1: After Clause 1, insert the following new Clause—
“House of Lords
(1) Nothing in this Act shall affect the House of Lords.
(2) But that is subject to—
(a) section 13(5),(b) paragraphs 5(3) and (4), 16(2), 22(1), 24(2)(b) and 25(1) of Schedule 1, and (c) paragraphs 4(2) and 8(1) of Schedule 2.”
My Lords, when we debated the question of whether we should say that this Bill applied to your Lordships’ House, on the basis of an amendment in the name of the noble Lord, Lord Strathclyde, I said that the Government were happy to accept the principle of the amendment with some exceptions. I undertook to return to the matter on Report. As I explained then, we were unable to accept the amendment as drafted because it was inaccurate in some minor respects. I explained that the Bill gives your Lordships a role in the administration of the new regime. I said, for example, that the chair and members of IPSA, and the commissioner, may be removed from office only following an address by Her Majesty to both Houses of Parliament. The accounts and annual report of IPSA must be laid before each House of Parliament.
The amendment that I have now tabled gives effect to that undertaking. As well as the two points which I mentioned in Committee, there are a number of other references to your Lordships’ House in the Bill. The point on removal of the chair and members of IPSA and the commissioner is covered by the references to paragraphs 5(3) and (4) of Schedule 1 and paragraph 4(2) of Schedule 2. The point on the accounts and annual report of the IPSA having to be laid before each House of Parliament is covered by the references to paragraphs 24(2)(b) and 25(1) of Schedule 1, and paragraph 8(1) of Schedule 2.
There are three new references to your Lordships’ House which also need to be covered. The first two are the references in paragraphs 16(2) and 22 of Schedule 1, which both refer to the expenditure of IPSA being funded by money provided by Parliament. The final amendment refers to the review clause which we inserted into the Bill in Committee. Under that clause, a statutory instrument to continue in existence the provisions of the Bill covered by that clause must be laid before each House of Parliament, and approved by a resolution of each.
The small exceptions which are now included in this clause do not undermine the basic principle. As I made clear at Second Reading, and again in Committee, the Government entirely accept that this Bill does not apply to your Lordships’ House. That is self-evidently the case. We also accept that it should not be extended to your Lordships’ House as it is presently constituted. We obviously cannot in legislation put the latter point on the record, but we can put the first point on the record in the Bill and I am happy to do so. I beg to move.
My Lords, this amendment was tabled to fulfil a commitment that the noble Baroness the Leader of the House made in Committee. My purpose was to make good the words of some Ministers, notably the noble Baroness, to exclude the House of Lords. On the face of it, I think she has done exactly that. Therefore, I am extremely grateful to the noble Baroness for bringing forward this amendment and I wholly support it.
Amendment 1 agreed.
2: After Clause 1, insert the following new Clause—
“Article IX of the Bill of Rights 1689
Notwithstanding any provision of the European Communities Act 1972 (c. 68), the European Convention of Human Rights or the Human Rights Act 1998 (c. 42), nothing in this Act shall be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689.”
My Lords, in discussing the new clause in my name we are also discussing the subsequent new clause. I begin by saying how pleased we are to see the noble and learned Baroness the Attorney-General in her place. We are very grateful that she will be able to give us the benefit of her advice. We have had a long letter from her comparatively recently, but of course it is not on the record. We look forward to hearing what the Attorney-General has to say—no doubt in many cases repeating what is in the letter—because what she says will then be on the record.
The House will recognise that these two new clauses are exactly the same as those we debated in Committee last Thursday. I have retabled them partly because, in a very important speech, my noble and learned friend Lord Mackay of Clashfern gave his view that European Union law is unlikely to apply to the procedures in the Bill. He added that,
“one can never be sure”.—[Official Report, 16/7/09; col. 1302.]
Indeed, that is advice that I have had from other sources, and to which I will refer in a moment. My main purpose here is to give the noble and learned Baroness the Attorney-General the opportunity to give the House her authoritative opinion. Even my noble and learned friend Lord Mackay said that this view was “subject to correction” by the Attorney-General. I suspect that there will not be much correction because both noble and learned Lords are extremely knowledgeable.
The House will be relieved to know that I do not intend to repeat at length what I said in Committee. I know that the noble and learned Baroness has had that drawn to her attention; she deals with it in her letter. Perhaps I can summarise the argument in this way. There are two avenues whereby one might find that Clause 1 of the Bill, as it is now, might be called into question by a European court. I deal first with the question of the European Court of Justice in Luxembourg. Let us suppose that a disgruntled citizen, upset by a proceeding that comes from IPSA, the commissioner or the Committee on Standards and Privileges in the other place, tries to raise the issue by judicial review in court here. That court will then have to decide whether it is covered by Article IX of the Bill of Rights. That, indeed, is something that the court must do. The noble and learned Baroness the Attorney-General made that very clear in a report that she sent to the Leader of the House in another place. I do not think I need to quote it because it is well established.
Suppose that the UK court then decides that the case falls on the privilege side of the line which divides cases that are within Article IX from those that are not, and therefore declines to hear the case. Suppose that our disgruntled citizen—who must be very disgruntled by this stage—then decides to go to the European Court of Justice in Luxembourg. He cites some provision of EU law—which is obviously an enormously important part of the case if it is going to be established—that might be relevant to his case and asks that court to invoke Article 234 of the treaty. Again, I do not think I need to quote that; it is all in Hansard. Article 234 requires that if such a case comes before the ECJ, that court can ask the UK court to refer the matter to it for review. That seems to me, prima facie, to give jurisdiction to the European Court of Justice to, as it were, “call in” the court.
When I raised this previously, the noble Baroness, Lady Royall, dealt with it very firmly. I quote her from Hansard of 16 July at col. 1304. She said:
“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”.
“The wider question of whether the Bill of Rights prevents any international court looking at proceedings in Parliament is a separate issue”.—[Official Report, 16/7/09; col. 1304.]
I am not quite sure what the basis is for saying that the issue is entirely distinct from Article IX. When she said that it was a separate issue, she was, I think, referring to the second avenue, which could be the European Court of Human Rights.
I return for a moment to the hypothetical case which I postulated. The applicability of the Bill of Rights has to be right at the centre of the issue before the national court, and so must be relevant to the case before European Court of Justice. If there is an issue of EU law—and I entirely accept that that is a precondition for this process to be applied—it seems that in those circumstances the European Court of Justice would have to apply itself to an issue relating to Article IX of the Bill of Rights.
This of course follows the acceptance by the Government of what is now Clause 1, which makes it absolutely clear that nothing in the Bill affects the Bill of Rights—but that applies only to UK courts, because it is essential to protect the freedom of speech in Parliament from interference by the courts. However, this issue that might, in certain circumstances, be called before the European Court of Justice.
With the greatest respect to the Leader of the House—I do respect her; she has handled the Bill with great skill and has made many concessions to the views expressed in all parts of the House—I do not think that she really answered that question. Although my noble and learned friend Lord Mackay thought that such a case could not come before the European Court of Justice, and that, as he put it, it was,
“unlikely to apply to these procedures”,
“although one can never be sure”.—[Official Report, 16/7/09; col. 1302.]
I received exactly the same advice from another legal source who I consulted between then and now. That source states, in almost exactly the same words:
“It seems rather unlikely that the IPSA Bill”—
I think that he is referring to the Bill—
“would be an instance of the UK implementing union law. But again, one cannot offer a guarantee as to future judicial interpretation by the EC”.
Although such circumstances may be unlikely, the evidence that I have been given so far suggests that they are unlikely but not impossible.
Since then we have received the long letter from the noble and learned Baroness the Attorney-General, who made a definite statement, which she will, no doubt, wish to repeat in her reply to this debate. I very much look forward to her speech. However, we must ask her to assure the House that there is no possibility of such an issue arising under this Bill or under any of the procedures in it. If there is doubt, we would be wise to have the protection offered by the new clauses which I have tabled.
When we consider the European Court of Human Rights—I have taken further advice on this—we are faced with different issues. First, the court does not have a power to call in, as it were, the case from the domestic court. It is the litigant who takes his case to the ECHR. There is no obligation—there is nothing parallel to Article 234—under that procedure. However, we find there that the ECHR can consider all the merits of the case. If an issue is raised involving Article IX of the Bill of Rights, the court will consider it.
I will enlarge on that for a moment. The House will be aware that the ECHR is a convention that imposes general human rights standards, irrespective of their subject. Article 6 of the ECHR is likely to be the issue. It prescribes procedural guarantees for fairness in the determination of any criminal charge or any “civil rights and obligations”. My adviser says that it is conceivable that an Article IX point would arise in such ECHR proceedings. As these concern the international obligations of the UK—that is to say, of the executive, judicial and legislative branches of the state—we could not simply assert our own constitutional arrangements as a conclusive answer. That is the advice that I have been given.
However, we could expect to be given,
“a wide margin of appreciation”.
I am not sure that I understand what that means. It was applied in a very interesting case. I assure noble Lords that I do not intend to read all 77 pages of the judgment. The case of A v The United Kingdom came before the ECHR. I will simply say that it was the “neighbours from hell” case that some noble Lords may remember. The neighbours, having been named in another place, took the case to the European Court of Human Rights. What resulted was detailed consideration—page after page of the majority judgment—arguing whether the Article IX provision in the Bill of Rights overrode the right of the applicant, namely the neighbour who had complained, to have what they regarded as justice.
