House of Lords
Monday, 20 July 2009.
Prayers—read by the Lord Bishop of Norwich.
Introduction: Lord Sugar
Sir Alan Michael Sugar, Knight, having been created Baron Sugar, of Clapton in the London Borough of Hackney, was introduced and made the solemn affirmation, supported by Baroness Vadera and Lord Davies of Abersoch.
My Lords, arrangements for the transfer of judicial functions from the Appellate Committee to the new Supreme Court are on time and within budget and will meet the needs of the Supreme Court justices, court users and the public. On behalf of Her Majesty’s Government, I take this opportunity to thank the noble and learned Lords, the Law Lords, for the considerable personal contribution that they have made both to this House and to the design and functioning of the new Supreme Court.
My Lords, I thank the Minister and associate myself with his remarks. As justices of the Supreme Court who are appointed in the future will not be Members of this House, do the Government propose to ensure that this House will continue to benefit from the experience and expertise of retired senior judges? In particular, will they ensure that all retiring Supreme Court justices in the future are appointed to this House?
My Lords, justices of the Supreme Court who are appointed after October 2009 will not automatically become Members of the second Chamber on retirement, but could be considered for appointment by the Appointments Commission. It is right to say that former Law Lords will be able to take up their places again in the House of Lords on retirement from the Supreme Court, and it is right that this House needs a lot of expertise, particularly in that field, but I cannot give the noble Lord the assurance that he requires.
My Lords, to assist the House in appreciating whether this new creation has been value for money, will the noble Lord remind the House just how much the capital costs have been in creating this new Supreme Court and what the additional costs of running this will be, over and above what they would have been if left in this House?
My Lords, the set-up costs are £58.9 million, a figure which the House knows about and has been agreed. We are coming in within cost and I know that the noble Lord will be delighted to hear that. Running costs for the Supreme Court will be £12.3 million per year. This year, an extra £1.2 million for estimated national insurance contributions and pension contributions of the Law Lords will be transferred from another fund to those running costs. I do not think that the emergence of the Supreme Court will mean that it will cost the taxpayer much more money.
The new court is a fantastic symbol on Parliament Square. It will bring together the legislature on one side of this historic square, the Executive on another, the judiciary now will be on the third and, of course, the established Church is on the fourth.
My Lords, will the Minister confirm that the transfer of the Appellate Committee of the House of Lords to the United Kingdom Supreme Court was for the purpose of dividing political and judicial responsibilities? If bringing Lords back into the House on that basis is the case, would it not have been better to leave them here in the first place?
My Lords, my noble friend is right in half of what he says. It is right that the separation of powers between the judiciary, the legislature and the Executive should be made even clearer, which this move does. However, what it also does—in some ways, this is as important—is to make the most important court in our land much more accessible to the public whom it is there to serve. Everyone knows that in this building it has not always been possible for the general public, particularly young people, to be able to watch the Law Lords in action. They will certainly be able to do that in the new court.
My Lords, would it not be possible for a peerage to be offered as an honour to these distinguished men who have spent their lifetime in the law? If they are expected to play a full part in the work of the House, I suspect that quite a lot of them will not accept.
My Lords, of course those who are serving Law Lords now and are shortly to become Supreme Court justices will come back with their honour when they retire from the Supreme Court. On the position of those who are made Supreme Court justices after the court is set up, as I have said, we cannot guarantee that they will become life Peers but they will be eligible to become so like everyone else.
My Lords, it is true that the system has worked well, but it is important, particularly in modern times, that the separation of powers is made absolutely clear. We think that this is one of the advantages—not the only advantage, but one of them—of the change that has been made. The other—I shall repeat it because it is important—is accessibility to the highest court in the land.
My Lords, while some of my best friends are lawyers, including my noble friend at the Dispatch Box, does he not agree that it would be quite difficult for an objective observer to suggest that what this House suffers from is a serious shortage of lawyers? Does he therefore agree that in any consideration of the future composition of this House it is vital that we have the widest possible spread of professions and occupations and that places are not given automatically to any particular profession?
My Lords, as a witness to the comprehensive peace agreement, the UK is working with all parties for its full and timely implementation. We and other parties reaffirmed our support for the CPA at the Washington forum on 23 June 2009. The UK is the largest European bilateral provider of humanitarian assistance to Sudan, having spent £56 million towards humanitarian aid and early recovery assistance in Sudan for 2008-09.
My Lords, I thank the Minister for that encouraging reply. Is he aware of the growing concern that the National Congress Party may resume conflict if it does not agree with a ruling by the Abyei Court of Arbitration to be announced this coming Wednesday, 22 July? That concern is being exacerbated by reports of large numbers of militias dressed in police uniforms, believed to be supported by the NCP, amassing on the border between Muglad and Abyei. Given that the SPLM has agreed to abide by the ruling, whatever it is, will Her Majesty’s Government put the strongest possible pressure on the National Congress Party to accept the ruling and to desist from further conflict?
My Lords, we welcome the public commitment made by both parties to abide by the decision of the Permanent Court of Arbitration on the Abyei boundary. The UK urges both parties to ensure that the decision is fully implemented in a timely manner and in a way that does not escalate tensions or cause conflict. This was reiterated by the UN Security Council on 17 July.
My Lords, is the Minister satisfied that, further to the Question put by the noble Baroness, UNMIS has enough troops in Abyei to protect civilians from harm in the event of any disturbances and that it will report immediately to the Security Council on who is guilty of any breaches of the ceasefire following the declaration of the arbitration court on Wednesday?
My Lords, in the light of possible developments arising from the agreement of the CPA, such as autonomy for the south, equal distribution of oil revenues between the north and the south, and lately a vast real estate boom, it is good news that Her Majesty’s Government are providing further humanitarian assistance to those still affected by the conflict. However, what are they doing to redevelop the nation’s torn infrastructure?
My Lords, at the moment, the situation in Sudan is essentially about humanitarian issues, reconstructing governance, getting a proper census for the elections, getting the borders agreed, holding the elections and so on. It is crucial that this period of constitutional reform leading to the elections and the referendum goes smoothly. I am afraid that those matters are taking the highest priority in DfID’s work.
My Lords, I am confident from my noble friend’s first reply to the noble Baroness, Lady Cox, that he is aware of the great importance of the comprehensive peace agreement. However, is he as concerned as I am that in the event of this peace agreement not being upheld there will be a further outbreak of war? Can he expand on the recent discussions in Washington and say whether Her Majesty’s Government’s initiative received proper support from other members of the international community?
My Lords, the north-south war in Sudan was probably one of the most awful wars that the world has seen and we must all pray that the CPA persists. The UK, other witnesses to the CPA and regional partners attended the forum for support of the CPA in Washington. We support the statement issued on 23 June by participants noting the progress made by the parties to the CPA and reaffirming the importance of progress on the CPA for peace and stability in Sudan.
My Lords, if I heard correctly, there is some irony in the fact that the figures the Minister cited for aid in the Answer to this Question and the cost of the new judicial structure given in the previous Question were approximately the same. What are we doing to ensure that this money is properly spent?
My Lords, we are very careful in ensuring that the money is properly spent. Perhaps I can answer the question in the negative; none of this money will be spent either through the Government of Sudan or the Government in southern Sudan. All of it will go either through international agencies or direct to NGOs. We are as confident as we can be in such a difficult situation that it will be audited and will all arrive where it is meant to be.
My Lords, as there is a real danger that if the comprehensive peace agreement breaks down there will be resort to civil war, fragmentation and probably repression in the south, is there not an overwhelming African interest, let alone Western interest, that we do something positive about this and that the British Government play a vigorous role, alongside the other nations, in trying to get this agreement implemented and a settlement brought about in Darfur?
My Lords, I can assure the noble Lord that the Government have Sudan high on their agenda. We appreciate just how important it is. What we are doing is absolutely in line with the White Paper. We recognise the issues of fragile states and the need to bring security as part of our aid. Our influences in that area are the best we can do. It is a unique situation in Sudan, where an African Union and United Nations force exists, and we must all pray that it is successful in maintaining the peace.
My Lords, I declare an interest as a vice-chairman of the All-Party Group on Sudan. Following on from the comprehensive peace agreement, what has the international community been able to do to ensure transparency in the division of the oil revenues between the Government in Khartoum and the Government of southern Sudan so that the people of southern Sudan know exactly how much money their Government have received?
My Lords, the Government, with the international community, are helping in the demarcation and border issues in southern Sudan to ensure that that division is appropriate, and we are helping with the election processes and governance processes related to it. If there is peace and we are able to stick to the CPA, the agreement sets out what the division of wealth and influence would be. The problem is not with the CPA but with maintaining it while it comes into force.
Education: Unauthorised Colleges
My Lords, we regulate education and training businesses that are in receipt of public funding, not those established as privately funded businesses. However, all education providers offering services to international students now need to be licensed by the UK Border Agency. We do not have estimates of those who entered the UK as students and are now here illegally or of those who entered improperly prior to the introduction of the new points-based system for migration.
My Lords, I thank the Minister for that Answer. It is reassuring to hear that the UK Border Agency is now involved. However, should we, or the agency, not have known how many colleges were open? All you needed to do was fill in an online application form. No one ever inspected these colleges, made authorised visits without telling anyone or knew how many students there were. We knew that these colleges existed, though, so why do we not now have a list of them and make sure that every single one of them is closed down? It is too easy for terrorist suspects to come in, not least because the majority came from the north-west region of Pakistan. I would like a reassurance from the Minister that all the former colleges that were offering all sorts of bogus degrees are now inspected and, if found wanting, are closed.
My Lords, all education providers offering services to international students—that is, those coming from outside the European economic area—now need to be licensed by the UK Border Agency and entered on the sponsor register. To qualify for the register, all private education institutions will need to be accredited by one of a limited number of UKBA-approved accreditation bodies. I can tell the noble Lord that, since the new register and inspection process were introduced, nearly 300 colleges have been removed. We have not yet gone through all of them, but we are making rapid progress.
My Lords, I declare an interest as chairman of the Association of Independent Higher Education Providers and as a member of the joint education task force. I ask my noble friend to make it abundantly clear that, from this day forth, no student can come to any part of the higher education system, either public or private, unless they are coming to a sponsoring college, which has to be accredited and licensed, and without which no student can apply for a visa. Is not the real problem now not to get the system in place, because it is already there, but to get our high commissions and our embassies overseas issuing visas under the new system so that genuine students can come to this country to get their education without the good brand of British higher education suffering due to the absence of students caused by dilatory procedures now in issuing visas?
My Lords, I thank my noble friend for both his comment and his questions. I confirm that the processes are as he described. It is important to find the balance between ensuring that people do not enter on false pretences and go to bogus institutions and recognising that international students provide a vital cultural, academic and economic contribution to this country.
