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However, there is something close to a gentlemen’s club, and its members are Ministers of the Crown. There is no proposal in the Bill from the Government to place the ministerial code of conduct and the investigatory apparatus that goes with it on a statutory footing, unlike what we are doing as far as Members of Parliament are concerned. The Bill therefore creates a new disparity between the status of the two codes. Perhaps the reason is that the combined owner, doorkeeper and bouncer of
the ministerial club is the Prime Minister. Anyone can complain to the Parliamentary Commissioner for Standards about any one of us. If he investigates and there is substance to the complaint, his report will be published. Let us contrast that treatment with the ministerial code. Complaints are pursued only if the Prime Minister so decides, and there is no guarantee that any report will be published.
There are a number of questions that the Bill does not answer or that it does not wholly answer. For example, when do the Government intend to commence the main provisions of the Bill? Will we have an opportunity to debate the relevant commencement orders? Do the Government mean to extend the role of the new commissioner to include investigating complaints that relate to matters other than financial matters, which I have mentioned, and if so, when? Do the Government intend to transfer the other registers to IPSA, and if so, when?
Do the Government intend to transfer investigations by the Parliamentary Commissioner for Standards that are already under way to the new commissioner? If so, when will that happen? Will the new commissioner be able to use the work already carried out by the present commissioner or will he have to start investigating those complaints afresh? Finally, what are we going to do with the Parliamentary Commissioner for Standards, who was appointed for a fixed term only last year? Normally, questions of this kind could be raised in Committee, reflected on and pursued on Report. However, there is no opportunity to do that with this Bill. I therefore hope that the Government can provide some answers up front today.
I do not like this Bill. I do not like the haste with which it is being pursued. I hope that the other place will subject it to proper scrutiny. I am minded not to vote against the Bill on Second Reading, but to vote against it on Third Reading if the objectionable bits are still there, although I am also attracted by the idea of voting against the timetable motion.
6.58 pm
Mr. Andrew Dismore (Hendon) (Lab): It is an honour to follow the right hon. Member for North-West Hampshire (Sir George Young), the Chairman of the Standards and Privileges Committee. I have served on the Committee for eight years, and I am by a long way the longest-serving member on the Government side of the House. I much endorse what he said about the Bill and the questions that he raised. Also, the intervention by the hon. Member for North Essex (Mr. Jenkin) on my right hon. Friend the Member for Birkenhead (Mr. Field) about his self-incriminatory statement to the House, which currently enjoys privilege, but would not do so if the Bill went through, was very telling.
I want to raise issues relating to my role as the Chairman of the Joint Committee on Human Rights, particularly those matters relating to due process. As the right hon. Member for North-West Hampshire and others have said, the legislative timetable for the Bill is highly problematic because it makes it virtually impossible for Committees such as the Joint Committee on Human Rights to perform our important role of subjecting Government Bills to careful scrutiny and reporting to Parliament in time to inform the debate. While I understand
the political imperative to act swiftly in response to widespread and acute public concern about the present system of allowances and the regulation of standards, public confidence in the institution of Parliament is the lifeblood of our democracy. There is therefore a certain irony that a measure designed to restore public confidence in Parliament is being rushed on to the statute book in a way that makes it impossible for it to receive the proper scrutiny and deliberation that such an important measure deserves by the very institution in which we wish to restore public confidence.
I shall turn to the issue of due process. A significant human rights question raised by the Bill is whether it provides sufficient safeguards to enable it to be compatible with the right of Members to a fair hearing under long-standing common law principles of natural justice that are now also incorporated and developed in article 6 of the European convention on human rights and in our own law, through the Human Rights Act 1998. It is often erroneously observed that human rights are only about unpopular causes. At present, there is probably no more unpopular a cause than ourselves in this context. Nevertheless, when subject to disciplinary proceedings, hon. Members are entitled to the same protection of due process as anyone else in the outside world.
