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House of Lords Hansard
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14 January 2015
Volume 758

Committee (1st Day)

Relevant document: 11th Report from the Delegated Powers Committee

Clause 1: How an MP becomes subject to a recall petition process

Amendment 1

Moved by

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1: Clause 1, page 1, line 4, leave out “or second” and insert “, second or third”

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My Lords, I speak to Amendments 1, 11, 14, 17 to 19, 21 to 24, 34, 52 and 53. A number of amendments were made to the Bill on Report in the other place, notably introducing a further condition for recall. This third condition triggers recall where there is a conviction for the offence of providing false or misleading information in relation to parliamentary expenses claims under Section 10 of the Parliamentary Standards Act 2009, regardless of sentence imposed, so that a fine would trigger recall, as would a sentence of imprisonment.

This new condition was inserted by the House of Commons expressly to reflect the particular relevance to the public’s trust in an MP if they deliberately misuse the expenses system. The vote was overwhelmingly in favour of the amendment tabled by the Opposition Front Bench, with 281 in favour and two against. The amendment that ensures that historic offences are captured would apply also to convictions under the third recall condition.

In passing these amendments, the House of Commons concentrated on passing the most essential of the provisions and did not vote on the necessary consequential and technical amendments that would enable these new measures to work in practice. For this reason, the Government have tabled the necessary consequential and technical amendments to enable the Bill to work as the House of Commons intended. We have consulted with the Opposition to ensure that we are giving effect to precisely what they intended and I thank the noble Baroness, Lady Hayter, for putting her name to these amendments. It is for these reasons that I beg to move.

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My Lords, I wonder if the Minister could help. I know that these are consequential amendments relating to the third trigger, which was added during the course of the Bill. It seems to me, though I am not a lawyer, to present a considerable anomaly, which is that a particular offence in relation to parliamentary expenses where there is a guilty verdict and a fine in a court results in a by-election, while any other offence—which lots of people might consider to be more serious—results only in a fine. I do not know about the law, but that might include, perhaps, sexual harassment, defrauding the public purse in some respect other than parliamentary expenses, drink-driving or something of that sort. Surely, in the operation of the law—I am looking desperately around, hoping that a lawyer might help me—it is bizarre if there is a more severe penalty for a lesser offence. That seems to be the case with this group of admittedly consequential amendments.

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My Lords, I want to say a few words on this issue and this amendment seems an appropriate point as it deals with the third trigger. What worries me is the accretion of triggers—the first, the second and the third—because I suspect that if we pass this Bill, which does not seem to have many friends anywhere, we will end up with more triggers in subsequent legislation. We are starting on a very dangerous course.

As my noble friend Lord Hughes of Woodside said at Second Reading, this is the thin end of a wedge, because the green light will be given to people such as Zac Goldsmith to come up with his amendments again in the next Parliament. He is a multimillionaire who treats being an MP as a hobby rather than as an occupation, a calling or as something that is really worth while. I look at some noble Lords opposite, for whom I have the greatest respect, who carried out their jobs as Members of Parliament with great diligence. I disagreed with them on policy and on everything else in relation to what they did, but they looked after their constituents, took up issues and worked hard. Now we are getting dilettante MPs coming in and we end up with this kind of legislation.

Members of Parliament should have the power and the authority to look after their constituents without fear or favour or threat, and should know that they can stand up to vested interests without always looking over their shoulder. Once we pass this Bill, and particularly if we take further steps, we will have MPs looking over their shoulder week in and week out. I could give dozens of relevant examples, which my noble friend, a former Speaker, will know well. For example, Tam Dalyell was so persistent on the “Belgrano”, Aldabra and even, I am afraid to say, devolution. However, he might have been intimidated if he had had to look over his shoulder, anticipating challenges, because of this kind of provision.

Other examples include Chris Mullin, who raised the issue of the Birmingham Six, and the Liverpool MPs who looked after the interests of the relatives of people killed at Hillsborough, and kept on and on about that in spite of vested interests. Tom Watson is raising the issue of historic child abuse and feels in a strong enough position to do that. However, if MPs are always looking over their shoulder, they will have less strength to do that.

I have the greatest respect for the noble Lord, Lord Wallace of Saltaire. I have known him a long time. Indeed, I knew him when he was simply William Wallace. I used to listen to him very keenly because of his knowledge of international affairs and had great respect for him. He said at Second Reading:

“We have put forward the Bill believing not that it is the golden trigger”—

actually, I think that he meant the silver bullet, but never mind—

“that will somehow revive public trust alone, but that it is one element among many that we need to begin to re-establish public trust in democratic politics and in Westminster”.—[Official Report, 17/12/14; col. 221.]

I do not see many leaders in newspapers such as the Daily Mail saying, “Well done, Westminster. This is re-establishing trust by bringing in a Bill to recall Members of Parliament”. I just do not see that it will do that. I think that trust in Westminster would be restored if we ensured that the legislation we passed was sensible, workable and intelligent. This legislation is none of those. It is not sensible or workable—and it is certainly not intelligent.

I was not able to be here at Second Reading, but I read the debate in great detail. Many Members of this House rightly said that they were in favour of the principle of recall but none of them said that they agreed with this Bill. It is a terrible Bill. It was brought in right at the end of the Session and rushed through the House of Commons. It was not given proper consideration in the House of Commons, and even I have had my arm twisted to agree to all its provisions and not create too many problems.

Yet there are things that the Bill could deal with. When Members of Parliament cross the Floor they are not obliged to be recalled. That is not included in the Bill. You would think it would be, would you not? I do not like giving credit to Mr Carswell and Mr Reckless, but I will, because at least they triggered by-elections by resigning. There is no obligation to do that. I mean no disrespect to some noble Lords who are here now, but I would have thought that crossing the Floor, being elected as a Conservative and moving over to become a Labour Member—in fact, there are two of them staring at me; I feel their eyes piercing—might present an argument for taking this matter forward.

There was once a Tory MP—I am trying to remember his name—who in his last term of office as a Member of Parliament went to live in California.

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Eldon Griffiths.

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Thank you. I knew that someone younger than me, with a keener brain, would remember his name. Eldon Griffiths went to live in California—yet he was supposed to be representing his constituents. That seems to me a better argument for a recall, if we are to have recalls. This has not been thought through.

As for the provisions about imprisonment, if, for example, Caroline Lucas, as a result of her recent protests against fracking, had been sent to prison, would that have been a sensible reason for a recall? She was making a legitimate protest. If she had been sent to prison, would we all really have thought that she should be made to go through this tortuous procedure? Or if some of us had been arrested when we were picketing in the miners’ strike, and had been sent to prison, would that have been a good reason? And what would have happened to the Red Clydesiders? This has not been thought through. It is a terrible piece of legislation.

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My Lords, I know that the noble Lord disapproves of constant interruptions of speeches in this House but, although I congratulate him on making the Second Reading speech that he would like to have made at that stage, I do not think that he has yet mentioned any of the amendments we are supposed to be discussing.

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I have been rumbled. But in fact I did start off—I have a note of it, unusually for me—by saying, “These amendments deal with the third trigger”. As I pointed out to the noble Lord earlier, he and his golden trigger gave me the opportunity to bring that up.

I am about to come to the end of my speech anyway, because if I had been able to speak at Second Reading I would have finished by saying that this is yet another piece—and probably the worst piece of all—of constitutional Cleggery. This Parliament has been bedevilled by constitutional Cleggery. Fortunately, the people of this country got rid of the alternative vote by a large majority—and, fortunately, this House and this Parliament got rid of some of Mr Clegg’s other measures. Unfortunately, I fear that we will not be able to get rid of this Bill—but the country, and Parliament, will be much poorer places because we are going to pass it into law.

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My Lords, not for the first time, I find myself in great sympathy with my noble friend Lord Foulkes of Cumnock. I must apologise for the fact that I too was unable to take part in the Second Reading debate, because I was in church, with Mr Clegg, at the funeral service for Jeremy Thorpe. I felt that that was a high priority, because Jeremy Thorpe was a man who had a tragic life in so many ways, but he was a very considerable parliamentarian, and I was proud to call him a friend.

I think that the Bill is misconceived, and that the amendments that we are technically at least discussing would not make it any better. Every MP is recalled at the next general election. Every MP has the duty, if he or she wishes to continue to represent the constituency, to place himself or herself, and his or her record, before the constituents. Of course, if an MP is guilty of some heinous offence, there are already provisions for expulsion. Indeed, there are already remedies within another place for a Member to be expelled. That is entirely right and proper but I am unhappy about this legislative exercise.

I am very proud indeed to count as one of my greatest parliamentary friends someone with whom I keep in regular touch, Tam Dalyell, whose wonderful autobiography, The Importance of Being Awkward, describes a career that frequently put him at odds with many people, including those in his own party. That led, on occasions, to his being ordered from the Chamber by Mr Speaker. He always went with punctilious politeness and a mischievous grin on his face. He was, however, in many ways the exemplary MP—a man who was always prepared to speak according to his own mind and opinion, who fought a long battle against devolution, in which he had my complete support, and who reflected honour upon the House of Commons as an institution. It is wrong to take measures that could in any way inhibit the freedom of a Tam Dalyell.

I think of a personal example. In my former constituency, there was a proposal to build an airport. I was strongly opposed to that, as were Members of all parties—including Labour and Liberal Democrat—in surrounding constituencies; we campaigned together. One of the MEPs was strongly in favour of it. If the MEPs were subject to recall, it would have been the easiest possible thing to get a petition signed by the requisite number. However, MPs, and MEPs too, have a duty to put country, constituency or area before party. If that MEP believed sincerely, as I know he did, that it was in the interests of the country to build this airport—I thought he was completely wrong—he nevertheless was entirely free to say what he thought and it would have been wrong for him to be subject to any recall.

We are on a slippery slope with the Bill. I do not intend to delay the House on subsequent amendments but just want to put my views on record. I do not intend to call votes because the House of Commons—in its wisdom or, on this occasion, lack of it—has decided that this measure should come to us. Where Divisions took place the majorities were fairly large. However, this is a slippery slope and it is deeply unfortunate that it is happening. None of the amendments that the Government are tabling makes it any better.

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Would my noble friend indicate to the Committee where in the Bill, let alone in the amendments before the Committee, the circumstances to which he refers would apply? Where could it possibly be relevant? There is no possibility in which this Bill could in any way call that MEP to account with a recall petition. It just is not there. I hope that my noble friend, who is assiduous in reading Bills of this sort, will look very carefully at it because he is chasing a will-o’-the-wisp.

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I do not think so, with great respect to my noble friend, because I talked about the Bill—as did my noble friend opposite—as a slippery slope; and it is. While there may not be anything in this particular Bill, it creates a precedent that is inhibiting to the freedom of a Member of Parliament. An MP, unless he commits an offence that is so heinous that he is out—which happens from time to time, sadly, as we know from recent years—should be answerable to one group, and one group alone, which is those in the whole of his constituency voting at the next general election. That is a fundamental principle of our British constitution and that principle is partially eroded by this Bill. Although I do not intend to play a great part in this, I deeply regret it and it is an issue that a future Parliament should look at again.

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My Lords, I rise to say a word, perhaps surprisingly, about the amendment, and about the third trigger. I was here at Second Reading, but I did not intervene because I could not stay all day. Anybody who has read that Second Reading debate in Hansard will realise how serious the consequences of this Bill could be. I agree with the noble Lord, Lord Cormack, and my noble friends that this is a dangerous Bill: dangerous to representative democracy—that is the basis of the democracy in this country. That point was overlooked throughout the debate in another place.

We have a responsibility to raise some of these issues, though I share the pessimism of my noble friend over our actually making any real difference here. It may be too late in the day. Why will it be too late? People at the other end will not want to revisit the issue. Why will they not want to? Yet again, it will be used as an opportunity to whip MPs—not in our whipping sense—to criticise them and to imply that they are all badly motivated, on the make and have something to hide.

Quite honestly, that is why we have the third trigger. The first trigger was not enough, nor was the second. We must find another way of attacking the implication that MPs are doing something wrong that needs rooting out. This is extremely dangerous for democracy as a whole, and it has not been taken on board as far this is concerned. The third trigger, as with the other two, is also dangerous, in the sense that it gives the public the impression that all that they have to do is get a little petition and that they will make those decisions. I think that this is an illusion that will not lead to greater confidence in our parliamentary system, but quite the reverse.

Finally, I agree that this is a slippery slope. People are saying that this will not be about issues; the noble Lord, Lord Tyler, has just suggested that. It might not be about issues today, but it will be about issues tomorrow.

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I rise, noble Lords, as a friend of the Bill. I am sorry that I was not able to speak in the Second Reading, but I had a family matter to attend to.

Not for the first time, I do not find myself in agreement with the noble Lord, Lord Foulkes. It was obviously diverting to hear a list of Members of Parliament whom he admired. I felt, uncharacteristically, that he was ill informed about Zac Goldsmith. Even if I do not agree with him on all matters and even if the noble Lord is correct in observing irrelevantly that he is a multi-millionaire, he is actually an assiduous constituency Member of Parliament.

Might we have a self-denying ordinance in which we stop debating something that is not in the Bill? When we have presented to this House the bottom-of-the-slope Bill or the thick-end-of-the-wedge Act, we can have a discussion about the matters that concern those who have spoken in this debate and that would affect my noble friend’s concerns, but they are not in the Bill. There are a number of individual items, where we have to make a judgment as to whether it is sensible to give the public a chance to remove Members of Parliament if they feel that what has happened is significantly serious and that they should be allowed to do this.

The noble Lord, Lord Foulkes, said at the beginning that he was concerned that people would add triggers to the Bill. He went on to suggest a number of triggers that he would like to add to it. This seemed to me to be completely incoherent, although by the end I was reaching for a trigger myself.

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Perhaps I did not explain myself properly. I was not saying that I would like to add triggers, because I do not want any of them included. I agree with the noble Lord, Lord Cormack, that the general election provides the opportunity for recall. What I did say was that if you have the three triggers that are in the Bill now, why not have the others? They are just as logical; indeed, perhaps more sensible and logical. I am not saying that they should be in. However, there is a better argument for them than for the ones that we have in the Bill at the moment.