There was a dissenting judgment. The dissenting judge said that Article IX did not override the other conditions. However, the majority of judges in the court found that, on balance, it did. The court considered that the parliamentary immunity enjoyed by the Member of Parliament in the case pursued the legitimate aims that we all support of protecting free speech in Parliament and maintaining the separation of power between the legislature and the judiciary. The judges used this phrase when they ruled that,
“the application of a rule of absolute Parliamentary immunity cannot be said to exceed the margin of appreciation allowed to States in limiting an individual’s right of access to court”.
I would be most grateful if the noble and learned Baroness, in her reply, could explain what is meant by “margin of appreciation”.
I hope that I have established to the satisfaction of the House that it is within the competence of the ECHR to examine whether Article IX applies to a case before it. In the case that I have quoted—I will not read it out to noble Lords, as that would try their patience—there is at least doubt as to whether matters under the Bill could come for judicial review. This would not be by our own courts—Clause 1 removes that possibility—but by the European Court of Human Rights. That is the case that I made in Committee, and the case that I make now. My noble and learned friend Lord Mackay said that he was not sure and that an outcome could not be guaranteed. If there is any doubt left in our minds, the two new clauses that aim to put the matter beyond doubt should be added to the Bill. I beg to move.
My Lords, with the leave of the House, it has been suggested that I should rise at this stage to respond to the comments of the noble Lord, Lord Jenkin. I shall then give the House an opportunity to debate the issues more fully and, if necessary, your Lordships can be wearied by me again in response.
I am very grateful to have this opportunity to respond to the request made in Committee that I should attend today. The noble Lord, Lord Jenkin, among other noble Lords opposite, asked in particular that I provide an assurance that the constitutional relationship between Parliament and the courts will not be adversely affected by the Bill. My views have also been sought on the criminal offence in Clause 8(1), the need for and effect of which have both been rigorously probed by eminent lawyers in this House during debate.
In response to that invitation and with the House’s agreement, I shall take a little time so that I can read into the record the matters that I have already referred to in my letter. I was not able to attend earlier proceedings on the Bill and therefore I assure the House that I have carefully read the Official Report. As ever, I was greatly impressed by the care and concern that this House has shown in examining the Bill and subjecting it to the closest and most intelligent scrutiny. I hope to be able to provide your Lordships with the assurance that they seek.
Today, as the noble Lord indicated, I have written to all those who took part in the debate on the Bill and have made copies of that letter available in the Printed Paper Office. I apologise to anyone who has not yet had sight of it but I assure the House that it was done as speedily as humanly possible. I do not intend to repeat the contents of the letter now but I shall, with your Lordships’ indulgence, explain as briefly as I can why I believe that the proper concerns that have been raised can be answered.
The Bill has been amended substantially during its progress through the other place and the proceedings so far in this House. I shall not enumerate here all the changes that have been made but I think I may fairly say that the version that remains is less ambitious in its aims. Serious concerns were raised that the Bill, which might affect freedom of speech in Parliament and the relationship between Parliament and the courts, could not properly be considered in the time available before the Summer Recess. It is, however, genuinely urgent that the payment of expenses and allowances and the rules relating to financial interests for Members of the other place are put on a transparent and independent statutory footing.
I assure the House that the Bill does not now affect the privileges of this House or the other place, or the operation of Article IX of the Bill of Rights 1689; nor does it enable the courts to question proceedings in Parliament. The Independent Parliamentary Standards Authority will be charged with establishing a new scheme for allowances and for drawing up a code of financial conduct, which will govern the rules relating to the registration of financial interests and paid advocacy. It will be responsible for paying salaries and allowances and for maintaining the register of interests. It will also determine the procedures for investigations by the independent Commissioner for Parliamentary Investigations, who will be charged with investigating alleged breaches of the allowance scheme and failures to register financial interests. However, the authority will have no role in enforcing the scheme or the code or in investigating the actions of individual MPs. It will, as a statutory rule-making body, potentially be subject to judicial review, just as Ministers are subject to the court’s jurisdiction when making rules. There is, in my respectful submission, nothing to fear from that.
Were the Independent Parliamentary Standards Authority to make rules that were irrational or that failed to take account of relevant matters, it is right that it should potentially be subject to review by the Administrative Court. The new statutory Commissioner for Parliamentary Investigations, established under the Bill, will be able to investigate alleged breaches of the allowances scheme or of the code of financial conduct as far as they relate to the registration of interests and within the framework set up by IPSA. He or she will be empowered to agree the terms on which the overpayments of allowances and minor or inadvertent breaches of the registration rules can be settled. In more serious cases, findings may be referred to the House of Commons Committee on Standards and Privileges. The new commissioner will have no jurisdiction to investigate allegations of paid advocacy or failures to declare interests in debate, which will remain, as now, matters for the House.
Like the authority, the new commissioner is likely to be regarded by the courts as a statutory body, subject to the normal principles of administrative law and judicial review. I suggest that there is nothing for Parliament to fear from that either. The Independent Parliamentary Standards Authority and the commissioner are deliberately being set up as bodies independent of Parliament. Although their functions are of great concern to parliamentarians, payments of allowances and registration of financial interests are not matters of privilege and do not entail questioning of proceedings in Parliament. Any decisions on sanctions to be imposed on individual Members of Parliament will, as now, be for the Committee on Standards and Privileges. That committee is a committee of the House of Commons set up under the rules of the House and answerable to the House. The Bill does not affect in any way the committee’s status; its proceedings are recognised as proceedings in Parliament and, therefore, are immune to questioning in the courts by virtue of Article IX of the Bill of Rights 1689. If further assurance is needed, that fact is underlined by what is now Clause 1 of the Bill. I do not think that the Bill has implications for the relationship between Parliament and the European Court of Justice or the European Court of Human Rights.
My Lords, I am sorry to intervene at this stage but perhaps I can take my noble and learned friend back to what she said about the commissioner not having a role in carrying out investigations into paid advocacy. If a Member has not registered an interest but perhaps is caught on the issue of paid advocacy, does that mean that in a complaint which spans both registration and paid advocacy the commissioner outside privilege—the commissioner appointed under the Bill—will consider the issue of registration and the other commissioner, inside privilege—the commissioner for the Committee on Standards and Privileges—will deal with the issue of paid advocacy? In other words, two different commissioners may well end up dealing with exactly the same case. Perhaps we need some assurances on this. If there are to be two commissioners operating on that basis, perhaps we should appoint one and give him two caps: one as commissioner for the Committee on Standards and Privileges and a second as commissioner for IPSA, working outside the House.
My Lords, of course, we might have to look at that in the future. We need to be very clear that IPSA will set the rules on paid advocacy under Clause 5 but that the commissioner's functions under Clause 6 are limited to the allowances scheme and breaches of registration of interests. Investigations of alleged breaches of the paid advocacy rules will continue to be a matter for the current standards commissioner who will report to the Committee on Standards and Privileges. I believe we have clarity there. Of course, some issues will have to be looked at later on but there is not a lack of understanding about how the two will interact one with the other. We are in a fairly robust position going forward.
I was dealing with the situation in relation to the European Court of Justice. I hope I made it clear that I do not think that the Bill has implications for the relationship between Parliament and the European Court of Justice or the European Court of Human Rights. I see nothing in it that raises issues of European Community law that might therefore be justiciable in the ECJ.
In so far as issues arise under the European Convention on Human Rights, if, as the Joint Committee on Human Rights argues, the current procedure of both Houses is incompatible with the convention, it would be open to a Member affected to challenge them in Strasbourg. The Government respectfully disagree with the committee that the current position is in breach of MPs’ convention rights. We think that the better view of convention jurisprudence is that Parliament is entitled to have its own internal disciplinary system. In any event, the Bill does not affect the existing procedure, except to add a degree of independence and further safeguards to the investigation process before findings are referred to the committee.
I think it might be convenient if I deal with the particular concern raised by the noble Lord, Lord Jenkin, in relation to those two courts. The position is different depending on whether we are talking about the European Court of Justice or the European Court of Human Rights. This was explored quite extensively in Committee. The European Court of Justice interprets matters of EU law. Article 234 provides that the European Court of Justice has jurisdiction to give preliminary rulings on matters of EU law, and a domestic court may refer such matters to it when it considers that a decision on the question of law is necessary to enable it to give judgment. I think noble Lords were concerned about circumstances that might arise where someone aggrieved as a result of the Bill could have a matter referred from the domestic courts to the European Court of Justice.
However, let me make it clear that this is not something about which the Government consider there is any real concern. The subject matter of the Bill relates to the allowances and financial interests of Members of the House of Commons. In the Government’s view, it is very unlikely that anything in the Bill would give rise to subject matter that could be interpreted by the European Court of Justice. I note that this accords with the view that the noble and learned Lord, Lord Mackay of Clashfern, expressed in Committee. In Committee, the noble Lord, Lord Jenkin, made particular reference to the European Charter of Fundamental Rights. Incorporation of the charter would not alter the position as I have outlined it because it does not extend the scope of EU law.