My Lords, what are the views of the Minister’s department on the suggestion from the Association of Colleges that the term “college” be protected by an amendment to the Companies Act, so that any organisation wishing to trade under the term must be authorised by the appropriate authorities?
My Lords, I can confirm that our department is looking at the arguments for registering all academic institutions. I cannot yet confirm the attitude taken over the word “college”, but we will consider the arguments for and against a universal requirement for registration or accreditation over the summer. Officials will invite views and opinions from those with an interest in this business sector and report the findings to the Minister in the autumn for consideration.
My Lords, we are confident that we now have the right processes in place. We have a process in place to deal with the bogus colleges, which was absolutely essential. We have much stronger checks on immigration and a much stronger visa application system. We can be confident about the processes. Systems will need to be checked over a period of time, but the whole process of border control is being enhanced.
My Lords, as someone who has worked with the UK Border Agency to try to improve the system, I declare an interest as chief executive of Universities UK. Does my noble friend agree that the system risks failure across the board if the IT system that is due to support the student immigration route is not comprehensively tested by the education providers who are going to use it, including the universities? Would my noble friend therefore also agree that the system must be tested to ensure that it can cope with the very considerable increase in student numbers and student data that it is now likely to have to handle?
My Lords, I probably need to write to my noble friend to give her a comprehensive answer. I certainly agree that we need the system to be as effective as possible. As I said, we do not want to deter genuine international students from making visa applications or making genuine applications to study here.
My Lords, we are well into the 23rd minute.
Railways: Expanding Access to the Rail Network
My Lords, the Government welcome any initiative which helps local authorities and other potential promoters of rail services to understand whether the reopening of closed lines is a feasible way of improving links to places not on the rail network.
In welcoming both the report by ATOC and my noble friend’s response, perhaps I may ask him two questions. First, is the report not yet further evidence of the importance of protecting at least the track bed of closed railway lines and perhaps the structures as well, such as bridges? If old lines are to be reopened, it makes the reopening much easier. Secondly, when local authorities have an interest in possibly reopening a particular line, such as the line from Stafford to Wellington, might support and help be forthcoming from the Department for Transport with looking at business cases? I suppose that I should declare a tangential interest as the honorary president of the Telford Steam Railway.
And a very worthwhile organisation, that is, too, my Lords. On the protection of rail routes, PPG13 states that local planning authorities should,
“protect sites and routes which could be critical in developing infrastructure to widen transport choices for both passenger and freight movements”.
That includes rail-track beds as appropriate.
On reopening closed lines, my department is happy to work with promoters where there are strong business cases, and we have a set of rules in place for how that work can be taken forward. I commend my noble friend’s commitment to the Wellington and Stafford line. However, having secured a copy of the 1961 timetable for that line before it was closed, I would point out that it was not a paragon of good service. There were eight trains a day on that line, and the 18.75 miles managed to take the steam locomotives of the day 45 minutes to complete, which represents an average speed of 24 mph. As my noble friend may know, I am passionately committed to high-speed railway lines and I rather hope that they go a bit faster than 24 mph.
My Lords, will the Minister join me in congratulating Parry People Movers on introducing rapid lightweight trains between Stourbridge and Stourbridge Junction which successfully carry lots of people, and much better than the railway to which he has just referred? Will he look particularly at the list of potential lines which that company has put forward for using this railcar, particularly as regards enthusiast and freight railways?
My Lords, I am very happy to do so. The application of new ways of running railway services much more economically than has been the case in the past is something to which we should pay a good deal of attention. As the noble Lord will know, a tram train trial is about to start, building on very positive experience in Germany of using tram technology on the railways, which makes it possible for trains to run off the classic network and into town and city centres. Again, this could be an important development for the future and I am very keen to see it piloted in the UK.
My Lords, I am sure that your Lordships’ House will be grateful to the Secretary of State for the positive nature of his initial response. Experience suggests that when people wish to extend new lines the business plans seriously underestimate the annual recurrent cost. Could his department publish guidance which would help people have a more realistic assessment of the cost that they are entering into when they wish to extend new lines?
My Lords, I would be very happy to do that and to look further at the experience of the Welsh and Scottish devolved Administrations in reopening lines which has been fairly positive in recent years. England may be able to learn from that. However, I note that the Association of Train Operating Companies’ report, which led to my noble friend’s Question, notes that since 1995, 27 new lines, totalling 199 track miles, and 68 stations have been opened. Therefore, there has been a lot of positive development in this area in recent years.
My Lords, I welcome my noble friend’s statement about new lines. Would he consider encouraging the private sector and voluntary groups to be responsible for developing and operating the infrastructure so that there will be some comparison and benchmarking between what they are doing and what Network Rail does—sometimes at a fairly higher cost?
My Lords, in the light of the noble Lord’s encyclopaedic knowledge of the United Kingdom’s rail network, is he likely to favour the reopening of the Leamside Line in Durham county, bearing in mind the fact that the Nissan plant in Sunderland has now been chosen to build the new generation of electric cars, and that that line would be invaluable for freight traffic in the area?
My Lords, I am afraid that my encyclopaedic knowledge is not coming to the fore sufficiently fast in respect of that line. It is in here somewhere because I looked at it earlier. All I can give is some general encouragement to promoters who are interested in taking that line forward to see if they are capable of generating a good business case, but I do not think that I am allowed to offer any greater encouragement than that.
My Lords, when a new railway line is opened, could the railway line and the rolling stock be under the control of the same company; in other words, the track would not necessarily be a part of Network Rail but it could be like in the old days when southern railway owned the track as well as the rolling stock?
My Lords, the Minister will be aware that the test of a good transport system is whether it integrates one mode with another. What plans exist within the department to ensure that we move towards an integrated transport system of road and rail?
My Lords, that is a very large question which could occupy me for a great deal more than the next two minutes. We are keen to see much greater integration that includes much better facilities for buses interchanging at rail stations. I am keen to see much more car parking at stations, too. The new south central franchise requires there to be at least an additional 1,000 car parking spaces at stations so that it is much easier for motorists to interchange. As my noble friend may be aware, I have been making something of an issue recently about bike parking at stations, which is lamentably inadequate at too many of our stations. As my noble friend may have noticed, I came back from Holland recently, having noted that at the station in the city of Leiden there is parking facilities for 4,500 bikes. In all the central London rail terminals put together, there is parking for 1,200 bikes.
The Dutch do not cycle because it is in their genes, but because it is made easy for them to park at stations and they are given significant encouragement. I hope that that gives my noble friend some flavour of the activity that we have under way to ensure that we have a more integrated transport policy.
Arrangement of Business
My Lords, it might be helpful to the House if I say a few words about the arrangements for Report and Third Reading of the Parliamentary Standards Bill today. After the Report stage the Bill, the House will debate the Second Reading of the Finance Bill together with the report of the Economic Affairs Committee. Once Report stage of the Parliamentary Standards Bill has been completed, the Public Bill Office will produce a new print of the Bill as it has been amended on Report. That will be made available in the Printed Paper Office as soon as possible and the message will be displayed to this effect on the annunciators around the House.
There will then be a period of time for any Member who wishes to do so to table Third Reading amendments. The deadline for Third Reading amendments will also be displayed on the annunciators. If necessary, the Public Bill Office will then produce a Marshalled List of such amendments for Third Reading. It is hoped that all of that can be completed during the Second Reading of the Finance Bill to allow the House to move straight onto the Third Reading of the Parliamentary Standards Bill. I hope that that was clear to all.
Business of the House
Motion on consideration of Commons Amendments
Parliamentary Standards Bill
Order of Consideration Motion
National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2009
National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order 2009
Motions to Approve
Perpetuities and Accumulations Bill [HL]
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the reports of the Perpetuities and Accumulations Bill, has consented to place her prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
My Lords, I beg to move that this Bill be now read a third time.
Borders, Citizenship and Immigration Bill [HL]
Motion on Amendments 1 to 8
My Lords, with the leave of the House, I beg to move that the House do agree with the Commons in their Amendments 1 to 8. We have listened to the debate, both here and in the other place, and have amended the Bill in order to assure the House on some of the key areas of disagreement. I am also assured that the Bill is better for this.
Before I introduce group 1, which relates to Part 1 of the Bill, I would like to echo the theme of consensus that has accompanied the Bill both in this House and in the other place. The Government have put on the face of the Bill transitional arrangements on earned citizenship, as requested by this House. They have also brought forward amendments on nationality law and trafficking, having sought agreements with the opposition parties, and proposed a new clause on judicial review in order to meet the concerns expressed in this House. There has been one issue—the common travel area—on which we have not been able to gain the House’s consensus, which is unfortunate against a background of great agreement both here and in the other place. Indeed, the chair of the Home Affairs Select Committee, the right honourable Keith Vaz, described the Third Reading debate in another place as a wonderful consensus. I hope, of course, that we can continue that in this House today.
The amendments on Part 1 that the Government proposed in the other place were a result both of listening to the debate that took place in this place about the definition of customs functions and of internal discussion. Clause 1 enables the Secretary of State to exercise the function of the Commissioners of Customs and Excise concurrently with them in relation to general customs matters. The term “general customs matters” may draw in certain functions already exercisable by the Secretary of State. There was therefore a need to ensure that the other provisions in the Bill—such as the information provisions in Clauses 14 to 20—apply only to the functions of the commissioners that the Secretary of State will be able to exercise under the Bill. Further, the changes made in the other place make it clear that these general customs functions include functions under Community law. The amendments also ensure that adjustments are capable of being made by order under Clause 2 to exclude or include, as appropriate, particular functions from the definition of “general functions of customs”.
Amendments 1 and 2 to Clause 1 have clarified the meaning for the purposes of Part 1 of the Bill of the general customs functions that will be exercisable by the Secretary of State and by general customs officials. Amendment 3 is related to Amendments 1 and 2 and ensures that particular functions can be included or excluded from the definition of general customs functions as appropriate. Amendment 4 reflects the new definition of a general customs function in Clause 1, while Amendments 6, 7 and 8 are consequential on the new definition of a customs revenue function in Clause 7. Taken together with Amendment 5, which clarifies the customs revenue functions under the Bill, they ensure that the information protection regime established in Part 1 applies to all relevant functions, including those under Community law.
Amendments 11 and 14 are also related. Amendment 11 clarifies the scope of Clause 26, which provides for the making of transfer schemes by HM Revenue and Customs. Amendment 14 defines the new term “Community law” using Clauses 1 and 7. Amendment 9 will insert a new Clause 25, the original of which will be removed by Amendment 10. It will create a revised definition of a short-term holding facility in the new clause. This will allow such facilities to be used either solely for administrative immigration detainees or for a mix of such detainees and persons detained under other powers.