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It would be up to the noble Lord to propose amendments on those, but we are discussing this amendment on the third trigger. The noble Lord, Lord Grocott, made an important point when he asked what is special about these kinds of offences that would not apply to other offences. The answer is that they are offences against the parliamentary process. They are ones that go to the heart of people’s confidence in the system here and therefore they are distinct and different. They ought to carry with them a greater threat to Members of Parliament. None of the proposals in this Bill would create a by-election; they merely introduce for the public an extra power which they do not have at the moment. I cannot see that that would be a threat to democracy. When someone proposes something where the proposal itself is the threat to democracy rather than hypothetically a threat to democracy, or a threat to democracy because someone else had proposed something earlier, I will be against that. When someone proposes the thick end of the wedge, I will be against it. For the moment, however, I cannot see the objection to giving the public the ability to use this trigger if they feel that the issue is something that is important to them, and I can see many circumstances in which they would use it. This is therefore a valuable addition to the Bill and I support the amendment.

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My Lords, this is a Bill which in my view we cannot change. The House of Commons must be sovereign in determining its own rules. However, the fact that we cannot change it is not a reason why we should not, and indeed I think that we are under an obligation to express any reservations we have. That is what we are here for. We should express sincerely and frankly what we feel about the legislation that comes before us.

I agree entirely with the comments of the noble Lord, Lord Cormack, and with some but obviously not all of the comments of my noble friend Lord Foulkes. What I am most concerned about in the Bill is something which may strike noble Lords as a rather theoretical danger; that is, that people might be sent to prison for reasons of conscience and principle—for acting in a way which, from their point of view, is part of their politics and, as a result, part of their responsibility towards their constituents. Although that may seem rather theoretical, it has actually happened several times over the past 150 years.

I am thinking of Charles Stewart Parnell and John Redmond. There were never finer parliamentarians in either House than those two men. They were both sent to prison under the Irish Coercion Acts that we had for governing Ireland at the time for matters of purely political action on their part. Pacifists in the First World War were sent to prison under provisions in the Defence of the Realm Acts which made it a criminal offence to make comments that were inimical to the interests of recruitment. I think that I am quoting the law accurately. Arthur Jenkins and others whose names I am afraid I cannot remember—I remember Arthur Jenkins because of course he was the father of a very distinguished statesman who many of us knew personally —were sent to jail in the 1920s for organising an illegal strike. I cannot think of any recent examples, but someone may well be about to challenge me by asking when it last happened. It is certainly the case that it has not happened recently.

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I think that my noble friend will find that a Labour MP from Liverpool was actually sentenced for non-payment of the poll tax as a political protest.

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The noble Lord, Lord Maginnis, served time in prison in Belfast for a political rather than a criminal act.

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Is it the noble Lord’s judgment in those cases that recall would have been successful?

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I do not think that recall would have been successful in the case of the Irish patriots I have referred to, but I suspect that it would have been successful in the emotional circumstances of the First World War, and possibly in the 1920s. However, I do not think that that is relevant at all. The important question is whether we are going to have a Parliament consisting of individuals who, when it comes to the crunch, are brave and willing enough, when it is necessary to do so, to stand up for what they really believe in. In those circumstances is it right to deprive them of their seat in Parliament as if they were common criminals? If they are common criminals then, as has been said, there are provisions for a majority of MPs to exclude them, and the House of Commons is perfectly willing to do that.

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In one sense they are common criminals, and that would be the point of sending them to jail. The noble Lord is suggesting that their electorates are not allowed to exercise a judgment over whether, when a person has broken the law, their crime ought simply to be overlooked. All this Bill will do is give the electorate the opportunity to make that judgment.

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I am saying two things, and I hope that the noble Lord will listen carefully. First, I do not believe that it can be in the interests of this country that people are thrown out of Parliament when they maintain what may be a very consistent position of principle which puts them at odds with the law at that particular moment. There have been occasions when we have passed laws in this country which have nothing to do with the ordinary notion of criminality, but have been passed under emotional circumstances, such as the ones I have already described. We do not want a Parliament of ciphers; we want a Parliament of individualists. We want a Parliament of people who are responsible directly to their electorate.

That brings me to the second point. I disagree profoundly with my noble friend Lord Foulkes. Here I am defending my own conduct, but I have always been totally consistent about this. There are two reasons why it would be a great mistake to force a by-election on someone who had changed parties. The first is that one can change parties, as I did, not so much because I changed my political views, but because the party that I joined back in the 1970s very substantially changed its political views. I could not possibly have imagined at the last election I fought as a Conservative that the Conservative Party would win, elect David Cameron as its leader and withdraw from the European People’s Party. I had been in the shadow Cabinet when we decided and gave a written commitment to join the European People’s Party. I felt very strongly about that. I admit, frankly, as everybody knows, that I was at odds with the Tory Party and had been for some time on a number of other issues, but that was the trigger of my leaving.

I believe profoundly—this is the second point of principle where I disagree with my noble friend Lord Foulkes—that it would be quite wrong to turn Members of Parliament into mere delegates of political parties. If they want to do that, they should introduce proportional representation and a list system for electing the House of Commons. We do not have that, thank God. We have individuals who are directly responsible for their conduct. At the end of a Parliament, if they wish to renew their mandate, they come to give an account of their actions and are judged accordingly on their actions as a whole. We do not want to have a situation—

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On this issue I entirely agree with the noble Lord. As one who was instrumental in persuading the late Reg Prentice, later Lord Prentice, to cross the Floor, I believe that what he says is entirely justifiable.

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All of us are tempted to welcome converts and are delighted when people join the party that we happen, for the time being, to be a member of. We then dismiss as traitors, renegades or worse the people whose judgment goes in the other direction and leave the party we currently happen to be a member of and join another party. I think it is probably human nature to use different vocabulary to describe what is essentially an entirely analogous process.

I was quite shocked because I did not know that my noble friend Lord Foulkes was a secret believer in proportional representation.

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I will give way to him in one second, of course. I think he ought to come out and declare his true allegiance because the only logical consequence of the position he has been taking this afternoon is that we ought to have proportional representation in this country.

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I cannot think of anything worse than to be called a secret believer in proportional representation. I disavow any support for that. I am a long-term supporter of first past the post. I think that my noble friend has actually made a very good argument. If we were discussing the Bill and the provision that I said might be considered as one of the options, we could decide whether or not it should be in. But I do not want any of these provisions. I have not made it clear enough. I do not want a Recall of MPs Bill. All I was saying is that, if we are including these provisions, there are others that might have been considered for inclusion, but were not. That is totally illogical. My noble friend has made a very good argument for not including that in a Bill, if it had been suggested.

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I was not going to speak in this debate, but I think it is important that some of us who have not got a parliamentary background contribute. I congratulate the noble Lord, Lord Finkelstein, on making his contribution, even though I do not reach the same conclusion as he does.

I am raising this as a former member of the Committee on Standards in Public Life, rather than as a parliamentarian. I know that this remark is tinged with Second Reading—but this is the worst form of populism. One has to ask the question, will it improve standards in public life? My view is that it will not. Will it improve the standing of Members of Parliament? My view is that it will not. Could it be the thin end of the wedge? That is open to debate. It is very important that we do not go down this sentimental road of talking about all these brave MPs who have done this, that and the other. We need to look at it from the point of view of the future. Are there other ways of improving the standard of Members of Parliament? Yes, by enhancing parliamentary democracy. I am concerned that an agreement has been reached by the Front Benches to support this Bill but that it does not necessarily enhance parliamentary democracy. I have to say that it is in the interests of Front-Benchers who want to be in government, or are in government, to improve and enhance the power of the Executive, if necessary at the expense of parliamentary democracy. I do worry about that.

There are issues such as the whole area of expenses, which people may think have been improved, but I do not. There is an argument for a very large salary for MPs, with no expenses and no second home allowances or anything else, and having a clean-cut, sensible and transparent system of payment, which is aligned to some recognised body and which could be determined by an independent body. You could then get rid of IPSA overnight. I have a number of other suggestions but will not take up the time of the Committee, and apologise to the noble Lord, because I realise this is not, strictly speaking, relevant to this particular amendment. However, the sooner this piece of popcorn disappears off the legislative agenda the better.

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I have often been careful in the past to remind Members in the other place that they should not use amendments for Second Reading purposes, but perhaps I can stray, because the expenses situation has been mentioned by my noble friend and others and I find it interesting with regard to the recall of MPs. When I came into this House, some Members who had served in the other place were quick to condemn those who were, for want of a better word, exposed in the expenses scandal and said that it was a terrible thing. It was a terrible thing because five years of expenses were exposed at one time, because of freedom of information and the way it was handled. I have often thought this to myself and now say it out loud: if only some of those ex-Members who are now Members of the House of Lords and who were quick to criticise had been prepared to explicitly produce their bank statements, we might have been able to see what they claimed in parliamentary expenses.

However, that is not the reason I am on my feet. Forgive me if I do not get the first name right, but I remember Harold McCusker, who went to jail on a principle regarding the Troubles in Northern Ireland. He had a different point of view from myself and the noble Lord, Lord Maginnis, but I got on well with Harold McCusker. After he came out of jail, he said to me that it is a very humbling experience when the door is slammed on a prison cell, and you are in there wondering whether you have done the right thing. I often read the lovely articles that the noble Lord, Lord Finkelstein, writes when he speaks about recall and I ask him to think about the following point that I would like to make about expenses.

The media have their favourites—let us not kid ourselves. I go back to the expenses. There was a Member of Parliament—and good luck to him; I do not like using names, and in fact, I think there is a rule that we should not criticise Members of Parliament in the other place—who got into serious difficulty. Members of the media publicly said, and they were entitled to do so, “Well, you see, he was gay. He did not want his mother to find out about it”—I am not going to hammer this home—“because he was a Catholic”. Well, my mother brought up five children, and she was the most devout Catholic I ever met and am ever likely to meet. I tell you this: she would have known if one of her sons was gay. Then I look at the sum concerned, quite a fantastic sum of money. The power of forgiveness is important, and I do not deny anybody the right to defend someone who has erred. I think it was Robert Burns who said:

“Then gently scan your brother man,

Still gentler sister woman”,

and if you find that they have erred:

“To step aside is human”.

Here is the point I make to the noble Lord, Lord Finkelstein, and maybe he can think about it with some of his friends in the media. There was a man in the other place who went to prison. Those of us who were dealing with that individual before he went to prison knew that he should have been cared for with regards to alcoholism. He should have been in the Priory or some other institution. I speak as a teetotaller. At that time I spoke to parliamentary Whips about his difficulties. Anyone who knows about alcoholism knows that one of the difficulties with an alcoholic is you sometimes cannot tell them that they are their own worst enemy. For a small amount, he went to jail. Not one individual in the media stood up and said, “That man needs help rather than prison”.

Here is where I go when we come to recall. You get a recall, and let us say that you get people in a marginal seat. There could be a single issue in that constituency at that time. It could be a threatened hospital closure or some other big issue. Then mob rule can prevail.

The other place is entitled to do what it wants. Our great strength is to draw on our experience and the life that we have had and to say, “Watch, and be very careful what you are doing”. The aftermath of the expenses fiasco—the debacle, the scandal—has meant that it introduced IPSA. No one can even purchase as much as a postage stamp or a half a pint of milk but it has got to be made public. There is talk and complaint about that. The rigid system that exists there has come out of the difficulties of the past. We have a serious problem. Any time that I have been involved in legislation where both sides of the House and the third party are in agreement, then within a short space of time we rue the day that we made that decision.

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My Lords, this has turned out to be a rather more interesting discussion on the amendments than I had anticipated. I do not want to repeat my Second Reading speech, but I remind the House that particularly this third arm, if you like, was added by our party with great support in the other place. It was not added because some of us wanted to be Ministers. In fact, when some of us supported it, we were not even in this House. It was because those outside Parliament were deeply shocked when they saw MPs doing things which, if they were in any other profession, would have lost them their jobs. They saw these people still turning up at their place of work the day after they had done things that any other employer would have dismissed them for.

I have absolutely no problem in standing here and thanking the Minister for tabling these amendments, which put in the final consequentials to the third limb of the Bill and implement what my party and others wanted adding. It was in our manifesto and had been agreed on, having been through our party procedures.

There is a difference between recall and automatic expulsion. As was said at Second Reading, for imprisonment of over a year the penalty is automatic expulsion; for imprisonment of under a year, there is the chance for people to fight a by-election. As I think we felt then, many MPs who might have been imprisoned for a political act will indeed survive the recall petition or, even if they do not, will win the by-election without any problems at all.

I think that this is a Bill that none of us, once it is an Act, ever wants to see implemented, because we hope that the circumstances will never arise for it to happen. We hope that the things that happened in the past are in the past and that the Bill may have to sit on the statute book, with no one ever having to reach for it.

I thank the Minister for introducing and explaining the background to the amendments. Other such technical amendments will come up in different groups, to which we have signified our support by adding our names to all but one of them—that amendment will be dealt with by my noble friend Lord Kennedy in its place. As for the others, they implement changes that were endorsed by big majorities in the other House. We will not speak to them as each of them comes up, but I hope that our signature on them shows our support for the tidying-up that will happen.

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My Lords, we have undoubtedly had a very wide-ranging and interesting debate, and I think that we have all conceded that, in this first group of amendments, we have gone to the heart of some of the issues that were discussed at Second Reading. It is important to have listened in particular to the experiences of those who have been Members of the other place. After Second Reading I spoke to a noble Lord who was unhappy about the Bill and asked him how he would have felt if he had been in the other place and had heard that we here had gone beyond observing and had objected to how the other place should discipline itself. Not having been in the other place, I therefore come to these matters with some hesitation, but I am also conscious of noble Lords who have had the privilege of being in the other place and of the experience that they bring with it.

I was struck particularly by what the noble Baroness, Lady Taylor of Bolton, said about representative democracy. I said my opening speech at Second Reading that we should seek and ensure that representative democracy is not thwarted by the intentions of this Bill—I have not looked it up, but I know that I mentioned it, because I think that it is something we hold extremely dear. It is very important and it is why the triggers proposed are specifically to do with what has been considered in the other place to be serious wrongdoing. I understand the arguments about mission creep, but this is the Bill that is before us, which is a reflection that things have happened that we hope will never happen again.

I join the noble Baroness, Lady Hayter, in hoping that the Bill will be on the statute book and that there is never a trigger for it to be used—but this was in the manifestos of the Conservative Party, the Labour Party and the Liberal Democrat Party. It is a reflection that things had gone wrong—yes, involving a few people—and were a part of what Members of the other place are now having to live with. The wrongdoing by a few people has affected all too often the trust in one of the most important parts, if not the most important part, of our constitution—a place where the representation of the people and democracy lie.