I now turn to the position concerning the European Court of Human Rights in Strasbourg. The Government cannot rule out the possibility of matters concerning conduct and discipline in Parliament making their way to the Strasbourg court. I hope I made that clear in my letter. As long ago as 1999, the Joint Committee on Parliamentary Privilege noted that, although proceedings in Parliament are explicitly excluded from the Human Rights Act, that does not affect the position of the Strasbourg courts. However, this is a product of the fact that the European Convention on Human Rights and the Strasbourg court are dealt with by treaty at international law. Unlike the position concerning EU law, matters are not referred by domestic courts to the Strasbourg court. Rather, an individual makes an application directly to that court. Neither the Bill of Rights 1689 nor any amendment to this Bill could alter that position at international law. However, it is essential that the House notes that this can arise at present. It would be possible for a Member of the other place who feels aggrieved by the current conduct and discipline system there to take the matter to the Strasbourg court. In the Government’s view, the provisions in the Bill would only reduce the risk of such occurrences because, for the first time, MPs who have concerns about matters that lie within the jurisdiction of the Commissioner for Parliamentary Investigations will be investigated by an officeholder who is entirely independent of government and Parliament.
A further point to note is that noble Lords should find some comfort from the fact that the Strasbourg court, while not bound by Article IX of the Bill of Rights 1689, has shown that doctrine the utmost respect in the past; I refer to the case—the noble Lord has already mentioned it—of A v the United Kingdom, which the Strasbourg court decided in 2003. To give the noble Lord greater comfort, I should say that the majority was six to one. Most people would say that that was a win. The applicant in that case complained that parliamentary privilege infringed her right to access to a court, guaranteed under Article 6 of the convention, by preventing her from being able to sue a Member of the other place in defamation.
The Member had made the statements that were alleged to be defamatory in Parliament and was thus, at least as far as the domestic courts were concerned, protected by privilege. Even though not bound by Article IX of the Bill of Rights, the Strasbourg court found that there had been no infringement of the convention. This is because the Strasbourg court held that parliamentary privilege pursued the legitimate aim of ensuring that freedom of speech in Parliament was protected and to maintain the separation of powers between the legislature and the judiciary.
The restriction was proportionate because, among other things, it protected only statements made in proceedings in Parliament and the applicant had other means of redress—for example, through the House of Commons Committee on Standards and Privileges. Although the case was not decided in the context of conduct and discipline functions of Parliament, it demonstrates the great respect that the Strasbourg court has previously shown to the UK doctrine of parliamentary privilege, and is an exemplar of what the margin of appreciation delivers. We expect the Strasbourg court to continue to show such respect in the future.
I hope that that explanation will reassure the noble Lord that there is nothing to worry about in that regard.
My Lords, I am very grateful to the Attorney-General. Does she acknowledge that if the Government had followed the recommendation of the Joint Committee on Parliamentary Privilege, which reported 10 years ago, her very comprehensive—indeed, painstaking—explanation of this situation would not be necessary? We are very grateful to her, but is it not a pity that the Government did not follow the Joint Committee’s recommendation 10 years ago?
My Lords, the Government have taken on board the concerns that were raised 10 years ago, but your Lordships will remember that the recommendations were not all universally welcomed. Some of them have proved not to be entirely correct, so perhaps this is not the moment to bandy about beliefs about who was right and who was wrong. I simply ask noble Lords to accept that we have all learnt a lot through the passage of time.
My Lords, I am a non-lawyer and I, too, read my noble and learned friend’s 10-page letter, which I thought I understood. If she is saying in effect that the amendments tabled by the noble Lord, Lord Jenkin, are unnecessary, a more important question is: if they were on the statute book, would they do any harm?
My Lords, we should have on the statute book only that which is necessary. I say that most particularly because I received a very strong stricture from the Lord Chief Justice, who bewailed the fact that we put anything unnecessary on the statute book and enjoined us to resist the temptation fearfully. Having had that stricture once, I will need only to contemplate it to refrain from the seductive lures that my noble friend gives me on this occasion. In so far, therefore—
My Lords, I was not going to interrupt, but is not the answer that it would do harm because it would be inconsistent with our obligations under the convention and would contradict the excellent European Communities Act introduced by the noble and learned Lord, Lord Howe of Aberavon?
My Lords, the noble Lord is probably right, but in order to explain why that is so we would be here for probably another three or four hours, so I shall resist that blandishment too and say that the Bill as currently structured is at last perfectly formed. In so far as issues arise under the European Convention on Human Rights, as the Joint Committee on Human Rights argues, if the current procedures of both Houses are incompatible with the convention, it would be open to a Member to pursue that, as I have described. I hope that I have gone some way towards reassuring the House and assuaging the concerns about the constitutional nature of this Bill.
I shall now pray the indulgence of the House once again to speak to the concerns expressed about the criminal offence in Clause 8(1). I will not comment on the offences that have, as it were, fallen by the wayside in your Lordships’ House except to say that they were certainly in my view legally defensible. However, as they are now of academic interest, at least for the time being, I shall not seek to defend them today. The elements of the offence in Clause 8(1) are making a statement in support of a claim under the MPs’ allowances scheme knowing it to be false or misleading in a material particular. The maximum penalty is 12 months’ imprisonment. It may be tried summarily or on indictment. Offences consisting of knowingly making false statements exist in many contexts where Parliament agrees that there is a need for complete frankness. Examples include applications for passports, driving licences and social security benefits, and statements to company auditors and financial regulators. The Government believe that, in order to restore trust in the integrity of MPs and the system under which they receive public money, it is necessary to make it explicit that MPs, too, should be under a duty of candour.
There is nothing wrong in principle about an offence that applies only to Members of the House of Commons. The other offences, formerly to be found in Clause 8, were paralleled by offences in the Scotland Act and the Government of Wales Act, which were created by this Parliament. They apply only to Members of the Scottish Parliament and the National Assembly for Wales respectively.
As my noble friend the Leader of the House explained in Committee, the new offence is not the same as the more serious offences in Section 2 of the Fraud Act 2006 or Section 17 of the Theft Act 1968. Both those offences require proof of dishonesty and of the purpose of making a financial gain, with maximum sentences of 10 and seven years respectively. As noble Lords know, the Fraud Act was the result of a Law Commission report that recommended that proof of dishonesty should be required in addition to the other elements of the offence that it created as the essence of a serious offence of deception.
I am sure that noble Lords will understand that it would not be appropriate for me to give specific examples of behaviour that might be caught by the new offence but not by the existing more serious offences. In general terms, it may be that dishonesty or an intention to make a financial gain will not be established if a claimant believed that they had an entitlement to the sum claimed; or that the person from whom it was claimed consented to pay it; or that the money would be set off against another entitlement; or that there was an intention to repay it. Proof of all the elements of the offence, including dishonesty and intent to make a financial gain by the false statement, is for the prosecution to establish beyond reasonable doubt.
There is a clear analogy with offences in relation to social security benefits. The summary offence in Section 112 of the Social Security Administration Act 1992 requires proof only that a false representation was knowingly made in a claim for benefits, and the maximum penalty is three months’ imprisonment. That Act also contains in Section 111A(1) the more serious offence of dishonestly making a false representation for the purpose of obtaining a benefit payment; that offence carries a maximum penalty of seven years’ imprisonment. The case law referred to in my letter illustrates that the requirements to prove dishonesty and the purpose for which a false statement is made do indeed make a difference in real cases.
I turn now to the concern raised by the noble and learned Lord, Lord Mackay of Clashfern, that if there were a lesser offence relating to MPs, prosecutors might be inhibited from charging the more serious offence even when the circumstances warranted it. It must be absolutely right that Members of Parliament are subject to the ordinary criminal law and it is no part of the Government’s intention to give preferential treatment to MPs or to create a carve-out from the offence in Section 2 of the Fraud Act for Members of Parliament. Selection of the appropriate offence within a hierarchy of potential charges is an important part of the prosecutor’s role. The guidance to the Crown Prosecution Service issued by the Director of Public Prosecutions makes it clear that the selection of charges must reflect the seriousness and extent of the offending, giving the court adequate powers to sentence and enable the case to be presented in a clear and simple way. In addition, the guidance on Section 2 of the Fraud Act already alerts prosecutors to other offences that may be considered, including false accounting and various false statement offences.
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, just as those responsible for ensuring the integrity of the social security system have the option of prosecuting for the more serious offence in Section 111A of the 1992 Act where dishonesty can be established. There are no grounds for saying that this Bill gives Members of Parliament preferential treatment by comparison with their constituents. On the contrary, for the first time it places them under a similar obligation to tell the truth in claims and creates a sanction should they fail to do so. A number of us listened carefully to the words of the public when it was said, “If I had made this claim on a benefit form, I would have been prosecuted”. It puts MPs in a similar position when making a declaration; if they do so within the meaning of this offence, they, too, will be subject to similar rigour.
I hope that I made it clear in my letter this morning and in what I have said in response to the amendment—I know that my noble friend the Leader of the House has made it clear—that it is not the Government’s intention, in bringing forward the offence in Clause 8(1), to see Members of Parliament in the criminal courts. Rather, it is to make it as plain as it can be that the duties of honesty and integrity that underpin the codes of conduct of both Houses are not empty words. They entail a positive duty of probity and candour. Members of Parliament should be in no doubt whatever that, once the new allowances scheme is put in place by the Independent Parliamentary Standards Authority under the terms of this Bill, they must not include in any claim under it information that they know to be false or misleading. The Bill neither is unfair to Members of Parliament nor does it give preferential treatment as compared with members of the public.
I hope that I have been able to provide at least a measure of reassurance to those who have expressed concerns about the Bill. I believe it to be a necessary part of re-establishing public trust in their elected representatives. I do not believe that it intrudes in any way into the privileges of this House or the other place, or that it affects the delicate balance in our constitution between Parliament and the courts. On that basis, I commend it to your Lordships, in the hope that I have left no stone unturned and that therefore the debate can now conclude.