Amendment 25 makes a necessary change to the schedule consequential on Amendments 9 and 10. Amendments 12 and 13 to Clause 28 are technical amendments to meet the stated policy intention, namely to allow the independent chief inspector to scrutinise the full range of UKBA functions, including whether the Secretary of State and the Director of Border Revenue are exercising their customs functions appropriately. I beg to move.
In the unavoidable absence of my noble friend Lady Hanham, I hope that the noble Lord will not object if I briefly comment on these amendments. We accept that these amendments, which the Government made in another place, clarify the extent of the customs functions that may be exercised by the Secretary of State and the Director of Border Revenue. This, as the noble Lord will remember, was the subject of much debate in this House earlier this year, and these amendments appear to go some way towards making sure that the remit of the UK Border Agency in respect of the exercise of its new customs functions is clear. However, we on this side believe that there is still not enough coherence between the many agencies that currently operate at our borders. The Government appear to be inching towards where it should be—that is, recognising that we need a unified border police force. At this stage, however, I do not wish to reopen debates that we had at another stage. I limit my remarks merely to accepting this group of clarifying amendments.
My Lords, it might be of assistance to the House if I suggest the formality of dealing with Amendments 1 to 8 en bloc. I will then call Amendment 9, which I assume the Minister will move formally, and then call Amendment 9A to give the noble Lord the opportunity to speak specifically to that amendment. Did the noble Lord wish to speak to Amendments 1 to 8?
Motion on Amendments 1 to 8 agreed.
Motion on Amendment 9
9: Insert the following new Clause—
“Short-term holding facilitiesIn section 147 of the Immigration and Asylum Act 1999 (c. 33) (removal centres and detained persons: interpretation), in the definition of “short-term holding facility”—
(a) after “used” insert “—(a)”, and(b) at the end insert “, or(b) for the detention of—(i) detained persons for a period of not more than seven days or for such other period as may be prescribed, and(ii) persons other than detained persons for any period.””
Amendment to the Motion
9A: Line 12, leave out “any period” and insert “not longer than six hours”
My Lords, I think that we are on the right track now, even though, as we believe, there are serious defects in Amendment 9. The Government proposed to scrap very late in the day the amended definition of “short-term holding facilities” that they had introduced in the Lords with the new clause now before us in Amendment 9. The Minister explained that he and the UK Border Agency had belatedly realised that the original clause would have redesignated immigration and removal centres, and some prisons and police cells, as short-term holding facilities—something that ILPA had been pointing out to them right from the moment that their Amendment 34 was first tabled.
Section 147 of the Immigration and Asylum Act 1999, as amended, would now define “short-term holding facilities” as,
“a place used,
(a) solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed”,
“(b) for the detention of—
(i) detained persons for a period of not more than seven days or for such other period as may be prescribed, and
(ii) persons other than detained persons for any period”.
Unfortunately, this new clause does not solve the problem. The definition now includes any police station or prison where a mixture of very different types of person could be held and, in the case of the existing facilities, it would allow non-immigration detainees to be held there virtually indefinitely.
The UKBA accepts that, technically, prisons and police cells will be within the definition. However, can the rules on short-term holding facilities apply in these places? Under the Government’s amendment, a person may be held in a short-term holding facility under any detaining power exercisable by any agency of the state and, if he is not an immigration detainee, for any length of time.
Short-term holding facilities are manifestly unsuitable for that. It would be harmful to the welfare of all that are held in such facilities if they were to be used in this way. We are struggling to get this right after several attempts, because we have been trying to encompass a whole range of detention facilities, where different classes of persons are held for a variety of purposes, in one definition. The immigration Acts confer powers on immigration officers to detain individuals for short periods but, as Mr Woolas, the Minister, said in another place:
“At present, short-term holding facilities may be used to hold only individuals who have been detained for immigration purposes under UKBA’s administrative powers of detention, and those who have been detained under section 2 of the UK Borders Act 2007, pending the arrival of a police officer”.—[Official Report, Commons, 14/7/09; col. 179.]
The Customs and Excise Management Act 1979 confers arrest powers on customs officials who may also need to detain persons for short periods while awaiting the arrival of a police officer. We agree that it is a sensible use of these facilities to allow them to be used by HMRC to detain people for up to six hours, or longer in accordance with the PACE clock where they have been designated for PACE.
Otherwise, Section 2 of the UK Borders Act limits the period of detention to three hours, pending the arrival of a police officer, while HMRC officials’ powers are limited to six hours in custody suites or HMRC offices before the suspect has to be transferred to a police station, where, of course, the PACE codes apply, as the noble Lord, Lord West, helpfully explained in his letter of 7 April. We think that it would have been correct legally and in practice to distinguish between, on the one hand, the places where these people can be held, together with persons arriving in the UK—while consideration is being given to their admission—and persons being removed from the UK who are awaiting a flight, and, on the other, places where people need to be held for longer periods under different provisions of the immigration or customs Acts, such as Schedules 2 and 3 to the 1971 Act, which allow detainees to be held for up to five days to examine or remove in places specified in the Immigration (Places of Detention) Direction 2009.
At this late stage, we will obviously not come up with a viable set of definitions that would distinguish between the classes of detainees and the places where they may be detained. However, we would like an undertaking that the power to detain people, other than detainees, at the existing short-term holding facilities will not be exercised until the Secretary of State has consulted the Children’s Commissioner, the Chief Inspector of Prisons and the independent monitoring boards, which have been severely critical of the suitability of the facilities at Heathrow and Gatwick, even for the limited purposes to which they are being applied at the moment.
Since the statutory instrument establishing the short-term holding facilities rules has not yet seen the light of day, presumably the Government will not implement this clause when it comes into effect, technically on Royal Assent. We would like the Minister to confirm that and to assure us that the powers will not be used in this way until the relevant statutory instrument has been passed by both Houses of Parliament. We understand that the SI will say that the rules do not apply to prisons or police stations, which avoids the problem of conflict between these rules and those already applying in prisons and police stations. That means that the scheme established by Parliament in the 1999 Act for regulating removal centres and short-term holding facilities would no longer apply, or would apply only in part, to some of the places designated.
The Bill was intended to be an interim step towards simplification of the law on immigration, but this clause, like much of the rest of the Bill, makes for greater complexity by designating places as short-term holding facilities despite the intention that they are not to be treated as such. We have retabled the amendment that was tabled by my honourable friends in another place on Report. This would ensure that detention in the short-term holding facilities under HMRC and court powers could not exceed a maximum of six hours. The questions asked by the noble Baroness, Lady Hanham, about the grotesquely inadequate facilities at Heathrow—highlighted as recently as April by the independent monitoring board—illustrate the dangers of allowing longer periods of detention in places that have no sleeping and woefully inadequate washing and toilet facilities. It is all very well for the Minister to say that the UKBA has an action plan for remedying these deficiencies, but it is dependent on BAA to provide the premises and equipment. That is bound to take some time, while the powers that we are being asked to confer on the Government come into effect immediately. I hope that we have the support of the Conservative Benches in a matter that has so exercised the noble Baroness, Lady Hanham. I beg to move.
My Lords, before the noble Lord responds—although I would like to hear his response—I had better quickly deal with the concerns raised by the noble Lord, Lord Avebury, in his Amendment 9A, which would limit the length of time for which persons who fall outside the strict definition of “detained persons” may be held.
By mixing up the uses to which short-term holding facilities—in other words, where different classes of person are held in the same facilities—can be put, the rules have a potential to cause confusion. However, we on these Benches see the case for flexibility in allowing holding facilities to be used to hold different types of person when the need arises. What matters in all the different cases is that staff at the holding facilities should be clear about what rules apply to which detainees. It seems now to us that the best way to do that is to set it out in rules in an easy-to-understand format, so that the rights and protections afforded by law to individuals who are being held are not breached accidentally. It is probably easier to do that through secondary legislation and codes of practice than by placing such provisions in the Bill.
I assure the Minister that we will be firm in holding the Government and their agents to adhering to any codes of practice. However, for those reasons, we cannot at this stage offer support to the noble Lord, Lord Avebury.
My Lords, I appreciate the concern of the noble Lord, Lord Avebury, in tabling this amendment and I should be grateful if he would let me explain why I cannot accept it, although I appreciate many of the points that he raised. I hope that I can give assurances and comfort that will allow him to withdraw the amendment.
The amendment would restrict to six hours the period of detention in a short-term holding facility of persons other than administrative immigration detainees. As the noble Lord said, the amendment was tabled at Report, when we made it clear why we could not accept it. The wording of the second limb of the new definition of a STHF may look at first sight to be broader than it will be in practice. Let me explain.
The only people whom we want to hold in STHFs, in addition to administrative immigration detainees, are those who have been arrested in connection with an immigration or customs offence. These people are subject to the protections of PACE. The only reason why we are tinkering with the established definition of a STHF in the 1999 Act is because that Act refers solely to administrative detention under immigration legislation. As we bring customs functions into the Border Agency, we want to ensure that arrests under immigration and customs legislation can also be caught, to ensure that the facilities of the Border Agency with immigration and customs functions can be used flexibly and efficiently to house all its clientele.
We should not be misled by the phrase “for any period”. This is not an open power to detain anyone indefinitely—far from it. Under PACE, the time limit is six hours, unless the facility has been specifically designated under PACE as a place where people may be held for longer. However, any such designation, and any detention in an STHF with that designation, will be subject to all the procedures and protections that PACE requires when detaining for more than six hours.
Our proposed revision to the definition of a short-term holding facility would have no effect whatever on the relevant time limits that would apply to a person’s detention or custody in those facilities, including those that apply to an arrested person whose detention is regulated by the provisions of PACE. We do not need to set a time limit because PACE already provides all the necessary limits in criminal cases. In accordance with the provision that we are making elsewhere in Part 1, where an arrested person is detained in a short-term holding facility, appropriate obligations and safeguards in PACE, or the equivalent order in Northern Ireland, will continue to apply.
Under the proposals in the Bill, individuals who have been arrested on suspicion of committing an offence, whether immigration or customs, may be detained for up to six hours in a short-term holding facility, or where such a facility has been designated for the purposes of PACE or the PACE (Northern Ireland) Order as a place of detention for longer than six hours, in accordance with the time limits prescribed by PACE, which could clock up to a maximum of 96 hours. There is, therefore, no need to specify a time limit in the definition itself.
I emphasise again that in all cases there will be no change to the relevant powers of arrest and detention, no change to the statutory protections that would apply to individuals held in a short-term holding facility and no change to the relevant statutory time limits that apply at present. To turn that around, I reassure noble Lords that the revised definition of a short-term holding facility does not in any way create new powers of arrest, detention or custody. It simply allows for the possibility of such facilities being used in a more flexible and efficient way to support the work of the UK Border Agency and any joint operations carried out with HMRC.
