with complaints that arise after they take on responsibility for the scheme or the code. Subsection (3) reinforces the effect of this by making it clear that the offences regime in the Bill will not apply to any complaint relating to the existing scheme or code, regardless of when the complaint is made.

I say to the noble Lord, Lord Higgins, that it is not a question of the Minister of the Crown—that is, the Leader of the House of Commons—changing rules willy-nilly as he feared might be suggested. It enables the current rules to be transferred to the new regime in the transitional period before work has been undertaken by IPSA to bring the new schemes into fruition. I also assure him that these would have to be approved by the House of Commons. The role of the Leader is to place the matter before the Commons to be decided. These are sensible provisions that essentially allow for a sensible transition from the current situation to the new situation, ensuring that there will be no gap between the operation of the old and new systems. I hope that I have reassured the noble Lord on that point.

I am most grateful to the Minister for that helpful explanation.