My Lords, when I first suggested in discussions ahead of the Committee stage last week that it would be helpful to have the advice of the Attorney-General, the Leader of the House kindly agreed to consider it. I should stress that the suggestion in no way reflects on the Leader of the House, who has shown the most extraordinary grasp of the Bill and has been eloquent in expressing her views on it. None the less, I think that it was a good suggestion and I am glad that it was accepted. It has been extremely helpful to have the views of the Attorney-General. In addition to what she has said this afternoon, she has, as the noble Lord, Lord Barnett, pointed out, written a letter of some 10 pages in length. I have to say that in some ways I found the letter easier to understand than the speech. I am not sure to what extent the status of the letter means that it can be included from a Pepper and Hart point of view—perhaps by way of a Written Answer or something of that kind.
I do not want to delay the Committee for long. The letter reassures one to a considerable extent. However, it is wise that we should have the safety net of the amendment that was accepted last week with regard to the Bill of Rights in this Bill even though, if I understand it correctly—the Attorney-General will tell me if I am wrong—she does not think it likely to be used. I will not say that it is unnecessary because I do not think that it is, but it is unlikely to be used. The only point that I have on that is that I now realise that the amendment is not, strangely enough, in line with the Bill of Rights, which refers to “any court”, whereas the amendment as it has been included in the Bill refers to “any court in the United Kingdom”. I am beginning to wonder whether we ought to take out the phrase “in the United Kingdom” at Third Reading to avoid any doubt about the international position. No doubt we can think about it.
I thank the noble and learned Baroness for her remarks, which are reassuring. It is quite extraordinary that the Bill ever saw the light of day in its original form given the fantastic way in which it has been hacked about since then. However, we have made a good job of hacking it about and we can be reassured that we have done as much as we can about the concerns expressed with regard both to privilege and to the relationship between the courts and Parliament.
My Lords, there is just one stone that I should like to turn, because I respectfully agree with all that the Attorney-General has said. The point arises later in amendments about fairness and rights of appeal. Does the noble and learned Baroness agree that, if the House of Commons were to change its standing orders and procedures in such a way as to include fairness and some sort of right of appeal, this would make it even less likely that a case could succeed in Strasbourg under Article 6 of the convention because the House of Commons itself would have put its own procedures in order? If that is the case, it will obviously make it much easier to deal with those amendments later.
My Lords, perhaps I may add one footnote to the powerful and helpful observations of the Attorney-General, with which I agree, relating to judicial review. There are many cases where courts have declined to entertain applications for judicial review where the body concerned, even though it is a statutory body, is performing an advisory function and the effective decision is made by another person. The court takes the position that the complainant should exhaust the procedure before the body which decides the matter rather than litigating with the advisory body.
This is important because many—not all—of the functions which we are conferring on IPSA and the commissioner are advisory, not deciding, functions; they are reporting, effectively, to the other place. Were a judicial review application to be brought in relation to the performance of such a function, I would expect that the courts would be likely to decline to entertain the application. They would do so not merely because IPSA and the commissioner are advisory bodies in that respect, but also because their function is preliminary to the performance of a parliamentary function by the other place. Were they to read these proceedings, I would not want any future court to proceed on the basis that it was accepted in this House that applications for judicial review against IPSA and the commissioner would and should be entertained by the High Court in all circumstances.
My Lords, I respectfully agree with the noble Lord, Lord Pannick. I am sure that none of us would wish to encourage the thought that these proceedings, which are outside Parliament but are preliminary to proceedings in Parliament, should be the subject of judicial review. The jurisdiction is there in all probability but I would hope that the courts would find it unnecessary to exercise it. I think I am right in saying—I am going very much on my memory—that there is a medical case in the books in which the House of Lords thought that judicial review was possible even though there was an ultimate appeal to the courts. But that does not detract from the point that has been made.
I thank the Attorney-General for her excellent letter and for the concise but authoritative statement she has made today. If it commends itself to the House of Commons, it would be desirable for it to adopt procedures which are in accordance with the Strasbourg and our own common law rules of fairness. But that is a matter for the House of Commons and should not form part of the Bill.
My Lords, I, too, congratulate the Attorney-General on her clear and concise exposition of her case. Perhaps I may make a brief point on Clause 8(1)(a) in relation to a false claim. I shall try to illustrate how narrow the difference is between the Government’s case and the case of those of us who have spoken at some length and with great force against that measure. It is perfectly clear that, in so far as the vast majority of cases which come under Clause 8(1)(a) are concerned—as was illustrated so trenchantly by the noble and learned Lord, Lord Mackay of Clashfern, last week—the vast majority will inevitably involve dishonesty. It is impossible to conceive of a situation where a person deliberately makes a representation knowing it to be false or misleading without it being dishonest.
However, when the Leader of the House was asked last week about illustrations, she helpfully described two situations where it might be difficult to prove dishonesty as defined under the authority of R v Ghosh some 25 years ago, a case which has been regarded as the classic enunciation of that interpretation. The noble Baroness said that there could be a situation where a person rents flat 22A but then, for one reason or another, moves to flat 24A in circumstances that are identical. The claim that would be made would be incorrect—it would be false—but it would be for exactly the same amount of money as would be deserved by that claimant in any event. The other illustration would be perhaps more difficult to deal with. It envisages a situation where a Member of Parliament had gone along to one of the servants of the House and had been assured that it was perfectly proper, moral and legal in every way for a claim to be made, only to find out later that that was not the case. Those two instances illustrate the difference between offences under the Fraud Act 2006 and the Theft Act 1968 and the offence now under Clause 8(1)(a) and (b).
However, the point I make is this: in those instances, would anyone in his senses wish to prosecute a Member who had been told in terms by a servant of the House that what he was doing was entirely proper; or where the person did not want to fill in a whole barrage of forms to change his application from 22A to 24A? Indeed, there may be some other reason—he may have formed a relationship with someone and did not want to publicise the fact that he had gone to a different flat—but would anyone in his senses prosecute in those circumstances? If the answer to my rhetorical question is no, what is the point of breaching the fundamental rule of privilege that the jurisdictions of the High Court to Parliament and the jurisdictions of the other courts are mutually exclusive? It is not worth it.
My Lords, I thank all noble Lords who have agreed with the analysis and for the kind remarks that have been made about it. I can reassure the noble Lord, Lord Elystan-Morgan, about the difference between these two offences. We have to take into account that if, pursuant to Section 112 of the Social Security Administration Act 1992, an ordinary member of the public made a false declaration similar to that which we now contemplate, they would be successfully prosecuted. We are trying to draw a line under the poor practice that has gone before and be very clear that all Members of Parliament have to act with the utmost probity when filling in these issues. We would hope that no Member of Parliament would seek to deliberately fill out these forms incorrectly in a false or misleading way. So whatever has gone on in the past will be left in the past, but from now on there will be this clear standard.
We do not think that it will cause undue difficulty. The aspiration of the whole House and the other place is to have rules that are clear and precise and easy to follow, and not depend on conversations about what may be in and may be out. A lot of pain and difficulty has been caused because there was not clarity: what one person thought was in, another person thought was out; one person may have been given an assurance, another person was not. We hope that that will now be concluded. We will have new rules, clearly understood and promulgated, that will enable all to know precisely where they stand and therefore to answer frankly.
I say to the noble Lords, Lord Pannick and Lord Lester, and the noble and learned Lord, Lord Mackay of Clashfern, that I agree with them. I would particularly like to adopt in their entirety the comments made by the noble Lord, Lord Pannick. I would not wish the courts to misunderstand the acceptance that I make that there is a technical ability to judicially review, because they can do so only within the context and confines that currently exist for that principle. I respectfully agree with the noble Lord’s analysis that, in the circumstances that he describes, the court, acting properly, would be likely to resist the temptation to review. Nothing that I say should be misinterpreted. We therefore have, in this debate, a happy Pepper v Hart exposition.
With regard to the comments from the noble Lord, Lord Lester, and the noble and learned Lord, Lord Mackay of Clashfern, about fairness, I respectfully say that there is a great deal of merit in the suggestions that they make. I am confident that this matter is likely to be addressed, if not in this debate then later.
My Lords, I am grateful to all noble Lords who took part in this debate. I think that the circumstances will show that I was justified in putting these clauses down again in order to enable us to have what I can describe only as the immensely authoritative statement from the noble and learned Baroness the Attorney-General, coupled with her letter. I have some sympathy with those who suggested that it is easier to read the letter than to follow the somewhat complicated argument that the noble and learned Baroness delivered in the House, but we will have both. She has been reading into the record in the shape of Hansard, while her letter contains some additional explanations.
I shall not go into the whole question of criminal liability under Clause 8. That has been addressed by others, and we have had an interesting and authoritative answer. On the question of the European legislation, though, it is now recognised that yes, the European Court of Human Rights can call into question what is said in Parliament, as was emphasised by the case that I cited and which the noble and learned Baroness also referred to, A v United Kingdom. There is recognition that there are circumstances in which Members of either House can find their remarks being quoted in a court. On whether my noble friend Lord Higgins is right that taking out the words “in the United Kingdom” would make a difference, I would need to take legal advice; neither he nor I are lawyers, and I would hesitate to express an opinion.
The noble and learned Baroness has gone a long way to satisfying me that the risks of there being a major challenge to Article IX of the Bill of Rights 1689 are extremely small. Although one might have some doubts about her assertion that the Bill is now “perfectly formed”—I have a suspicion that she may come to regret those words—she has gone a long way to satisfying me on the merits of this particular case. I beg leave to withdraw the amendment.