The noble Lord asked a number of questions. He asked whether the regulation would be the subject of a statutory instrument. It will. The rules for short-term holding facilities will be brought forward in the next few months. They will set out the standards and protection that will apply to immigration detainees in police cells and prisons and they will provide the reassurance that I have given that PACE will apply if people are detained in police stations or prisons. In broad terms, they will reflect the framework of those locations, modified as appropriate to reflect the non-criminal nature of immigration detention.
The noble Lord asked when this will come into effect. It will come into effect at Royal Assent. It is not our intention to delay its practical application, but I give an assurance that it will be applied in a way that will be consistent with the statutory instrument that will be introduced in the next few months.
The noble Lord asked a further question on consultation. I can give the assurance that we will consult the organisations that he named, including the Children’s Commissioner and appropriate NGOs. I hope that, on the basis of this explanation, the noble Lord will withdraw his amendment.
My Lords, I appreciate the care with which the Minister responded to the questions that I asked. In particular, I am grateful for the Government’s assurance that people will not be held in short-term holding facilities for longer than six hours, except where the PACE codes permit. I am particularly concerned about the use of short-term holding facilities at Heathrow and Gatwick airports, about which very serious criticisms have been made by the independent monitoring boards—to which attention has been drawn repeatedly by the noble Baroness, Lady Hanham, in a series of Written Questions—about the adequacy of the facilities, even for detention for short periods of six hours, for which they are supposed to be used now. If they are now going to be used, under this definition, for detentions under PACE provisions that allow a 96-hour contingency, they are totally unsuitable for the purpose.
The Minister in the Commons gave an assurance that there was an action plan to upgrade the facilities in accordance with the recommendations of the independent monitoring board. However, that will depend on the good will of the British Airports Authority and its ability to provide the capital and resources for the extension of the facilities. It would still be wrong to allow persons to be detained in facilities that are not suitable even for overnight accommodation, because they lack bedding, a toilet or adequate washing facilities.
However, as we are not going to get the support of the Conservatives for the amendment, there is no point in pressing it to a Division. We will keep a close eye on how these facilities are used and we hope that the bodies that I mentioned, including the Children’s Commissioner, the Chief Inspector of Prisons and the independent monitoring boards, will also ensure that unsuitable places are not used for keeping people for as long as the PACE code allows until the upgrading promised in the action plan has been accomplished. In the mean time, I beg leave to withdraw the amendment.
Motion on Amendment 9 agreed.
Motion on Amendments 10 to 14
Motion on Amendments 10 to 14 agreed.
Motion on Amendment 15
Motion on Amendment 15 agreed.
Motion on Amendment 16
My Lords, we very much welcome the Government’s acceptance in the other place last week of the arguments put forward both in this House and there about the great benefits of the common travel area to the United Kingdom, and Northern Ireland in particular. We are pleased that the Government will not press ahead with their plans to introduce immigration checks for those travelling between the Republic of Ireland and Great Britain and we thank them for listening to the concerns of this House and the other place.
However, I have one question for the Minister. Can he confirm that the Government will not go ahead with their proposed ad hoc checks on the border between Northern Ireland and the Republic? As discussed in Committee and on Report, concerns have been expressed in Northern Ireland that there could be a danger of racial profiling for people who are stopped, because they would need to satisfy the requirement of proving their identity in such a way that might well lead to ad hoc identity checks. We would very much welcome an assurance from the Government that such checks are now not possible and that they will not take place.
My Lords, I explained in moving the first group of amendments that unfortunately consensus has not been reached on the common travel area. Although the Government have indeed removed the proposal from the Bill concerning a common travel area, we think that it is still an area of concern in terms of security against terrorism and serious crime. However, the Government recognise the will of the House and therefore have withdrawn that part of the Bill.
We are of course concerned that both political and practical considerations mean that fixed or routine controls on the land border are not a viable option. However, that does not mean that we should not have the power under Section 10 of the 1971 Act to make an Order in Council provision, should it prove necessary, to deal with those who arrive by sea or air. We are considering ways to take forward the deletion of the CTA clause from the Bill and we believe that we should restore the status quo under the 1971 Act while this consideration takes place. The Minister in another place made it clear on Tuesday—reported at col. 238 of Hansard—that the Government still believe that the CTA amendments are needed. Pursuing such amendments would require new proposals to be brought forward to Parliament at a later date, but no decision has been taken as to when or in what form such proposals will be made. There will be no new immigration checks at the land border at this stage.
Motion on Amendment 16 agreed.
Motion on Amendments 17 to 19
My Lords, the Government have made considerable concessions in this area. Your Lordships will recall that we were united across parties, and Lord Kingsland, in particular, was very forceful on the subject of the transfer of judicial reviews to the new tribunal system. However, the Minister has now introduced a new clause, which means that no immigration or nationality law judicial review will be able to be transferred to the upper tribunal, except those which challenge a decision by the Secretary of State not to treat further submissions as a fresh asylum or human rights claim.
There has been compromise on all sides in reaching the position that we now have with the government amendments. We have accepted that the issue of fresh claims needs to be dealt with speedily, as the judiciary have consistently argued, and the Government have accepted the need to come back with primary legislation in order to transfer further classes of cases into the new tribunal system. Therefore, we welcome the Government’s amendments.
My Lords, as the noble Lord has just explained, this amendment goes some way to meeting the concerns held by Lord Kingsland and me on Report. It is extremely complicated, but the problem was the omission of condition 4 as a condition which had to be met before judicial review cases could be transferred from the High Court to the new tribunal. Now, new condition 5 has been inserted in much less strict terms than the old condition 4. As I understand it—I hope I am right—if condition 5 is satisfied, judicial review applications must be transferred, but if it is not, then it is up to the discretion of the High Court judges whether an application is transferred. I hope that the Minister might be able to confirm that my understanding is correct.
My Lords, the noble Lord, Lord Thomas, said that the Government have made considerable concessions to the united opposition on this matter. I think the noble and learned Lord, Lord Lloyd, said much the same. I was going to use slightly more robust words and say that it looked to me like a fairly complete climbdown by the Government, for which we are very grateful. As the noble Lord will be aware, Lord Kingsland was very rightly exercised by the Government reneging on a commitment given to this House some time earlier by the noble Baroness, Lady Ashton, that more transfers of judicial functions from the High Court to the tribunal would not be made without Parliament having a proper say. By accepting that no more transfers can be made without primary legislation, we believe that the Government are simply making good their own promise. Therefore, I welcome these amendments which the Government have brought forward.
My Lords, I am slightly shocked. The noble Lord suggests that there has been a total climbdown by the Government. The Government have listened carefully to the wise words of noble Lords. I feel slightly hurt at being castigated when the Government have listened to the good sense of noble Lords and have moved considerably to meet them. I am genuinely very grateful, not for the combined opposition, but for the great co-operation we have had, none greater than from the late lamented Lord Kingsland, who made a great effort to meet the Government and to help us all to arrive at something which your Lordships could accept. The situation is not quite as the noble and learned Lord, Lord Lloyd of Berwick, understands it. My brief tells me that only fresh claims must be transferred; no other judicial reviews can be transferred at all.
Motion on Amendments 17 to 19 agreed.
Motion on Amendments 20 to 23
Motion on Amendments 20 to 23 agreed.
Motion on Amendment 24
Motion on Amendment 24 agreed.
Motion on Amendment 25
Motion on Amendment 25 agreed.
Political Parties and Elections Bill
12G: Insert the following new Clause-
"Non-resident donors etc(1) In section 54 of the 2000 Act (permissible donors), in subsection (1) (circumstances in which party may not accept donation), for paragraph (aa) (inserted by section 8 above) there is substituted-
"(aa) any declaration required to be made in respect of the donation by section 54A or 54B has not been received by the party; or".(2) In subsection (2)(a) of that section (individuals who are permissible donors), for "registered in an electoral register" there is substituted "who is registered in an electoral register and (subject to subsection (2ZB)) satisfies the condition set out in subsection (2ZA)".
(3) After subsection (2) of that section there is inserted-
"(2ZA) The condition referred to in subsection (2)(a) is that the individual's liability to income tax for the current tax year (including eligibility to make any claim) falls to be determined (or would fall to be determined) on the basis that the individual is resident, ordinarily resident and domiciled in the United Kingdom in that year.
In this subsection "tax year" has the meaning given by section 4 of the Income Tax Act 2007.
(2ZB) The condition set out in subsection (2ZA) applies in relation to a donation only if-
(a) it is a donation of more than £7,500, or (b) when the donation is added to any other relevant benefit or benefits accruing in the same calendar year as the donation, the aggregate amount of the benefits is more than £7,500.(2ZC) For the purposes of subsection (2ZB)(b) "relevant benefit" and "accruing" have the meaning given by section 62(3A)."
(4) After section 54A (inserted by section 8 above) there is inserted-
"54BDeclaration as to whether residence etc condition satisfied(1) An individual making to a registered party a donation in relation to which the condition set out in section 54(2ZA) applies must give to the party a written declaration stating whether or not the individual satisfies that condition.
(2) A declaration under this section must also state the individual's full name and address.
(3) A person who knowingly or recklessly makes a false declaration under this section commits an offence.
(4) The Secretary of State may by regulations make provision requiring a declaration under this section to be retained for a specified period.
(5) The requirement in subsection (1) does not apply where, by reason of section 71B(1)(a), the individual by whom the donation would be made is a permissible donor in relation to the donation at the time of its receipt by the party."
(5) In section 56 of the 2000 Act (acceptance or return of donations: general), after subsection (1) there is inserted-
"(1A) In so far as subsection (1) requires steps to be taken to verify or ascertain whether an individual satisfies the condition set out in section 54(2ZA), the requirement is treated as having being complied with if-
(a) the individual has given to the party a declaration under section 54B stating that the individual satisfies that condition, and(b) the party had no reasonable grounds for thinking that the statement was incorrect."(6) In Schedule 6 to the 2000 Act (details to be given in donation reports), in paragraph 1A (inserted by section 8 above)-
(a) in the heading, at the end there is inserted "or as to whether residence etc condition satisfied";(b) at the end of that paragraph (which becomes sub-paragraph (1)) there is inserted-"(2) In relation to each recordable donation in the case of which a declaration under section 54B has been given, a quarterly report must either-
(a) state that no reason was found for thinking that the declaration was incorrect, or(b) give details of any respects in which the declaration was found or suspected to be incorrect."(7) In Schedule 20 to the 2000 Act (penalties) the following entry is inserted at the appropriate place-
“Section 54B(3) (making a false declaration as to whether residence etc condition satisfied) On summary conviction in England and Wales or Scotland: statutory maximum or 12 months On summary conviction in Northern Ireland: statutory maximum or 6 months On indictment: fine or 1 year”.