I understand a lot of what has been said by noble Lords. I was particularly struck—I think my noble friend Lord Finkelstein mentioned this—by what the noble Lord, Lord Grocott, said about triggering a by-election. What this does—I know the noble Lord knows this—is trigger a recall process. It does not trigger a by-election. If, under the threshold decided, they did not wish to sign up, there would not be a by-election. But in a sense it is an opportunity—and I am intrigued about this—for representative democracy to speak again. Of course, there is nothing to stop the Member of Parliament choosing to stand in the by-election. I drew somewhat different conclusions on trying to keep the balance of representative democracy, but I think that they are terribly important.

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Just on that narrow point that there is nothing to stop the Member of Parliament standing in the by-election, is it conceivable that a party leader would sign up that person to be a candidate for the party in those circumstances? If not, that would prevent them standing in a by-election.

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My Lords, I did not say at all whether they would stand on their former party ticket, but there is nothing to stop the Member of Parliament standing in their constituency. That is the whole point of the commentary.

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On that particular point, perhaps I could ask the Minister about the case—I think it was the Littleborough by-election—where the Labour Member of Parliament was disqualified and prevented from standing again by a court judgment. Have the Government got anything to say about that in the context of this Bill and these amendments?

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My understanding is that the gentleman would no longer be disqualified.

I will conclude, because in effect these amendments are technical. They are about implementing the will of the other place and ensuring that all convictions for providing false or misleading information in relation to parliamentary expenses claims under Section 10 of the Parliamentary Standards Act—

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I know that the Minister is being patient and reading his resounding conclusion. He mentioned decisions in the other place, and quite rightly and properly treating them with enormous respect. He even gave us the figures—I think he said that the vote on this amendment was 281 to 2. The figures themselves—I put it to the noble Lord gently—tell a bigger story than they apparently present. In my maths, something like 370 Members did not take part in the vote at all. I think we all know part of the reason why that took place in the way that it did. It is because many Members feel very intimidated indeed about making a stance on issues relating to parliamentary expenses. One can understand it with an election just around the corner. Please can we make it almost a rule in Committee that large majorities with even larger numbers of absentees do not necessarily mean the wholehearted support and commitment of the House of Commons?

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Well, the obvious rejoinder—I am sure that the noble Lord will take this in the spirit I intend—is that if one looks at the voting numbers and abstentions in a House that is considered by many to be rather too large, one might get an interesting result. So I am not sure that I am fully persuaded, although of course I understand what the noble Lord is seeking to do.

I should conclude, because a lot of the points made by noble Lords have been of a Second Reading variety. My task before your Lordships is to move amendments that we believe are necessary to effect what the House of Commons has sent us. They are, as I say, technical and consequential, but they have given us a good opportunity to open the batting. I know that there will be other amendments where some of the details of some of the points noble Lords have made in their opening remarks can be discussed fully.

Amendment 1 agreed.

Amendment 2

Moved by

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2: Clause 1, page 1, line 11, leave out subsections (3) to (6)

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My Lords, with my Anglican ancestry and upbringing, I like to start with a text. Perhaps I should say in parenthesis that I am the black sheep of the family. The text is as follows. It says that,

“the provision that an MP should be subject to recall where he or she is suspended from the House for ten sittings days or more means that it will be MPs themselves, rather than voters, who under this scenario determine whether the recall process can be triggered. The constitutional purpose of recall is to increase MPs’ direct accountability to their electorates: it is questionable whether that purpose is achieved when the trigger is put in the hands of MPs rather than constituents”—

amen to that.

That is a quotation from the summary of the analysis by the Constitution Committee of this part of the Bill, and I think that it is exactly spot-on. I am especially pleased to have the support of my noble friend Lord Lexden, who is a member of the committee, for the group of probing amendments that we are putting before your Lordships’ House this afternoon. Our overall purpose is to respond in detail to that challenge from the Constitution Committee, which was echoed at Second Reading by the noble Lord, Lord Norton of Louth, who I am delighted to see here, because I know that he has been on public duty elsewhere.

In short, the Bill is defective in that it does not do what it says on the tin. It creates no greater independent accountability of MPs to voters. To emphasise that weakness and to respond to the widespread concern expressed at Second Reading, Amendment 2 simply calls into question the current priorities of the Bill. It is no more than a marker put down to enable the full package—probing Amendments 25 to 32—to be considered as a further and better route to the recall process.

I am extremely grateful to the noble Lord, Lord Alton, and my noble friend Lord Lexden for all the help that they have given me and for their support in putting together this package. Indeed, we have had most welcome encouragement and practical advice from all parts of the House and beyond, not least as result of the offer from the Minister in charge of the Bill, Mr Greg Clark, who said in the final stages of Committee consideration that,

“we are open to ways to improve the Bill and we stand by that commitment”.—[Official Report, Commons, 24/11/14; col. 681.]

He was as good as his word. We three signatories—and those who assisted us—are in no way committed to every detail of this package of proposals to solve the core problem identified by the Constitution Committee. We are committed to demonstrate the severity of that problem and to persuade Ministers that it cannot be allowed to survive in the Bill.

Before I set out the specific proposals contained in Amendments 25 to 32, I should reassure your Lordships about what they do not do. I suspect that few colleagues in this House would want to revive the very wide-ranging recall propositions that were so soundly defeated on a free vote in the Commons. As a former Member of Parliament, and one who has always cherished the right and duty of the elected representative to use his or her judgment, to exercise his or her conscience and to apply his or her principles with integrity in the interests of both the country at large and/or their constituents, the notion that that role could or should be subjected to vexatious, trivial or bullying challenge by wealthy special interest campaigns is anathema—as I know it is to many other Members who have contributed this afternoon. In short, the very fact that someone disagrees with an MP should never be grounds for recall. That echoes what many Members have said this afternoon.

I know all too well how invidious that would be. I was once elected with a minuscule majority. On that occasion, there were at least 20,274 voters who would happily have evicted me at the first opportunity. The recall process should not be able to be used to undermine the legitimacy of the electoral process and an election result.

We have sought to devise a process which retains a filtering stage but which puts that filter into independent territory. This avoids the MPs themselves being given, as a regular responsibility, the invidious task of determining whether a colleague—or a political opponent—is to be subjected to the next stage of the recall challenge. It therefore avoids the regrettable but inevitable politicisation of the Standards Committee that is, at present, implicit in this part of the Bill. This was so effectively demonstrated at Second Reading by the noble Lord, Lord Campbell-Savours, and others. I must say again that I am so sad that the noble Lord is not in his place today. I have had many conversations with him but he is simply not well enough to be with us. He may not agree precisely with my resolution of this problem but he was very effective at demonstrating its very serious nature.

The drafting of this package of amendments is based firmly on the provisions of the Representation of the People Act 1983, which make arrangements for election courts. My colleagues, David Heath and Julian Huppert, moved amendments in the other place which placed these misconduct petitions actually in an election court. As noble Lords who have read Hansard for those debates will know, there was considerable cross-party sympathy, encouragement and support for that approach.

However, having listened to their debate, and to our debate at Second Reading, my colleagues and I are convinced that it is important to set up a quite different, distinct process, recognising that the election court can actually convict people of election offences, directly remove MPs from their seats and disbar them from standing again. That is not appropriate here and I hope all Members of your Lordships’ House recognise that that is not what the recall process is about, not least because it means that the Member of Parliament can stand in any subsequent by-election if one is eventually triggered. Of course, that is not the case in an election court process if that goes to its full extent.

This process needs to be different. It is not about committing an election offence, nor necessarily any other criminal offence. After all, as a number of noble Lords have said, demands for a recall process sprung up largely because of the expenses scandal in 2009. That scandal was all about those who were plainly misconducting themselves, betraying the public’s trust or confidence in some way, but not actually breaking the law. Some of those who did break the law were, of course, sent to prison. In that context, the Bill is largely irrelevant. This package of amendments addresses the cases that fall into the gap between proper conduct on the one hand and criminal activity on the other.

Amendment 25 sets up the concept of a “parliamentary misconduct petition”. I should make it clear that this is not in itself a recall petition. However many signatures are collected on it, recall would not be automatic. A parliamentary misconduct petition is simply an application for a special hearing, operated by two judges, alleging misconduct. We call this a “parliamentary misconduct hearing”.

Amendment 26 specifies that, for the hearing to take place, 500 or more registered electors in the constituency must present a parliamentary misconduct petition. There is nothing magic in the figure of 500; certainly it could be revised in the light of contributions to today’s debate. Because this first stage does not in itself trigger a by-election, the number of signatures does not need to be unreasonably high. The amendment then also makes it clear that these petitions could not be brought in the final six months of a Parliament. This is partly since the process would take some time and partly to avoid a glut of fallacious petitions being brought forward by political opponents simply in the hope of creating a media storm.

Amendment 27 sets out who should sit on the hearing. Along with Amendments 28 and 29, it follows the precedent of the election court model. Two High Court judges and the capacity to hear witnesses, all recorded by a House of Commons shorthand writer, seems as good a model as any for an independent, non-parliamentary filter for this process. If an alternative composition emerges out of the debate in your Lordships’ House, or further discussions thereafter, we would of course be open to that.

Amendment 30 is where the real substance comes. It would govern how a parliamentary misconduct petition would be heard. Subsections (1) and (2) reflect the practice of the election court. Crucially, subsection (3) sets out the relevant evidence for the hearing to consider. It is quite a challenge to include enough in this list without including too much. This is just our first attempt. The first four issues are relatively simple: first, contraventions of the MPs’ code of conduct; secondly, paid advocacy—the words in paragraphs (b) and (c) come straight from the Parliamentary Standards Act 2009 and, obviously, have previously been signed off by parliamentary counsel; thirdly, abuse of the expenses scheme set out by IPSA under the instruction of the legislation passed by Parliament; and fourthly, failing to attend the House without reasonable excuse or justification for six months. In paragraph (e) we have applied this provision only to those who take the oath or affirmation of office so as not to trespass on the somewhat rockier ground about the position of those MPs from Northern Ireland who on principle do not take the oath.

The fifth area set out in subsection (4)(f) is deliberately there to catch what you might call the “you know it when you see it” misconduct. We know that you cannot capture in legislative terms every single eventuality, so there has to be something of this kind for the provisions to command public confidence. The difficulty is in making sure that it is neither so wide as to invite vexatious claims nor so narrow as to exclude legitimate complaints. We might call this the Goldilocks problem. We will assess in the light of debate whether our drafting here is just about right or needs to be left to cool somewhat.

Subsection (5) gives MPs the right to refute evidence given to the hearing. It may be that we should make provision here in a little more detail on how MPs would have access to the evidence against them in advance. Again, I am sure we will want to listen to views from all sides of the House.

Colleagues have expressed concern that a hearing of this kind would not have investigatory powers of its own. I am not certain that this needs to be a problem if its job is simply to consider evidence presented to it, but we have included specific reference to the possibility of evidence from the parliamentary commissioner. Indeed, if the Government were to agree that the existing Standards Committee provisions in the Bill and the trigger that is left to them are too problematic, it would be reasonable to commute the commissioner’s role into the additional or alternative trigger that we are now proposing.

Subsection (9) tries expressly to exclude from the ambit of misconduct political decisions made in ministerial office. We believe that the amendment does not invite petitions on political grounds—that is the belt—but subsection (8) is the set of braces. Subsection (7) is crucial. It asks the hearing to determine whether on the balance of probabilities misconduct has taken place. We believe that this tries to strike a balance between a provision involving mere prima facie evidence, which is what was debated in the other place, and setting up the full test for a criminal conviction, which has to be beyond reasonable doubt. That high test would be inappropriate because these hearings will not convict anyone of anything. They merely decide whether the evidence supports moving to the next stage.

Subsections (9) and (10) deal with what would happen if a case were before a misconduct hearing and the criminal courts. In short, the latter has of course to take precedence, as your Lordships would expect.

Finally, subsection (11) provides for the hearing to notify the Speaker if it has determined that on the balance of probabilities misconduct has taken place. Only then would a recall petition be opened, and the provisions about whether it succeeded or failed would be as in the rest of the Bill: that is, 10% of electors would have to sign—usually about 7,000 or 8,000—and they would have to do so not door-to-door but at four specific locations in the relevant constituency. None of that changes with our amendments, but the trigger to start the process would change. It would take whether a recall petition opens at all firmly out of the hands of MPs and place it in the stewardship of the special misconduct hearings that we propose. That, as a model, deals with the problem that I identified at the beginning of my remarks but, most importantly, it meets precisely the problem identified and so well expressed by your Lordships’ Constitution Committee.

We acknowledge that not every dot and comma may be perfect but we present this package as a genuine attempt to resolve a problem which everyone seems to agree exists. Our objective is to strengthen representative democracy, which has been referred to by many of your Lordships already this afternoon, not to weaken it. I hope that the Minister and the whole House will be able to respond positively and constructively to this package and that discussions can continue on how best to incorporate something of this kind in the Bill. I beg to move.

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My Lords, how are these amendments and the proposition that has just been put to the House by the noble Lord, Lord Tyler, reconcilable with Article 9 of the Bill of Rights 1689? I remind noble Lords of the wording of Article 9:

“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

The noble Lord, Lord Tyler, is a confident constitutional reformer but it is certainly brave to seek to overturn the Bill of Rights, if I understand correctly what he is doing. He also seeks to overturn the doctrine of exclusive cognisance which has always formed a central part of parliamentary privilege.

It seems to me that these are crucial points at issue as we consider these amendments. It is proposed that there will be a parliamentary misconduct petition that will be heard and considered by two judges on the rota for the hearing of parliamentary misconduct petitions. They are to handle themselves—as nearly as circumstances admit—as if they were a High Court. They will have powers to compel individuals to attend as witnesses. I am not sure whether those powers would extend to compelling Members of Parliament themselves to attend as witnesses; certainly it is proposed that the Parliamentary Commissioner for Standards should be subject to this requirement. It is proposed in Amendment 30 that a parliamentary misconduct petition,

“shall be tried in an open hearing without a jury”,

by these two judges on the rota. We are told further on in Amendment 30—the noble Lord emphasised these points when he ran through subsection (3) of the proposed new clause—that the parliamentary misconduct hearing,

“may consider evidence adduced by the petitioners that the respondent has … contravened the code of conduct for MPs operated by the House of Commons … failed to attend the House of Commons for a period of six months … otherwise abused or brought into disrepute the office of Member of Parliament”.