Amendment 2 withdrawn.
Amendment 3 not moved.
Clause 2 : Independent Parliamentary Standards Authority etc
4: Clause 2, page 2, line 2, at end insert “(“the Committee”)”
Amendment 4 agreed.
Schedule 1 : Independent Parliamentary Standards Authority
5: Page 6, line 21, leave out from "means" to end of line 22 and insert "-
(a) a function that is exercisable-(i) by the Director by virtue of this section, or(ii) by customs revenue officials by virtue of section 11,(b) a function that is conferred on customs revenue officials or the Director by or by virtue of any of sections 22 to 24 (investigations and detention), or(c) a function under Community law that is exercisable by the Director or customs revenue officials in relation to a customs revenue matter."
Amendment 5 agreed.
6: Schedule 1, page 15, line 34, leave out “consistency” and insert “the consistency specified under sub-paragraph (3)”
My Lords, we had a brief discussion in Committee about the meaning of the word “consistency” in the subsection concerned. The noble Lord, Lord Borrie, suggested that it obviously referred back to the previous clause, and the noble Lord, Lord Bach, agreed with that. I suggested that if the word “such” were inserted, that would make it clear. That did not find favour, as was indicated in the letter that we had from the noble Baroness the Leader of the House. I therefore suggested the words in this amendment instead. This is a matter of legal interpretation; there is no real substance in the thing other than where it makes the issue clearer to the reader. As the Bill originally stood, the word “consistency” at the end of the subsection seemed to give rise to some confusion. I beg to move.
Amendment 6 agreed.
Clause 4 : MPs’ allowances scheme
7: Clause 4, page 3, line 3, at end insert—
“(1) In section 3A(1) of the European Parliament (Pay and Pensions) Act 1979 (c. 50) (power to make order aligning MEPs’ resettlement grants with MPs’ resettlement grants), after “resolutions of the House of Commons” insert “, or a scheme under section 4 of the Parliamentary Standards Act 2009,”.”
My Lords, this is a technical amendment. Under the European Parliament (Pay and Pensions) Act 1979, there is a power for the Leader of the House of Commons to make an order aligning MEPs’ resettlement grants with MPs’ resettlement grants. At the moment, the power can be exercised only to align MEPs’ grants with resettlement grants set by resolution of the House of Commons. In future, however, resettlement grants will be set as part of the allowance scheme that is drawn up by IPSA. It is a key part of the scheme for improving the independence and transparency of the allowances scheme that it should not be subject to approval by resolution of the House. Without this amendment, therefore, there would be no means in future of aligning MEPs’ resettlement arrangements with those for MPs.
I should add for clarification that, from 14 July 2009, the 1979 Act applies only to those who were MEPs before that date and who opt out of the new system for payment of MEPs by the European Parliament. I beg to move.
Amendment 7 agreed.
8: After Clause 5, insert the following new Clause—
“Information and guidance about taxation
(1) The IPSA must provide to members of the House of Commons—
(a) details of any general information or guidance about taxation issues published by HMRC that it considers they should be aware of, and (b) any other general information or guidance about taxation issues that it considers appropriate (consulting HMRC for this purpose as it considers appropriate).(2) “Taxation issues” means—
(a) issues about the taxation of salaries payable under section 3 and allowances payable under the MPs’ allowances scheme, and(b) any other issues about taxation arising in connection with those salaries and allowances.(3) “HMRC” means Her Majesty’s Revenue and Customs.”
My Lords, this amendment deals with an issue which arose in Committee in the other place. It was felt in debate there that, given that some of the public concern about the issue of allowances and expenses arose from the tax treatment that had sometimes been applied, there was a case for making clear what IPSA’s responsibilities with regard to taxation matters were.
A new clause, proposed by Mr Durkan in another place, would have laid certain obligations on IPSA in relation to both individual tax deductions and general guidance. In that debate, the Government clearly understood that rules in relation to taxation concerning the tax treatment of second homes and questions about whether accountants’ expenses were tax-deductible had formed part of the public concern about the revelations about the expenses regime in the other place. However, the Government had concerns about the drafting of Mr Durkan’s proposed new clause.
It either set out matters of general practice which would apply to any person who was making payments that would be taxable, such as salaries, or it appeared to suggest that, in certain circumstances, the IPSA might be obliged to give individuals tax advice. In particular, the clause proposed by Mr Durkan said that the IPSA should give individuals advice on relevant principles and considerations of due parliamentary standards. As was pointed out during the debates in the other place, it is the individual’s obligation to determine his or her tax liability and, if necessary, to seek professional advice so to do. It would not be, and should not be, an excuse for making the wrong tax payments that the IPSA had given advice on the matter. HMRC already provides general advice and guidance. Legislating for that would be unnecessary and potentially have unforeseen consequences.
However, although the Government were concerned at the wording of Mr Durkan’s proposed new clause, they accepted the general principle of what he was aiming at. The draft clause which I have now tabled sets out the general obligation on the IPSA to provide to Members of the House of Commons any general information or guidance about taxation issues published by HMRC. The key point of this is that the obligation is to make available guidance which HMRC has published. In addition, it may make available information or guidance about taxation issues that it considers appropriate, but again in consultation with HMRC. We consider this to be a proportionate response to the issues raised in the other place, but without falling into the difficulties that might have arisen under the original new clause moved by Mr Durkan. I beg to move.
Amendment 8 agreed.
Clause 7 : Investigations
9: Clause 7, page 5, line 5, leave out from “such” to “are” and insert “conditions as are specified by the IPSA under subsection (9)(d)”
My Lords, I hope that we can take this amendment with Amendments 10 and 11. Noble Lords will remember that the Government tabled a fairly substantial amendment to the Bill in Committee, inserting subsections (4), (5), (6) and (7) in Clause 7. Subsection (5)(b) refers to,
“such other conditions as may be specified by the IPSA”,
in relation to payments. Subsection (7)(c) also refers to,
“such other conditions as may be specified by the IPSA”.
I have to say that I was totally confused: I did not know what those conditions referred to. However, the noble Lord, Lord Bach, very swiftly enlightened me by saying:
“IPSA can impose conditions about which cases are suitable to be dealt with in this way”.—[Official Report, 14/7/09; col. 1086.]
Light dawned, and one then realised that this was quite an important part of the Bill.
We now have the very full description set out on the first and second pages of the letter of 16 July written by the noble Baroness the Leader of the House, which explains clearly to what the provision refers; namely, that if a Member has made a claim which turns out to be of the kind referred to in the Bill and is of relatively minor concern, the commissioner does not have to refer the findings to the Committee on Standards and Privileges. I can well understand, as is explained at some length in the letter, that the IPSA may well want to attach some conditions to the circumstances in which that non-referral might take place, and it is to that that “other conditions” in the Bill refers. However, although the clarification has been made, the letter is not part of the statute. It may be sensible for the noble Baroness to say just a few words, perhaps not as long as her letter, to put on the record just what these conditions are about.
It was said in the debate—I think by the noble Lord, Lord Goodhart—that it was important that people should know what the conditions are. One therefore asks whether they will be published or are relevant only to particular cases. It would be helpful if we could get some guidance on that. I beg to move.
My Lords, as the noble Lord, Lord Jenkin, mentioned, I said in Committee that it is highly desirable that the Bill should contain provisions about what is to happen if no fault is found—which it does not at the moment. I notice that that is covered in Amendment 12 rather than in Amendments 9, 10 or 11, but I think that the noble Lord, Lord Jenkin, has treated them together. The noble Lord’s suggestion in Amendment 12 that it should be a matter for a Member to choose whether the findings remain off the record or are published if he or she wishes it is perfectly reasonable.
My Lords, the conditions referred to in subsections (5)(b) and (7)(c) need not refer only to the conditions for the rectification of the error. They could equally well cover other conditions in relation to the commission of the error; in fact, they are more likely to do so given that a number of conditions in relation to the rectification of the error are already set out in the Bill.
As I stated in the letter mentioned by the noble Lord, the requirement for conditions specified by the IPSA to be met allows the IPSA to set the rules about when the commissioner can decide not to refer a matter. To determine that a case should not even go to the Committee on Standards and Privileges where a fault or problem has been found is a serious matter. The power to set conditions allows consideration of what other controls may be needed on the exercise of that power. Conditions that might be set could include, for example, maxima for the repayments which could be acceptable, or conditions requiring a reference where there is a series of findings relating to the same member. It is in the Government’s view essential that the IPSA be able to consider and review the conditions that may need to be met as the code evolves. As we said in Committee, these are not intended to provide extra hoops for MPs to go through, but to attempt to be open about the fairness of the procedures.
When we discussed this part of the Bill in Committee, the noble Lord recognised that there would be circumstances with which the IPSA was faced which could not be predicted. He therefore accepted that it was reasonable for the IPSA to be able to set further conditions without specifying what those might be. He further suggested that the drafting could be improved by the insertion of “reasonable”. He said:
“The insertion of that word would simply act as a signal that, if the commissioner and IPSA found themselves with a case which might arouse strong emotions because people had behaved very badly, they should not be allowed to introduce vindictive conditions but, rather, reasonable conditions”.—[Official Report, 14/7/09; col. 1080-81.]
That point is already covered. If an MP has acted very badly, he will not have access to this procedure in the first place.