“Section 54B(3) (making a false declaration as to whether residence etc condition satisfied)
On summary conviction in England and Wales or Scotland: statutory maximum or 12 months
On summary conviction in Northern Ireland: statutory maximum or 6 months
On indictment: fine or 1 year”.
That Schedule makes amendments to-
(a) Schedules 7, 11 and 15 to the 2000 Act (control of donations to individuals and members associations; to recognised third parties; and to permitted participants), and(b) Schedule 20 to the 2000 Act (penalties), corresponding to those made by subsections (1) to (7)."
12H: Insert the following new Clause-
"Non-resident lenders etc(1) After section 71H of the 2000 Act there is inserted-
"71HZA Declaration that residence etc condition is satisfied(1) A registered party must not be a party to a regulated transaction to which this section applies unless the registered party has received a written declaration from each of the other parties to the transaction who is an individual stating that the individual satisfies the condition set out in section 54(2ZA).
(2) This section applies to a regulated transaction-
(a) if the value of the transaction is more than £7,500, or(b) if the aggregate amount of it and any other relevant benefit or benefits accruing in the same calendar year as the transaction is more than £7,500.(3) For the purposes of subsection (2)(b) "relevant benefit" and "accruing" have the meaning given by section 71M(3).
(4) A declaration under this section must also state the individual's full name and address.
(5) A person who knowingly or recklessly makes a false declaration under this section commits an offence.
(6) The Secretary of State may by regulations make provision requiring a declaration under this section to be retained for a specified period.
(7) The reference in subsection (1) to each of the other parties to the transaction does not include any individual who, at the time the transaction is entered into, is an authorised participant in relation to it by reason of section 71Z1(1)(a)."
(2) In section 71L of the 2000 Act (offences relating to regulated transactions), after subsection (9) there is inserted-
"(9A) An offence cannot be committed under subsection (1), (2), (5) or (6) on the basis that a person (P) ought reasonably to have known that a particular individual does not satisfy the condition set out in section 54(2ZA) (and is therefore not an authorised participant) if-
(a) the individual has given a declaration under section 71HZA stating that the individual satisfies that condition, and(b) P had no reasonable grounds for thinking that the statement was incorrect."(3) In Schedule 6A to the 2000 Act (details to be given in transaction reports), after paragraph 1 there is inserted-
"Declaration as to whether residence etc condition satisfied1A In relation to each recordable transaction in the case of which a declaration under section 71HZA has been given, a quarterly report must either-
(a) state that no reason was found to think that the declaration was incorrect, or(b) give details of any respects in which the declaration was found or suspected to be incorrect."(4) In Schedule 7A to the 2000 Act (control of loans etc to individuals and members associations), after paragraph 4 there is inserted-
"Declaration that residence etc condition satisfied4A(1) A regulated participant must not be a party to a controlled transaction to which this paragraph applies unless the regulated participant has received a written declaration from each of the other parties to the transaction who is an individual stating that the individual satisfies the condition set out in section 54(2ZA).
(2) This paragraph applies to a controlled transaction-
(a) if the value of the transaction is more than £7,500, or(b) if the aggregate amount of it and any other relevant benefit or benefits accruing in the same calendar year as the transaction is more than £7,500.(3) For the purposes of sub-paragraph (2) "relevant benefit" and "accruing" have the meaning given by section 71M(3).
(4) A declaration under this paragraph must also state the full name and address of the person by whom it is made.
(5) A person who knowingly or recklessly makes a false declaration under this paragraph commits an offence.
(6) The Secretary of State may by regulations make provision requiring a declaration under this paragraph to be retained for a specified period.
(7) The reference in sub-paragraph (1) to each of the other parties to the transaction does not include any individual who, at the time the transaction is entered into, is an authorised participant in relation to it by reason of section 71Z1(1)(a)."
(5) In paragraph 8 of that Schedule (offences), after sub-paragraph (9) there is inserted-
"(9A) A person (P) cannot commit an offence under sub-paragraph (1), (2), (5) or (6) on the basis that P ought reasonably to have known that a particular individual does not satisfy the condition set out in section 54(2ZA) (and is therefore not an authorised participant) if-
(a) the individual has given a declaration under paragraph 4A stating that the individual satisfies that condition, and(b) P had no reasonable grounds for thinking that the statement was incorrect."(6) In paragraph 9 of that Schedule (transaction reports: transactions with authorised participants)-
(a) in sub-paragraph (9)(a) and (10), for "paragraphs 2" there is inserted "paragraphs 1A, 2";(b) in sub-paragraph (10), after paragraph (b) there is inserted-"(ba) any reference to section 71HZA must be construed as a reference to paragraph 4A above;".(7) In Schedule 20 to the 2000 Act (penalties) the following entries are inserted at the appropriate places-
"Section 71HZA(5) (making a false declaration as to whether residence etc condition satisfied) On summary conviction in England and Wales or Scotland: statutory maximum or 12 months On summary conviction in Northern Ireland: statutory maximum or 6 months On indictment: fine or 1 year" “Paragraph 4A(5) of Schedule 7A (making a false declaration as to whether residence etc condition satisfied) On summary conviction in England and Wales or Scotland: statutory maximum or 12 months On summary conviction in Northern Ireland: statutory maximum or 6 months On indictment: fine or 1 year”.”
"Section 71HZA(5) (making a false declaration as to whether residence etc condition satisfied)
On summary conviction in England and Wales or Scotland: statutory maximum or 12 months
On summary conviction in Northern Ireland: statutory maximum or 6 months
On indictment: fine or 1 year"
“Paragraph 4A(5) of Schedule 7A (making a false declaration as to whether residence etc condition satisfied)
On summary conviction in England and Wales or Scotland: statutory maximum or 12 months
On summary conviction in Northern Ireland: statutory maximum or 6 months
On indictment: fine or 1 year”.”
12I: Page 23, line 23, at end insert-
"(2A) An order under subsection (1) bringing into force any provision of section (Non-resident donors etc) or (Non-resident lenders etc), or Schedule (Declaration as to whether residence etc condition satisfied), may make such supplementary, incidental or consequential provision as the Secretary of State considers appropriate-
(a) for the general purposes, or any particular purposes, of those sections or that Schedule, or(b) in consequence of, or for giving full effect to, any provision of those sections or that Schedule.(2B) An order made by virtue of subsection (2A) may make provision amending this Act or the 2000 Act.
An order that makes any such provision must not be made unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament."
12J: Insert the following new Schedule-
"DECLARATION AS TO WHETHER RESIDENCE ETC CONDITION SATISFIED Schedule 7 to the 2000 Act (control of donations to individuals and members associations)1(1) In paragraph 6 of Schedule 7 to the 2000 Act (prohibition on accepting donations from impermissible donors), for paragraph (aa) of sub-paragraph (1) (inserted by Schedule 3 above) there is substituted-
"(aa) any declaration required to be made in respect of the donation by paragraph 6A or 6B has not been received by the donee, or".(2) After paragraph 6A of that Schedule (inserted by Schedule 3 above) there is inserted-
"Declaration as to whether residence etc condition satisfied6B(1) An individual making to a regulated donee a donation in relation to which the condition set out in section 54(2ZA) applies must give to the donee a written declaration stating whether or not the individual satisfies that condition.
(2) A declaration under this paragraph must also state the individual's full name and address.
(3) A person who knowingly or recklessly makes a false declaration under this paragraph commits an offence.
(4) The Secretary of State may by regulations make provision requiring a declaration under this paragraph to be retained for a specified period.
(5) The requirement in sub-paragraph (1) does not apply where, by reason of section 71B(1)(a), the individual by whom the donation would be made is a permissible donor in relation to the donation at the time of its receipt by the donee."
2 In paragraph 8 of that Schedule (acceptance or return of donations), after sub-paragraph (1) there is inserted-
"(1A) In its application in accordance with sub-paragraph (1), section 56(1A)(a) shall have effect as if the reference to a declaration under section 54B were construed as a reference to a declaration under paragraph 6B above."
3(1) Paragraph 10 of that Schedule (donation reports: donations from permissible donors) (as amended by Schedule 3 above) is amended as follows.
(2) In sub-paragraph (1)(b), after "paragraph 6A" there is inserted "or 6B".
(3) In sub-paragraph (5), at the end of paragraph (aa) there is inserted ", and any reference to section 54B shall be read as a reference to paragraph 6B above".
Schedule 11 to the 2000 Act (control of donations to recognised third parties)4(1) In paragraph 6 of Schedule 11 to the 2000 Act (prohibition on accepting donations from impermissible donors), for paragraph (aa) of sub-paragraph (1) (inserted by Schedule 3 above) there is substituted-
"(aa) any declaration required to be made in respect of the donation by paragraph 6A or 6B has not been received by the recognised third party; or".(2) After paragraph 6A of that Schedule (inserted by Schedule 3 above) there is inserted-
"Declaration as to whether residence etc condition satisfied6B(1) An individual making to a recognised third party a donation in relation to which the condition set out in section 54(2ZA) applies must give to the recognised third party a written declaration stating whether or not the individual satisfies that condition.
(2) A declaration under this paragraph must also state the full name and address of the person by whom it is made.
(3) A person who knowingly or recklessly makes a false declaration under this paragraph commits an offence.
(4) The Secretary of State may by regulations make provision requiring a declaration under this paragraph to be retained for a specified period."
5 In paragraph 7 of that Schedule (acceptance or return of donations), after paragraph (a) of sub-paragraph (2) there is inserted-
"(aa) section 56(1A)(a) shall have effect as if the reference to a declaration under section 54B were construed as a reference to a declaration under paragraph 6B above; and".6 In paragraph 9A of that Schedule (inserted by Schedule 3 above)-
(a) in the heading, after "paragraph 6A" there is inserted "or 6B";(b) at the end of that paragraph (which becomes sub-paragraph (1)) there is inserted-"(2) In relation to each relevant donation falling with paragraph 10(2) in the case of which a declaration under paragraph 6B has been given, the statement must either-
(a) state that no reason was found for thinking that the declaration was incorrect, or(b) give details of any respects in which the declaration was found or suspected to be incorrect."Schedule 15 to the 2000 Act (control of donations to permitted participants)7(1) In paragraph 6 of Schedule 15 to the 2000 Act (prohibition on accepting donations from impermissible donors), for paragraph (aa) of sub-paragraph (1) (inserted by Schedule 3 above) there is substituted-
"(aa) any declaration required to be made in respect of the donation by paragraph 6A or 6B has not been received by the permitted participant, or".(2) After paragraph 6A of that Schedule (inserted by Schedule 3 above) there is inserted-
"Declaration as to whether residence etc condition satisfied6B(1) An individual making to a permitted participant a donation in relation to which the condition set out in section 54(2ZA) applies must give to the permitted participant a declaration stating whether or not the individual satisfies that condition.