It seems to me that what we have going on here is a questioning in, if not a court, a place out of Parliament of proceedings in Parliament. Moreover, there is to be a low threshold of proof, as again the noble Lord, Lord Tyler, told us. The parliamentary misconduct hearing needs only to be satisfied as to the balance of probabilities before launching this exceedingly drastic process of recall. That process would of course take place, as would the hearings that he has proposed, without the ordinary safeguards that are provided for a defendant in court proceedings.

Along with the fact that we can certainly anticipate that there will be intense media attention and fascination, so that it will be a trial by media as well as a trial by these rather informal judges, it all suggests to me that some fairly rough justice may be in prospect. It is proposed at the end of subsection (12) of the proposed new clause that:

“Where the Speaker receives notification from a parliamentary misconduct hearing … he must follow the procedure set out in section 5 of this Act”.

The amendment actually proposes that this quasi-court should have powers to compel the Speaker of the House of Commons. All that seems very strange, very daring, very unorthodox, very risky and very improper. The Bill of Rights of 1689 is not like any other old statute that a subsequent Parliament is free to amend or repeal. It has a very special status in our constitution and, as I am sure noble Lords would agree, it is not something that we should lightly set aside.

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My Lords, I will speak very briefly and the Minister knows why. This morning I was able to explain to him that in a few minutes’ time there is to be a memorial service for a former Member of the House of Commons and I have been asked to give one of the tributes there. However, I would not want my silence to be mistaken for somehow resiling on my commitment to support this amendment, to which I have added my signature. The noble Lord, Lord Tyler, has made a very persuasive case in your Lordships’ House today. Although I will reserve my remarks to Report because I will not be able to be present to hear the Minister’s reply, I hope that between now and then he will have time to give great consideration to the powerful points that have been made. I read the Second Reading speech of the noble Lord, Lord Howarth, which was a very telling contribution to the debate, in which he argued that this is a bad Bill and is probably incapable of being made better. I rather agree with him on that. However, I do think that the noble Lord, Lord Tyler, is at least making a valiant effort to try to point us in the right direction. Much of the wording is of course taken from the Representation of the People Act.

I served on the Committee of Privileges in the other place and fought seven parliamentary elections, winning five of them, including a by-election. I therefore have a view about these things, which I will express at a later stage. I would never want this legislation to be used to undermine Members of the House of Commons. That should be a fundamental concern of your Lordships’ House. I served as a Member in Merseyside. I saw one of the most assiduous and respected Members, Frank Field, who continues in the House of Commons to this day, spend days, weeks and months fighting attempts to deselect him and remove him from the House of Commons. We should resist with all our might anything that can be used in a vexatious way to undermine MPs such as Frank Field. I hope that we will not therefore be frightened to send amendments back to another place so that they can give them due and proper consideration. I apologise for not being able to stay to hear the Minister’s reply.

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I begin with an apology to the noble Lord, Lord Tyler—two apologies, to get my mea culpas out of the way: first, because I missed some of his opening remarks on these amendments, and secondly, because he was good enough to send them to me in detail a week ago or so by e-mail, and ask for a response. I have not given him that response yet—he is about to get it now. I have to say that this is a seriously bad idea. A core reason is that it brings judges into a direct role with Parliament, which judges themselves will resist very strongly. They will be right to resist it, because once we blur that line between parliamentary democracy and the judiciary we get into very murky waters, where you end up drawing lines where you do not wish to draw them. I am sure—and if there are lawyers here at the moment, they will be the first to agree—that the thing judges hate more than anything else is trying to deal with political cases. So I strongly recommend that we do not go down this road. I will go into just a little more detail—I do not want to spend long on it. The principal point here is the all-important one: judges and Parliament should be kept separate as far as possible.

On the secondary matter of misbehaviour, the misconduct issue is incredibly hard to interpret when it takes place in the context of politics. Many examples have already been given of elected Members of Parliament who might get into a situation where they clash with the law because they are either supporting a demonstration or a strike, or opposing it, or taking a stand on any number of other issues, and who may themselves fall foul of the court. In the e-mail the noble Lord, Lord Tyler, sent me he said that he was trying to address some of the points I had raised at Second Reading. However, this does not deal with them—it aggravates matters.

We need, as far as possible, to follow the Burkean principle that parliamentary representation is decided by the electorate, and that by and large you overrule that only in the most extreme cases—murder or other very serious offences of that type. Otherwise, we get into a position where the court decides. That is why I have such a strong objection to what happened in the case of Phil Woolas MP, where the court decided that he could not stand again. It is so profoundly wrong. It goes right back to the battle that Bradlaugh had with Parliament. He refused to take the oath on the Bible, so the House of Commons refused to let him become a Member. He promptly went back to the electorate, who elected him again and so on. One might say that that makes the case because he won, but there are examples where it would not.

The noble Lord, Lord Tyler, did not think that there was much in the slippery slope argument. One case in which it would have been a very slippery slope would have been when an MP objected to the First World War. If we consider the attitude and atmosphere around the country in the context of the First World War, an MP taking a pacifist position might well have been in very serious difficulty. As I said in my Second Reading speech, it is a mistake just to look backwards: look forwards. If people were to campaign for one of the opposition groups in Syria—not ISIL—and if the legislation here on terrorism were so tough that they got arrested when they came back, but the group they had been supporting in Syria was not one of the extreme groups, where would we be?

There are umpteen examples where this goes wrong. We should stick with Burke on this. If the electorate decide that somebody is their MP, that should remain the case until the next general election, unless there are some very special circumstances. The more we pull back from that practice, as Burke himself pointed out, the more difficulties we get into. I know how much thought the noble Lord, Lord Tyler, puts into these things, but I will add that members of the judiciary dread cases where they are pulled into a political process—and they are right to dread them. It is all-important that we keep a clear distinction between the law and Parliament.

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My Lords, in one respect at least I feel a considerable empathy with the noble Lord, Lord Tyler, and that is in terms of marginal seats. When I was first elected, I had an electorate of 91,000. My opponent got 33,000 votes and I got 33,000 and a few more—so with a margin of about 300-odd and an electorate of 91,000, I can say that an acute awareness of the views of all my electors was never far from my mind. So I can understand that point. How easy it would have been for 10,000 or 15,000, perhaps, to have signed a petition very early on saying that they did not think I was much good as a Member of Parliament.

That is where my sense of understanding ends, because, unless I am reading this very badly, the series of amendments tabled by the noble Lord, Lord Tyler, give effect to the thin end of the wedge argument that we have raised repeatedly, and about which we have been told not to worry. The new clause proposed in Amendment 30, “Hearing of parliamentary misconduct petition”, states, in proposed new subsection (3):

“The parliamentary misconduct hearing may consider evidence adduced by the petitioners that the respondent has”—

in proposed new subsection (3)(f)—

“brought into disrepute the office of Member of Parliament”.

I cannot think of an easier basis on which to claim that a Member of Parliament is not acting as perhaps he should have been.

The noble Lord will no doubt take this as a direct attack on his party, but I am afraid that it is the best example that I can think of. I repeat that information may be adduced that a Member by his conduct has,

“brought into disrepute the office of Member of Parliament”.

I simply put it to him is as neutral a way as I possibly can the example of a Member of Parliament who, immediately prior to an election, appears on video saying, “We will abolish student fees”, and, within six months or so of being elected, becomes a key member of a Government who argue passionately for the trebling of student fees. I do not happen to think that that should be a reason for petitioning—

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Is that not covered by proposed new subsection (8) in Amendment 30, which excludes parliamentary conduct in a ministerial capacity? I wondered why that was there. The noble Lord has enlightened me.

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If that is the answer, it is, as I think the noble Lord, Lord Forsyth, knows perfectly well, not a very good one.

As I say, I simply put it to the noble Lord, Lord Tyler, that the proposed measure is so all-encompassing that the thin end of the wedge argument is encapsulated in these amendments. I do not want to see MPs thrown out in these circumstances. I do not want to get personal and refer to any particular MP who I would be very pleased to see spend more time with his family. However, we should not seek to remove Members of Parliament for certain actions that they have taken, for which they are answerable in any case as and when a general election comes about.

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My Lords, I hope noble Lords will forgive me if I have misunderstood the comments of the noble Lord, Lord Tyler, but I think that he said that there was an exception to the rule in the case of some Members of Parliament from Northern Ireland who make it a point not to come to Westminster to take the oath. However, we have been talking about expenses and it should be remembered that the Members concerned are not slow to claim their full expenses, including secretarial expenses, and in some cases—I hope noble Lords will forgive me if I am wrong—I believe that they claim their allowance for living in London. I am very fond of Northern Ireland but I remember that a Member of Parliament from Northern Ireland, Frank Maguire, who may have served alongside the noble Lord, Lord Tyler, was famous in connection with a vote of confidence. Frank promised his electorate that, if elected, he would attend Westminster only when abortion was being discussed and for nothing else. We could have a situation whereby some Members of Parliament would not even be looked at by the proposed judicial body whereas others would be by reason of their non-attendance. That is where I see flaws in the argument.

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My Lords, I shall never forget Frank Maguire on that March evening in 1979. He had been brought over to sustain the Labour Government. He was hospitably entertained during the day and then came the vote. The Government fell by one vote and it was discovered that Frank had not voted. “Ah, but to be sure, I came to abstain in person”, said Frank. He was behaving entirely properly as a Member of Parliament. He had laid before his electorate the terms on which he sought to be elected.

I say to my noble friend Lord Tyler, for whom I have an affectionate regard, that his series of amendments would just make a bad Bill worse for the reasons alluded to in a very elegant brief speech by the noble Lord, Lord Howarth—namely, that they would introduce another constraining element. A Member of Parliament should not be cribbed, cabined or confined in any way. He or she should be able to—following the Burkean principle—give of their industry, knowledge and service to their constituents, but they should not be delegates.

That means that from time to time a Member of Parliament will be at odds with a large percentage of his constituents. As the noble Lord, Lord Grocott, and my noble friend Lord Tyler have tellingly illustrated, when a Member of Parliament is elected he may often have the tiniest and flimsiest of majorities. By definition, those who voted against him will be disappointed by the result. But disappointment should not in any way be a springboard for action against that Member.

The noble Lord, Lord Grocott, used the analogy of the thin end of the wedge, and I talked about the slippery slope. If anything was needed to demonstrate that what I said in those brief remarks was correct, it is this series of amendments, because this is the slippery slope. I repeat what I and the noble Lord, Lord Davies of Stamford, have said: of course we are not going to stand in the way of the other place in this matter. It has decided. But we are entitled to say, “You really have taken a very dangerous step”. This measure does indeed fly in the face of the Bill of Rights. It flies in the face of the very concept of parliamentary democracy, and the integrity and independence of the Member of Parliament—who, after all, is answerable to constituents at the end of the Parliament.

We now have fixed-term Parliaments. Like the noble Lord, Lord Grocott, I hope that that will not be the case for much longer. After a maximum of five years, if re-election is being sought, the Member of Parliament has to go back to the constituents and seek that re-election. It is for the constituents to come to a decision.

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Within my own party, the Member of Parliament would have to go through a process before he stood before the constituency: he would have to be reselected by his own party as the candidate.

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Oh yes, I know all about that, because they tried to get rid of me on two or three occasions. I know all about reselection. But that, in a sense, is not the point. It is for the electors, at the end of the day, to make the decision, and they have to take into account the record, and the assiduity, of the Member of Parliament.

When I was canvassing I used to say, “No Member of Parliament is ever a mirror of all your beliefs and prejudices—and everybody has both. You have to decide which candidate is better able—or best able, if there are more than two candidates—to represent you. You have to decide which is the one with whom you can identify on more fronts than not”. Constituents will take into account not only the record of the Member, but his attendance record.

In one sense I sympathise with the motive behind the six-month provision. But if a Member has not attended for six months, why is that the case? Somebody has already cited the Sinn Fein Members of the other place. They have been legitimately elected, and they should not be illegitimately ejected because they have done neither more nor less than they promised to do.

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In that precise context, does my noble friend not recall the occasion when Bernadette Devlin crossed the Floor and hit Reginald Maudling, and was not expelled from the House but was defeated at the next election?

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I well remember that: I was sitting just behind when Reginald Maudling made his Statement. It was after Bloody Sunday, and it was a moment of high drama and great tragedy. A diminutive figure came dashing across the House and started to belabour the Home Secretary. As she did so, one of his Front-Bench colleagues grabbed at that slight figure, and Lord Home—Sir Alec Douglas-Home, as he was in the House of Commons—said, “Just you be careful what you do with a lady”. I shall never forget that. It is one of the vignettes I often recall. She was motivated by high emotion and did something that truly she should not have done. I remember a Labour Member punching Jeremy Thorpe when the result of the vote to go into the Common Market was declared. The Member was restrained, but was anything done? Of course not. At moments of high drama, things that should not be done sometimes are done; but subjecting such MPs to the sort of quasi-judicial process that this series of amendments propose—in good faith, I know—is just not on. Although it is, as I say yet again, for the House of Commons to determine its rules, we—particularly those of us with long experience in that place—have the right not to throw this measure out but to say, “Hold on a minute”. I hope that in the next Parliament there will be—to use the awful American jargon—a revisiting of this Bill.

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My Lords, I made my view on the Bill plain at Second Reading, and I will try not to repeat anything that I said then. I am going to break that promise straight away. I said then that I could not imagine anything that could make this Bill worse, except perhaps for the coercion of the two Front Benches. But these amendments from the noble Lord, Lord Tyler, make an appalling Bill even worse, if such a thing were possible.

My noble friend Lord Grocott touched on proposed new subsection 3(f) in Amendment 30, which states:

“subject to the condition in subsection (4), otherwise abused or brought into disrepute the office of Member of Parliament”.

On Second Reading, I said specifically to the noble Lord, Lord Tyler, that there was never a great problem in getting 500 signatures in any constituency on any matter at all. Some years ago my noble friend Lord Howarth crossed the Floor in the other place. He will well remember that I attended a meeting in his then constituency of Stratford-on-Avon. The meeting was fairly heated, as one can imagine, and a number of the people there would not only have signed a petition to achieve the magic 500 but taken him outside and hanged him, I should have thought. They probably would have taken me outside and hanged me, too, for chairing the meeting. So I should think that there would not have been any great difficulty in getting that number of signatures, or getting some of those people together to say that my noble friend, for one reason or another, had somehow brought Parliament into disrepute.

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My noble friend does not exaggerate. At the Conservative Party conference that year there were lapel stickers saying, “Hang Howarth”—which, it seems, were very popular. I tried to get hold of one but never succeeded. It may be that noble Lords can still find one in their own archives.