In relation to overpayment of allowances, the MP must have acknowledged the breach and have agreed to remedial action. In relation to breaches of the code, the financial interest concerned must, in the view of the commissioner, be minor, or the failure to register inadvertent. The provisions in subsections (5)(b) and (7)(c) do not mean that the IPSA can use these powers to set out a series of conditions which have the effect either of undermining the other provisions of the subsections or the more general procedures which are to be drawn up under subsection (9). However, the Government accept that the noble Lord has made a case that these conditions, like the other procedures which the IPSA will draw up, should be subject to the same sort of consultation. For the reasons I have set out, we cannot accept the noble Lord’s amendments as they stand and we want to keep the provisions in subsections (5)(b) and (7)(c ), but we undertake to bring forward an amendment in substitution for his amendment to subsection (9) which will make this provision subject to consultation. I am very grateful for the ideas put forward by the noble Lord and I look forward to bringing back an amendment at Third Reading.
My Lords, I am immensely grateful to the noble Baroness for her support. We look forward to seeing her amendment in a couple of hours’ time. The noble Lord, Lord Barnett, laughs because he suspects that the relevant debate will take more than two hours, but we look forward to seeing the amendment whenever it arrives. With that assurance, I beg leave to withdraw the amendment.
Amendment 9 withdrawn.
Amendments 10 and 11 not moved.
12: Clause 7, page 5, line 30, at end insert—
“( ) The member may, if no fault is found by the Commissioner, require or refuse publication of the findings.”
My Lords, I am in the happy position of having already secured the support of the Liberal Democrat Benches and of my own Front Bench for this amendment. I hope that it will also have the Government’s support.
If a Member is found not to be at fault, and presumably with no blame, he may have incurred unwelcome publicity, in which case he might require the matter to be reported to the Privileges Committee so that it can become a matter of public knowledge. On the other hand, he may feel that the whole thing was a mistake, that there has been no publicity and question why it should go to the Standards and Privileges Committee. It seems to me that it should be his choice. If it has been found that he was not at fault, he can decide whether there should be publicity. I beg to move.
As the noble Lord explained, his amendment would leave it up to the MP to decide whether a “no fault” finding should be publicised. We had some debate in Committee on 14 July about what should happen to publication of the commissioner’s reports, particularly where there had been a “no fault” finding. I think that noble Lords were torn between concern for the position of the MP and concern that an inquiry could be conducted entirely in private with no transparency. In that case, what guarantee would there be that a “no fault” finding was genuine, or that the rules had been applied consistently, if the results of some investigations were not publicised?
The Government believe that there should be a presumption in favour of transparency. We think it highly unlikely that an MP who is known to have been under investigation and has been cleared will not want a report to be made. Otherwise the issue would appear to have been left unresolved. The points about consistency of treatment I have referred to are extremely important. Moreover, we have heard much lately about “transparency being the best antiseptic”. It is because of the perception that the present scheme is handled behind closed doors and according to arcane rules that much of the present public anger has been provoked.
Having said that, the Government also believe that the question of whether there should be publication of a finding is for the IPSA to draw up, as the Bill provides. We do not think it is right that the Bill should seek to dictate this and we do not agree that it should be for the MP to decide whether or not a finding should be published. There must be a consistent scheme for this. It may be that the proposed consistent outcome is that “no fault” findings are not published. It may be that the proposed consistent outcome is that cases where the commissioner concludes that he or she can settle the matter without reference to the Committee on Standards and Privileges should not be published. The Government might think that is the wrong approach, but they still consider that this is for the IPSA to determine. In other debates noble Lords have asked questions about how we can be sure that the financial interests code will be applied consistently. One of the answers to that question is, “by making public the outcome of investigations”. That should be, I would suggest, the starting point.
That is a somewhat disappointing reply. By definition we are dealing with the case of a Member against whom no fault has been found. It seems to me that the initial stages of an investigation by the commissioner are bound to be conducted away from the public eye. The press will not be breathing over his shoulder, watching every move he makes. If he finds that there is absolutely no fault at all, and there has been no publicity, I cannot understand why that matter needs to be referred to the Committee on Standards and Privileges.
The noble Baroness said that we should let the IPSA make the rules. It is probably not appropriate that we should divide on this issue this evening and I do not think that the House is in a mood for that. However, I hope that the IPSA will be persuaded to have some regard for the points that have been made in several parts of the House this evening that some consideration should be given to a Member’s own position in those circumstances. That is all I am asking for. If the noble Baroness does not like that, she must express her views to the IPSA. I hope that the IPSA will take account of what has been said in this House.
My Lords, my noble friend makes a very powerful case. Consistency is known as the hobgoblin of little minds. In this case it does not apply at all. I draw a parallel with people who give to charity. Sometimes people who give to charity like to have public approbation for what they are doing. Other people give to charity anonymously because they do not want other charities battering on their door. That is not being inconsistent. I hope that the noble Baroness will think of some way of going further to meet my noble friend’s point. Not least, the IPSA could have a duty to consult the Member’s wishes. It may be thought that there would be a presumption that the Member’s wishes would be respected even though she may not wish that to be final.
My Lords, I stand by what I said in response to the noble Lord, Lord Jenkin. The Government believe that this is a matter for the IPSA to decide. The IPSA may decide that it wishes to have a consistent approach, or it may not wish to do that. However, it is up to the IPSA. I hope that noble Lords will agree that it is appropriate for this matter to be left to the new body.
My Lords, I am grateful to my noble friend Lord Lawson. I note that he will not speak in the next debate. I am concerned that an important debate is to follow and I do not want to waste time. I have heard what the noble Baroness the Leader of the House has said. I hope that the IPSA will take account of what has been said in this House. I beg leave to withdraw the amendment.
Amendment 12 withdrawn.
13: Clause 7, page 5, line 36, after “must” insert “be fair and”
My Lords, Amendment 13 would impose on the IPSA a duty to ensure that the procedures which it lays down for the conduct of investigations by the commissioner must be fair. Subsections (11) and (12) already require that the procedures must satisfy specific requirements of fairness, but all other matters of procedure are at present left to the IPSA, with no governing principle in the legislation.
Given the novelty of the functions that the commissioner and the IPSA will perform in relation to investigating the conduct of a Member of Parliament, and that these new functions are being created in order to respond to the public demand for a transparent and fair system, it is necessary for the legislation to state that fair procedures are required. That would not limit the discretion of the IPSA to decide for itself what fairness requires in this context. But it would be helpful to IPSA, the commission and the public by leaving no doubt that the general criterion in relation to the important procedures is one of fairness. I beg to move.
My Lords, I added my name to this amendment and I would like to add one or two comments. As the noble Lord, Lord Pannick, indicated, judicial review would be extremely rare in this context. Therefore, inserting the word “fair” as a requirement of procedures would not make it more likely that the courts would become involved in deciding whether a procedure was fair. But as I said in earlier debates on the Bill, Members of Parliament are entitled to be treated fairly. I am sure that everyone in the House and the other place would agree with that. Since it is important that procedures be devised in the other place that ensure fairness, one of the important aspects of this amendment is to send a signal—in the Bill or in some other way—that this House hopes that the other place will ensure fairness in all its procedures. There may be other ways of dealing with this, but I ask the noble Baroness the Leader of the House, or whoever is responding, whether this might be done in some way to ensure fairness.
I have one other slightly odd thing to say. For a different purpose, I have been looking at the procedures in Hong Kong—that remarkable, small but very energetic place. I found to my surprise that the Government there have dealt with members of the Legislative Council's expenses, complaints and anything else, including a fair procedure and an appeal, in the most remarkable way. I find it amazing, having taken it to bits over the weekend for another purpose, that they had been able to do that in the Special Administrative Region of the People's Republic of China. Hong Kong has a basic law and fairness spelt out. It does not have the sovereignty of Parliament, but it does have parliamentary privilege. At the very least, should we not ensure that Members of Parliament are treated fairly by saying so—either in the Bill, as this amendment suggests, or in some other way?
My Lords, I support what has been said about this amendment. One thing that none of us would want to see is the courts involved in the activities of IPSA except in the most exceptional circumstances. It is undoubtedly the case that if the courts were involved, they would say that IPSA was under an obligation to be fair. That is self-evident under the normal rules that the courts require on application for judicial review. But in these special circumstances, we want to avoid the matter being in any doubt so far as IPSA is concerned. The way to avoid that doubt is by having it clearly stated in the Bill that fairness is required.
My Lords, I, too, support the amendment. The noble Lord, Lord Pannick, talked about various groups of people who want to see the word “fair” included in the Bill. Members of Parliament in the other House should have that in the Bill. It is important. There are a whole lot of things in Clause 7 about what IPSA must do and what the procedures must be, but the most important procedure of all is fairness in the way that IPSA carries out its duties.
My Lords, it is perfectly natural to have fairness expressed in this. We are not interfering with the House of Commons at all. Its procedures have to be dealt with in connection with its executive action. But as for the commissioner’s inquiries and so forth, IPSA is making the rules and that those rules should be fair is almost self-evident.
My Lords, I am grateful to the noble Lord, Lord Pannick, for allowing us to debate this matter again. I agree with the noble Lord, Lord Lester, that MPs are entitled to be dealt with fairly. As the noble and learned Lord, Lord Woolf, suggested, IPSA and the commission, as public bodies, will be under a public duty to act reasonably and that duty is analogous to the duty to act fairly. I have listened very carefully to what has been said in Committee. I have listened to the distinguished contributions of noble and noble and learned Lords who have spoken in our debate this evening and the Government are happy to agree with the amendment.