(2) A declaration under this paragraph must also state the individual's full name and address.
(3) A person who knowingly or recklessly makes a false declaration under this paragraph commits an offence.
(4) The Secretary of State may by regulations make provision requiring a declaration under this paragraph to be retained for a specified period."
8 In paragraph 7 of that Schedule (acceptance or return of donations), after paragraph (a) of sub-paragraph (2) there is inserted-
"(aa) section 56(1A)(a) shall have effect as if the reference to a declaration under section 54B were construed as a reference to a declaration under paragraph 6B above; and".9 In paragraph 9A of that Schedule (inserted by Schedule 3 above)-
(a) in the heading, after "paragraph 6A" there is inserted "or 6B";(b) at the end of that paragraph (which becomes sub-paragraph (1)) there is inserted-"(2) In relation to each relevant donation falling with paragraph 10(2) in the case of which a declaration under paragraph 6B has been given, the statement must either-
(a) state that no reason was found for thinking that the declaration was incorrect, or(b) give details of any respects in which the declaration was found or suspected to be incorrect." Schedule 20 to the 2000 Act (penalties)10 In Schedule 20 (penalties) the following entries are inserted at the appropriate places-
"Paragraph 6B(3) of Schedule 7 (making a false declaration as to whether residence etc condition satisfied) On summary conviction in England and Wales or Scotland: statutory maximum or 12 months On summary conviction in Northern Ireland: statutory maximum or 6 months On indictment: fine or 1 year" "Paragraph 6B(3) of Schedule 11 (making a false declaration as to whether residence etc condition satisfied) On summary conviction in England and Wales or Scotland: statutory maximum or 12 months On summary conviction in Northern Ireland: statutory maximum or 6 months On indictment: fine or 1 year" "Paragraph 6B(3) of Schedule 15 (making a false declaration as to whether residence etc condition satisfied) On summary conviction in England and Wales or Scotland: statutory maximum or 12 months On summary conviction in Northern Ireland: statutory maximum or 6 months On indictment: fine or 1 year"."
"Paragraph 6B(3) of Schedule 7 (making a false declaration as to whether residence etc condition satisfied)
On summary conviction in England and Wales or Scotland: statutory maximum or 12 months
On summary conviction in Northern Ireland: statutory maximum or 6 months
On indictment: fine or 1 year"
"Paragraph 6B(3) of Schedule 11 (making a false declaration as to whether residence etc condition satisfied)
On summary conviction in England and Wales or Scotland: statutory maximum or 12 months
On summary conviction in Northern Ireland: statutory maximum or 6 months
On indictment: fine or 1 year"
"Paragraph 6B(3) of Schedule 15 (making a false declaration as to whether residence etc condition satisfied)
On summary conviction in England and Wales or Scotland: statutory maximum or 12 months
On summary conviction in Northern Ireland: statutory maximum or 6 months
On indictment: fine or 1 year"."
12K: Page 59, line 30, at end insert-
"( ) In that section as amended by sub-paragraph (1)-
(a) after "section 54A" there is inserted "or 54B";(b) after "paragraph 6A" there is inserted "or 6B"."
12L: Page 60, line 6, at end insert-
" In section 71H (authorised participants), after subsection (3) there is inserted-
"(3A) For the purposes of subsection (3), any reference to a donation in section 54(2ZB) is to be read as a reference to a regulated transaction.""
12M: Page 61, line 20, at end insert-
"( ) In sub-paragraph (3) of that paragraph (inserted by sub-paragraph (2) above), after "paragraph 6A" there is inserted "or 6B"."
12N: Page 61, line 33, at end insert-
"( ) In sub-paragraph (3) of that paragraph (inserted by sub-paragraph (2)(b) above), after "paragraph 6A" there is inserted "or 6B"."
My Lords, I beg to move Motion A, that this House do not insist on its Amendments 11 and 12, to which the Commons have disagreed, but do disagree with the Commons in their Amendments 12A to 12F in lieu and do propose Amendments 12G to 12N in lieu of those amendments.
These amendments propose to add to the permissibility and declaration requirements relating to donations and loans from individuals. They respond to the amendments tabled by my noble friend Lord Campbell-Savours in this place, which were well supported across a wide spectrum of the House. They were debated extensively in another place a week ago, and I believe that, in their revised form, they strike an appropriate balance between addressing the concern that is clearly so well supported and ensuring the new restriction is fair and proportionate.
These amendments propose to add to the existing criteria in the 2000 Act that govern the permissibility of individuals making political donations or loans. They provide that individuals giving or loaning more than £7,500 to a political party or other regulated recipient must be resident, ordinarily resident and domiciled in the UK for the tax year in which the relevant donation or loan is made. This requirement applies irrespective of whether the donation or loan exceeds the threshold singly or in aggregate over the course of a calendar year. Individuals must make a statement that they are resident, ordinarily resident and domiciled in the UK and provide this along with their donation or loan. Making a false statement is a criminal offence, and a party cannot accept such a donation without the requisite declaration.
This requirement is additional to the existing requirement for individuals making political donations or loans to be on a UK electoral register. Importantly, however, the additional restriction applies only to more significant donations or loans: those above £7,500. The existing permissibility requirement of inclusion in an electoral register remains in force at the lower threshold, currently £200, but it is proposed to increase it by this Bill to £500, as I have already mentioned.
We propose the new restriction to apply to the higher threshold of £7,500 for reasons of fairness and proportionality. That is key and largely addresses a significant concern the Government had with the amendments tabled by my noble friend. As I outlined in debates in Grand Committee and on Report on this Bill, we were concerned at the low level of the restriction in my noble friend’s amendments, which in our view amounted to an unfair restriction on individuals’ ability to participate in our democratic system. Setting the threshold at £7,500 is much fairer, allowing, as it does, an individual who is not resident, ordinarily resident and domiciled in the United Kingdom to retain the ability, albeit in a newly restricted way, to make donations as a way of participating in our democratic system. The higher threshold also has the important advantage of reducing the burden of compliance for political parties and donors. Enabling an individual who does not meet the new permissibility requirement still to make significant donations that do not exceed £7,500 in a calendar year deals, in our view, with any concern of the sort that was expressed by Members of the Opposition in the other place about the compatibility of these proposals with EU law and the ECHR.
I should briefly outline how the amendments work in respect of aggregation of smaller donations towards the £7,500 threshold.
The amendments propose to require donations above the recordable threshold—£500, as proposed by the Bill—to the same donee to be accounted for where in aggregate they exceed the £7,500 threshold. This means that if a donor gave a series of donations of £2,000 to a political party, the fourth such donation would need to be accompanied by a declaration and the donor would need to be resident, ordinarily resident and domiciled in the UK at the time of making that donation.
We have considered whether it is feasible to have a more stringent requirement for the aggregation of all political donations and loans regardless of the recipient, but we have concluded that this would be unworkable in practice, and would impose an excessive burden on donors and more importantly on parties and other recipients. In addition, such a proposal would depart significantly from the way in which the 2000 Act currently requires aggregation to work in the reporting of donations and loans. This is particularly true given that political parties would have no means of ascertaining what other political donations an individual had made, and as such whether or not a declaration was required.
I stress that the amendments do not provide for parties, the Electoral Commission or Her Majesty’s Revenue and Customs to access tax data to verify the accuracy of the residence and domicile status declarations, and as such there is no provision here for the enforcement of the requirements by the Electoral Commission or HMRC. Frankly, it has not been possible to devise such provisions in the time available, given the new onerous and costly data-holding and data-sharing requirements they would be likely to create. More importantly, we believe that it would be challenging to do so in a way that was consistent with the important principle that, without a criminal offence, an individual’s tax data are a confidential matter between him or her and HMRC. As such, were an individual to lie in a declaration, it would be for law enforcement agencies to investigate.
Given the difficulty that parties would have in probing the accuracy of declarations, and in recognition of the largely volunteer nature of our political parties, the amendments propose that where the party,
“had no reasonable grounds for thinking that the statement was incorrect”,
receipt of a declaration would be treated as meeting the requirement in Section 56(1) of the 2000 Act for a party to take reasonable steps to verify the permissibility of donations.
If a party had concerns about the accuracy of a declaration, it could seek further information from the donor on a voluntary basis. This might include, for example, a letter from an accountant. If the party had concerns that the donor was not resident, ordinarily resident and domiciled for tax purposes, the party should not accept the donation. In line with the Electoral Commission’s overarching guidance-giving role, this new requirement might be an issue on which the commission might usefully give guidance.
My right honourable friend the Secretary of State for Justice outlined the specific considerations that apply to Northern Ireland, and these provisions address that by ensuring that the requirements do not apply to Irish donors making donations to Northern Ireland parties under Section 71B(1)(a) of the 2000 Act.
I hope that these amendments will be accepted by the House. We believe that they are a proportionate and effective way of giving effect to the will of Parliament, as clearly expressed in the Division in this House in response to the amendments moved by my noble friend Lord Campbell-Savours. I beg to move.
My Lords, I am afraid I still feel that the Bill is a sad example of a terribly wasted opportunity. Ministers’ obsession with the illusory consensus has meant that they have never been able to step up to the mark and use the Bill to clean up big-money politics. Because they were so determined to do nothing to cause anxiety to the Conservative Party, they have ended up doing next to nothing about serious reform. I think all parties said they were determined to achieve such reform, so we regret this.
However, we are delighted that the consensus across your Lordships' House in support of the amendment tabled by the noble Lord, Lord Campbell-Savours, and US has at least led to the blocking of a very important and dangerous loophole in the law. The amendments put before us by the Minister are certainly a considerably improved package, which we welcome very much. We in this House, across all parties, were determined to prevent multi-millionaire tax exiles from continuing to buy parties and constituencies on a scale of intervention which has hardly been matched since the corruption of pre-1832 rotten boroughs.
These amendments seem reasonably effective, but in correspondence with the right honourable Mr Michael Wills, the Minister responsible for the Bill in the other place, I raised two continuing concerns, part of which have been addressed in his opening remarks by the Minister, but I want to press him on some details. First, throughout all stages of the Bill, we have been anxious to ensure that the thresholds for reporting and recording donations could be bypassed by making a series of payments, each individually below the threshold, but in aggregate greatly exceeding them. That is obviously an issue to which the Minister paid attention just now. For example, there would seem to have been a danger that a tax exile who is not a permissible donor could simply donate £7,499 on a number of occasions each year and avoid the provisions of this legislation.
In his response, Mr Wills wrote in his letter that,
“multiple donations to the same political party, or same MP, which over the course of a year exceeded £7,500, must be accompanied by a declaration of the tax status of the donor, and the donor must be ROD in the UK”.