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I have to say that, having spent 27 years in the other place, I never achieved such notoriety in West Bromwich. There is still time, of course. One never knows.

The noble Lord, Lord Tyler, ought to reflect that his own distinguished parliamentary career was sadly brought to an end without the necessity for this Bill, without the coercion of the two Front Benches and without these amendments which he has tabled. It was a matter of deep regret to us all, though particularly to him, that that event transpired in the way that it did. The fact is that these amendments illustrate the dangers of the Bill. I hesitate to use the clichés about a slippery slope, but we are on one. Members of the other place are apparently intent on this self-flagellation. There is not much that we can do about that except try to stay their hand occasionally to make sure that the scars they leave on themselves are not too deep.

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My Lords, I listened to the Second Reading debate but did not participate because it was one of those occasions where I was not exactly sure what I thought about it. Having read the Bill, I am still not sure, and having considered this amendment, I am completely confused. This amendment is less of a slippery slope and more of a cliff. If the House will forgive me for mixing metaphors, it is also a Pandora’s box. To be fair to the noble Lord, Lord Tyler, I entirely agree with the motors that have driven him to put forward this amendment together with those colleagues who have signed it. It arises from a very important point made by the noble Lord who was the Member for Warrington—

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Lord Hoyle.

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No. It was made on Second Reading. He said that this puts enormous political pressure on—it politicises—the Standards Committee, because of the mechanism.

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Lord Campbell-Savours.

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It was the noble Lord, Lord Campbell-Savours. How could I possibly have forgotten his name, when he gave me such a hard time in the House of Commons? He made an intervention in the Second Reading debate in which he set out the problem with the Bill. I think that that is what has driven the noble Lord, Lord Tyler, to produce these amendments. I do not want to repeat the arguments that were made very well by the noble Lord, Lord Howarth, but this is a huge constitutional change. One of the things that worries me about what is going on at the other end of the corridor is the way in which Members of Parliament are, bit by bit, dissolving their authority and removing the primacy of the House of Commons. This is a step in that direction. If we were to agree this amendment, it would not pass power to the electorate and the voters; it would pass power to the editor of the Times and the editor of the Daily Mail. I say that in all friendliness to my noble friend Lord Finkelstein.

There is another example of the way in which the independence of Members of Parliament has been altered, and it applies to all parties; I certainly know that it applies in my own party. When I was first elected as an MP, or selected as a candidate, the people who were in Central Office in those days were on my side and wanted to get me into Parliament. I am sure that they are still on my side. They wanted to get me into the House of Commons. However, it would have been absolutely fatal if you went to a constituency and it was thought that the party machine wanted you to be selected. The constituencies were completely independent in their approach. Now, you are not allowed to stand as a Conservative candidate unless you have the signature of the leader of the Conservative Party. That is a huge change in the ability of Members of Parliament to operate in an independent manner.

I refer to the point that I made in an earlier intervention. The idea that someone who has been subject to the process under the Bill will get the signature of the leader of the party to allow him or her to stand again is heroic. What we are doing here is introducing yet another way in which people can intervene and undermine the independence of MPs and look over their shoulders. Whatever the merits of the Bill, the amendment takes that to another level. Although I understand why my noble friend has put it forward, it makes the situation—as the noble Lord who has just spoken indicated—considerably worse.

If we were to take the high ground that the noble Lord, Lord Tyler, has taken, there is one point about Amendment 30 that is striking. Subsection (8) states:

“In making a determination under subsection (7), a parliamentary misconduct hearing may not consider conduct specifically relating to the respondent’s official duties in a ministerial capacity”.

Why are we giving a bisque—a free ride—to Members of Parliament? This is saying that if a Member of Parliament misleads the House of Commons on a crucial matter, that is not a reason for having a petition and is completely exempt. From the point of view of the ordinary electors—I shall not make any party points about whom that might affect—misleading the House of Commons, whether in a ministerial capacity or as a Back-Bencher, is a grievous thing to do. My noble friend has specifically exempted that, which is why, as I pointed out to the noble Lord, Lord Grocott, his example of the Deputy Prime Minister’s abandoning of his oath on tuition fees would not be covered.

If we were to pass this amendment someone in the press would write it up and say that there is a completely free ride for people in a ministerial capacity. A great cry would then go up that we need to amend the Bill —or that we need to have a new Bill to cover this issue —and asking why that issue is not being covered. Bit by bit we would see the disintegration of our parliamentary democracy and of the independence of our MPs. I therefore hope that my noble friend will reject this.

My noble friend the Minister said that this is a matter for the House of Commons, and I have heard it repeated—that we must not interfere, that this is about the House of Commons making its laws. No, it is not. This is about the constitution of our country. If this House has any job whatever, it is to protect that constitution. If that sometimes means protecting the House of Commons from itself, we should not hesitate to do so. After all, if the House of Commons passed an amendment to the Fixed-term Parliaments Act to change the term from five to seven years, would we argue that this House should not intervene? Of course it would intervene. It has a specific duty to do so.

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My Lords, I am reluctant to speak in this debate. I did not take part in the Second Reading debate and I have not even read it, unlike the noble Lord.

I am not clear about this amendment. There are two types of misconduct in the House of Commons. There is a very small number MPs who, for whatever reason, fiddle their expenses and who quite rightly should be done for that. Equally, there are Members of Parliament who carry out acts of misconduct in the Chamber of the House of Commons itself, who for whatever reason refuse to obey the Speaker’s rulings, who refuse to sit down, and who will not give way. I have been in the Chamber when, in the end, the Speaker has sometimes been forced to call the Serjeant at Arms to remove the person. The person can then be given a suspension from the House of Commons which is longer than the 10 days. It would trigger these amendments and trigger this Bill, as far as I understand it.

I recall that my uncle, for instance, accused a junior Tory Health Minister at the time—the man was called Banbury—of being a murderer. He was asked by the Speaker to apologise and withdraw the remark, and he refused to do so. He believed that the matter was one of taking milk away from nursing mothers. His wife had just died, after childbirth, as a result of that. He believed that he was right, to the point that he was suspended from the House. It was almost a sine die suspension, in Glasgow football terms. The suspension was in effect until he came to the House and apologised.

I am not sure that these amendments would cover those sorts of offence. If they do, then it is totally wrong that they do. Such offences are a matter of misconduct within the House of Commons Chamber. They break the rules of the House of Commons. It is therefore for the Speaker and Members of the House of Commons to decide that, not for some outside organisation, such as a couple of judges sitting—who, as others have said, would not be prepared to undertake this task.

Lastly, that same uncle of mine did not object to the First World War. It so happens that he was not a Member of Parliament at the time. He went to prison, not because he was a conscientious objector; he went to prison because he committed an act of sedition under the law. He urged munitions workers in Glasgow to go on strike when the war was on. As a result he was sentenced to a year in prison. If he had been a Member of Parliament, would it have been right that he should therefore have been forced into a position in which he could not be one thereafter? Some people would say that it would have been. In my view, he should not have been forced into this position. He would not have been re-elected in 1918 if he had been a Member of Parliament, because Ramsay MacDonald, who was equally opposed to the war, was not re-elected.

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He soon got back.

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He soon got back: I accept that. My uncle would have been elected. It was he who coined the phrase: “Why should we bother counting my votes? Let’s just weigh them, because I know I am going to win”.

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My noble friend has talked about an important case, arising from his family history and the history of this country. He has just exposed in the Bill that we are examining the inconsistency and confusion between the powers of the Speaker to suspend and the provisions for recall. Do not these demonstrate the regrettable failure of the House of Commons to examine and amend, thoroughly and satisfactorily, legislation of fundamental constitutional importance, and of fundamental importance to its functioning and future? Is that not a good reason why we in this House should feel entitled, with genuine respect, to offer our advice by way of amendments, so that the damage that the House of Commons is inflicting on itself through this measure may be lessened?

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I shall finish by saying that I thoroughly agree with that.

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My Lords, I am glad to add my name to my noble friend Lord Tyler’s amendments. It is obvious to us all that he has devoted much hard work to them. As he explained, the amendments arise in part as a response to an important issue in the report on this Bill by the Constitution Committee, of which I have the honour to be a member. He quoted a passage from the report that I will repeat. It is immensely important:

“The constitutional purpose of recall is to increase MPs’ direct accountability to their electorates: it is questionable whether that purpose is achieved when the trigger is put in the hands of MPs rather than constituents”.

This is a Recall of MPs Bill. My noble friend’s proposals, embodied in his amendments, represent a first attempt in this House to see if it is possible to find a way of enabling the electorate to be more fully involved in the arrangements that can trigger recall without breaching the famous Burkean principles that safeguard MPs’ independence of judgment. The amendments further develop ideas put forward in another place. They are probing amendments, as my noble friend emphasised. Of course we understand and accept that more work on these amendments would be necessary before Report.

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My Lords, like the noble Lord, Lord Maxton, and others, I did not take part in the Second Reading debate on the Bill because I felt that Members of the House of Commons know best how to control themselves and the relationship they have with the electorate. However, having heard other speeches, I agree that it is incumbent on this House to consider legislation and to have in mind the view, in particular, of the House of Commons.

I believe that this amendment is very dangerous indeed, and I am pleased to have heard the noble Lord, Lord Howarth, state that, if passed, it would in fact be illegal. That is because of the Bill of Rights 1689. No doubt the noble Lord, Lord Tyler, has investigated this and we will hear from him later. This amendment is dangerous in respect of the rights and privileges of the House of Commons. Quite frankly, I am getting fed up with the attacks being made on the House of Commons and its Members. All these attacks which describe them as shysters and people who concerned only for themselves do extreme damage not only to the House of Commons but to parliamentary democracy itself. People should remember that Parliament is the protector of the people against unfair government. We and the House of Commons are the protectors of the people. It is therefore very important that we should not denigrate the position of MPs. I believe that this amendment does exactly that. It is unnecessary and it denigrates the position of the House of Commons.

In effect, the House of Commons will decide whether an issue about a Member of Parliament should go to the electorate in a referendum, and I believe that that is the correct way. The amendment suggests that the House of Commons itself is not fit to do that. I repeat: that will undermine the position of the House of Commons itself, of its Members and, indeed, of Parliament. I cannot accept a situation where 500 people who are completely unqualified and lack knowledge, for some reason that is not really injurious to Parliament and to the House of Commons—this has been explained by many speakers in the debate—can introduce a position where judges can interfere in the decisions of Parliament, which of course should be sovereign. If we take away decision-making from Parliament and the House of Commons, they really will cease to be sovereign. For that reason, if the amendment is put to a vote—although I am sure that it will not be—I will vote against it.

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My Lords, in an hour of debate—

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My Lords, I want to say just a word in support of what the noble Lord, Lord Forsyth, said against the notion that this is purely House of Commons business. That must be wrong. For example, it would be very useful to know whether the noble Lord, Lord Tyler, believes that the judicial procedure he has set out consisting of two judges who will consider cases of parliamentary misconduct would be confined only to allegations of parliamentary misconduct at the other end of the corridor. That seems to be rather illogical and therefore his amendment is absolutely our business. Of course, he is proposing the amendment, so he will not agree with that.

The amendment is extremely dangerous for all the reasons that have emerged, and particularly the first reason, which was so well explained by the noble Lord, Lord Howarth. I have to say that I think that the Bill as a whole is extremely dangerous even as it is. Mine is the Burkean principle. Members of Parliament are sent up not to represent the views of their constituents, but to exercise their judgment. They are chosen on the quality of their judgment, so for all those reasons the Bill is defective.

The only speech in this debate which has surprised and disappointed me was that of the noble Lord, Lord Finkelstein, for whom I have enormous respect. I think that he has been lunching too often with that chicken.

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I apologise for leaping to my feet too quickly. I was going to say that in over an hour of debate the amendments have found no favour in the Committee, other than from those who added their names to them, and I will not alter that in what I say now. Having heard the name of Bernadette Devlin, I am going to share a secret with the small gathering in this Chamber. I was not actually born blonde. It may surprise noble Lords to hear this, but I looked very much like Bernadette Devlin. When walking around London I was for ever being stopped and I had interesting discussions. It is a long time since that has come to mind.

It is clear that the noble Lord, Lord Tyler, has devoted a great deal to these amendments but, in the words of the last two noble Lords to have spoken, they are, if not dangerous, certainly full of major problems. The amendments would catapult relatively minor misdemeanours well above our legal means of resolving alleged wrongdoings—and that starts with only 500 signatures. I could certainly get that number on a Saturday morning in busy Kentish Town. That would bring an MP not simply to the police, to the DPP or even to a magistrates’ court to see whether there was a case to answer, but up and over all of that to a judge, possibly on the basis of no evidence—simply following an allegation. The allegation would not have to be tested or proved at any level, nor would any suspicions have to be verified. Indeed, the issue could be entirely without merit and without evidence. It could be based on mistaken identity. Moreover, if the complaint against an MP is not criminal, why on earth would it go before a judge-led hearing? I assume it would not be criminal because the amendments state that the hearing would,

“be suspended if any of the matters under consideration are the subject of criminal investigation or criminal proceedings”.

I think that means that we are talking about something which is not even criminal, yet it would go to a higher level than things that would normally go to a magistrates’ court and be tested by a presenter or a prosecutor. I really do not understand why this is being taken to that level. What the amendments will do is up the ante, if you like, of misdemeanours to above the criminal, and straight before not just a single judge but a double-judge hearing. As a former magistrate, I find that quite difficult to understand. We were able to hear many cases of criminal wrongdoing and even indictable offences to see whether there was a case to answer. However, there would be no such filters on this.

There are also big questions which have already been touched on as to rules of evidence, legal representation, hearsay evidence, cross-examination and the disclosure of previous convictions. These are big issues. To bring someone in front of a court—the word “trial” has been used—on the basis of nil evidence is extremely worrying. The amendments would even force witnesses to attend, at the risk of being in contempt of court. As a magistrate, I do not believe that I had the right to do that. This is a heavy sledgehammer to use on what might be a completely unproven allegation, and certainly something of a non-criminal nature which otherwise would be dealt with separately.

What is this misconduct? If it is not a crime and it is not being dealt with by the police, what is it? Is it non-appearance, because people have said that they would not come? Is it about an MP being in Barbados for the past 11 months, although in the current weather I would quite understand if they were over there? What is the nature of bringing Parliament into disrepute? I see no merit at all in these amendments, and the speeches so far probably concur with that. I trust that we will not see them back at the Report stage.