Amendment 13 agreed.
Amendment 14 withdrawn.
Clause 9 : Further functions of the IPSA and Commissioner
15: Clause 9, page 6, line 38, leave out subsection (6)
My Lords, the noble Lord has taken me by surprise. He will remember that there was a discussion on the issue of the various commissioners in Committee and my noble friend Lord Higgins, and in particular the noble and learned Lord, Lord Woolf, asked why it was necessary to have two commissioners. He made the point that it could give rise to some confusion and even in our debate there has been confusion. We are dealing with two commissioners. There is the existing Parliamentary Commissioner for Standards, Mr John Lyon, CB, who the noble Baroness explained would remain responsible to the Committee on Standards and Privileges. Then she went on to refer to the second one as the IPSA commissioner who would deal purely with financial breaches within the framework set out by IPSA. In the Bill, he is actually known as the Commissioner for Parliamentary Investigations, but we understood what she meant. That is what he is called. He is referred to throughout as the commissioner. We have become used to that.
To come back to the question of the noble and learned Lord, Lord Woolf, do we really need two commissioners? Would there be a possibility of a merger between the two bodies or might there be some transfer of functions? That leads us to the Bill. I was expecting there to be an amendment about the right of appeal, but it was not moved so this is all very difficult.
We are dealing with Clause 9 on further functions. We come to the question of the possible transfer of functions between the two commissioners. The purpose of tabling this amendment was not necessarily to remove subsection (6) but to give the noble Baroness an opportunity to be a little more explicit about what the Government intend. It is not at all clear from this clause what functions might be transferred to the new commissioner; the Commissioner for Parliamentary Investigations. Why is the provision in the Bill? What functions might be referred to the new commissioner? Who is expected to take the initiative in proposing such a transfer of functions? When do the Government expect such a process to take place?
One difficulty that has already been referred to this afternoon is that the existing parliamentary commissioner is not a creature of statute. His existence depends entirely on resolutions in the other place, whereas the new commissioner for investigations will owe his existence entirely to this Bill; he will be a creature of statute. Are the Government satisfied that Clause 9 as drafted will deal with this considerable difference in the origins of the two bodies?
I am sure that I am not alone in looking for some clarification of what this clause is intended to bring about, and I hope that the noble Baroness will be able to give us some enlightenment. I beg to move.
My Lords, I understand why the noble Lord, Lord Jenkin, wishes to have clarification of this clause. As he said, we have returned to a point made in an earlier debate by my noble friend Lord Campbell-Savours.
The initiative for any transfer of functions must come from the Speaker. It has to be discussed with the Committee on Standards and Privileges as well as with IPSA. The Speaker has to lay any agreement to transfer functions before the House, and it cannot come into effect until the House has resolved to approve it. Therefore, I think that it is clear that there is little opportunity for a transfer of the sort of functions that noble Lords may be concerned about, because those who would be responsible for this transfer of functions would not make a recommendation unless they had decided that it was in the best interests of the House. Moreover, it is important to be clear that Clause 9(4) can only be used to transfer existing functions of the parliamentary commissioner for standards. The new statutory commissioner would then in essence be wearing those non-statutory functions as a separate hat. There would be no question of the statutory commissioner exercising his statutory functions in relation to those matters, and, in particular, the statutory commissioner would be acting in accordance with the standing orders of the House rather than the procedures of IPSA.
So, in future, if the House of Commons and the Speaker of the House wish to have just one commissioner, not two, that would be possible. But that commissioner would wear two hats: he would wear one hat with his statutory functions and one with his non-statutory functions. However, I can assure noble Lords that there is no intention that this provision could be used to give the new commissioner responsibility for things that both Houses have made clear during the discussions on this Bill they would not wish him to take on. But there may be functions of the existing commissioner that are purely administrative which it may be thought useful in future to transfer to the new commissioner. That is why we have left the provision in the Bill, along with that for allowing the transfer of functions to IPSA in relation to the keeping of registers.
It is therefore a process of evolution. We are future-proofing to some extent, because we believe that in future they may wish to transfer some administrative functions of the commissioner for parliamentary standards to the new commissioner—that is, the Commissioner for Parliamentary Investigations. We are enabling that process to take place should the Speaker of the House of Commons deem it fit.
My Lords, having spent some time on that committee, I say to my noble friend that it may well be that the commissioner in the Commons—the commissioner to the committee—should simply go completely so that there is only one commissioner. That system might work far more effectively. The only residual issues would probably be in the area of dealing with breaches in cases of advocacy, but those could be dealt with directly by the committee on privileges itself.
My Lords, my noble friend may well be right, and the way in which the Bill is constructed would enable that process to happen. I therefore hope the noble Lord will agree that the amendment is not necessary and agree with the clause as drafted in the Bill.
My Lords, I was not proposing that it should be removed from the Bill; it is perfectly obvious that it is a proper definition clause. However, the noble Baroness has given us some explanation of how she sees this developing. There are two different commissioners; they have different origins, as I said, and they have different roles. It may well be that there can be a process of rationalisation between the functions of the two. As she said, the number of people who have to be consulted and the consents that would need to be formed provide protection for both the public and the Members of another place. I am grateful to her for her explanation and, with that, I beg leave to withdraw the amendment.
Amendment 15 withdrawn.
Clause 13 : Expiry of provisions of the Act
16: Clause 13, page 9, line 6, leave out subsections (3) to (5)
My Lords, last week, during the second day in Committee, we had a brief debate on the relative merits of two alternative arrangements for the review of the Bill after two years. The common ground between our amendment then, proposing a sunset clause, and that from the noble Baroness the Leader of the House, proposing a renewal clause, was that since the Bill had been given a fast-track procedure it should be looked at again within this two-year period. This reflected a generally expressed view in the other place that such a process was desirable. There was very strong support from the Conservative Front Bench, and indeed that was reflected again last week when the noble Lord, Lord Strathclyde, supported our amendment for a sunset clause. Indeed, in the debate against a sunset clause in the other place there were only two strong arguments: the first was that one year is too short, but we have met that; and the other was that it was not necessary for the whole Bill to be subject to a sunset clause, it was only those parts of the Bill from Clause 5 onwards that might require that process. There was also strong agreement in your Lordships' House last week that some form of review was required.
We want in this amendment to try to achieve some consensus about the best format for that review. In both Houses there has been a widespread recognition that the speed with which we have dealt with this important Bill makes it a natural candidate for some form of sunset review. I heard earlier some exchanges between the noble and learned Baroness the Attorney-General and others about whether the Bill is now perfectly formed. I think that may still be a matter of some concern. However, what is certainly true is that in two years' time we will be much better able to make sure whether that is indeed the case.
The consensus we are seeking to achieve is that while everyone now accepts that some form of review is necessary within the two-year period, we are saying—and the Government agree with this—that it should take place after two years from the date of Section 6 coming into force. Again, we have sought to compromise on that.
On the other hand, we part company on the mechanism that the Government have suggested by which Parliament should review the working of this extremely significant legislation. The Government wish only to have the rather cursory procedure of secondary legislation, with an affirmative resolution and all-or-nothing debate on a statutory instrument. As we pointed out last week—this was reflected very extensively in the other place as well as here—that procedure has serious defects. First, it can easily lead to a confrontation rather than a careful consideration of different parts of the process. Secondly, as so much of the eventual architecture—again I pick up the word used by the noble Lord, Lord Hunt of Kings Heath—for this new regime will be developed at a secondary level and is not incorporated in the Bill, surely it will require more than the usual oversight of statutory instruments.
We had another illustration of that in the debates earlier today. The noble Lord, Lord Campbell-Savours, put a point to the noble and learned Baroness the Attorney-General about the apparent confusion between the two commissioners. In reply, she said that there were issues that would have to be examined later on. The debate that we have just had, on the amendment from the noble Lord, Lord Jenkin of Roding, also emphasised that there are some unresolved issues here. It may not be necessary to resolve them in a particular way, but clearly they are unresolved. Therefore, that is an additional reason why it will be necessary to look very carefully at what has happened since the Bill’s passage, when it comes back in two years' time. Moreover, if Members of both Houses are given only the stark choice between accepting or rejecting what I assume will be the parliamentary standards statutory instrument in 2011, they may well feel inhibited, not prepared, to seek detailed improvements to ensure that the new system is operating fairly and effectively. Finally, with no obvious improved system put before them to replace that Bill, how can they feel comfortable voting against that order? Your Lordships’ House is always reluctant to vote against a statutory instrument, for very good reasons. The other place has a similar reluctance. It would be rather unfortunate if we forced it down that path.
The noble Baroness the Leader of the House suggested last week that the Government of the day might risk leaving a complete void by not bringing forward a sensible set of proposals for the renewal of this legislation. Frankly, I feel that that is entirely fanciful. I cannot understand that any responsible Government would do that. Surely the onus will be on that Government, in two years’ time, to make certain that all the lessons are being learnt, that Parliament is comfortable with any improvements that may be necessary—perhaps along the lines that have already been referred to this afternoon—so that the legislation can either be substantially reinforced or, more simply, renewed if that is all that is necessary. It could be done in a short Bill with full parliamentary scrutiny over the course of a few weeks. There need be no major logjam in the legislative programme. I beg to move.