ROD apparently stands for “resident, ordinarily resident and domiciled in the UK”. Mr Wills continued:
“This aggregation requirement applies to donations to different accounting units where those units report to the Electoral Commission via the central party. However, the aggregation requirement does not apply to multiple donations to different recipients (e.g. a party and an MP). This is because we do not believe it is fair to require donors to keep track of their interaction with different entities”.
It is that latter qualification to which the Minister has just referred which really adds to our concern. I hope that the Minister will be prepared to give an explicit assurance that everything possible will be done to monitor the situation and, if necessary, to take steps to avoid any exploitation if a new loophole is discovered. We really need the Government’s intention on the record if we are fully to fulfil the intention of your Lordships' House in passing the original amendment.
Incidentally, I have some difficulty with the suggestion from Mr Wills that donors may be given special treatment if they give money to several MPs. Surely their parliamentary duties are now well funded by official sources, which is something that we have all learnt over recent weeks, and there should be no special treatment for those who donate for their party-political campaigning. What would be the position if a tax exile multi-millionaire decided to give a donation below the threshold to every MP of a particular party? The implication in Mr Wills’s letter is that MPs should be treated differently from parliamentary candidates of a different party who stand against them. Surely that cannot be right.
Our second area of concern has been expressed in both Houses during the passage of the Bill; that is, very proper restrictions should now be put in place to avoid any circumvention by companies controlled by those who are not permissible donors. Mr Wills tells me in his letter:
“Section 56 of the Political Parties, Elections and Referendums Act 2000 requires donations which are made on behalf of another person to be declared as such”,
and referred to an “agency”. It is far from clear whether the constraints of the present Bill are sufficient to make it a firm requirement that any declarations from a company in this category are as rigorously controlled as from a tax exile individual. Again, I hope that the Minister will be able to give us a firm assurance on the record that it is intended that such companies should not be used as a bypass for donations that would otherwise be illegal.
There are one or two other key changes in the government amendments now before us when compared with those that were considered by the other place. For example, the Government have changed their mind about the reference to the tax year, which is going to be relevant. Previously we were told that the current tax year was unworkable as a reference point, but now we are told that it is possible. Again, perhaps the Minister can enlighten us.
Having briefly identified two areas of anxiety, I must again reassure the Minister that we think the Bill is somewhat improved by these amendments. As my honourable friend David Howarth said at Third Reading in the other place, we are delighted that the artificial consensus has at last broken down on this specific issue, but we simply regret that it did not break down earlier and more generally. I think that the noble Lord, Lord Campbell-Savours, would agree that it is an important change to which we should all give a warm welcome.
If all legislation were dependent on Conservative acquiescence and no reform could proceed without all-party support, where would we be? Indeed, at an earlier stage I asked the Minister whether his addiction to consensus would prevent action if his party and the Conservatives were in cahoots on a particular issue and we, the Liberal Democrats, disagreed, but answer came there none. If this Bill fully reflected the intentions of the Hayden Phillips discussions, it would have had more teeth and there would have been more chance of a general reform of the funding of political parties and elections. Nevertheless, we welcome this U-turn and believe that it strengthens the Bill.
My Lords, I welcome this chance to speak to the Motion before us. If the House will bear with me, it is worth taking a few minutes to recap as to how we come to be in the position we are now in. An attempt was made by Mr Prentice to table an amendment on Report in the other place. The government business managers decided that they did not want the matter to be debated and therefore it came to this place. The noble Lord, Lord Campbell-Savours, took up the amendment and with his characteristic skill and ability in Committee, again on Report and at Third Reading, brought it back here. At that point there was quite strong opposition to it. I shall come to my views shortly, but first I shall quote the Minister:
“The Government have stated their firm belief that it would be wrong in principle to create an anomaly by introducing extra restrictions on only one form of participation without considering”,
other forms. The other forms to which that remark relates are mentioned earlier in the Minister’s speech where he says:
“As we have said before, the Government recognise and understand the sentiment behind the amendments … We also recognise, however, that making a donation is just one way in which an individual can participate in our democracy. There are many other ways, ranging from exercising the right to vote in an election to standing as a candidate”.—[Official Report, 15/6/09; col. 914.]
In this sense, by introducing two specific additional tests in respect of donations, the Government said that we would be in danger of creating an “anomaly”. I am sure that the Minister will be able to confirm that those were very much his sentiments which he set out in Committee and repeated here.
A very high quality debate then took place in which many excellent contributions were made. A Division was called and the amendment tabled by the noble Lord, Lord Campbell-Savours, was carried. It went down to the other place, and after what I should say what was a slight delay on the part of the business managers in bringing the Bill back to the Floor of the other place, every indication was given to the press—it was reported in the Guardian, no less—that Mr Straw, the Secretary of State, had stated that the Government Benches would be whipped to vote against the noble Lord’s amendments. That was a clearly stated position. Something happened then, we know not what, but there was a Damascus road conversion in the other place and we found that some six pages of amendments, where previously the noble Lord, Lord Campbell-Savours, had sent down a paragraph, were put forward in the other place for consideration. It is interesting that those six pages of amendments have now been superseded by another six pages of different amendments, which brings us to where we are now. It is worth putting on record the circuitous route taken by the legislation and that the previous publicly stated positions of the Minister and the Secretary of State have been turned on their head for no apparent reason.
Let me set out some of the problems. We remember that when the Bill was introduced the idea was to avoid the possibility of innocent mistakes and to make the process simple and transparent. While there is nothing transparent about the way in which the Government have changed their view and introduced these amendments, certainly the objective was that the Bill should be transparent in the way that it operated. Therefore the transparency of simply registering people on an electoral register which is supplied to each party seemed a simple way forward. Now some additional tests have been introduced. It is worth going through what the tests are and what their implications are and I shall be interested to hear the Minister’s response.
First, on residence, the Explanatory Notes to Part 14 of the Income Tax Act 2007 state in paragraph 2455:
“The question whether or not a person is UK resident is primarily to be determined in accordance with case law. A limited number of statutory rules either supplement or disapply the case law rules in specific circumstances”.
In other words, there is no statutory definition of residence. Therefore, if this is to appear in the Bill as a test which donors are required to pass, and there is no statutory definition of residence, it could cause a problem. I hope the Minister will touch on these points in his response. I am happy to give way at any stage if he has a specific answer because that would aid the understanding of the House, and not least myself.
The Explanatory Notes continue:
“There is no register of UK resident individuals; it would therefore be necessary to provide individuals with information to try to enable them to determine whether or not they are resident in the UK and then require individuals to make a declaration that they are resident at the time they make their donation … By way of example, a person will always be treated as a UK resident where they spend 183 days or more in the UK”.
That is very clear. They go on:
“However, where a person spends less than 183 days in a tax year in the UK, but comes to the UK with the intention of spending on average at least 91 days or more in the tax year and they in fact spent on average 91 days or more per tax year over a four year period, then they will be treated as resident from the tax year in which they first come to the UK”.
In case your Lordships do not think that is complicated enough, the Explanatory Notes continue:
“If however the person’s intention failed and they left the UK earlier than expected, then they may not be treated as UK resident from the date upon which they first come to the UK. Clearly one would be unable to determine with certainty until the end of the 4 year period whether or not a person were to be treated as UK resident under this test. This may therefore affect the validity of any donation made to a political party during the 4 year period”
This is a moot point. In speaking to it, the noble Lord, Lord Tyler, commented on the change which had been made in the other place, along with many others, from the previous tax year to the current tax year. Will the Minister deal with that specific point? The absence of a statutory definition and the four-year aggregate of 91 days’ residence are an example of the complexity that we are dealing with here. What would happen in those circumstances?
The second test that has been introduced relates to domicile. Political parties will have to determine, in relation to every political donation, whether the donor is not a non-domiciled UK resident. HMRC has recently issued the new technical guidance on domicile, consisting of 42 pages. The introduction to this technical guidance stresses the difficulties inherent in the determination of domicile. If we thought that residence was a difficult concept to uphold in the Bill, domicile is even more complex. Add to that complexity another concern about the penalties that would be liable to the party if it accepted an impermissible donation. Again, that is relevant.
We are dealing here with the difficult concepts of residence and domicile; I think that everyone is agreed on that. Often one’s tax status and domicile may be determined retrospectively, yet the Bill is set out to relate to the current year.
The prohibition on the acceptance of impermissible donations and the duty to return any such donations within 30 days of receipt, in Clause 54(1) and 56(2) respectively, are subject to criminal and civil enforcement regimes. The party and the treasurer are guilty of an offence if the donation is not from a permissible donor and is not sent back to the donor within 30 days of receipt. In addition to the points that have been raised, the Minister referred to the fact that HMRC will not be able to keep these data and there will be no register. The system of policing will therefore not be in place. If HMRC, the Government and the Electoral Commission cannot prove the offence, how can these sanctions be applied to a party treasurer who has just 30 days to understand and test these levels of residency and tax domicile?
My next point is a very interesting one that has been raised with me. The Minister said that he felt this measure was consistent with the European Convention on Human Rights. I want to test him further on that. In the case of Bowman v United Kingdom, the European Court of Human Rights proved that it would step in to protect the right to freedom of expression even in the case of UK primary legislation designed to regulate the conduct of elections. In Bowman it was found that a spending limit on third parties of £5 imposed in Section 75 of the Representation of the People Act 1983 was an infringement of the right to freedom of expression under Article 10 of the European Convention on Human Rights. There is a statutory responsibility to have an impact assessment; the Minister states in the Bill:
“In my view, the provisions of the Political Parties and Elections Bill are compatible with the Convention rights”.
Is that still the case? Can the noble Lord still make that statement, given some of the precedents that relate to this?
Indeed, we extend that through EU law to issues relating to human rights. The Maastricht treaty introduced the concept of Union citizenship. According to Article 18, Union citizens have the right to move and reside freely within the territory of any of the member states, subject to the limitations and conditions contained in the EU treaty and secondary legislation. The European Court of Justice has defined Union citizenship as the “fundamental status” of Union citizens. Union citizens have a right of conditional residence and limited right to equal treatment. On that basis, they therefore have the right as European citizens to participate in and stand for elections in this country. Does the Minister believe that the new test of tax residence is consistent with EU law and the European Convention on Human Rights?
Section 1 of the Representation of the People Act 1985 permits overseas British citizens to vote at a parliamentary election if they are registered on the electoral roll, were resident at a UK address within the previous 15 years and registered at that address or, if they were too young to be registered, a parent or guardian was registered at that address. The requirement in PPERA that an individual be on the electoral roll therefore already incorporates a test of connection, or involvement, with the United Kingdom. This is important because it is clear that questions will be raised, time wasted and important matters debated if that matter is tested in a prosecution. Does the Minister stand by the statements about the complexity of tax and residence, and their potential for creating anomaly, that he made in Committee and on Report? A simple yes-or-no answer to that would be very helpful.