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My Lords, yet again we have had a thought-provoking and thorough debate. I acknowledge the work that my noble friend has devoted to this matter. As your Lordships know, the amendments are a modified version of those brought forward in Committee and on Report in the other place. The underlying principle behind involving the public in initiating the recall process for reasons of misconduct did indeed attract some support in the other place. Although I know that I shall not receive the approval of the noble Lord, Lord Grocott, it is interesting to see that these amendments were rejected in the other place by 271 votes to 64.

My noble friend’s Amendment 2 would remove the first and second recall conditions yet retain the third. The proposed new clauses create the concept of a parliamentary misconduct hearing, which would involve two judges examining the behaviour of an MP if the hearing received a petition alleging certain forms of misconduct that had been signed by 500 constituents. The parliamentary misconduct hearing would not be required to determine guilt to a criminal standard but rather whether parliamentary misconduct had on the balance of probabilities taken place. The noble Lord, Lord Howarth of Newport, highlighted this.

Turning to some of the detail of the amendments, the number of petitioners necessary for the parliamentary misconduct hearing to consider the allegation has been proposed at 500. The aim is to give the public some involvement in initiating the process. Of course, if it is alleged that a criminal offence has been committed, it takes only one person to make a complaint for that to be investigated by the police, for instance. Arguably, if the complaint is valid it should be taken forward regardless of the number of complainants. On the other hand, as a test of public will, is the number of 500 constituents perhaps too low? My noble friend has explained in detail the behaviour that the parliamentary misconduct hearing is being asked to judge. I am not going to outline that further, given the time.

Criminal matters, which could include bribery and misconduct in public office, as well as offences relating to parliamentary expenses, would be investigated by the police and adjudicated by the courts. However, my noble friend proposes that criminal convictions and prison sentences should not be a trigger for recall, except for offences regarding parliamentary expenses. The trigger my noble friend proposes is a finding by the hearing that on the balance of probabilities the misconduct took place—a lower standard of proof than that used in criminal cases.

Matters that fall under the Code of Conduct can be examined by the Parliamentary Standards Commissioner, the Standards Committee and the House of Commons, which can order suspension. The proposals in the Bill are that a suspension of more than 10 sitting days could trigger recall. My noble friend’s amendments would not prevent investigation by the Parliamentary Standards Commissioner or the Standards Committee or suspension from the House taking place; they would simply decouple it from recall. So there could be a parallel process of investigation by the commissioner, the committee or the House, and a parliamentary misconduct hearing—all of which, of course, could reach different views.

I turn to parliamentary privilege, which was first raised by the noble Lord, Lord Howarth of Newport. In addition to the proposed parliamentary misconduct hearing set out in these amendments, there are the serious concerns that noble Lords have quite widely expressed vis-à-vis the interaction with parliamentary privilege. For the parliamentary misconduct hearing to have any real effect, it is likely that the judges appointed to determine misconduct would need to question proceedings in Parliament and would need to examine issues that are covered by exclusive cognisance; that is, that Parliament has sole jurisdiction over its own affairs, including standards and discipline. As the noble Lord, Lord Howarth of Newport, identified, that would be contrary to the protection afforded by the Bill of Rights; for example, the provisions in the amendments would give a role to the hearing to examine breaches of MPs’ conduct, which would impinge on exclusive cognisance.

It is also proposed that the parliamentary misconduct hearing would be able to look at issues such as cash for questions, attendance in the House and abusing or bringing into disrepute the office of a Member of Parliament—all matters which are to some extent likely to be covered by privilege. The provisions also set out standards for Members of Parliament by defining parliamentary misconduct as non-attendance in a six-month period. However, the amendments are silent on the interaction with parliamentary privilege.

Of course, Parliament does possess the ability to allow a hearing to deal with matters that fall under its exclusive cognisance, and to question proceedings in Parliament. However, if we are to take such a momentous decision, we should be fully aware of what we are doing, and there needs to be an overriding reason to do so. The problem the Government face is not being convinced that either of these conditions has been met. The type of wrongdoing covered by this alternative trigger already triggers a recall petition under the conditions in the Government’s Bill. The triggers in the Government’s Bill, whether noble Lords like the Bill or not, are intended to fit in with the disciplinary and constitutional arrangements of our Parliament.

I turn to the relationship with criminal prosecution. While the amendment contains a provision to allow for the suspension of a hearing in the case of a criminal investigation or criminal proceedings, it may be that these would be initiated only due to testimony in or judgment of the hearing. In the case of alleged criminal misconduct, if the defence had already been rehearsed before a parliamentary misconduct hearing, or the hearing’s finding was considered prejudicial to the MP’s presumption of innocence, it may not be possible for the MP to have a fair trial. The fact that an MP had to answer allegations in a parliamentary misconduct hearing could prevent him or her from facing criminal prosecution for misconduct that amounts to a criminal offence.

I am very conscious that my noble friend has devoted a lot of time and work to putting forward his amendments, given some of the background to why we are where we are. I hope your Lordships will understand that we feel there are very serious matters, which your Lordships and I have endeavoured to outline, that are of sufficient concern that I ask my noble friend to withdraw his amendment.

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My Lords, I am very grateful to my noble friend the Minister for his careful response to our probing amendments. Perhaps I should put on record that, as I understand it, as far as both the circumstances to which the noble Lord, Lord Maxton, and my noble friend Lord Forsyth referred are concerned—in one case, the suspension of a Member in the House of Commons—absolutely nothing changes in the Bill as it stands, or in my amendments. It is as it was and would continue to be. In the case of any Member—Minister or not—misleading the House of Commons, there is a very clear process for what then happens. I do not think that is affected by the Bill. It certainly is not affected by my amendments.

There has quite properly been a discussion about the relationship of our set of probing amendments to the Bill of Rights—

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I apologise for interrupting. My noble friend says that the amendment does not affect that. The amendment states:

“In making a determination under subsection (7), a parliamentary misconduct hearing may not consider conduct specifically relating to the respondent’s official duties in a ministerial capacity”.

So if, as a Minister, he has misled the House, is that not a “get out of jail free” card?

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It certainly is not, because it is covered by quite different regulation and control: the code of ministerial conduct. It is the responsibility of the Member concerned, whether a Minister or not, if he or she misleads the House of Commons, it is still exactly the same position; it is not affected by the Bill. If it was necessary for avoidance of doubt to make that clear, we could obviously do so.

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I understand what the noble Lord is saying about the Code of Conduct, but that would not trigger recall.

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That is exactly what I am saying.

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Therefore, Ministers are being treated in a different way from Back-Benchers.

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As the noble Baroness will know from her ministerial experience, they are already under the Ministerial Code—properly so. I want to turn to the critical issue, which is of course the one raised by the noble Lord, Lord Howarth, about the Bill of Rights, parliamentary privilege and exclusive competence. I am not a lawyer but I experienced—or suffered, whichever way one wants to say it—two years, I think, sitting on the Joint Committee looking at the issue of parliamentary privilege. As a result of that experience, I contributed to the discussions in this House when we were looking, after the expenses scandal, at the whole issue of IPSA.

What is absolutely clear—my noble friend the Minister effectively made it clear again today—is that if Parliament decides that parliamentary privilege should be constrained in a particular respect, it is up to Parliament to make that decision. That is what the Bill is already doing, to some extent, without my amendments. The noble Lord is quite right that there are implications for parliamentary privilege, but it is not a yes/no or a black/white situation, it is up to Parliament to decide if and when it wants to constrain and restrict its own position in relation to parliamentary privilege.

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I am not a constitutional lawyer either, but would the noble Lord agree that the House of Commons now bitterly regrets the passing of the legislation establishing IPSA?

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I am not sure that the noble Lord was here during the debate on that Bill, but I was and took an extensive part in the debate. I was very concerned about a number of elements, including the way in which MPs seemed to be all too easily restricting their own responsibilities in terms of exclusive cognisance.

I want to go back to the whole rationale for trying to find a route in this particular direction. My noble friend Lord Forsyth, who was as generous as ever in recognising the contribution to the work of this House of his coalition colleagues, identified very precisely that there was a recognition throughout the House at Second Reading—as was made so clear by the Constitution Committee—that putting this new responsibility on the Standards Committee was a serious weakness in the Bill. That is where we are coming from.

My noble friend the Minister has been very generous in his response but there has not been any government reaction to that very serious weakness. Frankly, I do not think that this is a good Bill, but it is made even worse by the responsibilities and the danger of serious politicisation of what has previously not been a political process in the Standards Committee—again, I regret very much that the noble Lord, Lord Campbell-Savours, is not here.

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I thought I remembered the noble Lord, Lord Campbell-Savours, saying quite distinctly that there was an awful lot of political interference in the Standards and Privileges Committee, which he was on for a long time.

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He made it absolutely clear, as would other noble Lords who were there, that the way in which the Bill will now act—if it goes through in its present form—lays an additional and very dangerous responsibility on that committee, with all the potential damage there might be. I say simply to my noble friend the Minister that I have done my best, with my noble friends—I am very grateful for their help and that of other Members of the House—to try to find a solution to the problem that our Constitution Committee put its finger on. We cannot simply walk away from that. As so many Members have said, from all sides of the House, we have a responsibility, in this respect, to save the House of Commons from itself. This part of the Bill is a mess. I do not pretend that my solution is the final answer, but just ask my noble friend the Minister to think again between now and Report to see whether we can find a better way to deal with this particular problem. In the mean time, I am happy to withdraw the amendment.

Amendment 2 withdrawn.

Amendment 3

Moved by

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3: Clause 1, page 1, line 13, after “Kingdom” insert “or elsewhere”

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My Lords, this has been an interesting diversion down the highways and byways of Liberal land. Fortunately, it has come to a dead end. We now come to a large number of amendments, which illustrate the practical problems arising with the Bill. I say to all Members, but particularly to the noble Lord, Lord Finkelstein, who has been assiduous in his attendance today, that some of my amendments are probing amendments. If he, or indeed any noble Lord, should find any contradiction between one and another of them, it is entirely because they are there—I say this to both Ministers as well—to explore the issues rather than to be definitive as to what either I or the other signatories believe.

I will speak to the other amendments that are in my name and in the name of some of my colleagues, but the first amendment states:

“Page 1, line 13, after ‘Kingdom’ insert ‘or elsewhere’”.

The clause refers to an MP having been,

“convicted in the United Kingdom of an offence and sentenced or ordered to be imprisoned or detained”.

It is limited to the United Kingdom, but it is not clear why the conviction of the MP is limited to convictions in the United Kingdom. This is quite a good amendment, because I did not draft it. It was drafted by the Law Society of Scotland, which, as my noble friend Lord Forsyth will know, is a very reputable group of people. It has pointed out:

“The Representation of the People Act 1981 s1 disqualifies a person from membership of the House of Commons where the person is found guilty ‘in the United Kingdom or elsewhere’. If an MP commits an offence in another jurisdiction, which is serious enough for that MP to be sentenced and ordered to be imprisoned or detained, is that offence not serious enough to trigger recall? There may be issues concerning the rule of double criminality but limiting the first recall condition to offences punished in the United Kingdom could create unexpected results”.

Any Member of this House might get up and say, “Well, what about an offence committed in Saudi Arabia or some of these other authoritarian countries?”. That is a very good question—I am reading people’s minds in suggesting that they might get up and ask that. But if that applies to this Bill, why does it not also apply to the Representation of the People Act 1981? All we would be doing is bringing it into line with that Act. If it is wrong, and we are worried about these regimes that might not be our favourite regimes in terms of the rule of law for this Bill, why are we not worried about it in the Representation of the People Act 1981? I hope that the Minister in his reply, and indeed my colleague on the Front Bench for the Labour Party, could indicate whether or not they now think that an amendment to the Representation of the People Act 1981 would be necessary if this amendment is not accepted for this Bill. We should have some parallel or some—what is the word I am looking for?

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Consistency.

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Consistency, thank you. That is the second time that my noble friend has assisted me this afternoon—and for no charge. We need some consistency in relation to this. That is Amendment 3.

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Before my noble friend moves on from the issue of consistency, does he find our constitution characterised by consistency? Does he see it as a bulwark and constitutional principle that we should seek at all costs to conserve?

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That is a very good question. I could spend an hour or two on that, although the Minister and other noble Lords will be pleased to know that I will not. We could start with the constitution of the United Kingdom and talk about the total inconsistency between one part and the other. That would take us down the highways and byways—not the Liberal ones on this occasion, although it could perhaps be some of them. Instead, I move to Amendment 13.

The clause that this relates to deals with two further provisions to the first recall condition, referring to imprisonment and detention following an offence. It deletes a proviso which states that the first recall condition includes offences committed before the MP became an MP. It also deletes a proviso which states that the first recall condition does not include offences committed the day before this section comes into force. Acute Members will notice that Amendment 16,

“Page 2, line 24, after second ‘MP’, insert ‘unless that offence was disclosed before the MP became an MP’”,

contradicts the one to which I have just referred. I am sure the noble Lord, Lord Finkelstein, would have jumped up and pointed this out if I had not done so myself. It attempts to amend the subsection that the previous amendment deletes, so if we had deleted it, we could not have amended it. It gives the House an option.

The reasoning for this amendment, which was also provided by the Law Society of Scotland, is that Clause 2(1) elaborates the reference to an offence in Clause 1(3) as including an offence committed before the MP became an MP. If an MP was elected by the constituents after he or she had been convicted and sentenced for that offence, there should not be a recall because he or she was already elected in the full knowledge that that offence had been committed and that he or she had been sentenced for it. I am not talking about where there might be an appeal or whatever but where the matter had been dealt with. That would be clear because the constituents must have known about the MP’s offending history prior to the election but nevertheless elected that individual. I do not see any reason why these two amendments from the Law Society of Scotland cannot be accepted.

The more difficult one for the Government to accept might be Amendment 4. This relates to the first of the two criteria—that the offence must have resulted in a sentence of imprisonment of more than a year. Noble Lords will know that, under the present arrangement, if Members of the House of Commons and, indeed now, of this place are sentenced to more than a year, there is automatic exclusion. That is part of our provision in this House. It is part of the provision in the other place. The point I want to raise is that it is not whether it is a year or 18 months or six months, it is a question of who decides. Should it be this House or the other place that decides in relation to the Members of this House or the other place, or should this cumbersome, expensive, complicated recall mechanism be enforced? Why, if it is less than 12 months, should it be this complicated, expensive trigger mechanism, but, if it is more than 12 months, we are able to deal with it ourselves? Why can we not deal with all of them ourselves? Would it not be more sensible for us to deal with Members of this House who are convicted, whatever the length of their sentences, and for Members of the other place to deal, equally, with their Members, irrespective of the length of their sentences? What is magic about one year? What is special about one year? We will come to this in relation to other amendments later on. What is the logic behind it? There is no logic.