The explanatory notes to the Bill acknowledge that the provisions might engage the right to a fair hearing under article 6. However, the Government argue that there is no incompatibility with article 6, for two reasons. First, the explanatory notes state that
“there are arguments that the direction or recommendation functions of the IPSA do not involve the determination of civil rights or obligations.”
Secondly, the notes state that, even if IPSA’s functions of giving directions or making recommendations determined a Member’s civil rights, so that article 6 applied, there is no incompatibility with the article because there is
“a range of safeguards in place to ensure the fairness of the procedures of the IPSA.”
I have carefully considered the Government’s analysis of the Bill’s compatibility with the right to a fair hearing under article 6, and I have to say that I do not agree with their analysis. However, because of the timetable, I have not had a chance to engage in correspondence with the Government, as I would normally do as Chair of the Joint Select Committee on behalf of my Committee, to discuss the issues and thrash out the arguments in detail. The Government’s view that article 6(1) of the convention does not apply to the disciplining of Members is untenable in the light of the very serious consequences that might result for the individual concerned. The available sanctions include expulsion from the House, suspension, the withholding of salary and the ordering of the repayment of money. Any of those sanctions could also have a serious impact on the Member’s reputation. That was expressly recognised by the Joint Committee on Parliamentary Privilege in 1999, when it stated that
“in a particularly serious case a member faces the prospect of suspension and significant financial loss and, which may be more worrying for him, the destruction of his political career.”
Indeed, we have seen that happen in recent cases before the Standards and Privileges Committee. The Joint Committee went on:
“Even when a member is not suspended, the electorate may react adversely to his conduct as revealed during investigation of the complaint made against him.”
The Committee on Standards in Public Life, in its eighth report in 2002, also recognised the serious consequences for an accused Member.
As Chair of the Joint Committee on Human Rights, it is my view that article 6(1) of the convention applies to the disciplining of Members by the House of Commons. Sometimes the nature of the allegation will be such that its determination amounts to the determination of a criminal charge—for example, when the complaint is that the Member has acted fraudulently. In such cases, the criminal limb of article 6 will apply, complete with its higher procedural protections.
In other cases in which the allegations are less serious, a Member’s civil rights will be determined by the proceedings, particularly in view of the seriousness of the consequences for the Member concerned. Not only will this often have financial consequences for the Member, which in today’s Strasbourg case law is often seen as sufficient to qualify as a civil right, but it will always have serious consequences for the Member’s reputation and might affect their ability to pursue their livelihood. The Joint Committee on Parliamentary Privilege pointed out in its reports that several witnesses had drawn its attention to the application of article 6, including Lord Bingham, the then recently retired senior Law Lord who was then Lord Chief Justice.
The Government argue that, even if the right to a fair hearing as stipulated in article 6 applies—as I say, it does—the procedural safeguards in the Bill are sufficient. However, the only procedural safeguard in the Bill is the right of a Member who is the subject of an investigation or complaint to make representations to the commissioner and to IPSA about that investigation or complaint. That falls well short of the set of safeguards that the Joint Committee on Parliamentary Privilege described as the “minimum requirements of fairness”. It also falls well short of what is required by article 6, and of the common law principles of natural justice set out in case law going back over decades.
The Joint Committee concluded, in the light of the seriousness of the consequences for a Member, that it is important that the procedures followed in the investigation and adjudication of complaints should match contemporary standards of fairness. The Committee stated:
“While fairness is fundamental to any disciplinary procedure, the more serious the consequences, the more extensive must be the safeguards...In dealing with specially serious cases, we consider it is essential that committees of both Houses should follow procedures providing safeguards at least as rigorous as those applied in the courts and professional disciplinary bodies.”
The Committee is trying to create a system that somehow mirrors the way in which outside professional bodies are regulated. We should have the same safeguards and procedures as those that are expected for outside bodies such as the British Medical Association, the Law Society or the Bar Council.