Is this the thin end of the wedge? By linking the ability to vote and donate to tax status, the Bill risks establishing a principle that political rights should be in some way based on making a contribution to the state through taxation. Has the Minister considered that aspect and, if so, what is his conclusion?
I shall touch briefly on some of the observations that have been made by the Electoral Commission, which will be landed with the responsibility for upholding the legislation. In a briefing which I am sure has been circulated to all Members who have an interest in this debate, it expresses concern. It recognises that new Amendments 12G to 12N represent an improvement over Amendments 11 and 12 which were tabled in the other place—I think that we would accept that, too. Page 2 of the document states that,
“amendments 12G to 12N go some way to addressing our previous concerns. In particular, they appear for the most part to remove the need for those receiving donations that attract the new tax status criterion for permissibility to seek to validate declarations from donors about tax status … We note that amendment 121 contains a delegated power for the Government to make supplementary provision to give full effect to the new requirements, and we urge the Government to consult with us and with those we regulate, in order to consider what further provision may be necessary”.
The Electoral Commission is therefore saying, “Well, we understand very much what you want to do”. The Minister has said, “Well, listen, you might want to do it and it might actually please some Members of this House and the other House that you are attempting to do this, but it is going to be impossible to police”—I think he used the word “impossible”. He said that all that can be required is for somebody to make a self-declaration. I think he said that it would be up to the criminal authorities to decide whether an offence had been committed. In other words, there is no access to any information for the Electoral Commission to take the lead on this—a matter that the Bill was meant to tackle.
I apologise for speaking at length but it is important to place on record legitimate questions about why the Government changed their view—if, indeed, they have done so—from that consistently argued in Committee and on Report to that proposed in these revised amendments. I am sure they recognise that they are now creating an anomaly within the tax system whereby somebody can vote in an election in this country, can stand at an election in this country but cannot give a donation to a party in this country which exceeds the threshold of £7,500. The Minister has accepted that this will be impossible to police. Very serious questions remain about these amendments. The pace at which they have been introduced is likely to lead to great confusion. We desperately wanted clarity from the Bill but we have confusion. That is regrettable and in no way helps the aim to which we all aspire of ensuring that the public have confidence in the system of electoral representation and the working of political parties in this country.
My Lords, I intend to be very brief as I spoke at great length in Committee and on Report. I thank parliamentary counsel and those who drafted these amendments, which tidy up the amendments which we originally moved, for the considerable effort they have made during a very short period. I also thank my noble friend Lord Bach, Mr Wills and Mr Jack Straw for all the work and effort they have put into ensuring that these ideas and principles are transformed into legislation.
However, I also wish to clarify the following point. At no stage during the handling of this amendment in this House, in Committee or on Report have I ever indicated that it was intended to target any individual. I have always recognised that people in all political parties might be affected by this. My view has always been, and remains, that this is an issue of principle. It is on that basis that I have moved these amendments. I am grateful to all those, particularly the Liberal Democrats and the Cross-Benchers, for their support on the night of the rebellion when we overturned the Government’s measure.
My Lords, I thank all noble Lords who have taken part in today’s debate. I shall discipline myself and not respond at length to this matter. The House has important matters to debate today and tomorrow.
I am grateful to noble Lords who have thanked the Government for taking the stance that they have. It is not an easy issue and I do not pretend for a moment that it is. However, we have found our way through the thicket. We were always sympathetic to the principle that my noble friend raised but were concerned about its practicalities. I do not say that all those concerns have gone away, as that would not be true, but we think that we have found a way through by retaining the principle there and the ability to implement this provision in due course.
The noble Lord, Lord Tyler, asked me a number of questions, which I shall deal with shortly. Aggregation is not a loophole. The approach in these amendments reflects the approach in the PPERA legislation of 2000. We do not believe that it is workable or fair to expect different recipients of donations to act in the knowledge of donations received by others, which they have no way of knowing about. The approach taken by these amendments is consistent with the 2000 Act. It would be very difficult—even onerous—to expect an MP or other individual party member to check what donations had been received in the same year by other MPs or party members of the same party. It is not at all clear how we could realistically expect someone to go about that task. We must remember that an MP represents a constituency in his or her individual capacity, not as a member of a party, and might well receive donations on that basis. We do not want to undermine that principle.
A donor could seek to get round the new restriction by giving donations below £7,500 to a large number of MPs of the same party. However, MPs are required to report donations that they receive at the lower threshold of £1,000, to be raised to £1,500 by the Bill, so such behaviour would soon become apparent. Recent events suggest that the public is not well disposed towards those who seek to operate only within the letter of the law without also respecting its spirit.
As far as companies are concerned, which was the second point raised by the noble Lord, the amendments restrict the permissibility of individuals to give political donations; they do not restrict the permissibility of donations from companies. Amendments on company donations would be out of scope. However, Clause 8 of the Bill requires a declaration to accompany donations above £7,500 about the source of the donation. That is intended to ensure that any agency arrangement is properly declared. Therefore, if an individual gives money to a company, another person or entity with the intention that that money is given as a political donation, that arrangement ought to be declared and the individual treated as the donor.
We have and continue to have sympathy with the point made by the noble Lord, Lord Tyler, on this, but there remains a serious concern about how such a restriction could be introduced in practice. In particular, there would be no easy way for parties to establish the make-up of a company’s shareholder register. Those amendments were therefore not accepted and were returned to at a subsequent stage of the Bill. The noble Lord’s last point that I want to answer was that Members of Parliament could receive up to £7,500 each from non-residents for tax purposes but candidates could not. He made that distinction. Where candidates are members of a political party, they are regulated under PPERA as a regulated donee and, as such, are covered by these amendments. Independent candidates are only regarded in the period preceding an election under the Representation of the People Act 1983, as amended. As such, they are not subject to the requirements in PPERA nor to these amendments. To suggest that donations to candidates are unregulated is not strictly fair or true. Indeed, most candidates are party members, so are captured by these requirements.
I do not seek to try to answer all the points made by the noble Lord, Lord Bates. I am sure that he enjoyed himself immensely in his speech by pointing out what had been said in earlier debates on the Bill. If that gave him and the House satisfaction, so be it.
My Lords, the Minister cannot get away with that. It is not a question of satisfaction. It is a question of what the Government said in this place—what he put on record, speaking on behalf of Her Majesty's Government—and what Her Majesty's Government then said in the other place just a couple of weeks later.
My Lords, the strength of feeling that the noble Lord showed today on this issue was not shown in the Division Lobby on Report when he led 40 of his own side into the Division Lobby in the vote that, I acknowledge, Her Majesty's Government lost. There was a lot of feeling on this side, as well as in other parts of the House, against the Government's position.
Now, what do we do? We look and see what the strength of feeling is. We know that there were 218 names on an Early Day Motion in another place, well before the matter came to this House. We had the result of the vote in this place on Report. There clearly was a great deal of feeling in both Houses of Parliament that, on this issue, the line that the Government had taken was not the right one. So are Governments to be entirely stubborn, or should Governments do what they can to try to make what we have always argued is a good principle—I do not think that the noble Lord argues against the principle—practical? That is what we have attempted to do.
I shall try to deal with some of the noble Lord’s points. He makes a legitimate point when he says that transparency about residence status and the lack of statutory definition makes it difficult to determine status. He is right; it does. However, there will be material to assist. First, the Electoral Commission will produce guidance, which is significant. Secondly, there is existing HMRC guidance, too. Thirdly, someone giving a donation of more than £7,500 who is unsure of their status can seek professional advice, because giving a false declaration is an offence only if it is given recklessly or intentionally. Someone who takes steps to satisfy themselves of their status will not have committed an offence.
The noble Lord quite understandably also refers to the ECHR. Of course we have considered whether the ECHR is possibly infringed. We think that the statement in relation to these provisions being ECHR-compliant stands. This amendment could be said to restrict rights to freedom of expression—which I think is the point that the noble Lord was getting at—or association, but we believe that the difference is that it does so proportionally. Donations of up to £7,500—not £500—can still be paid by non-domiciles. That is a clear protection, as I said in my opening remarks, and is very relevant to the ECHR argument. In short, we are satisfied that these amendments are compatible with the EU and ECHR.
The noble Lord also made a point about party treasurers. Those of us who have been party treasurers at a very low level in our parties can only have some sympathy for the position in which they sometimes find themselves under the present law. The amendments make it clear that parties will in most cases be able to rely on declarations from the donor in order to satisfy the requirement to take reasonable steps to verify that a donation is permissible. In practice, we expect that this would need to go beyond that only when they have reasonable grounds to think that a declaration is incorrect. Even in that scenario we do not expect party treasurers to have to understand and apply concepts of residence and domicile. We expect, for example, that they could ask the donor for a letter from his or her accountant asserting that the donor is a UK resident and domiciled. We have drafted amendments to ensure that the burden on political volunteers is minimised. I hope the noble Lord thinks that, in principle, that is the right thing to do—to make it easier for volunteers rather than more difficult.
The noble Lord made a point about previous and current tax years. We have changed the requirements so that the amendments propose requiring a donor to be resident or ordinarily resident and domiciled—ROD, in short—in the year of giving the donation or the loan. The version of the amendments debated in the other place referred to the previous tax year. Why did we make that change? We made it in the light of discussions with Her Majesty’s Revenue and Customs and Her Majesty’s Treasury. Fundamentally, we believe that it would be bizarre and an unintended effect if an individual who was not ROD but had been last year was a permissible donor whereas someone who was ordinarily resident and domiciled in the current year but had not been so in the year before was not a permissible donor. So we recognise that for some people it will not be clear in-year what their tax status is. If a donor or recipient is in doubt about the permissibility of their donation, they should not give it without independent advice to satisfy themselves of their position.
He also makes a fair point about the complexity of the tax system. It is certainly an argument that we have employed, and it still exists: the tax system is still complicated in this field. Of course we are not claiming that it is straightforward but—and I go back to something I said a few minutes ago—what we have proposed is a workable and effective means of addressing a clear decision from Parliament, not least from this House on Report. When these matters went back to the other place and were debated through the Government’s then amendments, there was of course no Division called at the end of that debate this time last week.
Finally, on why the anomaly is not a problem now, we took and stand by the view that it is better to tackle these issues in the round. The House decided that this issue ought to be addressed now, not at some time in the future, and we have sought to give effect to that decision. This does not prevent further consideration of the wider issue in due course; indeed, I would be very surprised if there were none.
Parliamentary Standards Bill
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.
Consolidated Fund (Appropriation) (No. 2) Bill
Second Reading and Remaining Stages
Bill read a second time. Committee negatived. Standing Order 47 having been dispensed with, the Bill was read a third time and passed.