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I raise with my noble friend a practical point that he might be about to address. If a sentence of less than a year becomes the law, it could trigger a petition and then the petition could lead to a by-election. My advice to any Member of Parliament facing this kind of situation—it might be for the good reasons of principle that several noble Lords have referred to—would be to bypass the whole question of a petition being raised to call for a by-election. The sensible thing to do would be to resign the seat immediately, which we know from Clause 5 would cancel the whole mechanism of petitioning and recall, and, rather than go through all that rigmarole and all the publicity that might be associated with it, say, “Right, I am probably going to be subject to a recall in any case, so I am going to resign the seat and make the whole section of the Bill redundant”. That would certainly be my advice, so let us get it out.

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My noble friend has put his finger on it precisely. That shows exactly the problems arising and why these provisions are not only cumbersome and expensive but complicated and very difficult to deal with. They also provide let-out mechanisms, as my noble friend has described.

I would like the Minister to address two further points which are not specifically included in the amendment but which arise. I was a magistrate for a few years in Edinburgh and I sent people to prison. I had the option of fining them or giving them a custodial sentence. I always made the judgment on the recommendations of the clerk or the social worker or on whatever advice I got on the basis of the circumstances and the facts presented before the court. I made that judgment because I knew that to look at it in a completely impartial way was the right thing to do. If, in addition, I had been dealing with, for example, a Member of Parliament appearing before me, and I had known that, if I had imposed a custodial sentence, this recall procedure would have happened, it would have affected the way in which I decided. Supposing I was doing it, and it was a Conservative Member of Parliament, there might have been some feeling that I should show how reasonable and sensible I was and give them a fine rather than a custodial sentence. It does seem strange that these kind of judgments might be affected because of this.

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Does the noble Lord acknowledge the point he has just made is also material to members of the Standards Committee deciding how long or how short a suspension should be? This is precisely, if I might just point it out gently to him, why I raised the concerns I did in the previous debate.

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Indeed, and the noble Lord will realise it is coming up in subsequent amendments that I have tabled along with my noble friends Lord Campbell-Savours, Lady Taylor and Lord Hughes. Like the noble Lord, Lord Tyler, I am deeply sorry that the noble Lord, Lord Campbell-Savours, will not be here to move those amendments. One of us is going to have to move them on his behalf. He made these points at Second Reading, and he would have made them again, and we will make them on his behalf later. It is exactly the same point. It introduces a different factor, a complicating factor, to the decisions that are being made.

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While the noble Lord is in explanatory mode, I have something to ask him. I entirely understand the noble Lord’s point about the amendments which have come from the Law Society, but, before he moves on, I am not sure I understand what he is saying. If he wants to make an amendment so that the recall petition would be triggered only with a sentence of more than a year, is he also proposing—it is not on the Marshalled List, so is it implied—that the current position, which makes it automatic that you are expelled from the House of Commons, would disappear? Clearly it would be absurd to have a recall process started when the Member had already been kicked out of the House of Commons. What is the noble Lord suggesting? Is he suggesting that the one-year sentencing rule, which is automatic, would fall if this amendment were agreed?

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I said in my introduction that astute Members of this House would immediately or eventually detect some inconsistencies in what I was proposing. I congratulate the noble Lord on doing so. This is very much a probing amendment.

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What is your view?

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My view—I think I said this—is that the recall procedure is daft. It is expensive, complicated, and all of it should be dealt with by both Houses for their own respective Members. We should throw this out and go back to the House of Commons and let it decide in relation to people who have been sentenced for less than a year or more than a year. I think it is right that they should be dealt with by Parliament, not by this kind of recall procedure. I put the amendment in precisely so that it could be discussed.

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Is not my noble friend, in wrestling with these amendments which attempt to improve the Bill, just illustrating the difficulty that all of us feel who know that this is a bad Bill? May I suggest the answer that he should be giving; that is, it would be far better to leave the law as it is, which is that if you are sentenced to more than a year, then “You’re out, mate”, and if it is less than a year, then the chances are that it is something which existing procedures would deal with in any case—perhaps the informal procedures of parties, that would not re-endorse a Member of Parliament? There are all sorts of mechanisms of that sort which in practical terms come into play. The real lesson is that we are trying to make a silk purse out of a sow’s ear, and we just have to do the best we can.

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I could not have said it better myself; in fact, I did not say it better myself. That was an excellent explanation of it with which I completely concur. I tried to say that with increasing degrees of inability to do so.

My last question to the Minister is equally serious. Let us suppose that someone is given a suspended sentence. Does that count? It would be perfectly possible for me to say, when the noble Lord, Lord Finkelstein, appeared before me, “I sentence you, Lord Finkelstein, to a year in a prison, but I’m going to give you a chance and I’m going to suspend the sentence to see if you behave for the next year. If you behave, then that sentence will not be imposed”. Would that apply? I am not clear whether suspended sentences are counted in relation to the Bill. There is no guidance. It is just something that occurred to me. No doubt there will be many more problems in relation to the Bill which will come out during not just this discussion but if, heaven forbid, the Bill was to be triggered—to use that awful word—which we all hope it will not be.

Amendments 4 and 13 are probing amendments, but Amendments 3 and 16, which have been drafted by the Law Society of Scotland, are serious and important, because there is that inconsistency about offences committed overseas and there is also the question, raised in the second Law Society amendment, about offences committed before a general election. If the Minister cannot accept the amendments today, I hope that he will say that he will have a look at them between now and Report and see whether these two problems might be properly dealt with. I beg to move.

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My Lords, I very much hope that if I am ever accused of a serious offence, the noble Lord, Lord Foulkes, will not be the judge. I want to run through a list of offences for which you can be sent to prison for less than a year: assault with intent to resist arrest; assault on a police constable in the execution of his duty; racially aggravated common assault; domestic burglary; fraud; false accounting; and sexual assault—this is obviously not a full list. In other words, it is possible to be sentenced for very serious offences for less than a year. All that this Bill does—and it is a very simple Bill; it is not, as has been repeatedly and falsely suggested a complicated, burdensome, cumbersome and expensive Bill—is to provide the general public with a simple mechanism which allows them to remove Members of Parliament should they see fit in circumstances that are limited in it. There are a very few common-sense circumstances in which people would expect to have such a power. We have discussed at great length today many ridiculous ideas which are not in the Bill and said how strongly we are against them, and I think that we can all agree that we would be against them if they were in the Bill or if anyone proposed them in future Bills. Therefore, there is great unity in the Committee on the subject of hypotheticals.

However, if we confine ourselves to the subject of what is actually in the Bill, is the House of Lords seriously saying to the general public, at a moment of disillusion with politics, that we wish to deny a limited range of powers to them which would be available to the boss of any employer in any company and would be used in the circumstances set out in this Bill?

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As the noble Lord, Lord Finkelstein, is saying that we need to be in the real world rather than dealing in hypothetical examples, could he give the Committee some examples of Members of Parliament, let us say in recent years, who would have been caught by this less than a year’s sentence of imprisonment triggering a recall, so that we can have some idea of the evil that we are now trying to put right?

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As the noble Lord is well aware, there have not been very many such Members of Parliament and they have resigned, and I suspect that that will happen. That is not an argument to suggest that this power would not be used. From the noble Lord’s own Front Bench, it was correctly stated that it is very much to be hoped that the Bill would not be required to be used very frequently, but cases have often come before the House of Commons where a Member of Parliament has, for instance, used the House of Commons facilities to promote their travel company or employed members of their family in the House of Commons and been given suspensions that would fall under the Bill, which currently the power does not exist to cover. While there may not have been many instances in recent years that are covered in the Bill where people have not resigned, that does not mean that the power would not be valuable.

The issue has been raised of Members of Parliament who are sentenced to jail on issues of conscience and whether it is right that a recall mechanism be available. It may not be right to provide for a situation in which those people are automatically expelled for that act, but it is certainly right to provide the electorate with the limited power to review the conduct of that Member of Parliament in the light of them committing the very serious act as a Member of Parliament of defying the laws that they have created.

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My noble friend is clearly passionate in support of the Bill. Could he deal with the point, which I have made twice previously, that in the real world, in practical terms, where a Member of Parliament found themselves in this position, it would be highly unlikely that the leadership of a party would sign and allow them to stand again as a party candidate? Therefore, there is no opportunity for the electorate to take a view if they wish to be represented by a particular political party as opposed to a particular individual.

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I think that this is a misunderstanding. The leader of the party has to sign to allow them to use the party logo in an election, and they may not be permitted to stand for a political party, but that does not prevent them standing in a by-election. I suspect that if Jimmy Maxton had run in that election, he might well have received the signature of the leader of the Labour Party, but in other circumstances it might have been withheld. It does not prevent someone running again in the election; they are not denied this chance; and the electorate are not denied the opportunity to support them. It just means that they will not be allowed under their party act to run as a party candidate.

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The fact is that Jimmy Maxton would not have required, and would not have got, Ramsay MacDonald’s signature on any candidature; he was selected by the ILP in Bridgeton to be the candidate.

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And he could run as a candidate, if he wished, in an election, and could receive or not receive his party’s support; I am arguing just that the electorate should have the opportunity to decide, in circumstances in which someone has decided to defy the law, whether to continue to support them as a Member of Parliament. This power will not be imposed on Members of Parliament against the wishes of the electorate; it is a power granted to the electorate. What we have to decide as a House is whether it is reasonable that the electorate be given a limited power in certain circumstances that they can use to enforce standards. I believe that that power is reasonable and limited.

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I am sorry to pursue this—perhaps I have just misunderstood the Bill, as the noble Lord suggests—but if someone finds themselves in circumstances where there is a recall and there is going to be a by-election, certainly in the Conservative Party you cannot stand as a Conservative candidate unless you have the signature of the leader of the party. That is how it operates. I do not know about other parties. The Liberal party is a bit looser in its arrangements—

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Democratic.

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Democratic—that is the word I was searching for; of course it was. In the Conservative Party you would not be able to stand. If there is no Conservative candidate standing in the by-election—if the person subject to recall is not the Conservative candidate—there will be a Conservative candidate. Therefore, the opportunity for the Member to make his case before the electorate to continue as the Conservative MP will have been lost. Am I missing something here?

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No, the noble Lord is not missing anything, but he is failing to add the question of why that would be wrong. If a Member of Parliament is recalled, it may be that their party stands by them because of all the honourable reasons that have been suggested might hypothetically happen; if, however, they have been recalled because they have decided to promote their travel company by using the facilities of the House of Commons, the Conservative Party might not decide to stand by such a candidate. The candidate would still have the right to run by themselves. I do not think that the noble Lord has misunderstood it, but perhaps I have not understood why the noble Lord would regard that as a flaw in the Bill. It seems to me an advantage that has been programmed in, rather than a bug.

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I regard it as a flaw in the Bill because the point that my noble friend has been making throughout this evening is that it should be a matter for the electorate to decide whether or not they are going to take whatever the offence is, or whatever has caused this, as one which would prevent them from re-electing that person as their Member of Parliament. I am saying that in practical terms, if someone has got themselves into that kind of trouble, they are going to be out anyway because the parties are not going to support them. Therefore we are going through a very expensive process which will generate lots of publicity and lots of difficulties, and the end result will be the same as it would be under our existing procedures.

I am not sure what the problem is that we are trying to solve. If someone has fiddled their expenses or run a travel company or whatever, first, the whip is going to be withdrawn and, secondly, they are not going to be able to stand as a candidate for a particular party and they are not going to get re-elected. My noble friend seems to be arguing that we need to have a complex procedure that gives them the second chance to challenge what would have happened anyway.

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I actually used those examples for a reason. The whip may have been withdrawn, but those people did not have to resign from Parliament and remained in Parliament until the end of the period, whereas if they had been employed by anybody else they would not have been able to do that. This power exists to enforce that which does not exist at the moment. In other words, I used precisely the examples—in the case of the travel company and the family member—where those Members stayed until the end of the Parliament, and would not be able to unless their electorates were willing to allow them to.

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Is my noble friend seriously suggesting that a Member of Parliament is employed by his constituents? That is totally contrary to the constitutional doctrine of Parliament.

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I am absolutely suggesting that.

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I intervene very briefly with a very short contribution. It follows what the noble Lord, Lord Finkelstein, is saying. The flaw in his argument is something he said some minutes ago, when he said any employer would have these powers in a private company. The mistake he is making is to assume that Parliament is like a corporate body. That assumption underlying his speech is a serious flaw because Parliament is and must be different. It must answer only to the electorate. The whole thrust for the past few hundred years in this country is that we have general elections when Members are elected to do their job as an elected representative, and that is it. We have already done too much of this—perhaps the noble Lord is following a tradition that has unfortunately developed in recent years where we are constraining the power of Parliament and treating it as though it is a corporate body, when in fact it is not.

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Naturally, I am not against the power of Parliament to do dignified things. I am against allowing Parliament to do some of the things that this Bill would provide redress to the electorate to do. The power of recall does not belong to anybody else except to the electorate. The electorate will determine whether somebody is recalled. The electorate will determine the result of the by-election, and nobody else. The relation to Parliament, of course, must be independent on political grounds and on political issues. But the Bill proposes limited circumstances which have real effect, and have taken place—as in the examples I gave suggested, where Members of Parliament have remained in the House without challenge by the electorate. This Bill would enable the electorate to have the powers they ought to have.

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My Lords, in response to my brief intervention, my noble friend said that he regards MPs—he said, “I was precisely saying that”—as being employed. Now this is standing our constitution on its head. Words almost fail me to describe my abhorrence, shock and dismay at my noble friend suggesting that the other place comprises 650 employees. That really is extraordinary.

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For words to fail the noble Lord, this really is a serious crime.

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My Lords, first, I will answer one question. This does indeed cover suspended sentences, which is clear in the Bill. I am surprised—my noble friend normally reads every jot and tittle in it—but it covers suspended sentences as well.

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Perhaps my noble friend could draw my attention to exactly where.

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I need notice of that question—and he is my noble friend! I believe that the Minister will have the actual paragraph by the time he comes to reply.