Those principles are set out in common law, in article 6 and in the Joint Committee’s report, which includes reference to a
“prompt and clear statement of the precise allegations against the Member...adequate opportunity to take legal advice and have legal assistance throughout...the opportunity to be heard in person...the opportunity to call relevant witnesses at the relevant
time...the opportunity to examine other witnesses...the opportunity to attend meetings at which evidence is given, and to receive transcripts of evidence.”
None of that is in the Bill as it stands, but it is all required under long-standing principles of our law, as laid down by the courts and, more recently, by article 6. It is required by public bodies generally.
Mr. Grieve: I am following carefully the hon. Gentleman’s arguments, which seem to be well founded. Does he also agree that another oddity of the enforcement provisions is that there will be a requirement on IPSA to prepare a protocol on how it operates with a number of other bodies, including law enforcement bodies such as the Director of Public Prosecutions? In the absence of that protocol being available for consideration by the House as we are debating this legislation, how can we determine whether it would be compatible with the provisions of article 6? The sanctions could come not only from IPSA but from other bodies as a result of IPSA’s inquiry.
Mr. Dismore: The hon. and learned Gentleman makes an important point, with which I agree. A subordinate point relates to double jeopardy, which is dealt with under the present arrangements by the commissioner suspending his inquiry pending the outcome of police investigations. Indeed, that has happened in relation to the recent allegations. However, there does not appear to be any provision for such suspension in the new system. Without proper scrutiny of the protocol to ensure that investigations would be suspended pending the termination of criminal proceedings, there would be a risk of double jeopardy.
The Joint Committee’s report went on to say:
“In determining a member’s guilt or innocence, the criterion applied at all stages should be at least that the allegation is proved on the balance of probabilities. In the case of more serious charges, a higher standard of proof may be appropriate.”
The standard of proof is not mentioned in the Bill either. That could be contrasted with what happens now in inquiries by the commissioner and by the Standards and Privileges Committee, in which a higher standard of proof is applied as the allegation becomes more serious. That is entirely appropriate. Indeed, the Committee on Standards in Public Life subsequently endorsed the view of the Joint Committee on Parliamentary Privilege on that issue.
The procedural safeguards in the Bill therefore fall well short of the minimum requirements for fairness identified by the Joint Committee, by the Committee on Standards in Public Life, by article 6 and by the principles of natural justice. They are insufficient to prevent breaches of the right to a fair hearing from occurring in practice. The Government argue that the Bill is compatible with the right to a fair hearing because IPSA is independent. I assume that they are arguing that IPSA itself satisfies the right in article 6(1) of access to an “independent and impartial tribunal” in the determination of civil rights and obligations.
However, IPSA is not capable of constituting the sort of “independent and impartial tribunal” to which an individual Member is entitled under article 6(1). Its functions include devising the rules, designing the procedural safeguards—which are now at large—referring for investigation, and various enforcement powers. Such a body is not capable of providing the “independent and
impartial tribunal” required by article 6. In his evidence to the Joint Committee on Parliamentary Privilege, Lord Bingham, that great jurist, expressed unease about the lack of access to any independent body—some right of appeal—regarding disciplinary decisions of the House. He said:
“I have an inherent unease at a situation in which anyone can be held to have committed what I think you might call a quasi-criminal offence and perhaps subjected to some penalty where there is no means of challenge at all...in the courts.”
“I am always rather uneasy if any decision by anybody, however wise and authoritative, is final and immune from any challenge...it would be desirable to have a route of challenge available...I would not expect the right to be exercised at all often”.
In his written evidence to the Committee, he said:
“But I can...see force in the argument that the Houses should not be the sole and final arbiter in such matters. There would be scope for undesirable conflict if those aggrieved could resort to the ordinary courts.”
He then goes on to make an important recommendation:
“But if an issue arose...the Judicial Committee—
“would be a very suitable body to rule. Article 6 of the European Convention might have some bearing here.”
Without getting too bogged down in the issue of privilege, a decision of the Standards and Privileges Committee could be subject to appeal to the Privy Council, with the House taking the decision in the last eventuality, as is the case now with recommendations from the Standards and Privileges Committee. An appeal level could be added to the process without compromising privilege too much.