My Lords, I certainly agree with the view that some form of review is required after two years, given the speed with which this important Bill has gone through. However, the procedure that the noble Baroness the Leader of the House proposed in her amendment in Committee, which is now incorporated into the Bill, requires affirmative resolution. That requires an affirmative vote in both Houses of Parliament. I should have thought that, if there was any serious dissatisfaction with how the system was working, it would be extremely difficult, if not impossible, to secure a majority for its continuation in both Houses. I therefore regard what the noble Baroness the Leader of the House has done as a satisfactory way of having this review.
My Lords, Clause 13 deals with a most important aspect of the expiry of the provisions of the Act, as it will be, and, in particular, a sunset clause. If we had been discussing the Bill as it was, I would gladly have continued to support the Liberal Democrats. However, the Bill has been substantially amended in its passage through Parliament. If there were no sunset clause attached to the Bill at all, I would still have supported the Liberal Democrats because I marginally prefer the sudden death of a sunset clause than this, which I think is rather euphemistically referred to in government circles as an “intelligent sunset”.
It strikes me that under the provisions of this clause the Government, in the next Parliament, will have three choices. The first is to continue what will be the Act by using the provisions under this clause. The second is to do nothing; the more difficult clauses will then fall and cease to have force. The third is to bring forward new primary legislation. I suspect that whoever is in government will probably come round to the fact that we will need new primary legislation. By then, Christopher Kelly will have reported; he has already made some very aggressive remarks on the Bill and the IPSA, so it may well be that none of this comes into effect in any case. The Bill was born in haste, has certainly been legislated in haste and, even today—although I very much welcome it—has been amended in great haste.
Finally, I do not worry too much about the noble Lord, Lord Tyler, but I worry a little bit. My eye was drawn to an article in the Daily Telegraph at the end of last week that commented on the deliberations in your Lordships’ House on the Bill. Comments were made by the leader of the Liberal Democrats, no less, who was fulminating in a rage at what he called the “two-party stitch-up”—that is the Conservative Party and the Labour Party—in defenestrating the Bill. However, the passage that he was most concerned about—the removal of the second defence under old Clause 8—was, of course, down to an amendment that had been moved by the noble Lords, Lord Tyler and Lord Shutt. I very much hope that they have full cover this evening from the leader of the Liberal Democrats in another place.
My Lords, I intervene only briefly. I draw attention to the reluctance that amounts virtually to a convention of either House to exercise the power to reject statutory instruments, even if they require the affirmative resolution procedure, except in wholly unusual and disastrous circumstances. It is not good enough to say, as the noble and learned Lord, Lord Mackay of Clashfern, did, “Oh, well, all will be all right because, if there is trouble, all we need to do is reject the statutory instrument”. I would have far more confidence in there being a review of the provisions of the Bill in two years’ time if there was a sunset clause for this Bill of the kind proposed by my noble friends.
My Lords, because we are going back to an issue that we debated at the previous stage, I repeat my concern to see new primary legislation, because of the greater opportunities that that would give for amendment and reflection. Primary legislation need not take long—this Bill is in itself an example of that. If in two years’ time there is general agreement that the Bill has worked well and needs no amendment, or if there is agreement as to what that amendment is—and some of your Lordships have anticipated that that might be the case—it would be dealt with by statutory instrument. In either case, the legislation can go through quickly, but there will be opportunities for a little bit of to and fro, dealing with and tweaking perhaps relatively minor matters, and fully reflecting the wishes of both Houses rather than the attitude of “OK, we’ll let it go”, which so often happens with a statutory instrument. There are good reasons for our arrangements for dealing with primary legislation at its different stages, and these arrangements deserve to be applied in two years’ time.
My Lords, I start by staying that I am seeking consensus, not defenestration. The argument of the noble Lord, Lord Strathclyde, is absolutely correct. If we had been discussing the Bill as it left the other place, perhaps noble Lords would have more of an argument in favour of the sort of sunset clause that is favoured by the Liberal Democrats. However, the Bill is now very different and the majority of Members of this House have more confidence in it as it is in leaving this place.
We are setting up in this Bill a new institution. It is important that it should be independent and transparent in its working. The Bill will provide for that. It is also important that the new institution should be authoritative. The Bill provides for a distinguished membership of IPSA and that is as it should be. This will be an important body doing an important task. As such, it is important that we can offer the members of IPSA and the commissioner some stability; otherwise, we will not get the quality of appointments that we need. The Bill provides in Schedules 1 and 2 for appointments for five years, but this clause effectively provides for appointments for two years. I remain deeply concerned, and I am sure that many of your Lordships are deeply concerned, about what the amendment would do to the quality of those appointments.
The Government have accepted that there is a need for a mechanism to review the working of this—I hope—soon-to-be Act. I am grateful for the words of support from the noble and learned Lord, Lord Mackay. This mechanism is important on two grounds. The first is the expedited passage of the legislation, although I believe that this expedited passage has not prevented good debate and detailed scrutiny of the Bill. Secondly, we are moving into uncharted waters and it is right that we should be able to take stock of how things are going. I promised at Second Reading that we would undertake detailed post-legislative scrutiny two years after Royal Assent—well within the five-year window that the Government have agreed to generally. That is what we will do. Having listened to further concerns, I brought forward in Committee the clause that is now in the Bill. Even that clause could be said to cast some uncertainty over the future of the commissioner and some of the functions of IPSA, but there is a crucial difference between the clause in the Bill and the effect of the noble Lords’ amendment. The effect of the noble Lords’ amendment would be that, regardless of how distinguished the membership of IPSA was, regardless of how well IPSA was doing its job, regardless of the level of public support that it achieved and regardless of the improvement in MPs’ standing that had arisen from its work, at the end of two years’ work the body would disappear.
Noble Lords said in Committee on Thursday that, if IPSA and the commissioner were generally regarded as a success, it would be a straightforward matter to re-enact the legislation. That is precisely what the noble Baroness has said today. However, I think that it is a curious comment. We do not, on the whole, like passing legislation quickly. Your Lordships’ Constitution Committee has already published its recommendations for what should happen to legislation that is passed under expedited procedures. That is one reason why I am against a sunset clause, as advocated by the noble Lords on the Liberal Democrat Benches. The noble Lord, Lord Tyler, suggested that the Government could plan to re-enact the legislation well in advance of when it was needed, but that would of course cut into the time that IPSA would need to establish and prove itself. For all those reasons, the Government have proposed a review clause for these parts of the Bill.
I refute personally the suggestion that a debate on a resolution is perfunctory. I hear the fears expressed by the noble Lord, Lord Goodlad—
My Lords, I am glad that I am not in charge of the post—it would be even worse.
It will be up to Parliament to decide to wind these bodies up. It is up to Parliament to reject the statutory instrument that would continue the provisions. I accept that this is not something that is done lightly in this House, but it is an option. Indeed, it is an option for the Government not to bring forward the continuation Motion, but they would do that on the merits of IPSA and not on the basis of how much parliamentary time might be taken up in trying to renew the legislation. On the other hand, if IPSA and the commissioner are working well and have established themselves authoritatively, a simple vote in the House will ensure that they continue. This will give the bodies far more incentive to make sure that they deserve to be continued, since it will be less of a lottery whether they get that chance. I urge the noble Lords, Lord Tyler and Lord Shutt of Greetland, to withdraw their amendment.
My Lords, the noble Baroness the Leader of the House has referred to the Constitution Committee. We have all taken its report to the House on these issues very seriously. I must remind her again that it was that committee, in direct response to concerns about the Bill, that asked whether the Bill included a sunset clause as well as any appropriate renewal procedure and, if not, why the Government judged that the inclusion of those things was inappropriate. The committee is on my side in this argument.
I am surprised that the noble and learned Lord, Lord Mackay, no longer supports a sunset clause. I think that he has demonstrated—as have many other Members of the House—that when we consider a Bill in full in this House, we like to give it the sort of careful attention that it deserves. That is simply not the case with a statutory instrument. As the noble and learned Lord and many other Members of your Lordships’ House have demonstrated throughout the progress of the Bill, it is when this House is doing its job best that we are so necessary to the process of parliamentary scrutiny. That is why I think that, having accepted the need for scrutiny, as the Government have, many Members on all sides of the House will accept that our suggestion is more appropriate.
I am grateful to the noble Lord, Lord Strathclyde, and not only for his support last week. I can forgive him for reading the Daily Telegraph, although I am not sure why anybody still does. He has pointed out again this evening that there may well be a necessity for new primary legislation. If there is such a necessity, the trigger for it must, of course, be a sunset clause. I hope that the noble Lord and his colleagues on the Conservative Benches will again support us on that. He has emphasised the point that, throughout the process in your Lordships’ House, we have had to look very carefully at a lot of the detail and much of it is still not clear, as was demonstrated by the noble and learned Baroness the Attorney-General.
There is no direct impact on IPSA from our sunset clause, any more than there is from the Government’s Clause 13. There is some impact on the commissioner, but IPSA can do its job, knowing that it will have a continuing role. The noble Baroness the Leader of the House referred to being in uncharted waters. Yes, we are, and it would be wholly wrong simply to leave hanging in the air whether there will be a full-scale review of the Bill. If everything in the whole scheme introduced by this legislation is moving very effectively, is well accepted, has credibility and has the confidence of Parliament and the public, the Government of the day can of course introduce a one-clause Bill to remove the sunrise—or, rather, the sunset—clause. They will not need to do any more. Indeed, in a sense this will create a sunrise clause. If the noble Baroness the Leader of the House is so confident that everything is perfect now, what does she have to fear from this amendment? I wish to test the opinion of the House.