Amendment 3 would allow a conviction and imprisonment outside the UK to count as a trigger. My noble friend Lord Foulkes hinted that he knew someone would raise the question of Saudi, as indeed I will do. I am sure that he does not mean that someone who was perhaps a transgender person driving a car in Russia, which we have just learned is going to be unlawful, or a woman driving a car in Saudi, or indeed a gay person in Iran or Nigeria who is imprisoned, should trigger a recall in this country—

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That is obviously one example, but how about the paedophile in the Philippines or somebody who is drug-running in some country that has a reasonable legal system?

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I was about to come to another example and say that that does not prevent the Standards Committee considering whether that brings Parliament into disrepute. The option is still there, but it is not mandatory. I think that is the right way of approaching it. I heard on the “Today” programme yesterday—the Deputy Prime Minister had not heard of it at the time although by lunchtime he had and he condemned it—of someone being flogged 1,000 times in Saudi. Well, if that person happened to have been one of our MPs and was imprisoned as well, that again would automatically trigger recall under this amendment. I am sure that is not what would be wanted. The ability for it to be considered under the other mechanism is still there but it would not be automatic.

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Surely the Standards Committee would not be able to address it, because the first recall condition would not have been met. Is not the answer to this—perhaps with a bit of drafting— that one looks at offences outside the United Kingdom which would be considered offences in this country? Surely the point is right that if someone has committed a serious offence elsewhere, which would be a serious offence here, and has been convicted, as my noble friend said, it is an enormous loophole in the Bill, given its intent—not that I particularly favour the Bill.

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Undoubtedly there will be cases and jurisdictions where we would be very content to take that, but there will be others—sadly, probably more around the world—where we would query both the jurisdiction and the sentencing. I do not feel that making it automatic, as this amendment would, should be supported. As has been made clear, Amendment 4 conflicts with the current situation in that, if I have understood it correctly, it would trigger recall following a year’s imprisonment. As my noble friend accepts, that was not its aim; it is a probing amendment. I differ from my noble friends Lord Foulkes and Lord Soley in that they want to keep the decision only with the House of Commons, whereas we have supported the proposal that there are circumstances where it should go to the electorate. Giving the electorate a say following someone’s imprisonment—possibly for a very serious offence—is something that we have supported and continue to support.

The other difficulty that I have with what I understand came from the Scottish Law Society—I am sorry if I offend it by not supporting its amendments—is the idea that if an offence, not a conviction but an offence, was declared beforehand, that will be enough to enable someone to escape the possibility of a recall petition. We could have someone saying before being elected an MP, “Well, it is true that I have been arrested for a bit of a punch-up”. That is declaring the offence. However, the conviction may take place sometime afterwards, by which time we discover that actually he had broken his wife’s arm in three places, kicked in the door, set fire to the carpet and broken her favourite records, but that was all a minor punch-up. I do not think that we would want to excuse someone just because they have said, “Oh, I am in trouble with the law”. The word “offence” is used rather than “conviction”. I do not think that there should be letting off at that stage.

As my noble friend says, these are on the whole probing amendments and useful for that, but I do not think that we should move to allow another jurisdiction automatically to trigger a recall in this country.

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My Lords, perhaps before I turn to the amendments of the noble Lord, Lord Foulkes, I may speak to the government amendments, to which the noble Baroness, Lady Hayter, has put her name.

Amendment 15 gives effect to the opposition amendment from the other place. Clause 2 contains further detail to clarify the sentences and orders that would meet the first condition under which an MP would be subject to a recall petition—that is, where an MP has been convicted in the UK of an offence and is sentenced or ordered to be imprisoned or detained and the appeal period has expired without that being overturned.

As introduced in the House of Commons, subsection (1) ensures that offences committed before the MP became an MP can trigger the opening of a recall petition, as long as the conviction and sentencing take place after the day on which the MP became an MP—but only if the offence is committed after the day on which Clause 1 comes into force. That would rule out historic offences triggering a recall.

The House of Commons was clear that it wished historic offences to be caught as well, as long as the conviction took place after the Bill came into force and after the MP became an MP, and voted with that intention, passing an amendment tabled by the Opposition Front Bench in the Commons by 236 votes to 65.

A pair of amendments was tabled to give effect to that intention: a substantive amendment and a paving amendment. Unfortunately, however, only the paving amendment was actually made, which had the effect of deleting the words “the reference” at the start of Clause 2(1) so that it does not now make sense. The substantive amendment was not made, so the Government tabled Amendment 15 to give concrete effect to the will of the House of Commons.

Amendment 20 is a minor and technical change to the definition of “appeal” in Clause 3(6). The amendment is to reflect that the Scotland Act 2012 amended the appeals regime so that certain devolution appeals in Scotland that deal with compatibility with EU or human rights law are dealt with under Section 288AA of the Criminal Procedure (Scotland) Act 1995, rather than the provisions currently listed in the Bill. Making express reference to this section provides certainty that such appeals would be covered.

Clause 22 is a technical clause which defines the interpretation to be given to key words and phrases in the Bill. Amendment 74 would alter Clause 22 to remove any possible ambiguity about the definition of the word “quashed” in relation to overturning a conviction on appeal by replacing it with a phrase making clear,

“that there is no longer a conviction”,

in relation to the first and third conditions for recall. This would cover the scenario where a sentence is replaced with an absolute or conditional discharge, meaning that it is no longer legally to be considered a conviction, as well as the case where the conviction is directly overturned.

I turn to the amendments tabled by the noble Lord, Lord Foulkes. He rightly said that they were paving amendments, and they are of considerable interest. I was intrigued particularly by Amendment 3, which would mean that if an MP were to be convicted outside the United Kingdom, the MP would also be subject to a recall petition process. As the noble Lord mentioned, the Law Society of Scotland raised that issue. The noble Baroness, Lady Hayter, referred to a number of the difficulties with such a proposal. Outside the United Kingdom, Parliament has no control over what acts amount to criminal conduct or when custodial sentences are imposed. Therefore, we cannot predict that a recall petition would be appropriate in all circumstances where an MP is given a custodial sentence outside the United Kingdom.

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How is that dealt with under the Representation of the People Act?

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If the noble Lord will display a shade of patience, I shall of course deal with that, but I would like to explore the general position as well.

There is also the practical difficulty of how such a conviction would affect the working of the recall petition process. Under the Bill, the relevant court would notify the Speaker of the conviction and of when the relevant period for appeals had expired. I hope that your Lordships would understand that it would not be possible to put such a duty on a court outside the United Kingdom.

The noble Lord’s wording, “or elsewhere” is intriguing. My understanding is that under the Representation of the People Act 1981, a Member of Parliament sentenced to more than one year in prison is automatically disqualified, whether the MP was found guilty in the United Kingdom or elsewhere. My notes say—underlined—“as long as the Member of Parliament is detained in the United Kingdom or Ireland”. An MP sentenced to more than 12 months but detained anywhere else in the world would not be disqualified but could be suspended from the service of the House, were the House so to decide. I am intrigued by the point that the noble Lord has made. Without promising anything, I will make sure that his point is fully covered.

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Given that the Bill is meant to be about enabling the electorate to hold to account Members who have been sentenced for less than a year to restore confidence, surely, as my noble friend has pointed out, we could get a situation where someone had committed a serious assault in, say, France, and had been imprisoned for less than a year, but would remain as a Member of Parliament, whereas someone who had done the same thing in the United Kingdom would not. Would that not open the whole process to ridicule?

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Certainly, the process is not intended for ridicule. This is about very serious matters of wrongdoing. That is why I said to the noble Lord that I just want to check absolutely on the points that I have explained about the reasons for the Representation of the People Act 1981 provision. I hope that my noble friend caught my words. I said that if a Member of Parliament were sentenced to more than 12 months but detained anywhere else in the world, they would not be disqualified, but of course the House could suspend them were it so to decide. Without pre-empting anything, my view would probably be that, if a Member of the House of Commons was to commit an extremely serious offence, which involved a considerable custodial sentence, in any country that my noble friend has mentioned, there would obviously be very considerable concern and remedies would need to be sought.

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I apologise to my noble friend for pressing him on this. There would indeed be considerable dismay, but the Bill does not provide for that. The argument is that the House may suspend someone who is subject to a custodial sentence of more than a year in another country covers the existing position which says that a Member who has been sentenced to more than a year is automatically disqualified from the House of Commons. This Bill is supposed to deal with serious offences where the sentence may be less than a year, as we have been hearing from my noble friend Lord Finkelstein, who listed a number of very serious offences. The hole in this Bill, which has been pointed out by the Law Society of Scotland and by the noble Lord, is that if it is done overseas it is not covered. That surely makes the whole exercise a little flawed, to say the least.

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My Lords, I repeat to my noble friend that that is precisely why I said I would be considering and reflecting on what the noble Lord said. I have said it twice now and I hope my noble friend will understand that I said I would make sure that it was absolutely watertight, because we want clarity on the matter. My understanding is that, if a Member of Parliament were to be convicted of an offence in another country, it would, of course, be open to the Standards Committee of the House of Commons to recommend suspension from the service of the House. It would then be for the other place to decide whether and how to act on such a report. In such a situation, the MP could therefore become subject to recall through the second condition. However, I repeat to my noble friend and to your Lordships that I will look at the point he raised to make sure that there are sufficient safeguards in the matter.

Amendment 4 amends the first trigger to capture only sentences of more than one year. My noble friend Lord Forsyth has already made a point on this, but the amendment would have the effect of altering the first recall condition to make an MP subject to the opening of the recall petition process only if the Member of Parliament had been convicted or sentenced to be detained for more than one year. However, as the noble Lord knows, and as has already been discussed, there would be an automatic disqualification under the Representation of the People Act 1981. Under the noble Lord’s proposal, a Member of Parliament sentenced to more than one year’s imprisonment would be both subject to a recall petition process and automatically disqualified. I think that the noble Lord would agree that that would not be what we want from this process.

Amendment 13 removes the provision for historical sentences by removing Clause 2(1). Subsection (1) states that the first recall condition includes an offence committed before the MP became an MP, but does not include an offence committed before the day on which Section 1 comes into force. However, as your Lordships have heard, the Government have tabled Amendment 15 to give effect to the will of the other place, which would mean that offences committed before the Bill comes into force would be caught, as long as the conviction took place after the Bill comes into force and after the MP becomes an MP. Deletion of this subsection would leave it unclear whether an offence committed before the MP became an MP was captured, and offences committed before the Bill comes into force would not be captured. This would have the effect of restricting the number of occasions on which recall could be used and leaves a lack of clarity. The amendment that the noble Lord has put forward clearly goes against the wishes of the other place, to whose Members recall would apply.

Amendment 16 excludes historical offences that were known before the MP became an MP and would enable Clause 2(1)(a) to ensure that offences that had been “disclosed” before the MP became an MP would not be caught by the recall trigger. Again, this amendment has been raised by the Law Society of Scotland, but we are not clear what the word “disclosed” means in this context. If it is to be taken to mean “convicted”, the policy intention of the Government is clear. An MP who was convicted and sentenced before they were elected should not face recall as their constituents will have been able to take account of the conviction in electing them.

There is, of course, the possibility of a person’s criminal record not being publicly known. However, in either case, the Government’s intention is that, where an individual has been convicted and subsequently elected as an MP, the MP will not be subject to recall. Under the Bill, recall will be triggered only where a sitting Member of Parliament is convicted and receives a custodial sentence of 12 months or less. This could be for an offence committed while the person is an MP or beforehand—and, if the government amendments implementing the will of the House of Commons on capturing historic offences are accepted, whether the offence takes place before the Bill comes into force or after.

On the issue of suspended sentences, I refer the noble Lord to Clause 2(2)(a). I am relieved to say that the word “suspended” is in the Bill. I hope that the noble Lord will feel that his paving amendments have been given a hearing on the Front Bench. I will look at the “or elsewhere” but, in the mean time, I hope the noble Lord will withdraw his amendment.

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Will my noble friend be kind enough to comment on the brief exchange I had with my noble friend Lord Finkelstein? Do the Government regard Members of Parliament as employees? That really is a very important issue.

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My Lords, I do not think that I am going to get into an exchange with two noble friends except to say that in my view, we are all servants of the public.

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The existing provisions automatically disqualify a Member of Parliament if they have a sentence of more than one year. Does that include suspended sentences?

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I may need to look into the provisions of the 1981 Act, because I do not have it in front of me. I will make sure that my noble friend knows.

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A thought has just occurred to me that there might be another loophole if someone was sentenced to more than a year, suspended. If that did not create an automatic disqualification, it would also not provide for recall.

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My Lords, I am grateful to the Minister for a very detailed and helpful reply. The whole debate, which has lasted nearly an hour, has shown the value of Committee stage in the House of Lords. We have identified a number of loopholes and the Minister has responded helpfully to them. I will deal with them very quickly, in reverse.

The Minister answered my question about suspension precisely and I accept that completely. I had understood that Amendment 16 meant not just that the convictions were disclosed but that the person had been sentenced. I will go back to the Law Society of Scotland and get that clarified. I will also draw its attention to the Minister’s very helpful comments.

The Minister and my noble friend on our Front Bench made very convincing arguments in relation to Amendment 4. However, some work still needs to be done, and I am grateful to the Minister for agreeing to look at this. First of all, he said he was intrigued by what had arisen, and the conflict between the provisions in the Bill and the provisions in the Representation of the People Act. The exchanges, which included the noble Lord, Lord Forsyth, indicated that there seems to be a number of contradictions that need to be resolved. The Minister went on to say that he will consider and reflect on them and come back to the House after his consideration.

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I want to make sure there is clarity. I will certainly reflect on what is in Hansard. I do not want to suggest that I am in a position to come back at a further stage because I do not know the answer to this—but I want to consider all that has been said, given the point that the noble Lord made.

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I realise that the Minister is constrained not only by messages from the Box but by Ministers in the other place, Ministers higher up and so on—but he has been helpful, and I hope that he will use his helpfulness, eloquence and strength of view in his discussions with his colleagues and say that these anomalies have been raised and that they should be considered. I will ask Michael Clancy of the Law Society of Scotland to look at the comments as well and see if we can reword the amendments for Report to make them fit with what the Minister said and make them more comprehensible. I thank Michael Clancy and the Law Society of Scotland for the great help they have given.

I shall not table further amendments if I know that the Minister is going to come up with some suggestions, so I would be grateful if he would keep in touch with me and other Members of the House in relation to that. In the light of his helpful response, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4 not moved.

House resumed. Committee to begin again not before 8.33 pm.