I therefore agree with Lord Bingham’s analysis that both the minimum requirements of procedural fairness and article 6 require access to a truly independent and impartial tribunal, with a limited degree of judicial supervision. Lord Bingham suggested that either House would make its own decision in the first instance, and that any party who did not accept that decision would have a right to petition the Judicial Committee of the Privy Council by way of challenge. The right of appeal would be similar to that which already exists against disciplinary decisions of professional bodies such as the General Medical Council, where the right of appeal is to the Privy Council. Why should we be any worse off than a doctor who faces severe disciplinary consequences that could jeopardise his professional future? The Privy Council is expert at ensuring that that right of appeal is only used sparingly, and that is the way forward.
Under the law, UK courts have no jurisdiction to entertain complaints of breaches of convention rights by either House or a person exercising functions in connection with proceedings in Parliament. As I said in an intervention, the effect of section 6(3) of the Human Rights Act 1998 is that Parliament is not a public authority for the purposes of domestic claims under that Act. Although proceedings for breach of article 6 are excluded by the Human Rights Act from the jurisdiction of the UK courts, in so far as they relate to Parliament, they remain within the jurisdiction of the European Court of Human Rights in Strasbourg. If the Bill is enacted in its present form, it is only a matter of time before Strasbourg makes a finding of a violation of a Member’s right to a fair hearing under article 6(1).
I welcome the move from the old system of self-regulation to independent statutory regulation as one that, in principle, is not only likely to enhance public confidence in Parliament, but has the potential to improve the fairness of the treatment of individual Members. However, the Bill as currently drafted is incompatible with the right to a fair hearing under article 6 and at common law as far as the principles of natural justice are concerned.
To render the Bill compatible, it needs to be amended in at least two ways. First, it should at least have inserted into it the minimum requirements of fairness identified by the Joint Committee on Parliamentary Privilege in its 1999 report and endorsed by the Committee on Standards in Public Life in 2002. Secondly, the Bill’s acceptance of independent regulation should be extended by providing a right of appeal to the Judicial Committee of the Privy Council against decisions of both IPSA and the House—in my view, the Committee on Standards and Privileges—that amount to the determination of a criminal charge or of a Member’s civil rights. I have tabled two probing new clauses to that effect for the Committee stage, and I look forward to the Government’s response. I hope that both will be debated, as it would be a travesty if, under the tight timetable, the guillotine were to prevent discussion of such important principles.
To conclude, although I welcome the principles behind the Bill, there is a lot to be done to ensure that Members are treated fairly under it.
7.14 pm
Sir Patrick Cormack (South Staffordshire) (Con): The House has just heard three exceptionally interesting and thoughtful speeches. I appreciate that the Justice Secretary could not be in the Chamber throughout, but I hope he will read the speeches of the right hon. Member for Birkenhead (Mr. Field) and my right hon. Friend the Member for North-West Hampshire (Sir George Young), both of which would repay careful study—
Mr. Straw: Just to explain, I was out of the Chamber because I needed to attend a meeting with the Speaker.
Sir Patrick Cormack: I was not criticising the Justice Secretary in any way, but merely drawing to his attention some very important speeches. He heard some of the speech of the hon. Member for Hendon (Mr. Dismore), but he should read all of it.
Every speech made this afternoon, including the admirable one by the hon. Member for Orkney and Shetland (Mr. Carmichael), has had one theme: this legislation is being rushed unnecessarily. No one in the House is against the setting up of an independent body to administer our pay, allowances and expenses. There is a difference between allowances and expenses, which has not always come out in recent weeks. I find it slightly strange that Members who very properly—I stress this—have claimed the whole allowance for a very large mortgage, have come in for very little criticism, whereas some of those who might not be so well off, and who have claimed for certain items of furniture and perhaps a modest rent, have been crucified. We ought to bear those points in mind, and I hope that Sir Christopher Kelly will do so; a lot rests on him.
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